United States v. City of Chicago

SPRECHER, Circuit Judge,

dissenting.

I respectfully dissent and would affirm the orders of the district court appealed from for the reasons set forth in the original panel decision formerly reported at 648 F.2d 1110 (7th Cir. 1981) and appended hereto.

APPENDIX

Before FAIRCHILD, Chief Judge, and SPRECHER and CUDAHY, Circuit Judges.

FAIRCHILD, Chief Judge.

In 1976, following extensive evidentiary hearings, the Chicago Police Department was found guilty of race and sex discrimination in the hiring and promotion of police officers, in violation of Title VII of the Civil Rights Act of 1964. As part of its final decree entered February 2,1976, the district court ordered that forty percent of the police officers promoted to sergeant be black or Spanish-surnamed. The standard was to remain in effect until further order of the district court. 1

This court affirmed the district court’s imposition of a mandatory quota for the promotion of police officers, stating:

The district court had a duty to construct a remedy that would both eradicate as far as possible the past effects of discrimination and prevent discrimination in the future. Moreover, even though Title VII did not become applicable to the City until 1972, the court had an obligation to correct the present consequences of discriminatory conduct that occurred before that date.

United States v. City of Chicago, 549 F.2d 415, 436 (7th Cir.), cert. denied, 434 U.S. 875 , 98 S.Ct. 225 , 54 L.Ed.2d 155 (1977) (cites omitted). Such promotions were to be made, insofar as possible, from the eligibility rosters developed by the City pursuant to the Illinois Municipal Code. Ill.Rev. Stat. ch. 24, §§ 10-1-12, 10-1-13, 10-1-14. 2 *1365 We held that the City has an affirmative obligation to develop new tests, within the constraint of state law, that do not produce illegally discriminatory results. 549 F.2d at 438 .

In December, 1979, the City posted the results of its new sergeant selection procedures. The City expected to make fewer than 400 promotions from this list. Although 26% of the applicants were members of a minority group only 7% of the top 400 in rank were such members. 3 These results show a greater disparity between white and minority candidates than did the 1973 promotional exam declared invalid. 4 Based on these results, the 1979 selection procedure is prima facie discriminatory. E.g., United States v. City of Chicago, supra, 549 F.2d at 427 . 5 It has not been yet been validated.

By early 1980, the racial composition of the sergeant rank approached substantial parity with that of the patrol officer rank. 6 The rate was less than half that of the long term goal established by the final decree, which called for the police department “to more nearly reflect the racial and ethnic composition of the work force of the City of Chicago.” 411 F.Supp. at 249. 7

On June 24, 1980, the United States and the City of Chicago filed a joint motion for the entry of a “consent” decree seeking to lower the minority interim goal for the promotion of sergeants from 40% to 25%. 8 *1366 This motion also sought to establish a 10% goal for women. 9 The motion was opposed by the Fraternal Order of Police (FOP) and the Suess intervenors, who represent white male patrol officers ranked in the first 400 of the 1979 roster, but whose promotion would be jeopardized by the continuation of the 60%-40% promotional quota. FOP and the Suess intervenors argued for promotions to be made in rank order unless the 1979 list was found to violate Title VII. The Robinson plaintiffs, representing black police officers who first filed suit against the City in 1970, United States v. City of Chicago, supra, 549 F.2d at 421 , opposed the motion, arguing that such a modification ignored the actual goal of the 1976 decree, which was parity with the Chicago workforce. The district court denied the joint motion on July 22, 1980, and the City appeals from that denial. 10

The City, immediately following the district court’s denial of the joint motion, moved for permission to promote sergeants from the 1979 eligibility roster, subject to the 60-40 ratio in the 1976 decree. The Suess intervenors moved to stay or in the alternative to enjoin promotions other than in rank order until the validity of the 1979 selection procedures is adjudicated. The district court denied that motion on July 25, 1980, and granted the City permission to promote. The Suess intervenors and FOP appeal the district court’s order granting Chicago’s motion to promote and its order denying the Suess motion to stay or enjoin promotions.

For the reasons hereinafter stated, we affirm the district court’s decisions which denied the joint motion to modify the 1976 decree, allowed the City to promote and denied the motions by the Suess intervenors.

I.

In denying the joint motion for the entry of a “consent” decree, Judge Marshall stated that “no showing has been made to warrant a modification of the [1976] decree.” 11 The City argues that the court incorrectly applied the standard for the modification of an injunction rather than the lesser standard governing the approval of settlement agreements 12 in rejecting the joint motion. Although it does not appeal the court’s denial, the United States urges that the court’s articulated rationale was insufficient in that it only considered the adverse impact of the 1979 roster rather than whether the new parity between minority officers and sergeants was a sufficient change of circumstances to warrant modification of the 1976 decree. It would *1367 have us remand with directions to the district court to set forth its findings and conclusions following reconsideration of the motion to modify. We decline to follow the suggestions of either the City or the United States.

