Petition — Banta v. Firefighters Institute for Racial Equality

Supreme Court brief1979

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MAR 19 1979 |

AOE RAIN AA OR AS i RITES GMP ARR AN ALE EET AR! ELLIOT

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MisHne RODAK, JR., CLERK |

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

Be vac hint 78-1441

EDWIN DAVID BANTA and GEORGE HOHMANN,

Petitioners,

FIREFIGHTERS INSTITUTE FOR RACIAL EQUALITY, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Eighth Circuit

JEROME A. DIEKEMPER

JOHN H. GOFFSTEIN

130 South Bemiston Avenue

Clayton, Missouri 63105

(314) 727-0922

Attorneys for Petitioners

Of Counsel

BARTLEY, GOFFSTEIN, BOLLATO & LANGE

130 South Bemiston Avenue

Clayton, Missouri 63105

St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

fad

INDEX

i i ee Ce ee en ee «ee 6. Cee 6 ee ee ee ee eee 0 8

EE ne ee eee

EE ES rr

ERE OE ET

Constitutional and Statutory Provisions Involved .......

EE EEE

Opinion of the District Court on Remand ..........

Positions of Parties on Appeal ...................

Opinion of the Court of Appeals .................

Reasons for Granting the Writ .....................

I. The decision of the Court of Appeals raises con-

stantly recurring questions of great importance and

national concern with respect to the appropriateness

under the Constitution and Title VII of the Civil

Rights Act of 1964 of preferential or quota relief

EE Ee

II. The decision of the Court of Appeals grants an un-

constitutional remedy and conflicts with the letter

and spirit of decisions of Supreme Court and other

courts of appeals regarding the remedial provisions

of Title VII of the Civil Rights Act of 1964 ......

ee SWNT Neos kv waa g's ee ec cease

Appendix

I. Opinion of the United States Court of Appeals for

EE I

SI AA & WC NY NN N

II. Order of United States Court of Appeals for the

Eighth Circuit (denying Intervenors’ Petition for Re-

EL he Peay EY Geek pra Wea w scien saw « A-16

III. January 26, 1978 Order, United States District Court,

Eastern District of Missouri

IV. October 21, 1977 Order, United States District Court,

Eastern District of Missouri

V. December 19, 1978 Order, United States District

Court, Eastern District of Missouri ............. A-27

Cases Cited

Albemarle Paper Co. v. Moody, 422 U.S. 405

ee, BEE UES MAY TOE toe a eOn Kena 7, &2, 33, 38

Bolling v. Sharpe, 347 U.S. 497 (1934) .............. 15

Bridgeport Guardians, Inc. v. Bridgeport Civil Service

Commission, 482 F.2d 1333 (2d Cir., eee 10, 16

Carter v. Gallagher, 452 F.2d 315, modified on rehearing

en banc, 452 F.2d 327 (8th Cir., 1972), cert. denied

I as tse ae oe eae Me Ts ya 10, 15

Chance v. Board of Examiners, 534 F.2d 993 (2nd Cir.

cp, POT RETAINS Tene or Ne ea ean 16

Davis v. County of Los Angeles, 566 F.2d 1334, cert.

granted — U.S. —, 46 U. S. Law Week 3780 (1978) 10, 16

Detroit Police Officers Assn. v. Young, 446 F. Supp. 979 :

(E.D. Mich., 1978)

EEOC v. Sheetmetal Workers Local 638, 532 F.2d 821

(2d Cir., 1976)

Firefighters Institute for Racial Equality v. City of St.

Louis, — F.2d —, 18 FEP Cases 1083 (8th Cir., i

Franks v. Bowman Transportation Co., 424 U.S. 747

so akighe oe ET ee CE OE Ce eae Ta Sra ae aeRO 12, 13, 18

iii

Furnco Construction Co. v. Waters, — U.S. —, 17 FEP

ee BE CIB an 6k 5c he Os cad coc els Reed ae ees 14

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ...... 14

Harper v. Kloster, 486 F.2d 1134 (4th Cir., 1973) ....10, 16

International Salt Co. v. U. S., 332 U.S. 396 (1947) .... 18

Kirkland v. Dept. of Correction Services, 520 F.2d 420

(2nd Cir., 1975), cert. denied 429 U.S. 825 ....... 10, 16

Morrow v. Crisler, 47° F.2d 960 (Sth Cir., 1973), miodi-

fied on rehearing en banc, 491 F.2d 1053, cert. denied

BOD WE, BOS GIGI nies cin vei gatvoecvciviesss 10

Patterson v. Newspaper & Mail Deliverer’s Union, 514

F.2d 767 (2d Cir., 1975) 2... cccccrecccceee Sc

Rios v. Enterprise Assn. Steamfitters Local 638, 501 F.2d

cog Be ae) | Th rea ir rine ia i 16

Teamsters v. U. S., 431 U.S. 324 (1977) ....... 7, 12, 13, 18

U. S. v. City of Chicago, 549 F.2d 415 (7th Cir., 1976),

cert. denied 434 U.S. 875 (1977) .....---0-+eee: 10, 16

U. S. v. City of St. Louis, 549 F.2d 506 (8th Cir., 1977),

cert. denied 434 U.S. 819 ........ eee eee eee eens 2

U. S. v. NL Industries, 479 F.2d 354 (8th Cir., 1973)... 16

University of California Regents v. Baake, — US. —,

17 FEP Cases 1000 (1978) ........ eee cece reece 7,10

Weber v. Kaiser Aluminum & Chemical Corp., 563 F.2d

216 (5th Cir., 1977), cert. granted — U.S. —, 47 US.

Law Week 3408 (1978) .......-: cece eee etree 10

Constitutional and Statutory Provisions Cited

Fifth Amendment ..........-. Lieut On ante e Seer. 3

Pom it Tey. Oe FF en re 4,12

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

ere ae

EDWIN DAVID BANTA and GEORGE HOHMANN,

Petitioners,

FIREFIGHTERS INSTITUTE FOR RACIAL EQUALITY, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Eighth Circuit

Petitioners Edwin David Banta and George Hohmann, Inter-

venors below, pray that a Writ of Certiorari issue to review

the judgment and opinion of the United States Court of Appeals

for the Eighth Circuit entered on November 29, 1978.

Respondents include the Firefighters Institute for Racial

Equality, a corporation, and certain individual black employ-

ees and applicants for employment in the Fire Department of

the City of St. Louis, Missouri (hereinafter collectively referred

to as “Private Plaintiffs”); the United States of America, a

plaintiff below; and the City of St. Louis, Missouri, a municipal

corporation, and certain City officials (hereinafter referred to

collectively as “the City”).

OPINIONS BELOW

The opinion of the Court of Appeals, unofficially reported at

18 FEP Cases 1083, is reprinted in the Appendix at pp. Al-

15. The Order of the Court of Appeals denying Petitioners’

Petition for Rehearing and Suggestion for Rehearing In Banc

is reprinted in the Appendix at p. A-16.

The unreported Order of the United States District Court for

the Eastern District of Missouri dated January 26, 1978, is

reprinted in the Appendix at p. A-17 and that the Court’s un-

reported Order of October 21, 1977, is reprinted in the Ap-

pendix at p. A-23. Also, included is an order dated December

19, 1978, reprinted in the Appendix at p. A-27.

Previous orders of the District Court and Court of Appeals

respectively in this matter are reported at 410 F. Supp. 948

and 549 F.2d 506, cert. denied, 434 U.S. 819 (1977).

JURISDICTION

The judgment of the Court of Appeals was entered on No-

vember 29, 1978. Petitioners’ timely Petition for Rehearing

was denied on December 22, 1978. Jurisdiction is invoked

under 28 U.S.C. §1254 (1).

QUESTIONS PRESENTED

Did the action of the Court of Appeals in granting an im-

mediate absolute preference in promotions to all black candi-

dates who passed a promotional examination previously held

invalid by the Court of Appeals, in the absence of any findings

concerning the qualifications of the black candidates relative

eas Mibeaae

to those of non-black candidates, exceed the remedial provi-

sions of Title VII of the Civil Rights Act of 1964, as amended,

and/or violate the constitutional rights of the non-black can-

didates?

In the absence of proof that but for the administration of

an invalid promotional examination certain black individuals

would have been promoted, could the Court of Appeals prop-

erly order the promotion of all those blacks who passed the

invalid examination, where no non-black candidates had been

promoted as a result of the examination?

Where promotions are made exclusively from the ranks of

incumbent employees, are the competing rights of all employees

to have an equal opportunity for advancement so substantial

as to preclude a quota or absolute preference in favor of a class

or group of minority employees from ever being “appropriate”

either as “affirmative action” or “equitable relief’ within the

meaning of Section 706(g) of Title VII of the Civil Rights Act

of 1964?

Should the Court of Appeals have ordered the immediate

promotion of all black employees who passed an invalid pro-

motional examination, where the Court's prior remand order

suggested neither the necessity nor the appropriateness of such

relief, where the District Court exercised its discretion in not

affording such relief, where neither the United States nor Pri-

vate Plaintiffs sought such relief, and where the Court of Ap-

peals was aware the employer would have a new examination

prepared a month after the Court’s opinion was rendered?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Fifth Amendment, United States Constitution, in relevant

part provides:

iol a

No person shall. . . be deprived of life, liberty, or prop-

erty, without due process of law. .

