Court Aids Retarded Youth Interrogated by GA Police

    No.

In T he

Supreme Court of tl?e United §tates
October Term, 1990

N.A.A.C.P., D etroit Branch; T he Guardians, Inc . 
Brady Bruenton; Cynthia M artin; H ilton N apoleon; 
S harron Randolph; Betty T. Rolland; Grant Battle; 

Cynthia C heatom; Evin Fobbs; John H. H awkins; 
H elen Poelnitz, on behalf of themselves and all

OTHERS SIMILARLY SITUATED,

Petitioners,
vs.

D etroit Police O fficers A ssociation (DPOA);
D avid Watroba, President; C ity of D etroit; 

Coleman A. Young, Mayor; D etroit Police D ept.; 
Board of Police Commissioners; W illiam H art, C hief,

Respondents.

p e t it io n  f o r  w r it  o f  c e r t io r a r i  
t o  t h e  u n i t e d  s t a t e s  c o u r t  o f  a p p e a l s  

fo r  t h e  s ix t h  c ir c u it

PETITION FOR WRIT OF CERTIORARI

T homas I. A tkins 
135 Eastern Parkway, # 11 -B-1 
Brooklyn, N.Y. 11238 
(718) 638-4153 

Counsel o f  Record

Jeanne M irer 
Barnhart & M irer 
3310 Cadillac Tower 
Detroit, MI 48226 
(313) 961-6420 

Attorneys fo r  Petitioners

Gary Benjamin 
Schrauger & Dunn, P.C. 
5 Third Street 
Mt. Clemens, MI 48043 
(313) 964-2770

James W. M cG innis 
M cG innis & R ashed 
1215 Ford Building 
Detroit, MI 48226 
(313) 962-240

September 17, 1990



1

QUESTIONS PRESENTED

Petitioners are a certified class of 800 Black Detroit police 
officers who were laid off in reverse seniority order from their 
jobs in 1979 and 1980. The district court, finding a violation of 
Petitioners’ rights under the Equal Protection Clause of the 
Fourteenth Amendment, ordered reinstatement of all laid off 
officers, both Black and White, and enjoined further uniformed 
police layoffs without court approval. The Court of Appeals for 
the Sixth Circuit initially reversed and remanded in 1987. On 
remand, the district court declared the case to be moot and 
dismissed it, on the grounds that all the officers had been rehired 
by the City and Blacks then constituted a majority of the union, 
making them capable of protecting themselves through union 
democracy. Petitioners appealed the determination of mootness. 
The court of appeals reversed the determination of mootness, but 
then ordered the case dismissed, on the grounds that §703(h) of 
Title VII immunized the City’s layoffs from attack because they 
were done pursuant to a bona fide seniority system, and it further 
found that the union’s conduct was similarly immunized from 
attack.

The questions presented are:

(1) Did the layoffs violate Petitioners’ Equal Protec­
tion rights where, at the time of the layoffs, the City of 
Detroit was under an unmet constitutional obligation to 
remedy the effects of its pervasive intentional racial discrim­
ination in Police Department employment.

(2) In a case in which no formal complaints were filed 
with the EEOC, does the Equal Protection Clause, enforcea­
ble through 42 U.S.C. §1983, empower federal courts to 
enjoin such layoffs, notwithstanding §703(h) of Title VII of 
the Civil Rights Act . of 1964, under which the routine 
application of a seniority system does not violate Title VII?

(3) Where the DPOA (Petitioners’ union) failed to 
bargain about these layoffs and where the Petitioners’ race 
limited the union’s efforts to find alternatives to the layoffs.



il

is the union liable under its Duty of Fair Representation and 
42 U.S.C. §1981, even if layoffs are not a mandatory subject 
of bargaining?

(4) Will the passage of the Civil Rights Act of 1990 
require remand of this case so that the Sixth Circuit Court 
of Appeals may revisit its decision?



Ill

With the exception of the Detroit Branch of the NAACP, all 
parties with an interest in this matter are fully contained on the 
cover page.

The Detroit Branch of the NAACP is the biggest one of 
nearly 2,000 subsidiary units of the National Association for the 
Advancement of Colored People, a New York Corporation, with 
current headquarters at 4805 Mt. Hope Dr., Baltimore, MD 
21215, (301) 486-9191. The NAACP, a membership organiza­
tion, seeks to confront and combat racial discrimination in all 
areas of American life, including in law enforcement.

The Guardians, Inc. is a Michigan Corporation, with a 
membership of Black Police Officers, drawn primarily, but not 
exclusively, from the City of Detroit’s Police Department. Its 
aims are to advance the interests of blacks and other non-whites 
in the law enforcement field, including to confront racial discrim­
ination, segregation and prejudice where viewed as impediments 
to equal opportunity for black officers.

The 10 individual Petitioners were all Detroit police officers 
and members of the Guardians at the time of trial below.

The named Plaintiffs-Petitioners are the representatives for 
a certified class which consists of black uniformed police officers 
in the City of Detroit who were laid off in either 1979 or 1980 
from their employment with the Detroit Police Department.

LIST OF PARTIES

Thomas I. Atkins, Esq. 
Counsel o f  Record for  

Petitioners



IV

Page

QUESTIONS PRESEN TED .............................................  i
LIST OF PA R TIES............................................................. iii
TABLE OF AUTHORITIES.............................................. v
INTRODUCTORY PRA Y ER...........................................  ix
CITATIONS TO OPINIONS BELOW............................  x
JURISDICTION...................................................................  xi
STATUTES, CONSTITUTIONAL PROVISIONS . . . .  xii
STATEMENT OF THE C A SE .........................................  1
REASONS FOR GRANTING THE W R IT ................ 6
I. THE COURT OF APPEALS OPINION 

CONFLICTS WITH THE DECISIONS OF 
OTHER CIRCUITS CONCERNING THE 
REMEDIAL RELATIONSHIP BETWEEN THE 
EQUAL PROTECTION CLAUSE AND
TITLE V II .....................................................................  6

II. THE Opinion BELOW CONFLICTS WITH
LANDMARK CASES IN THIS COURT 
CONCERNING THE REMEDIAL REACH OF 
THE EQUAL PROTECTION CLAUSE AND 42 
U.S.C. 1983 ...................................................................  10

III. THE SIXTH CIRCUIT’S Opinion RAISES 
IMPORTANT ISSUES RE: 42 U.S.C. 1983
THAT NEED RESOLUTION BY THIS COURT 15

IV. THE OPINION BELOW ON UNION 
LIABILITY CONFLICTS IN PRINCIPLE 
WITH APPLICABLE RULINGS OF THIS 
COURT
District Court Findings On DPOA L iab ility ........... 19
The Opinion’s Dismissal of the §1981 Claim 
Conflicts With This Court’s Holding in Johnson v.
Railway Express Agency .............................................. 21
The Duty of Fair Representation C laim .................... 24

V. HISTORIC AND CURRENT 
CONGRESSIONAL ACTION EACH
SUPPORTS GRANTING THE PETITION ......... 26

Conclusion..............................................................................  27

TABLE OF CONTENTS



V

FEDERAL CASES Page
Alexander v. Chicago Park District, 773 F.2d 

850 (7th Cir. 1985)................................................ 8
Alexander v. Gardner-Denver Company, 415 U.S.

36 (1974).................................................................  12
Alvey v. General Electric, 622 F.2d 1279

(7th Cir. 1 9 8 0 )......................................................  24
American Tobacco Company v. Patterson, 456 

U.S. 63 (1982),......................................................  18
Arthur v. Nyquist, 712 F.2d 816 (2d Cir. 1983) . 6, 7, 8
Baker v. City o f  Detroit, 483 F. Supp. 930 (E.D.

Mich. 1979)............................................................. 1, 2, 4,
6, 9

Bratton v. City o f  Detroit, 704 F.2d 878
(6th Cir. 1 9 8 3 )......................................................  1 ,9

Brown v. Bd. o f Education,
347 U.S. 483 (1954).............................................. 2 ,10

Brown v. Bd. o f  Education,
349 U.S. 294 (1955).............................................. 2 ,10

Brown v. G.S.A,
425 U.S. 820 (1976).............................................. 22

Carpenter v. Stephen F. Austin State University,
706 F.2d 608 (5th Cir. 1983)............................... 8

Chance v. Board o f  Examiners and Board o f  
Education o f the City o f  New York, 534 F.2d 
993 (2nd Cir. 1 9 7 6 ).............................................. 9

City o f  Mobile v. Bolden, 446 U.S. 55 (1980) . . .  26
Columbus Bd. o f  Educ. v. Penick, 443 U.S. 449

(1979) ............................ -........................................  2,11
Day v. Wayne County Board o f Auditors, 749 

F.2d 119 (6th Cir. 1984);......................................  8
Dayton Bd. v. Brinkman, 443 U.S. 526 (1979) . . 2, 11

TABLE OF AUTHORITIES



VI

FEDERAL CASES P?H£
Drummond v. Acree, 409 U.S. 1228 (1972)......... 17
Emmanuel v. Omaha Carpenters District

Council, 535 F.2d 420 (8th Cir. 1 9 7 6 ).............  24
Firefighters Local Union No. 1784 v. Stotts,

467 U.S. 561 (1984).............................................. 9, 18, 24
General Electric v. Gilbert, 429 U.S. 125 (1976) . 26
Goodman v. Luckens Steel Co., 482 U.S. 656 

(1987) .....................................................................  24
Grano v. Department o f  Development, City of 

Columbus, 637 F.2d 1073 (6th Cir. 1980) ___  8
Great American Federal Savings & Loan 

Association v. Novotny, 442 U.S. 366 (1979) . . 22
Green v. New Kent County Bd. o f  Education,

391 U.S. 430 (1968)............................................  2 ,6 ,1 0 ,
11, 13

Griffin v. Breckenridge, 403 U.S. 88 (1971)............. 26
Griggs v. Duke Power Co.,

401 U.S. 424 (1971).............................................. 9 ,14
Groves City College v. Bell,

465 U.S. 555 (1984).............................................. 26
Hines v. Anchor Motor Freight, Inc.,

424 U.S. 554 (1976).............................................. 24
Jennings v. American Postal Workers Union,

672 F.2d 712 (8th Cir. 1982)................................ 24
Johnson v. Railway Express Agency, Inc.,

421 U.S. 454 (1975).............................................. 12 ,21 ,22
Jones v. Mayer, 392 U.S. 409 (1968).................... 26
Keyes v. School Dist. No. I, Denver, 413 U.S.

189 (1973).......................   10,11
Local 28 o f Sheet Metal Workers v. EEOC,

478 U.S. 421 (1986).............................................. 9
Louisiana v. U.S., 380 U.S. 145 (1 9 6 5 )...............  10, 1 1, 16
Marbury v. Madison, 1 Cranch 137 (1 8 0 3 )......... 15, 17



FEDERAL CASES Page
McDonnell-Douglas Corp. v. Green, 41 1 U S 

792 (1973)............................................................... 14
Milliken v. Bradley, 433 U.S. 267 (1 9 7 7 )...........  7
Missouri v. Jenkins, 110 S. Ct. 1651, 109 L. Ed.

2d 31, 58 U.S.L.W. 4480 (1990)........................  16, 19
Morgan v. O’Bryant, 671 F.2d 23 (1st Cir. 1982) 6, 7, 8
Morton v. Mancari, 417 U.S. 535 (1974).............  14
NAACP v. DPOA, 591 F. Supp. 1194

(E.D. Mich. 1984).................................................. 2, 3, 6, 9,
19

NAACP v. DPOA, 629 F. Supp. 1173
(E.D. Mich. 1985)..................................................  20

NAACP v. DPOA, 676 F. Supp. 790
(E.D. Mich. 1988)..................................................  5, 1 , 9 ,

21
NAACP v. DPOA, 685 F. Supp. 1004 

(E.D. Mich. 1988)..................................................  5 7
NAACP  v. DPOA, 821 F.2d 328 (6th Cir. 1987) . 4
NAACP v. DPOA, 900 F.2d 903 (6th Cir. 1990) . passim
Patterson v. McLean, 109 S. Ct. 2363 (1989) . . .  5, 23
North Carolina State Bd. o f Education v.

Swann, 402 U.S. 43 (1 9 7 1 )................................. 16
Ratliff v. City o f  Milwaukee, 795 F.2d 612 (7th 

Cir. 1986), cert, denied, 106 S. Ct. 1492 
(1986) ...................................................................... 8

Smith v. Robinson, 468 U.S. 992 (1 9 8 4 )...............  26
Steel v. L & N  Railway, 323 U.S. 192 (1944). . . 24
Swann v. Charlotte-Mecklenburg Board o f

Education, 402 U.S. 1 (1 9 7 1 )............................  6, 9, 10,
17

Teamsters v. United States,
431 U.S. 324 (1977).............................................. 14,17

Trans World Airlines, Inc. v. Hardison,
432 U.S. 63 (1 9 7 7 ),.............................................. 18

vii



Vl l l

FEDERAL CASES Page
Trigg v. Fort Wayne Community Schools,

766 F.2d 299 (7th Cir. 1985)’.................................  8
United States v. Paradise, 107 S. Ct. 1053 

(1987) .....................................................................  9
U S. v. Price, 383 U.S. 787 (1 9 6 6 )........................  26
Vaca v. Sipes, 386 U.S. 171 (1967) ...................... 24
Vulcan Society o f  N. Y. City Fire Department v.

Civil Service Commission, 490 F.2d 387
(2d Cir. 1973)........................................................  8

Washington v. Davis, 626 U.S. 229 (1976)........... 15
Watkins v. United Steel Workers, 516 F.2d 41 

(5th Cir. 1 9 7 5 )......................................................  23
Wright v. Council o f  City o f  Emporia, 407 U.S.

451, 92 S. Ct. 2196 (1972) ................................... 11
Wyatt v. Interstate & Ocean Transport Co., 623 

F.2d 888 (4th Cir. 1980 ).....................................  24

STATE CASES

Local 1277, AFSCME  v. City o f Centerline, 414 
Mich. 642, 327 N.W.2d 822 ..............................  24, 25

CONSTITUTIONAL PROVISION

Tenth Amendment ....................................................  16, 20
Fourteenth Amendment, 42 U.S.C. §1981 ...........  passim

STATUTES AND LEGISLATIVE MATERIALS
42 U.S.C. §1981......................................................... passim
42 U.S.C. §1983 ......................................................... passim
Title VII o f the 1964 Civil Rights Act, 42

U.S.C. §2000e et seq..............................................  passim
Civil Rights Act o f 1990, Sen. Bill 2104 .............  26
The Congressional Globe, 42d Congress,

1st Sess. (1871)......................................................  26



INTRODUCTORY PRAYER

Now come the Petitioners to respectfully request that this 
Court grant the Petition for a Writ of Certiorari to the 6/18/90 
Opinion of the Court of Appeals for the Sixth Circuit, so that 
Petitioners will be permitted to discuss the rulings below which 
conflict with decisions of other circuits and with the rulings of 
this Court.

Respectfully submitted,

Thomas I. Atkins



X

CITATIONS TO OPINIONS BELOW

The opinions below which are implicated in this Petition are:
1. NAACP v. DPOA,

591 F. Supp. 1194 (E.D. Mich. 1984)

2. NAACP  v. DPOA,
629 F. Supp. 1173 (E.D. Mich. 1985)

3. NAACP  v. DPOA,
676 F. Supp. 790 (E.D. Mich. 1988)

4. NAACP  v. DPOA,
685 F. Supp. 1004 (E.D. Mich. 1988)

5. NAACP v. DPOA,
821 F.2d 328 (6th Cir. 1987)

6. NAACP v. DPOA,
900 F.2d 903 (6th Cir. 1990)



XI

JURISDICTION

The judgment of the Court of Appeals for the Sixth Circuit 
was rendered on April 9, 1990. The Court of Appeals denied 
Petitioners’ request for Rehearing and Rehearing En Banc on 
June 18, 1990. NAACPv. DPOA, 900 F.2d 903 (6th Cir. 1990).

The jurisdiction of this Court is invoked under 28 U.S.C. 
§1254(1).



CONSTITUTIONAL AND STATUTORY PROVISIONS

1. The Equal Protection Clause o f  the Fourteenth Amend­
ment is the only constitutional provision directly impli­
cated in this Petition.

Statutory provisions implicated are:

2. 42 U.S.C. §1981
“All persons within the jurisdiction of the United States 
shall have the same right in every State and Territory to 
make and enforce contracts, to sue, be parties, give 
evidence, and to the full and equal benefit of all laws and 
proceedings for the security of persons and property as is 
enjoyed by white citizens, and shall be subject to like 
punishment, pains, penalties, taxes, licenses, and exac­
tions of every kind, and to no other.” Rev. Stat. @ 1977.

3. 42 U.S.C. §1983
“Every person who, under color of any statute, ordinance, 
regulation, custom, or usage, of any State or Territory, 
subjects, or causes to be subjected, any citizen of the 
United States or other person within the jurisdiction 
thereof to the deprivation of any rights, privileges, or 
immunities secured by the Constitution and laws, shall 
be liable to the party injured in an action at law, suit in 
equity, or other proper proceeding for redress.”

4. 42 U.S.C. §2000e et seq., particularly §703(h), which 
provides protection for bona fide seniority systems from 
suit under Title VII.
Title VII of the Civil Rights Act of 1964, 42 U. S. C. @ 
2000e-2(a), provides;
“(a) It shall be an unlawful employment practice for an 

employer—
“(1) to fail or refuse to hire or to discharge any 

individual, or otherwise to discriminate 
against any individual with respect to his 
compensation, terms, conditions, or privileges

xii



XIII

of employment, because of such individual’s 
race, color, religion, sex, or national origin; or

“(2) to limit, segregate, or classify his employees or 
applicants for employment in any way which 
would deprive or tend to deprive any individ­
ual of employment opportunities or otherwise 
adversely affect his status as an employee, 
because of such individual’s race, color, relig­
ion, sex, or national origin.”

5. §703(h) o f  the Civil Rights Act o f  1964, as set forth in 42 
U.S.C. §2000e-2(h) states, in pertinent part:
“Notwithstanding any other provision of this subchapter, 
it shall not be an unlawful employment practice for an 
employer to apply different standards of compensation, 
or different terms, conditions, or privileges of employ­
ment pursuant to a bona fide seniority or merit system, or 
a system which measures earnings by quantity or quality 
of production or to employees who work in different 
locations, provided that such differences are not the 
result of an intention to discriminate because of race, 
color, religion, sex, or national origin.”



1

Petitioners are a certified class of eight hundred Black police 
officers who were laid off from their jobs in the Detroit Police 
Department. The layoffs in question occurred in two waves, one 
in October of 1979, the other in September 1980. A total of 
eleven hundred officers were laid off. The Complaint in this case, 
filed on September 30, 1980 by the NAACP, the Guardians 
Police Association, and ten individual laid off officers, alleged 
that these layoffs inter alia, violated the Petitioners’ rights under 
the Equal Protection Clause of the Fourteenth Amendment, 42 
U.S.C. §1981, and §1983.

The Plaintiffs’ Equal Protection claim was grounded in more 
than two dozen pages of findings made by Judge Keith in Baker 
v. City o f  Detroit, 483 F. Supp. 930 (E.D. Mich. 1979), holding 
the City liable for past intentional racial discrimination violative 
of the Equal Protection Clause. Included were findings that the 
City of Detroit had: (1) systematically excluded Blacks from 
consideration for hiring; (2) refused to hire all but a token 
number of Blacks; (3) segregated those Blacks who were hired; 
and (4) prevented Blacks from obtaining promotions to ranks 
above police officer. Baker v. City o f Detroit, supra.'

Petitioners’ case was filed against the City of Detroit and the 
Detroit Police Officers Association (DPOA), the union which was 
certified to represent all uniformed police officers. The Baker 
findings formed the basis for the instant controversy because at 
the time of the layoffs in 1979 and 1980, the City had not yet 
remedied the effects of its prior discriminatory conduct. They 
had the effect of reducing Black representation on the uniformed 
force from 39% to 26%, at a time the percentage of Blacks 
necessary for the City to have eliminated the effects of its prior 1

STATEMENT OF THE CASE

1 The findings in Baker, affirmed in toto by the Court of Appeals, Bratton v. 
City o f  Detroit, 704 F.2d 878 (6th Cir. 1983), arose because of an 
unsuccessful challenge by White police sergeants to a one-for-one affirma­
tive promotion plan implemented in 1974 by the City after the Board of 
Police Commissioners determined such a plan was necessary. The findings 
in Baker were de novo, and based on the record made in the trial of a case 
in which one of the Petitioners herein, the Guardian Police Association, 
was an intervening Defendant.



