Patterson v. McLean Credit Union Reply Brief for Petitioner on Reargument
Public Court Documents
October 3, 1988
Cite this item
-
Brief Collection, LDF Court Filings. Hunter v. City of Los Angeles Plaintiffs' Memorandum in Support of Proposed Consent Decree and Declaration of Bill Lann Lee, 1992. 778fe8b5-b89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/522424f7-0b90-492b-aabb-fde86aa5e177/hunter-v-city-of-los-angeles-plaintiffs-memorandum-in-support-of-proposed-consent-decree-and-declaration-of-bill-lann-lee. Accessed August 19, 2025.
Copied!
f»
n
uin
/K
T
BILL LANN LEE
CONSTANCE L. RICE
KEVIN S. REED
'KAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC.
315 West Ninth Street, Suite 208
Los Angeles, CA 90015
I Telephone: (213) 624-2405
BARRY L. GOLDSTEIN
THERESA FAY-BUSTILLOS
RENEE Y. RASTORFER
SAPERSTEIN, MAYEDA, LARKIN &
GOLDSTEIN
10951 West Pico Bouievard, Third Floor
Los Angeles, CA 90064
Telephone: (310) 474-8678
10
11
12
13
KATHRYN K. IMAHARA
ASIAN PACIFIC AMERICAN LEGAL
CENTER
1010 South Flower Street, Suite 302
Los Angeles, CA 90015
Telephone: (213) 748-2022
14
Attorneys for Plaintiffs
15
UNITED STATES DISTRICT COURT
16
17
18
19
20
21
22
23
24
25
26
27
28
CENTRAL DISTRICT OF CALIFORNIA
JOHN W. HUNTER, et al,
Plaintiffs,
vs.
CITY OF LOS ANGELES,
Defendant.
LATIN AM ERICAN LAW
ENFORCEMENT ASSOCIATION,
Plaintiff,
vs.
CITY OF LOS ANGELES,
Defendant.
CASE NOS. 92-1897 AWT (Ctx)
92-1898 AWT (Ctx)
PLAINTIFFS’ MEMORANDUM IN
SUPPORT OF PROPOSED
CONSENT DECREE AND
DECLARATION OF BILL LANN
LEE
HEARING DATE: July 13, 1992
TIME: 10:00 a.m.
COURTROOM: 2
0 000084
UfdDofaMe*<faMlM.bc.
«fac,CA 90015
r
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
t
I. INTRODUCTION .................................................................................................. 1
II. PRIOR PROCEEDINGS ....................................................................................... 1
A. Administrative Proceedings.......................................................................... 1
B. The Christopher Commission ..................................................................... 2
C. Judicial Proceedings ..................................................................................... 3
III. FA CTS..................................................... 4
A. Denial of Prom otions................................................................................... 4
B. Denial of Paygrade Advancement............................................................... 5
C. Denial of Coveted Positions and Desirable Positions................................ 6
D. The Impact of Challenged Procedures........................................................ 7
IV. THE CONSENT D EC R EE........................................................................... 9
A. Promotional R e lie f ....................................................................................... 9
B. Paygrade Advancement Relief..................................................................... 9
C. Coveted Position Relief .............................................................................. 9
D. Desirable Position Relief ............................................................................ 10
E. Testing and Interviewing Procedural R elief................................................ 10
F. Special Programs ......................................................................................... 11
G. Individual R elief and Attorneys F e e s ................................................................ 11
H. Court Supervision and Duration of The D ecree ............................................. 11
I. Provisions Protecting the Interests of O th ers.................................................. 12
V. D ISC U SSIO N ..................................................................................................................... 12
A. The Proposed Consent Decree is Fair, Adequate, and Reasonable..............14
1. N o t ic e ................................................................................................ 14
2. Strength o f Plaintiffs’ Case . . . ; ..................................................... 15
3. Risk, Expense, Complexity, and Likely Duration o f Further
L itigation ................... 16
4. Risk o f Maintaining Class Action Throughout the T ria l. ; ............ . 1 6
. 0 000085
TABLE OF CONTENTS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
t
5. Amount Offered in Settlement........................................................ 17
6. Extent of Discovery Completed and the Stage of the
Proceedings...................................................................................... 18
7. Experience and Views of Counsel................................................... 18
8. Presence of Governmental Participants.......................................... 18
9. Absence of Fraud or Collusion........................................................ 19
10. Reaction of Class Members ............................................................ 19
B. The Proposed Consent Decree is Consistent With The 14th Amendment
and Title VII Narrowly Tailored to Serve A Compelling Government
Purpose............................................................................................................ 20
1. The Decree is Justified by the "Compelling" or Important
Governmental Interest of Curing Apparent Discrimination........... 20
2. The Consent Decree is Narrowly Tailored to Correct Identified
Discrimination.................................................................................. 21
VI. CONCLUSION......................................................................................................... 23
0 000086
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
t
Cases: Pages:
Armstrong v. Bd of School Dir., 616 F.2d 305 (7th Cir. 1980) ....................................... 1 7
Associated General Contractors v. San Francisco,
748 F.Supp. 1443 (N.D.Ca. 1990)........................................................................... 20
Chicago Fire Fighters v. Washington,
736 F.Supp. 923 (N.D. III. 1990)............................................................................. 21
City of Richmond v. Croson,
488 U.S. 469, 109 S.Ct. 706, 102 L.Ed. 2d 854 (1989) .......................................... 20
Cotton v. Hinton,
559 F.2d 1326 (5th Cir. 1977)................................................................... 15, 16, 18-20
Davis v. City and County of San Francisco,
890 F.2d. 1438 (9th Cir. 1989) ........................................................................ 1, 20, 22
Donaghy v. City of Omaha,
933 F.2d 1448 (8th Cir. 1991).................................................................................. 21
Howard v. McLucas,
871 F.2d 1000 (11th Cir. 1989)................................................................................ 21
In Re Cement and Concrete Antitrust Litigation,
817 F.2d 1435 (9th Cir. 1987).............................................................................. 14, 15
Johnson v. Transportation Agency, Santa Clara County,
480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987)............................................ 20
Kirkland v. NY State Dept, of Corre.,
711 F.2d 1117 (2d Cir. 1983) .................................................................................. 13
Moore v. City of San Jose,
615 F.2d 1265 (9th Cir. 1980)................................................................................... 13
Mullane v. Central Hanover Bank & Trust,
339 U.S. 306, 70 S.Q. 652, 94 L.Ed. 865 (1950) ................................................... 14
Officers for Justice v. Civil Service Com’n,
688 R2d at 625 .............................................................................................. 13, 15-17
Reed v. General Motors,
703 F.2d 170 (5th Cir. 1983) ........................................................................ 15, 16, 19
S.E.C. v. Randolph,
736 F.2d 525 (9th Cir. 1984) .................................. .. ...................... . . ................. 19
Stuart v. Roache,
951 F.2d 446 (1st Cir. 1991)................................ .............................................. .. 21
TABLE OF AUTHORITIES
0 000087
h i
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
k
Pages:
United States v. Paradise,
480 U.S. 149, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987)............................................. 20
Williams v. City of New Orleans,
729 F.2d 1554 (5th Cir. 1984).................................................................................. 18
Constitutional Provisions and Statutes: Pages:
United States Constitution, Amendment 1 4 ....................................................... 1, 11, 18, 19
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e............................................... 1
United States Constitution, Amendment 1 4 ....................................................... 1, 13, 20, 21
Other Authorities: Pages:
Fed. R. Civ. P. 23(e) ........................................................................................................ 12-14
Schwarzer, Tashima & Wagstaffe, CaL Practice Guide: Fed. Civ. Pro.
