Brotherhood of Midwest Guardians, Inc. v. City of Omaha

9 F.3d 677, 1993 U.S. App. LEXIS 27874, 63 Empl. Prac. Dec. (CCH) 42,649, 63 Fair Empl. Prac. Cas. (BNA) 185, 1993 WL 432769
CourtCourt of Appeals for the Eighth Circuit
DecidedOctober 28, 1993
DocketNo. 93-1278
StatusPublished
Cited by4 cases

This text of 9 F.3d 677 (Brotherhood of Midwest Guardians, Inc. v. City of Omaha) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Brotherhood of Midwest Guardians, Inc. v. City of Omaha, 9 F.3d 677, 1993 U.S. App. LEXIS 27874, 63 Empl. Prac. Dec. (CCH) 42,649, 63 Fair Empl. Prac. Cas. (BNA) 185, 1993 WL 432769 (8th Cir. 1993).

Opinions

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Plaintiffs below appeal from a ruling refusing to dissolve a consent decree entered almost thirteen years ago in a case complaining that the City of Omaha had engaged in a pattern of discrimination based on race in all [678]*678aspects of employment in the Omaha police department. The decree provided that it would expire “[u]pon defendants’ showing of achievement of the goals of this Decree and maintenance of those goals for a period of one year.” Because plaintiffs made the requisite showing in the court below, we reverse.

I.

At issue primarily in this case is the proper interpretation of the word “goals.” Appellants insist that the word refers specifically to those portions of the decree that deal with the percentage of minority representation in its work force that the appellants were specifically ordered eventually to achieve. Ap-pellees, on the other hand, urge us to hold that the word refers broadly to all the objects of the decree, in other words, to everything that the decree directed appellants to do. We recognize the plausibility of appel-lees’ posited construction, but, on balance, we believe that appellants have the better of the argument.

A.

First of all, we observe that the word “goals” is a narrow term of art, a word with a well-known and fixed technical meaning, in the context of affirmative action plans. It refers to numerical goals, actual employment figures that an employer is striving to achieve. See, e.g., 29 C.F.R. § 1607.17(3)(a), § 1608.4(c), § 1608.4(c)(1), § 1608.4(c)(2)(ii), and 41 C.F.R. § 60-2.12, § 60-2.13(e), § 60-3.17(3)(a), § 60-4.6. See also, e.g., Lilly v. City of Beckley, West Virginia, 797 F.2d 191, 195 (4th Cir.1986); Kilgo v. Bowman Transportation, Inc., 789 F.2d 859, 879, 879 n. 2 (11th Cir.1986); United States v. National Association for the Advancement of Colored People, Inc., 779 F.2d 881, 882-83 (2d Cir.1985), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986); and Equal Employment Opportunity Commission v. Local 638 ... Local 28 of the Sheet Metal Workers’ International Association, 753 F.2d 1172, 1186, 1188 (2d Cir.1985), aff'd, 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986). See also Local 28 of the Sheet Metal Workers’ International Association v. Equal Employment Opportunity Commission, 478 U.S. 421, 486 n. 1, 486-89, 106 S.Ct. 3019, 3055 n. I, 3055-3057, 92 L.Ed.2d 344 (1986) (Powell, J., concurring). In a decree such as this one, then, the legal mind (at least one thoroughly acquainted with this area of the law) will ■naturally be inclined to think immediately of numbers when it encounters the word “goals,” and that furnishes some evidence of the meaning intended by those who drafted the decree.

Second, almost everywhere that the word “goals” appears in the decree, it refers quite unequivocally to numerical targets. For instance, in paragraphs 8, 9, 10, and 11 of the order, the most detailed and specific part of it, the word “goal” or “goals” is used at least thirteen times. The “long-term goal” set there is the achievement of an overall work force that contains 9.5% black officers (more on this later), and the order continues by outlining certain “interim goals” of a numerical character that will contribute incrementally to the ultimate, long-term end. The only place in the order that the word “goals” might even colorably be interpreted to refer to the decree’s general objects is in paragraph 6, which deals with possible lawsuits against the City of Omaha for actions taken by it “pursuant to and in furtherance of the goals and intentions of this Decree.” Even if we were to concede, which we do not, that the reference here is not to numerical targets, the very uniqueness of this use of the word would provide further proof of the strength of appellants’ position.

B.

The district court identified some other portions of the order that it characterized as goals: An assertion that all parties share the goal of ensuring equal employment opportunity (paragraph 5); a direction not to engage in any act or practice that has the purpose or effect of discriminating against blacks (paragraph 6); an order not to retaliate (paragraph 7); an injunction to make all good-faith efforts to utilize black officers where they have not been used before (paragraph 12); and a direction to allow black officers equal access to training courses (paragraph 13). With the exception of the first of these [679]*679(which is no more than a polite preamble without objective substance, a declaration of goodwill), these parts of the decree do not create any substantive, objectively enforceable duties of a specific character that the general legal principle against discrimination had not already imposed by law. They tell the City of Omaha to do no more than it was already obligated to do and continues to be obligated to do. We think that it would be odd to describe these orders as goals of the decree, odder still to allow a dissolution of it if these goals were “achieved and maintained” for a year. The object of a dissolution is to free the obligated party from compliance with an order, something that cannot occur if these orders are construed as goals, for the law continues to constrain them to obey it. We note, moreover, that it would be impossible for the appellants to prove that they had obeyed the law for a year. On the other hand, it makes perfect sense to release someone from a decree after achieving a numerical goal and maintaining it for a year.

II.

Based on the evidence presented to it, the court below found that appellants had in fact met the numerical goals, but refused dissolution because they had not demonstrated that they had done the other things that the decree had directed. Appellees maintain, however, and appellants agree, that the court erred in finding what the numerical goals were. The court held that the decree required only that the City of Omaha achieve 9.5% black representation in its overall work force; both parties urge us to hold that the order mandated 9.5% black representation at each of the ranks in the police force. The parties assert, and we believe them, that they have consistently taken this position ever since the effective date of the decree. They further direct our attention to paragraph 8(b) of the decree, which provides, with regard to “promotional sworn positions” in the department, that “the interim goal shall be to appoint qualified blacks in at least the proportion that these groups are represented in the classes of employees eligible for promotion.” What this seems to mean is that if there were, say, 5% blacks at ranks eligible for promotion, then at least 5% of the promotions to lieutenant ought to be black over the period given to achieve the interim goal.

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9 F.3d 677, 1993 U.S. App. LEXIS 27874, 63 Empl. Prac. Dec. (CCH) 42,649, 63 Fair Empl. Prac. Cas. (BNA) 185, 1993 WL 432769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brotherhood-of-midwest-guardians-inc-v-city-of-omaha-ca8-1993.