2

conduct was slightly in excess of 50%. NAACP  v. DPOA, 591 F. 
Supp. 1194, 1200-01 (E.D. Mich. 1984).

Petitioners alleged that the City, by virtue of the findings of 
past intentional discrimination in Baker, was under an affirma­
tive duty to remedy not only the fact of that past discrimination 
but also its effects, including the duty not to abandon its effort 
until the effects had been eliminated “root and branch”.2 The 
City was sued pursuant to the Equal Protection Clause of the 
14th Amendment, and 42 U.S.C. §1983.

Petitioners alleged that the DPOA could have caused the 
layoffs to be avoided, had the unions’s all-white leadership 
refrained from discriminating on the basis of race. That is, had 
race not been factored in as a negotiation strategy, alternatives to 
the layoffs might well have been effected. Petitioners charged 
that the DPOA’s race-based conduct violated both the union’s 
Duty of Fair Representation and Petitioner’s rights under 
42 U.S.C. §1981.

Petitioners sought declaratory relief under the doctrine of 
collateral estoppel, asking that the findings of intentional dis­
crimination made in Baker be deemed binding on the City and 
the DPOA in the instant case. On 11/17/81 The district court 
granted that relief, making relitigation of those issues unneces­
sary. Petitioners thereafter sought Partial Summary Judgment 
against the City on the issue of liability. On 2/24/84, the district 
court granted the Partial Summary Judgment Motion, holding:

“ 1. That, based on the findings of intentional discrimi­
nation in Baker v. City o f Detroit, 483 F. Supp. 930 (cit. 
omitted) (E.D. Mich. 1979) . . . (cit. omitted), the City had 
a constitutionally imposed continuing affirmative obligation 
not only to stop the discrimination but to remedy all of the 
effects of the discrimination.

2 For these propositions, Petitioners relied on the principles stated in Brown 
v. Bd. o f  Education, 347 U.S. 483 (1954) (Brown I); Brown v. Bd. o f  
Education, 349 U.S. 294 (1955) (Brown II); Green v. New Kent County 
Bd. o f  Education, 391 U.S. 430 (1968); Columbus Bd. v. Penick, 443 
U.S. 449 (1979); and Dayton Bd. v. Brinkman, 443 U.S. 526 (1979) 
(Dayton II).



3

“2. That the City had not yet remedied the effects of 
this prior discrimination when, in 1979 and 1980, it reduced 
black representation on the police force.

“3. That by these layoffs, which the City knew full well 
would reduce black representation on the police force, the 
City breached its affirmative obligation to the plaintiffs in 
violation of their rights under the Fourteenth Amendment.”3

Trial commenced in May 1984 on the issues of liability 
against the DPOA and remedy against the City. The district 
court’s 7/25/84 opinion ordered the reinstatement of all laid off 
police officers, both black and white, and enjoined any further 
layoffs without court approval. The officers were not granted 
back pay, but were to retain their full seniority as if they had not 
been laid off. NAACP  v. DPOA, 591 F. Supp., @ 1220-1221.

The Court also found that the union had violated the Duty 
of Fair Representation in its handling of the matter, and made 
extensive findings as to the history of racial hostility toward 
DPOA’s black members and their aspirations.4

Of particular importance to this Petition is the district 
court’s statement that it:

“did not accept the City’s position advanced in post-trial 
argument that Title VII law regarding bona fide seniority 
systems is controlling in Constitutional litigation”.5

3 NAAC P  v. DPOA, 591 F. Supp. 1194, 1199 (E.D. Mich. 1984). The 
district court noted the City had admitted in its pleadings that it had 
made the race-conscious and politically-expedient decision to face a law­
suit by Blacks rather than by whites.

4 The Court placed the blame for the violation on a union leadership which 
failed to reflect or be sensitive to its black membership. The district court 
therefore ordered the union to integrate its leadership bodies and commit­
tees within twelve months. Ibid.

5 NAACP  v. DPOA, 591 F. Supp., @ 1203.



4

The district court’s remedial order, nonetheless, left the 
seniority system intact.6

The City reinstated all the officers in compliance with the 
district court’s injunctive orders. The City and the DPOA 
appealed as to liability and remedy, and Petitioners appealed the 
denial of back pay, other monetary relief such as pension credits, 
and the refusal of the district court to order reinstatement of 
those class members driven by the illegal layoffs to renounce 
recall rights in order to secure interim employment.

On 6/12/87, the court of appeals, while affirming the dis­
trict court’s ruling that collateral estoppel properly made the 
findings in Baker binding, remanded the case on the grounds that 
those findings, standing alone, were insufficient to support the 
relief.7

As to the union’s liability, the court of appeals held that, as 
layoffs were not a mandatory subject of bargaining, the DPOA 
had no duty to bargain over them, and that the failure to 
negotiate about the layoffs could not be the basis of a Duty of 
Fair Representation violation. The court of appeals remanded for 
action consistent with its Opinion, particularly instructing the 
district court to review Petitioners’ §1981 claim against the 
union.8

On remand, the district court denied motions by the City to 
enter judgment, and by the union for summary judgment, and 
accepted Petitioners’ claim that the remand hearing might pro­
duce findings to cure the alleged defects found by the court of

6 Petitioners had not directly attacked the seniority system, which was 
negotiated in 1967 at a time when the City was found to be discriminat­
ing. Rather, Petitioners argued that contractual seniority rights could not 
be relied on to defeat Constitutional rights.

7 NAAC P v. DPOA, 821 F.2d 328 (6th Cir. 1987). The Court of Appeals 
largely ignored the supplemental, de novo findings of liability made by the 
district court, based on the trial held below in the Spring of 1984.

8 NAAC P  v. DPOA, 821 F.2d, @ 333. The District Court had not reached 
this claim in light of its ruling on the Duty of Fair Representation charge.



5

appeals.9 However, the district court declined to take any further 
action on the ground that the case was then moot.10 *

Petitioners appealed the mootness finding. The court of 
appeals, while agreeing with Petitioners that the case was not 
moot, ordered the case dismissed anyway."

As it related to the City defendants, the dismissal was 
premised on the panel’s perception of Title VII law and its 
holding that §703(h) of Title VII, 42 U.S.C. §2000e, immunized 
the City’s layoffs from attack, because the layoffs had been based 
on the seniority system.12

The court also dismissed the claim as to the union, holding 
that the §1981 claim against the union was dependent upon the 
claim against the City, which it had already held was barred by 
§703(h). Citing Patterson v. McLean, 109 S. Ct. 2363 (1989), it 
noted that the §1981 claim was most likely not viable in any 
event.

A timely Petition for Rehearing was denied on 6/18/90, 
giving rise to the instant Petition for a Writ of Certiorari.

9 NAACP  v. DPOA, 676 F. Supp. 790, 796 (E.D. Mich. 1988).

10 NAAC P  v. DPOA, 685 F. Supp. 1004 (E.D. Mich. 1988). The district 
court’s mootness ruling was based on its finding that, at the time of the 
1988 remand hearing, the police force, through a combination of recalls 
and new hires had surpassed the percentage of black representation that 
the Court had previously found necessary to eliminate the effects of the 
past intentional discrimination. Similarly, the district court found the 
claim for relief against the union moot because blacks were now more 
than 50% of the union and, the Court reasoned, capable of electing 
leadership that would protect their interests. Ibid, @ 1007.

" NAACP v. DPOA, 900 F.2d 903 (6th Cir. 1990)

12 The court of appeals assigned no legal significance to the fact that 
Petitioners were seeking to vindicate Constitutional rights, nor to the fact 
that the City was protected from any collateral action by the DPOA 
precisely because the challenged layoffs occurred by seniority, nor to the 
fact that no Title VII complaints had been filed in this case with the 
EEOC.



6

REASONS FOR GRANTING THE WRIT

I.
The Court of Appeals Opinion Conflicts with the Decisions 

of Other Circuits Concerning the Remedial Relationship 
Between the Equal Protection Clause and Title VII

The Opinion below has created a direct conflict between the 
Circuits concerning the scope of a district court’s powers under 
the Equal Protection Clause to remedy the effects of intentional 
past employment discrimination where seniority systems exist, 
whether or not Title VII complaints are involved.

Prior to this case, the Circuits were in agreement that where 
a federal court had found pervasive violations of the Equal 
Protection Clause, it had a duty to eliminate the effects of that 
discrimination “root and branch”, Green v. New Kent County 
School Board, 391 U.S. 430, 438 (1968), and that race conscious 
remedies are not only permitted but required where color blind 
approaches would be inadequate, Swann v. Charlotte-Mecklen- 
burg Board o f Education, 401 U.S. 1, 28 (1971), even if those 
remedies temporarily prevent the layoffs of some blacks. Morgan 
v. O’Bryant, 671 F.2d 23 (1st Cir. 1982); Arthur v. Nyquist, 712 
F.2d 816 (2d Cir. 1983).

In his 7/25/84 opinion, Judge Gilmore ordered that, as a 
result of its intentional and unremedied discrimination in viola­
tion of the Equal Protection Clause, the City must reinstate all 
officers laid off in violation of that clause. He also enjoined the 
City from laying off, suspending, or discharging any police officer 
without prior approval of the Court.13

The Sixth Circuit ultimately reversed the injunction, finding 
it to be barred by §703(h) of Title VII,14 specifically holding that

13 NAACP  v. DPOA, 591 F. Supp., @ 1220-1221

14 As earlier noted, on the first appeal the Sixth Circuit found the injunction 
improper because it was entered solely on the basis of factual findings in 
Baker v. Detroit, 483 F.Supp 930 (E.D. Mich 1979). However, on 
remand, the District Court held that Plaintiffs could demonstrate that,



7

the text of §703(h) “establishes an exception to liability for 
employment discrimination based on race.”15

The Opinion below failed to recognize that the district court 
is not limited to Title VII remedies where a claim is grounded in 
the Equal Protection Clause and not Title VII, an error high­
lighted by the conflict the Opinion creates with the First and 
Second Circuit’s decisions in Morgan v. O’Bryant, 671 F.2d 23 
(1st Cir. 1982),16 Arthur v. Nyquist, 712 F.2d 816 (2d Cir.

wholly apart from the Baker findings, the City’s prior unconstitutional 
acts were a proximate cause of the 1979 and 1980 layoffs. NAAC P v. 
DPOA, 676 F. Supp. 790, 796 (E.D. Mich. 1988). It then later held that 
the issue was moot. NAAC P v. DPOA. 685 F. Supp. 1004 (E.D. Mich. 
1988). It was on appeal from this Order that the Sixth Circuit reversed 
the mootness finding and held that §703(h) barred the injunction 
NAACP  v. DPOA, 900 F.2d 903 (6th Cir. 1990).

15 NAACP  v. DPOA. 900 F.2d 903, 907 (6th Cir. 1990). The Opinion 
disregarded the fact that the district court injunction was based on a 
finding of intentional discrimination violative of the Equal Protection 
Clause, and had nothing to do with Title VII, stating “Congress did not 
intend that its detailed remedial scheme constructed in Title VII be 
circumvented through pleadings that allege other causes of action under 
general statutes.”

16 In Morgan, the First Circuit addressed a case quite similar to this one. 
The court considered the district court s refusal to modify a prior reme­
dial order so as to allow for the layoffs of black administrators during a 
budgetary crisis. The Court of Appeals held the orders of the district 
court to satisfy the standards articulated by this Court in M illiken v. 
Bradley. 433 U.S. 267, 280-281, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 
(1977). Specifically, the First Circuit found that these orders were 
“reasonable" as required for race conscious remedies. It stated:

“They were necessary to safeguard the progress toward desegrega­
tion painstakingly achieved over the least seven years. Without 
them, the percentage of blacks would have fallen almost to its level 
nearly a decade ago, before this suit was brought. Such a result 
could not be countenanced.”

Morgan, supra, at 28



8

1983).17 Other Circuit Court opinions addressing the relation­
ship between 1983 and Title VII have also found them to be 
separate and unrelated.18

The Opinion below also conflicts with the remedial power 
this Court has granted to district courts which seek to remedy the 
present effects of past racial discrimination in employment where 
the claim is not based on Title VII. Under such circumstances, 
precedents from this Court make clear that the scope of the 
remedy is not defined by constraints contained within Title VII.

While the Nyquist and Morgan decisions were both ren­
dered in cases where intentional, state-imposed school discrimi­
nation had been found, this Court has applied the same broad,

17 In Nyquist, the Buffalo Teachers Federation challenged a remedial plan 
ordered by the district court which was designed to achieve a goal of 21% 
minority teachers through a race conscious system for hiring and laying 
off teachers. The Second Circuit rejected the Federation's argument that 
§703(h) of the Civil Rights Act of 1964 invalidated the district court’s 
refusal to lift its remedial order. It found §703(h) inapplicable because:

“ H ere,. . .  the suit was brought to remedy violations of the Constitu­
tion rather than Title VII, and the district court made a finding of 
intentional discrimination . . .

“Once a local board of education has been found to have employed 
staff hiring practices that contribute to a racially segregated school 
system, the District Court has the power to remedy those practices 
and override seniority systems that perpetuate those practices.” 
Nyquist, supra, at 822.

18 R a tliff  v. City o f  Milwaukee, 795 F.2d 612, 623-24 (7th Cir. 1986), cert, 
denied, 106 S. Ct. 1492 (1986); Alexander v. Chicago Park District. 773 
F.2d 850 (7th Cir. 1985); Trigg v. Fort Wayne Community Schools, 766 
F.2d 299 (7th Cir. 1985); Carpenter v. Stephen F. Austin Sta te Univer­
sity, 706 F.2d 608, 612 n.l (5th Cir. 1983) Vulcan Society o f  N .Y. City 
Fire Department v. Civil Service Commission, 490 F.2d 387, 390 n.l (2d 
Cir. 1973) . Even other panels of the Sixth Circuit itself have handed 
down decisions which noted the separate nature of Title VII and 1983 
remedies: Day v. Wayne County Board o f  Auditors, 749 F.2d 119 (6th 
Cir. 1984); Grano v. Department o f  Development, City o f  Columbus 
637 F.2d 1073 (6th Cir. 1980).



9

flexible rules to remedy intentional, state-imposed Equal Protec­
tion violations in the context of employment discrimination.'9

The case below does not involve the situation found in 
Griggs v. Duke Power Co., 401 U.S. 424 (1971), where the 
problem was to remedy the disparate impact of unintentional 
discrimination."0 The findings of the district court below made 
clear that the City of Detroit had engaged in long-running, 
widespread, intentional, racial discrimination in the recruitment, 
employment, deployment, and promotion of police officers, which 
had affected and infected every segment of the Detroit Police 
Department.19 20 21

19 See, United S tates v. Paradise, 107 S.Ct. 1053, 1073 (1987); Local 28 o f  
Sheet M etal Workers v. EEOC. 478 U.S. 421, 480 (1986). See also, 
Swann v. Charlotte-Mecklenberg Board o f  Education, 402 U.S. 1,15  
(1971), where Chief Justice Burger wrote for a unanimous court:

“a school desegregation case does not differ fundamentally from 
other cases involving the framing of equitable remedies to repair the 
denial of a constitutional right. The task is to correct, by a balancing 
of the individual and collective interests, the 'condition that offends 
the Constitution’.”

20 See, Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 590 fn. 
16 (1984) (District court’s order enjoining layoffs of black employees 
invalidated where there had been no finding of intentional discrimina­
tion.) Also see. Chance v. Board o f  Examiners and Board o f  Education 
o f  the City o f  New York, 534 F.2d 993, 999 (2nd Cir. 1976) (District 
court’s order modifying a layoff, or “excessing” plan, struck down, where 
“there is no claim that defendant’s excessing practices are or have been 
discriminatory”).

21 See, e.g.. Baker v. City o f  Detroit, 483 F. Supp. 930 (E.D. Mich. 1979); 
Bratton v. City o f  Detroit. 704 F.2d 878 (6th Cir. 1983); NAACP v. 
DPOA, 591 F. Supp. 1194, 1199 (E.D. Mich. 1984); NAAC P  v. DPOA, 
676 F. Supp. 790, 796 (E. D. Mich. 1988). The detailed findings in Baker 
were based, in part, on City of Detroit’s detailed admissions of intentional 
discrimination, but were buttressed by the independent findings of de 
jure  conduct made by the district judge in that case.



10

II.
The Opinion Below Conflicts with Landmark Cases 
In This Court Concerning the Remedial Reach of 

The Equal Protection Clause and 42 U.S.C. §1983

The Opinion below conflicts with numerous landmark rul­
ings of this Court which have for more than thirty years provided 
state and federal courts with direction in identifying and remedy­
ing intentional, invidious, racial discrimination, including: Brown 
v. Bd. o f  Education, 349 U.S. 294 (Brown II);22 Louisiana v. 
United States, 380 U.S. 145 (1965);23 Green v. New Kent County 
School Board, 391 U.S. 430 (1968);24 Swann v. Charlotte-Meck- 
lenburgSchool Board, 402 U.S. 1 (1971 );25 Keyes v. School Dist.

22 In (Brown II), this Court said the vitality of the Constitutional principles 
enacted in Brown v. Bd. o f  Educ., 347 U.S. 483 (1954) (Brown I), should 
not yield simply because of disagreement with them. While recognizing 
the primary responsibility of school authorities for solving the problems 
of racial discrimination in education, Brown I! instructed lower courts to 
be guided by equitable principles in fashioning and effectuating decrees 
designed to dismantle dual systems and guard against their continuing 
vestigial effects.

23 In Louisiana v. United States, this Court said that the federal courts have 
not just the right but the “duty to render a decree which will so far as 
possible eliminate the discriminatory effects of the past as well as bar like 
discrimination in the future.”

24 Though Louisiana v. United S tates  was a voting rights case, Green v. 
New Kent County School Board, a school desegregation case, imposed 
the same duty upon an offending state actor as well as the federal courts 
in remedying Constitutional violations:

“School boards . . .  (under Brown II) were . .  . charged with the 
affirmative duty to take whatever steps might be necessary to con­
vert to a unitary system in which racial discrimination would be 
eliminated root and branch. The constitutional rights of negro chil­
dren articulated in Brown I permit no less than this . . .

“The obligation of the district courts, as it has always been, is to assess 
the effectiveness of a proposed plan in achieving desegregation.” 
(emphasis added)

25 Swann v. Charlotte-Mecklenberg Board o f  Education further explicated 
the duty of federal courts in cases involving remedies for Constitutional 
violations, holding that:



No. I, Denver, 413 U.S. 189 (1973);26 Columbus Bd. o f Educ. v. 
Penick, 443 U.S. 666 (1979);27 and, Dayton Bd. o f  Educ. v. 
Brinkman, 443 U.S. 526 (1979.28

In all of these cases, the Court was addressing remedies 
where either de jure segregation had existed in violation of the 
14th Amendment’s Equal Protection Clause (Green, Swann, 
Keyes, Penick, Brinkman), or where racially discriminatory stat­
utes violated the Fifteenth Amendment (Louisiana v. United 
States).

This Court has repeatedly stressed the obligation of the 
federal courts to assure that racial discrimination is effectively 
eliminated, and to guard against those actions which might make 
more difficult the task of elimination. The Opinion challenged by 
this Petition completely disregarded the City of Detroit’s unmet 
affirmative duty to dismantle, “root and branch”,29 the unconsti­
tutional dual system created by its racially discriminatory 
employment practices.

“The task is to correct. . .  the condition that offends the 
Constitution.”

26 In Keyes v. School District No. I . Denver, Colorado, the Court had held 
that remoteness in time between the segregative intent and the actions 
complained of does not make the actions less intentional when “segrega­
tion resulting from those actions continues to exist.”

27 Columbus Board o f  Education v. Penick held that:

“Each instance of a failure or refusal to fulfill this affirmative duty 
continues the violation of the Fourteenth Amendment.”

28 In Dayton Board o f  Education v. Brinkman, this Court held that:

“Part of the affirmative duty imposed by our cases, as we decided in 
Wright v. Council o f  City o f  Emporia, 407 U.S. 451,92 S.Ct. 2196 
(1972) is the obligation not to take any action that would impede the 
process of disestablishing the dual system and its effects . . .

“The measure of the post Brown l  conduct of a school board under 
an unsatisfied duty to liquidate a dual system is the effectiveness, not 
the purpose, of the actions decreasing or increasing the segregation 
caused by the dual system.”

