Vanguards of Cleveland v. City of Cleveland, and Local Number 93, I.A.F.F., Afl-Cio, Intervenor-Appellant

threatening to close its stores if the Union election, and that Lawson violated

won 8(a)(2) by sponsoring, interfering

section

with, dominating the Sales Assistant Because the General Counsel

Committee.

challenged validity of the Sales Assist- only in

ant Committee those stores which sought organize,

the Union has

Board’s disestablishment order will be en- respect

forced to those stores. CLEVELAND, al., et

VANGUARDS OF

Plaintiffs-Appellees, CLEVELAND, al., et

CITY OF

Defendants-Appellees, I.A.F.F., AFL-CIO,

Local Number

Intervenor-Appellant. 83-3091.

No. Appeals, States Court of

United Circuit.

Sixth 22, 1984.

Argued Feb.

Decided Jan. Rehearing En Banc

Rehearing and 22, 1985. April

Denied Hispanic firefighters employed

Black and Cleveland, brought a class action under the thirteenth and fourteenth §§ Amendments, 42 U.S.C. 1981 and Rights title VII of the Civil Act of 1964, seq., 2000e et to redress U.S.C. alleged by the discrimination Cleveland Department minori- Fire complaint alleged ty firefighters. The City discriminatory the had maintained its (1) policy by the of unfair promotions use (2) seniority points, and written tests manipulation of retirement dates vis a vis upon promotional eligibility the dates which (3) expired, City’s lists and failure to Summers, (argued), L. Summers hold an examination for since William Brucato, White, Potts, Kampinski, Tittle & April complaint alleged 1975. further Cleveland, Brucato, Ohio, for in- firefighters Blaise A. of the who had 4.3% tervenor-appellant. attained the rank of Lieutenant or above relief, prayer In their were minorities. for Cleveland, Stege, (argued), R. Jr. Edward alia, Vanguards sought, inter a declar- Ohio, Vanguards. judgment City atory engaged that the had Maddox, Kainski, Irving D. Dale F. John discriminatory employment practices, an Cleveland, Ohio, City Berger (argued), injunction prohibiting the continuation of of Cleveland. practices, such and the institution of “an hiring promotion program affirmative and CONTIE, KENNEDY and Circuit Before past to eliminate the effects of discrimina- COOK,. Judge.* Judges; and District tory practices.” CONTIE, Judge. Circuit filed, Shortly complaint after Firefighters Intervenor-City of Cleveland parties negotia counsel for both initiated 93, I.A.F.F., Association, # Local AFL-CIO attempt to reach a settlement. tions (Local 93) the district court’s appeals from 1981, Local April 93 filed its motion to entry consent decree which contains right pursuant to Fed.R. intervene as race-conscious, affirmative 24(a)(2). granted This motion was Civ.P. Hispanic of Black and increase the number by the district court on June Depart- Fire within the Cleveland officers Thereafter, complaint in Local 93 filed its appeal, we must first deter- ment. In this alleged represent it that was “the standing mine whether Local 93 of the members of International ative standing If challenge the consent decree. # Fighters of Fire Local 93 all Association exists, whether the must then decide we employees of the Cleveland of whom by rul- court abused its discretion district Department, any and all of whom Fire fair, was “a reasonable ing that the decree by any decision which be affected the claims adequate resolution of The com in the instant lawsuit.” rendered in this action.” raised “[p]romotions plaint also asserted compe any criteria other than based

I. tence, quota system, racial would such as a promo capable from their Vanguards deny those most On October deny the residents tions and would (Vanguards), an association Cleveland * Cook, Jr., designation. gan, sitting by United States Julian A. The Honorable Judge of Michi- for the Eastern District District

City maintaining of Cleveland from Thirty-two promotions c. possible fighting fire force.” best Captain rank of of Fire. Sixty-six promotions d. to the rank Vanguards In November of Lieutenant. City proposed filed a consent decree 7-8, January 8) with the district court. On minority All pass members who evidentiary the district court held an November examinations for hearing objec- consider intervenor’s Fire, ranks of Assistant Chief of Battal- time, par- tions to the decree. At this Captain ion Chief and of Fire shall be so stipulations of fact which ties submitted appointed. percentage indicated that the 9) sixty-six promotions to the rank residents Cleveland was of Lieutenant shall be made on the basis percentage that the but 46.9% of one minority ap- one minority firefighters occupying the ranks pointee, on the eligible based relative list of Lieutenant or At above 4.5%. individuals, ranking of the minority hearing, judge the close of the the district non-minority appointment being coupled. urged parties engage to in “some inten- Should there thirty-three be less than dialogue” sive in order to resolve their dif- minority appoint- candidates selected for evidentiary hearing ferences. At a second ment, sixty-six appointments all shall be 27, 1982, April held on the district court made, the balance to be filled non-mi- agreement indicated that no had been nority Any candidates. such shortfall as reached and that the primary intervenor’s minority appointments to to the rank of objection to the decree was its use of racial Lieutenant shall up by pro- be made quotas to alleviate the past effects of dis- moting, upon the determination of the crimination. The court later referred this promotion Defendants that should be magistrate negotia- matter to a for further made, equivalent minority number of

