United States v. City of Miami ( 1999 )


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                     IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                          FOR THE ELEVENTH CIRCUIT
                                                           U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                            ________________________              11/17/99
                                                               THOMAS K. KAHN
                                   No. 98-4626                     CLERK
                            ________________________
    
                         D. C. Docket No. 75-3096-CV-JWK
    
    UNITED STATES OF AMERICA,
    
                                                           Plaintiff-Appellant,
    
    
                                        versus
    
    CITY OF MIAMI,
    
                                                           Defendant-Appellant,
    
    FRATERNAL ORDER OF POLICE,
    LODGE NO. 20,
                                                           Defendant-Appellee,
    
    BOARD OF TRUSTEES OF THE CITY OF MIAMI
    FIREFIGHTERS’ AND POLICE OFFICERS’
    RETIREMENT TRUST,
                                                           Intervenors-Appellants.
    
    
                           ________________________
    
                     Appeals from the United States District Court
                         for the Southern District of Florida
                           _________________________
                                (November 17, 1999)
    Before ANDERSON, Chief Judge, MARCUS, Circuit Judge, and MILLS*,
    Senior District Judge.
    
    MARCUS, Circuit Judge:
    
          This appeal is the latest chapter in a lengthy litigation saga over a 1977
    
    nondiscrimination consent decree between the United States of America, the City of
    
    Miami, and the Fraternal Order of Police, Lodge No. 20.           In this iteration, the
    
    Fraternal Order of Police (“Appellee”), on behalf of a class of white and Hispanic
    
    police officers, brought two civil contempt actions against the City of Miami for
    
    “reverse” race discrimination in its 1992 police officer promotion practices. The
    
    district court found that the City had discriminated on the basis of race in its “special
    
    certification” of several minority promotion candidates, resulting in the unlawful
    
    promotion of one black lieutenant and one black sergeant. As a result, the district
    
    court held the City in civil contempt of the 1977 consent decree. The district court
    
    then awarded broad “make-whole” relief to all “adversely affected” police officers,
    
    as if each of these officers actually would have received one of the two promotions
    
    in 1992.
    
          On appeal, the United States of America and the City of Miami (“Appellants”)
    
    do not challenge the district court’s finding of race discrimination or civil contempt.
    
    
          *
            Honorable Richard Mills, Senior U.S. District Judge for the Central District of
    Illinois sitting by designation.
                                               2
    The sole issue before us is whether the district court abused its discretion in fashioning
    
    broad “make-whole” relief for the entire officer class. After a thorough review of the
    
    record and the parties’ briefs, we conclude that the district court’s chosen remedy was
    
    excessive and that it should have divided the monetary value of the two promotions
    
    on a pro rata basis amongst the class of eligible candidates. We therefore vacate, in
    
    part, the judgment filed on March 13, 1998, and remand with instructions for its
    
    modification consistent with this opinion.
    
                                                I.
    
          The facts of this prolonged case began in 1975 when the United States of
    
    America sued the City of Miami, various City officials, and several police officer
    
    unions for discriminatory employment practices adversely affecting black, Hispanic,
    
    and female individuals in police hiring and promotion policies in violation of Title VII
    
    of the Civil Rights Act of 1964, the Fourteenth Amendment, and 42 U.S.C. §§ 1981
    
    and 1983. The United States and the City agreed to settle the case, and the district
    
    court approved a consent decree in 1977 over the objections of a police union, the
    
    Fraternal Order of Police (“FOP”). The consent decree required the City to establish
    
    promotional “goals” for protected minority groups.2
    
    
          2
           The decree contains the following relevant provisions:
    
                 1. The defendant City of Miami, its officials, agents . . . are
                                                3
          At the time, police promotion decisions were governed by a civil service rule,
    
    Ordinance No. 6945, known as the “Rule of One.” The rule required the City to hire
    
    and promote certified applicants rigorously based on their designated rank order on
    
    
                permanently enjoined and restrained from engaging in any
                act or practice which has the purpose or effect of
                unlawfully discriminating against any employee of, or any
                applicant, or potential applicant for employment with the
                City of Miami because of such individual’s race, color, sex,
                or national origin. Specifically, the City shall not refuse to
                hire, promote, upgrade, train, or assign any individual,
                discharge any individual, or otherwise discriminate against
                any individual as an employee or applicant for employment
                with respect to compensation, terms, conditions, or
                privileges of employment because of race, color, sex, or
                national origin.
                                           ...
    