29 Green, supra.



1 2

The Opinion also conflicts in principle with decisions of this 
Court concerning the scope of Title VII. On several occasions, 
the Supreme Court has addressed the role that Title VII plays in 
this nation’s effort to eradicate employment discrimination. Con­
sistently, Title VII’s purpose has been defined as providing an 
additional remedy for invidious employment discrimination. The 
decisions of this Court have made it clear that the Congress did 
not intend to force aggrieved employees to look to the provisions 
of Title VII as their sole vehicle for attacking discriminatory 
employment practices.30

By holding that the restrictions of §703(h) of Title VII must 
be applied to an Equal Protection claim being prosecuted via 
§1983, the Opinion below ignores that Petitioners have every 
right, under the precedents of this Court, to pursue a §1983 
claim in addition to, and wholly separate from, p. Title VII claim. 
Thus, even if the Petitioners below had filed formal complaints 
with the EEOC, they would not have been precluded from 
making Equal Protection claims and pursuing them under § 1983. 
That no such complaints were ever filed with the EEOC is an

30 In Alexander v. Gardner-Denver Company, 415 U.S. 36, 48-50 (1974), 
this Court held that petitioner’s pursuit of a grievance through arbitra­
tion under the collective bargaining agreement, resolved adversely to 
him, did not preclude a suit against his employer under Title VII. In 
discussing the origin and purposes of Title VII, the Court stated:

“Legislative enactments in this area have long evinced a general 
intent to accord parallel or overlapping remedies against 
discrimination . . .

“ Moreover, the legislative history of Title VII manifests a congres­
sional intent to allow an individual to pursue independently his 
rights under both Title VII and other applicable state and federal 
statutes. The clear inference is that Title VI1 was designed to 
supplement, rather than supplant, existing laws and institutions 
relating to employment discrimination.” (emphasis added)

In Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459-462 
(1975), the Court said:

“Despite Title VII’s range, . . .  the aggrieved individual clearly is not 
deprived of other remedies he possesses and is not limited to Title VII 
in his search for relief.”



13

absolute jurisdictional bar to invoking the statutory remedies, 
and limitations, built into Title VII.

The Opinion below does exactly what this Court has warned 
against in its decisions on the scope of Title VII. It holds that 
plaintiffs’ employment discrimination remedies are necessarily 
defined by Title VII, whether the plaintiff has chosen to bring his 
suit under Title VII of the Civil Rights Act of 1964, §1981 of the 
Civil Rights Act of 1870, or §1983 of the Civil Rights Act of 
1871 to vindicate a Constitutional or federal right. In so holding, 
the Court below has ignored this Court’s repeated holdings that 
Title VII is only a supplement to, not a replacement for, the pre­
existing remedies for employment discrimination.3'

The Opinion held that the doctrine of in pari materia 
dictates §703(h)’s application here. The court reasoned that 
§703(h) of the Civil Rights Act of 1964, being a later and more 
specific statute, must control the earlier and more general provi­
sions of §1981 and §1983. NAACP  v. DPOA, 900 F.2d, @ 911- 
912. Petitioners believe this reasoning conflicts with the prior 
holdings of this Court. The doctrine of in pari materia applies 
only when two statutes conflict; it has no applicability where, as 
in this case, a mere statute collides with the Constitution.31 32

31 Supporting Petitioners’ request for review is the recognition by the Court 
of Appeals that:

“the Supreme Court has recognized that Congress did not, with the 
passage of the Civil Rights Act of 1964 and its 1972 Amendments, 
intend to repeal existing statutes in the civil rights field, or make 
Title VII the exclusive remedy in all employment discrimination 
contexts”. NAAC P  v. DPOA, 900 F.2d, @ 9 1 3 ___
“the Supreme Court has yet to address directly the relationship 
between §703(h) and the earlier Civil Rights Statutes”

Despite these disclaimers, the Court of Appeals proceeded to misapply 
the doctrine of in pari materia as its rationale for holding that Title 
VII strictures apply to 1981 claims even where no Title VII complaints 
were filed, and no Title VII claims were specifically pleaded below.

32 The court of appeals Opinion simply ignores the fact that the violation 
here was a constitutional one, and that 42 U.S.C. §1983 is simply a 
procedural device by which plaintiffs may prosecute violations of the 
federal Constitution and statutes. As discussed supra, the actual violation



14

Thus, even though an Equal Protection Clause violation 
might be forced to take on the appearance of a statute because it 
is prosecuted pursuant to §1983, a federal court need not look to 
Title VII for enforcement power because the precedents of this 
Court have already provided it with such power. Equal Protec­
tion remedies are naturally broader than those of Title VII, 
which has a more limited role in the fight against invidious 
discrimination.

In McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 800 
(1973) the purpose of Title VII was held to be:

“to assure equality of employment opportunities and to 
eliminate those discriminatory practices and devices which 
have fostered racially stratified job environments to the 
disadvantage of minority citizens.”

To achieve this result, the Congress not only made intention­
ally discriminatory employment conduct a violation of Title VII, 
but it also proscribed neutral employment practices with a dis­
criminatory effect.™ §703(h) was added to make clear that not 
all seniority systems were violative of Title VII, under the ratio­
nale of Griggs v. Duke Power, §401 U.S. 424 (1971). The Equal 
Protection Clause, on the other hand, has the larger, more 
important goal of eradicating discrimination any time the state 
actor is purposefully discriminating on the basis, inter alia, of *

alleged by Petitioners and found by District Judge Gilmore was that the 
City had intentionally discriminated against its Black police officers, in 
violation of the Equal Protection Clause. As such, the Opinion at issue in 
this Petition erroneously applied principles of in pari materia. Further­
more, the doctrine of in pari materia is also inapplicable because there is 
no conflict between Equal Protection remedies and §703(h) of Title VII. 
This Court stated, with regard to specific statutes governing more general 
ones:

“The courts are not at liberty to pick and choose among congres­
sional enactments, and when two statutes are capable of coexistence, 
it is the duty of the courts, absent a clearly expressed congressional 
intention to the contrary, to regard each as effective.” Morton v. 
Mancari, 417 U.S. 535, 552 (1974)

Teamsters v. United States, 431 U.S. 324, 350 (1977)33



15

race.34 The Equal Protection Clause is not limited to simply 
employment discrimination, while Title VII cannot be applied to 
any other form of discrimination.

The two provisions thus serve very different purposes. As a 
result of the heightened importance of eradicating intentional 
discrimination, once it has been found, the remedial scheme this 
Court devised for violations of the Equal Protection Clause is one 
of broad, flexible remedies, as discussed above. Because it deals 
only with intentional discrimination, the Equal Protection Clause 
has no need for the limitations placed on Title VII remedies. The 
remedies under both these provisions are perfectly capable of 
coexistence. As such, they are not subject to being read in pari 
materia.

III.
The Sixth Circuit’s Opinion Raises Important Issues 

Re: 42 U.S.C. §1983 that Need Resolution by this Court

The court of appeals below held that a federal statute, 
§703(h) of Title VII, precludes a federal district court from 
imposing an Equal Protection remedy which the Supreme Court 
of the United States has held it not only has the power, but the 
duty, to impose. The decision raises issues of Supremacy and 
Constitutional rights which are of vital importance to other 
circuits as well as this Court.

In Marbury v. Madison, 1 Cranch 137 (1803), this Court 
established that the Constitution is the paramount law of the 
land, and that it is this Court’s duty to interpret the Constitution. 
It follows that even a congressional enactment does not have the 
power to put constraints on this Court’s constitutional remedies. 
The Opinion below, by holding that a constitutional claim being 
pursued by means of 42 U.S.C. §1983 is limited by §703(h), has 
attempted to affix just such constraints on the remedies this 
Court has fashioned for violations of the 14th Amendment’s 
Equal Protection Clause.

34 Washington v. Davis. 626 U.S. 229 (1976).



16

In Louisiana v. United States, supra, this Court held that 
the district court had a duty to render a decree that would 
eliminate the effects of past discrimination as well as bar future 
discrimination. Louisiana v. U.S., 380 U.S., @ 154. In Missouri 
v. Jenkins, 110S. Ct. 1651, 109 L. Ed.2d 31, 58 U.S.L.W. 4480 
(1990), this Court recently made clear that neither the district 
court’s duty nor its power were suspended, either because its 
order to remedy constitutional violations might cause fiscal hard­
ship, or because it might require the state to make payments 
contrary to state law and otherwise prohibited by the Tenth 
Amendment.35

35 In Missouri v. Jenkins , this Court rejected the argument that the district 
court order impermissibly ignored state laws which governed the amount 
and methods by which funds could be raised to meet otherwise valid 
obligations:

“ Here, the KCMSD may be ordered to levy taxes despite statutory 
limitations on its authority in order to compel the discharge of an 
obligation imposed on KCMSD by the Fourteenth Amendment. To 
hold otherwise would fail to take account of the obligations of local 
governments, under the Supremacy Clause, to fulfill the require­
ments that the Constitution imposes on them. . . . '[I]f a state- 
imposed limitation on a school authority’s discretion operates to 
inhibit or obstruct the operation of a unitary school system or 
impede the disestablishing of a dual school system, it must fall; state 
policy must give way when it operates to hinder vindication of 
federal constitutional guarantees.’ North Carolina S ta te Bd. o f  
Education v. Swann , 402 U.S. 43, 45 (1971).”

This Court also swept aside the state’s argument that the 10th Amend­
ment shielded it from having to make desegregation payments ordered by 
the district court:

“The Tenth Amendment’s reservation of nondelegated powers to the 
states is not implicated by a federal court judgment enforcing the 
express prohibitions of unlawful state conduct enacted by the Four­
teenth Amendment.”

It seems obvious that, if neither state laws nor the Tenth Amendment are 
permitted to block a district court’s remedial orders to repair constitu­
tional violations in Kansas City, then the provisions of §703(h) cannot be 
distorted as below to effect a barrier to prevent the district court’s 
remedial order from reaching the continuing vestiges of intentional, 
unconstitutional, racial discrimination in Detroit.



17

The Sixth Circuit’s Opinion, by holding that a federal stat­
ute may control and shape the contours of a constitutional right, 
is an effort at rewriting the system of checks and balances set 
forth as early as Marbury v. Madison, supra.36

The Opinion below raises compelling issues regarding the 
interpretation of §703(h) of the Civil Rights Act of 1964. The 
Court below has given that Section a meaning that neither this 
Court nor Congress ever intended.

As stated in Teamsters v. United States, 431 U.S. 324, 344 
(1977):

“The unmistakable purpose of 703(h) was to make 
clear that the routine application of a bona fide senior­
ity system would not be unlawful under Title VII. As 
the legislative history shows, this was the intended

36 This Court has had previous reason to determine the breadth of its 
mandate to remedy Equal Protection violations when it seemingly con­
flicted with a federal statute. In Drummond  v. Acree, 409 U.S. 1228 
(1972), a district court order adopting a plan to desegregate 29 elemen­
tary schools in August was challenged as conflicting with §803 of the 
Education Amendments of 1972. This statute purported to postpone 
transportation of any student for the purpose of achieving racial balance, 
until all appeals had been exhausted. The Court found that, since the 
district court order to transport children was part of a proper plan to 
remedy 14th Amendment violations, citing Swann , supra, the statute 
must have meant to refer only to de facto  segregation which did not 
violate the Equal Protection Clause:

“The statute requires that the elfectiveness of a district court order 
be postponed pending appeal only if the order requires the 'transfer 
or transportation’ of students 'for the purposes of achieving a racial 
balance among students with respect to race.’ It does not purport to 
block all desegregation orders which require the transportation of 
students.” Drummond , at 1230.

To reach that result, this Court reasoned that §803 could not be read to 
render meaningless the mandate in Swann whenever transportation was 
involved in the remedy.

Similarly, the federal statute in this case, §703(h), cannot be read to 
render meaningless the affirmative duty to eliminate intentional employ­
ment discrimination whenever the prevention of layoffs is involved.



18

result even where the employer’s pre-Act discrimina­
tion resulted in whites having greater existing seniority 
rights than Negroes.”

The “unmistakable purpose” has been reiterated by this 
Court on several later occasions, when plaintiffs complained that 
Title VII violations should be remedied by methods abridging 
seniority rights.37 As the Sixth Circuit points out, §703(h) has 
also been applied to protect seniority systems where the underly­
ing violation was brought under 1981. However, this is still a 
federal statutory right, as distinguished from a constitutional 
right. The cases hold only that employers need not go so far as to 
abrogate a valid seniority system in order to comply with Title 
VII.

The Opinion below distorts this line of cases, asserting that 
§703(h) of Title VII has established “an exception to liability for 
employment discrimination based on race.” NAACP v. DPOA, 
900 F.2d, @ 907. By applying this distorted notion, the Opinion 
interprets its “exception” as applying to constitutional violations 
as well as to other practices defined by statute as racially discrim­
inatory. The court below has taken what Congress and this Court 
created as a shield, to protect seniority systems from being 
viewed as per se Title VII violations, and transmogrified it into a 
sword, which exempts from liability all job discrimination, even 
if intentional, so long as there is a seniority system in place. Yet, 
neither Congress nor this Court ever suggested, much less held, 
that §703(h) could immunize intentional racial discrimination in 
employment from constitutional remedy.

37 See, Trans World Airlines, ltic. v. Hardison, 432 U.S. 63 (1977), 
(Employer not required to abrogate seniority system of a collective 
bargaining agreement in order to remedy violation of 703(h)(1) of the 
Act); American Tobacco Company v. Patterson, 456 U.S. 63 (1982), 
(Employer need not depart from seniority system to remedy seniority, 
promotion, and job classification practices which violated Title VII); and 
Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 582-583, and 
fn 16 (1984) (No departure from seniority system required to comply 
with Title VII remedial order.)



19

IV.

The Opinion Below on Union Liability Conflicts 
In Principle with Applicable Rulings of this Court

District Court Findings On DPOA Liability

The district court’s 1984 decision concluded that the DPOA 
had violated its Duty of Fair Representation. This conclusion was 
based on the DPOA’s “failure to adequately represent the inter­
ests of its black members in the layoffs of 1979 and 1980.”

Based on the full trial record before it, including the 
thousands of trial transcript pages and more than one dozen 
witnesses, the district court made extensive findings about the 
DPOA’s racially discriminatory conduct. Stating that

“The DPOA’s breach of the duty of fair representation 
flows not merely from any reliance upon a seniority 
system, or a simple refusal to make concessions in the 
interests of minorities. The DPOA’s liability is pre­
mised on more than this. . . . ”

the district court found “A history of racial hostility and indiffer­
ence to the rights and needs of black officers”; a “total absence of 
black representation in the leadership levels of the union”; 
“totally perfunctory and passive behavior of the union leader­
ship” in the face of layoffs which would wipe out 50% of the 
DPOA’s black membership; a “present day failure to make any 
serious efforts to assist these black officers”; and, “A history of 
concessions and prompt union action to avert layoffs in 1975 and 
1981 when the jobs of white officers were at stake.”

On this basis, the district court concluded that it was “only 
concerned with activity that is arbitrary, racially discriminatory, 
and not in good faith, and this court finds that, in its representa­
tion of its black members, the DPOA’s perfunctory and passive 
behavior in 1979 and 1980 breached the duty of fair 
representation.”38

38 NAACP  v. DPOA, 591 F. Supp. 1194 (E.D. Mich. 1984).



2 0

Having concluded that the DPOA had breached its Duty of 
Fair Representation, and that the scope of relief for that breach 
was essentially the same as would be available for violation of 42 
U.S.C. 1981, the district court said that it had “no reason to 
consider the claim under 42 U.S.C. §1981, in light of the result 
reached here.”39

In the first appeal, the court of appeals reversed the district 
court ruling on the Duty of Fair Representation, on the grounds 
that layoffs were not mandatory subjects of bargaining pursuant 
to Local 1277, AFSCM E  v. City o f  Centerline, 414 Mich. 642, 
685, 327 NW 2d 822, 831 asserting that no liability could be 
found for DPOA failure to act on issues as to which it was not 
required to act in the first place.40 Noting, however, that the 
district court had explicitly declined to rule on the claim under 
42 U.S.C. §1981, the court of appeals remanded the matter with 
instructions that Plaintiffs be permitted to prosecute this claim. 
NAACP  v. DPOA, 821 F.2d 328 (6th Cir. 1988).

On remand, the district court, denied the DPOA’s motion 
for summary judgment, NAACP  v. DPOA, 676 F. Supp., @ 796- 
97, noting that:

“ [it is] impossible to fairly read this court’s findings 
concerning the DPOA’s history and conduct before, 
during, and after the 1979 and 1980 layoffs, without 
concluding that the DPOA was indeed guilty of inten­
tional discrimination. . . . ”

39 In its decision awarding fees to Plaintiffs, NAAC P  v. DPOA, 629 F. Supp. 
1173, 1180 (E.D. Mich. 1985), the district court further addressed the 
nature of the claim against the DPOA when it said that:

“The court did not reach plaintiff’s claim under §1981 because that 
claim was mooted by the finding of the breach of the duty of fair 
representation. Plaintiffs’ §1981 claim and duty of fair representa­
tion claim arose out of a common nucleus of operative facts, i.e., the 
DPOA’s action as a whole with regard to the 1979 and 1980 layoffs 
of black officers.”

40 NAACP  v. DPOA, 821 F.2d 328, 332 (6th Cir. 1987). The court also 
based its reversal on its conclusion that the district court had made no 
finding of improper motivation in the bargaining which produced the 
seniority provision of the collective bargaining agreement.



21

The court held that its findings “with respect to the violation 
of the Duty of Fair Representation were tantamount to a finding 
of intentional discrimination under 42 U.S.C. §1981 when it 
awarded attorneys fees and costs against the DPOA” . NAACP v. 
DPOA, 676 F. Supp., @ 797.

On appeal of the mootness decision, the court agreed with 
Petitioners that the district court erred when it dismissed the case 
against the DPOA on mootness grounds:

“ First, the fact that the district court has accomplished 
the goals of its own injunctive order, later reversed as 
having no basis in law, dees not render a case moot. 
Second, assuming for the moment that the plaintiffs 
had viable §1983 claims against the city or the union 
for the 1979-1980 layoffs, the appropriate remedy 
would require more than mere recall and retroactive 
seniority. It would include the determination of other 
benefits such as back pay and out of pocket costs 
incurred by the laid off police officers . . .  Third, minor­
ity police officers' majority membership in the union 
does not 'without more’ translate into the ability to 
protect themselves against discriminatory action by the 
leadership. Rather, their ability to protect themselves 
depends on factors such as the union’s organizational 
structure and could not be evaluated in the abstract 
without further inquiry. In light of these factors includ­
ing the Supreme Court’s holding in Stotts , we conclude 
that the controversy was not moot.” NAACP  v. DPOA, 
900 F.2d, @ 906.

The Opinion's Dismissal o f  the 1981 Claim Conflicts With
This Court’s Holding in Johnson v. Railway Express
Agency

Just as it had concluded that the City was immunized from 
challenge via §1983 by operation of §703(h) of Title VII, the 
court of appeals held that the §1981 claim against the DPOA 
was barred by §703(h). NAACP v. DPOA, 900 F.2d, @ 912, 
fn. 10.



2 2

Petitioners’ discussion of, and authorities cited concerning, 
the inapplicability of the doctrine of in pari materia to Title 
V11/§  1983 claims, applies equally to Title V11/§  1981 claims. 
The court below claims support for its position from this Court 
and other Circuit Courts, mistakenly citing Johnson v. Railway 
Express Agency, 421 U.S. 454 (1975). However, as this Court 
found in Johnson, 424 U.S., @ 459-462, the Opinion below 
conflicts with Congressional intent, with respect to the ability of 
claims under Title VII to coexist with those brought under 
§ 1981.41

The Opinion below cited Brown v. G.S.A, 425 U.S. 820, 828 
(1976), for the proposition that this Court has prevented “artful 
pleading to avoid both the requirements and consequences of a 
Title VII action by any other name.” Even a cursory reading of 
Brown v. G.S.A., however, underscores that it was inapposite to 
the case below, and miscited by the court to support its conclu­
sions, when it more properly should be read to support the 
position of the Petitioners.41 42 The Opinion below similarly mis­
construes the holdings of this Court in Great American Federal 
Savings & Loan Association v. Novotny, 442 U.S. 366, 375-76

41 A reading of Johnson, reveals that it explicitly allirmed the separate 
nature of §1981 claims and those brought under Title VII. Johnson held 
that tiling a Title VII charge does not toll the statute of limitations for 
claims brought under §1981.

42 Brown v. G .S.A. addressed the question of whether federal employees 
were limited to Title VII as the vehicle for redressing claims of invidious 
employment discrimination. After analyzing the legislative history of the 
1972 amendments to Title VII which extended coverage to federal 
employment, this Court concluded that, since there were no prior federal 
statutes providing such employment discrimination relief to federal 
employees, the Congress must have intended Title VII to be the exclusive 
remedy for federal employee claims of workplace discrimination. The 
Court specifically contrasts the situation faced by federal employees with 
that prevailing with respect to private employees and to other public 
employees. The Court found statutory remedies which pre-existed Title 
VII as to the non-federal employees, and specilically noted that the 
Congressional intent, when Title VII coverage was extended to these 
workers, was to add  a new and independent basis to these pre-existing 
remedies.



