Opposition Brief — AFSCME, Council 15, Local 1159 v. Bridgeport Guardians, Inc.

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No. 01-0166 é

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In The SE

Supreme Court of the United States

AFSCME, COUNCIL #15 LOCAL #1159 AFL-CIO,

Petitioner,

BRIDGEPORT GUARDIANS, INC. and

CITY OF BRIDGEPORT,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

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BRIEF IN OPPOSITION

OF RESPONDENT BRIDGEPORT GUARDIANS

settee e etme

Vincent M. Musto

Counsel of Record

Koskorr Koskorr & BirDEeR

350 Fairfield Avenue

Bridgeport, CT 06604

203-336-4421

COCKLE LAW BRIEF PRINTING hasnt = 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

Did the Court of Appeals correctly conclude that the

District Court’s Order of March 24, 2000 provided appro-

priate relief in light of the unique facts of this case,

notwithstanding the objections of the union that it did

not consent to the District Court’s order and that the

order affected the Union’s rights without its consent?

li

. TABLE OF CONTENTS

Page

QUESTION. PRESRPITIO « so sss ssnincdscdeeamnsaves i

TABLE OF AUFERSGMAER SMO <5 6050540 0esceccnmeanees iii

STATEMENT OF "EVES GARB socks Cucceena veneer ses 1

A. Guardians v. Delmonte: The 1982 Court

COIGOE . 5.6 isc was oe cate eee ee ee 1

B. Decisions of the Special Master.............. 3

C. The Stipulation and the Court’s Order....... 8

REASONS FOR DENYING THE WRIT............. 12

A. The Court of Appeals Correctly Affirmed the

District Coswt's GAME i 66 ivcunn dances teeke es 13

B. This Case Involves Facts Unique to Bridgeport

Police Department Which Do Not Create A

Significant Issue for this Court............... 22

COOINCLUBIIN 6 i. ova ss scans tanaka 23

iii

TABLE OF AUTHORITIES

Page

Cases

Alexander v. Gardner-Denver, 415 U.S. 35 (1974) ...17, 18

Barros et al. v. Joseph A. Walsh, et al. 5:72 CV 482

EES Casdc cei cechavseeeveans bet eencukeed 20

Branum v. Clark, 927 F.2d 698 (2d Cir. 1991)......... 17

Bridgeport Guardians, Inc. v. Bridgeport Civil Service

Commission, 354 F.Supp. 778 (D.Conn. 1973)........ 3

Bridgeport Guardians v. City of Bridgeport, 735

, CEM CERO: BOM) 5 cc ccceecnciveusaccsces 3

Bridgeport Guardians v. City of Bridgeport, 933 F.2d

2 Yoo | ee errea rr rrerer rrr rer rrr 3.13

Bridgeport Guardians, Inc. v. Delmonte, 553

FSupp.601 (D.Conn 1982)............... ae Fa |

Brown v. Bridgeport Civil Service Commission,

i en SO ca vias erase ee iene e eden aKes 3

Dixon v. Shalala, 54 F.3d 1019 (2d Cir. 1995)......... 15

Dobosz v. Delmonte, 509 F.Supp. 964 (D.Conn. 1981) ..... 3

Guardians v. Delmonte, 248 F.3d 66 (2d Cir. 2001) .... 13

Guardians Association of New York City Police

Department Inc. v. Civil Service Commission, 630

oe Be fae ee rer ere Pere eee errr 17

Hulsey v. Sargent, 15 F.3d 115 (8th Cir. 1994) ........ 17

Kirkland v. New York State Department of Correc-

tional Services, 711 F.2d 1117 (2d Cir. 1983)........ 17

iv

TABLE OF AUTHORITIES - Continued

Kozlowski v. Coughlin, 871 F.2d 241 (2d Cir. 1989)....

Local Number 93, International Association of Fire-

fighters AFL-CIO, CLC v. City of Cleveland, 478

LI ee CHE cb eK Mads cu cegkatabeseseseues

Members of Bridgeport Housing Authority Police

Force v. City of Bridgeport, 499 F.Supp. 760

eee ere ype erry rer or en rr

Sands v. Runyon, 28 F.3d 1323 (2d Cir. 1994).....

Torres v. Oakland Scavenger Company, 487 U.S. 312

PROG « hoscdn seers lcd ancusnenenveekwen sees an 9

United States v. Microsoft, 143 F.3d 935 (D.C. Cir.

i ee PE Pr ee Terre Ore eT Ee rire rrr ere rere

United States v. Yonkers Board of Education, 29 F.3d

ge eee. Peer rer errr rye reree 13,

STATUTES AND RULES

Civil Rights Act of 1964, Titles VI and VII, 42 U.S.C.