                5. Goals
    
                In order to eliminate the effects of past discriminatory
                practices against blacks, Latins, and women, the City shall
                adopt and seek to achieve as its long term goal the
                participation at all levels throughout its workforce of
                blacks, Latins, and women approximating their respective
                proportions in the City’s labor force. . . . The purpose of
                this goal is to eliminate the substantial under-representation
                and uneven distribution of blacks, Latins, and women
                throughout the City’s workforce. . . .
    
                (b) Promotions
    
                Subject to the availability of qualified applicants,
                promotional goals shall be established for minorities . . . .
    
                                              4
    the eligible candidate register. This rank order was determined solely by the results
    
    of the civil service promotional exam. On April 17, 1978, the Justice Department
    
    wrote a letter to the Miami City Manager outlining how the City’s “Rule of One”
    
    adversely affected minority employees in violation of the consent decree. In July
    
    1979, the City amended its civil service rules, adopting Ordinance No. 8977 which,
    
    among other things, substituted a “Rule of Eight" for the previous “Rule of One.”
    
          Under the new rule, eight candidates must be certified for each vacant position
    
    by the City Director of Personal Management. The first five candidates must be
    
    chosen in rank order from the results of the promotional exam. However, the Director
    
    also has the discretion, as affirmative action needs dictate, to certify three minority
    
    officers by exam rank order. For each additional vacancy, two candidates are to be
    
    added to the certified candidate pool: the officer with the next highest overall test
    
    score and the minority officer with the next highest test score. In addition, the City
    
    also passed a “special certification” rule, Rule 8.7, that allows the Director to certify
    
    up to three additional candidates if special requirements of sex or domicile are
    
    involved, or additional “special qualifications” are required. All certified candidates
    
    must score high enough on the promotional exam to satisfy the City’s eligibility
    
    requirement. Once a list of eligible candidates has been certified, the Miami Police
    
    Chief conducts interviews with each certified candidate. The Chief then chooses his
    
    
                                               5
    promotions based on the interview and other subjective factors. A candidate’s written
    
    exam score plays no role in this final decision-making process.
    
          In 1981, we finally heard the FOP’s appeal of the consent decree. We approved
    
    the decree’s provisions pertaining to the City and the United States, but adjudged
    
    those provisions pertaining to the FOP invalid because the FOP had not consented to
    
    the decree. See United States v. City of Miami, 
    614 F.2d 1322
     (5th Cir. 1980),
    
    vacated in part, 
    664 F.2d 435
    , 438-39 (5th Cir. 1981) (en banc). On remand, the
    
    district court entered a consent order on April 4, 1983, to which the FOP voluntarily
    
    consented, that maintained in full force and effect the provisions of the earlier consent
    
    decree including the “Rule of Eight.” The City still employs the “Rule of Eight” for
    
    all police hires and promotions.3
    
          On March 24, 1992, a promotional register for the rank of police lieutenant was
    
    posted by Director Angela Bellamy based on the results of the written exam. On April
    
    
    
          3
            In 1983, the Miami Association of Firefighters, Local 587 challenged the
    City’s implementation of the “Rule of Eight.” The district court ruled that the union
    had signed the consent decree and therefore was bound by its terms, particularly
    including the “Rule of Eight.” The district court also determined that the “Rule of
    Eight” was a legitimate tool to remedy the effects of past City discrimination. Local
    587 appealed, but the appeal was dismissed for procedural reasons. See United States
    v. City of Miami, 
    2 F.3d 1497
    , 1500-01 (11th Cir. 1993). Because this litigation
    involves only the Police and not the Fire department, we limit our discussion of the
    history of all relevant litigation involving the Fire Department to the extent necessary
    to understanding the issues raised in this appeal.
                                               6
    8, Miami Police Chief Calvin Ross requested a certification list to fill sixteen police
    
    lieutenant vacancies. That same day, the Chief also requested in a memo that
    
    additional black candidates be “specially certified” for the position in accordance with
    
    Rule 8.7 to provide “positive role models and ethnic recognition.” At the time, two
    
    of twenty-nine lieutenants (roughly seven percent) in the Miami police department
    
    were black. On May 18, Director Bellamy ordered that a portion of the promotional
    
    exam be re-administered due to errors in the original exam. A new exam was given
    
    on May 28 and June 1. On June 19, a new eligible register was established. On July
    
    21, 1992, Police Chief Ross again requested Director Bellamy to issue a certification
    
    list to fill the sixteen vacancies. In a same-day memo, Ross also re-requested that
    
    additional black candidates be “specially certified” in accordance with Rule 8.7. The
    
    memo explained that black supervisors were needed to “understand and speak ” non-
    
    traditional English. It also noted that black supervisors were needed because many
    
    drug enforcement operations occurred in black neighborhoods, requiring supervisors
    
    who could “blend” into the environs and make “command-level decisions.”
    