23

(1979),43 and of the 5th Circuit in Watkins v. United Steel 
Workers, 516 F.2d 41, 49-50 (5th Cir. 1975).44

The Opinion also wrongly notes, in footnote 10, that the 
Supreme Court’s recent decision in Patterson v. McLean Credit 
Union, 109 S. Ct. 2263 (1989), would likely require dismissal of 
the case against the DPOA, asserting that the union conduct 
challenged below is “post-formation” conduct which Patterson 
said was not vulnerable to §1981.45

In Novotny, this Court held that §1985(3) may not be read to provide a 
substantive right, per se, but rather is a vehicle for addressing conspiracy 
to violate the substantive rights created by other statutes. In the instant 
case, however, the Court of Appeals below ignored the independent 
substantive rights which are created by §1981.

44 In Watkins, the 5th Circuit held that where the fact and vestigial effects 
of past hiring discrimination had ceased for 10 years before the claim 
challenging a current layoff was brought, the employer could permissibly 
use a long-established seniority system for determining who would be laid 
off and/or rehired, without fear of violating cither Title VII or §1981. 
This contrasts sharply with the instant case, in which the district court 
explicitly found that vestigial effects of the prior explicit racially discrim­
inatory hiring had not yet been extirpated at the time of the layoffs here 
challenged. Watkins explicitly held that the failure of Title VII to 
“proscribe an employment practice docs not foreclose an attack under 42 
U.S.C. 1981”, and specifically refused to make a finding as to whether or 
not §703(h) applied to 42 U.S.C. §1981, on the ground that the absence 
of discrimination made irrelevant any applicability §703(h) might other­
wise have.

45 The opinion below directly conflicts with this Court’s decision in Patter­
son, with respect to union misconduct. Patterson is properly quoted for 
the proposition that:

racial harassment relating to conditions of employment is not 
actionable under §1981 because that provision does not apply to 
conduct which occurs after the formation of a contract and which 
does not interfere with the right to enforce established contract 
obligations.”

However, the Court of Appeals failed to note that Patterson also held:

“ It [the phrase about enforcing contracts] also covers wholly private 
efforts to impede access to the courts or obstruct non-judicial meth­
ods of adjudicating disputes about the force of binding obligations,



24

The Duty o f  Fair Representation Claim

The Opinion’s resolution of the Duty of Fair Representation 
issue provides an additional basis for granting the instant Peti­
tion for Certiorari.

In the original Duty of Fair Representation decision by this 
Court, Steel v. L & N  Railway, 323 U.S. 192 (1944), the union 
was found liable for having permitted an employer to set up 
separate black and white bargaining units, with provisions 
requiring that any lay off would necessarily include blacks before 
any whites could be reached. While this Court has consistently 
affirmed the wide latitude unions have in deciding which com­
plaints to grieve, Hines v. Anchor Motor Freight, Inc., 424 U.S. 
554 (1976), this Court and other federal courts have not hesi­
tated to hold liable union conduct which expediently sacrificed 
minority members in order to protect white members.46

Citing Local 1277 AFSCM E  v. City o f  Centerline, 414 
Mich. 642, 665 (1982), the Opinion held that the DPOA could 
not legally be found liable for a failure of its Duty of Fair

as well as discrimination by private entities, such as labor unions, in 
enforcing the terms of a contract. Following this principle and 
consistent with our holding in Runyon  that 1981 applies to private 
conduct, we have held that certain private entities such as labor 
unions, which bear explicit responsibilities to process grievances, 
press claims, and represent members in disputes over the terms of 
binding obligations that run from the employer to the employee, are 
subject to liability under §1981 for racial discrimination in the 
enforcement of labor contracts. See, Goodman v. Luckens S teel Co., 
482 U.S. 656 (1987).”

Patterson, thus, rejected the notion that racially-motivated union miscon­
duct is immunized from attack under §1981. Goodman v. Luckens Steel, 
supra, squarely contradicts the Court of Appeals reasoning below, hold­
ing that §1981 may properly be used to prosecute a racial discrimination 
claim against a union which ignored and failed to pursue adverse racial 
treatment by an employer.

46 See, e.g., Vaca v. Sipes, 386 U.S. 171 (1967); Em m anuel v. Omaha 
Carpenters District Council. 535 F.2d 420 (8th Cir. 1976); Jennings v. 
American Postal Workers Union, 672 F.2d 712 (8th Cir. 1982); Wyatt v. 
Interstate & Ocean Transport Co., 623 F.2d 888 (4th Cir. 1980); Alvey 
v. General Electric, 622 F.2d 1279 (7th Cir. 1980).



25

Representation, because an employer’s decision to effect a lay off 
is a permissive subject of bargaining, under Michigan law. A 
reading of Local 1277, however, makes clear that the Opinion 
below misconstrued it as badly as it did the holdings of this Court 
discussed above. Local 1277 stands for the proposition that, while 
the initial decision to lay off is not one over which the employer 
must bargain, the impact of any such layoff is a mandatory 
subject of bargaining.

The Michigan Supreme Court held in Local 1277, at p. 664, 
the impact of the layoff

“on the safety of the remaining forces, seniority rights, 
‘bump’ rights, and even the motive behind the layoff 
decisions are all subjects of the collective bargaining 
agreement. Thus, we do not foreclose bargaining or the 
issuance of an arbitration award covering such issues. 
We only hold that the initial decision is a management 
prerogative and that the arbitration panel cannot man­
date a clause on the initial layoff decision.”47

47 The Petitioners below challenged, precisely, the impact of the 1979 and 
1980 layoffs, in light of the City’s unmet remedial duties flowing from the 
prior intentional racial discrimination which violated the Equal Protec­
tion Clause of the 14th Amendment. It was the DPOA’s racially-moti­
vated refusal to take action to avert the racially-adverse impact of these 
layoffs which prompted Petitioners to allege a failure of the duty of fair 
representation. Petitioners never questioned that a decision to lay off 
Detroit employees, standing alone, was a management prerogative.

Petitioners contended that, in the face of an unmet duty to dismantle a 
previous dual system of public employment, the 1979 and 1980 lay off 
decisions did not stand alone, and that the initial decision to lay off was 
inseparable from the impact of that decision on the City's constitutional 
duty to remediate its prior racial discrimination.

The district court below found that, at a time the City defendants were 
prepared to bargain over the fact and impact of the 1979 and 1980 
layoffs, the DPOA completely abandoned its duty to fairly represent the 
black members of the union by adamantly refusing to even consider 
bargaining on this issue, even though the DPOA had insisted on alterna­
tives to layoffs in 1975 and 1981 when most of those who would have been 
laid off were white. It was such race-conscious DPOA behavior which led 
to the findings of intentional discrimination by the district court.



2 6

V.
Historic and Current Congressional Action 

Each Supports Granting the Petition

Also supporting Petitioners’ request that the Writ be 
granted is the consistent Congressional statement that the civil 
rights statutes are to be given a broad construction in order to 
accomplish the national policy against discrimination they con­
vey.48 Accordingly, the Congress has acted on several occasions 
to overrule what were viewed as unduly restrictive readings by 
the federal courts.49 As recently as the current session, both 
houses of the Congress have articulated remarkably similar lan­
guage requiring that the federal civil rights statutes be given a 
liberal construction.50

48 See, e.g., the testimony of Representative Shaliibarger supporting 
§ 1981 's historical antecedent, the Civil Rights Act of 1871, Congres­
sional Globe, 42d Congress, First Session, App. 68 (1871). Also see, U.S. 
v. Price, 383 U.S. 787, 801 (1966); Jones v. Mayer, 392 U.S. 409, 437 
(1968); and Griffin v. Breckenridge, 403 U.S. 88, 97 (1971).

49 See, e.g., the Pregnancy Discrimination Act of 1978, Public Law 95-555, 
which responded to General Electric v. Gilbert, 429 U.S. I 25 (1976); the 
Voting Rights Act Amendments of 1982, P.L. 97-205, which responded 
to City o f  Mobile v. Bolden, 446 U.S. 55 (1980); the Handicapped 
Children Protection Act of 1985, P.L. 99-372, which responded to Sm ith  
v. Robinson, 468 U.S. 992 (1984); and the Civil Rights Restoration Act 
of 1988, P.L. 100-29, which responded to Groves City College v. Bell, 
465 U.S. 555 (1984).

50 See, e.g.. Civil Rights Act of 1990, Senate Bill 2104, Sec. 11:

“A. Effectuation o f  Purpose: all federal laws protecting the civil 
rights of persons shall be broadly construed to effectuate the purpose 
of such laws to eliminate discrimination and provide effective 
remedies”
“ B. Non-limitation: Except as expressly provided, no federal law 
protecting the civil rights of persons shall be construed to restrict or 
limit the rights, procedures, or remedies available under any other 
federal law protecting such civil rights”. . . .
“The Act also codifies well established rules of construction reaf­
firming the intention of Congress that civil rights laws must be 
interpreted consistent with the intent of such laws and construed 
broadly to provide equal opportunity and effective remedies.”



27

CONCLUSION

The Writ should be granted because the Opinion below 
conflicts with consistently stated Congressional intent, as well as 
with rulings by this Court on the Equal Protection Clause, Title 
VII, §1981, §1983, and intentional racial discrimination by 
unions.

Respectfully submitted,

T homas I. Atkins, Esq.
135 Eastern Parkway, #11-B-1 
Brooklyn, N.Y. 11238 
(718) 638-4153

Gary B enjamin, Esq. 
SCHRAUDER & DUNN,  P.C. 
5 Third Street 
Mt. Clemens, MI 48043

Counsel o f  Record

J ames W. McG innis, Esq. 
McG innis & Rashed 
1215 Ford Building 
Detroit, MI 48226

J eanne M irer, Esq. 
Barnhart & M irer, P.C. 
3310 Cadillac Tower 
Detroit, MI 48226



No.

In T he

Supreme OTourt of tlje UniteD States
October Term , 1990

N.A.A.C.P., Detroit Branch; T he G uardians, Inc. 
Brady Bruenton; Cynthia M artin; H ilton N apoleon; 
S harron R andolph; Betty T. Rolland; G rant Battle; 

Cynthia C heatom; E vin Fobbs; J ohn H. Hawkins; 
H elen Poelnitz, on behalf of themselves and all 

others sim ilarly situated,
Petitioners,

vs.

Detroit Police O fficers Association (DPOA);
David Watroba, President; C ity of Detroit; 

Coleman A. Young, M ayor; Detroit Police Dept.; 
Board of Police Commissioners; W illiam  Hart, C hief,

Respondents.

PETITION  FOR W R IT  OF C ERT IO RA R I 
TO TH E U N ITED  STATES COURT OF APPEA LS  

FOR TH E S IXTH  C IRC U IT

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

T homas I. Atkins 
135 Eastern Parkway, #11 -B-1 
Brooklyn, N.Y. 11238 
(718) 638-4153 

Counsel o f  Record

J eanne M irer 
Barnhart & M irer 
3310 Cadillac Tower 
Detroit, MI 48226 
(313) 961-6420 

Attorneys fo r  Petitioners 
September 17, 1990

G ary B enjamin 
Schrauger & Dunn, P.C. 
5 Third Street 
Mt. Clemens, MI 48043 
(313) 964-2770
J ames W. M cG innis 
M cG innis & R ashed 
1215 Ford Building 
Detroit, MI 48226 
(313) 962-240



INDEX TO APPENDIX

PAGE

A-l

A-57

A -67

A- 87 

A-9 4

DATE

7/25/84

ITEM

Liability Opinion and Remedy of district 
court
NAACP v. DPOA, 591 F. Supp. 1194 (E.D.
Mich. 1984)

6/12/87 Opinion of Court of Appeals reversing and
remanding the liability and remedial 
decisions
NAACP v. DPOA. 821 F.2d 328 (6th Cir. 
1987)

1/13/88 Opinion of district court denying DPOA
motion for summary judgment, and denying 
City motion for entry of judgment 
NAACP v. DPOA. 676 F. Supp. 790 (E.D.
Mich. 1988)

6/15/88 Opinion of district court finding the case
moot as to both the City and DPOA 
NAACP v. DPOA, 685 F. Supp. 1004 (E.D. 
Mich. 1988)

4/9/90 Opinion of Court of Appeals reversing
determination of mootness, and ordering 
the case dismissed as to both City and 
DPOA
NAACP v ■ DPOA, 900 F.2d 903 (6th Cir.
1990)

6/18/90 Court of Appeals Opinion denying rehearing
(1 page Slip Opinion)

A-117



A-1

N.A.A.C.P.. Detroit Branch; The Guardians, Inc.; Brady 
Bruenton; Cynthia Martin; Hilton Napoleon; Sharron Randolph; 
Betty T. Roland; Grant Battle; Cynthia Cheatom; Evin Fobbs; 
John Hawkins; Helen Poelinitz; on behalf of themselves and all 
others similarly situated. Plaintiffs,

v.

DETROIT POLICE OFFICERS ASSOCIATION 
(DPOA); David Watroba, President of the DPOA; City of 
Detroit, a Michigan Municipal Corporation; Mayor Coleman A. 
Young; Detroit Police Department; Board of Police Commission­
ers; Chief William Hart; Governor William Milliken; and The 
Michigan Employment Relations Commission, Defendants.

Civ. A. No. 80-73693.
United States District Court,

E.D. Michigan, S.D.
July 25. 1984.

Black police officers of city of Detroit brought action against 
city, its mayor, its police department, police commissioner, police 
chief, and police officers association alleging city had violated 
affirmative duties imposed by prior findings of constitutional 
violations and that union had breached its duty of fair represen­
tation. The District Court, Gilmore, J., held that; (I) city 
breached its affirmative and constitutionally mandated duty to 
remedy past potential racial discrimination when it began its 
massive layoffs of black officers; (2) breach by city was knowing 
and intentional; and (3) union breached its duty of fair 
representation.

Order accordingly.

1. Civil Rights—9.10
Constitutional obligation of city to eliminate continuing 

effects of past racial discrimination continued to exist at time of 
massive layoffs of black police officers, where percentage of

O pin ion



A-2

blacks in ranks of police officers was 28.3%, in all ranks was 
27.9%, and relevant labor market in city was over 65% black.

2. Civil Rights—9.10
City's breach of its affirmative constitutionally mandated 

duty to remedy past intentional racial discrimination in police 
department was willful, where city knew that it was under legal 
mandate to continue its affirmative obligation to black officers 
and knew that proposed massive layoff would have drastic effect 
upon its obligation.

3. Civil Rights— 13.8(3)
Good faith is not a defense by municipality to a constitu­

tional violation.

4. Civil Rights— 13.10
Neither bona fide seniority clauses nor contractual obliga­

tions are a defense to Fourteenth Amendment violation in 
employment situation. U.S.C.A. Const. Amend. 14.

5. Civil Rights— 13.16
State law cannot stand in way of full and complete remedies 

for constitutional violations.

6. Contracts— 114
Parties cannot by contract limit their liability for preexisting 

constitutional violations.

7. Civil Rights—9.10
Where past intentional discrimination by city in hiring of 

black police officers had been found, city was liable every time it 
knowingly and foreseeably breached its affirmative obligations to 
remedy discrimination.

O pin ion



A-3

O pin ion

8. Civil Rights—9.10 

Labor Relations—219

City does not fulfill its obligation under Fourteenth Amend­
ment, nor does union fulfill its obligations to fairly represent its 
members, by simply giving difficult problem of redressing racial 
injustice in society to federal courts.

9. Civil Rights—9.10

In addition to usual losses sustained with loss of employ­
ment, class of black police officers suffered injury of betrayal as 
direct result of city’s past racial discrimination and its failure at 
time of massive layoffs of black police officers to continue to 
remedy discrimination, where black police officers’ standing in 
community was put in jeopardy by their joining police force, and 
officers had to face inference that city was playing games with 
them and was not serious about its efforts to remedy past 
discrimination.

10. Civil Rights—9.10

Layoffs of approximately 1,100 police officers below rank of 
sergeant, of which approximately 75% were black, violated not 
only black officers’ constitutional rights, but constitutional rights 
of black citizens of city.

11. Civil Rights—13.16

Race-conscious remedies are permitted to redress constitu­
tional violations.

12. Civil Rights—13.16

Classwide relief to remedy past constitutional violations is 
permissible without individual members of class having to prove 
that they were actual victims of past discrimination.



A-4

O pin ion

13. Civil Rights—13.16

Race-conscious remedial relief must be both necessary and 
tailored to cure constitutional violations.

14. Civil Rights— 13.16

Appropriate remedy for discriminatory layoff of black police 
officers by city was reinstatement of all black officers who 
remained on layoff status and who wished to return, with call 
back subject to normal procedures of police department pertain­
ing to returning laid-off police officers, with all returned officers 
to be awarded seniority he or she would have had, if there had 
been no layoffs.

15. Civil Rights— 13.2(1)

In addition to requiring call back of all black police officers 
laid off by city in massive reduction of police force, court also 
permanently enjoined city from laying off, suspending, or dis­
charging, except for disciplinary reasons, any black or white 
police officer without prior approval of court.

16. Labor Relations—219

As exclusive bargaining representative for its members, 
police union had duty of fair representation under Michigan law.

17. Courts—97(1)

Under Michigan law, court must look to federal law for 
guidance in deciding whether union breached its duty of fair 
representation.

18. Labor Relations—219

Duty of fair representation by union is judicially created 
remedy.



A-5

O pin ion

19. Labor Relations—218
By allowing unions to be exclusive representatives of their 

members, and thus subsuming rights of minorities in collective 
bargaining, unions have not been granted licenses to practice 
racial discrimination in violation of either Fourteenth Amend­
ment or equal protection clause of Michigan Constitution. 
U.S.C.A. Const.Amend. 14; M.C.L.A. Const.Art. 1, § 2.

20. Labor Relations—219
Exclusivity principle of National Labor Relations Act and 

Michigan labor relations statute is constitutional only if there is 
duty of fair representation, and that means representation of all 
members of union; this duty of fair representation is fundamental 
limitation upon union activity. M.C.L.A. § 423.211; National 
Labor Relations Act, § 1 et seq., as amended, 29 U.S.C.A. § 151 
et seq.

21. Labor Relations—219
Union’s obligation under duty of fair representation is anal­

ogous to that of fiduciary to principal.

22. Labor Relations—218
Union has higher standard to its members than standard 

owed by employer to employee.

23. Labor Relations—219
Labor union has no per se obligation to make concessions or 

give up demands won at bargaining table and in court in order to 
fairly represent minority members.

24. Labor Relations—219
Police officers union was guilty of breach of its duty of fair 

representation through its failure to adequately represent inter­
ests of black members in layoffs from department, where history 
of racial hostility and indifference to rights and needs of black



A-6

officers existed, blacks were totally unrepresented in leadership 
levels of union, one-quarter of union membership, one-half of 
black membership, and loss of approximately $500,000 a year in 
dues resulted from layoffs, union failed to make any serious 
efforts to assist black officers, and union had in past acted to 
avert layoffs of white officers.

25, Labor Relations—769
Where union had breached its duty of fair representation in 

regard to minority members, and no union governing committee 
had any black or minority members, appropriate relief consisted 
of requiring that within 12 months all committees of union, 
especially grievance and finance committees, board of directors 
and executive boards, reasonably reflect racial composition of 
union.

Thomas I. Atkins, Brooklyn, N.Y., Barnhart & Mirer by 
Jeanne Mirer, Gary Benjamin, James W. McGinnis, Detroit, 
Mich., for plaintiffs.

Walter S. Nussbaum, Mara Kalnins-Ghafari, Detroit, 
Mich., for defendants Detroit Police Officers Association, David 
Watroba, President of DPOA.

Frank W. Jackson, Asst. Corp. Counsel, Detroit, Mich., 
Daniel B. Edelman, Washington, D.C., Terri L. Hayles, Asst. 
Corp. Counsel, Detroit, Mich., for defendants City of Detroit, 
Mayor Coleman A. Young, Detroit Police Department Board of 
Police Commissioners, Chief William Hart.

OPINION

O pin ion

GILMORE, Judge.

Can the City of Detroit, knowing full well that by laying off 
a large number of black police officers it breached its affirmative 
obligations in violation of the Fourteenth Amendment, fail to 
return these officers to work? This is one issue presented in this 
case, and the answer is clearly no.