2000d and 42 U.S.C. 2000e et seq..............

Pe EES oo vin ca lars cc ec cng ewausees

oe Ao Bs Ee ee errr n re

Page

14

14, 15

Kaas 2

STATEMENT OF THE CASE

This appeal arises from the Second Circuit's affir-

mance of an order of the District Court approving

changes to one aspect of the disciplinary process used by

the Bridgeport Police Department. This change in the

disciplinary process took place within the context of the

underlying litigation in the case of The Bridgeport Guard-

ians, Inc. v. Delmonte, 553 F.Supp. 601 (D.Conn. 1982). In

Guardians v. Delmonte, id., the Court found that minority

police officers within the Bridgeport Police Department

were subjected to all-encompassing racial discrimination

in discipline, assignments, and working conditions in

violation of Titles VI and VII of the Civil Rights Act of

1964, 42 U.S.C. 2000d and 42 U.S.C. 2000e, et seq., as well

as other federal statutes. A significant element of the

Court’s finding of racial discrimination involved the

administration of discipline within the Bridgeport Police

Department.

A. Guardians v. Delmonte: The 1982 Court Order

In 1982, the District Court, by Judge T. F. Gilroy Daly,

issued its initial decision in the case of Bridgeport Guard-

ians v. Delmorite, 553 F.Supp. 601 (D.Conn. 1982). The

Court found that the Bridgeport Police Department, at its

highest levels up to and including the Chief of Police and

Police Commission, had fostered racial discrimination by,

among other things:

- “Intentionally discriminat(ing) on the basis

of race in the number, kind, and severity of

disciplinary actions (taken) against black

officers in the department.” Id. at 614.

- Permitting a “racially-charged atmosphere to

develop and continue in the B.P.D. They have

permitted their supervisory personnel to par-

ticipate in such racial harassment.” This

harassment included posting a “Runnin’

Nigger Target” on an official departmental

bulletin board and the distribution by the

Police Chief of a “Minority Sergeants Exam-

ination” which contained “demeaningly stu-

pid questions” . . . implying that “blacks

could only pass a sergeant’s exam that was

so idiotic.” Id., at 615.

- Retaliating against members of the Guard-

ians who brought complaints of racial dis-

crimination by, for example, assigning an

officer who had been hospitalized for high

blood pressure to a “particularly high-risk,

high-stress assignment.” Id. at 616.

As a result of its findings of racial discrimination, the

Court issued a Remedy Order that was intended to

address the ingrained racism within the Bridgeport Police

Department. An important element of that Remedy Order

was the appointment of a Special Master to review and

recommend relief for complaints of racial discrimination

in the imposition of discipline and for other forms of

racial harassment within the Bridgeport Police Depart-

ment. Under the Remedy Order and the Federal Rules of

Civil Procedure, the Special Master would issue findings

and recommended rulings to the Court which would then

be subject to the Court’s review. Fed. R. Civ. P. 53(e)(2).

Unfortunately, the record reveals that the racism

described in Guardians v. Delmonte, id., did not come to an

end with the Court’s 1982 decision. The level of activity

in this case over the seventeen years preceding the

Court's order is reflected in the fact that the docket for

this case comprises 1046 entries and over 100 pages of

entries. Throughout his tenure, the Special Master has

found repeatedly that racial discrimination remains alive

within the Bridgeport Police Department. In addition,

over the years, the Bridgeport Police Department has

frequently been subjected to suit in the Federal Court as a

result of racial discrimination in its hiring, promotions,

and operations.'

B. Decisions of the Special Master

In an October, 1990 recommended ruling, the Special

Master observed that, with the filing of a separate federal

court lawsuit concerning racial discrimination in promo-

tions, “Racial animosity reached a boiling point... A

rash of racial epithets and slurs appeared including the

notorious and infamous graffiti - ‘KKK the answer, try it,’

in the men’s locker room at Police Headquarters.” The

Special Master found that a “properly functioning disci-

plinary process” was essential to ending such racial dis-

crimination.

1 See, for example, Bridgeport Guardians, Inc. v. Bridgeport

Civil Service Commission, 354 F.Supp. 778 (D.Conn. 1973), aff'd, in

part, 482 F.2d 1333 (2d Cir. 1973); Members of Bridgeport Housing

Authority Police Force v. City of Bridgeport, 499 F.Supp. 760

(D.Conn. 1980), aff'd in part and rev'd in part, 646 F.2d 55 (2d Cir.

1981); Dobosz v. Delmonte, 509 F.Supp. 964 (D.Conn. 1981);

Bridgeport Guardians v. Delmonte, 553 F.Supp. 601 (D.Conn.