tions. eligible candidates from the 1984 as .list 12, 1982, magistrate On November provided paragraph hereof, for in be- reported agreement that a tentative among appointments fore further are made parties counsel for all had been reached. from that list. agreement, reject- This was later 10) promotions to be made to the by membership ed of Local 93. At that Fire, ranks of Assistant Chief of Battal- point, Vanguards submitted another Captain ion Chief and of Fire shall be proposed consent decree which had been by coupling made highest ranking negotiated only by Vanguards and the non-minority and minority appointees, City. This decree contained an affirmative until minority all successful candidates promotion for the of Black and appointed. have been Hispanic firefighters which reads as fol- 11) eligible lists resulting from lows: the 1981 examinations shall remain in 7) Defendants shall promptly as as 15, effect until June 1984. Defendants possible, 31, no January but later than shall schedule promotional additional ex- 1983, certify promotional eligibility lists promul- aminations sufficient time to upon based the examinations adminis- gate eligible lists to be certified as of tered in November im- heretofore eligible June 1984. The lists result- pounded pursuant to Orders of the ing from the 1984 examinations shall re- upon Court. Based those lists the fol- main in effect until December lowing promotions shall be made no later pro- Defendants shall schedule additional 10, 1983; February than motional examinations sufficient time promotions a. Four to the rank of promulgate eligible lists to be certified Assistant Chief of Fire. as of eligible December 1985. The

b. Sixteen rank resulting lists from the 1985 examina- of Battalion Chief. shall remain in years. tions effect for two 14) 12) grade shall contin- Should more Seniority within candidates ap- qualify promotion by the date as a result of ue to be determined determining three purposes of examinations referred pointment. For to herein receiving than ranking persons subject would be seniority day, same se- virtue of the appointment on the terms of this decree such their re- promoted their individuals shall niority upon shall determined be based eligible eligible list from their spective ranking ranking. promo- on the list No made. For promotion was tions shall be made or which such withheld based seniority determining the racial purposes of considerations other than as coupled appointment required comply persons those with the terms of this Decree, their se- decree. pursuant to this upon the order of niority shall be based 19, 1983, January On the district court di- eligible list appointment their parties objected pro- rected all who ranking on the of their actual regardless posed objec- consent to submit their appointed eligible Any Lieutenants list. writing tions in why and to show cause provi- pursuant to the in 1984 shortfall approve proposed should not de- Paragraph 9 shall be the most sion of objection cree. Local 93 filed a formal list, from that and shall appointees senior which it reiterated its “absolute and total among according ranked themselves objection quotas____” to the use of racial respective ranking their on the 1984 January On the district court list. adopted proposed consent decree. The 13) making promotional appoint- In documents, court first found that “[t]he ments in such numbers as are deemed testimony presented statistics and at the City, appropriate by the and consistent January April hearings and 1982 reveal a hereof, paragraph 15 Defendants pattern historical of racial discrimination in following minority rep- maintain the shall promotions in City of Cleveland Fire resentation incident to the administration Department.” The court then found that promotional exami- of the 1984 and 1985 plan incorporated the affirmative action Following provided nations for herein. proposed consent decree within was not eligible of the 1984 lists the certification light an unreasonable of this goals percent shall 20 for Assist- be Accordingly, discrimination. the court Chief, Chief, percent 10 for Battalion ant fair, adopted the consent decree “as a rea- percent Captain percent and 23 10 sonable, adequate and resolution of the during the duration of those Lieutenant claims raised this action.” Intervenor Following certification of the 1985 lists. appeals. goals percent eligible lists the shall be 20 Lieutenant 25 for the ranks above II. percent for the rank of Lieutenant dur- ing the duration of those lists. For the outset, City At the contends that after the 1981 examina- examinations standing appeal Local 93 has no tions, if there are less than a sufficient consent decree because the decree neither candidates on the any legal relationship number be- interferes with permit eligible settling parties lists to Defendants tween Local 93 and the nor herein, goals way. stated meet the binds Local 93 other Util- by ity be made Defendants as deter- Association New Jer- will Contractors 83, (3d Toops, by necessary sey, them to be for the Inc. v. 507 F.2d 85-86 mined Fire, Cir.1974). relationship, the the Division of Absent such a operation of effect, reasons, is, City Local 93 an ami- promotions shall be made from eli- such non-minority and there who has set forth the view gible candidates cus curiae that the affirma- carry-over to subse- of its members shall be no shortfall plan inappropriate. tive action quent examinations.