A-7

Did the Detroit Police Officers Association fail to take 
reasonable efforts to protect these black members in connection 
with the layoffs and thus breach its duty of fair representation to 
them? This is the second major issue presented here, and the 
answer is clearly yes.

O pinion

The action was brought by the Detroit Branch of the 
NAACP, The Guardians, Inc., and ten named individual black 
police officers against the City of Detroit, its Mayor, its Police 
Department, its Police Commissioners, its Police Chief, the 
Detroit Police Officers Association (DPOA), and David Watroba, 
President of the DPOA. Early in the proceedings, the Court 
certified a class of all black police officers laid off in 1979 and 
1980.'

Plaintiffs contend that the City violated affirmative duties 
imposed by prior findings of constitutional violations in Baker v. 
Detroit, 483 F.Supp. 930 (E.D.Mich.1979), afi'd sub nom 
Bratton v. Detroit, 704 F.2d 878 (6th Cir.), modified 712 F.2d 
222 (6th Cir. 1983), cert, denied — U.S. —, 104 S.Ct. 703, 79
L.Ed.2d 168 (1984). Plaintiffs also contend the City defendant 
violated 42 U.S.C. §§ 1981, 1983, and 1985(3), and that their 
Thirteenth Amendment rights were denied by the City.

Plaintiffs further claim the DPOA has breached its duty of 
fair representation under Michigan law, and has violated 42 
U.S.C. §§ 1981, 1983 and 1985(3), and the Thirteenth 
Amendment.

Full trial of the matter began on May 23, 1984, and contin­
ued through 21 days and 2,612 pages of transcript.

The Governor of Michigan and the Michigan Employment Relations 
Commission were original defendants, but were dismissed on motion early 
in the case.



A-8

At issue is the layoff of approximately 1,100 Detroit police 
officers below the rank of sergeant, approximately 75 percent of 
whom were black. As a result of a budgetary crisis, the City, in 
1979, implemented large-scale layoffs of City employees, includ­
ing police officers. On October 13, 1979, the City laid off 400 
police officers, of whom 71 percent were black, and in 1980 an 
additional 690 police officers were laid off, 75 percent of whom 
were black. All officers were laid off pursuant to Article 10(e) of 
the collective bargaining agreement between the City and the 
DPOA that required seniority be strictly applied in the event of 
layoffs, with the result that those last hired were first to be laid 
off.

O pin ion

In Baker, supra, Judge Keith found that the City of Detroit 
had engaged in intentional racial discrimination in its police 
department, at least until 1968. Baker found, and testimony at 
trial also revealed, that the City of Detroit did not seriously begin 
its efforts to eliminate the effects of its past racial discrimination 
until the 1970’s. On July 31, 1974 the City adopted an affirma­
tive action program for its police department, involving hiring 
and promotions in the Detroit Police Department. This affirma­
tive action program has been upheld by the Sixth Circuit in 
Bratton, supra, and DPOA v. Young, 608 F.2d 671 (6th 
Cir.1979), cert, denied 452 U.S. 938, 101 S.Ct. 3079, 69 L.Ed.2d 
951 (1981).

The affirmative action program resulted in an accelerated 
hiring rate for blacks in the Detroit Police Department. In 1975, 
out of 393 appointments to the Detroit Police Department, 250, 
or 63 percent, were black. In 1976 there were no appointments. 
In 1977, out of 1,245 appointments, 949, or 76 percent, were 
black, and in 1978, the last year in which hiring has taken place 
in the Detroit Police Department, out of 227 appointments, 179, 
or 78 percent was black.

On December 31, 1978 blacks held 1,719 of 4,393 positions 
in the rank of police officer, or 39.1 percent, and 1,946 of the 
total of 5,630 positions in the department, or a total of 34.6



A-9

percent. This figure represents the highest percentage of blacks 
ever in the Detroit Police Department.2 * On February 23, 1984, 
when this Court issued its partial summary judgment ruling, the 
Detroit Police Department had a total sworn personnel of 3,762, 
of which 1,007, or 26 percent, were black. It had a total of 2,668 
police officers, of whom 756, or 28 percent, were black. Thus, it 
is clear that the net effect of the layoffs in 1979 and 1980 was to 
wipe out most of the affirmative action recruiting that had 
brought large numbers of blacks onto the police force in 1977 
and 1978.5

At trial, Dr. Mark Bendick, Jr.,4 an economist, updated the 
statistical figures established by Allen Fechter in Baker.5 These 
statistics, which show the disparity between the number of blacks 
in the Detroit Police Department and the numbers of blacks in 
the relevant labor market, can only be explained, according to

O pinion

: At least since 1966, when the DPOA was made exclusive bargaining 
representative, all sworn Detroit officers below the rank of sergeant have 
been members of the DPOA. Thus, statistics for officers below the rank of 
sergeant kept by the City of Detroit should also be applicable to the 
DPOA.

'On August 12, 1981, the Detroit Police Department recalled 100 officers, 
and during the period from April 12, 1982 through June 8, 1982 recalled 
an additional 171 officers. However, further layoffs took place on Septem­
ber 10, 1983, when 224 police officers were laid off. This effectively wiped 
out most of the recalls of 1981 and 1982.

On June 18, 1984, the Detroit Police Department recalled 135 police 
officers, of whom 111, or 82.2 percent, were black. Further recalls are 
anticipated by the Detroit Police Department once the present contract, 
which is in arbitration under Act 312, is determined.

4 The Court will adopt Dr. Bendick’s method of calculating the shortfall of 
blacks in the police officer ranks, and in all sworn positions at designated 
points in time, because his analysis is identical to the method used by 
Mr. Fechter in Baker, supra. It will disregard the testimony of Dr. Joe 
Darden, who was hired as an expert for the plaintiff, because his method 
of calculation was not identical to the method used by Fechter.

'The figures established by Mr. Fechter can be found at the chart in 
Bratton, supra, p. 894.



A -10

Opinion

both Fechter and Bendick, by racial discrimination in hiring. 
Bendick, in updating Fechter’s work, testified at trial that, if the 
Detroit Police Department had hired police officers in proportion 
to the black representation in the relevant labor pool from 1945 
to 1978, the black representation at the police officer rank as of 
December 31, 1978 would have been approximately 47.7 percent, 
rather than 39.1 percent. His analysis also revealed that, as of 
April 30, 1980, the black representation at the police officer level 
would have been approximately 43.8 percent rather than the 28.3 
percent. Dr. Bendick made a projection for 1988, and indicated 
that, if the Detroit Police Department had hired blacks in pro­
portion to their labor market representation in all of the years 
from 1945 to 1978, the presence of black officers in 1988 would 
be 50.5 percent. As of 1984, blacks comprised 65 percent of the 
relevant labor market, and the City of Detroit is 67 percent 
black.

This description of the effects of racial discrimination on the 
Detroit Police Department, and the efforts of the City of Detroit 
to correct is past racial discrimination, cannot be traced without 
mentioning the police officers’ unions. It is a matter of public 
record that both the Lieutenants and Sergeants Association in 
Baker, supra, and the DPOA in DPOA v. Young, supra, brought 
court challenges to the City’s affirmative action plan. The public 
record, as well as testimony at this trial, indicates that, at least 
where affirmative action for blacks was concerned, the police 
unions, including the DPOA, were bitter opponents, of the City. 
Testimony at trail indicated that the DPOA opposed efforts by 
the City to hire increased numbers of blacks and opposed the 
City’s residency requirement—that all personnel in the Detroit 
Police Department have their residency in the City of Detroit, a 
requirement which, although not directly racial, has clear racial 
implications given the racial composition of the City of Detroit.

The first collective bargaining agreement between the 
DPOA and the City of Detroit was entered into in 1967. A 
seniority clause was bargained in at that time, and this clause has 
remained in effect in all agreements since. Several contracts



A-l 1

Opinion

have been entered into since then, but the parties were unable to 
agree to a contract in 1977, and in 1978 the impasse was referred 
to arbitration under Public Act 312 of 1969, M.C.L.A § 423.231 
et seq.‘ On December 30, 1978, the Act 312 Arbitration Board 
made its award on economic proposals. This award was chal­
lenged by the City in the courts, and was finally affirmed by the 
Michigan Supreme Court on June 6, 1980. City o f  Detroit v. 
DPOA, 408 Mich. 410, 294 N.W.2d 68 (1980).

The 1978 Act 312 award plays an important role in the 
underlying factual scenario of this case. The City of Detroit 
contended that this award was excessive and was the direct cause 
of the layoffs. The number of officers laid off was also linked 
monetarily to the amount of the increased award. The testimony 
at trial also revealed that the City took a gamble with its court 
challenges to the award. It did not set aside any monies in its 
budgets to pay for the award. Thus, when the Michigan 
Supreme Court, affirmed the award, the City owed a very size­
able lump sum.

From the DPOA’s point of view, its attitude during this 
period was understandably colored by the fact that as of June 
1980, when the Michigan Supreme Court rendered its decision, it 
had still not received the monies due on a 1977 contract, based on 
a December 1978 award. By 1980, DPOA members were due a 
considerable sum of retroactive backpay and retroactive COLA. 6

6 Act 312 provides that upon certification that the parties are unable to 
agree upon all issues in a contract in the public sector, those issues upon 
which they cannot agree will be submitted to arbitration by an impartial 
arbitration board, which renders a binding decision. The obvious purpose 
of this legislation is to avoid strikes in the public sector. The most 
controversial portion of the Act 312 procedure is its imposition of a 
mandatory 'Mast-best offer” decision upon the arbitrators. M.C.L.A. 
§ 423.238. The arbitrators have no discretion in this regard and must 
accept one of the parties “last-best offers.” The parties present contract, 
which expired in 1983, is presently in Act 312 arbitration. The threat of 
this impending award colors the parties’ position to this very day.



A -12

Opinion

II

On February 22, 1984, this Court held that the City of 
Detroit violated the equal protection clause of the Fourteenth 
Amendment when it laid off the plaintiff class of black police 
officers. The court entered a partial summary judgment for 
plaintiffs, holding:

1. That, based on the findings of intentional discrimination 
in Baker v. City o f  Detroit, 483 F.Supp. 980 (E.D.Mich.1979), 
affi d sub nom Bratton v. City o f  Detroit, 704 F.2d 878 (6th Cir.), 
modified at 712 F.2d 222 (6th Cir. 1983), cert, denied— U.S.—, 
104 S.Ct. 703, 79 L.Ed.2d 168 (1984), the City had a constitu­
tionally imposed continuing affirmative obligation not only to 
stop the discrimination but to remedy all of the effects of the 
discrimination.

2. That the City had not yet remedied the effects of this 
prior discrimination when, in 1979 and 1980, it reduced black 
representation on the police force.

3. That by these layoffs, which the City knew full well 
would reduce black representation on the police force, the City 
breached its affirmative obligation to the plaintiffs in violation of 
their rights under the Fourteenth Amendment.

This ruling was predicated upon the findings of intentional 
past discrimination against blacks in the Detroit Police Depart­
ment made by Judge Keith in Baker, supra. In NAACP v. 
Detroit Police Officers Association, 525 F.Supp. 1215 
(E.D.Mich. 1981), this Court previously held in this case that the 
doctrine of collateral estoppel precluded relitigation of the issue 
of the City’s past intentional discrimination, as found in Baker.

Bratton and Baker found that, at least until 1968, the City 
of Detroit “employed a consistent overt policy of intentional 
discrimination against blacks in all phases of its operations.” 
Bratton, supra, at 888. Since the Baker— Bratton decisions were 
in the context of suits by white officers challenging the City’s



A-l 3

Opinion

voluntary affirmative action plan, neither Judge Keith nor the 
Sixth Circuit had to reach the obvious corollary of these find­
ings that this consistent policy of intentional discrimination 
was in violation of the Fourteenth Amendment, which prohibits 
all invidious racial discrimination, See Loving v. Virginia, 388 
U.S. 1, 87 S.Ct. 1817, 18 L.Ed2d 1010 (1967). The record in 
Baker is “replete with evidence”, Bratton, supra, at 888, of 
invidious racial discrimination against blacks in the Detroit 
Police Department prior to 1968.

In 1967, at a time when the City of Detroit was 40 percent 
black, the Detroit Police Department was only 6 percent black. 
Prior to that time, the Detroit Police Department had been a 
segregated department where blacks were assigned to patrol 
exclusively black areas, scout cars were segregated, and nearly 
every phase of the operation of the Police Department, from 
patrols to investigations to supervisory functions, was segregated. 
Perhaps even worse than the discrimination against blacks in the 
Detroit Police Department itself was the effect of this discrimina­
tion upon relations between the police and the black community. 
This relationship has been characterized by all observers as one 
of deep hostility, and the race riots that occurred in this City in 
1943 and 1967 have been directly tied to the hostility between 
the police and the community, a direct result of invidious racial 
discrimination in the Detroit Police Department.

Testimony introduced at trial in this case also confirmed the 
history of intentional race discrimination against blacks. Chief 
William Hart, who is black and who joined the Department in 
1952 and eventually rose through the ranks to become Chief in 
1976, testified about this past discrimination, as did Executive 
Deputy Chief James Bannon, who is white and who joined the 
Department in 1949.

Furthermore, Dr. Mark Bendick, Jr., the economist who 
updated the Fechter analysis from Baker, also testified that the 
statistical shortfalls of blacks in the Detroit Police Department



A -14

Opinion

over the years, up to the early ’70s, could only be explained as the 
result of racial discrimination.

In DPOA v. Young, supra, a case in which white patrolmen 
and the DPOA challenged the City of Detroit’s voluntary affirm­
ative action plan mandating a 50/50 black-white ratio in promo­
tions of patrolmen to sergeants the court delineated the constitu­
tional obligation here. “ [T]he Constitution imposes on states a 
duty to take affirmative steps to eliminate the continuing effects 
of past unconstitutional discrimination.” Id. at 691. In addition 
to the foregoing holding, the court held that “ [I]t was error to 
require proof that the persons receiving the preferential treat­
ment had been individually subjected to discrimination, for ‘it is 
enough that each recipient is within a general class of persons 
likely to have been victims of discrimination.’ ” Id. at 694.

Based on these judicial findings of past discrimination it is 
clear the City had an affirmative obligation to eliminate the 
continuing effects of past racial discrimination, and to eliminate 
all racial discrimination “root and branch.” Green v. County 
School Board, 391 U.S. 430, 438, 88 S.Ct. 1689. 1694, 20 
L.Ed.2d 716 (1967). See also Swann v. Charlotte-Mecklenburg, 
402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971); 
Keyes v. School District No. 1, 413 U.S. 189, 200 n. 11,93 S.Ct. 
2686, 2693 n. 11, 37 L.Ed.2d 548 (1973). The City had notice of 
all of these judicial findings as of October 1, 1979 when Judge 
Keith’s opinion in Baker was issued.

[1] Thus, in 1979, when the first of the massive layoffs of 
black officers involved in this case took place, the constitutional 
obligation of the City to eliminate continuing effects of past 
racial discrimination continued to exist. Although the City, 
through its voluntary affirmative action plan, had made great 
strides towards satisfying its constitutional remedial obligation 
prior to 1979, the obligation nonetheless remained in force in 
1979. Although in 1978, the year before the layoffs involved in 
this case took place, 39 percent of Detroit police officers were 
black, the highest percentage ever, blacks still were 62.2 percent



A -15

Opinion

of the relevant labor market. The 1978 figure of 39 percent 
blacks still represented a 6.6 percent shortfall of what the per­
centage of blacks would have been absent racial discrimination, 
according to testimony of Dr. Bendick. Given the percentage of 
blacks in the Detroit labor market in 1978, this figure is a 
conservative one in terms of what percentage would have been 
constitutionally mandated. See Bratton, as modified on rehear­
ing, 712 F.2d 222, 223 (6th Cir.1983).

It is clear that the layoffs in 1979 and 1980 had a devastat­
ing effect upon the City’s affirmative action plan. The present 
percentage of black representation in the ranks of police officers 
is 28.3 percent, and in all ranks 27.9 percent. The relevant labor 
market in the City of Detroit today is well over 65 percent.

The City thus breached its affirmative constitutionally man­
dated duty to remedy past intentional racial discrimination in the 
Police Department when it began its massive layoffs of black 
officers in 1979 and 1980, and this breach was knowing and 
intentional. “ If the actions of school authorities were to any 
degree motivated by segregative intent and the segregation 
resulting from those actions continues to exist, the fact of remote­
ness in time certainly does not make these actions any less 
‘intentional.’ ” Keyes, supra 413 U.S. at p. 210-211, 93 S.Ct. at 
p. 2698-2699.

[2] The September 3 letter of Mayor Young to David 
Watroba, plaintiff’s Exhibit 1, shows that the City knew that it 
was under a legal mandate to continue its affirmative obligation 
to plaintiffs, and knew that the layoffs would have a drastic effect 
upon this obligation. Mayor Young wrote:

In closing, let me remind you that affirmative action as 
a concept is not negotiable. It is mandated not only by the 
City Charter, but also by state and federal law and the 
Courts as well.

It is also my opinion that the duty to implement affirm­
ative action does not stop just because we have found more



A-16

Opinion

equitable ways to hire new police officers. Rather, we have a 
double duty—and we are now challenged to find equitable 
ways to implement the September 5 layoffs.

The fact that we have found ways to remove hiring 
barriers at the front door does not relieve us to of our 
obligation to find ways to remove comparable barriers at the 
back door, now that the circumstances require it.
[3-6] The City argues that the law at the time was unclear 

on this subject, especially in relationship to the City’s contractual 
obligation to the DPOA with reference to seniority rights. It is 
well established that good faith is not a defense by a municipality 
to a constitutional violation. Owen v. City o f Independence, 445 
U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). Further, the 
Fourteenth Amendment provides no mention of bona fide senior­
ity clauses nor contractual obligations as a defense. Nor can 
state laws stand in the way of full and complete remedies for 
constitutional violations. Milliken v. Bradley, 418 U.S. 717, 744, 
94 S.Ct. 3112, 3127, 41 L.Ed.2d 1069 (1974). See also Bakke, 
438 U.S. 265, at 307, 98 S.Ct. 2733 at 2757, 57 L.Ed.2d 750, 
(race-conscious action to remedy past discrimination is permissi­
ble, if based upon prior judicial, legislative or administrative 
findings of constitutional statutory violations.) (Powell, J.). Nor 
can parties by contract limit their liability for pre-existing consti­
tutional violations.7 This law was clearly established at the time 
the City began its unconstitutional course of action in laying off 
massive numbers of black police officers.

’ The City argues that in 1979 it was subject to conflicting legal obliga­
tions— its constitutional ones towards black officers and contractual obli­
gations towards white officers. The City never sought declaratory relief 
from this or any other court. It cites no authority, nor could it, for the 
proposition that constitutional remedies can be frustrated by contractual 
obligations. Its citation of W.R. Grace v. Local 759, 461 U.S. 757, 103 
S.Ct. 2177, 76 L.Ed.2d 298 (1983), for the proposition that it would have 
been subject to double liability to white officers had it taken steps to 
protect black officers is inapposite. W.R. Grace involved a conciliation 
agreement under Title VII, with no constitutional issues involved, nor 
previous judicial findings of past racial discrimination.



A-l 7

Opinion

[7] In its motion for reconsideration of this Court’s order of 
partial summary judgement, the City objects to the finding of 
intentional discrimination at the time the City began its layoffs in 
1979, and attempts to attach particular significance to general 
definitions of intent in the racial discrimination field, which hold 
that foreseeable results and discriminatory impact, without 
more, do not establish discriminatory purpose. See e.g. Colum­
bus Board o f Education v. Penick, 443 U.S. 449, 464, 99 S.Ct. 
2941, 2950, 61 L.Ed.2d 666 (1975), Personnel Administrator o f  
Massachusetts v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 
2292, 60 L.Ed.2d 870 (1979). This is not the situation here. 
Here we have the “more”—the judicial findings of past inten­
tional discrimination made by Judge Keith in Baker, and 
affirmed by the Sixth Circuit in Bratton.

Given this past finding of intentional discrimination, the 
City becomes liable every time it knowingly and foreseeably 
breaches its affirmative obligations to remedy this discrimina­
tion. The remoteness in time from the original act of intentional 
discrimination does not make later acts any less intentional. 
Keyes, supra. “Each instance of a failure or refusal to fulfill this 
affirmative duty continues the violation of the Fourteenth 
Amendment.” Columbus Board o f Education v. Penick, supra 
443 U.S. at 459, 99 S.Ct. at 2947. Thus, the City’s discussion of 
the particular intent of the City in 1979-80 is largely irrelevant. 
“ [T]he measure of the post Brown 1 conduct of the school board 
under an unsatisfied duty to liquidate a dual system is the 
effectiveness, not the purpose, of the actions in decreasing or 
increasing the segregation caused by the dual system.” (Cita­
tions omitted). Dayton Board o f Education v. Brinkman, 443 
U.S. 526, 538, 99 S.Ct. 2971, 2979, 61 L.Ed.2d 720 (1979).

