Countie v. City of Houston

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 23, 2002
• Docket: 00-20414
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-20414

GREGORY P. COUNTIE; ET AL.,

Plaintiffs,

GREGORY P. COUNTIE, RENE CALDERON, MICHAEL MACHA, RICK HOLTSCLAW, NATIVIDAD VASQUEZ, ROBERT C. NELSON, AND CHRIS YORLOFF,

Plaintiffs-Appellants

VERSUS

CITY OF HOUSTON,

Defendant-Appellee. ----------------------------------------------------------------

___________________________ No. 01-20519 ___________________________

DOROTHY A EDWARDS; AFRO-AMERICAN POLICE OFFICERS LEAGUE; HOUSTON POLICE ORGANIZATION OF SPANISH SPEAKING OFFICERS; LIONEL AARON; BENNIE CONWAY; CLEMENT B CROSBY, JR; JOSE A GARCIA; RICHARD C GARCIA; MARIA L GUILLORY; ANTHONY R JAMMER; CHARLES A MCCLELLAND; SILAS MONTGOMERY, JR; CLYDE PHILPOTT; CARL WAYNE REED; RICHARD M SPENCER; BRUCE D WILLIAMS,

Plaintiffs-Appellees

CITY OF HOUSTON; ET AL.,

Defendants CITY OF HOUSTON,

Defendant-Appellee

HOUSTON POLICE PATROLMEN’S UNION, AND THE INDIVIDUAL PEACE OFFICERS IDENTIFIED IN APPENDIX A, an affiliate of the International Union of Police Associations AFL-CIO, Local 109; HARIL WALPOLE; FRANK L ADAMEK; JOE M ALDACO; WILLIAM E BAKER; T BARANKOWSKI; JERRY A BRISCOE; RONNIE P BROOKS; GREGORY P COUNTIE; J DEVEREUX; RUSSELL FEUSSEL; BARBARA GASTMYER; JAMES KLEIN; DONALD KLEPAC; STEVEN MCCREARY; DONNIE PARDUE; JAMES PRITCHARD; L N RACKLEY; J R ROBERTS; JACKIE SHALLINGTON; DENNIS SPRADLIN; STANLEY STEPHENS; B G WILLOUGHBY; THOMAS ZIELINSKI; JEFFREY E BICKEL; MONTY T BRADNEY; JEFFREY L HATFIELD; SCOTT A MORROW; ROY P MOODY; ARTHUR OSBORNE; CHERI A PAGE; VINCENT C RUSSO; W J WISSEL, JR; HOUSTON POLICE OFFICERS’ UNION,

Intervenors-Plaintiffs-Appellants

Appeals from the United States District Court for the Southern District of Texas (98-CV-1600 & 92-CV-2510) August 19, 2002

Before JOLLY, DeMOSS, and PARKER, Circuit Judges

PER CURIAM:*

In 1975 and 1976, two groups of plaintiffs brought suit

against the City of Houston, Texas, under the captions Kelley v.

Hofheinz and Comeaux v. City of Houston. The suits alleged, inter

alia, that the promotional examinations used by the Houston Police

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 Department (“HPD”) were racially discriminatory. Comeaux was

consolidated into Kelley and settlement discussions continued,

unsuccessfully, until 1983, when the suit became dormant for

several years. In 1992, a group of African-American and Hispanic-

American police officers moved to intervene in Kelley, alleging

that they had been harmed by racially discriminatory promotional

examinations for the ranks of Sergeant and Lieutenant in the HPD.

Ultimately, the district court directed those officers to file a

new lawsuit. They did so on August 19, 1992, under the caption

Edwards v. City of Houston. The remainder of the original Kelley

plaintiffs were then consolidated therein.

The Edwards action alleged that the examinations had the

effect of disproportionately excluding African-Americans and

Hispanic-Americans from promotion to Sergeant, and African-

Americans from promotion to Lieutenant, from 1982 onward. The

plaintiffs sued on their own behalf and on behalf of others

similarly situated or who would be competing for promotions to each

rank in the future. Settlement negotiations between the plaintiffs

and the City of Houston began in the fall of 1992 and culminated in

a proposed Consent Decree. Before a fairness hearing could be

conducted by the district court, various other police officer

groups sought to intervene, including the Houston Police

Patrolmen’s Union and others. The district court denied the motion

to intervene but allowed the putative intervenors to cross-examine

2 witnesses, present evidence, and raise objections to the proposed

Consent Decree during a fairness hearing.

