IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-1947
BLACK FIRE FIGHTERS ASSOCIATION OF
DALLAS, ET AL.,
Plaintiffs,
BLACK FIRE FIGHTERS ASSOCIATION OF
DALLAS, ET AL.,
Plaintiffs-Appellants,
versus
CITY OF DALLAS, TEXAS,
Defendant,
DALLAS FIRE FIGHTERS ASSOCIATION,
Intervening Defendant-
Appellee.
Appeals from the United States District Court
for the Northern District of Texas
(April 18, 1994)
Before HIGGINBOTHAM and DUHÉ, Circuit Judges, and LITTLE,* District
Judge.
HIGGINBOTHAM, Circuit Judge:
*
District Judge of the Western District of Louisiana,
sitting by designation.
This lawsuit challenges the promotion practices of the Dallas
Fire Department as racially discriminatory. The district court
rejected a proposed consent decree because a race-conscious remedy
it contained could not withstand strict scrutiny. We affirm.
I.
The Black Fire Fighters' Association of Dallas sued the city
on behalf of a class of black firefighters who sought but did not
receive promotions1 between September 17, 1986, and July 12, 1990.
After the suit began, the city changed several features of its
promotion process, including eliminating the rank of Second Driver,
reducing time-in-grade promotion eligibility requirements, and
ending the practice of adjusting test scores upward for seniority.
It also used some "skip promotions" to promote blacks over
nonblacks who scored higher on promotion exams.
After completing discovery, the city and the plaintiffs
presented a proposed settlement agreement to the district court.
It memorialized some of the adjustments the city had made to its
promotion criteria, gave awards of back pay to class members, and
instituted a new system of skip promotions. The department would
1
According to the city's stipulations, when the suit began
in 1986, the Fire Department had two relevant career ladders.
The ranks in the Fire Suppression ladder, in ascending order,
were Apprentice Fire & Rescue Officer, Fire & Rescue Officer,
Second Driver, Driver Engineer, Lieutenant, Captain, and
Battalion/Section Chief. The ranks in the Fire Prevention ladder
were Apprentice Fire Prevention Officer, Senior Fire Prevention
Officer, Fire Prevention Lieutenant, Fire Prevention Captain and
Fire Prevention Section Chief. Plaintiffs challenge the 1986 and
1987 Second Driver exams, the 1987 and 1988 Driver Engineer
exams, the 1986 and 1988 Lieutenant exams, and the 1987 Fire
Prevention Lieutenant exam.
2
use an eligibility list as its main guide in making promotions from
1992 to December 31, 1995. All applicants who passed the promotion
exam for a position would be placed on the list by order of score,
with the highest-scoring applicant at the top. The department
would promote from the top and work down, except for 20 promotions
to Driver, 7 to Fire Lieutenant and 1 to Fire Prevention
Lieutenant. Those 28 promotions would go to black officers who
would not otherwise be chosen because their scores, while passing,
were too low.
The district court refused to accept the proposed consent
decree, finding that the plaintiffs were not likely to prevail at
trial and that the proposed skip promotion remedy unnecessarily
harmed other firefighters. The plaintiffs, still represented by
the Black Fire Fighters' Association, appeal that refusal. The
original defendant, the City of Dallas, has filed an amicus brief
recommending acceptance of the consent decree. The district court
decision is defended by an intervenor, a group of firefighters
called the Dallas Fire Fighters' Association.
II.
BFFA first challenges the intervenor's presence in this
lawsuit, alleging that its members have no interest in the case.
A decree's prospective interference with promotion opportunities
can justify intervention.2 The question whether the interest of
2
See Howard v. McLucas, 871 F.2d 1000, 1005 (11th Cir.),
cert. denied, 493 U.S. 1002 (1989); Howard v. McLucas, 782 F.2d
956, 958-959 (11th Cir. 1986); Kirkland v. New York State Dep't
of Correctional Servs., 711 F.2d 1117, 1128 (2d Cir. 1983), cert.
denied, 465 U.S. 1005 (1984).
3
DFFA's members in promotions allows DFFA to dispute other features
of the decree besides skip promotion is not before us, as DFFA
focuses solely on the skip promotion provision. While arguing
against that provision, DFFA can challenge the underlying issue of
the city's liability, because the degree of liability is relevant
to whether a race-conscious remedial measure such as skip promotion
is needed.3
BFFA also argues that other lawsuits DFFA has filed deny it
the right to intervene in this suit. The record shows that DFFA
has sued the city to contest the skip promotions that the city
voluntarily made before negotiating this decree. That suit
involves different facts from this one. To the extent that lawsuit
involves common legal issues, any potential adverse effects on that
case from a consent decree in this case favor DFFA intervention.4
DFFA properly appeared before the district court and properly
appears before us.
III.
A district court evaluating a proposed Title VII consent
decree must determine whether the decree will have an unreasonable
or unlawful impact on third parties if approved.5 A race-conscious
3
See Maryland Troopers Ass'n v. Evans, 993 F.2d 1072, 1077
(4th Cir. 1993); Howard v. McLucas, 871 F.2d 1000, 1005 (11th
Cir.), cert. denied, 493 U.S. 1002 (1989).
