Opinion
Civil No. 99-1048 (DWF/AJB).
July 27, 2001.
Mark Gehan, Esq., Collins Buckley Sauntry Haugh, St. Paul, MN, appeared on behalf of Plaintiffs.
James Moore, Esq., Minneapolis City Attorney's Office, Minneapolis, MN, appeared on behalf of Defendants.
MEMORANDUM OPINION AND ORDER
Introduction
The above-entitled matter came on for hearing before the undersigned United States District Judge pursuant to Defendants' motion for summary judgment and Plaintiffs' motion for partial summary judgment. In the Complaint, Plaintiffs allege that the City of Minneapolis' "affirmative action" program for increasing minority representation in the ranks of sergeants in the Minneapolis police force violates Title VII and the Equal Protection clause of the Fourteenth Amendment to the United States Constitution. For the reasons set forth below, Defendants' motion is granted and Plaintiffs' motion is denied.
Background
In 1982, the City of Minneapolis ("the City") granted authority to its Civil Service Commission ("the Commission") to implement a voluntary affirmative action program called "expanded certification." Expanded certification was defined as "certifying a number of additional eligibles up to or equal to the number certified under the Rule of 3, in addition to those certified under the Rule of 3." Civil Service Rule 8.03(B). The City authorized the Commission to employ expanded certification if "the Civil Service Commission finds . . . that there is a significant disparity between the proportions of women and/or total minorities in a job category and the proportion of women and/or total minorities in the appropriate labor market . . . ." Id.
The "Rule of 3" states that "the Human Resources Department will send the requisitioning department (certify) the names of the three top-ranking eligibles when there is a single vacancy. For each additional vacancy, one additional name will be sent (certified)." Civil Service Rule 8.03. As a result, the requisitioning department will always reject two people. Thus, if there are three openings, Human Resources will certify five candidates to the requisitioning department (three openings plus the two additional candidates), and the requisitioning department will determine which of those five will receive the jobs. Human Resources elects candidates based on rank (for example, the highest performers on a certification exam).
In December of 1982, the Commission concluded that it was appropriate to apply expanded certification to the hiring of police officers. First, the Commission determined that there was a significant disparity between the proportion of minorities in the police force and the proportion of minorities in the appropriate labor market. At the time, there were 35 minority sworn personnel, comprising only 5.16% of the police force. The Commission found that minorities comprised 13.3% of the total population of the City of Minneapolis, although minorities made up only 9.3% of the labor force. Because the Census historically has undercounted minorities, the Commission determined that the 13.3% figure most accurately reflected the appropriate labor market.
As the Plaintiffs note, even using the total labor force as the relevant labor market fails to account for age requirements, education requirements, and Police Officer Standard Training Board (POST) certification-all of which might affect the number of minorities in the community who are otherwise qualified to be police officers.
The Commission went on to determine that the noted disparity was the result of past discrimination in hiring practices. First, the Commission noted that, prior to 1975, the written exam used to select police officers was not validated by the EEOC; such written exams, the Commission observed, often had a disproportionate effect on minority applicants. Moreover, the Minneapolis Police Department ("the Department") had, historically, used a background check which disqualified potential candidates on the basis of arrests, rather than convictions; because of discrimination in the law enforcement process itself, such a background check standard had a disproportionate effect on minorities. The Commission also determined that the subjective element of both the background check and the oral interviews allowed discrimination to color the hiring process. Finally, the Commission noted an "immediate operational need for more minority police officers." The Commission explained:
This need is for a more representative minority presence on the Minneapolis police force as a means of improving law enforcement effectiveness because public cooperation and support are critical to effective crime prevention and solution. The Commission notes that a number of national studies have found that, in order to gain the general confidence and acceptance of a community, personnel within a police department should be representative of the community as a whole.
In November of 1994, the City approved application of expanded certification to the promotional ranks, including sergeants, within the police department. In making the decision to apply expanded certification to the promotional ranks, the Commission made no additional finding of disparity or discrimination. Rather, according to Ann Eilbracht Thompson, the Director of Human Resources for the City and the City's designee, the "Civil Service Commission assumed that since the police department is a closed department, the only way you can become a sergeant is to have been a police officer, that if there is underrepresentation [sic] in the ranks of police officer, there is necessarily then going to be underrepresentation up through the ranks." Eilbracht Thompson Depo. at 12.
In February of 1998, the Department submitted a request for candidates to fill nine sergeant vacancies. Ms. Thompson was, shortly thereafter, contacted by someone in the City's Affirmative Action Department with a request to employ expanded certification for that promotion process. Thus, Ms. Thompson certified a total of 18 candidates to fill the nine vacancies: the eleven candidates who were certified through the normal application of the "Rule of 3" and seven candidates certified through expanded certification.
