Clinton v. Jeffers Jurisdictional Statement
Public Court Documents
January 21, 1992

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Brief Collection, LDF Court Filings. Puckett v. City of Louisville Brief of Appellee, 1992. 765aac9f-c19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/7adefca7-97d1-46ff-b424-f5d21dcc211e/puckett-v-city-of-louisville-brief-of-appellee. Accessed July 30, 2025.
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THE UNITED STATES COURT OFAPPEALS FOR THE SIXTH CIRCUIT DOUGLAS PUCKETT, Plaintiff-Appellant, vs. No. 92-5869 CITY OF LOUISVILLE, LOUISVILLE CIVIL SERVICE BOARD, LOUISVILLE POLICE DEPARTMENT, LOUISVILLE FRATERNAL ORDER OF POLICE, LOUISVILLE BLACK POLICE OFFICERS ASSOCIATION Defendants-Appellees. On Appeal from the United States District Court for the Western District of Kentucky at Louisville BRIEF FOR APPELLEE LOUISVILLE BLACK POLICE OFFICERS ASSOCIATION PAUL SOREFF Allison, Garber & Russell PSC 1326 South Third Street Louisville, Kentucky 40208 JULIUS L. CHAMBERS CLYDE E. MURPHY NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street Suite 1600 New York, New York 10013 (212) 219-1900 Attorneys for Defendant-Appellee THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT DOUGLAS PUCKETT, Plaintiff-Appellant, vs. No. 92-5869 CITY OF LOUISVILLE, LOUISVILLE CIVIL SERVICE BOARD, LOUISVILLE POLICE DEPARTMENT, LOUISVILLE FRATERNAL ORDER OF POLICE, LOUISVILLE BLACK POLICE OFFICERS ASSOCIATION Defendants-Appellees. DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST Pursuant to 6th Cir. R. 25, the Louisville Black Police Officers Association, makes the following disclosures: 1. Is said party a subsidiary or affiliate of a publicly-owned corporation? No If the answer is YES, list below the identity of the parent corporation or affiliate and the relationship between it and the named party: 2. Is there a publicly-owned corporation, not a party to the appeal, that has a financial interest in the outcome? No If the answer is YES, list the identity of such corporation and the nature of the financial C ________ to/ W ?2-. E. Murphy lCP Legal Defense and Educational Fund, Inc. 99 Hudson Street, Suite 1600 New York, New York 10013 (212) 219-1900 (Date) ISSUE PRESENTED FOR R E V IE W ................................................................................. 1 STATEMENT OF JURISDICTION ................................................................................... 1 STATEMENT IN SUPPORT OF ORAL ARGUMENT ............................................... 1 STATEMENT OF THE C A S E ............................................................................................. 1 Statement of Facts ...................................................................................................... 2 ARGUMENT .......................................................................................................................... 3 I. THE DISTRICT COURTS ORDER GRANTING SUMMARY JUDGMENT WAS AN APPROPRIATE APPLICATION OF THE PRINCIPLES UNDERLYING RULE 56, FEDERAL RULES OF CIVIL PROCEDURE ................................................................................... 3 II. MARTIN V. WILKS IS INAPPLICABLE TO THE FACTS AND CIRCUMSTANCES OF THIS CASE, AND DOES NOT PROVIDE SUPPORT FOR THE APPELLEE’S ALLEGATIONS ......................... 4 III. THE DISTRICT COURTS CONSIDERATION OF VOGEL V CITY OF CINCINNATI, UNDERSCORES THE LACK OF LEGAL MERIT IN APPELLEE’S ASSERTIONS ................................................. 7 CONCLUSION ........................................................................................................................ 8 APPELLEE’S DESIGNATION OF APPENDIX CONTENTS .................................. 10 TABLE OF CONTENTS l TABLE OF AUTHORITIES Cases: Pages: Aetna Ins. Co. v. Loveland Gas & Elec. Co., 369 F.2d 648 (6th Cir. 1966) .........................................................................................4 Louisville Black Police Officers Association, et al. v. City of Louisville, et al., C74-0106-L (September 22, 1980) ......................................................................Passim Martin v. Wilks, 490 U.S. 755 (1989) ............................................................................ 4-6, 8 Poller v. Columbia Broadcasting Sys., Inc., 491 U.S. 464 (1962).........................................................................................................4 Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir. 1992), cert, denied, 60 USLW 3381 (October 5, 1992) ................................................... 7, 8 Wygant v. Jackson Board of Ed., 476 U.S. 267 (1 9 8 6 )........................................................ 