The district court correctly treated the joint motion as a motion to modify a permanent injunction rather than as a consent decree. 13 This is not a situation in which the parties to an action have entered into a voluntary agreement settling a dispute, pri- or to an adjudication of the merits. Here, there was a determination of the merits. A permanent injunction protecting the rights of those the City discriminated against was entered and affirmed. The City cannot avoid this permanent injunction simply by agreeing with only one party, the United States, to a restructuring of that injunction, especially when the Robinson plaintiffs oppose the purported consent decree. 14

Parties seeking to modify a permanent injunction, such as the 1976 decree, bear a heavy burden. As Justice Cardozo stated in denying a modification of a 12 year old anti-trust decree:

The inquiry for us is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off of the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned .... What was then solemnly adjudged as a final composition of a historic litigation will not be lightly undone at the suit of the offenders, and the composition held for nothing.

United States v. Swift & Co., 286 U.S. 106, 119-20 , 52 S.Ct. 460, 464 , 76 L.Ed. 999 (1932). Accord, SEC v. Advance Growth Capital Corp., 539 F.2d 649, 652 (7th Cir. 1976).

The only evidence introduced by the City and the United States in support of their joint motion was the affidavit of a United States Justice Department Attorney, Cynthia Drabek. This affidavit indicated that, at the present time, approximately the same percentage of minorities are sergeants as are patrol officers — 21%. See note 6, supra. We cannot say that Judge Marshall abused his discretion in finding that this evidence does not warrant modification of the 1976 decree. United States v. City of Chicago, supra. 549 F.2d at 436 .

First of all, the permanent injunction entered in 1976 and affirmed in 1977 called not only for parity between the patrol officers and sergeants but between the police force and the City workforce as a whole. 411 F.Supp. at 249. Stating that the injunction’s goal is fulfilled now that there is parity between minority officers and sergeants ignores its ultimate goal. Parity between the minority officers and sergeants does not mean that the Chicago police force “reflects the racial and ethnic composition of the work force of the City of Chicago as a whole.” Id.

Second, substituting as a goal for minority sergeants the percentage of minority officers in the police force is an implicit assertion that having a greater percentage of minority sergeants than officers inflicts a wrong or hardship on the police force or the City of Chicago as a whole. The remedy imposed in the 1976 decree was meant to eliminate the effects of past discrimination in the Chicago Police Force. For the courts to suspend the remedy before the decree’s goals are fully met in favor of a policy of half-way parity would strike a serious blow *1368 to Title VII itself. See Franks v. Bowman Transportation Co., 424 U.S. 747, 763-64 , 96 S.Ct. 1251, 1263-1264 , 47 L.Ed.2d 444 (1976).

Finally, the joint motion proposed to count black and Hispanic females toward the goals for both minority and female sergeants. See note 9, supra. Yet as Judge Marshall pointed out in denying the joint motion, “[t]he discrimination of the City of Chicago impacted upon three discrete groups — black males, Hispanic males and females.” 15 The double counting proposed in the joint motion would dilute the relief granted black and Hispanic males.

We do not disagree with the proposition that a goal for the promotion of female police officers should be established now that women are entering the police force in significant numbers. 16 We think Judge Marshall was within his discretion, however, in declining to adopt the joint motion’s proposal for the imposition of a goal of 10% female sergeants when only 3V2%-4% of patrol officers are females. 17

II.

Following the district court’s denial of the joint motion to modify, the City moved, on July 24, 1980, for permission to promote sergeants from the 1979 eligibility roster, subject to the 60-40 ratio established by the 1976 decree. 18 The Suess intervenors and FOP opposed the City’s motion to promote and moved to stay the promotion. In the alternative, they moved to enjoin all promotions from the 1979 roster in any manner other than that prescribed by the applicable Illinois statutes and Chicago ordinances, until the validity of the 1979 selection procedures would be adjudicated. 19 On July 25, 1980, the district court granted the City’s motion to promote and refused to stay or enjoin the promotions as urged by the Suess intervenors and FOP. 20 Suess and FOP appeal both the order allowing the City to promote and the order denying their motion to stay or enjoin. 21

Appellants FOP and Suess essentially ask this court to enjoin the promotion of sergeants pursuant to the 1976 permanent injunction pending a hearing on the validity of the 1979 sergeant’s examination. Yet, as Judge Marshall pointed out in denying the motion to stay, or in the alternative to enjoin, the City needed supervisory officers 22 and no one made any effort to contradict that showing.

