Vanguards of Cleveland v. City of Cleveland, and Local Number 93, I.A.F.F., Afl-Cio, Intervenor-Appellant ( 1985 )

KENNEDY, Circuit Judge,

dissenting.

In Firefighters Local Union No. 1784 v. Stotts, — U.S. —, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984), the Supreme Court held that when fashioning relief for a violation of Title VII a court was limited to making whole those found to have been victims of past discrimination. Relief thus could not be given based merely on membership in the disadvantaged class. The Court explicitly left open the question of whether the employer could, without violating Title VII, voluntarily adopt an affirmative action program offering benefits based on membership in the disadvantaged class. 104 S.Ct. at 2590. The majority reasons that since two of the parties in the present case agreed to entry of the consent decree, this case is identical to the voluntary action situation the Supreme Court declined to address in Stotts but which is controlled by prior decisions of this Circuit. I dissent because the language and reasoning of the Supreme Court in Stotts indicate that the consent decree in the present case should be governed by the principles applicable to court-ordered relief rather than those applicable to purely voluntary actions.

In Stotts the Supreme Court reviewed a District Court order preliminarily enjoining the City of Memphis from following its established seniority system when laying off firefighters. The District Court had earlier entered a consent decree for the purpose of remedying a pattern or practice of discrimination on the basis of race in hiring and promotion in violation of Title VII. The Court first rejected the position, accepted by this Circuit, that the injunction did no more than enforce the consent decree. 104 S.Ct. at 2585-86. The Court then agreed with this Circuit that the injunction was not needed to prevent a new violation of Title VII, since the city’s layoff plan was pursuant to a bona fide seniority system and thus did not constitute an unlawful employment practice under § 703(h) of Title VII. 104 S.Ct. at 2587. Finally, the Court considered this Circuit’s reasoning that the entry of a consent decree should not restrict a court’s authority to order further relief necessary to correct a past violation of Title VII. The Supreme Court also rejected this argument because, relying on International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) and § 706(g) of Title VII, it concluded that if the case had gone to trial and the plaintiffs had proven discrimination the District Court could not have awarded relief based on “mere membership in the disadvantaged class.” 104 S.Ct. at 2588-90.

This holding compels the conclusion that if the present case had gone to trial and the plaintiffs had proven a pattern or practice of discrimination in promotions in violation of Title VII, the District Court could not have ordered relief equivalent to the provisions of the consent decree. Contrary to the majority’s suggestion, majority opinion at 486-87, this case cannot be distinguished from Stotts on the grounds that Stotts involved abrogation of a seniority system while this case does not. The consent decree in this case in effect gives minority firefighters superseniority over all non-minority firefighters for promotion purposes, at least until certain quotas are reached. Before the decree, promotions were based on a combination of factors that included seniority and examination scores. The decree now requires that minority firefighters who pass the examination be promoted ahead of non-minority firefighters who would otherwise be entitled to promotion by virtue of their seniority and examination scores. Each promotion list, based in part on seniority, has been split into two. It therefore cannot be said that the consent decree “plainly does not interfere with any seniority rights.”

More importantly, the rationale of the Supreme Court in Stotts is in no way limited to orders that award competitive seniority. The Court in both Stotts and Teamsters relied on § 706(g) of Title VII, which limits the relief that may be ordered to remedy a Title VII violation. That section provides in part:

No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination____

42 U.S.C. § 2000e-5(g). The language of this section applies equally well to the Cleveland Fire Department’s promotional system as it did to the layoff plan in Stotts or the job allocation system in Teamsters. The consent decree requires that minority firefighters be promoted even though those firefighters may have been refused advancement for only non-discriminatory reasons.

The Supreme Court relied on § 706(g)’s policy “to provide make-whole relief only to those who have been actual victims of illegal discrimination.” Stotts, 104 S.Ct. at 2589. The provisions of the consent decree in the present case clearly provide make-whole relief to those who have not been victims of illegal discrimination. Many of the minority firefighters affected by the decree had never been eligible for promotion before the decree was entered, and thus could not have been the victims of discrimination in promotions. If this case had gone to trial, therefore, it is clear that the District Court could not have ordered such blanket relief.

The question presented by this ease, therefore, is whether the District Court could adopt provisions in a consent decree purporting to remedy a Title VII violation that it would have had no authority to order as a remedy had the matter gone to trial.