Title VII of the Civil Rights Act of 1964, as amended, in

relevant part provides:

§ 706(g) “If the court finds that the respondent has in-

tentionally engaged in or is intentionally engaging in an

unlawful employment practice charged in the complaint,

the court may enjoin the respondent from engaging in such

unlawful employment practice, and order such affirmative

action as may be appropriate, . . . or any other equitable

relief as the court deems appropriate. . . . No order of

the court shall require the . . . promotion of an individual

... If such individual was refused . . . advancement... .

for <ay reason other than discrimination on account of

race, color, religion, sex, or national origin or in viola-

tion of Section 704(a).” (42 U.S.C. Sec. 2000e-5(g))

§ 703(j) “Nothing contained in this title shall be inter-

preted to require any employer . . . to grant preferential

treatment to any individual or to any group because of

race - + . OM account of an imbalance which may exist

with respect to the total number or percentage of persons

of any race . . . employed by any employer . . . in

comparison with the total number or percentage of per-

sons of such race . . . in any community, state, section,

or other area or in the available work force in any com-

munity, state, section or other area.” (42 U.S.C. Sec.

2000e-2(j))

STATEMENT OF THE CASE

In 1974 Private Plaintiffs and the United States filed suit

against the City of St. Louis alleging violations of the Consti-

tution, 42 U.S.C. §§ 1981 and 1983, and Title VII of the

Set ane

etn ents

Civil Rights Act of 1964, as amended in 1972, to apply to

state and local governments, with respect to hiring and pro-

motion and other employment practices in the Fire Depart-

ment of the City of St. Louis, Missouri. Petitioners Banta and

Hohmann intervened on behalf of themselves and a class of

175 other similarly situated whites who had taken and passed

the 1974 Fire Captain examination and who were ranked on

the Civil Service promotional list.

The District Court found violations of Title VII with re-

gard to City hiring practices but found the promotional ex-

aminations sufficiently job-related to be legal, even though the

Fire Captain examination had a statistically significant dis-

proportionate impact on blacks. (Blacks, on average, scored

approximately seven points lower than whites, with 25.5 per-

cent of the blacks passing and 43.6 percent of the whites

passing.)

After the District Court's decision in August 1976, the City

of St. Louis notified the parties that it intended to make pro-

motions to the ranks of Fire Captain and Battalion Chief since

the District Court had ruled those promotional examinations

to be legal. The United States and Private Plaintiffs moved for

an injunction pending appeal as to the Fire Captain promo-

tions, which was denied by the District Court but was granted

by the Eighth Circuit. The Court of Appeals decision was then

filed on February 2, 1977. 549 F.2d 506.

With respect to the Fire Captain examination, the Court of

Appeals held that it did not go far enough in testing super-

visory skill and ability and therefore was not content valid.

549 F.2d at 511-13. The Eighth Circuit remanded the case to

the District Court with directions to retain jurisdiction until a

valid examination was devised by the parties and approved by

the Court. 549 F.2d at 513-14. No suggestion or hint was given

that quota or preferential relief was either considered neces-

sary or even contemplated by the Court of Appeals.

ane

Both the City and Intervenors petitioned for certiorari, which

was denied on October 3, 1977. 434 U.S. 819.

The District Court Decision on Remand

On remand, the District Court, without taking any addi-

tional evidence, issued an order dated October 21, 1977, which, |

in large part, adopted an order proposed by the Government,

except for the deletion of a provision for a long term “goal”.

The order enjoined the City from in any way using the 1974

Fire Captain test to make temporary or permanent promotions

to the rank of Fire Captain (A-24). The City was ordered to

develop a valid examination and told that it may make perma-

nent promotions pending development of the test on a 50-50

quota basis (A-24). The City and Petitioners sought altera-

tion or amendment of the October 21, 1977 order. After a

December hearing only on the issue of attorneys’ fees for coun-

sel for Private Plaintiffs, the Court on January 26, 1978, set

aside the October 21 order and entered a new order substituting

a procedure based on seniority and an assessment center for the

quota in the event the City chose to make permanent promo-

tions pending development of a valid test (A-19).

Positions of Parties on Appeal

Only Private Plaintiffs appealed from the January 26, 1978

order, asking that the order of October 21, 1977 be reinstated

to require quota relief in the event permanent promotions were

made pending development of a valid examination. They also

sought quota relief with respect to certain “acting” Fire Cap-

tain assignments (not in issue here) and an increase in the

attorneys’ fees awarded by the District Court.

The Government did not appeal and stated in its brief that,

under the circumstances, it did not seek reversal of the Janu-

ary 26 order as an abuse of discretion.

aA, ae

Both the City and Petitioners argued that the District Court

had not abused its discretion and, additionally, that none of

the Private Plaintiffs had demonstrated that “but for” the ad-

ministration of the 1974 Fire Captain test they would have

been promoted. Petitioners additionally argued that quota pro-

motions would be an unconstitutional and illegal infringement

on their rights and would be beyond the scope of remedies per-

missible under Title VII.

The Court of Appeals Decision

On November 29, 1978, the Court held that the use of a

test having a disproportionate impact on blacks was a violation of

Title VII for which a remedy must be provided (A-7). Cit-

ing University of California Regents v. Baake, — U.S. —, 17

FEP Cases 1000, 1015 (1978) the Court stated, “The Su-

preme Court has recently approved of the use of racial pref-

erence as a means for remedying constitutional or statutory

violations resulting in identified, race-based injuries to individ-

uals held entitled to the preference.” It cited other cases up-

holding use of preferential relief in promotions similar to that

in this case (A-7). Citing Teamsters v. U. S., 431 U.S. 324

(1977), the Court he'd that the “but for” argument was without

merit (A-8).

With respect to the “abuse of discretion” issue (although not

specifically adverted to in those words) the Court, relying on

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), and

Teamsters, supra, sta*ed that the District Court’s duty was to

fashion “the most complete relief possible” (A-9). The Court

found that the use of the 1974 test, coupled with the City’s

“inaction” in not making promotions! justified the use of pref-

1 It must be noted that the City had not made any permanent pro-

motions since 1973 when its prior promotional list generated in 1971

had expired by operation of law. No one was ever promoted there-

after on the basis of the 1974 Fire Captain examination.

erential relief (A-9-10). While acknowledging in another por-

tion of its opinion that the City would have a new test ready

by January 1, 1979 (A-13), the Court held that a preferential

remedy was necessary.

“We cannot ask those black fire fighters who have been

the victims of discrimination to wait forever for the vin-

dication of their rights. In light of the City’s apparent de-

cision not to make any permanent appointments pending

the development of a valid examination, and of the fact

that the development of such an examination rests in the

first instance with the City, we do not believe that mere

reinstatement of the provisions of the District Court's or-

der of October 21, 1977, as requested by F.I.R.E., will

afford any greater relief than that afforded by the court’s

order of January 26, 1978, since under neither order is

the City required to make any permanent appointments to

fire captain positions. We believe that nothing short of an

affirmative order requiring the immediate promotion of

those black firefighters who are unquestionably qualified

is necessary in order to redress the rights of those who

have been the victims of the City’s discrimination.” (A-10-

11)

After an analysis of how relative percentages of the work force

would change by the promotion of all 12 black candidates who

had passed the 1974 Fire Captain test, the Court ordered that

all of them be promoted immediately (A-11). The Court gave

the District Court permission to exercise its discretion to pro-

mote 12 white candidates (A-12).

The Court finally held that the imposition on the rights of

the non-black candidates for promotion was justified under the

circumstances.

“We recognize that the affirmative relief which we order

today may impinge upon the justified expectations of both

black and white firefighters who are as well qualified for

promotion as are those twelve black firefighters whose pro-

motion we have ordered. Continued inaction, however,

will serve neither to vindicate the rights of those black

firefighters who have been the victims of past discrimination

nor give the people of St. Louis the fire protection which

they deserve.” (A-13-14)

Petitioners filed their timely Petition for Rehearing on De-

cember 13, 1978. On December 19, 1978, the District Court,

prior to any ruling on the Petition for Rehearing, entered an

order requiring the immediate promotion of the 12 blacks and

12 whites to the rank of Fire Captain (A-27). The Petition

for Rehearing was denied on December 22, 1978, and the pro-

motions ordered on December 19 took place on the morning

of December 26, 1978. The mandate of the Court of Appeals

did not issue until January 2, 1979. These promotions, if valid,

cannot become final under Civil Service rules until the expira-

tion of a six-month probationary period which may be extended

for another six months.

—~—

REASONS FOR GRANTING THE WRIT

The Decision of the Court of Appeals Raises Constantly Re-

curring Questions of Great Importance and National Concern

With Resp.ct to the Appropriateness Under the Constitution

and Title VII of the Civil Rights Act of 1964 of Preferential

or Quota Relief in Granting Promotions.

To date, this Court has never definitively spoken to the issue

of preferential or quota relief in any employment discrimination

case. In University of California Regents v. Baake, —US.—,

17 FEP Cases 1000 (1978), Justice Powell suggested the pos-

sible appropriateness of quota relief in employment cases,

citing favorably the Eight Circuit's decision in Carter v. Gal-

lagher, 452 F.2d 327 (in banc), cert. denied 406 U.S. 950

(1972). However, numerous courts have had and will continue

to have problems with determining when, if ever, quota relief

should be implemented. Compare, e.g. Davis v. County of

Lov Angeles, 566 F.2d 1334, cert. granted—U.S.—, 46 US.