*1369 Appellants FOP and Suess appear to argue that the quotas imposed in the 1976 decree apply only to promotions made from the 1973 roster. 23 They do not. Nothing in the decree limited its effect to the 1973 roster. The promotional quotas were imposed in order to remedy past discrimination by the City. United States v. City of Chicago, supra, 549 F.2d at 436 . These quotas are to remain in effect until further order of the district court. 411 F.Supp. at 252. No party, including appellants, made any showing to warrant modification or suspension of the 1976 decree. Thus, Judge Marshall did not abuse his discretion when he refused appellants’ request' to, in effect, suspend the decree.

Neither did any party show that the new examinations, from which the 1979 sergeant eligibility roster was derived, were non-discriminatory. Indeed, an affidavit submitted by the United States showed that the 1979 examinations had more of a discriminatory impact than the 1973 examinations previously found to be illegal. See notes 3, 4 and 5, supra 24 Given the results of the 1979 examination, which state a prima facie case of discrimination, e. g., United States v. City of Chicago, supra, 549 F.2d at 427 , Judge Marshall had no choice but to apply the 60-40 ratio to the 1979 list. This situation is quite different from that in 1976, when Judge Marshall suspended the hiring ratios for patrol officers after finding the new 1975 patrol officer examination to be non-discriminatory. Id. at 436 n. 29.

Appellants cannot complain that Judge Marshall has not given them the opportunity to litigate the validity of the 1979 exam. In the very order denying the Suess motion, he authorized the commencement of discovery on issues regarding the validity of the 1979 examination. We agree with Judge Marshall’s statement that if all the Suess intervenors and FOP wanted was an opportunity to prove the validity of the 1979 examination, they “didn’t need to spend the time and the money and the resources of the Court of Appeals to get it.” 25

Accordingly, the orders of the district court appealed from are hereby AFFIRMED.

. The district court’s decision is reported at United States v. City of Chicago, 411 F.Supp. 218 (D.C.N.D.Ill.1976). The court also imposed a mandatory quota for the hiring of police officers, but suspended that portion of the order on September 7, 1976, after the City developed a new roster of candidates, derived from an examination given in 1975, which did not have a discriminatory impact. 420 F.Supp. 733, 735 (D.C.N.D.Ill.1976); 437 F.Supp. 256 (D.C.N.D. Ill.1977); United States v. City of Chicago, 549 F.2d 415, 436, n. 29 (7th Cir.), cert. denied, 434 U.S. 875 , 98 S.Ct. 225 , 54 L.Ed.2d 155 (1977).

. The code states that only persons who pass a qualifying examination for a position covered by the code may be placed on the eligibility roster for hiring and that hiring must be from the eligibility roster in rank order. Of course, strict compliance with the Code was impossible under the Supremacy Clause because the 1973 sergeant’s roster developed by the City had been found to violate Title VII. Thus, promotions were to be made from the 1973 roster only until the quotas were met and only until other selection methods were developed. See United States v. City of Chicago, 549 F.2d at 438 ; 411 F.Supp. at 250 .

. The numbers and percentages by race or national origin and by sex who applied, who passed the test and thereby achieved places on the new list, and who placed in the first 400 on that list were as follows:

. This was especially so with regard to the first 400 places on the resulting lists. The following table compares by race and national origin the percentages of all applicants who made the first 400 positions on the 1973 and 1979 Sergeants’ Eligibility Lists. The table also sets forth the results of an application of the “80% rule” provided for by Section 4(d) of the Uniform Guidelines on Employee Selection Procedures (1978), 43 Fed.Reg. 38290 at 38297-98. This rule states that the failure of a sex, race or ethnic group to have a success rate which is at least 80% of the rate of the most successful group is considered evidence of adverse impact. Because women generally were not eligible for promotion to Sergeant in 1973, there were no meaningful data for women in connection with the 1973 list. Therefore, the following table contains only 1979 data for women.

. Promotion in rank order from the 1979 list is prima facie discriminatory. Permitting promotion from that list, but applying quotas so as to pass over higher ranking non-minority candidates in favor of minority candidates on the list is at least a means of avoiding the discriminatory impact of the 1979 list.

. Drabek Affidavit, supra note 3 at p. 2. The complete statistical breakdown of the Chicago , Police Force is as follows:

3. On March 19, 1980, Dr. Pounian and Ms. Cole provided me with a two page computer print-out setting forth separately the current numbers of persons by race and sex within the Patrol Force and the rank of Sergeant in the City of Chicago Police Department. A copy of that print-out .. . reflects the following data:

. The final figures of the 1980 census show that 50.4% of the City of Chicago’s total population of 3,005,072 are non-white. (This percentage figure includes Blacks, Aleutians, Eskimos, American Indians, Asian and Pacific Islanders, and Other.) 14% of the City’s population classified itself as Spanish Origin. 1980 figures on the make-up of Chicago’s workforce will not be available until 1982. U. S. Bureau of the Census.