This court does not ascribe racially discriminatory animus 
to Mayor Young and his administration. It is obvious that he has 
led the attempts of the City to remedy past discrimination 
against blacks in the Police Department, attempts which have 
placed the City of Detroit in the forefront of major metropolitan 
areas in this regard.



A -18

Opinion

However, it is equally obvious from the testimony and 
exhibits that in 1979, and more particularly in 1980, the City 
made a politically expedient decision that it would rather face a 
lawsuit by black police officers than face a lawsuit by white police 
officers.8 It also decided it would threaten layoffs of black officers 
as a club against the DPOA in an attempt to roll back the 1978 
Act 312 arbitration award, especially the retroactive pay and 
COLA increases ordered in that award.

It is not the function of this Court to inquire into the 
political wisdom of these decisions. However, the Constitution, 
and particularly the Fourteenth Amendment, exists precisely to 
insure that the individual and group rights of all citizens, espe­
cially minorities who have been historically shut out of the 
political process, are protected in the political process.

[8] The rights of the black police officers and black citizens 
of Detroit to a fully integrated police force were sacrificed in the 
1979 and 1980 layoffs. A city does not fulfill its obligations 
under the Fourteenth Amendment, nor does a union fulfill its 
obligations to fairly represent its members, by simply giving the 
difficult problem of redressing racial injustice in our society to 
the federal courts.

During the trial of this case, the United States Supreme 
Court issued its opinion in Firefighters Local Union No. 1784 v. 
Stotts, — U.S. — , 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984). This 
case has initiated a far-reaching debate over its implications for 
affirmative action and civil rights in general, but this Court need 
not address this debate since Stotts is not controlling here.

8 This, the City concedes: “ . . .  they (the city defendants) clearly would 
have preferred to depart from seniority based layoffs, yet chose not to 
because they believed that a court would be more likely to award back pay 
to prevailing white plaintiffs than it would to prevailing black plaintiffs.”

Brief of City of Detroit on City’s motion for Partial Summary Judgment, 
page 2.



A -19

Opinion

Stotts involved Title VII.* This case involves liability under 
the Fourteenth Amendment. Title VII contains a clause specifi­
cally exempting bona fide seniority systems from attack.9 10 The 
Fourteenth Amendment contains no such restrictions. Stotts and 
the Title VII cases relied upon by the Supreme Court there rest 
on interpretations of Congressional intent in enacting Title VII, 
and contain no interpretation of the Fourteenth Amendment.

In addition, Stotts involved a consent decree that specifi­
cally disclaimed liability for past discrimination. This case 
involves prior judicial determinations of past intentional 
discrimination.

The majority opinion in Stotts itself indicates it is distin­
guishable from a case where there has been a finding of past 
intentional discrimination: “Neither does it suffice to rely on the 
District Court’s remedial authority under Sections 1981 and 
1983. Under these sections, relief is authorized only when there 
is proof or admission of intentional discrimination . . . .  Neither
precondition was satisfied here.” Id. —U.S. a t ------n. 16, 104
S.Ct. at 2590 n. 16."

This view of Stotts is confirmed by the recent denial of 
certiorari in Buffalo Teachers Federation v. Arthur, cert, denied 
— U.S. —, 104 S.Ct. 3555, 82 L.Ed.2d 856 (1984). The Second 
Circuit’s opinion below in Arthur v. Nyquist, 712 F.2d 816 (2d

9 42 U.S.C. § 2000e et seq.

10 Sec. 703(h) of Title VII, 42 U.S.C. § 2000e-2(h).

" The Court does not accept the City’s position advanced in post-trial 
argument that Title VII law regarding bona fide seniority systems is 
controlling in constitutional litigation. The cases cited by the City, 
Chance v. Board o f  Education. 534 F.2d 993 (2d Cir. 1976); Schaefer v. 
Tannian. 538 F.2d 1234 (6th Cir. 1976); Stokes  v. New York St. Dept, o f  
Correctional Servs. 369 F.Supp. 918 (S.D.N.Y.1982); and General 
Building Contractors Assoc., Inc. v. Pennsylvania, 458 U.S. 375, 102 
S.Ct. 3141, 73 L.Ed.2d 835 (1982) simply do not stand for this proposi­
tion, and until the U.S. Supreme Court declares otherwise, this Court will 
not write “bona fide seniority system” into the U.S. Constitution, as the 
City invites it to do.



A-20

Opinion

Cir.1983), involved the affirmance of a district court order that 
overrode the seniority system involving teachers in the Buffalo 
Public School System. This order was based on prior findings of 
intentional discrimination by the Buffalo school system, includ­
ing the hiring of teachers.

The Second Circuit specifically held that the Title VII cases, 
which were the basis for the holding in Stotts, particularly 
International Brotherhood o f Teamsters v. United States, 431 
U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), which protect 
bona fide seniority systems, are not applicable in cases seeking 
remedies for constitutional violations based on judicial findings of 
intentional racial discrimination:

Nor was the District Court’s authority impaired, as the 
Federation contends, by the Supreme Court’s decisions in 
American Tobacco Co. v. Patterson, 456 U.S. 63 [102 S.Ct. 
1534, 71 L.Ed.2d 748] (1982), and International Brother­
hood o f Teamsters v. United States. 431 U.S. 324 [97 S.Ct. 
1843, 52 L.Ed.2d 396] (1977). In those Title VII cases, the 
Supreme Court ruled that bona fide seniority systems must 
be honored, unless there has been a finding of actual intent 
to discriminate . . .  Here, however, the suit was brought to 
remedy violations of the Constitution rather than Title VII, 
and the District Court made a finding of intentional discrim­
ination in the Board’s maintenance of a segregated school 
system. We therefore agree with the District Court that it 
had the authority to curtail the seniority rights of the Feder­
ation’s membership in order to vindicate the constitutional 
rights of the minority children in the Buffalo school sys­
tem . . . .  Once a local board of education has been found to 
have employed staff hiring practices that contribute to a 
racially segregated school system, the District Court has the 
power to remedy those practices and to override seniority 
systems that perpetuate those practices.



A-21

Opinion

Id. at 822.12 See also Oliver v. Kalamazoo Board o f Education, 
706 F.2d 757 (6th Cir. 1983), which reaffirmed this general 
principle, but held that the court-ordered remedy in the particu­
lar case was improper.

In general, no precedential effect should be given to a denial 
of certiorari. However, this Court can only conclude that, in 
light of footnote 16 in Stotts, supra, and the denial of certiorari 
in Arthur only two weeks after Stotts, Stotts presents no author­
ity for changing this Court's determination of liability against 
the City of Detroit.

Therefore, this court reaffirms its determination that the 
City breached its affirmative obligations to the plaintiffs in viola­
tion of their Fourteenth Amendment rights.12 13

Ill

“ [T]he nature of the violation determines the scope of the 
remedy.” Milliken v. Bradley, 418 U.S. 717, 738, 94 S.Ct. 3112, 
3124, 41 L.Ed.2d 1069 (1974), (Milliken I); Hills v. Gautreaux, 
425 U.S. 284, 293-94, 96 S.Ct. 1538, 1544-45, 47 L.Ed.2d 792 
(1974). Having established the liability of the City under the 
Fourteenth Amendment, it now becomes necessary to delineate

12 The City's attempt to distinguish this case, as well as a similar case. 
Morgan v. O ’Bryant. 671 F.2d 23 (1st Cir.1982), cert, denied, 459 U.S. 
827, 103 S.Ct. 62, 74 L.Ed.2d 64, on the grounds they involved the 
vindication of the rights of students, not teachers, is not persuasive. Both 
cases involved findings of past intentional discrimination in hiring, as does 
this case. It is hard to fathom how the City can read these cases to stand 
for the proposition that it owes no constitutional duty to its black police 
officers. They stand for precisely the contrary.

13 In addition to its Fourteenth Amendment claim, plaintiffs assert claims 
under the Thirteenth Amendment, 42 U.S.C. §§ 1981 and 1985(3). 
Given this Court’s holding regarding the Fourteenth Amendment liability 
of the City, it is unnecessary to reach the Thirteenth Amendment and § 
1981 claims. There has been no showing sufficient to sustain a finding of 
conspiracy liability under 42 U.S.C. § 1985(3). The evidence shows that 
the City and the DPOA have agreed upon virtually nothing since 1966.



A-22

Opinion

the nature of the wrong, and the relief to be ordered against the 
City.

For the class of laid-off black officers there is obviously the 
loss of their jobs, which resulted from these unconstitutional acts, 
as well as the loss of back pay and other fringe benefits. William 
Bracey, former Chief of Patrol of the New York City Police 
Department, a very informative and credible witness, who, in 36 
years, rose from the ranks of patrolman to become the highest 
ranking black officer in the New York Police Department, testi­
fied dramatically to this point.

He described the traumatic effect of layoffs on newly-hired 
black officers, stressing that when black officers are laid off after 
only serving briefly they have an added burden that white officers 
do not have. Because of the past racial animosity to the police, 
they often are alienated from friends and families, and are likely 
to have less support from them when they are laid off after just 
recently being hired. Often all of the distrust engendered by 
years of segregation surfaces again, and the officer, his friends 
and family think, “They’re playing games with you. They really 
didn’t want you in the first place.”

Chief Bracey testified that this trauma is even more acute 
for rookie officers, and that the normal adjustment to becoming a 
police officer is difficult enough without the newly-hired black 
officer having the additional trauma of getting a message from 
the City that it is not serious about remedying the past discrimi­
nation in the Department.

[9] Thus, based on this testimony, the Court finds that in 
addition to the usual losses sustained with the loss of employ­
ment, the class of black officers suffered injury as a direct result 
of the City’s past racial discrimination, and its failure in 1979 
and 1980 to continue to remedy this discrimination. To put it 
bluntly—they suffered the trauma of betrayal. After placing 
their standing in the community in jeopardy by joining the police 
force, they had to now face the inference that the City was 
“playing games” with them, and was not serious about its efforts



A-23

Opinion

to remedy this past discrimination. This trauma was directly tied 
to the City’s constitutional violation.

[10] Without minimizing the losses suffered by the black 
officers, testimony at trial revealed a constitutional violation of 
even greater magnitude—the harm to the black citizens of the 
City of Detroit. Perhaps even more than the individual officers, 
they are the victims in this case.

When we deal with the police in an employment situation, 
we are not dealing with a private employer. The police function 
“fulfills a most fundamental obligation of government to its 
constituency,” Foley v. Connelie, 435 U.S. 291, 297, 98 S.Ct. 
1067, 1071, 55 L.Ed.2d 287 (1978). Baker, Bratton, and DPOA 
v. Young have affirmatively recognized what is known as the 
“operational needs” defense for affirmative action in the Detroit 
Police Department—that the presence of black officers on the 
police force is vital in enabling the police to effectively fulfill its 
police function. See also Van Aken v. Young, 541 F.Supp. 448 
(E.D. Mich.1982).

In DPOA v. Young, supra, the Court held:

The argument that police need more minority officers is 
not simply that blacks communicate better with blacks or 
that a police department should cater to the public’s desires. 
Rather, it is that effective crime prevention and solution 
depend heavily on the public support and cooperation which 
result only from public respect and confidence in the police. 
In short, the focus is not on the superior performance of 
minority officers, but on the public’s perception on law 
enforcement officials and institutions.

608 F.2d at 696.

Baker and DPOA v. Young developed the operational needs 
theory in terms of legal justification for affirmative action. The 
testimony in this trial persuasively developed the converse—the 
harm to the black citizens in Detroit when the City retreated



A-24

Opinion

from its commitment to affirmative action and a police force that 
met the needs of its community.

The testimony of Chief Bracey, Patrick Murphy, former 
Detroit and New York City Police Commissioner and currently 
president of the Police Foundation, Chief Hart, Deputy Chief 
Bannon, and Mayor Young developed the operational needs con­
cept. Former Commissioner Murphy testified that the presence 
of black officers is vital to the whole concept of democratic 
policing, and that police should come from the people they serve. 
He emphasized the way black officers can educate white officers 
on the mores, folkways and language of the black community. 
He stated that it is absolutely necessary that the community be 
involved in policing, and to accomplish that, police officers must 
be representative of the community. He testified that there has 
been great improvement in police-community relations over the 
last 15 years, and that this has been largely due to the existence 
of more minorities on police forces. This evidence is overwhelm­
ing, and largely unrebutted. No one today could seriously hold 
the DPOA’s position that a white police force living in the 
suburbs could effectively police the City of Detroit.

Mayor Coleman Young pointed out that formerly there was 
great alienation between the black community and the police 
department which resulted in ineffective law enforcement and 
poor community relations. This was changed in recent years. 
The Mayor also pointed out that the DPOA has exerted great 
influence in past administrations, and has regularly resisted 
efforts to hire more blacks. He testified that no officer of the 
DPOA has ever protested racial discrimination in the Detroit 
Police Department, or complained to him on behalf of any of its 
black members.

Chief Hart and Deputy Chief Bannon also testified force­
fully on this subject. They said that, prior to 1974 when the City 
first seriously began to eliminate racial segregation in the Detroit 
Police Department, the Department was viewed as an occupation 
army by the black citizens of Detroit. This, they said, reduced



A-25

Opinion

the effectiveness of the police in that they could not get witnesses 
to testify or cooperate in solving crimes, controlling crowds, or in 
crime prevention.

Both testified concerning changes that have taken place 
since citizens began to see that the City was serious about 
making the police more representative of the citizenry. There is 
a greater degree of police-citizen cooperation, crowd control is 
more easily handled, and crime prevention projects have 
increased dramatically. Furthermore, police fatalities have been 
drastically reduced. All of this is tied to the presence of sufficient 
numbers of blacks on the Detroit Police Department.

Chief William Hart has been chief since 1976. He has a 
doctorate from Wayne State University, and is a career police 
officer, having entered the Detroit Police Force in 1952.

Chief Hart outlined the history and background of the 
relationship between the police and the community in the 1950s 
and the 1960s, pointing out that at that time relations were very 
bad, and that the police, predominately white, was considered an 
army of occupation. He testified that when he first went on the 
force only three precincts had black officers, and that the depart­
ment was totally segregated. Poignantly, he testified that he 
could not be assigned to a clean-up squad (a local vice squad in 
the precinct) until he could find a sergeant who would have a 
black on his team.

Chief Hart testified that the lack of trust in the police 
department prior to the ’70s made it very difficult to properly 
police the City. He testified that after 1974 police-community 
relations changed dramatically, and he says now the people in the 
neighborhoods are part of the solution rather than part of the 
problem. Violence has been greatly reduced against police 
officers because of integration, and the rate of police killings has 
been greatly reduced. Police brutality against citizens has been 
greatly reduced and is almost nil at the present time.



A-26

Opinion

Finally, Chief Hart pointed out that, with the layoff of the 
large numbers of black officers, the forward strides have been put 
on hold. The layoff of blacks has hampered the ability to fight 
narcotics, to do undercover work, to do surveillance work, and to 
work with organized crime and vice. Although there is a residue 
of good will in the community resulting from the increased black 
representation on the force, such good will cannot last forever. 
He wants all of the officers, black and white, called back.

Executive Deputy Chief James Bannon, of the Detroit 
Police Department, is a white, career police officer, who has been 
on the force since 1949. He holds a Ph.D. degree. He also 
testified that there is presently mutual support between the 
community and the Police Department, and reiterated Chief 
Hart's testimony that formerly the Police Department was an 
occupation force in the black community. The changes in atti­
tude that have come about as the result of the number of blacks 
coming onto the force has been dramatic. Several factors 
brought about this change in the community and in the force, 
according to Chief Bannon:

1. A black Mayor and a black Police Chief have given 
people a feeling of accessibility;

2. Blacks are in policy positions in the Department for the 
first time;

3. The high visibility of black officers in the community has 
been significant in changing the community’s attitudes.

The testimony of all police officials was that, as the result of 
the increase in black representation on the police force, the 
community relations with the police force had dramatically 
improved since 1974, and there has been a complete reversal in 
community attitude towards the force. They all testified, how­
ever, that the good will developed by the Detroit Police Depart­
ment since 1974 is not inexhaustable, and can be used up if the 
community begins to see the return to the past days of racial 
segregation in the Detroit Police Department. Although the 
presence of many black command officers, who were unaffected



A-27

Opinion

by the layoffs, somewhat ameliorates this problem, it is undis­
puted that black patrol officers are the most visible, have the 
most daily contacts with the community, and are most important 
in crime prevention and community relations. Therefore, mas­
sive reductions in the numbers of black police officers below the 
rank of sergeant on the street will have dramatic effects.

Just as significant as the testimony were the exhibits show­
ing the effect of these layoffs on the actual operations of the 
Detroit Police Department. A particularly significant exhibit 
was Exhibit 645, which shows the racial composition of the 
Detroit Police Department by sections and precincts. The Spe­
cial Events Unit, a highly visible unit charged with crowd control 
during major events, has been reduced from 28 percent black 
prior to the 1979 layoffs to presently six percent black. Precinct 
No. 5, which in September 1977 had a population that was 63.1 
percent black, today has 18 percent blacks on patrol. Precinct 
No. 15, a predominently white precinct, which, prior to the 
layoffs, had 33 percent blacks on patrol, today has four percent 
blacks. Only six black officers, divided among three shifts, are 
now assigned to this precinct. This statistic parallels the worst 
days of segregation in the police department.

Finally, Exhibit 645 shows that the Youth Bureau, in a city 
where 80 percent of the youth is black, is only 13 percent black. 
Given the importance of black officers as role models for the 
youth and the importance of preventing youth crime, this statis­
tic is a striking demonstration of the effect of this constitutional 
violation.

Thus, the City is in real danger of seeing the gains of the 
1970's in terms of police-community cooperation reversed, if the 
City’s unconstitutional layoffs are not remedied.

It is clear from the testimony of Mayor Young and the police 
experts, Bracey, Hart, Bannon, Murphy, and the exhibits, that 
the return of black officers to the streets of the City of Detroit is 
not only necessary to vindicate the constitutional rights of the 
black police officers, but is also an absolute necessity to restore



A-28

Opinion

balance to the community, and the confidence of the community 
in the Detroit Police Department. Their testimony was intelli­
gent, credible and convincing, and clearly established the need 
for the return to the force of the black police officers.

Thus, there are two constitutional violations which must be 
remedied—the harm resulting from the City’s abandonment of 
its black officers, and the harm to the black community if the 
police force is returned to the days of racial segregation.

[11, 12] It is well established by now that race-conscious 
remedies are permitted to redress constitutional violations, 
Bakke, supra, 438 U.S. at 307, 98 S.Ct at 2757; Bratton, supra, 
at 882; DPOA v. Young, supra, and Oliver v. Kalamazoo, supra. 
Class-wide relief to remedy past constitutional violations is 
equally permissible without the individual members of the class 
having to prove that they were actual victims of past discrimina­
tion. “ [I]t was error to require proof that the persons receiving 
the preferential treatment had been individually subjected to 
discrimination, for ‘it is enough that each recipient is within a 
general class of persons likely to have been victims of discrimina­
tion.’ ” DPOA v. Young, supra, at 694, citing Bakke.'*

[ 13] Although race-conscious remedial relief is permissible, 
the remedy must be “necessary” and “tailored” to cure the 
constitutional violations. Oliver, supra, at 764. A similar stan­
dard was established by Justice Powell in Bakke: “When they 
[classifications] touch upon an individual’s race or ethnic back­
ground, he is entitled to a judicial determination that the burden 
he is asked to bear on that basis is precisely tailored to serve a 
compelling governmental interest.” Bakke, supra, 438 U.S. at 
299, 98 S.Ct. at 2753. And it is clear that this Court is mandated 
to “balance individual and collective interests.” Swann v. 
Charlotte-Mecklenburg, supra 402 U.S. at 16, 91 S.Ct. at 1276. 14

14 For the reasons set forth, supra, pp. 1202-1204, Storts  does not affect this 
holding of the Sixth Circuit.



A-29

Opinion

Based upon the findings of liability and the findings of the 
nature of the constitutional violation, this Court will order the 
following relief to cure the constitutional violation:

[14] The first relief to be ordered is the reinstatement of all 
black officers laid off in 1979 and 1980 who currently remain on 
layoff status, and who wish to return.15 This should be done in an 
orderly manner and over a period of time, so that the City will 
have an opportunity to make the budget adjustments necessary to 
effectuate the return of these officers.

