Countie v. City of Houston

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.
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___________________________
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
VERSUS
CITY OF HOUSTON; ET AL.,
Defendants
CITY OF HOUSTON,
Defendant-Appellee
VERSUS
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opinion should not be published and is not precedent except under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.
5