Law Week 3780 (1978); U. S. v. City of Chicago, 549 F.2d

415 (7th Cir. 1976), cert. denied 434 U.S. 875 (1977);

Carter v. Gallagher, 452 F.2d 327, (in banc), cert. denied 406

U.S. 950 (1972); and Morrow v. Crisler, 479 F.2d 960 (Sth

Cir. 1973), modified on rehearing in banc, 491 F 2d 1053, cert.

denied 419 U.S. 895 (1974) with Harper v. Kloster, 486 F.2d

1134 (4th Cir. 1973); Bridgeport Guardians, Inc. vy. Bridge-

port Civil Service Commission, 482 F.2d 1333 (2d Cir. 1973);

Kirkland v. Dept of Correction Services, 520 F.2d 420 (2nd Cir.

1975), cert. denied 429 U.S. 823; Weber v. Kaiser Aluminum &

Chemical Corp., 563 F.2d 216 (5th Cir. 1977), cert. granted

Pita 47 U.S. Law Week 3408 (1978); and Detroit Police

Officers Assn. v. Young, 446 F. Supp. 979 (E.D. Mich. 1978).

This Is especially a problem where, like in the instant case, the

issue applies to a promotional situation.

The need for guidance to judges, lawyers and litigants in this

area is patent. Employees, whether minority or non-minority,

are entitled to be advised as to their rights vis-a-vis those of

their fellow employees. The uncertain state of the law compels

non-minority employees, such as Petitioners here, to intervene

in employment discrimination litigation to insure that their in-

terests are adequately represented. Such intervention, of neces-

sity, complicates and lengthens such litigation. Currently, how-

ever, there is no other way of protecting the rights of incumbent

non-minority employees.

This Court should decide once and for all whether preferential

or quota relief is ever appropriate in the context of discrimina-

tion in promotions. This decision of necessity would give

guidance in the area of hiring discrimination as well. If the

Court determines that preferential relief may constitutionally

and statutorily be “appropriate”, then guidelines, similar to those

attempted by the Second Circuit in Kirkland, supra, should be

given to litigants, their counsel and the Courts so that their

efforts can be purposefully directed to the areas of proof neces-

sary to justify such relief.

This Court need look no further than its own experience in

seeing the interest and national concern generated by its ac-

ceptance of and ruling on the Baake case and its acceptance of

Weber for plenary review, to appreciate the correlative im-

portance of the issues presented here. Regardless of how this

Court rules on the issue of voluntary implementation of affirma-

tive action quotas by employers and labor organizations, the

question of quota remedies will remain undecided. The in-

stant issues are ripe for decision and their complete resolution

should not be left for another day.

—

The Decision of the Court of Appeals Grants an Unconstitu-

tional Remedy and Conflicts With the Letter and Spirit of Deci-

sions of the Supreme Court and Other Courts of Appeals Re-

garding the Remedial Provisions of Title VII of the Civil Rights

Act of 1964,

Here, a quota is not a “make whole” remedy.

The actual discrimination found to exist by the Eighth Cir-

cuit was the administration of an invalid employment test having

a disproportionate impact on blacks. No blacks or whites were

ever promoted on the basis of the test. Petitioners submit that

there is a qualitative difference in the nature of the violation

between the administration of an invalid examination and the

implementation of the results of such an examination. Absent

actual illegal promotion of non-minority employees on the basis

of an invalid examination, Petitioners contend that a quota

promotional remedy can never be “appropriate” within the mean-

ing of Section 706(g) of Title VII (42 U.S.C. § 2000e-5(g) ).

It must again be noted that the only discrimination found to

exist with respect to promotions was the administration of the

1974 Fire Captain examination.

The Supreme Court's primary teachings with respect to reme-

dies in employment discrimination cases are contained in

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), Franks

v. Bowman Transportation Co., 424 U.S. 747 (1976), and

Teamsters v. U. S., 431 U.S. 324 (1977). The legislative his-

tory cited in these cases conclusively establishes that Congress

intended that Title VII remedies be fashioned along the lines

of remedies afforded discriminatees under the National Labor

Relations Act.? In each of these cases the Court speaks in

2 In each of these cases the Court referred to the intent of Con-

gress to parallel remedies available under the National Labor Rela-

=—"

terms of making victims of discrimination whole. Albemarle,

supra, 422 U.S. at 418-21; Franks, supra, 424 U.S. at 769;

Teamsters, supra, 431 U.S. at..., 97 S.Ct. at 1860 and 1869.

In Franks the Court speaks of “restitution” 424 U.S. at 764 and

specifically adopts the “but for” test 424 U.S. at 768 specifically

rejected by the Eighth Circuit (A-8). Quoting the Section by Sec-

tion Analysis of Title VII, the Court in F ranks holds the remedial

purpose of the Act is that “persons aggrieved by the effects and

consequences of unlawful employment practices be, so far as

possible, restored to where they would have been were it not for

the unlawful discrimination.” 424 U.S. at 764. Here, however,

it would be pure speculation to assert that each of the 12 black

candidates ordered to be promoted would have been promoted

“but for” the administration of an invalid employment test.

Given the correctness of the Eighth Circuit’s prior ruling that

the 1974 Fire Captain test was invalid (now the law of this

case), the question remains: What were the black candidates for

promotion denied by the administration of the invalid test?

The answer is obvious. They were denied the equal opportu-

nity to compete against non-minority candidates.

It is equally obvious, however, that they were not denied pro-

motions they otherwise would certainly have received. It cannot

be said that all 12 blacks who passed the invalid examination,

would have passed a valid examination and would have scored

well enough to have been promoted. The remedy imposed by

the Court of Appeals was therefore not “appropriate”.*

tions Act. Intervenors are aware of no NLRB case applying quota

remedies. Preferential treament under the Labor Act has been limited

to preferential reinstatement of unfair labor practice strikers and to

preferential rehire of replaced economic strikers who unconditionally

apply for reinstatement.

3 If the quota promotions were “appropriate”, should not the 12

blacks also have been accorded the back pay presumptively appro-

priate under Albemarle, supra 422 U.S. at 421, and the retroactive

seniority presumptively appropriate under Franks, supra, 424 U.S.

at 771.

_—

Here, a quota is a discriminatory preference without regard |

to qualification.

The guiding principle of Griggs v. Duke Power Co., 401 U.S.

424 (1971), is that “Discriminatory preference for any group,

minority or majority, is precisely and only what Congress has

proscribed.” 401 U.S. at 431. The reasoning of the Court of

Appeals to justify the use of quota promotions (A-9-11) appears

to be based more on the lack of a reasonable number of black

supervisors than on an analysis of whether the individuals ordered

to be promoted would have succeeded on a valid test. Addi-

tionally, there appears to be no concern for the level of qualifica-

tions (other than that they are minimally qualified) of the 12

ordered to be promoted vis-a-vis those of the non-minority can-

didates for promotion. This is contrary to the Civil Service

principles adopted by the City of St. Louis providing for the

promotion of the “best qualified” as opposed to the “just barely

qualified”. It is also contrary to the intentions of Congress:

“Congress has not commanded that the less-qualified be

preferred over the better qualified simply because of mi-

nority origins. Far from disparaging job qualifications, as

such, Congress has made such qualifications the controlling

factor, so that race, religion, nationality and sex become

irrelevant.” (Griggs, supra, 401 U.S. at 436).

The fact that there was only one black Fire Captain in the Fire

Department did not justify quota relief. See Section 703(j) of

Title VII. In Furnco Construction Co. v. Waters, — U.S. —,

17 FEP Cases 1061 (1978), this Court stated:

“It is clear beyond cavil that the obligation imposed by

Title VII is to provide an opportunity for each applicant

regardless of race, without regard to whether members of

the applicant’s race are already proportionately represented

in the work force.” 17 FEP Cases at 1067 (emphasis in

original).

—_ po

Petitioners should have the same opportunity for promotion as

the black candidates.

Here, granting an absolute preference in promotions to blocks

is an unconstitutional infringement on the right of non-black

candidates for promotion.

The Judiciary, like the other branches of the Federal Gov-

ernment, is bound by the strictures of the Fifth Amendment.

Petitioners submit that the equal protection component of the

Fifth Amendment recognized by this Court in Bolling v. Sharpe,

347 U.S. 497, 499 (1934), and its progeny, should preclude

the granting of an absolute preference in promotional ranks

based on race, especially where, as here, promotions are made

from the ranks of incumbent employees all competing under a

civil service system for advancement. The rights and reason-

able expectations of all employees must be respected. Even

the Eighth Circuit, in banc, recognized the constitutional im-

plications of an absolute preference in Carter v. Gallagher, 452

F.2d 315, when it reversed a district court order granting an

absolute preference in hiring. The full court observed:

“The absolute preference of 20 minority persons who

qualify has gone further than any of the reported appel-

late cases in granting preference to overcome the effects

of past discriminatory practices and does appear to vio-

late the constitutional right of Equal Protection of the

Law to white persons who are superiorly qualified.” 452

F.2d at 328.