7 Statutes: Pages: KRS 344.040 ....................................................................................................................................1 Rules and Other Authorities: Pages: Rule 56, Federal Rules of Civil P ro ced u re ................................................................................3 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2 7 1 6 .................................................................................................................. 3 li ISSUE PRESENTED FOR REVIEW Whether the district court properly determined that based on the evidentiary record, there were no genuine issues of material fact, and that the defendants-appellees were entitled to summary judgment as a matter of law. STATEMENT OF JURISDICTION Appellee, Louisville Black Police Officers Association, accepts the appellant’s statement of jurisdiction. STATEMENT IN SUPPORT OF ORAL ARGUMENT Defendant-Appellee, Louisville Black Police Officers Association, does not believe that novel issues are presented by the appeal of the district court’s order granting the defendants’ summary judgment motion. However, defendant-appellee, Louisville Black Police Officers Association, does not wish to waive its right to oral argument, should the Court determine that such argument would be helpful. STATEMENT OF THE CASE This appeal arises from an action filed by the appellant, Douglas Puckett, a white police officer employed by the City of Louisville, Kentucky. The Appellee alleges that he was the victim of unlawful racial discrimination in 1985 and 1986, when he was denied promotions granted to black officers. Mr. Puckett’s original action was filed before the Jefferson Circuit Court of the Commonwealth of Kentucky pursuant to KRS 344.040. The action was removed to the United States District Court for the Western District of Kentucky at Louisville, on motion of the defendant, City of Louisville; and, the defendant, 1 Louisville Black Police Officers Association, was joined as an indispensable party to this action by order of the court dated July 19, 1991. The underlying basis for the joinder of defendant, Louisville Black Police Officers Association, was its status as plaintiff in a 1979 civil action brought against the City of Louisville, which resulted in a court-approved consent decree in Louisville Black Police Officers Association, et al. v. City o f Louisville, et ai, C74-0106-L (September 22, 1980). In that case the district court determined that the City of Louisville had engaged in unconstitutional intentional discrimination against black applicants for positions with the Louisville Police Department, and a consent decree was entered which, inter alia, controlled the promotion process, and required that referrals for promotion to Lieutenant be race-conscious, and that referral groups alternate between black eligibles and white eligibles. On three of the ten occasions for promotions that arose during the relevant period, the referral group was black. Mr. Puckett was not referred for promotional consideration during this period. Statement of Facts The basic facts which underlie Mr. Puckett’s contentions are not in dispute, and are clearly stated in the district court’s Memorandum Opinion. Mr. Puckett ranked tenth on a list of sixteen eligible candidates for lieutenant during the 1985 and 1986 period. During this time, ten vacancies for Lieutenant were filled, each from a group of three referrals from the list of eligibles. As required by the consent decree entered in Louisville Black Police Officers Association et al. v. City of Louisville, el al., C74-0106-L (September 22,1980), the referrals were race-conscious, and the referral groups alternated between black eligibles and white eligibles. Three of the ten referral groups for lieutenant during this period were black, and Mr. Puckett was not referred before the eligibility list expired. The district court similarly found undisputed, the fact that were it not for the consent decree, the referral procedure previously followed by the City of Louisville would 2 have led to Mr. Puckett being a member of one of the referral groups for promotion to lieutenant Finally, the district court found that while Mr. Puckett’s allegation, "squarely presents the question of the extent to which compliance with that consent decree shields the City and the Board [Louisville Civil Service Board] from claims of race discrimination", he had failed to offer "any material indicating that the consent decree was not justified by a compelling state interest". Memorandum Opinion, p.2. Based on these facts and the evidentiary record before it, including an understanding of the proceedings, and the overwhelming evidence of intentional racial discrimination which lead to the consent decree in Louisville Black Police Officers Association