1982); Brown v. Bridgeport Civil Service Commission, B86-282

(D.Conn. 1986); Bridgeport Guardians v. City of Bridgeport, 735

F.Supp. 1126 (D.Conn. 1990), 933 F.2d 1140 (1991), cert denied,

502 U.S. 924, 112 S.Ct. 337, 116 L Ed.2d 277 (1991).

Only four months earlier, in July, 1990, the Special

Master had threatened to impose upon the Police Com-

mission a fine of $1000 per day and suspension from

office because of its failure to promptly and fairly disci-

pline minority and white officers in the same manner. The

genesis of this threatened fine and suspension of the

Police Commission was the Special Master’s 1988 deci-

sion on the complaint of Officer William Bailey (hereafter

“the Bailey case”). In the Bailey case, the Special Master

ordered that the Board of Police Commissioners “report

to the Special Master on the steps taken to ensure that |

Black police officers, because of their race, are not

brought up on disciplinary charges more often and sub- |

jected to harsher sanctions than are White officers.” |

In response to the Bailey decision, the Police Commis-

sion claimed to have made a “new beginning” by imple-

menting a policy of prompt and evenhanded discipline.

However, in his July, 1990 Recommended Ruling, the

Special Master found that, rather than a “new begin-

ning,” the Board’s post-Bailey behavior was “a return to

business as usual.” In addition to failing to promptly

discipline errant officers, “the likelihood that minority

officers would face discipline before the Board more fre-

quently than similarly situated white officers substan-

tially increased. Minority officers also face significantly

quicker imposition of discipline by the Board than do

similarly situated white officers.”

As a consequence of the Police Commission’s dis-

criminatory imposition of discipline, a “backlog” of disci-

plinary cases had arisen which the Special Master

ordered the Commission to eliminate. Equally important,

the Special Master ordered the Commission to file regular

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reports concerning its imposition of discipline and its

processing of disciplinary cases. In a supplemental ruling

issued in 1991, the Special Master approved a plan which

the City represented to be the “final procedure as its plan

to eliminate the backlog” of discipline cases. Under this

procedure, cases would be resolved within three months

of the date on which charges were brought.

Nevertheless, racial discrimination continued to

thrive within the Bridgeport Police Department. A Rec-

ommended Ruling issued by the Special Master in 1995

highlighted the depth of the continuing racial discrimina-

tion within the Department. In that Ruling on the com-

plaint of Officer David Daniels (who was the President of

the Guardians), the Special Master found that Officer

Daniels was subjected to a campaign of racial harassment

which included jamming his radio transmissions, failure

of white officers to provide back-up to him when he was

in danger, and the placement of a hangman’s noose under

the hood of his car while it was parked at a Police

Department facility.

In 1997, the Special Master reached a new level of

frustration at the Department’s inability to police itself.

He found that the Department had violated a court order

in failing to prevent the assignment of Officer Joe Ann

Simmons to the supervision of Sergeant James Halpin.

Halpin was a white Bridgeport Police Officer who had

earlier pled guilty to criminal charges stemming from

having beaten and seriously injuring a Black citizen who

was in his custody. Because of racial harassment directed

at Officer Simmons by Officer Halpin, the Court had

ordered that he be forbidden from supervising her. How-

ever, this order was violated on at least six occasions. As

a result of the Department’s failure to comply with the

Court’s order, the Special Master recommended that

Department be held in contempt and fined, and that the

Police Chief be suspended.

During the course of proceedings, the Special Master

found that “Sergeant Halpin did not testify truthfully

before me.” The Special Master then referred this charge

of perjury to the Chief who referred it to the Police

Commission for resolution. As noted by the Court in its

Memorandum of Decision of May 17, 1999, the Police

Commission ignored the findings of perjury by Sergeant

Halpin and exonerated him. In that Memorandum of

Decision, the Court addressed challenges raised by Ser-

geant Halpin and other white officers to the role of the

Special Master. The Court noted that,

the Special Master’s broad powers under para-

graph 10B of the Remedy Order empower him

to do all acts and take all measures necessary or

proper to “receive, investigate and remedy all

complaints of discriminatory treatment or racial

harassment . . . and, in appropriate cases, to

bring disciplinary charges against those respon-

sible and/or those supervisors who foster or

permit such racial harassment to occur in viola-

tion of department rules.” (Remedy Order, 553

F.Supp. at 619). Within this specification, under

Fed.R.Civ.P. 53(c), “the master has and shall

exercise the power to regulate all proceedings in

every hearing before the master and to do all

acts and take all measures necessary or proper

for the efficient performance of the master’s

duties under the order . -

Judge Arterton went on to point out that the “tradi-

tional use of the Special Master to oversee compliance is a

necessary component of the Remedy Order, and thus

within the powers conferred by the Remedy Order. See,

United States v. Microsoft, 147 F.3d 935, 954 (D.C. Cir.