Therefore, the Court will order that all these officers be 
called back within 180 days of this opinion. Seniority will control 
in determining the order of callback. Within 30 days of the date 
of this opinion, the City shall present to the Court a plan to 
accomplish this.

All callbacks will be subject to the normal procedures of the 
Police Department—that is, the Department must determine if 
each officer desiring to return to duty is still qualified to be a 
Detroit police officer. If he or she is not, but can become 
qualified through additional training, such training shall be pro­
vided. In short, the Department may be subject officers desiring 
to return to duty to the normal procedures employed by them for 
all returning laid-off police officers.

15 As discussed earlier, this Court rejects the City's argument that the 
distinctions made in Arthur  v. Nyquist, supra, and Morgan v. O Bryant, 
supra, between harm to the public and harm to individual employees, 
prevent this Court from ordering the recall of the plaintiff officers. The 
constitutional mandate of this Court is that the remedy must be related to 
the “condition alleged to offend the Constitution___ ” M illiken  v. Brad­
ley, 433 U.S. 267 at 280, 97 S.Ct. 2749 at 2757, 53 L.Ed.2d 745. This is 
what the recall of these officers is designed to do. The City argues against 
the recall of the officers, and yet asks this Court to order affirmative 
action recalls and layoffs at will of the City, intervention in the City- 
DPOA Act 312 proceedings, and a wage freeze (City Trial Brief, p. 49). 
This argument is self-serving and based on Byzantine legal distinctions 
which this Court rejects.



A-30

Opinion

Moreover, all officers returned under this order shall be 
awarded the seniority he or she would have had, if there had been 
no layoffs.

[15] In addition, the Court permanently enjoins the City 
from laying off, suspending, or discharging, except for discipli­
nary reasons, any black police officer without the prior approval 
of this Court. This remedy is necessary to vindicate the needs of 
the individual black officers and the compelling state interest in a 
police force reflective of this community.

Similarly, the Court permanently enjoins the City from 
laying off, suspending or discharging, except for disciplinary 
reasons, any white police officer, without the prior approval of 
this Court. It is possible that one of the solutions the City will 
seek to the remedy in this case will be to attempt to layoff white 
officers with higher seniority than blacks. This the Court, at the 
present time, will not allow. The case law—Bakke, Oliver, 
Arthur—demands that the Court take into consideration the 
interests of white officers with higher seniority than blacks.

The financial information furnished to the Court, which 
perhaps could be relevant to this issue, was less than satisfactory. 
Although it was represented that the Budget Director of the City 
of Detroit would be produced as a witness, the City failed to 
produce him, and in his stead produced a budget analyst, Edward 
Rego, whose testimony was vague and imprecise upon budget 
figures.

Mr. Rego, while admitting that the budget of the City is 
merely a financial manifestation of a series of political choices, 
was unable to explain items amounting to some $300,000,000, 
nearly 20 percent of the 1.5 billion budget for 1984-1985. He 
made much of the claim that certain budget items are restricted 
by state or federal law, but the record, insofar as it was made, 
established that only 39 percent of City employees are on jobs 
which are funded from either revenue sharing or other grant 
monies from the federal or state governments.



A -31

Opinion

While the Police Department budget was less than 26 per­
cent of the City’s non-restricted budget, the Police Department’s 
share of budget reduction effort in 1979, 1980, and 1983 was 
more than 50 percent of the total. This is so even though the cost 
of a police officer (salary plus fringes) proved to be ony $44,560, 
rather than the $50,000 per year earlier used by the City.

Next, the Court must concern itself with the rights of laid- 
off white officers who may be senior to black officers being called 
back under this order. Their interests must be taken into account 
in fashioning any final remedy. This is mandated by Bakke, 
DPOA v. Young, Oliver v. Kalamazoo, and Arthur v. Nyquist. 
But in every one of those cases, the white officers or teachers were 
actively present in the lawsuit and presented their interests. This 
did not happen here. Although the DPOA protested that it did 
represent the white officers, this Court has found that they did 
not, and that the white officers had not adequate representation 
in this case.'6 There is not showing on this record of the numbers 
or the interest of these officers, and the Court has nothing other 
than speculation upon which to make a determination of their 
interests.

This Court will therefore allow 30 days for any laid-off 
white officer, with greater seniority than any laid-off black officer 
called back, to intervene in this lawsuit for a determination of his 
or her interest. The Court expresses no opinion as to these 
interests, if any, nor does the Court express any opinion as to 
whether doctrines of estoppel, latches, etc. would bar the Court 
from considering their claims. The Court simply believes that, 
given the record introduced by the DPOA in this case, and 
contrary to their representations that they represented the laid- 
off white officers, equity requires that any white officer who 
desires be heard. It will be the responsibility of the City of 
Detroit to notify all laid-off white officers of this determination.

“ See colloquy between the Court and counsel. Transcript of Testimony, 
Volume 14, June 13, 1984, pp. 1649-53.



A-32

Opinion

The next request for relief is the ordering of back pay. This 
Court will not order back pay relief against either the City or the 
DPOA. Even in Title VII cases, where back pay is generally 
presumed, the Court still retains equitable discretion and can 
deny it for equitable reasons. See City o f Los Angeles Depart­
ment o f  Water and Power v. Manhart, 435 U.S. 702, 722-23, 98 
S.Ct. 1370, 1382-83, 55 L.Ed.2d 657 (1978). But this is not a 
Title VII case. Here the Court has even greater equitable 
discretion under a constitutional analysis, especially in light of 
judicial mandates that constitutional remedies be tailored to the 
scope of the constitutional violation. Milliken, supra, Oliver v. 
Kalamazoo, supra. The Court must necessarily balance the 
individual and collective interests involved.

Although this Court has already held that class-wide reme­
dial relief is not limited to individual victims of prior discrimina­
tion, and has ordered such remedial relief, and although this 
Court does not believe that any legal authority bars back pay in a 
situation such as is presented here, the Court must take into 
account the fact that no evidence has been presented that any 
individual member of the plaintiff class was an actual victim of 
racial discrimination in hiring. This is an equitable factor that 
must be weighed in balancing individual and collective interests 
and tailoring the scope of the remedy.

The wrong in this case was not only that of individual 
discrimination. It was also a collective wrong, a wrong to the 
expectations of the citizenry and the black police of the City of 
Detroit, who expected the City to be serious about its commit­
ment to affirmative action, which would result in a police force 
reflective of the community. The collective interests outweigh 
the admittedly important private interest in back pay in this case, 
and merit denial of back pay.

Regardless of the amount of any back pay award,17 it would 
certainly be substantial. These costs would be borne primarily by

17 If back pay were ordered, Chief Hart said it would ruin the City. Dr. 
Sidney Mitre, Professor of Economics at Oakland University, testified 
that the total wage loss suffered by all officers as a result of the layoffs 
was $50,734,700, the total pension loss was $32,321,667, and the fringe 
benefit loss $5,386,940, for a total of more than $86,000,000.



A-33

Opinion

the black citizenry of Detroit. While financial inability to pay is 
no defense to a constitutional remedy, financial factors certainly 
must enter into the equitable balancing this Court must under­
take. The relief the Court has ordered will sufficiently make the 
plaintiffs whole, and is tailored to the constitutional violation. In 
view of the fact that the violation here was to the collective 
interests of the laid-off officers and the citizens of Detroit, this 
Court believes justice will not be served by a massive back pay 
award, and therefore back pay will be denied.

IV

The DPOA, which was established in 1943, was formally 
certified to serve as the collective bargaining agent for all Detroit 
police officers below the rank of sergeant in 1966. It was granted 
its authority by the Public Employee Relations Act of 1965,
M.C.L.A. § 423.211, which provides in pertinent part;

Representatives designated or selected for purposes of 
collective bargaining by the majority of the public employ­
ees in a unit appropriate for such purposes, shall be the 
exclusive representatives of all the public employees in such 
unit for the purposes of collective bargaining with respect to 
rates of pay, wages, hours of employment or other conditions 
of employment. . .

[16, 17] As the exclusive bargaining representative for its 
members, the DPOA has a duty of fair representation under 
Michigan law. Lowe v. Hotel & Restaurant Employees Union, 
Local 705, 389 Mich. 123, 205 N.W.2d 167 (1973). Plaintiffs 
claim that the DPOA breached this duty, which is a pendent one 
brought under Michigan law. According to Michigan law, the 
Court must look to federal law for guidance in deciding the fair 
representation issue, since the full development of this doctrine 
has taken place through judicial interpretation of the National 
Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq. See 
Bebensee v. Ross Pierce, 400 Mich. 233, 253 N.W.2d 633 
(1977).



A-34

Opinion

[18, 19] The duty of fair representation is a judicially cre­
ated remedy. There is no specific reference to it in either the 
NLRA or in Michigan statutory law. Instead, the doctrine has 
been developed by the judiciary as a necessary, and, in the case of 
racial discrimination, a constitutionally imposed duty arising 
from the grant of authority by legislatures to unions to be the 
exclusive representatives of their members. By allowing unions 
to be exclusive representatives of their members, and thus sub­
suming rights of minorities in collective bargaining, unions have 
not been granted licenses to practice racial discrimination in 
violation of either the Fourteenth Amendment or the equal 
protection clause of the Michigan Constitution. Mich. Const. 
Art. 1, § 2.

Since this case involves claims of racial discrimination by an 
exclusive bargaining representative (the DPOA), the Court must 
be especially sensitive to the fact that the duty of fair representa­
tion arose as a doctrine to protect minorities, and blacks in 
particular, from racial discrimination by unions. When the 
NLRB was originally established, leaders of black organizations 
expressed fears that by granting exclusive representative status 
to certain unions, racially discriminatory policies by unions 
would have the authority of a law.

Congress attempted to allay these fears in the debate sur­
rounding the NLRA, and the United States Supreme Court 
firmly outlawed racial discrimination by unions by establishing 
the duty of fair representation in Steele v. Louisville & Nashville 
Railroad Co., 823 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 178 (1944). 
The Court held there that the duty of fair representation 
required the union to represent minority union members without 
hostile discrimination, fairly, impartially, and in good faith:

So long as a labor union assumes to act as the statutory 
representative of a craft, it cannot rightly refuse to perform 
the duty, which is inseparable from the power of representa­
tion conferred upon it, to represent the entire membership of



A-35

Opinion

the craft. While the status does not deny to such a bargain­
ing labor organization the right to determine eligibility to its 
membership, it does require the union,. . .  to represent non­
union and minority union members of the craft without 
hostile discrimination, fairly, impartially, and in good 
faith .. . .

Id. at 204, 65 S.Ct. at 232.

[20] It is clear that the exclusivity principle of the NLRA 
and M.C.L.A. § 423.211 is constitutional only if there is a duty 
of fair representation, and that means representation of all mem­
bers of the union. The duty of fair representation is a fundamen­
tal limitation upon union activity. Humphrey v. Moore. 
375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964).

Without the judicially imposed duty of fair representation, 
the tradeoffs made by minorities in allowing unions to be their 
exclusive representatives in order to protect majority interest and 
to achieve industrial peace through the encouragement of volun­
tary agreements, the purposes of the NLRA would be hollow. In 
return for exclusive bargaining, blacks in the DPOA are prohib­
ited from bargaining directly with the City of Detroit, and are 
prohibited from taking any direct action against the City of 
Detroit independently of the DPOA. See Emporium Capwell 
Company v. Western Addition Community Organization, 
420 U.S. 50, 95 S.Ct. 977, 43 L.Ed.2d 12 (1975). The DPOA is 
the only spokesperson for black police officers to the employer, 
and thus has tremendous power over the welfare of black employ­
ees. The judiciary has a duty to see that this power is not abused, 
and does not become a grant of authority to practice racial 
discrimination.

Michigan has recognized the duty of fair representation as a 
matter of state law:

In many ways, the relationship between a union and its 
members is a fiduciary one. Certainly it is a relationship of 
fidelity, of faith, of trust, and of confidence.



A-36

Opinion

Lowe, 389 Mich, at 145, 205 N.W.2d 167.

And,

[T]he union must act without fraud, bad faith, hostil­
ity, discrimination, arbitrariness, caprice, gross nonfea­
sance, collusion, bias, prejudice, wilfull, wanton, wrongful 
and malicious refusal, personal spite, ill will, bad feelings, 
improper motives, misconduct, overreaching, unreasonable 
action, or gross abuse of its discretion.. . .

Id. at 146-47, 205 N.W.2d 167.

There is no reason to believe that Michigan would interpret 
this duty more narrowly than the U.S. Supreme Court. The state 
has a historical commitment to the abolition of racial discrimina­
tion, and has been a leader in breaking down the barriers 
between races. In fact, to the extent that Michigan case law has 
evinced a standard different from the federal standard, it appears 
to be even more strict than the federal standard. “When the 
general good conflicts with the legal or civil rights of an individ­
ual member, the courts will recognize and enforce them as 
against the will of the majority union membership.” Lowe, 389 
Mich, at 146, 205 N.W.2d 167.

As a judicial remedy, the legal standard for finding a breach 
of the duty of fair representation must be somewhat open ended 
and flexible, given different factual circumstances. As Judge 
McCree pointed out in St. Clair v. Local No. 15 o f International 
Brotherhood o f Teamsters, 422 F.2d 128, 130 (6th Cir. 1969): 
“The phrase 'fair representation’ is something of a term of art, 
and the standards by which we are bound have not been set down 
explicitly in a code.”

Thus, “fairness” is the standard for the duty of fair repre­
sentation. The duty requires rational decision-making and proce­
dural protection to protect minority members from discrimina­
tory treatment. It has been said that the duty of fair 
representation creates a duty of “fair dealing.” International 
Union o f Electrical Workers v. NLRB, 307 F.2d 679, 683



A-37

Opinion

(D.C.Cir.1961), cert, denied 371 U.S. 936, 83 S.Ct. 307 9 
L.Ed.2d 270 (1962).

The duty of fair representation was defined by the United 
States Supreme Court in Vaca v. Sipes. 386 U.S. 171, 87 S.Ct. 
903, 17 L.Ed.2d 842 (1967):

Under this doctrine, the exclusive agent's statutory 
authority to. represent all members of a designated unit 
includes a statutory obligation to serve the interests of all 
members without hostility or discrimination toward any, to 
exercise its discretion with complete good faith and honesty, 
and to avoid arbitrary conduct.. ..

Id. at 177, 87 S.Ct. at 910.

The test was similarity stated in Farmer v. ARA Services. 
Inc.. 660 F.2d 1096 (6th Cir.1981):

A union fails to fairly and impartially represent all 
members of a bargaining unit, and thus breaches its duty of 
fair representation, when the union’s conduct toward any 
member becomes arbitrary, discriminatory or in bad 
fa ith .. . .

Bad faith or fraud is not a necessary element of a 
charge of unfair representation if the union’s conduct is 
otherwise arbitrary or perfunctory (citing cases). Arbitrary 
perfunctory union conduct which exhibits something more 
than simple negligence is a breach of the duty of fair 
representation.

Id. at 1103.

The Farmer court also pointed out that a union is required 
to represent its members fairly and impartially, and to make an 
honest effort to serve the interests of all without hostility to any. 
To fulfill its duty, the court said: “ the union must have not only 
enforced the provisions of the collective bargaining agreement in 
a non discriminatory manner, it must have also fairly represented



A-38

Opinion

all segments of the bargaining unit during the negotiations of 
each collective bargaining agreement.” Id. at 1103.

Any one of three elements—arbitrariness, discrimination, or 
lack of good faith—can create a breach of the duty of fair 
representation. The standard was well summarized in Griffin v. 
U.A.W., 469 F.2d 181 (4th Cir.1972):

First, it must treat all factions and segments of its 
membership without hostility or discrimination. Next, the 
broad discretion of the union in asserting its rights of its 
individual members must be exercised in complete good 
faith and honesty. Finally, the union must avoid arbitrary 
conduct. Each o f these requirements represents a distinct 
and separate obligation, the breach o f which may constitute 
the basis fo r  civil action.

Id. at 183. (emphasis added).

In Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 
(1957), the Supreme Court recognized that active or tacit con­
sent to discriminatory enforcement of a facially neutral conduct 
could constitute a breach of the duty of fair representation. Id. at 
46, 78 S.Ct. at 102. And the Second Circuit has found a duty of 
fair representation violation in a union’s failure ” [T]o provide 
substantive and procedural safeguards for minority members of 
the collective bargaining unit.” Jones v. TWA, 495 F.2d 790, 
798 (2d Cir. 1974).

This circuit has recognized that the duty of fair representa­
tion is an active and affirmative obligation on the part of union 
leadership. The duty “requires a union to assert the rights of its 
minority members in collective bargaining sessions and not pas­
sively accept practices which discriminate against them.” 
E.E.O.C. v. Detroit Edison Company, 515 F.2d 301, 314 (6th 
Cir. 1975), vacated, 431 U.S. 951, 97 S.Ct. 2668, 53 L.Ed.2d 267 
(1977), citing Macklin v. Spector Freight Systems, 478 F.2d 979 
(D.C.Cir.1973). See also Bonilla v. Oakland Scavenger Com­
pany, 697 F.2d 1297, 1304 (9th Cir. 1982): “The union has an



A-39

Opinion

affirmative obligation to oppose employment discrimination 
against its members.”

[21,22] The union's obligation under the duty of fair repre­
sentation is analogous to that of a fiduciary to a principal. 
Clearly the union has a higher standard to its members than the 
standard owed by the employer to the employee. This is con­
firmed by language in Steele: “ It is a principle of general
application that the exercise of a granted power to act on behalf 
of others involves the assumption towards them of a duty to 
exercise the power in their interest and behalf, and that such a 
grant of power will not be deemed to dispense with all duty 
towards those for whom it is exercised unless so expressed.” 323 
U.S. at 202, 65 S.Ct. at 232.

Under the standard first established in Steele, elaborated in 
Vaca v. Sipes, and recognized by the Michigan Supreme Court in 
Lowe, and in keeping with the firm policy of the State of Michi­
gan against racial discrimination, this Court finds the DPOA 
guilty of a breach of its duty of fair representation through its 
failure to adequately represent the interests of its black members 
in the layoffs of 1979 and 1980.

[23] Initially, it must be stated what this liability is not 
predicated upon. It is not predicated upon any adherence by the 
DPOA to a seniority-based system of layoffs. This Court finds 
the seniority system negotiated between the DPOA and the City 
to be bona fide. Nor is this liability predicated upon any duty of 
the DPOA to make concessions or give up demands won at the 
bargaining table and in the courts. The Court agrees with the 
DPOA that no such per se duty to minority members of a 
bargaining unit exists, and this finding of liability does not imply 
such a duty.

[24] The DPOA’s breach of the duty of fair representation 
flows not merely from any reliance upon a seniority system, or a 
simple refusal to make concessions in the interest of minorities.



A-40

Opinion

The D.P.O.A.'s liability is premised on more than this, and flows 
inescapably from the following findings:

1. A history o f racial hostility and indifference to the rights 
and needs o f black officers.

The history of black relationships with the DPOA is one 
showing at the best indifference, and at the worst hostility, to the 
blacks by the white members of the DPOA throughout the years.

Witness after witness, all black and all police officers or 
sergeants, testified to the discriminatory manner in which they 
were treated by the DPOA. Of particular significance was the 
testimony of Fernon Douglas, a black police officer who came on 
the force in 1972 and is still a member of the Detroit Police 
Department. In 1978, he was elected a shift steward and also a 
chief steward of the DPOA. In 1978, he was nominated for 
sergeant-at-arms, one of the four officers of the union, but did not 
run after John Vella, a white member of the executive board, told 
him that, if he ran for sergeant-at-arms, all blacks would be 
removed from committee assignments. Vella denied making such 
a statement, but the Court finds as a matter of fact that he did.

Douglas was nominated again for sergeant-at-arms in Sep­
tember 1982, but, after a meeting of black stewards, he decided 
not to run. Additionally, he was active in proposing constitu­
tional changes, one of which would have required that no DPOA 
funds be spent for litigation, except for litigation relating directly 
to the contract between the City and the DPOA. This amend­
ment, and other constitutional amendments proposed by him and 
other black officers, were soundly defeated.

It is true that the DPOA has always represented black 
officers in disciplinary proceedings and court proceedings the 
same as they represented white officers, but this does not change 
the fact that in 1979 and 1980 the union did not adequately 
represent its black members in bargaining to prevent their 
layoffs.