. Although the United States and the City of Chicago termed their joint motion a “consent” *1366 decree, it cannot be treated as such because the Robinson plaintiffs, original plaintiffs to the suit, opposed the purported decree.

. With respect to the operational use of the 1979 Sergeants’ Eligibility List, the motion provides:

B. 1. Of the promotions made from the list, 25% shall consist of black and Hispanic persons, subject to their availability on the eligibility list.

2. Of promotions made from the list, 10% shall consist of females, subject to their availability on the eligibility list.

3. Black and Hispanic females promoted to Sergeant in accordance with paragraph 1(B)(2) above shall also be counted, without regard to their sex, in meeting the defendants’ obligations under paragraph 1(B)(1) above.

. The United States, a party to the joint motion, does not appeal from that denial, but does argue that the district court provided inadequate justification for its action.

FOP and the Suess intervenors have moved in this court to dismiss the City’s appeal, arguing that the district court did not abuse its discretion and that, in any event, the district court’s denial is not an appealable order. We deny their motion to dismiss the City’s appeal.

. Tr. of proceedings at p. 16, July 22, 1980.

. See, e. g., Metropolitan Housing Development Corp. v. Village of Arlington Heights, 616 F.2d 1006 (7th Cir. 1980), where we stated:

The trial court in approving a settlement need not inquire into the precise legal rights of the parties nor reach and resolve the merits of the claims or controversy, but need only determine that the settlement is fair, adequate, reasonable and appropriate under the particular facts and that there has been valid consent by the concerned parties, (cites omitted). Objectors must be given reasonable notice and their objections heard and considered.

Id. at 1014 .

. As such, we have jurisdiction pursuant to 28 U.S.C. § 1292 (a), which gives us power to hear appeals from orders “refusing to . .. modify injunctions ...”

. Given that a party to the case contests the motion, the joint motion fails to meet even the lesser standard the City urges us to apply. See Metropolitan Housing Development Corp. v. Village of Arlington Heights, supra at 1014, stating that the trial court “need only determine ... that there has been valid consent by the concerned parties.”

. Tr. of proceedings at p. 17, July 22, 1980; United States v. City of Chicago, 549 F.2d 415, 427, 434 (7th Cir. 1977).

. The 1976 decree stated:

9(c). An appropriate goal for the promotion of females to the rank of sergeant will be considered, upon appropriate motion when a sufficient number of females are available in the patrol officer rank.

411 F.Supp. at 251 .

. In denying this portion of the joint motion, Judge Marshall stated that he would, in the future, consider establishing a goal for female sergeants. Tr. of proceedings at p. 18, July 22, 1980. On July 25, 1980, the United States moved to modify the 1976 decree to provide that 5% of the officers promoted to sergeant be female. This motion is still pending before Judge Marshall.

. So that the district court could insure that the permanent injunction was being complied with, the decree imposed reporting requirements on the City regarding the hiring and promotion of officers. On July 22, 1980, in the order denying the joint motion to modify, the district court ordered the City to seek court approval before making any promotions from either the 1973 roster or the 1979 roster. (The striking of the 1973 roster was affirmed by this court on July 9, 1980. United States v. City of Chicago, 631 F.2d 469 (7th Cir. 1980)).

. The Suess intervenors also moved to enjoin the City from striking the 1979 roster until the first 400 persons on that roster are promoted. FOP did not join in that motion, which the district court treated pursuant to Fed.R.Civ. Pro. 65 and denied. This denial is not appealed from.

. On July 29, 1980, this court ordered that the district court’s order granting the promotion of police officers be stayed. On August 1, 1980, we vacated the temporary stay granted July 29.

. As Suess and FOP appeal from the denial of a motion to enjoin the promotion of police officers, this court has jurisdiction pursuant to 28 U.S.C. § 1292 (a)(1).

. Tr. of proceedings at pp. 14-15, July 25, 1980.

. On July 24, 1980, Mr. Lunblad, attorney for the Suess intervenors, argued that there had to be an evidentiary hearing in order for the 1976 decree to remain in effect. Tr. of proceedings at p. 8, July 24, 1980. Such an argument has no basis in law. Permanent injunctions, such as the 1976 decree, remain in effect until ordered dissolved by the district court or a court on appeal.

. An attorney for the FOP, Mr. Weiner, submitted an affidavit stating that he was advised by the City that there are studies for the 1979 procedures which the City believes establish the validity of the selection and ranking of the 1979 candidates. Tr. of proceedings at 6, July 25, 1980.

. Tr. of proceedings at p. 30, Aug. 27, 1980.