           On July 23, three black male candidates were certified under the “special
    
    qualifications” requirement-- Roberson Brown, Jr., Bobbie J. Meeks, and Gerald L.
    
    Darling. Each of these candidates, based on their exam scores, would have been
    
    eligible under the Rule of Eight for certification even if no “special certification” had
    
    
                                               7
    taken place. All three received a promotion to lieutenant. However, as a result of the
    
    “special certification,” three additional minority candidates were made eligible for a
    
    lieutenant promotion: Alphonso Erving, Javier Mayor, and Melvin Uptgrow. One of
    
    these candidates, Erving, actually received a promotion. Erving would not have been
    
    eligible for promotion if the “special certification” had not occurred-- i.e., his test
    
    score was too low to be included in the normal certification pool of 38 candidates but
    
    was high enough to be included once the pool was expanded to 41 candidates based
    
    on the “special certification.” In the end, four white males, six Hispanic males, four
    
    black males (including Erving), one Hispanic female, and one white female were
    
    promoted to lieutenant.
    
          On November 25, 1992, Chief Ross requested Director Bellamy to add several
    
    Creole speakers through “special certification” to the eligible candidate register for
    
    five available police sergeant positions. Two Creole-speaking candidates were then
    
    added to an original candidate list of 16 persons: Gary Eugene, a black male ranked
    
    107th on the eligible register and Mario Roman, a Hispanic male ranked 77th on the
    
    eligible register. Eugene’s employment application recorded his Creole skills as
    
    advanced while Roman’s application recorded his Creole skills as beginner. The
    
    police chief selected Eugene over Roman for one of the sergeant positions.
    
    
    
    
                                              8
          In 1993, the FOP filed two civil contempt motions against the City for consent
    
    decree violations stemming from these police lieutenant and sergeant promotions.
    
    The FOP argued that the City had employed its “special certification” procedure to
    
    unlawfully select officer candidates solely on the basis of race. The first motion
    
    alleged that the City’s “special certification” of several black officers, in response to
    
    the Police Chief’s request for black lieutenants to supervise undercover operations in
    
    predominantly black neighborhoods, was a pretext for promoting lieutenants on the
    
    basis of race. The second motion claimed that the City’s “special certification” of two
    
    minority sergeant candidates, in response to the Police Chief’s request for Creole-
    
    speaking sergeants, was a pretext for promoting sergeants on the basis of race or
    
    ethnicity. Both parties agreed to have the motions resolved on the case record and
    
    submitted a joint statement of undisputed facts on March 14, 1997. The United States
    
    requested an evidentiary hearing on the merits of the motions but the request was
    
    denied.
    
          On March 13, 1998, the district court granted the FOP’s motions. In so ruling,
    
    the court interpreted the consent decree to prohibit the designation of race as a
    
    “special qualification” for promotion. The court then dismissed both City “special
    
    certification” reasons as being pretextual. With respect to the lieutenant promotions,
    
    the court specifically found that since lieutenants serve a supervisory rather than a
    
    
                                               9
    field capacity, there was no legitimate need to select candidates on the basis of their
    
    racial ability to “blend” into target communities. The district court also found that the
    
    City had made no showing of how lieutenant command functions required officers of
    
    a particular race. As a result, the court determined that the City improperly certified
    
    three black candidates out of forty-one total candidates, of which, one improperly
    
    received a promotion.
    
          With respect to the sergeant promotions, the district court found that ethnicity
    
    rather than Creole was the predominant “special qualification” for the “special
    
    certification” of two sergeant candidates. In its findings, the district court determined
    
    that police sergeants conducted their official responsibilities in English rather than
    
    Creole, and that the City had not tested sergeant candidates for language skills nor
    
    mentioned language in its advertisements for the sergeant promotions. The district
    
    court finally concluded that City civil service rules allowed for the temporary
    
    appointment of Creole-speaking sergeants if an emergency situation required it. One
    
    sergeant candidate, Gary Eugene, received a promotion after being improperly
    
    certified under the City’s “special certification” procedures.
    