The eleven regularly certified candidates included Plaintiffs Abbas, Karakostas, Johnson, Spencer, Sheldon, and Blake. On March 8, 1998, nine officers were promoted to sergeant. Those officers included five from the regular eligible list and four from the expanded certification list. The Plaintiffs were not promoted.
It is undisputed that, in the absence of expanded certification, four of these six Plaintiffs would have been promoted on March 8, 1998, and two of them would not have been promoted.
In April of 1998, the Department decided to promote four additional officers to the rank of sergeant. For this promotion class, expanded certification was not utilized; thus six candidates were certified to fill the four positions. Plaintiffs Abbas, Karakostas, Johnson, Spencer, Sheldon, and Blake were the six certified candidates. The Department promoted Plaintiffs Karakostas, Johnson, Sheldon, and Blake on May 10, 1998. However, the Department made their promotions retroactive to March 8, 1998, and provided them with back pay for the two months between the two promotion dates. Plaintiffs Abbas and Spencer were eventually promoted by the Department, on May 24, 1998, and October 18, 1998, respectively.
In June of 1999, the Department sought to promote nine officers to the rank of sergeant. Eleven candidates were certified through the regular process and a twelfth was certified through expanded certification. Plaintiff Dodge was one of the regularly certified candidates. The candidate certified through expanded certification was promoted, and Plaintiff Dodge was not. At the time this motion was submitted to the Court, Plaintiff Dodge had still not been promoted.
Discussion
1. Injunctive Relief
The Plaintiffs have asserted a claim for injunctive relief, specifically requesting the Court to enjoin enforcement of the Commission's policy of applying expanded certification to the promotion process. The expanded certification program, on its face, is of limited duration: it expires when the 13.3% mark is reached, signaling that past discrimination has been remedied. The Plaintiffs note that, as of the first quarter of 1999, the 13.3% threshold has been met for the rank of sergeant. Thus, under the explicit terms of the policy, the policy is now defunct.
As adopted by the Commission, the plan allows for "expanded certification of minority candidates until the 13.3% goal is met . . . ." (Emphasis added.)
Plaintiffs suggest that the Commission will, nevertheless, continue to utilize the policy. First, they note that the expanded certification program was used in the hiring of police officers in the recent past, despite the fact that the 13.3% threshold was exceeded between 1992 and 1994; but the application of the expanded certification to the hiring of police officers is not an issue before the Court. Second, Eilbracht Thompson testified that, in the wake of this event, she does not know what the Commission will decide to do. However, there is no evidence that the Commission will, in fact, continue actually to apply the expanded certification program now that the threshold has been met or that it will seek to reimplement the policy.
As Plaintiffs note, affirmative action programs may only be used constitutionally to attain a racially balanced workforce, not to maintain that racial balance after the past discrimination has been "corrected." See Johnson v. Transportation Agency, Santa Clara County, Cal., 480 U.S. 616, 639-40 (1987).
The Plaintiffs' observation that the Commission has taken no steps to repeal the policy is irrelevant as the policy contains the functional equivalent of a self-enforcing "sunset" provision so that it expires naturally, without repeal. The policy applies only until the 13.3% threshold is met, and then, by its own terms, it ceases to be.
Accordingly, based upon the record before the Court, the policy at issue is defunct, and any request for injunctive relief is thus rendered moot.
2. Standing
Defendants challenge the standing of the Police Officers' Federation of Minneapolis; Plaintiffs Karakostas, Johnson, Sheldon, and Blake; and Plaintiffs Spencer and Abbas.
A. Police Officers' Federation of Minneapolis
An organization which has not suffered a direct harm may nevertheless assert representational standing on behalf of its members. See Warth v. Seldin, 422 U.S. 490, 511 (1975). An organization may assert representational standing when: (1) its members would have standing to sue in their own right; (2) the interests or issues involved in the litigation are germane to the organization's purpose; and (3) neither the claim nor the relief sought require the participation of individual members of the organization. See Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977).