484 acknowledge appeala 909, (6th

We Cir.1983). F.2d 920 When may order not be challenged by presented ble proposed decree, with a consent by large every party world at or even district court must ascertain fair, the suit in it is entered. the settlement adequate It does not and reason- follow, however, party able. Id. at In making lacks stand this determi- nation, ing appeal entry consider, the court alia, of a consent decree must inter whether simply the affirmative formally plan because it is not bound or is rea- sonably objective related to the agreement. restricted of remedy- To have ing prior discrimination and standing, party aggrieved by must be whether the plan is fair and judicial reasonable to non-minori- appeals. action from which it De may ties who affected it. posit Bratton v. Guaranty Roper, National Bank v. Detroit, 878, (6th 704 F.2d 326, 333, 1166, 1171, 887 445 100 U.S. S.Ct. 63 Cir.), rehearing, 712 (1980); F.2d 222 Cardenas, L.Ed.2d 427 Machella v. modified — (6th Cir.1983), denied, U.S.—, cert. (5th Cir.1981). 659 F.2d 652 In addi (1984). S.Ct. 79 L.Ed.2d 168 tion, A this circuit has ruled that a consent may consent decree not embody an affirma- challenged only on the plan tive action unless the employer has ground provisions that its substantive un utilized minorities at a rate less than their lawfully infringe upon rights proportion in the relevant labor market. complainant. Memphis Stotts v. Fire De Williams, 720 F.2d at plan 921-22. The (6th partment, Cir.1982), F.2d — itself cannot discharge of non- U.S.—, grounds, reversed on other minority workers and replacement their (1984). 81 L.Ed.2d 483 with minorities. See United Steelworkers It well legally protected be that no Weber, 193, 208, America v. 443 U.S. interests of firefighters are (1979).1 L.Ed.2d 480 adversely affected this consent decree. also cannot create an absolute bar standing For purposes, this anal- to the advancement of non-minority' em- ysis places the cart before the horse. ployees. Finally, Id. the decree must be case, regardless of how moder- temporary in nature and must terminate preference given ate the plaintiff to the when the underutilization of minorities has class, and how modest the placed detriment been corrected. Id. Once the district class, the intervenor there will be approves decree, the consent its deci- some detriment to the group. latter Ac- sion will by be reviewed this court under cordingly, we hold that this intervening the abuse of discretion standard. party sufficiently aggrieved been 679 F.2d at 555. the district court’s standing order to have Local 93 does not contest the district challenge the consent decree on the court’s finding of racial discrimination and grounds unlawfully that it infringes upon thus deny does not the existence of a sub- rights the constitutional of the non-minori- stantial state interest in some remedial ac- ty firefighters. See Kirkland v. New York Bratton, tion. See 704 F.2d at 886. Local Department State Correctional Servic- contend, however, 93 does that this affirm- es, (2d Cir.1983), F.2d cert. ative plan action is — unreasonable because it denied, —, U.S. penalizes non-minority innocent firefight- (1984); Stotts, L.Ed.2d 230 679 F.2d at ers. 558-59. This circuit has repeatedly indicated III. simple reduction in non-minority “ex decree, A consent although pectations” found necessarily does not make a agreement parties, ed on an of the is a final consent decree unfair or unreasonable. judgment. Vukovich, Williams, Williams v. 720 F.2d at 922. Since non-mi- case, Although 1. Bratton, Weber is a title VII this court a fourteenth amendment claim. See analysis has used the Weber in its discussion of 704 F.2d at 887. legally protected mined necessary norities do not have a them to be for the operation Fire, promotions only interest could of the Division of which and employ- promotións such shall pursuant discriminatory made be made from eli- gible non-minority practices, legal candidates and ment it follows there shall carry-over be no shortfall will not be adverse- subse- rights non-minorities quent examinations. reasonable ly affected race- lawful promotional hiring conscious or remedies. Finally, plan the affirmative action will re Kirkland, at 1126. For the rea- 711 F.2d main in years, effect for four below, sons set forth we hold that plan indicates that the “is not intended to simply its district court did not abuse discretion balance, maintain racial but fair, finding consent decree Weber, to eliminate a manifest racial imbalance.” adequate. reasonable and 443 U.S. at 99 S.Ct. at 2730. plan Local 93 also contends that is promo The statistical evidence of unnecessary already because there exists practices Fire De tion within Cleveland entry-level plan affirmative action partment, City’s with the admis combined will, period “which within the time contem- past sion in the consent decree of discrimi plated by decree, operate naturally to hiring of minor nation minority representation increase within the ity firefighters, clearly established sub fire department’s upper ranks.” As the stantial state interest in some remedial ac minority firefighters increases, number of tion. The affirmative action em reasons, the Union the number of is, opin in the consent decree in our bodied officers will likewise increase. ion, fair and reasonable to the Bratton, firefighters. 702 F.2d reject We the argument that a dis relatively goals modest set forth in the trict court not authorize an affirma represent permissible plan and effective plan tive action to end the effects City means for the to achieve its constitu past simply racial discrimination because permissible tionally ends within the fore other measures may, over the course of Moreover, plan future. seeable does years, future achieve the same result. hiring unqualified minor reasoning entirely speculative Such too ity firefighters discharge given pattern the “historical of racial dis non-minority firefighters. plan also crimination

does not create an absolute bar Department.” Cleveland Fire The district non-minority employees. advancement court has determined that this affirmative During stage plan, pro the first all reasonably related to the by coupling made motions to be purpose correcting remedial the racial highest ranking non-minority minority firefighters’ supervisory imbalance in the eligible candidates based the relative ranks. The court has also determined that Thereafter, rankings. City the list must plan the will achieve this result without specified percentage minority maintain a trammeling the interests of the non-minori firefighters grade pursuant at each level ty firefighters. Upon careful considera promotions the administration of future ex tion, we hold that the district court did not plan provides, The also how aminations. in approving pro abuse its discretion the ever, percentages subject that these posed consent decree. num