          To remedy these certification violations of the consent decree and the
    
    concomitant promotion of one lieutenant and one sergeant, the district court ordered
    
    extensive “make-whole” relief for all police employees “adversely affected.” This
    
    
                                               10
    class includes the twenty-three lieutenant and twelve sergeant candidates eligible for
    
    promotion who were bypassed in favor of the two candidates improperly certified
    
    through the City’s “special certification” rule.4 All class members were awarded full
    
    backpay, retroactive seniority, a fifteen thousand dollar lump-sum pension payment,
    
    and a one rank promotion from their current positions. This relief was ordered despite
    
    
    
    
           4
            Because the district court’s order never precisely defines the “adversely
    affected” officer classes, we now clarify which officers may receive remedial relief.
    At one point, the district court’s order suggests, with respect to the sergeant class, that
    relief be granted to all persons ranked higher on the promotional register than Gary
    Eugene, who received one of the sergeant promotions after being improperly certified under the
    “special certification” rule. Eugene ranked 107th on the register based on his exam score. There
    were over seventy officers who ranked ahead of Eugene on the register who were not selected for
    one of the sergeant promotions. To the extent the district court order is read in this way, it
    constitutes a clear abuse of discretion. None of the officers ranking higher than Eugene, who were
    not certified under the Rule of Eight, were eligible for the sergeant promotion under the City’s civil
    service promotion rules. The City’s unlawful “special certification,” which resulted in the
    certification of Eugene, did not deprive any eligible sergeant candidates from being added to the
    qualified candidate pool. The City’s discriminatory practice merely added additional minority
    candidates to the pool of eligible candidates as already determined by the written exam. The district
    court order attempts to fashion “make-whole” compensatory relief to those officers who were
    adversely affected by the City’s discrimination. In the Title VII context, we have held
    unambiguously that “make-whole” relief is intended to recreate employment conditions that would
    have existed absent an employer’s discrimination-- i.e., to place “the injured party in the position
    he or she would have been in absent the discriminatory actions.” Walters v. City of Atlanta, 
    803 F.2d 1135
    , 1145 (11th Cir. 1986) (citing Albemarle Paper Co. v. Moody, 
    422 U.S. 405
     (1975);
    Nord v. United States Steel Corp., 
    758 F.2d 1462
    , 1470 (11th Cir.1985)). This holding draws
    support from the Supreme Court’s conclusion in Stotts that Title VII “provide[s] make-whole relief
    only to those who have been actual victims of illegal discrimination.” Firefighters Local Union No.
    1784 v. Stotts, 
    467 U.S. 561
    , 580 (1984). The only police officers who were actually harmed by the
    City’s discrimination were those officers who were “qualified” or eligible for the 1992 promotions
    according to the City’s “Rule of Eight,” and were passed-over in favor of the two ineligible officers.
    Twenty-three lieutenant and twelve sergeant officers fall into this group. Therefore, on remand, as
    we explain infra, we instruct that remedial relief only be granted to these thirty-five officers.
    
                                                     11
    the fact that only one lieutenant and one sergeant candidate obtained a promotion in
    
    1992 as a result of the City’s unlawful certification procedures.
    
                                             II.
    
          We review the district court’s remedial relief award pertaining to violations of
    
    the consent decree for an abuse of discretion. See Miranda v. B & B Cash Grocery
    
    Store, 
    975 F.2d 1518
    , 1534 (11th Cir. 1992); EEOC v. Guardian Pools Inc., 
    828 F.2d 1507
    , 1511 (11th Cir.1987).
    
          District courts enjoy “wide discretion to fashion an equitable remedy for [civil]
    
    contempt that is appropriate to the circumstances.” Guardian Pools, 828 F.2d at 1515.
    
    These sanctions may serve one of two broad purposes: (1) coercing the contemnor to
    
    comply with a court order, or (2) compensating a party for losses suffered as a result
    
    of the contemptuous act. See Jove Engineering Inc. v. IRS, 
    92 F.3d 1539
    , 1557 (11th
    
    Cir. 1996) (citing Guardian Pools, 828 F.2d at 1515). In serving these ends, a court’s
    
    civil contempt power is measured solely by the “‘requirements of full remedial
    
    relief.’” Citronelle-Mobile Gathering, Inc. v. Watkins, 
    943 F.2d 1297
    , 1304 (11th Cir.
    