et al. v. City o f Louisville, et al, C74-0106-L (September 22, 1980), the district court granted defendants’ motion for summary judgment, finding: "Although Puckett has utilized his opportunity to conduct discovery, and although the issue of the propriety of the challenged policy was clearly raised by defendants’ motions for summary judgment, Puckett has offered nothing to meet the strong evidence that the challenged remedial action was necessary. As there is no dispute of fact concerning this issue, we believe the defendants are entitled to judgment as a matter of law." Memorandum Opinion, p.8. ARGUMENT I. THE DISTRICT COURT’S ORDER GRANTING SUMMARY JUDGMENT WAS AN APPROPRIATE APPLICATION OF THE PRINCIPLES UNDERLYING RULE 56, FEDERAL RULES OF CIVIL PROCEDURE The standard that an appellate court applies in reviewing the grant or denial of a summary judgment motion is the same as that employed by the trial court initially under Rule 56, Federal Rules of Civil Procedure, that is, summary judgment is proper when it appears "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Wright, Miller & Kane, Federal Practice and 3 Procedure: Civil 2d § 2716. Even when viewed in the lighfmost favorable to the appellee, Poller v. Columbia Broadcasting Sys., Inc., 491 U.S. 464 (1962); Aetna Ins. Co. v. Loveland Gas & Elec. Co., 369 F.2d 648 (6th Cir. 1966), the evidentiary record, and the applicable law, in this case, makes clear that the district court’s summary judgment order was appropriate. Moreover, the district court’s Memorandum Opinion, expressly sets forth the undisputed facts as well as the reasons for its conclusion that there were no genuine issues of fact or law with regard to appellee’s assertions. II. MARTIN V. WILKS IS INAPPLICABLE TO THE FACTS AND CIRCUMSTANCES OF THIS CASE, AND DOES NOT PROVIDE SUPPORT FOR THE APPELLEE’S ALLEGATIONS The essence of the appellee’s argument is that the Supreme Court’s decision in Martin v. Wilks, 490 U.S. 755 (1989), permits him to challenge the implementation of the consent decree approved by the court as a result of litigation in Louisville Black Police Officers Association et al. v. City o f Louisville, et al, C74-0106-L (September 22, 1980). There is no basis for such an assertion. As the district court observes, Martin v. Wilks, 490 U.S. 755 (1989) differs significantly from the case at bar. First, the court’s decision in Louisville Black Police Officers Association et al. v. City o f Louisville, et al., C74-0106-L, included an explicit judicial determination that the City had engaged in unconstitutional intentional discrimination against black applicants, and second, the Birmingham Firefighters (contrary to the Louisville Fraternal Order of Police (FOP)) were not parties to the Wilks litigation, and did not attempt to intervene until the fairness hearing. Here, the FOP was a participating party in the litigation for five years prior to the entry of the consent degree. The FOP participated fully in the Stage One discovery and trial proceedings that resulted in the Court’s finding of discrimination. As this Court stated in a June 19, 1989 opinion: The original remedy was part of a process that involved the adversary procedure, careful examination of evidence, 4 participation by intervepors, and multiple opportunities for input from those not named as parties to the action. Memorandum Opinion, p.5 These circumstances are particularly important where, as here, a strong community of interest existed between the appellee, Mr. Puckett, and the Louisville Fraternal Order of Police, of which he was a member. Contrary to the assertions of the Appellee, the district court exhaustively considered the question of whether there was a community of interest between Mr. Puckett and the FOP, and found that interest to be "extremely strong": the court’s determination in that regard was not "clearly erroneous". Analyzing the claims of Mr. Puckett, and reviewing the assertions of the FOP during the course of the prior litigation, Judge Allen found as follows: "Finally, the FOP was not simply in a position in which it could have raised the challenges Puckett offers here; the FOP, acting as a party, did specifically challenge the provisions that resulted in Puckett’s not being referred for promotion. In a lengthy September 22, 1980 opinion, the Court addressed these objections directly, discussing the enduring discrimination that justified the remedy and rejecting the objections for stated reasons." (emphasis in original) Memorandum Opinion, p.6 Prior to certification of the plaintiff class, the Fraternal Order of Police, Louisville Lodge #6, filed and was granted intervention with full party status (December 2,1975), and as the court below indicates, paragraph 4 of the intervening answer, and Puckett’s claims here are virtually identical.1 It follows that the appellee’s argument that there has been no showing of a community of interests between Mr. Puckett and the FOP, not only ignores facts that are undisputed and unassailable, but also badly misapprehends the meaning and breadth of Martin v. Wilks, 490 U.S. 755 (1989). The central point of the Supreme Court’s opinion in Wilks was the affirmation of the pre-Federal Rules of Civil Procedure concept that " 'it is a principle of Anglo- 1 See, Memorandum Opinion, pp.3-4. 