Where, as here, the organization seeks to advance the interests of some of its members to the detriment of others, courts have ruled that the organization lacks standing because it fails the third prong of the Hunt test. See Associated Gen. Contractors of North Dakota v. Otter Tail Power Co., 611 F.2d 684, 691 (8th Cir. 1979) ("some [members] stand to benefit from working on the project under the Agreement [being challenged] and still others will be hurt by not being able to do so"); Maryland Highways Contractors Ass'n, Inc. v. State of Maryland, 933 F.2d 1246, 1253 (4th Cir. 1991) (organization could not challenge constitutionality of affirmative action plan where some organization members benefitted from the plan while others would benefit from its demise); but see Associated Gen. Contractors of California, Inc., v. Coalition for Economic Equity, 950 F.2d 1401, 1408 (9th Cir. 1991) (refusing to extend the third prong of the Hunt test to require unanimity of interests). Given the obvious and severe conflict of interest between the Police Officers' Federation's minority members and non-minority members, the Court finds that the Police Officers' Federation lacks standing to pursue the litigation.
Moreover, apart from the apparent conflict, an organization may only assert representational standing to the extent that it seeks injunctive relief. As noted above, the Plaintiffs' claims for injunctive relief are moot, and, therefore, the organization lacks standing.
B. Plaintiffs Karakostas, Johnson, Sheldon, and Blake
Plaintiffs Karakostas, Johnson, Sheldon, and Blake were passed up for promotions on March 8, 1998, in favor of minority candidates placed on the candidate list through the expanded certification process. These Plaintiffs, however, were promoted on May 10, 1998, and the City backdated their promotions to March 8, 1998, and awarded them back pay to that date. Defendants argue that these Plaintiffs have thus suffered no actionable injury.
The Plaintiffs argue that these four officers are disadvantaged in terms of seniority as a result of the delay in promoting them. However, there is no indication that the seniority ranking as among sergeants all promoted at the same time has anything to do with the relative ranking of those sergeants within the promotional process; rather, the relative seniority standing appears to be based primarily on alphabetical order. Moreover, these Plaintiffs have not demonstrated that they are now or are likely ever to compete for overtime or shifts with the minority sergeants now ranked slightly above them on the seniority list. The Court agrees with Defendants that these alleged injuries are entirely too speculative to support standing by themselves.
Plaintiffs further argue that these named Plaintiffs should be allowed to pursue injunctive relief and "other compensatory damages they asked for in the Amended Complaint." Plaintiffs' Memorandum at 33. However, Plaintiffs fail to identify the legal or factual basis for any other compensatory damages, and, as discussed above, the Plaintiffs' claims for injunctive relief are moot. Plaintiffs Karakostas, Johnson, Sheldon, and Blake thus do not have standing to assert their individual claims.
C. Plaintiffs Spencer and Abbas
Finally, Defendants allege that Plaintiffs Spencer and Abbas have not and cannot demonstrate that they would have been promoted earlier but-for the expanded certification program. The Court agrees with the Plaintiffs that there are genuine issues of material fact which preclude summary judgment on this issue; at a minimum, these Plaintiffs have made colorable allegations of sufficient injury to support their claim of standing to sue.
3. Summary Judgment
The parties agree that the fundamental dispute-whether the expanded certification process as applied to the promotional ranks of the Minneapolis Police Department passes constitutional muster-is a question of law which should be resolved on a motion for summary judgment. If the Plaintiffs prevail on this issue, they concede that the issues of damages and causation present questions of fact which must be resolved by a jury.
A. Summary Judgment Standard
Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court must view the evidence and the inferences which may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Enterprise Bank v. Magna Bank of Missouri, 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has stated, "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to 'secure the just, speedy, and inexpensive determination of every action.'" Fed.R.Civ.P. 1. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Enterprise Bank, 92 F.3d at 747. The nonmoving party must demonstrate the existence of specific facts in the record which create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Krenik, 47 F.3d at 957.
B. Strict Scrutiny
The parties agree that expanded certification is a race conscious policy and therefore subject to strict scrutiny. A voluntary affirmative action plan will survive strict scrutiny only if the plan serves a compelling government interest and is narrowly tailored to further that interest. See, generally, Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986). Plaintiffs allege that the expanded certification plan fails both of these prongs.
As Defendants note, the Plaintiffs also challenge the policy under Title VII; under Title VII, the Defendants' burden is less exacting. Because the Court finds that the Defendants meet their burden under Equal Protection analysis, the Court need not address whether the policy also passes muster under Title VII.