    1991) (quoting Guardian Pools, 828 F.2d at 1515) (citation omitted)). However, a
    
    district court may not use the civil contempt power to impose what amounts to a
    
    punitive or criminal contempt sanction. See In Re E.I. Dupont De Nemours &
    
    Company-Benlate Litigation, 
    99 F.3d 363
    , 368 (11th Cir. 1996) (noting that it
    
    
                                             12
    “‘requires no citation of authority to say that a district court may not, even
    
    unwittingly, employ a civil contempt proceeding to impose what, in law, amounts to
    
    a criminal contempt sanction’”) (quoting Blalock v. United States, 
    844 F.2d 1546
    ,
    
    1560 n.20 (11th Cir. 1988) (per curiam) (Tjoflat, J., specially concurring)). A punitive
    
    or criminal contempt sanction may only be fashioned after many of the due process
    
    safeguards afforded to defendants in criminal proceedings--the right to counsel, the
    
    privilege against self-incrimination, the presumption of innocence, and the right to a
    
    jury trial in serious cases--are provided to an alleged contemnor. See Chandler v.
    
    James, 
    180 F.3d 1254
    , 1267 (11th Cir. 1999) (Tjoflat, J., specially concurring).
    
          In this case, the district court conducted a civil rather than a criminal contempt
    
    proceeding. The district court ordered sweeping “compensatory” relief designed to
    
    “make-whole” those police officers adversely affected by the City’s racially
    
    discriminatory certification procedures. Appellants do not challenge the district
    
    court’s findings of racial discrimination and civil contempt. Therefore, the sole issue
    
    before us is whether the district court’s broad remedial relief was an abuse of
    
    discretion. In answering this question, we draw on relevant principles of Title VII
    
    jurisprudence for evaluating “make-whole” compensatory relief.
    
          The clear purpose of “make-whole” relief in the face of unlawful
    
    discrimination, whether in the Title VII or civil contempt context, is to “‘recreate the
    
    
                                              13
    conditions and relationships that would have been had there been no ‘unlawful
    
    discrimination.’” See International Bd. of Teamsters v. United States, 
    431 U.S. 324
    ,
    
    372 (1977) (quoting Franks v. Bowman Transp. Co., 
    424 U.S. 747
    , 769 (1976)).
    
    Regrettably, no ex post method of fashioning remedial relief can ever truly recreate
    
    the past as it would have existed absent an employer’s discriminatory conduct.
    
    Nevertheless, in this case, we must attempt to discern how the 1992 police promotions
    
    likely would have proceeded in the absence of the discriminatory “special
    
    certification” procedures implemented by the City. In one respect, our task is clear.
    
    We know the qualified pool of eligible candidates, based on the promotional exam
    
    results, who were bypassed for promotion. All told, there were twenty-three certified
    
    lieutenant candidates and twelve certified sergeant candidates not promoted. We also
    
    know that one promotion for each of these ranks was received by a candidate who
    
    would not have been eligible absent the City’s discrimination. Therefore, it is plain
    
    that, in the absence of City discrimination, only one of these twenty-three lieutenant
    
    candidates and only one of these twelve sergeant candidates would have received a
    
    promotion.
    
          However, it is difficult, if not altogether impossible years later, to discern which
    
    of these candidates would have been promoted. The Miami Police Department
    
    utilized a wholly subjective interview process to make its final promotion decisions.
    
    
                                               14
    A candidate’s exam score played no role in his ultimate selection; it merely
    
    determined who would be “certified” or eligible for the final interview stage. Because
    
    of the subjective promotion process, the district court, quite apparently, could not
    
    identify which two officers, out of a total of thirty-five, should have received the 1992
    
    promotions, and therefore it opted to employ a classwide promotion remedy instead.
    