modification if there is an insufficient IV. qualified minority candidates: ber case, hearing argument the after the 1981 ex- After oral in this For examinations aminations, Supreme if there are less than a suffi- the Court handed down its deci- Firefighters No. Local Union candidates on sion in cient number of 178b — Stotts, U.S.—, eligible permit Defendants to the lists to herein, (1984). the goals meet the stated L.Ed.2d 483 Concerned with Stotts, potential impact we ordered the will made Defendants as deter- propriety supplemental briefs ad- of their use thereafter.”2 The submit parties to case, effect, if in in- any, of on this consent decree this unlike the dressing the Stotts Stotts, considering supplemen- plainly the in junction After does not interfere appeal. briefs, has no any seniority rights. we conclude that Stotts tal with on this case. effect point Another of distinction removes this controversy in which pale altogether. The Stotts involved beyond case of Stotts laid in the employees ordered, would first be off in The district court Stotts over Department. prior A con- Memphis Fire objection City, seniority that the decree had instituted ignored executing sent in system layoffs. setting goals for the past discrimination expressly rejected any The Court minorities. promotion of hiring and previous construction of the consent decree id., “budgetary Due to a at 2581. required City lay- which would have shortfall,” id., City Memphis was off non-minorities first. See id. at 2585-86. many layoff personnel in of its forced to contrast, City In of Cleveland has including Depart- the Fire departments, agreed plan adopted in this case. City announced intention ment. The fact that this case involves a consent hired, a “last first layoff employees on injunction decree and not an makes City’s basis accordance with fired” legal inapplica- basis of the decision Stotts 2581-82. The dis- seniority system. Id. at ble. That cases like the one are City doing from so. enjoined trict court recog- different cases like Stotts was succinctly stated the Supreme Court opinion nized in the itself: Stotts the District as “whether issue Stotts Appeals Court of was of the view [T]he powers entering an exceeded its that the District Court ordered no more employees to be injunction requiring white City unilaterally than that off, applicable se- laid when the otherwise way adopting could have done an have called for the niority system would program. affirmative action Whether with less seniori- layoff employees of black City, public employer, could have omitted). (footnotes ty.” Id. at 2585 violating taken this course without alone, distinguisha- On the facts law is an issue we need not decide. The In the district ble from this case. that in this fact is case the took no court’s action had the direct effect of abro- such action and that the modification seniority system to the detri- gating valid imposed objec- over its In ment of workers. tion. case, integ- the consent decree assured the (footnote omitted). Id. at 2590 seniority system. In rity existing principally provi- relied on two greater past, employees seniority § 703(h) 706(g).3 of title sions slight advantage pro- given a were however, provisions, merely of these Both only point process. motional This is the power limit a court’s to award certain re- seniority system any bearing which a illegal. lief. Neither makes conduct is, seniority on this case. This benefit short, provide these sections a shield to by the consent decree. maintained action, employer defending a title VII Paragraph provides, five of the decree employee claiming not a sword to an part: “Seniority points will continue to be certain conduct violates title VII. promotion for the used as criteria for 11, 703(h) provides, part, Section specified Paragraph examinations employ not an being in the to that “it shall unlawful jurisdiction reserved determine, upon any party, practice” employer of the ment for an to differen- motion might yet any actions the district court take in the 2. Since the district court has not exercised power. under that reservation of jurisdiction future to "determine it reserved ... credit, seniority propriety" it is of use of respectively These sections are codified 42 as unnecessary, inappropriate, indeed to address 2000e-2(h) 2000e-5(g). § U.S.C. 42 U.S.C. §

487 employees tiate between on the basis of a rather limits what employer an may be seniority system, fide or merit “bona or a forced to do. quotations in § system earnings quanti- which by legislative measures from the history 706(g) of sup- ty quality production.”4 or port It does not our quotations conclusions. These employer required state that an to consistently make refer to limitations on a court’s short, such employ- power differentiations. an “require” to “order” or certain ac- § not, 703(h), by er does the mere force of employer; tion of an they do not address by failing violate title VII to adhere to the what action an employer may take volun- procedures permitted by that section. Stotts, 104 tarily. See S.Ct. at 2589-90:6 § must also

