Youngblood v. Dalzell
| Decision Date | 07 November 1986 |
| Docket Number | No. 85-3628,85-3628 |
| Citation | 804 F.2d 360 |
| Parties | 42 Fair Empl.Prac.Cas. 415, 41 Empl. Prac. Dec. P 36,668, 55 USLW 2292 Tilford YOUNGBLOOD, et al., Plaintiffs-Appellees, v. John W. DALZELL, et al., Defendants-Appellees, v. CINCINNATI FIREFIGHTERS UNION, Intervenor-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
James W. Hengelbrok argued, Cincinnati, Ohio, for intervenor-appellant.
M. Kathleen Robbins, Timothy M. Ruttle argued, Cincinnati, Ohio, for Dalzell.
Ronnie E. Dixon, Cincinnati, Ohio, John Schrider argued, for Youngblood.
Before LIVELY, Chief Judge; MERRITT, Circuit Judge; and CONTIE, Senior Circuit Judge.
In this civil rights action the intervenor, Cincinnati Firefighters Union, appeals from an order for compliance with a consent decree, entered with the approval of the original plaintiffs and defendants. The order for compliance related to promotions to the rank of lieutenant in the Cincinnati fire department, and required every sixth vacancy at that rank to be "double filled." The union opposed the order, contending that the order preferred black applicants for promotion who were not shown to have been actual victims of unlawful discrimination and that this preference worked to the detriment of white applicants who were innocent of any unlawful discrimination. After careful review of the record, we affirm.
Two rejected black applicants for appointment to the position of "fire recruit" filed this action in 1973. They sought class certification and declaratory and injunctive relief, charging various Cincinnati city officials with "racial discrimination in the promotion of firemen and in the recruiting, testing and hiring of applicants for the position of fire recruit." The complaint also prayed for affirmative relief to remedy past racially discriminatory practices, citing the fact that Cincinnati had an almost all-white fire department. The plaintiffs claimed violations of the Fourteenth Amendment and 42 U.S.C. Secs. 1981 and 1983.
The parties eventually agreed to a consent decree, which was approved by District Judge David S. Porter, and entered as an order of the court on May 7, 1974. The defendants denied that they had engaged in discriminatory acts against black applicants in recruiting, selecting and hiring or in promoting, but recognized that past practices might give rise to "an inference of a pattern or practice of discrimination" in the past. The decree referred to steps already taken to avoid such an inference and provided for additional measures to be taken for this purpose. The decree certified a class consisting of "all minority persons who have applied since January 1, 1968, or who might hereafter apply for the position of fire recruit in the Division of Fire and all minority firemen currently employed by the Division of Fire who have sought since January 1, 1968, or might hereafter seek promotion within the Division of Fire."
Paragraph 27 of the consent decree dealt with promotions:
Defendants shall use a system for promoting qualified minority persons within the ranks of the Division of Fire to achieve a goal of a work force composition which negates any inference of an unlawfully discriminatory promotion policy based on race.
The order for compliance was based on paragraph 27.
Ohio law requires that vacancies in positions above the rank of "regular firemen" be filled by competitive promotional examinations. Ohio Revised Code (ORC) Sec. 124.45. Eligibility lists are compiled by placing the names of applicants who successfully complete an examination in rank order, beginning with the one receiving the highest grade. When a vacancy occurs the person having the highest position on the list must be appointed. Each eligibility list has a life of two years and all vacancies within the two year period must be filed from the list. ORC Sec. 124.46. When a vacancy occurs in a promoted rank, and no eligibility list (one in effect for two years or less) exists for that rank, the Civil Service Commission is required to conduct a new competitive promotional exam. ORC Sec. 124.48.
Cincinnati conducted a competitive examination for the rank of lieutenant in the fire department in 1981 and the list was published in 1982. Because no black candidates were ranked sufficiently high to make their promotion likely the Ohio Civil Rights Commission sought an order of enforcement under paragraph 27 of the consent decree. The intervenor union did not object to the entry of an order for compliance requiring vacancies to be "double filled," concluding that any detrimental effect on its members would be minimal. Subsequently, at the urging of some of its members the union did appeal the order. However, this court held, in an unpublished opinion, that the union lacked standing to appeal since it had suffered no injury.