    Previously, we have held that a classwide remedy may be employed in such
    
    circumstances. We have explained in the context of remedial backpay relief that a
    
    classwide remedy is appropriate when fashioning an individualized remedy would
    
    create a “‘quagmire of hypothetical judgment[s]’” as to which individuals, out of a
    
    large class, should receive remedial relief. United States v. United States Steel Corp.,
    
    
    520 F.2d 1043
    , 1055 (5th Cir. 1975) (quoting Pettway v. American Cast Iron Pipe Co.,
    
    
    494 F.2d 211
    , 260 (5th Cir. 1974)).5 In endorsing this approach, we have recognized
    
    that the only other relief alternatives would be unpalatable: either (1) randomly
    
    selecting several individuals from a large class for full “make-whole” relief, or (2)
    
    awarding no relief at all because specific individuals deserving of a “make-whole”
    
    remedy could not be identified from a victim class. As a result, we have observed that
    
    remedial relief does not require “‘unrealistic exactitude,’” and that “‘uncertainties’”
    
    
          5
           Decisions by the former Fifth Circuit prior to September 30, 1981 constitute
    binding precedent in our circuit. See Bonner v. Prichard, 
    661 F.2d 1206
    , 1207 (11th
    Cir. 1981).
                                               15
    in the relief process “‘should be resolved against the discriminating employer.’”
    
    United States Steel, 520 F.2d at 1050 (quoting Pettway, 494 F.2d at 260-61) (footnote
    
    omitted)). However, at the same time, we have instructed that classwide remedies
    
    must strive for equity to both parties, and that the “key is to avoid both granting a
    
    windfall to the class at the employer’s expense and the unfair exclusion of claimants
    
    by defining the class    . . . too narrowly.” Pettway, 494 F.2d at 262 n.152.
    
          While we agree with the classwide approach employed by the district court
    
    under the facts of this case, we find that the scope of the remedy imposed plainly was
    
    overly broad. Simply put, the district court treated each bypassed candidate as if he
    
    had a one hundred percent probability of receiving a promotion absent the City’s
    
    discrimination. Each eligible promotion candidate received the full value of a 1992
    
    promotion including backpay, retroactive seniority, a fifteen thousand dollar pension
    
    payment, and a one rank promotion from their current position. However, the district
    
    court itself acknowledged that each candidate stood much less than a one hundred
    
    percent chance of promotion since it could not identify two individuals who would
    
    have been likely promoted absent the City’s discrimination. Based on mathematical
    
    probability alone, each lieutenant candidate stood only a one in twenty-three (or four
    
    percent) chance of promotion, and each sergeant candidate stood only a one in twelve
    
    (or eight percent) chance of promotion.
    
    
                                              16
          Given these very long odds, we conclude that the district court should have
    
    relied on a variant of the pro rata method for computing classwide remedial relief.
    
    This computation method awards each class member a proportional share of the full
    
    monetary value of the promotion for which they were eligible. In this case, each
    
    certified sergeant candidate not selected for the promotion would receive a one-twelfth
    
    share; while each certified lieutenant candidate not selected for the promotion would
    
    receive a one-twenty-third share. In the past, we have recommended this specific
    
    method when, even after reasonable effort, a court is unable to differentiate between
    
    class members for remedial relief purposes. See United States Steel, 520 F.2d at
    
    1055-56. In United States Steel, the former Fifth Circuit “commended” to the district
    
    court a pro rata methodology where there was clear proof of systematic race
    
    discrimination against a large class of black steelworkers but an unclear methodology
    
    for determining which specific individuals deserved backpay relief. See United States
    
    Steel, 520 F.2d at 1055-56. Several of our sister circuits also have recommended the
    
    pro rata method in similar circumstances.6 See Dougherty v. Barry, 
    869 F.2d 605
    ,
    
    
          6
            The only notable exception to this approach occurred in Taxman v. Board of
    Educ., 
    91 F.3d 1547
     (3d Cir. 1996), where the Third Circuit upheld full backpay relief
    to a teacher laid off as a result of a discriminatory school board affirmative action
    policy-- even though the plaintiff would have maintained only a fifty-fifty chance of
    retaining her job absent the discrimination. See id. at 1565-66. In deciding between
    two teachers of equal seniority and merit for one position, the school board used race
    to break the tie, rather than a coin toss. The court of appeals concluded that because
                                              17
    614-15 (D.C. Cir. 1989) (directing district court to employ pro rata method where
    
    eight plaintiffs would have competed, absent defendant’s discrimination, for two
    
    promotions); Ingram v. Madison Square Garden Center, Inc., 
    709 F.2d 807
    , 812 (2d.
    