1. Compelling Government Interest
Plaintiffs raise a number of arguments challenging Defendants' asserted "compelling government interest" of remedying past discrimination. The Court will address each of these arguments in turn. First, Plaintiffs allege that Rule 8.03(B), which empowers the Commission to impose expanded certification, is invalid because it allows the Commission to resort to affirmative action programs to remedy "societal discrimination"; as Plaintiffs note, remedying societal discrimination cannot justify imposition of a race-based classification by a state actor. See Wygant, 476 U.S. at 274. However, it is not at all clear that the language of Rule 8.03(B) actually provides for affirmative action in the face of societal discrimination alone. The specific language at issue requires the Commission to find "that the under-representation of women and/or total minorities and/or persons with a disability is the result of past discriminatory employment practices, regardless of whether those practices were practices of the City of Minneapolis or practices elsewhere in society that relate to this job category . . . ." The requirement specifically requires the Commission to identify past discriminatory employment practices, and, to the extent that "practices elsewhere in society" are referenced, the requirement is that those practices "relate to this job category." This modifier would seem to tie the finding of past discrimination firmly to the City's hiring practices. Moreover, even if the rule could be read to allow unconstitutional affirmative action programs-designed solely to address societal discrimination-that is certainly not how the rule has, in fact, been applied by the Commission.
The Court interprets this provision to relate to hiring practices which are, on their face, neutral, but which, because of discrimination elsewhere in society, have a disparate impact on minorities.
Indeed, the Commission's findings of fact supporting the decision to adopt expanded certification with respect to the Department identify very specific past hiring practices, all based on the actions of the City or Department, which have resulted in under-representation of the minority population on the police force (and, consequently, within the rank of sergeant). Second, the Plaintiffs challenge whether the Defendants had a sufficient factual predicate upon which to base the determination of past discriminatory employment practices. The Plaintiffs note that the Defendants failed to engage in rigorous analysis of the apparent statistical disparity, to determine, for example, whether the disparity is statistically significant. The Plaintiffs note that Courts should use caution in allowing mere statistics to justify a race-conscious employment practice. See Maryland Troopers Ass'n, Inc. v. Evans, 993 F.2d 1072 (4th Cir. 1993) (finding that statistical disparity alone was insufficient to justify a finding of past discrimination). Here, however, the statistical analysis is only one factor in the Commission's decision; the finding of past discrimination is also premised upon a number of specific, suspect hiring practices.
Further, Plaintiffs challenge Defendants' analysis of racial disparity on the basis that, Plaintiffs allege, Defendants employed the wrong "relevant labor market" for purposes of comparison. Plaintiffs contend that Defendants should have considered other demographic factors-such as age and education-in determining the percentage of minorities in the relevant labor market. At a minimum, Plaintiffs allege that Defendants should have used only the "labor force"-those people ready, available, and actively seeking work-to determine the "target" percentage of minorities. The Court disagrees.
The labor force statistic cited by Defendants, that minorities represented only 9.3% of the labor force in Minneapolis in 1982, fails to consider those same demographic characteristics that Defendants urge Plaintiffs to adopt: age and education. There is no evidence to suggest that the 9.3% figure is any more accurate than the 13.3% figure in reflecting the percentage of minorities among that class of people who meet the age, education, and other requirements to become a police officer in Minneapolis. "[A]bsent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a workforce more or less representative of the racial and ethnic composition of the population in the community from which employees are hired." Int'l Bhd. of Teamsters v. U.S., 431 U.S. 324, 340 n. 20 (1977); see also Paradise v. Prescott, 585 F. Supp. 72, 75 n. 2 (M.D. . Ala. 1983) (cited with approval, United States v. Paradise, 480 U.S. at 179) (using the percentage of African-Americans in the population at large as the relevant labor market for hiring police officers).
Next, the Plaintiffs challenge the Defendants' proffered compelling government interest on the basis that the Commission made findings of past discrimination with respect to hiring police officers, but failed to produce evidence of discrimination in promotion. The Supreme Court has rejected such a contention in United States v. Paradise, 480 U.S. at 168. There, as here, discriminatory hiring practices for entry-level positions had necessary implications for the promotional ranks. It is not the promotion process itself which is, or ever was, discriminatory; it is the hiring process for entry-level positions. But one effect of that past discrimination is a paucity of minorities in the promotional ranks. That is sufficient to justify the extension of expanded certification to those ranks, to remedy the lingering effects of past discrimination.
Finally, although the Defendants do not emphasize the point, the record indicates that the Defendants were motivated by two compelling government interests: (1) to remedy past discrimination in employment practices and (2) to promote effective law enforcement by securing public cooperation and support. The second compelling government interest is, undoubtedly, more controversial than the first. See, e.g., Gratz v. Bollinger, 122 F. Supp.2d 811, 816-822 (E.D.Mich. 2000) (provides a comprehensive discussion of the controversy surrounding the notion of diversity as a compelling government interest in and of itself, and ultimately concludes that, in the context of higher education, diversity is a compelling government interest).
