Clinton v. Jeffers Jurisdictional Statement

    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



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