On March 25, 1993, the district court certified a class

consistent with the plaintiffs’ complaint and entered a final

Consent Decree. The Consent Decree included, inter alia, the

provisions that (1) African-Americans and Hispanic-Americans who

took the Sergeant exam from January 1, 1982, to that date, and who

passed at least one such exam, would receive a total of 96 remedial

promotions; (2) African-Americans and Hispanic-Americans who took

the Sergeant exam from January 1, 1982, to that date, and who were

promoted after a discriminatorily long period delaying their

ability to compete for Lieutenant promotions, would receive five

remedial promotions to Lieutenant; and (3) African-Americans who

took the Lieutenant exam from January 1, 1982, to that date, and

who passed at least one such exam, would receive a total of five

remedial promotions.

Several of the putative intervenors appealed the Consent

Decree and the denial of their motion to intervene. A panel of

this court affirmed the district court. We then re-heard the case

en banc and concluded that the intervention should have been

allowed. See Edwards v. City of Houston, 78 F.3d 983 (5th Cir.

1996)(en banc). On remand, the district court converted the

Consent Decree into an interim order which permitted, but did not

require, the City of Houston to make remedial promotions in an

3 “acting capacity,” leading to full pay and recognition for the

promotions, but not seniority or retirement benefits. On February

19, 1997, the City of Houston created, by ordinance, 18 Sergeant

and two Lieutenant positions. In accordance with the Consent

Decree, 16 of the Sergeant positions were reserved for and filled

by African-American and Hispanic-American police officers.

In May 1998, non-promoted HPD members filed a new suit in

Countie v. City of Houston, claiming reverse discrimination. The

district court1 granted summary judgment to the City of Houston

concluding that the Countie plaintiffs could not prove their prima

facie case of discrimination because they were not qualified for

the positions and, alternatively, that their claims were barred by

42 U.S.C. §§ 2000e-2(n). See Countie, No. H-98-CV-1600 (S.D. Tex.

Mar. 30, 2000)(Order on cross-motions for summary judgment).

The Countie plaintiffs appealed. Before we heard oral

arguments, the district court in Edwards entered a final Consent

Decree, which made permanent the City of Houston’s 16 interim

promotions. See Edwards, No. H-92-2510 (S.D. Tex. Apr. 2,

2001)(Final Consent Decree). The Houston Police Patrolmen’s Union

and other interested parties then appealed that ruling.

We consolidated the various actions and heard oral argument

from each of the parties.

1 The Countie suit was also filed in the Southern District of Texas, Houston Division, but was presided over by a different district judge than in the Edwards proceedings.

4 We review a district court’s determination of a Title VII

Consent Decree for abuse of discretion. Williams v. City of New

Orleans, 729 F.2d 1554, 1559 (5th Cir. 1984). This is particularly

true where the district court has been involved in the negotiations

arriving at the proposed Consent Decree, such as by conducting

fairness hearings and hearing evidence presented by the parties and

intervenors. Id. at 1558-59. Although voluntary settlement of

Title VII employment discriminations suits is preferable, a

district court cannot summarily approve such a settlement without

making an independent decision concerning the fairness of every

provision in the Decree. Id. at 1559. “This requires a

determination that the proposal represents a reasonable factual and

legal determination based on the facts of the record, whether

established by evidence, affidavit or stipulation.” Id. When

third parties are involved, the effect of the Decree on those

parties can be “neither unreasonable nor proscribed.” Id. at 1560.

Based on our review of the opinion of the district court, the

briefs, and the record, and having heard oral argument, we are of

the opinion that the district court did not abuse its discretion.

For the reasons stated by the district court, we AFFIRM the Consent

Decree in Edwards. This affirmance renders MOOT any matter pending

in Countie.