Before Trial (TRG 1992) ............................................................................. 12, 14, 16
0 000088
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
.22
23
24
25
26
27
28
t
rite Ml
I.
INTRODUCTION
Plaintiffs request that the Consent Decree proposed by the parties to settle fully
class claims be approved. This Decree is intended to bring to a close over four years of pre
suit administrative proceedings and arms-length negotiations. Plaintiffs believe that a fair and
reasonable settlement has been reached that will provide effective and substantial relief for
the class of minority police officers who assert that they have been denied promotions and
advancement to supervisory and managerial jobs in the City of Los Angeles Police
Department ("LAPD"). Of 3200 class members, none has objected to the proposal and only
one has opted out to pursue independent remedies. Moreover, the goals and timetables
included in the proposed Consent Decree do not unduly infringe upon the interests of Anglo
police officers as required by Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e
('Title VII"), and the Equal Protection Clause of the 14th Amendment. For the reasons set
out below, the parties request that this Court find that the proposed Consent Decree is
"fundamentally fair, adequate and reasonable." Davis v. City and County o f San Francisco, 890
F.2d. 1438, 1444 (9th Cir. 1989).
II.
PRIOR PROCEEDINGS
A. Administrative Proceedings.
In 1988, plaintiffs John W. Hunter ("Hunter") and the Latin American Law
Enforcement Association ("LaLey") initiated these proceedings by each filing administrative
charges o f employment discrimination under Title VII with the California Department o f Fan-
Employment and Housing ("DFEH") against the LAPD. Charge o f Discrimination o f LaLey,
FEP 88/89 B6-0950; Charge o f Discrimination o f John W. Hunter, FEP 88/89 B6-06093.
The DFEH processed the Title VII complaints and certified each case as a class action
in September and October o f 1989, respectively. See Exhibit A to the Declaration o f Bill
Lann Lee Accusation in The Matter o f DFEH v. Los Angeles Police Department, FEP 88-89 B6-
0609e at 11 5 ('LaLey Accusation"); See Exhibit B to the Lee Declaration, Accusation in The
0 000089
1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Matter o f DFEH v. Los Angeles Police Department, FEP 88-89 B6-0950 at H 4 ('Hunter
Accusation"). In December, 1990 and January, 1991, after two years of extensive
investigation, the agency issued accusations in both cases finding pervasive evidence of
discrimination in the LAPD’s promotional and advancement procedures. Lalcy Accusation,
Hunter Accusation.
An administrative hearing on this matter was scheduled before State of California
Administrative Law Judge Ralph P. Dash to begin July 8, 1991. Exhibit C to the Lee
Declaration, Office of Administrative Hearing Notice of Trial, L-52608 (Feb. 1991). Before
that date, however, the parties engaged in intensive settlement negotiations over the course
of several months. During the negotiations, the Korean American Law Enforcement
Association ("KALEA") filed an administrative charge and joined the settlement on behalf of
Asian-American LAPD officers.
As a result of these negotiation efforts, the substantive provisions of the proposed
Consent Decree were adopted as a resolution of the administrative charges. Exhibit D to Lee
Declaration, DFEH Settlement Agreement, FEP 88-89 B6-0608e, FEP 88-89 B6-0950.
B. The Christopher Commission.
In Spring 1991, Los Angeles City Mayor Tom Bradley appointed a commission to
consider the operation of the LAPD in the wake of the beating of Rodney King, an African-
American motorist, by several officers. The Commission is popularly known as the
"Christopher Commission," after its chairman, Warren Christopher. One o f plaintiffs’ counsel
testified before the Commission on discriminatory promotion and paygrade advancement
procedures. Exhibit E to Lee Declaration, Testimony o f Bill Lann Lee before The
Independent Commission on the Los Angeles Police Department, May 1,1991 (discriminatory
personnel practices have stymied the career advancement of minority officers, and as a result,
minorities are severely underrepresented in every job category other than the entry level
category o f police officer). Subsequently, Emilio Perez and Robert Contreras, representatives
of plaintiff LaLey, plaintiff John W. Hunter, and Garland Hardeman, a director o f the Oscar
Joel Bryant Association, an African-American LAPD officer’s group, testified about, the need
0 000090
o
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
*
L
for minority representation in decision-making positions within the LAPD. Exhibit F to Lee
Declaration, Excerpts from the Report O f The Independent Commission On Tiie Los Angeles
Police Department, and App.II Table 2A-1 (List of Witnesses - Executive Sessions).
The Christopher Commission report substantiates plaintiffs’ position that
discriminatory LAPD employment practices disproportionately attect minority otticers, and
corroborates plaintiffs’ statistical data, discussed below, which demonstrates the denial of
promotion and advancement for minority officers. Id. at 81-83, 92. The Christopher
Commission Report specifically recommended that minority officers "be given full and equal
opportunity to assume leadership positions in the LAPD and that minorities must be
assigned on a nondiscriminatory basis to the so-called ‘coveted-positions’ and promoted to
supervisory and managerial positions on the same basis as Anglo officers. Id. at 92.