1998).” The Judge further explained the critical role

played by the Special Master over the previous seventeen

years:

He has, moreover, provided an immense value

to this Court as well as to the parties as a Special

Master with a long range historical perspective,

who has overseen the enforcement and adminis-

tration of the Court’s Remedy Order since its

issuance in 1982, and has come to understand

the parties. .. . While the Court is troubled that

his services continue to be necessary so many

years after issuance of the Remedy Order, the

Court concludes that there is no reason that this

Special Master should not continue to receive,

investigate, and remedy all complaints related

to administration and implementation of the

Remedy Order.

Significantly, a similar ruling had been issued by

Judge T. F. Gilroy Daly nearly ten years earlier. At that

time, the Bridgeport Police Union (the appellants in this

case) challenged a Recommended Ruling by the Special

Master and challenged his actions (and, by extension,

those of the Court) as having interfered with the collective

bargaining rights of the union under the union contract —

precisely the issue in the current appeal. The Court

rejected the union’s contention holding, “the Police

Union has provided no support for the contention that

the contract has any impact upon a duly issued Court

Order.” This decision was issued by the Court in 1990

and was never appealed by the Union.

Thus, the union’s present appeal appears to have

been brought ten years too late. Further, any claim by the

union that it was unaware until recently of the role of the

Special Master or the Court is simply not true. .

C. The Stipulation and the Court’s Order

The seventeen-year history of litigation which has

been highlighted above serves as the basis for the Stipula-

tion between the City and the Guardians which is the

subject of this appeal. The union asserts that there were

no findings of discrimination to serve as a basis for the

Court’s modification of the Remedy Order in accordance

with the Stipulation. To the contrary, the record in this

case at the time of the Court’s modification of its Remedy

Order included seventeen years of findings of discrimina-

tion. The Stipulation can best be understood in light of

the Court’s findings of continuing discrimination during

the preceding seventeen years.

In 1990, the Police Commission was under the threat

of a $1000 per day fine and suspension from office

because of its failure to fairly and promptly administer

the disciplinary process. In order to monitor the Commis-

sion’s actions, the Special Master required that the Com-

mission file regular reports concerning its imposition of

discipline and concerning its processing of disciplinary

cases. In January, 1999, the Special Master found that the

Commission had failed to comply with this order during

the preceding nine years, that the Commission had been

unable or unwilling to resolve the backlog of disciplinary

cases, and that the Commission continued to permit disci-

plinary cases to remain open and pending for excessive

periods of time.

In April, 1999, the Court confronted the parties with

the lack of progress in rooting out racial discrimination

within the Bridgeport Police Department. The Court

urged the parties to undertake efforts to remedy the

Police Commission’s repeated failures to comply with the

Court’s orders concerning the fair imposition of disci-

pline, reporting of disciplinary cases to the Special Mas-

ter, and elimination of the backlog of disciplinary cases.

At that hearing, the Court indicated that, unless the par-

ties to this case were able to resolve the underlying

causes of the continuing flow of complaints of racial

discrimination, the Court would adopt its own remedies

to do so. As the Court subsequently noted at the time it

approved the Stipulation of the parties, one of the

remedies which the Court was seriously considering was

the dissolution of the Board of Police Commissioners.

In May, 1999, the Court issued a Memorandum of

Decision finding the defendants in contempt for their

failure to comply with an earlier order of the Court

requiring that the Department protect a minority officer

from racial harassment. At the time, the Department was

operating under the threat of being held in contempt for

violation of various Court orders in Guardians v. Del-

monte, id., and the Special Master had recommended the

suspension of the Police Chief for failing to take action to

ensure enforcement of the Court’s orders.

In August, 1999, the Special Master found that the

Police Commission had continued to fail to file timely or

10

complete reports, had failed to resolve disciplinary cases

in a timely manner, and that the disciplinary system was

“lax and inefficient.” On May 2, 2000, the Special Master

recommended that the Court consider holding City in

contempt or placing the Department in receivership. The

Special Master expressed his frustration with the Board’s

shortcomings, stating, “It is hard to conceive how the

Board could think that it could ignore on a regular basis

in such a blatant fashion the authority and integrity of the

United States District Court. How long will it take for the

City of Bridgeport, the Bridgeport Police Department and

the Board of Police Commissioners to understand once

and for all that they are not above the law?” The Special

Master further recommended that the Court “consider

appropriate remedies and sanctions such as imposition of

fines, damages, appointment of a receiver or other judi-

cial overseer for the Bridgeport Police Department.”

