Jansen v. City of Cincinnati

977 F.2d 238, 1992 U.S. App. LEXIS 25612, 59 Empl. Prac. Dec. (CCH) 41,792, 64 Fair Empl. Prac. Cas. (BNA) 1655, 1992 WL 276988
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 13, 1992
DocketNos. 91-3498, 91-3499, 91-3500
StatusPublished
Cited by12 cases

This text of 977 F.2d 238 (Jansen v. City of Cincinnati) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jansen v. City of Cincinnati, 977 F.2d 238, 1992 U.S. App. LEXIS 25612, 59 Empl. Prac. Dec. (CCH) 41,792, 64 Fair Empl. Prac. Cas. (BNA) 1655, 1992 WL 276988 (6th Cir. 1992).

Opinion

KEITH, Circuit Judge.

The several appeals in the present action arise from the March 18, 1991, order from the Southern District of Ohio, 758 F.Supp. 451, which dissolved a portion of a 1974 consent decree entered into by the City of Cincinnati (hereinafter “the City”). The decree sets forth a plan for the recruitment, hiring, and promotion of minority fire division personnel. For the reasons stated below, we VACATE the order and REMAND the case to the- district court for further proceedings consistent with this opinion.

I.

The City, the Legal Aid Society and the Ohio Attorney General entered into a Consent decree that was approved by the United States District Court, Southern District of Ohio, in May 1974. The decree sets [240]*240forth various steps to be taken by the City for the purpose of integrating its Fire Division. The decree contains provisions regarding the advertisement of job openings to reach minority applicants, the recruitment, hiring, promotion of minorities within the Fire Division and overall record keeping. With respect to hiring, the City agreed to pursue an overall workforce composed of eighteen percent minorities. Paragraph 22 of the decree states in pertinent part:

Subject to the availability of qualified applicants, Defendants shall adopt and seek to achieve a goal of hiring sufficient numbers of qualified minority persons to achieve a work force composition which will not support any inference of racial discrimination in hiring. Such goal shall be deemed to have been achieved when at least eighteen (18) percent of the Division of Fire Personnel of the City of Cincinnati are minority persons. In order to reach this goal, Defendants shall adopt and seek to achieve a goal of hiring sufficient minority persons so that the personnel in the Division of Fire will be:
4.2% Minority by December 31, 1974
6% Minority by December 31, 1975
8% Minority by December 31, 1976
10.5% Minority by December 31, 1977
13% Minority by December 31, 1978
15.5% Minority by December 31, 1979
18% Minority by December 31, 1980
(emphasis added).

Paragraph 23 states further:

Defendants shall be deemed to have sought to achieve each stage of the work force composition goals when and as the above percentages of the Fire Division personnel are minority persons either on or within one month before or after the above dates; provided, however, that Defendants shall be deemed to have sought to achieve such stage of the work composition goals in good faith if at least forty (40) percent of the total fire recruit class for any given year consists of minority persons (emphasis added).

To achieve the hiring goals of this consent decree, the City has implemented a procedure which creates two lists for hiring consideration. The Fire Recruit Majority List consists of those non-minority candidates who have successfully completed all phases of the Fire Recruit selection process. The Fire Recruit Minority List consists of those minority candidates who successfully completed all phases of the Fire Recruit selection process. The City has taken sixty (60) percent from the majority list and forty (40) percent from the minority list to accomplish the stated forty percent objective of paragraph 23 of the Consent decree.

Paragraph 27 of the Decree further mandates the following:
Defendants shall use a system for promoting qualified minority persons within the ranks of the Division of Fire to achieve a goal of a work force composition which negates any inference of an unlawfully discriminatory promotion policy based on race.

The last sentence of the consent decree states: “At any time after the objectives of this decree have been achieved, the Defendants may move this Court, on due notice, for dissolution of the Decree.” The City has not moved the district court for dissolution of the consent decree and has indicated that it does not intend to do so. Accordingly, all of the terms of the Decree remained in effect at the commencement of this litigation. See Youngblood v. Dalzell, 123 F.R.D. 564 (S.D.Ohio 1989).

The Cincinnati Fire Division’s selection process is an extensive multi-step process to assess the qualifications of applicants. The total process consists of a written examination, a physical ability test, a medical examination, a background investigation, and a psychological evaluation. A score of seventy (70) or above on the written examination is passing. Each of the other components are scored pass/fail.

After the applicants successfully advance through the first five steps of the selection process, they are then placed on an eligible list and certified to the Fire Chief for consideration for hiring under the “Rule of Three” process of the Ohio Civil Service Commission. Ohio Rev.Code [241]*241§ 124.27. The Rule of Three permits the Fire Chief to select a candidate for hiring from the top three people on the eligible list. It does not guarantee employment to those ranking highest on a given eligibility list, but merely guarantees hiring consideration.

The three cases at issue herein were consolidated by orders of the district court due to the identical nature of the claims of the plaintiffs in all of the cases.1 All three classes of plaintiffs were white applicants for the position of fire recruit. They each claim they were wrongfully denied such positions in the recruit classes between 1988 and 1990. Plaintiffs argue principally that since they scored higher on the Civil Service examination than any of the minorities appointed under the terms of the Decree, they should have been hired. The plaintiffs sought relief in the form of immediate job placement in the fire department and backpay from the date of the alleged discrimination. We note that, of the fifteen plaintiffs in this consolidated action, nine have been hired by the Cincinnati Fire Division as recruits in subsequent recruit classes.

In addition, this Court previously granted the petition to intervene filed by a class consisting of black applicants and black employees of the Fire Division (collectively “Intervenors”)- The Intervenors claim that the City has engaged in racially discriminatory hiring practices in the past few years. See Jansen v. City of Cincinnati, 904 F.2d 336 (1990).

In the proceeding at bar, the district court made certain findings of fact and conclusions of law. The court first found that the “maximum goal of 18%” in the consent decree had been achieved in 1986. The district court then found that the implementation of the dual list was not authorized by the wording of the consent decree. Accordingly, the district court held: “Where a stated percentage of minority employment has been achieved for a substantial period of time, that portion of a Consent decree is at an end and may be terminated as to such hiring practices.” The district court then dissolved the hiring provision of the decree and held that this paragraph was severable from the rest of the decree.

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977 F.2d 238, 1992 U.S. App. LEXIS 25612, 59 Empl. Prac. Dec. (CCH) 41,792, 64 Fair Empl. Prac. Cas. (BNA) 1655, 1992 WL 276988, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jansen-v-city-of-cincinnati-ca6-1992.