C. Judicial Proceedings.
The Hunter complaint (which KALEA joined) and the LaLey complaint, as well as the
proposed Consent Decree, were filed on March 27,1992, and consolidated on April 6th. The
complaints are substantively identical. Each seeks relief from the City of Los Angeles based
on alleged discriminatory practices and procedures within the LAPD used in promotions,
paygrade advancements, coveted assignments, and assignments to positions with desirable
working conditions and/or work assignments.
On April 15,1992, at the request o f the parties, the Court entered an order certifying
the class, authorizing notice of the proposed settlement to the class, and setting a fairness
hearing for July 13,1992. Plaintiffs’ attorneys held additional meetings with class members
for the purpose o f explaining the Consent D ecree and the procedures for filing objections and
for opting out. 0 0 0 0 0 9 1
•x
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
k
III.
FACTS
A. Denial of Promotions.
The LAPD promotion system requires that applicants for promotion to Detective,
Sergeant, and Lieutenant take examinations consisting of a multiple choice test, an essay, an
oral interview and a panel review of candidates. The components of the examination process
have consistently adversely affected minority police officers as compared with Anglo police
officers. LaLey Accusation at UU 11-16, Hunter Accusation at UU 12-17. The following chart
from plaintiffs’ complaints, based on data in the accusations, depicts the discriminatory impact
of promotion criteria under which Anglo officers received promotions at much greater rates
than qualified minority applicants.
Examination Percentage Selection Rates
Detective 1983
Anglo
38.8
Minority
10.9
1985 24.9 12.6
1987 26.9 15.7
Sergeant 1984 16.1 10.5
1986 20.1 7.6
1989 26.9 19.3
Lieutenant 1987 23.5 15.2
Hunter complaint at U7.a.i., LaLey Complaint at U7.a.i.
The Christopher Commission found that:
The present concentration of minorities in entry level
positions is consistent with the pattern in the LAPD that has
emerged over the years. The Commission reviewed comparable
data for the years 1980, 1986 and 1991. Using 1980 as a base
year, 1986 and 1991 were selected in part to take into account
the minimum tenure requirements for eligibility for promotions
within the Department to sergeant and lieutenant. Analysis o f
these data shows that, although there are now more minority
officers on the force and more minority officers with the
minimum tenure requirements for promotion to sergeant and
0 000092
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
k
above, the same relative concentration in the patrol ranks exists
today as it did 10 years ago.
Between 1980 and 1990, African-American representation
among managerial and supervisory ranks (sergeant and above)
increased only from 5.3% to 8%; Latino representation
increased from 4.9% to 10.4%. The percentage of female
officers with the rank of sergeant or above increased in the same
10-year period from 0.8% to 2.4%. In 1990, 6.4% of the LAPD
detectives were women; 6.5% were African-American and 13.2%
were Latino. The absence of minorities and women from higher
level investigative, supervisory, command, and staff positions
might be due to a variety of individual factors. Evidence
gathered by the California Fair Employment and Housing
Commission suggests, however, that it might be in part the result
of covert discrimination. Whatever the reason, the leadership of
the Department remains predominantly white and male.
Christopher Commission at 81-82.
Notwithstanding the adverse impact, the DFEH found that the LAPD had failed to
validate properly the components o f the promotion examinations under the Uniform
Guidelines on Employee Selection Procedures, and failed to show that the examination was
property developed, appropriately weighted, or otherwise related to the job duties it purports
to test. LaLey Accusation at ^ 17-18; Hunter Accusation at UK 18-19. Moreover, LAPD
never considered less discriminatory selection procedures that have less adverse im pact Id.
The existence o f such an unjustified adverse impact demonstrates an unrebutted prima
fade case o f discrimination under Title VII. 42 U .S.C §2000e-2(k) (l)(A )(i).
B. Denial o f Paygrade Advancement
The DFEH also found that LAPD denied to minority officers paygrade advancement
to higher level job assignments within the Police Officer, Detective, Sergeant and Lieutenant
0 000093
1
2
3
4
5
6.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
k
ranks by using unvalidated, subjective selection procedures. LaLey Accusation at UU 19-22;
Hunter Accusation at HU 20-23. These procedures resulted in significantly lower paygrade
advancement rates for minority officers as compared to Anglo officers as illustrated by the
following breakdown of available paygrade advancement data prepared by plaintiffs for the
DFEH’s accusations.
Percentage Selection Rates
Paygrade Anglo Minority
Police Officer III 81.3 18.8
Police Officer III + 1 87.5 12.5
Detective II 79.0 21.1
Detective III 100.0 0
Sergeant II 100.0 0
Lieutenant II 66.7 33.3
Hunter Complaint at U7.b.iii; LaLey complaint at U7.b.iii; See Exhibit A to Lee Declaration,
LaLey Accusation at H 20; Exhibit B to Lee Declaration, Hunter Accusation at U 19 (January
1987 - June 1988 data).
The DFEH also found that LAPD failed to use standardized questioning or neutral
and consistent evaluators, to provide reasons for denial of advancement, to provide adequate
appeal procedures, or to provide for retention of documents. Id.
C. Denial o f Coveted Positions and Desirable Positions.1
The LAPD's selection procedures for "coveted positions" and positions with desirable
working conditions and/or work assignments result in underrepresentation o f minority officers
compared to Anglo officers. A s the Christopher Commission found:
Certain assignments and units within the LAPD are
officially recognized as "coveted positions," ones that are
generally perceived as more desirable, attractive and prestigious.
Assignments to units such as Metropolitan (considered the most
lflCoveted assignments" or "coveted positions" are terms that are defined in the proposed
Consent Decree as those assignments likely to assist an officer in developing the insight and
skills necessary to enhance a career path of promotability toward the command and staff
ranks. See Consent D ecree at p. 11. Positions with desirable working conditions and/or
assignments are those which are desirable but do not necessarily lead to further promotional
opportunities. Q 0 0 0 0 9 4
C
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
l
elite uniformed unit), Narcotics and Internal Affairs are highly
sought after. Those positions also are considered to provide
officers career-enhancing promotion opportunities.