    Cir. 1983) (vacating individual “make-whole” relief to a victim class that exceeded
    
    the number of actual vacancies and recommending pro rata method instead); Hameed
    
    v. International Ass’n of Bridge, Structural, & Ornamental Iron Workers, Local Union
    
    No. 296, 
    637 F.2d 506
    , 519-21 (8th Cir. 1980) (recommending classwide pro rata
    
    backpay award given difficulty of determining which individuals, out of 45 plaintiffs,
    
    would have received apprenticeships absent discrimination); Stewart v. General
    
    Motors Corp., 
    542 F.2d 445
    , 452-54 & n.7 (7th Cir. 1976) (favoring classwide pro rata
    
    award where defendant’s subjective promotion procedures made it impossible to
    
    fashion an individualized remedy). We find the factual posture of Dougherty
    
    particularly germane. In Dougherty, eight white firefighters received promotions as
    
    compensatory relief for the District of Columbia Fire Department’s racially
    
    discriminatory promotion practices, even though only two of the firefighters would
    
    
    
    the plaintiff had a fifty percent probability of retaining her position and the school had
    unclean hands as the discriminatory wrongdoer, it was within the district court’s
    discretion to award full backpay. See id. This case is distinguishable since it involved
    two individuals for one position, and a probability of retention (fifty percent) closely
    approximate to a more likely than not standard, rather than a very large class vying for
    only one position.
                                               18
    have received a promotion absent the discriminatory practices. The court of appeals
    
    vacated the award, since each class member stood only a one in four chance of
    
    promotion, and instead recommended that each firefighter receive a pro rata share of
    
    the promotions’ value. Dougherty, 869 F.2d at 614 (concluding that “in order to
    
    restore appellees to the position they would have occupied absent discrimination, the
    
    district court should have awarded each appellee a fraction of the promotions’
    
    commensurate value with the likelihood of his receiving one of the promotions”)
    
    (citation omitted).
    
          In this case, each class member stood a much slimmer chance of obtaining one
    
    of the two available promotions. Only one of twelve sergeant candidates (roughly
    
    eight percent of the sergeant class) and one of twenty-three lieutenant candidates
    
    (roughly four percent of the lieutenant class) actually would have received a
    
    promotion absent the City’s discrimination. In short, the district court’s award placed
    
    the officers in the class in a substantially better position then they would have
    
    occupied absent the City’s discrimination by dramatically inflating their actual
    
    chances of obtaining only one of two available positions. While cognizant of the need
    
    to compensate victims of discrimination, even where relief calculations are
    
    complicated by the size of the class, we conclude that “make-whole” remedial relief
    
    awards, at the very least, must be proportionate to a court’s best determination of the
    
    
                                              19
    actual compensatory losses of a class. In this way, we balance between our twin
    
    duties to fairly compensate discrimination victims and yet avoid punitive remedial
    
    relief awards.
    
          Under these facts, full remedial relief for all thirty-five officers--which is what
    
    the district court ordered--amounts to an unfair and sweeping windfall to the officer
    
    class and an abuse of the district court’s discretion to award remedial relief. Its
    
    estimated cost would be around nine million dollars.7 However, the estimated
    
    monetary value of the two lost promotions is only a little over five hundred thousand
    
    dollars. To be sure, the fashioning of remedial relief is a highly fact-specific inquiry
    
    best left to the discretion of district courts.   That said, the unambiguous goal of
    
    “make-whole” relief is to compensate persons who have actually suffered from
    
    unlawful discrimination for their actual compensatory losses. Therefore, remedial
    
    relief must be constructed with a close eye towards an employer’s likely promotion
    
    practices and those class members likely to have been promoted had there been no
    
    discrimination. See Ingram, 709 F.2d at 812 (observing that “remedial relief should
    
    
    
          7
            The estimated backpay differential is $68,000 for each lieutenant and $58,000
    for each sergeant, totaling around $2.2 million dollars. The lump-sum pension
    payments amount to $525,000 ($15,000 for each of the thirty-five officers). The City
    Retirement Trust also estimates that lost retirement benefits, for the entirety of an
    officer’s career, would amount to another $180,000 for each officer or $6.3 million
    dollars for the entire officer class.
                                               20
    be granted only to those class members who would have filled vacancies had there
    
    been no discrimination”). We find the nexus between thirty-five candidates and only
    
    two promotion slots far too disproportionate to sustain full remedial relief for the
    
    entire class.
    