At the urging of the Court in April, 1999, the parties

had entered into mediation to attempt to resolve their

differences. Those mediation sessions resulted in the set-

tlement of certain individual cases which were pending

before the Special Master. However, in order to root out

racism, it was apparent to all involved (except the police

union) that systemic changes within the Bridgeport Police

Department were needed. Accordingly, on January 11,

2000, the parties to this litigation entered into a Stipula-

tion that proposed the removal of the Police Commission

from disciplinary decisions based on internal complaints

of racial discrimination. This was far less harsh relief than

the Court’s and Special Master’s contemplated remedy of

entirely disbanding the Police Commission.

11

All members of the Bridgeport Police Department as

well as the Bridgeport Police Union were notified of this

Stipulation. The union was given notice of the Stipulation

in spite of its refusal to participate in the negotiations

which led to the Stipulation. On January 14, 2000, the

Police Union moved to intervene in this case for the

limited purpose of objecting to the Stipulation. On Febru-

ary 4, 2000, the Court held a hearing at which all parties

and intervenors were present and had the opportunity to

be heard. On March 24, 2000, the Court issued its decision

approving the Stipulation.

In its decision, the Court noted that the Stipulation is

intended to provide “uniformity of treatment of all

Bridgeport Police officers charged with serious disciplin-

ary offenses.” The Court further noted that,

One important objective of the negotiated

change is to eliminate the perception or the real-

ity that any one group is advantaged or disad-

vantaged by the disciplinary process. This

objective is to be accomplished by providing for

disciplinary hearings conducted by professional,

court-appointed hearing officers, not politically

appointed citizen commissioners.

The Stipulation provides extensive due process pro-

tections to officers accused of internal rules violations,

not the least of which is the resolution of such claims by

court-appointed, qualified hearing officers rather than

the Police Commission which has, for so many years,

mismanaged the Department's disciplinary process. In

addition, officers charged with disciplinary offenses are

provided with written notice of the charges; all evidence

12

upon which the charges are based; information concern-

ing the outcome of similar comparison cases in the past

five years; the right to union representation and to sepa-

rate retained counsel; a tape recorded or transcribed hear-

ing at which the officer may challenge the Department's

evidence; and an opportunity to challenge any proposed

discipline as disparate or unfair. Further, all decisions of

the hearing officers must be presented in writing, which

will ensure that the basis for each decision is explicit and

that there will be uniformity of decisions in similar cases.

In order to avoid the possibility that the decisions of

Hearing Officers can be undercut by racially and politi-

cally motivated “deals” made by the Police Commission

or the union, any settlement of a case pending before a

Hearing Officer must be approved by that Hearing Offi-

cer. Finally, all union rights to appeal disciplinary deci-

sions pursuant to the union contract are preserved.

The Court of Appeals affirmed the Order of the Dis-

trict Court on April 26, 2001.

¢

REASONS FOR DENYING THE WRIT

There are two reasons for denying the writ. First, the

Court of Appeals correctly affirmed the District Court’s

order that was based on overwhelming evidence in the

record of this case. Second, the facts of this case are

unique to Bridgeport and to the nearly twenty year his-

tory of this case and do not raise an issue which warrants

review by this Court.

13

A. The Court of Appeals Correctly Affirmed the

District Court’s Order

The District Court’s approval of the Stipulation

between the parties to this litigation is supported by a

unique history of racial discrimination within the

Bridgeport Police Department. The seventeen-year record

of proceedings in this case demonstrates that the

Bridgeport Police Commission has simply been unable or

unwilling to end racial discrimination within the

Bridgeport Police Department, particularly discrimina-

tion in discipline.

As the Court of Appeals correctly noted, the change

to the Court’s Remedy Order which is at issue here,

“would probably have been justified as a Remedy in 1983

and was fully justified after the many years of at least

partial non-compliance with the requirements of prompt

and fair processing of disciplinary complaints by police

officers and of timely reports of compliance.” Guardians v.

Delmonte, 248 F.3d 66, 73-74 (2d Cir. 2001).

The District Court’s Order approving the Stipulation

of the parties to this litigation is more than adequately

grounded in the evidence in this case. The facts outlined

in this brief comprise only a fraction of the facts upon

which the Court’s decision was founded. As was true in

United States v. Yonkers Board of Education, 29 F.3d 40 (2d

Cir. 1994); cert. denied, 515 U.S. 1157, 115 S.Ct. 2608, 132

L.Ed.2d 853 (1995), the District Court had overwhelming

evidence of a “long-standing” pattern of racial discrimi-

nation within the Bridgeport Police Department upon

which to base its order approving the Stipulation.

14

Voluntary compliance, such as the Stipulation that is

at issue here, is the preferred method of resolving Title

VII violations. Local Number 93, International Association of

Firefighters, AFL-CIO, CLC v. City of Cleveland, 478 U.S.