Similarly, 706(g) light be read in Web- merely provides er. order Weber held the court shall re employer that an does not “[n]o quire” an violate title VII employer give voluntarily to to an adopting a employee job who suffered adverse reasonable plan action race-conscious to increase if the action any employment, was taken “for reason even when the other than discrimination on account of has the overriding effect of seniority race, color, sex, religion, origin rights or national Weber, non-minorities. 2000e-3(a) 208-09, inor violation of section of this U.S. at 2729-30. Given terms, By very holding, title.”5 its this section Weber precludes any notion provides only power a limit on a court’s to title absolutely VII voluntary forbids employ award relief. It does not an employer forbid action an to the detriment of engaging er from seniority rights certain actions but work- 703(h) ate, include, may to, 4. Section reads in full: which but is not limited hiring employees, Notwithstanding any reinstatement or provision with or other of this pay (payable by subchapter, employer, without back it shall not be an unlawful em- employment agency, ployment practice employer organization, apply an or labor for as be, compensation, responsible different standards of or dif- the case for the unlawful terms, conditions, privileges employment practice), any ferent ployment pursuant or of em- equitable or other seniority to a bona fide or appropriate. relief as the court deems Back system, system merit earnings by quantity or a pay liability measures shall not accrue from a date quality production or years prior filing more than two employees or to who work in different loca- charge with the Commission. ings or amounts earnable with reasonable dil- Interim earn- tions, provided that such diffeerences [sic] not the result of an intention to discriminate igence by person persons or discriminated race, color, sex, religion, because or nation- against operate pay shall to reduce the back origin, employ- al nor shall it be an unlawful otherwise allowable. No order of the court practice employer give ment for and to shall the admission or reinstatement upon any professionally act results of de- union, of an individual as a member of a or test, veloped ability provided test that such reinstatement, hiring, or of an upon or administration the results is employee, payment individual as an or the designed, intended or used to discriminate any pay, him of back if such individual was race, color, religion, because of sex or nation- admission, suspended, expelled, refused or or origin. employ- al It shall not be an unlawful employment was refused or advancement or practice subchapter any ment under this suspended discharged or reason employér to differentiate the basis of race, other than discrimination on account of determining wages sex in the amount of the color, sex, religion, origin or national or in compensation paid paid employ- or to be 2000e-3(a) violation of section of this title. employer ees of such if such differentiation 2000e-5(g). See 42 U.S.C. provisions 206(d) authorized of section of title 29. construing 6. Stotts also relied on two cases 2000e-2(h). See U.S.C. § provisions these of title Teamsters v. United States, 431 U.S. 97 S.Ct. 52 L.Ed.2d 706(g) provides 5. Section in full: (1977), Transporta- and Franks v. Bowman respondent If the court that the finds Co., Inc., tion 424 U.S. intentionally engaged intentionally in or is (1976). L.Ed.2d 444 Both of these cases con- engaging employment practice in an unlawful powers cerned the remedial of a court in a charged complaint, the court en- coercive action. Neither case considered the respondent join engaging in such power employer implement voluntarily of an practice, employment unlawful and order hiring promotion plan. a may appropri- such affirmative action as 488 invalidating the of a in as ed consent decree ers. To read Stotts modification under title impermissible litigation resulting as if the

present Title VII order is sub silentio is to conclude Stotts (em- VII inconsistent with that statute.” Id. We believe that overruled Weber.7 added). event, phasis the Wright expressly addressed have Court would a decree which had case involved become that deci to overrule had it intended Weber patently inconsistent substantive sion. statute, underlying policy of the a situation different from the one now before this apparent- would far colleague dissent Our catego- language Wright if this case court. The from on ly agree that voluntary opposed to involving as rized as which the dissent relies does not bar a action, would not af- court-ordered Stotts adopting from a consent decree point disagree- decision. The fect our beyond provides relief that authoriz- it, whether, puts this as the dissent ment is underlying ed statute. by principles governed case “should be by Companies The rule contended for relief.” applicable court-ordered See depends overly reading literal post at 489. System Wright. Federation No. 91 v. prin- that those The dissent’s conclusion The statement that a district court’s “au- applicable propo- on the ciples are based thority adopt a consent decree comes may not em- sition that a consent decree only from the statute which the decree is provisions could not be ordered body intended to enforce” ... means wholly coercive action under by a court the focus of the court’s attention as- Although it is admitted that the title VII. sessing agreement pur- should be the directly faced Court in Stotts “was poses which the statute is intended to adoption question of whether with the serve, rather than the interests of each limited the remedies consent decree is party to the settlement.' being available under the statute en- a Better Citizens Environment v. Gor forced,” proposition which the 1117, 1118, such, (D.C.Cir. 718 F.2d “necessary to be a relies, dissent is said — 1983), denied, U.S.—, cert. postulate from which the Court reached its (1984) (citation 81 L.Ed.2d 373 omitt holding.” post at See 491. ed).9 Indeed, flatly other courts have re majority that the It is no means clear jected position: the dissent’s de “Consent Stotts ever reached conclusion. crees need not be limited to the relief that a majority quote System did Federa- provide court could on the merits.” See 642, 651, Wright, 364 U.S. tion No. 91 v. Lynn, 735 F.2d Sanson Committee (1961), 368, 373, 5 L.Ed.2d 349 (3d Cir.1984) (citing Pacific support its statement that “the District Ketchum, (11 Otto) Railroad v. U.S. impose authority Court’s a modification (1879)). 25 L.Ed. 932 also See wholly dependent a decree on the is not Sansom, (Garth, 735 F.2d at 1547 Circuit n. decree.” 104 S.Ct. at 2587 9. The (“the Judge, dissenting) consent decree majority says, nowhere prescribe beyond even that au strictly that consent decrees must conform statute”). thorized scope of relief available to a court in Moreover, action; if the meant to wholly merely coercive states said, disput- say that “a district court cannot enter a what the dissent believes it it is Indeed, above, 7. Stotts did not conclude that the district court’s as noted unreasonable, expressly injunction declined to address was but rather that it presented in cases like Weber and the impermissible whether it was reasonable or one. See 104 S.Ct. at 2590. Thus, voluntary apply employ- not. Stotts to plans plans er would mean that all such upheld a which con- 9. Gorsuch consent decree impermissible under title VII no matter how "beyond statutory provisions tained that went directly reading reasonable. This of Stotts is against challenge proprie- requirements” to its contrary to Weber. ty Wright. See 718 F.2d at 1125. under