5 American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.’ Hansberry v. Lee, Martin v. Wilks, 490 U.S. at 761. Notwithstanding the Court’s concern for the " 'deep rooted historic tradition that everyone should have his own day in court’ 18 C. Wright , A. Miller, & E. Cooper, Federal Practice and Procedure § 4449, p. 417 (1981) (18 Wright).", Wilks, 490 U.S. at 762, the Supreme Court explicitly recognized circumstances involving class actions, bankruptcy and probate actions, inter alia, where "a person, although not a party, has his interests adequately represented by someone with the same interests who is a party". Wilks, 490 U.S. at 762 n.2. It follows that while the court held that "A voluntary settlement in the form of a consent decree between one group of employees and their employer cannot possibly settle, voluntarily or otherwise, the conflicting claims of another group of employees who do not join in the agreement", Wilks, 490 U.S. at 768, the Court’s reasoning does not foreclose the contrary result where the absent party’s interest were "adequately represented by someone with the same interests who is a party". Wilks, 490 U.S. at 762 n.2. The circumstances underlying the consent decree here, and those presented in Wilks, could not be more distinct. Here, the Union, of which Puckett was a member, specifically intervened and was joined as a party for the full breadth of the litigation; participating in discovery, trial on the merits, and, after judgment, participating in the negotiation that led to settlement, and ultimately taking its place as a signatory to the decree itself. Here, the legal basis for the numerical relief embodied in the consent decree was a judicial finding of broadbased, intentional discrimination, in a proceeding in which the interests of all those effected by the decree were plainly and adequately represented. Moreover, the relief agreed to by the parties, sought to protect the rights of those who shared Puckett’s interest, by preserving the ability of whites to continue to obtain opportunities for promotion, notwithstanding the breadth and devastating effect of the City’s prior discrimination against African Americans. 6 III. THE DISTRICT COURT’S CONSIDERATION" OF VOGEL V. CITY OF CINCINNATI, UNDERSCORES THE LACK OF LEGAL MERIT IN APPELLEE’S ASSERTIONS Notwithstanding the district court’s determination of a strong community of interest between appellee Puckett, and the defendant FOP, the court also considered the underlying legal basis for Appellee’s claims, as if he were not a party to the prior action. Applying the standard set out by this Court in Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir. 1992), cert, denied, 60 USLW 3381 (October 5, 1992), the district court held that on the basis of that opinion as well, the appellee’s challenge would similarly fail. Vogel essentially recognizes that any racial classification, including race-conscious affirmative action plans, are subject to strict scrutiny, and therefor, "must be justified by a compelling state interest, Wygant v. Jackson Board o f Ed., 476 U.S. 267, 274 (1986) (plurality opinion)...". Vogel, 959 F.2d at 599. For the City’s affirmative action policy to pass muster pursuant to this strict scrutiny standard, the City must have " ' a strong basis in evidence for its conclusion that remedial action was necessary.’" Long supra, 911 F.2d at 1196 (quoting Wygant, supra, 476 U.S. at 277). [A]n amorphous claim that there has been past discrimination in a particular industry ..." does not suffice. Croson, supra, 488 U.S. at 499. Evidence of wide statistical disparities, however, may justify an affirmative action policy adopted by a public employer. Wygant, supra, 476 F.S. at 274-75 (citing Hazelwood School District v. United Stales, 433 U.S. 299, 307-08 (1977V). Here, the proper statistical comparison is between the race and gender of the Cincinnati Police Division and the race and gender of the Cincinnati Police Division (sic) and the race and gender of the relevant qualified labor market. Croson, supra, 488 U.S. at 501-02; Wygant, supra, 476 U.S. at 275; Hazelwood, supra, 433 U.S. at 308,. Vogel, supra, 959 F.2d at 599-600. In Vogel, the court held, based on a