Assignments to most coveted positions are discretionary
appointments by the commanding officers and are not subject to
civil service, competitive selection criteria. Many of the minority
officers interviewed expressed the strong view that the "good old
boy" network among white staff officers and supervisory
personnel makes it extremely difficult for minority officers to get
transfers into those units. The Department’s 1990 Coveted
Position Report confirmed that minorities and females are
underrepresented in these desirable assignments.
Exhibit F to Lee Declaration, Christopher Commission Report at 83. With respect to
desirable positions, for example, as of mid-year 1991, only 17% of the 47 positions in the
Administrative Vice Division were filled by minority police officers and only 12.7% of the 79
positions in the Air Support Division were filled by minority police officers although minority
officers are fully 39% of the LAPD. See Hunter Complaint at 7.c-d, LaLey Complaint at 7.c-d.
D. The Impact of Challenged Procedures.
Plaintiffs allege that as a result o f the LAPD procedures challenged in the instant
lawsuit, minority officers are concentrated in lower levels and underrepresented in higher job
categories.
0 000095
7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
*22
23
24
25
26
27
28
t
*cXK
Job Title
Total
No.
Anglo
No. %
Minority
No. %
Deputy Chief 8 7 88% 1 12%
Commander 19 16 84% 3 16%
Captain 66 57 86% 9 14%
Lieutenant 229 191 83% 38 17%
Sergeant 852 669 79% 193 21%
Detective 1408 1068 76% 340 24%
Police
Officer 5632 3103 55% 2539 45%
Total 8345 5112 61% 3233 39%
Hunter Complaint at 11 8; LaLey Complaint at 11 8.
Minority officers are 39% of the LAPD as a whole (22% Latino, 14% African
American, 3% Asian American). Minority sworn personnel, however, are underrepresented
in every job category above police officer. Few minority officers occupy positions of
responsibility. In contrast, the proportion of Anglo officers increases as the responsibilities
of the job increase. Every higher level supervisory or managerial rank in the LAPD is at least
three-quarters Anglo.
The Christopher Commission found the same "concentration of minorities in entry
level positions."
The Department’s statistics show . . . that the vast majority o f
minority officers are concentrated in the entry level, Police
Officer ranks of the Department. As of February 1991, there
was a total o f 1,154 African-American sworn personnel, o f who
947 or 82% held positions within the ranks o f police officer I-III.
Latino and Asian officers are similarly concentrated; more than
80% o f Latino and Asian officers held positions within the ranks
o f police officer I-III. In contrast, only 61% o f white officers
held positions within the ranks of police officer I-III.
Exhibit F to Lee Declaration, Christopher Commission at 81.
0 000096
o
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
k
IV.
THE CONSENT DECREE
Without admitting liability, the City of Los Angeles has chosen to settle this dispute
by addressing the above racial disparities and adopting the corrective measures in the
proposed Consent Decree, as described below.
A. Promotional Relief.
To remedy the underrepresentation of minority sworn police officers in the higher
ranks, the Consent Decree proposes that for each fiscal year, LAPD make good faith efforts
to promote Latino, Asian American, and African American police officers into openings in
the Detective, Sergeant and Lieutenant classifications. Consent Decree at H 26. For each
racial and ethnic group and for each classification, an annual goal will be established, which
is 80% of the racial or ethnic group’s percentage representation among eligible sworn police
officers who are in feeder paygrades or the representation among those who actually apply.
In addition, LAPD is subject to a three-year interim goal to meet each group’s representation
among eligible officers in the feeder paygrades. Consent Decree at 11 27.
B. Paygrade Advancement Relief.
The Consent Decree addresses the disparity in paygrade advancement by requiring a
good faith effort to advance African American, Latino, and Asian American sworn police
officers into position openings in the Police Officer III, Detective II, Detective III, Sergeant
H, and Lieutenant II paygrades ("target paygrades") at or above 80% of the ethnic group’s
percentage representation among eligible sworn police officers who are in feeder paygrades
or the representation among those actually applying. Consent Decree at H 28. An additional
three-year interim goal also applies. Consent Decree at 1 29.
C Coveted Position Relief.
After listing coveted position jobs2, the proposed Decree requires that LAPD make
good faith efforts to assign, advance, promote, or otherwise place Asian American, African
2Coveted positions are defined at Consent Decree f 25(c). Q 0 0 0 0 9 7
o
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
t
* c * X
American, and Latino police officers into coveted position openings. Consent Decree at H 30.
An annual goal will be established at 80% of each ethnic and racial groups percentage
representation among police officers within all paygrades between Police Officer III and
Lieutenant II, inclusive, who are not assigned to coveted positions or the representation
among those actually applying. Id. An additional three-year interim goal also applies.
Consent Decree at H 31.
D. Desirable Position Relief.
To increase overall workplace diversity the Consent Decree requires that LAPD
implement a policy that all workplaces be staffed by sworn officers reflecting LAPD’s racial
and ethnic diversity with LAPD to use good faith efforts to promote, advance, or assign police
officers from each underrepresented ethnic or racial group into the identified workplace.
Consent Decree at U 35.
E. Testing and Interviewing Procedural Relief.
The Consent Decree also calls for various procedural reforms. For civil service
promotion examinations for Police Detective, Police Sergeant, and Police Lieutenant, the
Decree permits utilization of a written multiple-choice test, weighted at 30% of a candidate’s
combined score, with the remaining proportions of each promotion examination weighted at
70%. Consent Decree at H 32. However, if the use of such a weighted multiple-choice test
causes African American, Latino, and Asian American applicants to promote at a rate which
is statistically significantly lower than Anglo applicants, future written multiple-choice
promotion tests for the same classification will be evaluated on an "unweighted," "qualifying,"
or "pass-fail" basis. Id. N o written multiple-choice test will be used to rank applicants for
paygrade advancement or for assignment to "coveted positions." Id.
The proposed Consent D ecree also reforms LAPD’s procedure for using oral
interviews for paygrade advancement and assignment to coveted positions, requiring that
LAPD use uniform rating criteria, quantify interview scores, permit appeals, and maintain
records o f all proceedings for at least three years. Consent Decree at 1133.
