United States v. City of Warren

CONTIE, Circuit Judge,

concurring in part and dissenting in part.

I respectfully concur in part and dissent in part from the majority’s opinion for the following reasons.

Following years of exhaustive discovery, the district court granted the United States’ motion for .partial summary judgment on February 14, 1991, finding that the city of Warren’s preapplication residency requirement unlawfully prevented many black applicants from seeking positions with the city. Following a bench trial, the district court subsequently found that the city’s recruitment practices failed to inform potential black applicants of job opportunities with the city. The district court, however, limited its disparate impact finding to police officers and firefighters because the city’s discriminatory recruiting practices’ effect on black applicants for all other municipal positions with the city of Warren could not be isolated and determined with any degree of accuracy. In an effort to remedy the disparate impact, the district court ordered the city to improve its recruitment practices by advertising in minority-targeted publications.

On appeal, the United States challenges the district court’s finding that the city of Warren’s pre-1986 recruiting practices did not discriminate against black job applicants seeking employment with the city. Because my colleagues believe that the city of Warren’s actions were racially discriminatory based on a disparate impact analysis, the majority reverses the district court’s decision and remands this action to the district court with instructions to find potential black applicants that were discriminated against by the city of Warren when the city sought to fill all municipal vacancies during the relevant time period. I am of the opinion that the majority *1100did not review the determination of the district court pursuant to the proper standard. The review of the district court’s decision is not de novo. The standard of review is clearly erroneous. If the findings of the district court are not clearly erroneous, we must affirm. Because I steadfastly believe that the district court’s findings are not clearly erroneous, I respectfully dissent from the majority’s decision with respect to the city’s pre-1986 recruiting practices when it sought to fill non-police officer and non-firefighter vacancies with the city.

Once a Title VII plaintiff establishes that a particular employment practice has caused a significant adverse effect on a protected group, the burden shifts to the, employer to prove that the challenged practice is a business necessity. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 659, 109 S.Ct. 2115, 2126, 104 L.Ed.2d 738 (1989). Though my colleagues believe that the United States met its burden of establishing Warren’s discriminatory practices and the resulting disparate impact on potential black job applicants, I steadfastly believe that the district court’s findings were not clearly erroneous. Simply stated, the United States failed to meet it burden of establishing that the city of Warren’s recruiting practices for municipal positions (other than police and firefighter positions) discriminated against potential black job applicants because the United States did not isolate the reasons why Warren’s applicant pool included few black candidates before 1986.

Indeed, the statistical evidence in this action simply noted the disparity in the number of black individuals that were employed by the city of Warren as policemen and firefighters during the period when the city’s actions were deemed discriminatory. Because the Supreme Court has rejected rigid mathematical formulas in analyzing statistics purporting to show a disparate impact, Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994-95, 108 S.Ct. 2777, 2788-89, 101 L.Ed.2d 827 (1988), “[cjourts are left to decide on a case-by-case basis whether statistics that purport to show disparate impact are in fact sufficient to the task.” Abbott v. Federal Forge, Inc., 912 F.2d 867, 873 (6th Cir.1990). In this action, the statistics presented by the United States do not support its claim that the city of Warren discriminated in the hiring of all city employees; instead, the statistics support the United States’ claim with respect to police officers and firefighters only. Accordingly, the district court properly limited the unlawful recruiting claims to qualified black individuals who applied, or would have applied, to the city for police officer or firefighter positions only. In other words, though the United States presented statistical evidence reflecting the racial composition of the potential workforce absent discrimination, and though the United States offered data comparing the number of black applicants both before and after Warren’s expanded recruiting practices, the district court properly held that the United States faded to meet its burden with respect to all municipal positions because the data pertaining to Warren’s hiring of police officers and firefighters cannot be extended with any degree of accuracy to Warren’s remaining municipal vacancies.

With respect to Joseph Fears’ claim, I agree with the majority’s finding that Fears is entitled to relief but dispute my colleagues’ back pay determinations because, I believe, the district court did not abuse its discretion when calculating Fears’ back pay award.