Later in its opinion the Court elaborated further:

“The absolute preference ordered by the trial court would

operate as a present infringement on those non-minority

group persons who are equally or superiorly qualified for

the firefighter’s position; and we hesitate to advocate im-

== 16 —

plementation of one constitutional guarantee by the out-

right denial of another.” 452 F.2d at 330.

Petitioners submit that the absolute preference in promotions

granted by the Court of Appeals must be struck down. The

fact that the District Court subsequently exercised its discre-

tion to appoint an equal number of whites in no way detracts

from the precedential effect of the opinion in granting the

absolute preference.

The Courts of Appeals are split on the appropriateness of

mandatory quota relief, especially on the promotional level.

The Eighth Circuit, in the instant case and in U. S. v. NL

Industries, 479 F.2d 354 (8th Cir. 1973), as well as the Sev-

enth Circuit in U. S. v. City of Chicago, 549 F.2d 415 (7th

Cir. 1976), cert. denied 434 U.S. 875 (1977), and the Ninth

Circuit in Davis v. County of Los Angeles, 566 F.2d 1334,

cert. granted — U.S. —, 46 U. S. Law Week 3780 (1978),

have all granted mandatory quota relief in promotions. The

Second Circuit in a line of cases,‘ including Kirkland v. Dept.

of Correction Services, 520 F.2d 420 (1975), cert. denied

429 U.S. 823, has questioned the propriety of using quotas on

the promotional level. In Harper v. Kloster, 486 F.2d 1134

(4th Cir. 1973), the Fourth Circuit affirmed a district court’s

denial of quota relief. It adopted as its own, the discussion

and conclusions of the district court regarding quotas. 486

F.2d at 1136. That district court discussion includes, in part,

the following:

* Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commis-

sion, 482 F.2d 1333 (2d Cir. 1973); Rios v. Enterprise Assn. Steam-

fitters Local 638, 501 F.2d 622 (2d Cir. 1974); Patterson v. News-

paper & Mail Deliverer’s Union, 514 F.2d 767 (2d Cir. 1975);

Kirkland v. Dept. of Correctional Services, 520 F.2d 420 (2d Cir.

1975); EEOC v. Sheetmetal Workers Local 638, 532 F.2d 821 (2d

pe a Chance v. Board of Examiners, 534 F.2d 993 (2d Cir.

l ).

—.

“Racial quotas in education impose no burden on any-

one, since no one has the right to attend a segregated

school. On the contrary, all prospective employees have

the right to consideration for public employment without

regard to race. As a result of the suspicion with which the

law views racial classifications and the fact that the Su-

preme Court has yet to address the matter, racial employ-

ment quotas may not be valid ingredients in relief... .

(359 F. Supp. at 1214; emphasis supplied).

“What was said about hiring quotas is at least as appli-

cable to promotion quotas in this case . . . Court ordered

promotions would be a windfall to employees who cannot

complain that they personally should be higher in the de-

partment. That result would also be unfair to those who

otherwise could compete equally for the positions.” 359

F. Supp. at 1216.

Even the Court of Appeals, in the instant case, was cognizant

of the problems inherent in the preferential relief it ordered.

“We recognize that the affirmative relief which we order today

may impinge upon the justified expectations of both black and

white fire fighters who are as well qualified for promotion as

are those 12 black fire fighters whose promotion we have or-

dered.” (A-14). The Court, however, ordered the promotions

despite this infringement.

The Court of Appeals applied an incorrect standard of review.

The Eighth Circuit in its first opinion in this case ordered

the parties to devise a valid promotional test to be approved by

“the District Court. 549 F.2d at 513. The Court of Appeals

did not mention or hint at the necessity or even the possibility

of ordering quota promotions. Without taking any additional

evidence, the District Court, on remand, entered an order re-

quiring quota relief only if the City chose to make permanent

promotions pending development of a valid test. On the motion

of Intervenors and the City, even this non-mandatory quota was

withdrawn by the District Court, in the exercise of its discretion.

On appeal, Private Plaintiffs only sought reinstatement of the

prior order of October 21, 1977, with its non-mandatory quota.

The United States did not appeal and took the position that it

did not seek reversal of the District Court order as an abuse of

discretion. The Court of Appeals, without the benefit of any

new evidence, other than the mere passage of time, substituted

its judgment for that of the District Court in ordering an ab-

solute preference for the 12 blacks who passed the invalid ex-

amination. This action on the part of the Court of Appeals is

contrary to the Supreme Court’s teaching in /nternational Salt

Co. v. U. S., 332 U.S. 396, 400-01 (1947), that the framing

of remedial decrees should take place in the district court, sub-

ject to review only if the district court abused its discretion.

The same rule was followed by this Court in Title VII cases

where the remedy ordered by the district court did not frustrate

the purposes of Title VII. See Albemarle, supra, 422 U.S. at 416

and 424; Franks, supra, 424 U.S. at 770 and 779; Teamsters,

supra, 431 U.S. at ..., 97 S.Ct. at 1875. In this case, it is im-

possible to say that the District Court’s order of January 26,

1978 was an abuse of discretion. Thus, the Court of Appeals

should not have interfered with the lower court’s order.

— 19 —

CONCLUSION

For the above reasons, a writ of certiorari should issue to

review the judgment and opinion of the Eighth Circuit.

Respectfully submitted,

JEROME A. DIEKEMPER

JOHN H. GOFFSTEIN

130 South Bemiston Avenue

St. Louis, Missouri 63105

(314) 727-0922

Attorneys for Petitioners

Of Counsel

BARTLEY, GOFFSTEIN, BOLLATO

and LANGE

130 South Bemiston Avenue

St. Louis, Missouri 63105

APPENDIX

ae < ae

APPENDIX I

United States Court of Appeals

For the Eighth Circuit

No. 78-1294

Firefighters Institute for Racial Equality, a Corporation; George

Baker, Robert D. Morgan, Robert Grady, Sherman George,

George Redford Turner, Lawrence L. Britt, Vernon Ammons,

Wendell H. Goins, Charles Gay, George E. Horne, William L.

Young, Daniel S. Austin, Robert Anderson, John H. Harvey,

Joseph P. Hughes, Eugene Stanton, Preston Sims, Each Individu-

ally and on Behalf of All Other Persons, Similarly Situated,

Appellants,

The City of St. Louis, Missouri, a Municipal Corporation;

Division of Fire & Fire Prevention, Department of Public Safety,

City of St. Louis, Missouri; Frank C. Cummings, in His Capacity

as Acting Chairman of the Civil Service Commission of City of

St. Louis, Missouri; Fred Gould, in His Capacity as a Member

of the Civil Service Commission, City of St. Louis, Missouri;

Charles Marino, in His Capacity as Director, Department of

Public Safety, City of St. Louis, Missouri; Denis D. Broderick,

Individually and in His Capacity as Fire Chief of the City of

St. Louis, Missouri; R. Elliott Searce, Individually and in His

Capacity as Director of the Department of Personnel, City of

St. Louis, Missouri; and United States of America,

Appellees,

and

Joseph Blessing, Michael Davis, Robert Crowley, David Banta,

Andrew Rios, George Hohmann, Don Blackwell, Nick Altmeyer

and George Tschlis, Each Individually and as Members of a

Class,

Intervenors-Appellees.

— eee

Appeal from the United States District Court for the

Eastern District of Missouri.

Submitted: September 11, 1978

Filed: November 29, 1978

Before HEANEY and STEPHENSON, Circuit Judges, and

VAN SICKLE,* District Judge.

HEANEY, Circuit Judge.

This is the latest appeal in protracted litigation, challenging

the employment practices of the St. Louis Fire Department.

Members of the Firefighters Institute for Racial Equality

(F.I.R.E.) and several named plaintiffs brought this action in

January, 1974, against the City of St. Louis and various City

Officials, alleging racial discrimination against blacks in the

hiring and promotion of personnel in the St. Louis Fire De-

partment. F.I.R.E. also challenged the existence of racially

segregated eating arrangements, or “supper clubs,” maintained

by white employees in the City’s firehouses. The action was

brought under 42 U.S.C. §§1981, 1983 and 2000e et seq. The

United States subsequently filed suit under §2000e et seq. as

well, charging the City with the “pattern or practice” of dis-

crimination in violation of Title VII of the Civil Rights Act of

1464. The cases were consolidated for trial. The intervenors,

representing a Class of non-black employees and candidates for

employment in the Fire Department, were permitted to inter-

vene on behalf of the City.

On April 9, 1976, the District Court entered an order in

which it found for the City on all counts. This order was

amended by a nunc pro tunc order issued by the District Court

on June 28, 1976. In that order, the court found that the

* BRUCE M. VAN SICKLE, United States District Judge for the

District of North Dakota, sitting by designation.

— * ym

examination which the City had used for the entry level position

of firefighter had a disparate racial effect and was not validated.'

The order required that the City attempt to achieve a fifty per-

cent hiring rate of blacks for firefighter positions over the next

five years. F.I.R.E., the named plaintiffs and the United States

appealed.?