0 000098
-4 r\
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
t
•bcXM
F. Special Programs.
To effectuate the purposes of the Consent Degree the parties have agreed that the
LAPD will set up specified special programs. Consent Decree at $ 39. The Decree mandates
that LAPD pay $100,000 each year for five years to plaintiffs to set up training programs
designed to develop the skills, knowledge and abilities required for successful performance on
written and oral police promotion and paygrade advancement examinations and interviews.
Id. at $ 39(a). The Decree also requires LAPD to establish a "scholarship, promotion
incentive and retirement benefits" fund in the amount of $1,000,000 to compensate class
members who have been adversely effected by promotional or advancement practices. Id. at
$ 39(b). Other special programs provide job counseling, affirmative action training,
supervisorial and managerial accountability and supervisory cross-training. Id. at 39(c) - (f).
G. Individual Relief and Attorneys Fees.
The Decree provides for individual relief for plaintiff John Hunter and for attorneys
fees and costs for plaintiffs’ counsel in amounts to be determined. Consent Decree at $$ 40,
44.
H. Court Supervision and Duration o f The Decree.
To oversee compliance and to enforce the Consent Decree, the Decree contemplates
that the Court retain jurisdiction. Consent Decree at $$ 38,43. LAPD is required to prepare
detailed yearly monitoring reports for plaintiffs’ counsel. Consent Decree at $ 41. California
Administrative Law Judge Dash, who presided over the negotiation o f the Decree, is
designated to hold periodic hearings and to make recommendations to the Court on disputes.
Id. The term o f the Consent D ecree is 15 years. Consent Decree at $ 38. However, LAPD
may be relieved o f its obligations within 12 years upon a showing of substantial compliance.
Id.
0 000099
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
k
*D*X
I. Provisions Protecting the Interests of Others.
The Consent Decree contains various provisions protecting the interests of minority
employees who do not wish to participate in the settlement and the interests of non-minority
LAPD officers. Class members who wish to forego the benefits of the Decree may pursue
their independent remedies by opting out of the class. Consent Decree at 1111 11, 18. Class
members also may object to provisions of the proposal.
The Decree states that the "goals and special programs are narrowly tailored to reduce
African American, Hispanic, and Asian American underrepresentation without affecting the
legitimate rights and privileges of other [LAPD] employees." Consent Decree at H 20. LAPD
may use any selection device not expressly barred by the Decree. Consent Decree at H 21.
No candidate unqualified under LAPD standards is required to be promoted, advanced or
assigned pursuant to the Decree and all the provisions of the Decree are subject to the
availability o f qualified minority candidates. Consent Decree at U 22. The Decree does not
affect employees’ rights arising from any bona fide seniority systems. Consent Decree at H
23. As discussed above, the provision grants no preference to minority employees over non
minority employees. Consent Decree at 11 22. The Decree also notes that it represents the
best effort o f the parties to formulate relief for purported victims of discrimination alleged
in the complaints in light of the complex nature of LAPD’s personnel selection procedures
and limited record keeping, and the great time and expense required to identify specific
purported victims o f the discrimination alleged. Consent D ecree at H 24.
V.
DISCUSSION
Rule 23(e) o f the Federal Rules o f Civil Procedure (T ed . R. Civ. P.") declares that
"[a] class action shall not be dismissed or compromised without the approval o f the court"
after proper notice to the class. The primary purpose o f a Rule 23(e) fairness hearing is to
guard against the "risk o f prejudice to class members who ane relying on the named plaintiff
to prosecute the action." Schwarzer, Tashima & Wagstaffe, CaL Practice Guide: Fed. Civ. Pro.
Before Trial H 10:554, at 10-105 (T R G 1992). The proposed Consent D ecree is consistent with
0 000100
n
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
k
Rule 23(e), as it was designed to effectuate relief for the class as a whole. In facilitating the
settlement of an employment discrimination suit, the Court should be mindful that "when
Congress enacted Title VII, it specifically endorsed voluntary compliance and settlement as
the preferred means of achieving the elimination of employment discrimination suits." Moore
v. City o f San Jose, 615 F.2d 1265, 1271 (9th Cir. 1980); Officers for Justice v. Civil Sendee
Com’n., 688 F.2d 613, 625 (9th Cir. 1982). In deference to Congressional will, voluntary
compromises of Title VII lawsuits enjoy a presumption of validity, and "should be approved
unless they contain provisions that are unreasonable, unlawful, or against public policy."
Kirkland v. N.Y. State Dept of Correc., 711 F.2d 1117, 1129 (2d Cir. 1983).
In addressing a proposed settlement, the Court must determine whether the settlement
is "fundamentally fair, adequate and reasonable." Officers for Justice, 688 F.2d at 625. This
inquiry necessarily involves a balancing of several factors which may include:
the strength of plaintiffs’ case; the risk, expense, complexity, and likely duration
of further litigation; the risk of maintaining class action status throughout the
trial; the amount offered in settlement; the extent of discovery completed, and
the stage of the proceedings; the experience and views of counsel; the presence
of a governmental participant; and the reaction of the class members to the
proposed settlement.
Id. In addition, the Court should find that the agreement is the not the product o f fraud or
overreaching by, or collusion between, the negotiating parties. Id.
In this case, the Court must also determine whether the Consent D ecree complies with
Title VII and the 14th Amendment, that is, whether the affirmative action relief contained
in the D ecree is predicated on a proper factual foundation and narrowly tailored. The Decree
at issue is designed to pass the most exacting judicial scrutiny. It is drawn to remedy the
effects o f prior and present discrimination by LAPD against each o f the plaintiff ethnic and
racial groups and is narrowly tailored to accomplish this proper governmental objective.
0 000101
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
k
MtoMC
A. The Proposed Consent Decree is Fair, Adequate, and Reasonable.
The proposed Consent Decree is the culmination of an extensive investigation by
plaintiffs and the DFEH into the LAPD’s promotion and advancement practices and
procedures and of arms-length negotiation between all parties. Although it is by definition
a compromise, plaintiffs believe that the Decree provides a fair, adequate, and reasonable
accommodation of the parties’ independent interests. Each of the applicable factors
enunciated by the Ninth Circuit weighs in favor of this Court’s approval of the proposed
Consent Decree.