501, 515, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986). It is well

settled that a remedy which is obtained through a consent

decree may exceed the relief which a court may have

ordered after trial. Firefighters v. Cleveland, id., at 478 U.S.

525; Kozlowski v. Coughlin, 871 F.2d 241, 244 (2d Cir. 1989).

In this case, the relief agreed to by the parties was less

than the remedy contemplated by the Court and the

Special Master, both of whom had considered placing the

Department in receivership or the complete dissolution of

the Police Commission. The Stipulation is obviously justi-

fied in light of the evidence amassed during the history

of this litigation and in light of the Police Commission’s

years-long history of non-compliance with Court orders.

The Stipulation and resulting District Court Order

are intended to remedy some of the most important, long-

standing Constitutional rights violations that are at the

heart of this litigation. “Once a Constitutional violation

has been established, ‘the scope of a district court’s equi-

table powers to remedy past wrongs is broad, for breadth

and flexibility are inherent in equitable remedies.’ ”

United States v. Yonkers Board of Education, id., at 43. In the

Yonkers case, the Court further stated that, “The scope of

our review of an order designed to remedy a long-stand-

ing constitutional violation is accordingly narrow: The dis-

trict court, which has first-hand experience with the

parties and is best qualified to deal with the flinty, intrac-

table realities of day-to-day implementation of constitu-

tional commands, must be given a great deal of flexibility

ser

rn ner

15

and discretion in choosing the remedy best suited to

curing the violation.” Id., at 43 (internal quotations and

citations omitted, emphasis added). See, also, Dixon v.

Shalala, 54 F.3d 1019, 1034 (2d Cir. 1995); Sands v. Runyon,

28 F.3d 1323, 1327 (2d Cir. 1994); Bridgeport Guardians v.

City-of Bridgeport, 933 F.2d 1140, 1148 (2d Cir. 1991), cert.

denied, 502 U.S. 924, 112 S.Ct. 337, 116 L.Ed.2d 277 (1991).

The union misstates the holding of Firefighters v.

Cleveland, id., at 478 U.S. 529, asserting that the union’s

consent is needed before the Court approves the Stipula-

tion. In fact, the holding in Firefighters v. Cleveland, is

precisely the opposite: “While an intervenor is entitled to.

present evidence and have its objections heard at the

hearings on whether to approve a consent decree, it does

not have the power to block the decree merely by with-

holding its consent.” Firefighters v. Cleveland, id., at 478

U.S. 528, and cases cited therein.

In relying upon Firefighters v. Cleveland the union also

conveniently overlooks the facts and holdings of that

case. In Firefighters v. Cleveland, all courts, up to and

including the United States Supreme Court, approved the

District Court’s adoption of a consent decree over the

union’s objections that the decree and the resulting court

order “adversely affects the rights and interests of

employees regardless of whether they were actual victims

of past racial discrimination.” Id., at 514, fn. 2. The facts

cited by the Court as significant in Firefighters v. Cleveland

bear great similarity to those in Bridgeport. Both cities

had lost repeated court battles over racial discrimination

during a course of many years (eight years in Cleveland;

seventeen years in Bridgeport). Both cities had entered

16

into consent decrees in order to voluntarily address con-

tinuing problems of racial discrimination. In both cities,

the union had been invited to participate in negotiations

(the union accepted the invitation in Cleveland but

refused to participate in Bridgeport). Most significantly,

in the Cleveland case, the Court approved a much more

far-reaching consent decree than is at issue here. For

example, the Cleveland decree included race-conscious

relief, something which is utterly lacking in the decree at

issue here. |

It must also be noted that the union's objection to the

Court's “interference” with its collective bargaining

agreement is raised ten years too late. In 1990, the union

challenged the Court's and the Special Master's ability to

purportedly interfere with the collective bargaining

agreement's provisions concerning the Police Commis-

sion’s role in discipline. The union made precisely the

same challenge in its “Objection to the Special Master's

Recommended Ruling Re: Incident of October 10, 1990.”

There, the union challenged the imposition of discipline

upon certain office:s as a result of findings of the Special

Master, claiming that the Special Master’s actions inter-

fered with the collective bargaining agreement. Judge

Daly rejected the union’s challenge, holding that the

union contract did not override Title VII. The union never

challenged that holding nor did it appeal that holding.

Thus, the union’s current appeal is untimely under

Fep.R.App.Proc. 4(a)(1) which requires that a notice of

appeal be filed within 30 days after the entry of the

judgment or order from which appeal is taken. The

requirements of Rule 4 are jurisdictional and failure to

comply with them is fatal to an attempt to appeal a

ee eerie

17

District Court’s ruling. Torres v. Oakland Scavenger Com-

pany, 487 U.S. 312, 317-18, 108 S.Ct. 2405, 101 L.Ed.2d 285

(1988); Branum v. Clark, 927 F.2d 698, 704 (2d Cir. 1991);

Hulsey v. Sargent, 15 F.3d 115, 118-19 (8th Cir. 1994).