On appeal, this Court affirmed the District Court with regard

to the City’s use of a particular examination for the position of

battalion chief and with regard to the City’s refusal to promote

a particular individual, George Horne. Firefighters Institute,

Etc. v. City of St. Louis, 549 F.2d 506, 515-516 (8th Cir.),

cert. denied, 434 U.S. 819 (1977). We found, however, that

the examination administered in 1974 for promotion to the posi-

tion of fire captain had a racially disparate effect to the disad-

vantage of minority candidates, and that the City had failed to

demonstrate that the test was sufficiently job related to justify

its use. Id. at 509-513. We remanded the case to the District

Court with directions that it maintain continuing jurisdiction

until a valid examination is devised by the parties and approved

by that court. Jd. at 513-514. We also found that the mainte-

nance of segregated supper clubs by white employees in the

City’s firehouses violated Title VII, and directed the District

1 The mean scores for blacks and whites on the written examina-

tion given for the entry level position of firefighter in 1974 were ap-

proximately 56.70 and 71.95, respectively. The cut-off score used

in 1974 eliminated approximately fifty-one percent of the black ap-

plicants and twenty-five percent of the white applicants. The parties

stipulated that although the population of St. Louis is approximately

forty percent black, only eleven percent of the uniformed personnel

employed in the St. Louis Fire Department as of November, 1974,

were black.

2 The United States appealed only that portion of the District

Court’s order denying relief as to a promotional examination which

had been given for the position of fire captain, and as to the main-

~ tenance of segregated “supper clubs” by white employees in the City’s

firehouses. No appeal was taken by any party as to the firefighter

examination.

— wa

Court, on remand, to supervise the promulgation of regulations

by the Fire Department which would prohibit the use of City’s

facilities for such activities. Jd. at 515.

On October 21, 1977, the District Court entered an order

which permanently enjoined the City from engaging in any

practice with respect to promotion to the rank of fire captain

which had the purpose or effect of discriminating against any

black applicant on the basis of race. The order permanently

enjoined the use of the 1974 test results as the basis for either

permanent or temporary (acting) appointments to the position

of fire captain, except as provided therein. It enjoined the City

from making any permanent appointments to the position of

fire captain unless made on the basis of a valid examination or,

pending the development of a valid examination, unless fifty

percent of such vacancies were filled with qualified blacks. The

order provided that all black applicants who passed the 1974

test and who were on the 1974 eligibility list were to be deemed

qualified during this interim period. In the event that all blacks

on that list were offered employment and the defendants de-

sired to make further permanent appointments during this in-

terim period, the parties were directed to determine an appro-

priate basis for the appointment of black firefighters who are

otherwise qualified for promotion under time-in-grade and effi-

ciency rating standards.* The order also provided that, to the

extent practicable, the fifty percent goal established for perma-

nent appointments during the interim period should also be

followed for temporary appointments during this period. The

court also directed the City to promulgate regulations to assure

that any segregation in communal eating arrangements in fire-

houses ceased.

8 Basic qualifications for promotion to the position of fire captain

have been five years of experience as a firefighter, satisfactory service

ratings and a satisfactory score on the written examination admin-

istered in 1974.

— a

On January 26, 1978, the District Court entered an order

setting aside its order of October 21, 1977. The court expressed

its “deep disappointment with the intransigence of all parties

and their continued unwillingness to conscientiously and in-

dustriously seek an acceptable procedure for filling the numerous

vacancies existing in the position of Fire Captain, which va-

cancies should be filled if the safety of the persons and proper-

ties of St. Louisans is to be assured.” The court then reiterated

the provisions of its previous order, with the exception of those

provisions governing the appointment of individuals to fire

captain positions pending the development of a valid examina-

tion. Instead of requiring that any such interim appointment to

permanent positions be made in accordance with a fifty percent

black promotional goal, as specified in the previous order, the

revised order provides that such appointments may be made as

follows: A racially identified list of all firefighters, who have

served five years or more as a firefighter, is to be drawn up in

the order of departmental seniority. The black firefighters with

the most seniority and the white firefighter with the most seniority

will then be offered the opportunity to be evaluated by the

Assessment Center technique. The individual receiving the

higher evaluation is then to be promoted, regardless of his race.

The firefighter who is not promoted remains eligible for the

next fire captain vacancy and is evaluated along with the black

firefighter and the white firefighter with the next highest seniority.

The two unsuccessful candidates for that vacancy remain eligi-

ble for the next vacancy, and so on. The order contains no pro-

visions governing temporary appointments to fire captain posi-

* The Assessment Center technique, lauded by both F.I.R.E. and

the City’s expert witnesses, is a selection procedure which uses in-

dividual and group exercises to stimulate job responsibilities while

assessors evaluate a candidate’s performance. Firefighters Institute,

Etc. v. City of St. Louis, 549 F.2d 506, 513 (8th Cir.), cert. denied,

434 U.S. 819 (1977). This Court has previously recognized the

potential of the Assessment Center technique as a means for evaluat-

ing supervisory skill. /d.

—~ wes

tions, except for a general prohibition against the use of the

1974 test result as the basis for any appointments to the position

of fire captain, whether on a temporary or permanent basis.

F.I.R.E. contends that the remedy contained in the District

Court’s order of January 26, 1978, is inadequate on several

grounds.® It contends that the procedure provided in the order

for the promotion of individuals to permanent fire captain posi-

tions pending the development of a valid examination is inade-

quate in that it fails to guarantee that any black firefighter will

be promoted. It argues that elimination of the effects of past

discrimination requires the imposition of a fifty percent black

promotional goal, similar to that provided in the District Court’s

previous order of October 21, 1977. F.I.R.E. also contends

that since the firefighters who serve as acting fire captains gain

valuable supervisory experience which will give them a com-

petitive advantage on any test for fire captain positions which

is developed later, these assignments should also, as far as

practicable, reflect a fifty percent black ratio.

The City responds, first, that since the appellants adduced

only general statistical information as to the disparate impact

of the 1974 examination upon blacks,® there is no evidence of

racial discrimination which would justify the imposition of a

racial goal for promotions to fire captain positions. It contends

that no violation of Title VII has been established since there

5 The United States does not appeal from the District Court’s

order.

6 The adverse effect of the 1974 examination on black candidates

for fire captain is detailed in our prior opinion. The mean score for

blacks was 69.72; for whites, it was 76.59. Of those blacks taking

the exam, 25.5 percent received a passing score; 43.6 percent of the

py o passed. Firefighters Institute, Etc. v. City of St. Louis, supra

at 516 n.4.

sie

is no evidence that any firefighters, white or black, have received

promotions on the basis of the 1974 examination results, and

since there is no evidence that any black firefighters would have

been promoted but for the invalid test.

The City’s contention that no violation of Title VII has been

established which would permit an order requiring that qualified

blacks be appointed to acting or permanent fire captain posi-

tions is without merit. We have previously held that the pro-

motional examination for fire captain, which was administered

by the defendants in 1974, had a racially disproportionate im-

pact on blacks and was not job related. Firefighters Institute,

Etc. v. City of St. Louis, supra at 509-514. The use of a testing

device, although neutral on its face, which has a racially dis-

parate impact on members of minority groups and which has

not been properly validated by the employer, constitutes a dis-

criminatory act for which Title VII affords a remedy. See Albe-

marle Paper Co. v. Moody, 422 U.S. 405, 425 (1975); Mc-

Donnell Douglas Corp. v. Green, 411 U.S. 792, 806 (1973);

Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). The

Supreme Court has recently approved of the use of racial prefer-

ence as a means for remedying constitutional or statutory vio-

lations resulting in identified, race-based injuries to individuals

held entitled to the preference. University of California Regents

v. Bakke, 57 L.Ed.2d 750, 778 (1978). See also Davis v.

County of Los Angeles, 566 F.2d 1334, 1342-1343 (9th Cir.

1977), cert. granted, 46 U.S.L.W. 3780 (June 20, 1978);

Carter v. Gallagher, 452 F.2d 315, 329-330 (8th Cir.) (en

banc), cert. denied, 406 U.S. 950 (1972), and cases cited

therein. Other courts have upheld the use of preferential relief

in hiring or in the making of promotions after finding that an

employer had engaged in a discriminatory testing practice similar

to that engaged in here. See, e.g., United States v. City of Chi-

cago, 549 F.2d 415, 436-437 (7th Cir.), cert. denied, 434 US.

a ae

875 (1977); Davis v. County of Los Angeles, supra; Boston

Chapter N.A.A.C.P., Inc. v. Beecher, 504 F.2d 1017, 1026-

1028 (Sth Cir. 1974), cert. denied, 421 U.S. 910 (1975);

Vulcan Soc. of N.Y. City Fire Dept., Inc. v. Civil Serv. Com’n,

490 F.2d 387, 398-399 (2d Cir. 1973); Commonwealth of

Pennsylvania v. Flaherty, 404 F.Supp. 1022, 1030-1031 (W.D.

Pa. 1975); Western Addition Community Organization v. Alioto,

369 F.Supp. 77 (N.D. Cal. 1973), appeal dismissed as moot,

514 F.2d 542 (9th Cir.), cert. denied, 423 U.S. 1014 (1975).

The City’s contention that preferential relief is unavailable be-

cause there is no evidence that any specific black candidate for

promotion would have been promoted but for the invalid test

is likewise without merit. In Teamsters v. United States, 431

U.S. 324 (1977), the Supreme Court stated:

When the Government seeks individual relief {in a Title

VII case] for the vicitims of the discriminatory practice, a

district court must usually conduct additional proceedings

after the liability phase of the trial to determine the scope

of individual relief. The petitioners’ contention in this case

is that if the Government has not, in the course of proving

a pattern or practice, already brought forth specific evi-

dence that each individual was discriminatorily denied an

employment opportunity, it must carry that burden at the

second, “remedial” stage of trial. That basic contention was

rejected in the Franks case [Franks v. Bowman Transporta-

tion Co., 424 U.S. 747 (1976)]. As was true of the par-

ticular facts in Franks, and as is typical of Title VII pattern-

or-practice suits, the question of individual relief does not

arise until it has been proved that the employer has fol-

lowed an employment policy of unlawful discrimination.