The record reveals that more than 300 individuals claimed that they were victims of Warren’s discriminatory practices. After reviewing the claims, the United States recommended relief for 75 claimants. On August 19,1994, the district court narrowed the field of claimants to 30 because the other claimants were not interested in police officer or firefighter positions and were not aware of Warren’s preapplication residency requirement. The United States subsequently dismissed 19 of the 30 claimants that remained. The district court later rejected three of the eleven claimants that remained because the claimants could not prove that, but for the discrimination, they would have applied for positions with the city.

Following an evidentiary hearing, the district court granted relief to only one of the eight remaining claimants, Joseph Fears. The record reveals that Fears sought a position with the Warren Police Department in 1979 but was denied the position because of *1101the city’s preapplication residency requirement. Accordingly, the district court awarded Fears $55,595 in back pay after finding that: Fears’ back pay period began on October 31, 1984 (two years before the United States filed its complaint); Fears’ prejudgment interest should be calculated using the consumer price index as the relevant, interest rate; Fears’ back pay. should be reduced by an “attrition factor” (12.5 percent) to reflect the likelihood that Fears, if hired, would no longer be employed as a Warren police officer; and Fears was not entitled to overtime pay.

Though the goal of Title VII is to “make persons whole for injuries suffered on account of unlawful employment discrimination,” Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975), Title VII relief must be reasonable. See generally Griffin v. Michigan Dep’t of Corrections, 5 F.3d 186, 189 (6th Cir.1993) (The purpose of Title VII relief “is to put an injured party in the same position the party would have occupied in the absence of the discrimination, neither more nor less.”).

On appeal, the United States asserts that Fears’ back pay period should have begun on February 7,1984, two years before the United States wrote to the city of Warren that it would be investigating charges that the city was engaged in discriminatory employment practices. In response, the city of Warren asserts that the district court properly determined that Fears’ back pay period should commence on October 31, 1984, two years before the United States filed its complaint in district court. I believe that the district court properly found that Fears’ back pay period began on October 31, 1984, because the United States’ February 1986 letter did not mention the unlawful recruiting policies later alleged by the United States. Because the district court did not abuse it discretion by finding that Fears’ back pay period began on October 31, 1984, I respectfully dissent from that portion of the majority’s opinion.

The district court used the consumer price index as the “rate of interest” when ealeulat-ing Fears’ back pay award (which resulted in an average rate of slightly more than four percent). On appeal, the United States asserts that the district court erred because it did not explain its reasoning for using the consumer price index as the relevant interest rate. In response, the city of Warren asserts that the United States failed to show that the. district court abused its discretion by awarding prejudgment interest tied to the consumer price index. The district court’s decision whether to grant prejudgment interest, and the interest rate to be used, must not be overturned on appeal absent an abuse of discretion. EEOC v. Wilson Metal Casket Co., 24 F.3d 836, 841 (6th Cir.1994). Though the United States may prefer that a higher interest rate be used, the district court did not abuse its discretion by using the familiar and often-cited consumer price index as the relevant interest rate. • Accordingly, the district court properly calculated the prejudgment interest to be awarded to Fears.

To the extent that the district court re^ duced Fears’ back pay by an attrition factor reflecting the percentage of Warren police officers that were no longer employed by the city at the time of Fears’ evidentiary hearing, the city of Warren properly asserts that the district court’s reduction of Fears’ back pay award by the attrition factor (12.5%) accurately reflects the likelihood of Fears’ continued employment with the city absent Warren’s discriminatory practices. Though the use of an attrition factor is necessarily imprecise because it is impossible to determine with certainty how long Fears would have been employed by the city, the district court did not abuse its discretion by reducing Fears’ back pay award by 12.5 percent to reflect the likelihood that Fears, if hired by the city in 1979, would, still be employed as a Warren police officer. Accordingly, I believe that the district court did not abuse its discretion by using an attrition factor to reduce Fears’ back pay award.

Because I would affirm the district court’s determinations in their entirety, I concur in part and dissent in part from the majority’s opinion.