489 KENNEDY, explain majority’s Judge, the statement Circuit dissenting. hard to to that the “it is reasonable believe In Firefighters Local Union No. — purpose the of the ‘remedy’, which it was Stotts, —, U.S. 104 S.Ct. provide, to would not exceed decree the (1984), Supreme L.Ed.2d 483 the Court held appropri- that are remedies bounds the fashioning that when relief for a violation VII, under Title at least absent some ate making Title VII court was limited to id., whole those found to express provision to that See have been victims of effect." past discrimination. Relief added). thus could not (emphasis at If it given merely membership be based in postulate” “necessary was a for Stotts that disadvantaged explic- class. The Court strictly consent decrees must conform to itly open left of whether the remedies, title then the court-ordered VII could, employer VII, violating without Title majority surely simply would have said so voluntarily adopt an pro- affirmative action discussing decree when whether initial gram offering benefits based on member- Instead, supported injunction. it be- ship disadvantaged class. 104 S.Ct. necessary lieved it to construe the decree majority at 2590. The reasons that since beyond not include remedies those which parties of the in present two case Finally, although order. agreed decree, entry of the consent this in ambigu- was somewhat Stotts voluntary case is identical to the three point, ous on this dissenters and Supreme situation Court declined to They unequivo- Stevens were not. Justice address but which is controlled rejected colleague’s position. cally our prior decisions of this Circuit. I dissent (Stevens, J., n. 3 104 S.Ct. at 2594 concur- language because the reasoning and (Blackmun, J., n. ring); id. at 2605 dis- Supreme Court Stotts indicate that the senting). present consent decree in the case should governed by principles applicable That looked to the limits of appli- court-ordered relief rather than those powers under title a court’s VII is purely voluntary cable actions. surprising, City strenuously since the ob In Stotts the Court reviewed a action. In jected to the court’s preliminarily enjoining District Court order essentially coercive and consen City Memphis following only. Accordingly, in name the Court sual seniority system laying established when analyze involving the case as did not volun firefighters. The off District Court had case, tary action. the decree earlier entered a consent decree for the voluntary action10 and reflects must purpose remedying pattern practice voluntary analyzed as a action case. of discrimination on the basis of race VII, nothing interpreted Since title as hiring in violation of Title Stotts,11 this consent decree and forbids rejected position, first VII. since, determined, already as we have see Circuit, accepted by injunction that the 484-85, proper is the decree supra did no more than enforce the consent de- recognized the standards in cases under cree. 104 at 2585-86. The Court Bratton, judgment of the agreed such as dis- that the in- then with this Circuit prevent junction is AFFIRMED. was not needed to a new trict court sure, (and judicial limits set in Weber those set in 10. To be a consent decree is a within the Bratton, not be inconsistent with the "order” cases such as where the fourteenth however, underlying thing, relevant), It is one statute. it no amendment does say that decrees must be consistent with the rights. legal non-minorities’ violence to quite say underlying statute and another to they in ev- must mimic court-ordered remedies reading of Stotts is 11. We also note our ery particular. decree had contained a If the Wygant Board Edu- consistent with v. Jackson rights which violated non-minorities’ cation, (6th Cir.1984). 746 F.2d 1157-58 plainly under title would have been in- with the statute. Since this consistent in VII, city’s layoff ty. The Court both Stotts and Team- since of Title violation § seniority VII, fide 706(g) to a bona pursuant on of Title plan was sters relied un- did not constitute system and thus that ordered to limits the relief be § 703(h) practice under employment lawful Title That section remedy a VII violation. Finally, at 2587. VII. 104 S.Ct. of Title part: provides in this Circuit’s reason- considered the Court of the court shall No order entry a consent decree of ing that of an individ- admission or reinstatement authority a court’s to not restrict should union, or the hir- ual as a member of a necessary to correct further relief order reinstatement, promotion or of an ing, Supreme Title VII. The past violation of employee, pay- or the individual as an because, argument rejected this also Court any pay, him if such ment to back Brotherhood relying on International admission, sus- individual was refused States, 431 U.S. v. United Teamsters em- pended, expelled, or or was refused (1977) and 52 L.Ed.2d 396 ployment or advancement or was sus- § if Title it concluded that 706(g) of discharged pended or for reason oth- plaintiffs trial and the gone had to the case discrimination____ the District proven discrimination had er than not have awarded based Court could § 2000e-5(g). language The 42 U.S.C. membership disadvantaged in “mere on applies equally well this section to at 2588-90. class.” S.Ct. Department’s promotional Fire Cleveland holding compels the conclusion that This layoff plan it did to the in system as Stotts gone to trial and the present if the case had in job system allocation Teamsters. or the proven pattern practice or plaintiffs had requires that The decree consent in in violation of discrimination firefighters promoted though even those VII, the District could not of Title Court firefighters may have been refused ad- equivalent provi- have ordered relief only non-discriminatory for rea- vancement Contrary the consent decree. sions of sons. suggestion, majority opinion majority’s Supreme 706(g)’s relied on Court 486-87, at this case cannot be distin- policy provide “to make-whole relief grounds on the that guished from Stotts seniority have actual victims of ille- abrogation of a those who been involved system this case does not. The con- while at gal discrimination.” S.Ct. gives in in effect sent decree this case provisions the consent decree 2589. The superseniority all minority firefighters over clearly provide make- case non-minority firefighters relief to those who have not been whole quotas purposes, least until certain at Many illegal discrimination. victims decree, promotions Before the reached. minority firefighters affected on a combination of factors were based promo- eligible had never been decree seniority included and examination entered, the decree was tion before requires that mi- scores. The decree now thus could not have been the victims nority firefighters pass the examina- who promotions. in If this case discrimination promoted tion be ahead of trial, therefore, gone to it is clear that had firefighters enti- who would otherwise be not have ordered the District Court could promotion by virtue of their seniori- tled to relief. such blanket promo- Each ty and examination scores. ease, list, question presented part seniority, on tion based split therefore, cannot be been into two. It therefore the District Court is whether “plainly that the consent decree does said adopt provisions in a consent could any seniority rights.” not interfere with remedy a Title VII violation purporting to authority no have had would importantly, rationale of the More gone the matter as a had order Supreme way is in no limit- Court trial. competitive that award seniori- ed to orders to this