4
See Martin v. Travelers Indem. Co., 450 F.2d 542, 554 (5th
Cir. 1971); Atlantis Dev. Corp. v. United States, 379 F.2d 818,
828-89 (5th Cir. 1967). See also 7A Charles A. Wright et al.,
Federal Practice & Procedure § 1908, at 302-05 (2d ed. 1986).
5
Williams v. City of New Orleans, 729 F.2d 1554, 1559-60
(5th Cir. 1984) (en banc).
4
remedial measure such as the "skip promotion" system in the
proposed decree receives strict scrutiny under the Equal Protection
Clause.6 At a minimum, this level of scrutiny requires that the
remedy be narrowly tailored to remedy prior discrimination.7 The
Supreme Court has focused on five factors in analyzing race-
conscious remedial measures: the necessity for relief, the efficacy
of alternative remedies, the flexibility and duration of the
relief, the relationship of the numerical goals to the relevant
labor market, and the impact of the relief on the rights of third
parties.8 These factors support rejecting this decree.
The first two, necessity for relief and efficacy of
alternative remedies, implement narrow tailoring and here expose
its absence. The agreement requires 28 promotions of "qualified
blacks," without regard to whether the person to be promoted is a
victim of past discrimination.9 The decree is not more specific
6
City of Richmond v. J.A. Croson Co., 109 S. Ct. 706, 721-23
(1989) (4-Justice plurality); id. at 735-36 (Scalia, J.,
concurring). See also id. at 752 (Marshall, J., dissenting)
(noting that "[t]oday, for the first time, a majority of this
Court has adopted strict scrutiny as its standard of Equal
Protection clause review of race-conscious remedial measures").
This standard applies to consent decrees. United Black
Firefighters Ass'n v. City of Akron, 976 F.2d 999, 1008 (6th Cir.
1992); Davis v. City & County of San Francisco, 890 F.2d 1438,
1446 (9th Cir. 1989), cert. denied, 498 U.S. 897 (1990).
7
Croson, 109 S. Ct. at 729; Wygant v. Jackson Bd. of Educ.,
106 S. Ct. 1842, 1847 (1986) (4-Justice plurality). See also
Maryland Troopers, 993 F.2d at 1076-77.
8
See Croson, 109 S. Ct. at 729 (citing United States v.
Paradise, 107 S. Ct. 1053, 1066 (1987) (4-judge plurality)).
9
The key language in the provision of the settlement
agreement provides: "Subject only to the number of promotional
openings at the respective rank, every African-American appearing
5
even though BFFA represents a class of firefighters denied past
promotions, and even though BFFA's counsel said at oral argument
that some of those class members are still in the fire department.
Further, another provision of the decree requires the city to pay
money to "members of the [p]laintiff class," showing the parties'
ability to identify past victims of discrimination. The broad skip
promotion remedy in the decree is difficult to justify when the
knowledge to narrow it seems readily available.10
The question, then, is the one posed by the fourth factor:
does something in the relevant labor market justify skip promotion
of "qualified blacks" rather than class members?11 The record
offers no guidance. The statistical evidence put forward by BFFA
and the city at the fairness hearing showed that the percentage of
on the respective list of eligibles as 'passing' shall be
promoted until the shortfall is eliminated." The provision goes
on to say that "If as of December 31, 1995, the City has failed
to satisfy its obligation to make sufficient additional
promotions so as to eliminate the shortfall, the City will
immediately promote a number of qualified blacks from existing
eligibility lists to the ranks of Driver, Lieutenant and Fire
Prevention Lieutenant necessary to remove the previously defined
shortfall."
10
See Croson, 109 S. Ct. at 733 (Stevens, J., concurring).
11
The parties each argue half of this issue. BFFA argues in
its brief that skip promotions are necessary because "[n]o other
alternatives are available which would place the members of the
Plaintiff class in the position they should have been but for
this discrimination." The plaintiff class, however, does not
necessarily benefit from this remedy. The City justifies skip
promotions because without them "blacks do not gain the
supervisory positions they should have gotten in the past but for
the invalid exams which caused a disparate impact." "Blacks" are
not the plaintiffs in this lawsuit. The line between the
identity of the plaintiffs and that of the beneficiaries of the
plaintiffs' lawsuit cannot be so easily blurred. See generally
Williams, 729 F.2d at 1567-70 (Higginbotham, J., concurring).
6
blacks passing promotion exams was lower than the percentage of
whites.12 The city stipulated that those exams had not been
validated in accordance with EEOC guidelines, and that several
other parts of its promotion system had not been validated either.