1. Notice.
The contents of the settlement notice of this class action were sufficient to inform class
members of the terms of the settlement. Although Fed.R.Civ.P. 23(e) directs that adequacy
of notice is within the discretion of the court, its content must satisfy constitutional due
process requirements. In Re Cement and Concrete Antitrust Litigation, 817 F.2d 1435, 1440
(9th Cir. 1987). To satisfy due process, local practice generally requires that the notice
describe the action and proceedings, contain the proposed terms of the settlement, state the
date of the fairness hearing and the deadline for lodging objections. Fed. Civ. Pro. Before
Trial, H 10:581, at 10-110. The Notice Of Pendency of Class Action, Proposed Settlement, and
Hearing filed on April 15, 1992, which this Court approved, duly informed class members of
the nature o f the lawsuit, summarized the Consent Decree, provided an address where class
members could request a full and complete copy of the decree, set forth the dates o f the
fairness hearing, the deadline for filing objections and for opting ou t Therefore, the contents
of the notice conformed with due process requirements.
Fed.R.CivJ*. 23(e) also vests the Court with discretion as to the maimer o f service o f
the settlement notice. Fed. Civ. Pro. Before Trial, H 10:581, at 10-110. The class members,
however, should be given adequate notice so that due process rights will be protected./d. The
standard for notice, set out by the Supreme Court, holds that classmembers should be given
notice "reasonably calculated to inform interested parties o f the pendency o f the action and
opportunity to present their objections." Mullane v. Central Hanover Bank & Trust, 339 U ^ .
0 000102
M
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950); see In Re Cement and Concrete Antitrust
Litigation, 817 F.2d at 1440.
The methods of notice in this case were devised to reach the greatest number of active
and retired minority sworn LAPD officers and to give them ample opportunity to object to
or opt out of the settlement. Notice was effectuated by several methods. A copy of the
Court-approved Notice of Pendency of Class Action and Proposed Settlement C Notice ) was
posted on the official bulletin boards of the Los Angeles Police Department for one month.
Declaration of Robert Cramer, to be submitted separately. The Notice also was published
in several newspapers including those which specifically serve the African American and
Spanish-speaking communities. Id. The newspapers included The Los Angeles Times, The
Daily News, The Sentinel, and La Opinion. The notice was also placed in the April 29, 1992
paycheck of every Latino, Asian American, and African American sworn officer, read at each
Toll call" to all officers on the same date, and sent to all retired LAPD officers. Id.
2. Strength of Plaintiffs’ Case.
In reviewing a proposed consent decree, the Court "must compare its terms with the
likely rewards the class would have received following a successful trial of the case." Reed v.
General Motors, 703 F.2d 170,172 (5th Cir. 1983), Cotton v. Hinton, 559 F.2d 1326, 1330 (5th
Cir. 1977); see Officers for Justice, 699 FJ2d at 625. The Court, however, must avoid
scrutinizing plaintiffs’ case to the point o f trying it, as the very purpose of a settlem ent is to
avoid the expense and complexity o f trial. Reed, 703 F.2d at 172. In Reed, the Court found
that uncontroverted statistical evidence o f underrepresentation of blacks in supervisory
positions at General Motors brought out at the class certification hearing was a sufficient
showing o f disparate impact and an indication o f likely success. Id at 172-173.
In this case, the minority plaintiffs have supported their allegations o f discrimination
with uncontroverted statistical evidence, set forth above. These statistics show substantial
disparities between the promotion and advancement rates for minority and Anglo officers.
This showing is sufficient to support plaintiffs’ claims of discrimination and a strong indication
of success had this case gone to trial. Q 0 0 0 1 0 3 '
• I
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
*
The proposed Consent Decree encompasses the exact type of injunctive remedy that
would have been sought at trial. The promotion and paygrade advancement goals included
in the settlement at issue substantially remedy any class injury. The Consent Decree provides
for the most effective class-based injunctive remedy for this class of over 3200 plaintiffs. It
is the most appropriate method by which minority officers as a group can be promoted,
receive paygrade advances, be assigned to coveted positions and positions with desirable
working conditions and/or work assignments and receive the benefit of special programs.
3. Risk, Expense, Complexity, and Likely Duration of Further Litigation.
Employment discrimination class actions of the scope pleaded here require a
substantial commitment of time and money, and typically involve complex issues of law and
fact. See Cotton v. Hinton, 559 F.2d at 1331. Title VII actions are often complex, raising
difficult legal issues requiring lengthy judicial consideration. Officers for Justice, 688 F.2d at
629 ("The track record for large class action employment discrimination cases demonstrate
that many years may be consumed by trials and appeals before the dust finally settles).
The case now before this Court illustrates these points. This lawsuit involves injured
parties from different etlmic and racial groups, each of whom would have presented their case
at trial. This would necessarily involve countless hours of attorney and court time and result
in astronomical costs. Title VII litigation has become a quagmire of complicated motion
practice and extended trial proceedings. Avoiding a prolonged, expensive trial promotes the
purposes o f Title VII and weighs in favor of approval o f the proposed Consent Decree.
4. Risk o f Maintaining Q ass Action Throughout the Trial.
The Court must determine whether all aspects o f this cause would have been litigated
to a conclusion entirely within the class action mode. Officers for Justice, 688 F.2d at 633.
Plaintiffs’ may prove this by showing the case meets the requirements for class certification
under Rule 23(a), Le ̂ numerosity, commonality, typicality and adequacy o f representation.
Id; see generally Fed. Civ. Pro. Before Trial, f 10:237, at 10-44. This case dearly satisfies
Fed.R.Civ.P. 23(a). First, the case includes over 3200 Asian American, African American, and
Latino sworn officers, a number so large that joinder in a single proceeding would, be
0 000104
u . . * ■ ■ -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
impossible. Second, this lawsuit presents questions of law and fact common to the members
of the class, including alleged discrimination in promotion, paygrade advancement, assignment
to coveted positions and positions with desirable working conditions and/or work assignments.
Third, the claims brought by named plaintiffs John Hunter and LaLey are typical of those
suffered by the class as a whole. Finally, as discussed in section A. 7, below, the plaintiffs are
represented by experienced and capable attorneys who specialize in employment
discrimination litigation.3
5. Amount Offered in Settlement.
A court should be concerned when large sums of money are going to "the benefit of
a few class members or class counsel." Armstrong v. Bd o f School Dir., 616 F.2d 305, 313 (7th
Cir. 1980). The proposed Consent Decree does not provide for specific lump sum payments
to class members. LAPD is to pay one hundred thousand dollars each year for five years to
set up a training program to benefit all officers, non-minority as well as minority.