The force of that proof does not dissipate at the remedial

stage of the trial. The employer cannot, therefore, claim

that there is no reason to believe that its individual em-

—

ployment decisions were discriminatorily based; it has al-

ready been shown to have maintained a policy of dis-

criminatory decision-making.

Id. at 361-362.

The City next contends that even if there has been a violation

of Title VII which would make the imposition of preferential

relief a possible remedy, the District Court did not err in failing

to impose such a remedy in this case.

Title VII has vested broad equitable powers in the federal

courts in order “to make possible the ‘fashion[ing] [of] the

most complete relief possible.’” The federal courts have “ ‘not

merely the power but [also] the duty to render a decree which

will so far as possible eliminate the discriminatory effects of the

past as well as bar like discrimination in the future.’ ” Albemarle

Paper Co. v. Moody, supra, at 418, 421. Accord, Teamsters v.

United States, supra, at 364-365.

We believe that the record in this case, viewed as a whole,

provides ample justification for preferential relief such as that

imposed by the District Court in its order of October 21, 1977.

This litigation was begun in January, 1974, almost five years

ago. Since that time, the number of black fire captains in the

St. Louis Fire Department has decreased from four to one.?

Approximately fifty of the 180 permanent fire captain positions

in the Fire Department are now vacant. The City has known

since October 3, 1977, when its petition for certiorari was

denied, that a nondiscriminatory method for the selection of

fire captains would have to be devised. Despite this knowledge,

little progress has been made in developing such a method.

* Of the 180 persons holding the rank of fire captain as of Novem-

ber 30, 1974, a total of four (2.2%) were black. Since that time,

one of these black fire captains has been promoted and two have

retired, leaving only one black individual now holding the rank of

fire captain.

— A-10 —

Meanwhile, the City has apparently determined not to make any

permanent appointments to fire captain positions,* notwithstand-

ing the fact that twelve black firefighters qualified for promo-

tion even on the basis of the discriminatory examination ad-

ministered in 1974, and that since the filing of this suit, forty-

three additional black firefighters have attained the necessary

five-year service requirement. The net result of the City’s inac-

tion is the continuation of a policy of discrimination against those

black candidates for promotion who have been the victims of

discrimination in the past. The City’s recalcitrance cannot be

justified on the basis of operational considerations as the failure

of the City to make permanent fire captain appointments has

caused a deterioration in the Department’s morale and impaired

its efficiency.®

We cannot ask those black firefighters who have been the

victims of discrimination to wait forever for the vindication

of their rights. In light of the City’s apparent decision not to

make any permanent appointments pending the development

of a valid examination, and of the fact that the development of

‘ Intervenors state in their brief that the only reason they did not

appeal from the District Court’s order of January 26, 1978, was the

assurance of the City’s administration that under no circumstances

would promotions be made pursuant to the District Court’s interim

plan. The City, in its brief, concedes this intention, stating “[s]Jince

the promotion procedure suggested by the Court, based upon seniority

and the assessment center, was not acceptable [to] any of the parties

and because of the fact that no voluntary agreement was reached

between the parties, the City is now proceeding with the third alterna-

tive * * * and is developing a new promotional exam.”

9 Deputy Fire Chief Allen Brandenmeyer testified that the failure

of the City to make appointments to the rank of fire captain has

caused deterioration in the morale of the Fire Department, impairing

the Department’s efficiency in emergency situations. Failure to make

promotions has also resulted in a reduction in the number of fire in-

spections made in commercial and residential areas, and those acting

captains who have made such inspections have been handicapped by

their lack of apparent authority.

— A-11 —

such an examination rests in the first instance with the City,

we do not believe that mere reinstatement of the provisions of

the District Court’s order of October 21, 1977, as requested

by F.LR.E., will afford any greater relief than that afforded by

the court’s order of January 26, 1978, since under neither order

is the City required to make any permanent appointments to fire

captain positions. We believe that nothing short of an affirma-

tive order requiring the immediate promotion of those black

firefighters who are unquestionably qualified is necessary in order

to redress the rights of those who have been the victims of the |

City’s discrimination.!°

The City concedes that the twelve black firefighters who passed

the 1974 examination are qualified for promotion to fire captain

positions. These individuals, if otherwise still qualified, should

be offered immediate promotion. Since only one individual now

holding the rank of fire captain is black, the addition of twelve

black fire captains will increase the number of black fire captains

to thirteen, or 7.2 percent of all fire captain positions. We do

not think that increasing the percentage of blacks holding the

rank of fire captain to 7.2 percent is unreasonable, in light of

the fact that eleven percent of the uniformed personnel employed

by the Fire Department at the time of trial were black, and that

this percentage has undoubtedly increased as the fifty percent

black hiring goal for the entry level position of firefighter is im-

plemented. See United States v. N. L. Industries, Inc., 479 F.2d

10 ‘We note that other courts have approved of the use of interim

preferential hiring or promotional relief under similar circumstances.

See, e.g., United States v. City of Chicago, 549 F.2d 415, 437 (7th

Cir.), cert. denied, 434 U.S. 875 (1977); Davis v. County of Los

Angeles, 566 F.2d 1334, 1343-1344 (9th Cir. 1977), cert. granted,

46 U.S.L.W. 3780 (June 20, 1978); Vulcan Soc. of N. Y. City Fire

Dept., Inc. v. Civil Serv. Com’n, 490 F.2d 387, 398-399 (2d Cir.

1973); Commonwealth of Pennsylvania v. Flaherty, 404 F.Supp.

1022, 1029 (W.D. Pa. 1975); Western Addition Community Or-

ganization v. Alioto, 369 F.Supp. 77, 80 (N.D. Cal. 1973), appeal

dismissed as moot, 514 F.2d 542 (9th Cir.), cert. denied, 423 U.S.

1014 (1975).

— A-12 —

354, 377 (8th Cir. 1973). In addition to the immediate promo-

tion of the twelve black candidates, the District Court may also,

in its discretion, require the immediate promotion of twelve

white candidates who are also qualified on the basis of the 1974

examination. Guidelines governing the precise selection of these

individuals shall be developed, if necessary, by the District

Court.

Any additional promotions which the City desires to make

prior to the development of a valid examination must be made

in accordance with the Assessment Center technique, as set

forth in the District Court’s order of January 26, 1978. Written

guidelines should delineate the criteria to be used in evaluating a

candidate’s performance, and those criteria should be objective

to the maximum extent possible. See Wells v. Meyer's Bakery,

561 F.2d 1268, 1273 (8th Cir. 1977).

It is undisputed that those firefighters who serve as acting fire

captains gain valuable supervisory experience which may give

them a competitive advantage on any test for fire captain posi-

tions which is developed later. We, therefore, agree with the

appellants that these assignments must be made in a manner

which does not unfairly disadvantage black candidates for pro-

motion. Evidence adduced at a hearing held on August 4,

1976, indicated that assignments to acting fire captain positions

were based in part on the results of the 1974 examination, pre-

viously invalidated by this Court. The brief of the intervenors

informs us that shortly after the issuance of the District Court’s

order on January 26, 1978, those assigned as acting captains

were relieved of that responsibility, and firehouse seniority was

instituted as the basis for these positions. The City has con-

firmed that firehouse seniority is now used. Since this seniority

system would inevitably reflect the previous discriminatory prac-

tices of the City in the hiring of entry-level personnel, automatic

appointment of those firefighters with greatest seniority to acting

— A-13 —

fire captain positions serves to perpetuate the effects of past

discrimination in violation of Title VII. See Griggs v. Duke

Power Co., supra, at 430; United States v. N. L. Industries, Inc.,

supra, at 361; Chavez v. Temple U. High Sch. Dist. No. 218,

565 F.2d 1087, 1093 (9th Cir. 1977).'! We, therefore, direct

the District Court, on remand, to enter an injunctive decree

which requires that assignments to acting fire captain positions

reflect a fifty percent black ratio as far as is practicable, pending

the development of a valid examination.

The City stated, during oral argument before this Court, that

it would have a properly validated examination for the position

of fire captain developed by January 1, 1979. We have con-

fidence that the District Court will require the City to keep its

commitment in this regard.

Upon the development of such an examination by the City,

the court shall promptly hear and resolve any objections which

any party has to the plan. If any party objects to that court’s

determination, that party shall have ten days in which to file

notice of appeal in this Court. An accelerated briefing schedule

shall then be arranged with the Clerk of this Court.

We recognize that the affirmative relief which we order today

may impinge upon the justified expectations of both black and

white firefighters who are as well qualified for promotion as are

those twelve black firefighters whose promotion we have ordered.

11 We are not here concerned with a bona fide seniority system

which is immunized from a finding of illegality by reason of §703(h)

of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-2(h).