Neither the statistical evidence nor the city's stipulations
establish any adverse effect of these selection devices on the
group of blacks that would seek promotion during the time covered
by the decree.13
Title VII allows a district court to order preferential relief
for individuals who were not victims of discrimination.14 The
Department's behavior does not establish it as the kind of
"particularly egregious"15 defendant a court must force to promote
12
For example, on the 1987 Driver exam, 127 whites took the
exam and 47 received "appointable" scores, defined as a passing
score before adjustment for seniority or sanctions. 45 blacks
took the exam and 12 received appointable scores. The percentage
of blacks passing the exam, 26.67%, divided by the percentage of
whites passing, 37.01%, is less than 80, a result that "will
generally be regarded by the Federal enforcement agencies as
evidence of adverse impact." 29 C.F.R. § 1607.4 (1993). The
plaintiffs presented similar statistical evidence about the other
exams challenged.
13
The stipulations begin: "Plaintiffs and Defendant believe
that the evidence which supports these stipulations demonstrates
that there has been a disparate impact on members of Plaintiff
class constituting a prima facia [sic] case of a violation of
Title VII by the City against members of the Plaintiff class.
Plaintiffs and Defendant believe that this long standing
disparate impact and the effects of this disparate impact require
the use of affirmative race-conscious relief in order to provide
an effective remedy." (emphasis added).
14
Local 28 of Sheet Metal Workers v. EEOC, 106 S. Ct. 3019,
3053 (1986) (plurality opinion); id. at 3054 (Powell, J.,
concurring); id. at 3062 (White, J., concurring).
15
Id. at 3054 (Powell, J., concurring).
7
minorities. Since this suit was filed, the department has
eliminated the rank of Second Driver, reduced time-in-grade
requirements for promotion to other ranks, and even made skip
promotions. The city is a willing party to the effort to settle
this lawsuit. This record falls short of the employment practices
that have justified broad race-conscious remedies.16 For example,
in Sheet Metal Workers v. EEOC, the Court described a dozen year
history of special training classes for whites, violations of court
orders, and overt discrimination in the awarding of temporary work
permits.17 Similarly, International Brotherhood of Teamsters v.
United States18 described a pattern of lying to minority applicants
and deliberately losing their applications.19 This defendant does
not rise to that level.
Nor do the specific promotion devices complained of by BFFA
show a need for future relief to non-injured blacks. The parties'
calculations about the appropriate number of skip promotions are
based on the difference between the performance of blacks and
whites on promotion exams, with small upward adjustments for the
effect of seniority on scores and time-in-grade rules on the number
of blacks eligible to sit for exams. These selection mechanisms
can be made race-neutral, and other provisions of this decree do
16
See Maryland Troopers, 993 F.2d at 1077.
17
Sheet Metal Workers, 106 S. Ct. at 3024-31.
18
431 U.S. 324 (1977).
19
Id. at 338.
8
so. Nothing in the record warrants going beyond changing these
selection devices.
BFFA urges the benefits of having more minorities in
supervisory positions, such as providing minority perspectives to
the department and creating minority role models. The merit those
purposes have in the abstract is outweighed by the harm of the way
this decree implements them. The benefits of having more minority
supervisors does not justify imposing a racial classification with
such a loose connection to remedying past discrimination.20
The two remaining factors address aspects of the impact of the
decree. The third factor, flexibility and duration of the remedy,
is inconclusive. The decree envisions making these promotions over
a three year period. The parties dispute whether the 28 promotions
will be filled soon or will require the entire three years, and
also dispute whether they will constitute the bulk of promotions
during the period in which they are given. This factor does not
weigh for or against the remedy.
The last factor, impact of the relief, cuts against the
remedy. Plaintiffs correctly point out that a DFFA member denied
a promotion is not in as bad a position as the victim of a layoff.21
20
Croson, 109 S. Ct. at 723-24 (citing Wygant, 106 S. Ct. at
1848 (plurality opinion)). See also John Hart Ely, The
Constitutionality of Reverse Racial Discrimination, 41 U. Chi. L.
Rev. 723, 727 n.26 (1974) ("[S]pecial scrutiny in the suspect
classification context has in fact consisted not in weighing ends
but rather in insisting that the classification in issue fit a
constitutionally permissible state goal with greater precision
than any available alternative.").
21
Paradise, 107 S. Ct. at 1072-73 (plurality opinion).
9
Nor is the plaintiffs' interest in a particular promotion selection
mechanism as strong as that of "the rights and expectations
surrounding seniority."22 So long as the department ranks its
employees' exam scores, however, a firefighter has an expectation
that he can earn promotion through study. That expectation is
tangible enough that we cannot ignore the problems with the
tailoring of this remedy.
IV.
Because the skip promotion remedy does not withstand strict
scrutiny, we affirm the district court's rejection of the decree.23
We do not address the trial court's alternative holding that the
decree as a whole could not stand because it was not "fair,
adequate, and reasonable."24 The parties may negotiate another
settlement, and the trial court's assessment of its reasonableness
may change if DFFA finds a new agreement more palatable. We leave
that question for another day.
AFFIRMED.
22
See Wygant, 106 S. Ct. at 1851-52 (plurality opinion).
23
Williams, 729 F.2d at 1582 (5th Cir. 1984) (Wisdom, J.,
concurring in part and dissenting in part); Cotton v. Hinton, 559
F.2d 1326, 1331-21 (5th Cir. 1977).
24
Williams, 729 F.2d at 1559.
10