Additionally, LAPD is to pay one millions dollars through a claim procedure to be devised
by plaintiffs for scholarships, promotion incentives and retirement benefits as monetary
compensation to remedy past discriminatory denial of promotion and advancement
opportunities. Both the claim procedure and distribution formula will be submitted to the
Court by plaintiffs for approval prior to implementation. Whether a class member receives
any monetary relief and the amount o f such relief are a function o f application and the
distribution formula. The Decree also provides that named plaintiff Hunter will receive
money in settlement o f his individual claim and plaintiffs’ counsel will receive their fees and
costs in amounts still to be determined. These monetary provisions in conjunction with the
provisions o f the affirmative action plan compose the full relief provided by the Decree and
will not per se render the decree inadequate or unfair. Officers for Justice, 688 FJZd at 628.
3 This case was certified by DFEH to proceed as a class action during the administrativ;
process, which supports plaintiffk’ contention that they would have no difficulty maintaining
class action status throughout trial.
0 000105
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
k
6. Extent of Discovery Completed and the Stage of the Proceedings.
The purpose of formal discovery is to simplify the issues and to eliminate uncontested
matters. In Cotton, a consent decree was challenged on the basis, inter alia, that insufficient
discovery had been conducted. The objectors argued that the parties had insufficient
information to settle the suit and the trial judge had insufficient evidence to assess its fairness.
559 F.2d at 1332. The Fifth Circuit rejected the objection, stating that although "very little
formal discovery was conducted . . . the lack of such does not compel the conclusion that
insufficient discovery was conducted." Id. (emphasis added).
Although the instant case was settled prior to filing the complaints, an extensive record
has been compiled through DFEH and Christopher Commission proceedings. Prior to filing,
the parties had conducted informal discovery and clearly identified the issues in this case.
Furthermore, the DFEH conducted over three years of investigation before accusations
alleging discrimination within the LAPD were issued. The combination of the DFEH’s
investigation, the Christopher Commission’s findings and informal discovery provided the
parties’ counsel with enough information to draft the proposed Consent Decree.
7. Experience and Views o f Counsel.
In a settlement hearing the Court is entitled to rely upon the judgment of experienced
counsel. Cotton v. Hinton, 559 F.2d at 1330. In this case, class counsel and LAPD’s counsel
are experienced employment litigators. Class counsel include attorneys associated with the
NAACP Legal D efense and Educational Fund, Inc., and the law firm of Saperstein, Mayeda,
Larkin & Goldstein.4
8. Presence o f Governmental Participants.
This suit was initiated when complaints where filed with DFEH. Because DFEH is
a neutral government participant which is concerned with the rights o f all individuals, its
findings are entitled to considerable weight. See Williams v. City of New Orleans, 729 F22d
4Lead counsel for the firm o f Saperstein, Mayeda, Larkin & Goldstein, Theresa Fay-
Bustillos and Renee Y. Rastorfer, have filed a substitution o f attorneys, substituting
themselves as counsel o f record for the firm.
1R
0 000106
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
t
1554, 1560 (5th Cir. 1984) (citations omitted) (since the government is responsible for
protecting the interests of all citizens, it is safe to assume that the interest of all affected had
been considered). So too are the findings and recommendations the Christopher Commission,
a quasi-govemmental entity.
The settlement was initiated and carried out under the direction of Administrative Law
Judge Dash who will continue on as the monitor of the Decree. His involvement in the
settlement negotiations further insured their regularity and integrity. S.E.C. v. Randolph, 736
F.2d 525, 529 (9th Cir. 1984) (the Court should pay deference to the judgment of the
governmental agency which has negotiated and submitted the proposed judgment.) The
defendant in this case is the City of Los Angeles and its Police Department, yet another
governmental participant.
9. Absence of Fraud or Collusion.
In determining whether a proposed settlement is the result of arms’ length
negotiations, the Court may look at the negotiation sessions and the terms of the Consent
Decree for evidence of fraud or collusion among the negotiating attorneys. The Consent
Decree at issue withstands close scrutiny for fraud or collusion. Supporting the general
integrity of the proposed settlement is the fact that it was negotiated under the auspices of
Administrative Law Judge Dash based upon findings of the DFEH and the Christopher
Commission. Nothing suggests that the negotiations were not arms length discussions. The
terms of the proposed Decree are fair and reasonable: no large sums of money have been
allocated to the named plaintiffs or their attorneys. The Decree provides mostly injunctive
relief designed to benefit the class as a whole. The Decree does not remotely suggest a sell
o u t Indeed, no objections have been filed by any o f the 3200 class members.
10. Reaction o f Class Members.
Because a Consent D ecree inherently involves a compromise, it would be impossible
for every class member to be com pletely satisfied with the results. However, the number o f
objections lodged against the settlem ent is a factor to be considered by the court. Cotton, 559
F.2d at 1331 (a settlement can be fair notwithstanding a large number o f class members who
' 0 0 0 0 1 0 7
10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
k
oppose it.) In Cotton, notwithstanding several objections to the decree, the court found that
the district judge had not abused his discretion in finding the settlement fair, adequate, and
reasonable. Id. at 1334. In this case, however, even after extensive, court-approved notice
to class members by publication and other means, not one objection has been filed with the
Court.
B. The Proposed Consent Decree is Consistent With The 14th Amendment and Title VII
Narrowly Tailored to Serve A Compelling Government Purpose.
An affirmative action plan pursuant to a Consent Decree must pass strict scrutiny in
order to "smoke out" illegitimate uses of race-conscious measures. City of Richmond v.
Croson, 488 U.S. 469, 109 S.Ct. 706, 721, 102 L.Ed. 2d 854, 881 (1989); United States v.
Paradise, 480 U.S. 149, 166, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987). In order to pass strict
scrutiny, the plan must be justified by a compelling governmental interest and must be
narrowly tailored to serve that interest. Id. The Title VII standard is similar. Johnson v.
Transportation Agency, Santa Clara County, 480 U.S. 616, 627-30,107 S.Ct. 1442,1449-51, 94
L.Ed.2d 615 (1987); Davis v. City and County o f San Francisco, 890 F.2d 1438, 1445 (9th Cir.