The answer 364 U.S. 81 S.Ct. at 373.2 The opinion found Court’s quoted its decision United States footnote, In a the Court stated Stotts. Co., 106, 114-15, & 286 U.S. Swift that: (1932): 76 L.Ed. 999 “The authority impose the District Court’s result all one whether the decree has wholly is not modification a decree entered litigation been after con- sent____ Dis- dependent the decree. “[T]he reject argument We ... adopt authority Court’s to a trict’s [sic ] a decree entered consent is to be only from stat- consent decree comes the treated as a judicial contract and not aas which decree is en- ute the intended to 650-51, act.” 364 at U.S. 81 S.Ct. at 373. force,” parties’ from not the consent to Supreme The Court in Stotts was not System the decree. Federation No. 91 directly faced of whether 642, Wright, 364 v. U.S. 651 S.Ct. [81 adoption of a by consent decree is limited (1961). L.Ed.2d 5 349] the remedies available under the statute 2587 104 S.Ct. at n. 9.1 being however, did, enforced. The Court involved a suit System Federation proposition use the that a consent decree Act, brought Railway under the Labor necessary postulate so limited as a from prohibited employer which then discrimina- holding which Court reached its that against employees. tion non-union The de- modification of a objection decree over an fendants, unions, a railroad several is so limited. The dissenting three Justices agreed entry to of provid- a consent decree concurring and one Justice in Stotts inter- ing that railroad would not discriminate preted majority opinion as saying a against employees. non-union The statute provide consent decree cannot relief that permit was then amended to such discrimi- would be unavailable after trial. See shop. Upon a nation the form of union (Blackmun, J., 104 at n. 2605 9 unions, request of the the District Court (“The dissenting) analysis Court’s seems to modify refused to the consent decree to premised on the be view that a consent shop, a reasoning allow union that non-un- provide decree cannot relief that could not shops illegal ion were not and that trial.”); Stotts, be obtained at 104 S.Ct. at parties’ agreement should be enforced. (Stevens, J., 2594 3 concurring n. in the Supreme reversed, holding The Court (“The judgment) suggest seems to to to allow the consent decree continue that a consent decree cannot any- authorize protection unmodified “would be to render thing that would not permissible constitute way in no authorized the needs of safe- VIL”). relief under Title That five Justices rights.” guarding statutory 364 at U.S. joined opinion nonetheless of 648, at 81 S.Ct. 371-72. The Court rea- Court,3 cannot, despite knowing interpreta- of parties by giving soned that “[t]he consideration, purchase opinion, each other a tion of their indicates that equity continuing injunction.” court a Court meant what it said.4 principle previously recognized entry 1. This been curred before of consent decree "does not Vukovich, go power v. adjudicate this Circuit Williams 720 F.2d the court be- 909, Cir.1983): (6th contrast, parties”). 706(g), 923 "A consent decree tween the Section expressly power which seeks enforce statute a must consist- limits the order sought public objectives type ent with the at- a to be relief of certain under circumstances. by Congress.” tained O’Connor, joined opinion Justice who 3. Court, interpret System specifically agreement not I do Federation to voiced her entering application that before a consent decree a district with the Court’s VII to Title limit dispute proper court must resolve the merits of the modifications of the consent decree. J., (O’Connor, concurring). at 2 find that the terms of the consent decree would 104 S.Ct. n. 2593 appropriate in fact have constituted an remedial States, order. See & Co. v. United U.S. explain” 276 4. The finds it "hard to Swift 315, (1928) 72 L.Ed. 587 Court's failure in Stotts to note Title (failure actually oc- permissible establish that violation VII’s limitations on court orders 492 agreement, aspects there can no Supreme Court by the used