See Teamsters v. United States, 431 U.S. 324, 355-356 (1977).

Compare James v. Stockham Valves & Fittings Co., 559 F.2d 310,

352-353 (Sth Cir. 1977), cert. denied, 434 U.S. 1034 (1978)

(seniority system, which was the product of collective bargaining,

must be evaluated in the context of the company’s extensive unlawful

employment practices during the period of the negotiations and its

intransigent adherence to segregationist policies, in determining

whether it was in fact bona fide).

— A-14—

Continued inaction, however, will serve neither to vindicate

the rights of those black firefighters who have been the victims

of past discrimination nor to give the people of St. Louis the

fire protection which they deserve. Federally guaranteed rights

“can neither be nullified openly and directly by state legisla-

tors or state executive or judicial officers, nor nullified in-

directly by them through evasive schemes * * * whether at-

tempted ‘ingeniously or ingenuously.’” Cooper v. Aaron, 358

U.S. 1, 17 (1958). We are confident that the City’s expeditious

good faith compliance with our mandate will eliminate the

necessity for further imposition of such relief and will allow

future promotions to be made on a nondiscriminatory basis

which is fair to all candidates.

F.I.R.E. next contends that the attorney’s fee of $12,500

awarded to F.I.R.E. by the District Court is arbitrary and

capricious. It contends that under Johnson v. Georgia Highway

Express, Inc., 488 F.2d 714 (Sth Cir. 1974), specific factors

must be considered in making an award under § 706(k) of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k),

. and that no consideration of these factors is reflected in the

District Court’s order.

The guidelines for awarding attorney’s fees, which are set

forth in Johnson, have received repeated approval by this Court.

See Allen v. Amalgamated Transit Union Local 788, 554 F.2d

876, 884 (8th Cir.), cert. denied, 434 U.S. 891 (1977). They

should be followed. Moreover, the basis of the award of at-

torney’s fees should be set forth in detail so that this Court can

adequately review the record. Failure of the District Court to

disclose the basis of its award may compel the conclusion that

it has abused its discretion. See Johnson v. Georgia Highway

Express, Inc., supra, at 720. In this case, we have independently

reviewed the record, however, and have determined that the

aw ees ad,

mae Set ann

$12,500 award made by the District Court is adequate com-

pensation in light of the experience of F.I.R.E.’s counsel at the

time of trial, the time and labor which we believe should be re-

quired for a case of this type, the customary fee for similar legal

work in the community, and the other factors listed in Johnson.

The District Court’s denial of the twenty-five percent bonus

requested by counsel for F.I.R.E. was also not an abuse of

discretion.

We award F.I.R.E. $4,000 for attorney's fees for this appeal.

The order of the District Court is reversed to the extent that

it is inconsistent with this opinion. The District Court is hereby

directed to modify its decree to grant injunctive relief and to

permit further proceedings as required by this opinion.

Reversed and remanded.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

—" oe

APPENDIX I

United States Court of Appeals

for the Eighth Circuit

No. 78-1294 September Term, 1978

Firefighters Institute for Racial Equal- >

ity, etc., et al.,

Appellants,

tea Appeal from the

United States Dis-

trict Court for the

Eastern District of

Missouri.

The City of St. Louis, Missouri, etc.,

et al.,

Appellees,

and

Joseph Blessing, et al.,

Intervenors-Appellees. J

The Court having considered petition for rchearing en banc

filed by counsel for intervenors-appellees and, being fully ad-

vised in the premises, it is ordered that the petition for rehearing

en banc be, and it is hereby, denied.

Considering the petition for rehearing en banc as a petition

for rehearing, it is ordered that the petition for rehearing also

be, and it is hereby, denied.

December 22, 1978

— A-17 —

APPENDIX Ill

United States District Court

Eastern District of Missouri

Eastern Division

United States of America, ’

Plaintiff,

7 | No. 74-200 C (3).

City of St. Louis, et al.,

Defendants. .

Firefighters Institute for Racial Equal- >

ity, et al.,

Plaintiffs,

vs. > No. 74 C 30 (3).

The City of St. Louis, Missouri, et al..

Defendants. J

ORDER

(Filed January 26, 1978)

Pursuant to the mandate of the United States Court of Ap-

peals for the Eighth Circuit, and upon motions of the parties,

the Court hereby enters the following order in these causes.

Prior thereto the Court expresses deep disappointment with the

intransigence of all parties and their continued unwillingness to

conscientiously and industriously seek an acceptable procedure

for filling the numerous vacancies existing in the position of

Fire Captain, which vacancies should be filled if the safety of the

persons and properties of St. Louisans is to be assured.

— dit —

IT IS HEREBY ORDERED that the October 21, 1977 order

of this Court be and is set aside.

IT IS FURTHER ORDERED, ADJUDGED, and DE-

CREED that this Court’s nunc pro tunc order of June 28, 1976

is hereby re-entered as of this date and made a part of this order

and that all reports and records as are provided for therein shall

be accessible to counsel for all parties.

IT IS FURTHER ORDERED, ADJUDGED, and DE-

CREED that, except as otherwise provided herein, defendants,

their officials, agents, employees and all persons acting in concert

with them are hereby permanently enjoined from engaging in

any act or practice with respect to promotions to the rank of

Fire Captain within the St. Louis Fire Department which has

the unlawful purpose or effect of discriminating against any

black applicant for such position because of race or color.

IT IS FURTHER ORDERED, ADJUDGED, and DECREED

that, except as otherwise provided herein, defendants are per-

manently enjoined from making permanent or temporary ap-

pointments or acting assignments to the position of Fire Captain

in any fashion which is in any respect based upon the eligibility

list or written test for Fire Captain prepared in 1974.

IT IS FURTHER ORDERED, ADJUDGED, and DECREED

that, except as otherwise provided herein, defendants shall make

no appointments to the position of Fire Captain except upon

the basis of an examination process shown to be valid in ac-

cordance with Title VII of the Civil Rights Act of 1964, as

amended, and the guidelines of the Equal Employment Op-

portunity Commission issued thereunder. If defendants wish

to assert the validity of an examination, they shall submit to

counsel for all parties at least sixty days prior to any intended

use, evidence of the validity of the elements of the process, in-

cluding a copy of the validation study and all underlying docu-

— A-19 —

ments or data concerning the development of the selection

process and its validity. If the parties are unable to agree upon

the validity of the process, the process shall not be utilized

unless and until the Court determines, upon motion and such

evidentiary hearing as it deems appropriate, that the process

has been properly validated. The examination, and copying of

any examination process by the parties herein, shall be subject

to such protective orders as the Court deems necessary.

IT IS FURTHER ORDERED, ADJUDGED, and DECREED

that pending development of a valid examination, defendants

may, if they so desire, make appointments to the position of

Fire Captain by utilizing the following procedure:

a) Within two weeks of this date, defendants shall, with

the assistance of the parties herein, prepare a racially-

identified list of all firefighters who have served five

years or more in the position of firefighter, in the

order of the departmental seniority date of each fire-

fighter. The sole purpose of such list shall be to serve

as the source for promotions as set forth in this pro-

vision. The name of any firefighter eligible to be in-

cluded thereon shall be removed and not considered

if he so directs.

b) The black firefighter with the most departmental

seniority and the white firefighter with the most de-

partmental seniority shall then be evaluated by the

Assessment Center technique. The firefighter receiv-

ing the higher ranking evaluation between the two

shall be promoted, regardless of race or comparative

seniority. The other firefighter who is not promoted

shall then become eligible for the next Fire Captain

position to be filled. Also eligible for such position

shall be the black firefighter with the next longest de-

partmental seniority and the white firefighter with the

—_—

next longest departmental seniority, who shall also

both be evaluated by the Assessment Center technique.

The firefighter receiving the highest evaluation of the

three shall be promoted.

c) The same procedure shall be followed for each vacancy

to be filled: with each appointment to a vacancy,

the applicant or applicants who had the lower evalua-

tion ratings and had not been appointed to prior

vacancies shall be eligible for the next appointment,

along with the remaining most senior black firefighter

and the remaining most senior white firefighter, who

shall likewise be evaluated by the Assessment Center

technique. The firefighter receiving the highest rank-

ing evaluation shall be promoted. Again, those fire-

fighters not so promoted shall then become eligible

for the next Fire Captain position to be filled. The

defendants may fill as many vacancies in the position

of Fire Captain as they desire by following the fore-

going procedure.

IT IS FURTHER ORDERED that, in any event, pending

development of a valid examination, the parties may agree upon

any procedure they choose for making permanent or temporary

or acting appointments to the position of Fire Captain.

IT IS FURTHER ORDERED, ADJUDGED, and DE-

CREED that defendants shall, within thirty days of this date,

submit to counsel for all parties appropriate regulations assur-

ing that persons will not be excluded on the basis of race or

color from communal eating arrangements within firehouses.

Upon agreement by the parties, the Court shall order the im-

plementation of such regulations. If the parties fail to agree, the

matter shall be submitted to the Court for resolution.

IT IS FURTHER ORDERED, ADJUDGED, and DE-

CREED that defendants shall retain for a period of five years all

ate

Pettitte net 8b =

wie ed

records relating to the screening, selection and appointment of

persons for the position of Fire Captain, including all applica-

tions, identified by race, and all records relating to the selection

procedure. Counsel for all parties shall have the right to inspect

and copy all such documents upon reasonable notice to de-

fendants without further order of the Court.