Several vacancies in the rank of lieutenant occurred shortly after the expiration of the 1982 list. A new exam was given in 1984 and a new eligibility list containing more than 200 qualified candidates was published on September 26, 1984. The highest ranked black candidates were numbers 23, 42, 43, 67, 90 and 99. By March 11, 1985, the city had promoted 19 firefighters from the 1984 list to lieutenant, and all were white. At the rate vacancies were occurring it was clear that not more than one black firefighter would be promoted to lieutenant from the 1984 list. The plaintiffs then filed a motion to require enforcement of paragraph 27 by use of the double filling technique. The city supported the motion, noting a resolution of the City Council of October 19, 1984 that declared, "blacks are under-represented in the promoted ranks" and that expressed support "for the City administration to obtain the judicial order necessary to make affirmative action promotions to the position of fire lieutenant."
The district court granted the motion over the opposition of the intervening union. The order of enforcement required that each sixth vacancy be double filled with the highest ranked black candidate on the eligibility list. When the sixth vacancy occurred, the person who was sixth on the list as originally published would be at the top of the list, the five higher ones having been promoted to fill the first five vacancies. That person would be promoted and, in addition, the highest ranked black candidate, number 23, would also be promoted to lieutenant. When the twelfth vacancy occurred, the then highest ranked person would receive that promotion and, in addition, number 42, the highest ranked black candidate, remaining on the list would be promoted to an additional position.
The order concluded with the provision that when the 1984 promotion list expired, "a vacancy for Civil Service purposes will not occur until all double filled positions are absorbed into the complement." This "absorption" clause is the primary focus of the intervenor on appeal. The order for compliance also provided that it would dissolve upon expiration of the current eligibility list.
On appeal the intervenor argues that the district court exceeded its authority in entering the order for compliance. The union asserts that the district court erred by relying solely on a disparity in test results to order double filling. It relies on the fact that there has been no proof that the 1984 examination was discriminatory and contends that some proof of intentional discrimination was required before the district court could invoke an affirmative remedy. Citing Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984), the intervenor also argues that the district court erred by imposing a remedy not provided for within the four corners of the consent decree. As it had in the district court, the union took the position in its brief that the district court erred by granting preferential treatment to black candidates who had not been proven to be victims of racial discrimination. In view of the Supreme Court's disposition of a similar "victim specificity" argument in Sheet Metal Workers v. E.E.O.C., --- U.S. ----, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986), and Firefighters Local No. 93 v. City of Cleveland, --- U.S. ----, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986), this point was not pressed at oral argument. See Geier v. Alexander, 801 F.2d 799 (1986) for this court's treatment of the same argument.
The appellees distinguish Stotts on a number of grounds. They point out that the district court in Stotts imposed a remedy that affected the seniority system of the Memphis firefighters, an issue not raised by the order for compliance in the present case. The district court's order in Stotts required white firefighters with greater seniority to be laid off while black firefighters with less seniority were retained during a period of reduction in forces. This remedy was ordered as a modification of a consent decree which did not deal with layoffs in any fashion. The appellees argue that Stotts provides no guidance in the present case because seniority and layoffs are not involved and the order for compliance did not modify the consent decree. They maintain that the order merely approved a remedy agreed to by the parties to the decree and that this remedy is clearly within the intendment and meaning of paragraph 27.
The intervenor and the appellees agree that paragraph 27 is unambiguous; yet they disagree on its meaning. The union reads the language as permitting affirmative action only after a finding of actual discriminatory conduct, as for example, administering a racially discriminatory exam. The appellees, pointing out that paragraph 27 requires the city to use a system for promoting qualified minority firefighters, state that the decree clearly authorizes affirmative remedies. Since the plaintiffs and the defendants entered into a consent decree that provided for use of a system of promotions that would advance...
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