The answer to this question may be found in the Supreme Court’s opinion in Stotts. In a footnote, the Court stated that:

the District Court’s authority to impose a modification of a decree is not wholly dependent on the decree. “[T]he District’s [sic ] Court’s authority to adopt a consent decree comes only from the statute which the decree is intended to enforce,” not from the parties’ consent to the decree. System Federation No. 91 v. Wright, 364 U.S. 642, 651 [81 S.Ct. 368, 373, 5 L.Ed.2d 349] (1961).

104 S.Ct. at 2587 n. 9.¹

System Federation involved a suit brought under the Railway Labor Act, which then prohibited employer discrimination against non-union employees. The defendants, a railroad and several unions, agreed to entry of a consent decree providing that the railroad would not discriminate against non-union employees. The statute was then amended to permit such discrimination in the form of a union shop. Upon request of the unions, the District Court refused to modify the consent decree to allow a union shop, reasoning that non-union shops were not illegal and that the parties’ agreement should be enforced. The Supreme Court reversed, holding that to allow the consent decree to continue unmodified “would be to render protection in no way authorized by the needs of safeguarding statutory rights.” 364 U.S. at 648, 81 S.Ct. at 371-72. The Court reasoned that “[t]he parties cannot, by giving each other consideration, purchase from a court of equity a continuing injunction.” 364 U.S. at 651, 81 S.Ct. at 373.² The Court quoted its decision in United States v. Swift & Co., 286 U.S. 106, 114-15, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932): “The result is all one whether the decree has been entered after litigation or by con-sent____ We reject the argument ... that a decree entered upon consent is to be treated as a contract and not as a judicial act.” 364 U.S. at 650-51, 81 S.Ct. at 373.

The Supreme Court in Stotts was not directly faced with the question of whether adoption of a consent decree is limited by the remedies available under the statute being enforced. The Court did, however, use the proposition that a consent decree is so limited as a necessary postulate from which the Court reached its holding that modification of a decree over an objection is so limited. The three dissenting Justices and one concurring Justice in Stotts interpreted the majority opinion as saying that a consent decree cannot provide relief that would be unavailable after trial. See Stotts, 104 S.Ct. at 2605 n. 9 (Blackmun, J., dissenting) (“The Court’s analysis seems to be premised on the view that a consent decree cannot provide relief that could not be obtained at trial.”); Stotts, 104 S.Ct. at 2594 n. 3 (Stevens, J., concurring in the judgment) (“The Court seems to suggest that a consent decree cannot authorize anything that would not constitute permissible relief under Title VIL”). That five Justices nonetheless joined the opinion of the Court,³ despite knowing of this interpretation of their opinion, indicates that the Court meant what it said.⁴

The rationale used by the Supreme Court in Stotts applies equally as well to a consent decree as to an injunction following trial. The Court relied on § 706(g) of Title VII, which provides that “[n]o order of the court” shall provide relief to employees not affected by discrimination. (Emphasis added.) Contrary to the majority’s suggestion, opinion at 487-88, the consent decree in this case is clearly an “order of the court.” This Circuit said in Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir.1983), that “[a] consent decree, however, is also a final judicial order.” The decree on its face recites, “IT IS THEREFORE ORDERED, ADJUDGED AND DECREED,” and then explains in detail what actions the defendants are required to take to comply with the order. That the defendants agreed to entry of the order does not make it any less an order.

The adoption of the agreement as a judicial decree has different consequences than voluntary compliance with the agreement. Any failure to comply with the decree is enforceable through contempt proceedings, rather than a suit for breach of contract. The District Court retains continuing jurisdiction to interpret and modify the decree. The decree also affects the rights of the firefighters’ union and non-minority firefighters. A .non-minority firefighter could challenge the city’s voluntary actions on equal protection or Title VII grounds, but is foreclosed from collaterally challenging a court decree. Under Ohio’s public employees collective bargaining law, effective April 1984 (after the consent decree was entered), voluntary changes in the city’s promotion policy might be subject to collective bargaining with a certified representative. Ohio Rev.Code §§ 4117.01-.23. A city could avoid its duty to bargain by seeking adoption of a consent decree. While a consent decree does have some aspects of an agreement, there can be no doubt that a consent decree is not identical to a voluntary action.