statistical comparison, that Cincinnati "had 'a strong basis in evidence for its conclusion that remedial action was necessary,’ Wygant, supra, 476 U.S. at 277, and was justified in adopting the affirmative action hiring policy for its police force." Vogel, supra, 959 F.2d at 600. If the court below had held that Puckett had a legal basis for challenging the consent decree, the proper standard to be applied would have been the standard applied in Vogel. It is clear however, as the district court 7 holds, that the evidentiary basis for the remedial action in Louisville Black Police Officers Association et al. v. City o f Louisville, el al., C74-0106-L is far superior to that which passed constitutional muster in Vogel, and moreover, was based on a judicial finding of "intentional racial discrimination". "The consent decrees in C74-0106 were designed to remedy a pervasive racial discrimination that was amply supported by extensive evidence, much of it statistical (and demonstrating wide disparities), (footnote omitted) and much of it basea on step-by-step analysis of the selection criteria (including the written examinations) used by the police department for hiring and promotion." Memorandum Opinion, p.8. CONCLUSION While the appellee’s brief essentially argues that there was no "community of interest" between Mr. Puckett and any signatory to the consent decree, the district court’s memorandum opinion makes three important findings in support of its order: one, that there was a strong community of interest between the appellant and the Louisville Fraternal Order of Police2; two, that there are significant differences in the factual circumstances presented in Martin v. Wilks, 490 U.S. 755 (1989), and those presented in the instant case; and, three, that consistent with this court’s decision in Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir. 1992), there was undisputed compelling state interest to support the consent decrees approved in Louisville Black Police Officers Association et al. v. City o f Louisville, et al., C74-0106-L (September 22, 1980). For these and the foregoing reasons, defendant- appellee, Louisville Black Police Officers Association, request that the Court affirm the order of the district court. 2 The Louisville Fraternal Order of Police intervened and was joined as a party in Louisville Black Police Officers Association el al. v. City o f Louisville, et al., C74-0106-L (September 22, 1980). As such the FOP participated in pretrial discovery, trial, and was a signatory to the consent decree. 8 Respectfully submitted, PAULSOREFF Allison, Garber & Russell PSC 1326 South Third Street Louisville, Kentucky 40208 JULIUS L. CHAMBERS CLYDE E. MURPHY NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street Suite 1600 New York, New York 10013 (212) 219-1900 Attorneys for Defendant-Appellee, Louisville Black Police Officers Association 9 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Case No. 92-5869 Case Caption DOUGLAS PUCKETT, Plaintiff-Appellant, vs. CITY OF LOUISVILLE, LOUISVILLE CIVIL SERVICE BOARD, LOUISVILLE POLICE DEPARTMENT, LOUISVILLE FRATERNAL ORDER OF POLICE, LOUISVILLE BLACK POLICE OFFICERS ASSOCIATION Defendants-Appeilees. APPELLEE’S DESIGNATION OF APPENDIX CONTENTS Appellee, Louisville Black Police Officers Association, feels that the Appellant’s designation was complete and does not wish to supplement the designation Educational Fund, Inc. 99 Hudson Street Suite 1600 New York, New York 10013 (212) 219-1900 Attorneys for Defendant-Appellee 10 THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT DOUGLAS PUCKETT, Plaintiff-Appellant, vs. No. 92-5869 CITY OF LOUISVILLE, LOUISVILLE CIVIL SERVICE BOARD, LOUISVILLE POLICE DEPARTMENT, LOUISVILLE FRATERNAL ORDER OF POLICE, LOUISVILLE BLACK POLICE OFFICERS ASSOCIATION Defendants-Appellees. It is hereby certified that a copy of the foregoing Brief for Appellee, Louisville Black Police Officers Association was mailed this 8th day of October 1992, via overnight delivery to the Hon. Teddy B. Gordon, and the Hon. Michael L. Boylan, Attorneys for Plaintiff- Appellant, 807 West Market Street, Louisville, Kentucky 40202; Hon. Mark W. Dobbins, Attorney for Defendant Civil Service Board, 1406 One Riverfront Plaza, Louisville, Kentucky 40202; Hon. Mark L. Miller, Attorney for Defendant Fraternal Order of Police, 802 Republic Building, 429 West Muhammad AJi Blvd., Louisville, Kentucky 40202; and Hon. David Leightty, Hon. Cecil A. Blye, Jr., Hon. Paul V. Guagliardo, and Hon. Winston E. King, Assistant Directors of Law, Defendant City of Louisville, Room 200, City Hall, 601 West Jefferson Street, Louisville, Kentucky, CERTIFICATE OF SERVICE ^ d n s e l for Louisville Black Police Officers Organization $ '.■ s.i;? ;. ■. '..< .... w S ." '