The primary grounds for the union’s objection is that

the Stipulation impinges upon the union’s collective bar-

gaining agreement, entered into under state law. How-

ever, state laws must yield to the requirements of Title VII

when obedience to state laws results in a violation of Title

VII. 42 U.S.C. 2000e-7. “Because state law must yield to

federal law in Title VIl cases, . . . we need not consider

whether the settlement agreement violates state law.”

Kirkland v. New York State Department of Correctional Ser-

vices, 711 F.2d 1117, 1132, n. 8 (2d Cir. 1983). See, also

Guardians Association of New York City Police Department,

Inc. v. Civil Service Commission, 630 F.2d 79, 105 (2d Cir.

1980).

Rights conferred by Title VII cannot yield to a collec-

tive bargaining agreement. “Title VII's strictures are abso-

lute and represent a congressional command that each

employee be free from discriminatory practices. Of neces-

sity, the rights conferred can form no part of the collec-

tive-bargaining process since waiver of these rights

would defeat the paramount purpose behind Title VII.”

Alexander v. Gardner-Denver, 415 U.S. 35, 51, 94 S.Ct. 1011,

39 L.Ed.2d 147 (1974).

The union contends that the collective bargaining

agreement does not require the violation of Title VII and,

therefore, the Court should not have removed the Police

Commission from its disciplinary role under the union

contract. Although the Police Commission is not required

18

to violate Title VII, the fact is that the Commission repeat-

edly does so in the normal course of its business. The

union’s position would insulate the Police Commission’s

discriminatory conduct from the Court’s review merely

because the union contract could be affected by the

Court’s remedy.

It cannot be seriously argued that the District Court

is powerless to approve the removal of the Police Com-

mission from the disciplinary process simply because

there is no state law requirement that the Police Commis-

sion discriminate. The Court found that discrimination in

the disciplinary process occurs precisely because the

Commission is the disciplinary authority. The fact that

the Commission achieved that authority through the

union contract results in an unavoidable conflict: Either

the union contract’s provisions must be overridden or the

goals of Title VI] must be thwarted. Given that choice, the

Court's decision in favor of Title VII is the correct choice.

The union asserts that its consent is required in order

to enable the District Court to enter the order that is at

issue here, citing Alexander v. Gardner-Denver, id. How-

ever, the union ignores the fact that in Alexander v. Gard-

ner-Denver the Court held only that voluntary Title VII

agreements could not be entered, “absent a judicial deter-

mination” justifying their need. Id. at 771. In the instant

case, a seventeen-year history of District Court findings

of racial discrimination provided the basis for the Court's

order. The Court’s order, although based on the Stipula-

tion of the parties, was also based on and justified by that

history of findings of racial discrimination.

19

The union also claims that the Stipulation imposes

obligations on the union without the union’s consent.

This argument has no merit. In fact, the provisions to

which the union objects actually provide greater rights to

union members. For example, the Stipulation provides

that a respondent officer has the right to bring retained

counsel and an additional representative to hearings

before the Hearing Officer as well as having the right to

union representation. The Stipulation imposes «10 require-

ment that the union attend the hearing against its will.

Rather, it merely preserves the respondent officer’s exis-

ting rights to union representation and gives the officer

the additional right to bring other representatives to the

hearing.

The union also objects to a provision of the Stipula-

tion requiring Hearing Officers to consider whether pro-

posed discrimination is discriminatory. This provision

does not impose new burdens on the union; rather, it

provides union members with greater rights. If a Hearing

Officer finds that a respondent officer’s conduct requires

discipline, the respondent officer will be permitted to pre-

sent evidence that any proposed discipline is discrimina-

tory. This is an improvement over the current process

because the new procedure requires a two-part hearing in

which the respondent must first be found to have com-

mitted a violation and then informed of the proposed

discipline. At that point, the respondent can challenge the

proposed discipline by showing that it is disparate or

unfair. This two-step process ensures that the respondent

has the maximum opportunity to challenge both the

charges and any proposed discipline and to explicitly

raise claims of racial discrimination. The union’s objec-

tion to this process appears to be that it wishes to be able

20

to wait until “grievance arbitration” to raise all claims of

discrimination. Since the union has never appeared

before the Special Master in support of a minority officer,

it is difficult to comprehend why the union now

expresses this concern over raising claims of racial dis-

crimination.

The union also objects to the requirement of the

Stipulation that the settlement of a case pending before a

Hearing Officer requires the Hearing Officer’s approval.