In the context of a police force, particularly one with an uneasy reputation for racial profiling and discrimination in law enforcement, promoting diversity within the department is a compelling end in its own right. See Wygant, 476 U.S. at 314 (Stevens, J., dissenting) ("in a city with a recent history of racial unrest, the superintendent of police might reasonably conclude that an integrated police force could develop a better relationship with the community and do a more effective job of maintaining law and order than a force composed only of white officers"); Detroit Police Officers' Ass'n v. Young, 608 F.2d 671, 695-96 (6th Cir. 1979) (providing a comprehensive bibliography of studies demonstrating the importance of a diverse police force in effective law enforcement); NAACP v. Allen, 493 F. Supp. 614, 621 (5th Cir. 1974) ("This is a police department and the visibility of the Black patrolman in the community is a decided advantage for all segments of the public at a time when racial divisiveness is plaguing law enforcement" (citation omitted)).
Again, the parties do not discuss this issue at any length; the Court bases its discussion on the remark in the Commission's Findings of Fact regarding the "immediate operational need for more minority police officers." However, the Court notes the Department's long, public, and less than stellar record regarding race relations.
The Court's decision today does not rest upon the compelling government interest of promoting effective and legitimate law enforcement through increasing diversity in the police force. The compelling government interest identified by the Defendants and discussed by the parties-remedying past employment discrimination-is sufficient to support the Court's conclusion. But the Court finds that the Defendants were promoting an additional government interest, equally as important, when they embraced the expanded certification program: creating a police force in which the public, particularly minorities, have trust and which can thus operate effectively.
2. Narrowly Tailored
As the Supreme Court has stated:
In determining whether race-conscious remedies are appropriate, we look to several factors, including the necessity for the relief and the efficacy of alternative remedies; the flexibility and duration of the relief, including the availability of waiver provisions; the relationship of the numerical goals to the relevant labor market; and the impact of the relief on the rights of third parties.United States v. Paradise, 480 U.S. 149, 171 (1987); see also In re Sherbrooke Sodding Co., 17 F. Supp.2d 1026 (D.Minn. 1998) (using same factors in analyzing a voluntary, as opposed to court-ordered, affirmative action program).
First, the Court looks at the issue of duration. The Plaintiffs have argued that the plan is indefinite. As discussed above, the Court does not agree. By its terms, the policy at issue expires when the 13.3% threshold within the rank of sergeant is achieved. Based on the record before the Court, that milestone has passed, and the policy is now defunct. There is no evidence that the Defendants intend to continue utilizing the policy despite the fact that, by its own terms, it has expired. Accordingly, not only was the policy of limited duration, but that duration has ended.
The Court has discussed the issue of the relevant labor market elsewhere in this order. With respect to the remaining factors, the Court would simply note that the U.S. Supreme Court upheld an affirmative action program which, although court-imposed, was far more stringent than the one at issue here, finding it sufficiently flexible and unintrusive into the rights of third parties. See United States v. Paradise, supra. As in Paradise, this plan does not require the Department to promote unqualified minority candidates or to suspend promotions if there are no minority candidates to consider. Indeed, under this plan, the Chief of Police could decide to promote candidates from the "regular" certification list alone, and never actually promote anyone from the expanded certification list. This would seem to be the height of flexibility and a relatively low burden on third parties.
The final issue with respect to "narrow tailoring" of the remedial plan is the application of expanded certification to "minorities" without reference to specifically identified minority groups. The Plaintiffs cite City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) and Wygant, supra, for the proposition that affirmative action plans targeted at "minorities," without specific findings regarding individual minority groups, are unconstitutional. The Court believes that the Plaintiffs read too much into these holdings. Nothing in these cases suggests that such a failure is a fatal flaw in an affirmative action program. Rather, these cases both use the state actor's failure to differentiate between various minority groups as evidence that the state actor's compelling government interest was disingenuous (Crosan) or as one indication-among many-that the plan was not sufficiently narrowly tailored to withstand constitutional scrutiny (Wygant). Here, where the Court finds that the Defendants have amply demonstrated a compelling government interest and where the affirmative action plan is remarkably narrow in scope, the failure of the Defendants to parse out individual minority groups does not render the plan unconstitutional.
For the reasons stated, IT IS HEREBY ORDERED:
1. Plaintiffs' Motion for Partial Summary Judgment (Doc. No. 13) is DENIED;
2. Defendants' Motion for Summary Judgment (Doc. No. 18) is GRANTED; and
3. The COMPLAINT is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.