The rationale decree is not identical well to a con- doubt that consent equally as applies in Stotts following voluntary injunction to a action. to an decree as sent Title 706(g) of relied on The Court trial. purely volun differences between provides that order “[n]o plan tary affirmative action and a court-or employees not provide shall court” plan dered were made evident this Cir (Emphasis add- by discrimination. affected rehearing on v. cuit’s decision Bratton suggestion, majority’s ed.) Contrary to Detroit, (6th Cir.), F.2d 487-88, the consent decree in opinion (6th reh’g, 712 F.2d Cir. modified court.” clearly an “order this case 1983). non-minority employees In Bratton Vukovich, said Williams This Circuit voluntary affirmative action challenged (6th Cir.1983), F.2d “[a] plan. The District Court decree, final is also a consent incorporated upheld but face on its judicial order.” rehearing a on into decree. This Circuit ORDERED, recites, “IT THEREFORE IS city what the vacated the because DECREED,” and then AND ADJUDGED issue, not at required to do was should be defend- in what actions the explains detail necessarily and not coextensive with comply with required take ants city permitted to do. what the would agreed the That defendants the order. body adopting This Court reasoned the any make less does not entry of the order line plan “must remain the ‘front actor’ the an order. responsible plan’s opera for primarily the judi- the a adoption agreement of as F.2d 223. therefore tion.” 712 at Bratton consequences than decree has different cial my with conclusion that a is consistent agreement. voluntary compliance with the decree, it incorporates even when comply the decree is failure to Any plan voluntarily agreed affirmative through contempt proceedings, enforceable to, improper is nonetheless is unless it of contract. than a suit breach rather employer what the be re based on continuing juris- District Court retains remedy past as a discrimi quired to do modify interpret the decree. diction to and nation. rights affects the of The decree also § 706(g), language addition non-minority fire- firefighters’ and union relied on Title Supreme Court firefighter fighters. .non-minority A could history. quoted legislative The Court VII’s voluntary challenge city’s actions Humphrey: of Senator remarks grounds, VII but equal protection or Title allegations oppo- some Contrary to the collaterally challenging foreclosed title, nothing in it of this there is nents em- public a Under Ohio’s court decree. give any power to the Commis- that will law, bargaining effective ployees collective [hiring,] require court to sion or to (after the consent decree was April 1984 employees in [, promotion] or firing entered), city’s voluntary changes “quota” order to meet a racial might subject promotion policy to collec- a certain racial balance. achieve representa- bargaining with a certified tive §§ (quoting Cong.Rec. at 4117.01-.23. A 104 S.Ct. Ohio Rev.Code tive. (bracketed (1964)) Sen. Hum- words bargain duty city could avoid Court.) This phrey’s omitted seeking of a consent decree. adoption § 706(g) was clear that passage some makes it a consent decree does have While agreeing to the initial parties' were in during de- intentions its discussion whether the initial agreed is ruling. parties entire- Whether so supported decree. in Stotts the trial court’s cree ly question a court had than whether Majority opinion a different The statement 488. entering agreement by entirely power quoted by to enforce was made what a decree. discussion of within context power to limit intended court to actions, just

require scope certain AUTHORITY, TENNESSEE VALLEY impose. must remedies that a court Sec- Plaintiff-Appellee, 706(g) power tion thus limits v. quota-based pro- District Court to COMPANY, INC., EXXON NUCLEAR policy. motion Corporation, and Exxon voluntary pro- When a affirmative action Defendants-Appellants. VII, gram challenged under Title a court No. 83-5667. question: answer need one whether United Appeals, States program itself Title violates VII. This Sixth Circuit. is the addressed United Steel- Weber, workers 443 U.S. Argued Sept. 1984. (1979) 61 L.Ed.2d left unan- Decided Jan. swered Stotts. When court-ordered remedy prior for a VII Title violation is

challenged under Title two (1)

questions must be addressed: whether VII; remedy (2) itself violates Title the scope

whether is within permissible 706(g) under to correct

a Title VII violation. The in this

case has failed to address the second of questions. 706(g)

these Section in- does provide

deed rather “shield” than a action,5

“sword” a Title VII see majority

opinion at is precisely but a shield what case

the intervenors this need to chal-

lenge power the District Court’s to award

relief. Under the Court’s decision not enter relief of type embodied the consent decree in case. power

this Since the to enter a con- purporting

sent decree enforce a statute statute,

is drawn from it is incongru- approve goes

ous consent beyond scope permissible

far Accordingly,

under statute. the Dis- judgment adopting

trict Court’s the con-

sent decree should be reversed and the proceedings

case remanded for further opinion.

accordance part majority opin-

I concur in II

ion, standing. Otherwise, which concerns I

respectfully dissent. does, however, 706(g) provide Section a much relevant of whether a Title VII 703(h). type than different of shield does 706(g), violation has occurred. Section in con- 703(h) provides application trast, Section type limits the relief that be or- seniority system fide does bona not constitute dered once a has been violation established. employment practice, unlawful and thus is

Case Details

Case Name: Vanguards of Cleveland v. City of Cleveland, and Local Number 93, I.A.F.F., Afl-Cio, Intervenor-Appellant

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Apr 22, 1985

Citation: 753 F.2d 479

Docket Number: 83-3091

Court Abbreviation: 6th Cir.