1989) (there must be an important reason or adequate justification for the use of affirmative
action and the Decree must not unnecessarily burden the rights of the nonminority
employees). The proposed Consent Decree passes muster since the Decree’s goal is to
remedy the effects o f continuing discrimination by the LAPD against minority officers, and
the means chosen represent a narrowly tailored effort.
1. The Decree is Justified by the "Compelling" or Important Governmental
Interest o f Curing Apparent Discrimination.
LAPD has a compelling interest in remedying th e effects o f past and present racial
discrimination. Croson, 488 U.S. at 492; Davis, 890 F.2d at 1445; Associated General
Contractors v. San Francisco, 748 F.Supp. 1443,1448(N .D .C a. 1990). In order to convince
the Court that its proffered purpose o f remedying past discrimination is genuine, LAPD must
have a strong basis in evidence for concluding that remedial measures are necessary. Croson,
488 U .S. at 500. 0 000108
70
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
k
The plaintiffs' uncontroverted statistical evidence provides the strong basis needed to
establish discrimination in the LAPD. In most employment discrimination cases, the factual
predicate for race-conscious relief is established by workforce imbalance statistics alone even
without a showing of prima facia discrimination. See, e.g, Donaghy v. City o f Omaha, 933 F.2d
1448, 1460 (8th Cir. 1991) (underrepresentation of minorities in various ranks of the police
department is strong evidence of discrimination); see also Chicago Fire Fighters v. Washington,
736 F.Supp. 923, 929 (N.D. 111. 1990). In the instant case, although minority officers are 39%
of the LAPD, they are only 24% of Detectives, 21% of Sergeants, and 17% of Lieutenants.
Other cases hold that evidence of selection disparities and other evidence of prima
facie discrimination establish the requisite strong evidentiary basis. See, e.g., Stuart v. Roache,
951 F.2d 446, 450 (1st Cir. 1991) Howard v. McLucas, 871 F.2d 1000, 1007 (11th Cir. 1989).
In the instant case, selection rate disparities establish a prima facia case of denial of
promotions and advancement.
In sum, plaintiffs’ uncontroverted statistical evidence establishes that LAPD’s proffered
purpose of remedying circumstances that amount to apparent discrimination is genuine.
2. The Consent Decree is Narrowly Tailored to Correct Identified Discrimination
As stated above, besides serving a compelling or important governmental interest, race
conscious remedies must be tailored narrowly to achieve that interest. The plan proposed in
the Consent Decree complies with the parallel Title VII and 14th Amendment requirements
because the plan is not over inclusive and imposes relatively little burden on non-minority
sworn police officers.
The proposed Decree responds narrowly to identified discrimination only. The
Decree’s annual and interim goals apply to Latinos, African Americans and Asian Americans,
the minority groups identified as being underrepresented. Cf Croson, 488 U.S. at 506. The
Decree’s goals are directly tied to the relevant workforce, that is, the percentage o f qualified
minorities eligible for promotions in the LAPD. Stuart, 951 F.2d at 450-451. A ll annual and
interim goals contained in the proposed Decree are subject to the availability o f qualified
African-American, Latino and Asian American candidates. The Decree specifically prohibits
•VO 000109
I
7.1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
promoting, advancing, or assigning any person unqualified under the current selection
standards, devices, practices or procedures. Consent Decree at U 22, see Donaghy, 933 F.2d
at 1461. The proposed consent Decree contains goals not quotas; it merely requires that the
City make good faith efforts to recruit to higher ranks the ethnic or racial group’s percentage
representation among the relevant workforce.
The parties have determined that present circumstances require a race conscious
remedy to dislodge ingrained patterns. Associated General Contractors, 748 F.Supp. at 1448.
In a genuine effort to remedy past and present day discrimination the proposed Decree
contains other remedies as well, such a job counseling, scholarships, and training programs.
The parties recognize, however, that these programs alone would be inadequate, and are
deployed in conjunction with the promotion and advancement goals described earlier.
The plan at issue is flexible. The proposed Consent Decree is of a fifteen year
duration, although it also provides that its conditions may be fully met within twelve years if
vigorous efforts are made. Davis, 890 F.2d at 1447. Therefore, the proposed Decree properly
provides for an appropriate termination point for the affirmative action program and provides
for earlier cessation if the goals of the Decree are met within a shorter time frame. Id.
Finally, the Decree is narrowly drawn so as not to adversely affect the rights of Anglo
police officers. The Decree does not require that Anglo officers be in any way demoted or
laid off. Anglos can compete on an equal basis with minorities for promotions, pay grade
advancements, and assignments. Unlike other cases in which a reverse discrimination
challenge was mounted by Anglo employees, none has occurred here although Anglo officers
have had substantial notice o f the terms of the proposed Decree. The Police Protective
League, the collective bargaining agent for all LAPD officers, provided its members with a
summary o f the D ecree in a bulletin dated December 1991. Exhibit G to Bill Lann Lee
Declaration, Police Protective League Bulletin No. 3 "Proposed Consent Decree and
Agreement Resolving Litigation re Police Department Promotions, Paygrade Advancements,
and Assignments to ‘Coveted Positions,” dated December 24, 1991. Rather than intervene
to upset the Decree, the League announced that: "[T]he League was not, and will not be, a
0 0 0 0 1 1 0
2 2 ■
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
t
II
party to the litigation which lead to this proposed settlement agreement. Because the League
must fairly represent all of its members without regard for their sex, race, religious or national
origin, the League cannot concur, oppose or participate in the proposed Consent Decree and
Agreement." Id. at 1. Anglo officers also received notice of the terms of the Decree and
these proceedings through the posting of notices on all LAPD bulletin boards, and a reading
of the notice at all roll calls on April 29, 1992. Nevertheless, no individual or organization
has intervened to argue that the proposed Decree violates the rights of non-parties.
In sum, the relief contained in the proposed Consent Decree represents a narrowly
tailored effort limited in time, to overcome the effects of past discrimination.
For the above reasons, plaintiffs respectfully submit that the Court should approve the
Consent Decree in Full Settlement of Class Claims.
VI.
CONCLUSION
Asian Pacific American Legal Center of
Southern California ̂ .
DATED:
0 000111
23