           In fact, the amount awarded by the district court so exceeds the monetary value
    
    of the lost promotions that we can only interpret the award as punitive in nature. The
    
    “compensatory” civil contempt class award is eighteen times greater than the actual
    
    value of the two lost promotions. While we previously have recognized that the line
    
    between civil and criminal contempt sanctions is not “always clear,” Chandler, 180
    
    F.3d at 1267 (Tjolfat, J., specially concurring), and that we must draw such
    
    conclusions from “‘the character of the relief itself,’” International Union, United
    
    Mine Workers v. Bagwell, 
    512 U.S. 821
    , 828 (1994) (citation omitted), this
    
    “compensatory” award plainly is so excessive as to be punitive. Moreover, the district
    
    court’s award of thirty-five retroactive promotions, where absent the City’s
    
    discrimination only two additional promotions would have been available, could
    
    radically restructure the City’s police force by creating many more lieutenants and
    
    sergeants than the City sought fit to create under its own promotion policies. The very
    
    magnitude of this remedy risks reshaping the Police Department in a variety of ways
    
    unforseen and unintended by the district court.
    
    
                                              21
          We therefore vacate the award, and remand the matter to the district court.
    
    Because of the subjective nature of the City’s promotion process, the district court was
    
    unable to identify two individual class members who should have received the 1992
    
    promotions. On remand, we therefore direct the district court to award each certified
    
    officer candidate a pro rata share of the monetary value of the promotion for which
    
    they were eligible.
    
                                              III.
    
          In sum, the district court’s remedial award was excessive, and should have been
    
    limited to a pro rata division among those officers certified for the 1992 promotions.
    
    The twelve sergeant candidates should share, on a pro rata basis, the value of the
    
    sergeant promotion. The twenty-three lieutenant candidates should share, on a pro
    
    rata basis, the value of the lieutenant promotion. Accordingly, we vacate the district
    
    court’s award and remand.
    
          VACATED IN PART AND REMANDED.
    
    
    
    
                                              22
    

Document Info

DocketNumber: 98-4626

Filed Date: 11/17/1999

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (24)

Jove Engineering, Inc., In Re: , 92 F.3d 1539 ( 1996 )

Albemarle Paper Co. v. Moody , 422 U.S. 405 ( 1975 )

Franks v. Bowman Transp. Co. , 424 U.S. 747 ( 1976 )

Teamsters v. United States , 431 U.S. 324 ( 1977 )

Firefighters v. Stotts , 467 U.S. 561 ( 1984 )

Mine Workers v. Bagwell , 512 U.S. 821 ( 1994 )

Rush Pettway, Etc. v. American Cast Iron Pipe Company, ... , 494 F.2d 211 ( 1974 )

11-fair-emplpraccas-553-10-empl-prac-dec-p-10436-united-states-of , 520 F.2d 1043 ( 1975 )

13 Fair empl.prac.cas. 1035, 12 Empl. Prac. Dec. P 11,260 ... , 542 F.2d 445 ( 1976 )

22-fair-emplpraccas-846-22-empl-prac-dec-p-30822-united-states-of , 614 F.2d 1322 ( 1980 )

24-fair-emplpraccas-352-24-empl-prac-dec-p-31392-walee-abdul-hameed , 637 F.2d 506 ( 1980 )

Larry Bonner v. City of Prichard, Alabama , 661 F.2d 1206 ( 1981 )

27-fair-emplpraccas-913-27-empl-prac-dec-p-32328-united-states-of , 664 F.2d 435 ( 1981 )

32-fair-emplpraccas-641-32-empl-prac-dec-p-33710-henry-ingram , 709 F.2d 807 ( 1983 )

37-fair-emplpraccas-1232-36-empl-prac-dec-p-35166-michaele-cowart , 758 F.2d 1462 ( 1985 )

dennis-a-walters-jr-cross-appellant-v-city-of-atlanta-cross-appellee , 803 F.2d 1135 ( 1986 )

Equal Employment Opportunity Commission, Cross-Appellee v. ... , 828 F.2d 1507 ( 1987 )

C.W. Blalock, Jr. v. United States , 844 F.2d 1546 ( 1988 )

edward-f-dougherty-v-marion-s-barry-jr-as-mayor-of-the-district-of , 869 F.2d 605 ( 1989 )

citronelle-mobile-gathering-inc-citmoco-services-inc , 943 F.2d 1297 ( 1991 )

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