The differences between a purely voluntary affirmative action plan and a court-ordered plan were made evident by this Circuit’s decision on rehearing in Bratton v. City of Detroit, 704 F.2d 878 (6th Cir.), modified on reh’g, 712 F.2d 222 (6th Cir.1983). In Bratton non-minority employees challenged a voluntary affirmative action promotions plan. The District Court not only upheld the plan but incorporated it into a decree. This Circuit on rehearing vacated the decree because what the city should be required to do was not at issue, and was not necessarily coextensive with what the city would be permitted to do. This Court reasoned that the body adopting the plan “must remain the ‘front line actor’ primarily responsible for the plan’s operation.” 712 F.2d at 223. Bratton therefore is consistent with my conclusion that a court decree, even when it incorporates an affirmative action plan voluntarily agreed to, nonetheless is improper unless it is based on what the employer may be required to do as a remedy for past discrimination.

In addition to the language of § 706(g), the Supreme Court in Stotts relied on Title VII’s legislative history. The Court quoted remarks of Senator Humphrey:

Contrary to the allegations of some opponents of this title, there is nothing in it that will give any power to the Commission or to any court to require [hiring,] firing [, or promotion] of employees in order to meet a racial “quota” or to achieve a certain racial balance.

104 S.Ct. at 2589 (quoting 110 Cong.Rec. 6549 (1964)) (bracketed words Sen. Humphrey’s omitted by Supreme Court.) This passage makes it clear that § 706(g) was intended to limit the power of a court to require certain actions, not just the scope of remedies that a court must impose. Section 706(g) thus limits the power of the District Court to require a quota-based promotion policy.

When a voluntary affirmative action program is challenged under Title VII, a court need answer only one question: whether that program itself violates Title VII. This is the question addressed in United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979) and left unanswered in Stotts. When a court-ordered remedy for a prior Title VII violation is challenged under Title VII, however, two questions must be addressed: (1) whether the remedy itself violates Title VII; and (2) whether the remedy is within the scope of relief permissible under § 706(g) to correct a Title VII violation. The majority in this case has failed to address the second of these questions. Section 706(g) does indeed provide a “shield” rather than a “sword” in a Title VII action,⁵ see majority opinion at 486, but a shield is precisely what the intervenors in this case need to challenge the District Court’s power to award relief. Under the Supreme Court’s decision in Stotts, a court may not enter relief of the type embodied in the consent decree in this case. Since the power to enter a consent decree purporting to enforce a statute is drawn from that statute, it is incongruous to approve a consent decree that goes far beyond the scope of relief permissible under the statute. Accordingly, the District Court’s judgment adopting the consent decree should be reversed and the case remanded for further proceedings in accordance with this opinion.

I concur in part II of the majority opinion, which concerns standing. Otherwise, I respectfully dissent.

1 . This principle has previously been recognized by this Circuit in Williams v. Vukovich, 720 F.2d 909, 923 (6th Cir.1983): "A consent decree which seeks to enforce a statute must be consistent with the public objectives sought to be attained by Congress.”

2 . I do not interpret System Federation to require that before entering a consent decree a district court must resolve the merits of the dispute and find that the terms of the consent decree would in fact have constituted an appropriate remedial order. See Swift & Co. v. United States, 276 U.S. 311, 327, 48 S.Ct. 311, 315, 72 L.Ed. 587 (1928) (failure to establish that violation actually occurred before entry of consent decree "does not go to the power of the court to adjudicate between the parties”). Section 706(g), in contrast, expressly limits the power of a court to order relief of a certain type under any circumstances.

3 . Justice O’Connor, who joined in the opinion of the Court, specifically voiced her agreement with the Court’s application of Title VII to limit proper modifications of the consent decree. 104 S.Ct. at 2593 n. 2 (O’Connor, J., concurring).

4 . The majority finds it "hard to explain” the Supreme Court's failure in Stotts to note Title VII’s limitations on permissible court orders during its discussion of whether the initial decree in Stotts supported the trial court’s ruling. Majority opinion at 488. The statement in Stotts quoted by the majority was made entirely within the context of a discussion of what the parties' intentions were in agreeing to the initial decree. Whether the parties so agreed is entirely a different question than whether a court had the power to enforce that agreement by entering a decree.

5 . Section 706(g) does, however, provide a much different type of shield than does § 703(h). Section 703(h) provides that application of a bona fide seniority system does not constitute an unlawful employment practice, and thus is relevant to the question of whether a Title VII violation has occurred. Section 706(g), in contrast, limits the type of relief that may be ordered once a violation has been established.