The union speculates that this will interfere with settle-

ments. The actual purpose of this provision is to ensure

that no “sweetheart” deals are made to undercut the

impartiality of the Hearing Officer’s decision so that, for

example, white officers are not able to negotiate lesser

penalties through the intervention of the union than are

imposed on minority officers for similar offenses. If the

Hearing Officers’ decisions are compromised in a manner

which favors one group of officers over another, that

would destroy the very reason for using impartial Hear-

ing Officers. In light of that purpose and presuming no

desire on the part of the union to foster the unfair imposi-

tion of discipline on minority officers, it is unclear why

the union would object to such a provision in the Stipula-

tion.

The union also claims that the Stipulation is not

intended to address discrimination because it does not

apply to “citizen complaints.” The union is well aware of

the reason that “citizen complaints” are not addressed by

this Stipulation: Those complaints are the subject of yet

another United States District Court order in a different

case, Barros, et al. v. Joseph A. Walsh, et al., 5:72 CV 482

(DFM)(RNC). That case, brought in 1972 and alleging

a ii

21

discriminatory treatment of citizens by Bridgeport police

officers and an inadequate response by the Police Com-

mission, also remains pending today under the terms of a

settlement agreement, the so-cailed “Barros Decree”

approved by then District Court Judge Robert C. Zam-

pano. As the union knows (because it is a participant),

mediation is currently taking place to determine whether

the Barros Decree should be modified (the plaintiffs in

Barros have asked for the appointment of a Special Mas-

ter, modeled on the Special Master in this case, because of

the Police Commission’s failure to properly and fairly

adjudicate citizen complaints under the Barros Decree).

Obviously, the parties to Guardians v. Delmonte, id. are not

free to negotiate changes to the Barros Decree which is,

after all, the order of another Federal District Court

judge. The fact that the Barros case remains active today,

nearly thirty years after the decree in that case was

entered, provides further evidence that the Police Com-

mission remains incapable of fairly resolving disciplinary

matters.

Lastly, and serving as further evidence of the union’s

disdain for minority officers is its inaccurate reference to

the Guardians as a “rival labor organization.” If the union

had, at any time in the past twenty years, addressed the

issue of racial] discrimination, there would have been no

need for the Bridgeport Guardians to do so. The union’s

| attempts to characterize the Guardians as its “rival” dem-

onstrates just how little concern the union has for racial

equality. The union’s position in this case reveals its

complete disregard for the facts and for the history of this

case and of minority officers in the Bridgeport Police

Department. One would search the record in vain for any

involvement by the union on behalf of a minority officer

in this case. Why? Because the union has abdicated its

representation of minority officers in cases involving

racial discrimination and, as its position here makes clear,

is openly hostile to claims by minority officers that their

civil rights are violated.

Both the Court and the Special Master found that a

properly functioning disciplinary process is essential to

ending the history of racial discrimination in discipline

within the Bridgeport Police Department. The Court of

Appeals correctly affirmed the District Court’s Order

amending the Court’s 1983 Remedy Order in a narrowly

tailored manner intended to put into place a prompt and

impartial disciplinary process. Accordingly, the petition

for a Writ of Certiorari should be denied.

B. This Case Involves Facts Unique to Bridgeport

Police Department Which Do Not Create a Sig-

nificant Issue for this Court

The Bridgeport Police Department’s history of raciai

discrimination and litigation related to racial discrimina-

tion, as described above, is a disgrace to the City of

Bridgeport but does not raise issues of general signifi-

cance, precisely because it is such a unique situation.

Likewise, the 1983 Remedy Order, as amended in

response to this unique history, does not raise issues of

such significance that would warrant review by this

Court.

Further, the claims now advanced by the union - that

the Remedy Order as amended impinges upon the

union’s contract and state law rights —- were raised by the

23

union in 1990, were the subject of a District Court deci-

sion in 1990, and were never appealed by the union at

that time. To permit the union to raise these issues now

would encourage countless other parties across the

nation in cases of all types to attempt to revive claims

which were long since abandoned in the District Court,

even if they had failed to preserve their rights to appeal

years earlier. On this basis alone the petition for a Writ of

Certiorari should be denied.

Lastly, this case does not involve and is not asserted

to involve-a conflict between the Circuit courts and does

not involve unresolved or unique Constitutional issues.

+

CONCLUSION

Accordingly, for all the reasons set forth above, the

petition for a Writ of Certiorari should be denied.

Respectfully submitted,

VincENT M. Musto

KoskorrF Koskorr & BIEDER

350 Fairfield Avenue

Bridgeport, Connecticut 06604

203-336-4421

Attorneys for Respondent

Bridgeport Guardians