IT IS FURTHER ORDERED, ADJUDGED, and DE-

CREED that defendants shall submit, together with the reports

required in the June 28, 1976 nunc pro tunc order incorporated

herein,

a) the name, address, telephone number, date of appoint-

ment and race of each person appointed to the posi-

tion of Fire Captain;

b) the number of persons identified by race who were dis-

qualified for appointment to the position of Fire Cap-

tain, classified by the reason for disqualification;

c) the name, address, telephone number and race of each

person who failed to complete probation as a Fire

Captain;

d) a racially-identified copy of any eligibility list for Fire

Captain established during that period:

e) a racially-identified list of persons serving as acting cap-

tains during the reporting period, showing hours

served for each person in that acting capacity.

IT IS FURTHER ORDERED, ADJUDGED, and DE-

CREED that this Court retain jurisdiction of this action for a

period of five years for such further relief or other orders as

may be necessary or appropriate. At any time after five years

from date of entry of this order, defendants may move the Court

upon forty-five days’ notice to the parties for dissolution of this

order and upon their showing that the goals of this order have

been achieved, the order may be dissolved.

<n et et eee

— A-22 — — A-23 —

IT IS FURTHER ORDERED, ADJUDGED, and DE-

CREED that plaintiffs shall be awarded costs incurred herein. APPENDIX IV

IT IS FURTHER ORDERED, ADJUDGED, and DE- United States District Court, Eastern District of Missouri

CREED that attorney’s fees in the amount of $12,250.00 shall Eastern Division

be awarded to counsel for plaintiff Firefighters Institute for

Racial Equality. United States of America, :

Plaintiff,

/s/ JOHN F. NANGLE on

United States District Judge > No. 74-200 C (3)

Dated: January 26, 1978. : City of St. Louis, et al.,

Defendants. )

Firefighters Institute for Racial Equality, »

et al.,

Plaintiffs,

Vs. > No. 74 C 30 (3)

The City of St. Louis, Missouri, et al.,

Defendants. J

ORDER

Pursuant to the mandate of the United States Court of Ap-

peals for the Eighth Circuit, and upon motion of the United

States of America,

IT IS HEREBY ORDERED, ADJUDGED, AND DE-

CREED that this Court’s nunc pro tunc order of June 28, 1976

is hereby re-entered as of this date and made a part of this

order.

IT IS FURTHER ORDERED, ADJUDGED, and DE-

CREED that defendants, their officials, agents, employees and

all persons acting in concert with them are hereby permanently

enjoined from engaging in any act or practice with respect to

— A-24 —

promotion to the rank of Fire Captain within the St. Louis

Fire Department which has the purpose or effect of discrim-

inating against any black applicant for such position because

of race or color.

IT IS FURTHER ORDERED, ADJUDGED, and DE-

CREED that, except as otherwise provided herein, defendants

are permanently enjoined from making permanent appoint-

ments and temporary or acting assignments to the position of

Fire Captain in any fashion which is in any respect based upon

the eligibility list or the written test for Fire Captain prepared

in 1974,

IT IS FURTHER ORDERED, ADJUDGED, and DE-

CREED that, except as otherwise provided herein, defendants

shall make no appointments to the position of Fire Captain

except upon the basis of an examination process shown to be

valid in accordance with Title VII of the Civil Rights Act of

1964, as amended, and the Guidelines issued thereunder. If

defendants wish to assert the validity of an examination, they

shall submit to plaintiffs’ counsel at least sixty days prior to

any intended use, evidence of the validity of the elements of

the process, including a copy of the validation study and all

underlying documents or data concerning the development of

the selection process and its validity. If the parties are unable

to agree on the validity of the process, the process shall not be

utilized unless and until the Court determines, upon motion

and such evidentiary hearing as it deems appropriate, that the

process has been properly validated.

IT IS FURTHER ORDERED, ADJUDGED, and DE-

CREED that pending development of a valid examination proc-

ess, defendants may make appointments to the position of Fire

Captain if at least fifty percent of the vacancies are filled with

qualified blacks. All black applicants who were placed upon

the eligibility list for Fire Captain prepared in 1974 shall be

know

— A-25 —

deemed qualified during this interim period. If all blacks on

that list are appointed and defendants desire to make further

appointments during the interim period, the parties shall meet

to determine an appropriate basis for determining the order of

promotion for other black firefighters qualified for promotion

by virtue of the time-in-grade and efficiency rating standards.

To the extent practicable, the fifty percent goal established for

permanent appointments during the interim period shall be fol-

lowed for assignments as acting captain during the interim

period.

IT IS FURTHER ORDERED, ADJUDGED, and DE-

CREED that defendants shall, within thirty days of this, submit

to counsel for plaintiffs appropriate regulations assuring that

persons will not be excluded on the basis of race or color from

communal eating arrangements within firehouses. Upon agree-

ment by the parties, the Court shall order the implementation

of such regulations. If the parties fail to agree, the matter shall

be submitted to the Court for resolution.

IT IS FURTHER ORDERED, ADJUDGED, and DE-

CREED that defendants shall retain for a period of five years all

records relating to the screening, selection and appointment of

persons for the position of Fire Captain, including all applica-

tions, identified by race, and all records relating to the selection

procedure. Plaintiffs’ attorneys shall have the right to inspect

and copy all such documents upon reasonable notice to defend-

ants without further order of the Court.

IT IS FURTHER ORDERED, ADJUDGED, and DE-

CREED that defendants shall submit, together with the re-

ports required in the June 28, 1976 nunc pro tunc order in-

corporated herein,

a) the name, address, telephone number, date of appoint-

ment and race of each person appointed to the posi-

tion of Fire Captain:

— A-26 —

b) the number of persons identified by race who were dis-

qualified for appointment to the position of Fire Cap-

tain, classified by the reason for disqualification;

c) the name, address, telephone number and race of each

person who failed to complete probation as a Fire

Captain;

d) a racially-identified copy of any eligibility list for Fire

Captain established during that period;

¢) a racially-identified list of- persons serving as acting

captains during the reporting period, showing hours

served for each person in that acting capacity.

IT IS FURTHER ORDERED, ADJUDGED, and DE-

CREED that this Court retains jurisdiction of this action for a

period of five years for such further relief or other orders as

may be necessary or appropriate. At any time after five years

from date of entry of this order, defendants may move the

Court upon forty-five days’ notice to plaintiffs for dissolution of

this order and upon their showing that the goals of the order

have been achieved, the order may be dissolved.

IT IS FURTHER ORDERED, ADJUDGED, and DE-

CREED that counsel for plaintiff Firefighters Institute of Racial

Equality shall be awarded $6,000.00 in attorney’s fees.

IT IS FURTHER ORDERED, ADJUDGED, and DE-

CREED that plaintiffs shall be awarded costs incurred herein.

/s/ JOHN F. NANGLE

United States District Judge

Dated: October 21, 1977.

— >.

APPENDIX V

United States District Court

Eastern District of Missouri

Eastern Division

United States of America, )

Plaintiff,

vs. No. 74-200 C (3)

City of St. Louis, et al.,

Defendants.

Firefighters Institute for Racial Equal-

ity, et al.,

VS. No. 74 C 30 (3)

City of St. Louis, Missouri, et al.,

Defendants. ;

ORDER

(Filed December 19, 1978)

Pursuant to the mandate of the United States Court of Ap-

peals for the Eighth Circuit, and upon motion of the parties,

the Court hereby enters the following order in these causes.

IT IS HEREBY ORDERED, ADJUDGED and DECREED

that the City of St. Louis shall immediately promote the top

or first twelve (12) black firefighters who passed the 1974 ex-

amination to the position of fire captain, if otherwise still quali-

fied.

IT Is FURTHER ORDERED. ADJUDGED and DECREED

by this Court, in the exercise of its discretion, that the City of

St. Louis shall immediately promote the top or first twelve (12)

— A-28 —

white firefighters who passed the 1974 examination to the posi-

tion of fire captain, if otherwise still qualified.

IT IS FURTHER ORDERED, ADJUDGED and DECREED

that any additional promotions which the City of St. Louis

desires to make prior to the development of a valid examina-

tion must be made in accordance with the Assessment Center

technique, as previously set forth by this Court in its order of

January 26, 1978.

IT IS FURTHER ORDERED, ADJUDGED and DECREED

that the City of St. Louis, its agents, servants, and employees

ang all persons acting in concert with them are hereby per-

manently enjoined from making any assignments to the posi-

tion of acting fire captain that does unfairly disadvantage black

candidates for promotion and further, in order to implement

this the City of St. Louis is required to make said assignments

reflecting a fifty (50) per cent black ratio, as far as practicable,

IT IS FURTHER ORDERED, ADJUDGED and DECREED

that the City of St. Louis utilize best efforts to develop a prop-

erly validated examination for the position of fire captain by

January 1, 1979. The Court shall assist in the expedition of

resolving any parties’ objections to said examination.

IT IS FURTHER ORDERED, ADJUDGED and DECREED

that F.I.R.E. be awarded the further sum of Four Thousand

Dollars ($4,000.00) for attorney’s fee.

/s/ JOHN F. NANGLE

United States District Judge

Dated: December 19, 1978.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.