A-41

Opinion

Throughout, the DPOA has maintained opposition to all 
forms of affirmative action by the City and the Police Depart­
ment. In addition to demanding strict seniority in its contract, it 
has intervened repeatedly in litigation designed either to block 
implementation of affirmative action, or supported those trying to 
block affirmative action. Testimony was introduced indicating 
that the DPOA has spent over $500,000 financing its anti­
affirmative action litigation. And this intervention has not been 
limited to the City of Detroit. For example, it has filed amicus 
briefs supporting challenges to affirmative action in Boston, New 
Orleans, and Memphis. In none of these cases was the DPOA 
directly involved, and efforts of black members to amend the 
constitution to prohibit the use of union funds for such amicus 
briefs were soundly defeated by the organization.

It should be obvious to any neutral observer that blacks, who 
at one point comprised almost 40 percent of the DPOA, would be 
greatly offended by the use of such vast sums of money to fight 
what blacks believed to be efforts to achieve racial equality for 
them.

To partially deal with the problems of black officers, the 
Guardians, an organization of black police officers of all ranks, 
and from departments other than Detroit, was formed in the 
early 1960’s. In addition, the Committee of Police Officers for 
Equal Justice (CPOEJ) was formed to deal with the problems of 
black officers. The DPOA avoided dealings with either the 
Guardians or the CPOEJ, and is hostile to these organizations. In 
some contexts, the DPOA’s explanation that these organizations 
had supervisors and non-Detroit members and, therefore, created 
dual union concerns, would be legitimate. The Court finds, how­
ever, that in the context of past racial discrimination against 
blacks in the Detroit Police Department, and the past racial 
hostility of the DPOA, these explanations are largely pretextual.

Further support for this conclusion is found in the fact that, 
according to the testimony of the DPOA officials at trial, not a 
single black officer in their union is worthy of trust. Any member



A-42

Opinion

of the Guardians is automatically “disloyal.” Non-members of 
the Guardians, like Fernon Douglas, who still expresses black 
concerns yet is a militant unionist; are “not interested in the 
union as a whole.” These explanations are pretextual, especially 
given the broad-based support of the Guardians, and the support 
from both black and white officers enjoyed by Fernon Douglas. 
In 1978, Lewis Colson, a black officer, ran for vice-president on 
the Guardian slate and received 1,100 votes. The same year, 
Deborah Robinson, a presidential candidate received 1,200 votes. 
Blacks in 1978 made their largest gains ever in terms of union 
positions in the DPOA, and the Court cannot believe that this 
political consideration did not play a role in the DPOA leader­
ship’s passivity in face of the 1979 and 1980 layoff's.

2. The total absence o f black representation in the leader­
ship levels o f the union.

Throughout its entire history, the DPOA has been a white- 
dominated union. It has a board of directors, made up of 75 
stewards, who are elected in each precinct and division, and from 
each shift. The board of directors elects from its members nine 
persons to serve on the executive committee, and the membership 
at large elects four officers; the president, vice-president, 
secretary-treasurer, and sergeant-at-arms. All committee 
appointments are made by the president, with the approval of the 
executive committee.

No black has ever been elected to any one of the top four 
positions in the DPOA in its 41-year history. There have only 
been two black members who have served on the executive board, 
and the board of directors has only 18 nonwhite members.

The most significant committee of the DPOA is the griev­
ance committee, which consists of three members, who, along 
with the four elected officers, constitute the bargaining commit­
tee. No black has ever served on the grievance committee. Nor 
has any black ever served on the finance committee, another 
major committee of the DPOA. As stated earlier, this Court 
rejects explanations that there were not sufficient “trustworthy"



A-43

Opinion

blacks to fill these positions or that “political patronage” should 
be the only criterion for union leadership when this patronage 
operates to exclude blacks.

3. The massive nature o f  the 1979 layoffs—one-quarter o f 
the DPOA membership, one-half o f  the black membership, a 
loss o f  approximately $500,000 a year in dues, and the totally 
perfunctory and. passive behavior o f  the union leadership.

As early as the Spring of 1977, the City began efforts to 
obtain DPOA agreement to a proposal that future layoffs be 
carried out in a manner that would avoid having a racially 
discriminatory impact on blacks and women. These proposals 
were strongly and consistently resisted by the DPOA. Affirmative 
action layoff procedures were proposed again in 1978, and 
throughout discussions and negotiations the Union would at no 
time back off its position on seniority and its refusal to consider 
any type of affirmative action layoffs.

Finally, the first layoffs came in October 1979. Mark 
Ulieny, the City’s Labor Relations Director, advised 
Mr. Watroba, by letter on September 27, 1979, that 400 police 
officers would be laid off as of October 12, 1979. Although the 
position of the DPOA had been that the City was merely postur­
ing, as of September 27, 1979, it knew that it was no longer 
posturing. Nonetheless, the DPOA did nothing to avert the 1979 
layoffs. 71 percent of those laid off at that time were black 
officers. No effort was made to use the same formula successfully 
used on 1975, when a majority of those to be laid off were white, 
and no other effort was made, as it was in 1981, when the vast 
majority of those to be laid off were white.

In February 1980, the City again proposed, as to layoffs, 
that seniority should be used only to the extent that it does not 
reduce the proportions of minority group members or females 
within the bargaining unit. This proposal was flatly rejected by 
the DPOA.



A-44

Opinion

The record is clear that the DPOA was well aware, as early 
as the Spring of 1980, that upwards of 700 police officers were to 
be laid off in the fall, and that the overwhelming majority of 
those to be laid off would be black. Even though officers of the 
DPOA testified that they thought the City was merely posturing, 
it is clear that they knew that more layoffs were coming, and it 
was clear the DPOA was not going to take significant action to 
avoid them. In the August 18, 1980 issue of Tuebor, the union 
newsletter, there is specific mention of the anticipated layoff of 
more than 700 DPOA members within a matter of days.

On August 29, less than two weeks after the Tuebor issue 
which described in great detail the potential layoffs, Mayor 
Young sent a letter to Watroba inviting him to a meeting to 
discuss ways of averting the scheduled layoffs. In that letter, the 
Mayor spoke of the impending layoffs of 690 Police Officers, and 
emphasized the disastrous effect it would have upon the City’s 
past affirmative action:

But there is an additional reason why these layoffs will 
hurt us all. During the past seven years, we have been 
working to create a police department integrated by race 
and sex through an affirmative action program. This pro­
gram was an essential pre-condition to establishing 
harmonous police-community relations, without which our 
police can never effectively carry out its duties.

Because these layoffs are being made according to strict 
seniority, in accordance with the present contract, and not in 
pursuance of our affirmative action program, they will dras­
tically reverse our progress towards the goal of a fully 
integrated police force, and we will be moving towards a 
department again composed predominately of white and 
male officers.

The Mayor then made specific proposals to the Union:

Recent negotiations for a new contract have proved 
fruitless and the issues are about to be submitted to final



A-45

Opinion

arbitration, as required by existing law. This is one such 
issue. However, it will be many months before a decision is 
made. As a temporary measure, without prejudice to our 
respective positions before the arbitrator, I suggest the fol­
lowing alternative procedures for the impending layoffs:

1. Instead of seniority being the sole criterion for lay­
offs, thus resulting in grossly disproportionate layoff of 
blacks and women, we agree that layoffs be made on the 
basis of separate lists, such as the plan for proportions which 
was approved by the Sixth Circuit Court of Appeals 
recently, as an appropriate means of implementing our 
affirmative action program.

Or, if you prefer;

2. Instead of any layoffs, a 13.8 reduction in the Police 
Department payroll be agreed upon, with by equal reduction 
by all officers of workdays or some other equitable method.

Governor Milliken’s recent proposal for applying an 
affirmative action program to the layoff of State employees 
has just been approved by the Michigan Civil Service Com­
mission and serves as an example of what we can do for 
Detroit by mutual agreement. I realize the shortness of time. 
But our commitment to the welfare of our community com­
pels all of us to do what we must to avoid moving backward 
towards racial hostility and divisiveness.

When asked what the union response to the Mayor's propo­
sal was, Watroba replied that seniority was the cornerstone of 
unionism, and that the DPOA would not, under any circum­
stances, negotiate separate layoff lists in which race was a factor 
in determining who was to be laid off. He said that, if they were 
going to deal with the Mayor, they would have to deal on the 
basis of his second proposal, a 13.8 percent wage reduction, and 
not his proposal for separate layoff lists. He said, however, that, 
while the union was willing to pursue some quid pro quo in the 
negotiations with the Mayor, it was never going to agree to 13.8



A-46

Opinion

percent. He said that, if 13.8 percent was the bottom line, the 
answer of the union would have to be no.

Watroba responded to the Mayor’s letter on September 3, 
1980, stating, inter alia:

We fully recognize our duty to bargain on behalf of all 
of our members. Our seniority clauses have been bargained 
with the interest of our total membership in mind. They 
cannot be cast aside when the very situation they were 
designed to cover is about to occur. You will recall the City 
voluntarily withdrew its demands for proportionate layoffs 
of blacks and whites in the last rounds of negotiations. 

* * * * *

The City must be willing, in the process, to negotiate 
about all factors leading to the budget shortfalls, including 
ill-advised, ill-timed promotions, the elimination of artificial 
quotas, and restraints upon equal opportunity. If you, with­
out pre-conditions eliminating areas of bargaining, will per­
sonally begin marathon good-faith bargaining designed to 
settle the contract, rather than enhance images, we are 
prepared to start at 7:00 p.m. on September 8, 1980, or at 
your earliest convenience.

The Mayor responded to Watroba’s letter the same day 
indicating his willingness to bargain and to meet with reference 
to the layoffs. He made the further observations in that letter:

First, in response to your statement that no previous 
“meaningful proposals were made to avert the layoff” by the 
City, let me remind you that on April 2, 1980, during 
negotiations with the DPOA, we proposed that pay rates be 
reduced to the level of the pay increases that other City 
employee unions accepted. This would have avoided all 
police layoffs.

Again, on June 17, the City asked the DPOA to waive 
retroactive pay adjustments due from July 1977 to Decem­
ber 1978, and to waive the COLA roll-in due July 1, 1980.



A-47

Opinion

In return for agreement of this proposal, the City offered to 
reduce the scheduled layoff by 440 employees. As you will 
recall, the DPOA rejected both of these proposals.

Second, I must question the extent of your concern 
about the impact of the layoffs on affirmative action gains in 
the Detroit Police Department. The DPOA’s brief on eco­
nomic issues, prepared for the Act 3-12 Arbitration Panel in 
1977, said: “The DPOA does not question management’s 
right to determine manpower levels, but questions whether 
veteran police officers should subsidize new hires.” This 
language makes it apparent to me that the DPOA had no 
qualms about sacrificing the jobs of new police officers to 
finance its economic demands.

* * * * *

In closing, let me remind you that affirmative action as 
a concept is not negotiable. It is mandated not only by the 
City Charter, but also by State and Federal law, and by the 
courts, as well.

It is also my opinion that the duty to implement affirm­
ative action does not stop just because we have found more 
equitable ways to hire new police officers. Rather, we have a 
double duty—that we are now challenged to find equitable 
ways to implement the September 5 layoffs.

The fact that we have found ways to remove hiring 
barriers at the front door does not relieve us of our obliga­
tion to find ways to remove comparable barriers at the back 
door now that the circumstances require it.

In the meantime, the executive board of the DPOA met on 
September 2. While that meeting was in progress, Lewis Colson, 
executive director of the Guardians, hand-delivered a letter to 
Watroba. Watroba testified he left the meeting to receive the 
letter and to talk to Colson. In that letter, the Guardians called 
for action other than standing merely on seniority with reference 
to layoffs. The letter, in pertinent part, said:



A-48

Opinion

The Guardians are extremely disturbed by the planned 
layoffs of 690 officers scheduled for September 5, 1980. The 
reported statistics indicate that these layoffs will have a 
disproportionate effect on minority and female officers. 
When considered in connection with the 400 officers laid off 
in October, there is a real reversal of the progress that has 
been made to integrate the police force at all levels.

As you know, Mayor Young has indicated he is willing 
to discuss other options to avert the proposed layoffs. We 
understand his proposals call for the temporary institution 
of separate seniority lists, or a temporary reduction of work 
hours and pay. We believe that either of these suggestions is 
reasonable, and we urge you to accept one of them, or at the 
very least, to negotiate in good faith with the Mayor to avoid 
the layoffs. As you are aware, prior to the introduction of the 
City’s affirmative action plan for the department the minor­
ity representation on the police force was less than 5 percent. 
Over the last six years, as the direct result of the affirmative 
action plan, the minority representation rose to over 33 
percent prior to the October 1979 layoffs. However, the 
impending layoffs of 693 police officers will reduce the 
minority representation to less than 26 percent.

It is common knowledge in our community that the 
integration of the police force, to the extent it has occurred, 
has had a profound and positive effect on police and commu­
nity relations. The wide spread alienation of black Detroit 
residents from the Police Department has changed. Individ­
ual citizens and community groups alike are beginning to 
identify and work with the police. The affirmative action 
program has been in effect since 1974. Since that time there 
has been a 30 percent reduction in crime and, most impor­
tantly, no police officer has been killed in the line of duty.

Finally, we believe the Union is duty bound, by its own 
constitution and by law, to protect that job security of all its 
members. Article III, § 2 of the Union’s Constitution 
requires the Union’s leadership to promote job security.



A-49

Opinion

Additionally, as the DPOA is the exclusive bargaining 
agent for all of the police officers, it owes a legal duty to 
fairly represent all officers—black and white, male and 
female. If the DPOA stands idly by and watches minority 
and female officers be subject to disproportionate layoffs, 
when the Mayor has offered reasonable ways to avert this 
result, the Guardians will believe that the DPOA intends 
this result. We will, therefore, view this an intentional act by 
the DPOA to violate the duty of fair representation owed to 
minority and female members, and we will take appropriate 
action.

This letter was never answered.

On the eve of the layoffs, September 5, 1980, Watroba met 
with the Mayor and others in the Mayor’s office for approxi­
mately three and one half hours. The DPOA at that meeting 
proposed a “25 and out” plan and the City adoption of a Chrysler 
model, by which there would be a freeze or a deferral of benefits 
otherwise due, with some kind of a pay-out at a later date. It also 
proposed there be discussion of standards and criteria concerning 
promotions from bargaining units. The union rejected the dual 
seniority lists, and also the Mayor's 13.8 percent pay reduction 
proposal. They also rejected a lower figure of either 12 or 12.8 
percent. Additionally, Watroba rejected the Mayor's suggestion 
that the membership be permitted to vote on whether to accept a 
13.8 percent reduction or some other lower percentage reduction.

Nothing came of the meeting. The Union would not budge 
on its opposition to a pay reduction or separate seniority lists, and 
the layoffs went into effect the next day.

At no time did the union make any reasonable effort to avert 
the layoffs. This is in stark contrast to the actions taken by the 
DPOA in 1975 and 1981 when layoffs were threatened and the 
vast majority of officers who would be laid off were white. See 
discussion of these concessions infra. Here the layoffs affected 
principally black officers, and no realistic efforts to avert the 
layoffs were made.



A-50

Opinion

The union’s response to the threatened layoffs of 690 
officers, which would, with the 1979 layoffs, total one-quarter of 
their union and one-half of the black membership, was totally 
perfunctory. No special meetings were called at any level of the 
union. The union officials who took the stand at trial could not 
even recall if the layoffs were discussed at the routine, regular 
meetings which took place during the period. No response at all 
was given to Colson’s letter—it was simply referred to counsel, 
and the DPOA leadership awaited this lawsuit. No votes regard­
ing any possible compromises were taken at any level of the 
union, which could have at least allowed the laid-off officers to 
express their views and test its support in the union. It is this 
perfunctory behavior of the DPOA officials that breached the 
duty of fair representation here, not any per se refusal to make 
concessions or agree to affirmative action layoffs.

4. The present day failure to make any serious efforts to 
assist these black officers.

It is significant that the 1983 bargaining demands of the 
union do not in any way address themselves to the recall of laid- 
off officers. The DPOA contended at trial that some bargaining 
demands tangentially affect the layoffs, such as the reduction of 
police reserves, and the demand that there be only one call to any 
police car at any time, but these demands are so tangential as to 
have little, if any, effect on layoffs. The actual fact is that the 
union, even in its 1983 demands, evinced no real interest in 
getting black laid-off police officers back to work. Again, given 
the DPOA’s history, this Court cannot believe that this behavior 
would be the same if one-half of its white membership was laid 
o f f .

5. A history o f concessions and prompt union action to 
avert layoffs in 1975 and 1981 when the jobs o f  white officers 
were at stake.

In 1975, a layoff of police officers, most of whom would have 
been white, was threatened, and litigation was commenced, 
which was assigned to Judge Damon Keith, then a United States



A-51

Opinion

District Judge. Judge Keith mediated a solution. The net result 
of the mediation was to avert layoffs of police officers, the vast 
majority of whom would have been white. An agreement was 
reached that, during a period of 18 months, each member of the 
bargaining unit would take 14 days off without pay, and would 
get an additional ten days off with pay, and that these 24 days 
could be taken off during the 18 month period. Other minor 
concessions were made, and layoffs were averted."

In 1981, further layoffs were threatened because of the 
City’s financial condition. The union agreed to a pay freeze to 
protect the jobs of the officers. At that time, the officers who 
would have been laid off were largely white officers. In return for 
the pay freeze, the DPOA obtained improved longevity, better 
vacation, better dental program, and the elimination of a 55 year 
old retirement age, so that officers could retire after 25 years of 
service. It should be noted, however, that this was basically a 
concession contract, with no wage increases at a time of fairly 
serious inflation in this country.

The actions of the DPOA in 1975 and 1981, when largely 
white officers would have been involved in layoffs, resulted in 
concessions to protect jobs. This activity stands in sharp contrast 
to its actions in 1979 and 1980 when the layoffs affected princi­
pally black officers.

The union argues that the situation was different in 1975 
and 1981. The Court recognizes that there are differences. The 
1975 solution did not appear to be a very popular one with the 
City. The 1981 solution took place at a time of great financial 18

18 During the first 12 months of the agreement, the first time that an officer 
would call in sick, that officer’s sick bank would not be reduced, but 
rather one of the 10 paid days would be reduced and used in a sick bank 
as a sick day as opposed to depleting the sick bank. It was further agreed 
that, with reference to holidays worked, all officers would receive 12 hours 
compensatory time as opposed to payment for working on holidays, and 
for a 12 or possibly 13 month period, they were to be paid for less hours of 
work, so that for every two week pay-period, they would receive 76 hours 
of pay rather than 80 hours of pay.



A-52

Opinion

distress for the City, and the union was told that the City was on 
the verge of bankruptcy.

However, these differences do not explain the basic fact 
that, when white officers were to be laid off, the union did 
something; when the overwhelming majority were blacks, the 
union did nothing. It is not the business of this Court to decide 
precisely what the DPOA should have done in 1979 and 1980. 
The duty of fair representation creates no such guidelines. The 
duty only commands that the union, when racial minorities are 
involved, behave in a manner that is representative, not perfunc­
tory and passive. This is what the DPOA failed to do here.

The DPOA has offered other explanations for its actions in 
1979 and 1980. It must be emphasized that this Court has no role 
in, nor desire to enter into, the collective bargaining process, and 
question collective bargaining decisions made by the DPOA in 
the course of negotiations with the City. The union has a wide 
range of discretion in bargaining insofar as these efforts are 
reasonable. See Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 
73 S.Ct. 681, 686, 97 L.Ed. 1048 (1953).

Thus, this Court is not concerned with any reasonable activ­
ity of the DPOA in collective bargaining, even certain activity 
which sacrifices the interests of minorities for the majority. This 
Court is only concerned with activity that is arbitrary, racially 
discriminatory, and not in good faith. And this Court finds that 
in its representation of its black members, the DPOA's perfunc­
tory and passive behavior in 1979 and 1980 breached the duty of 
fair representation.

This finding of liability of the DPOA is not predicated upon 
any legal finding that its defense of a bona fide seniority system 
was per se wrong. It is recognized that there have been no prior 
judicial findings of intentional racial discrimination against the 
DPOA as there were against the City of Detroit, and it is well 
recognized by this Court that Title VII protects from liability 
bona fide seniority systems. See Teamsters and Stotts, supra. It 
was the DPOA’s action as a whole, not the defense of any



A-53

Opinion

particular position, that was unreasonable and breached the duty 
of fair representation here.

There is nothing in Stotts, or any other case, that would 
prevent a union and employer from mutually and voluntarily 
agreeing to an affirmative action layoff system in the future. 
Nothing compels a bargaining representative to limit seniority 
clauses solely to the relative lengths of employment of respective 
employees. See Ford Motor Co. v. Huffman, supra. See also 
Burchfield v. United Steelworkers o f  America, 577 F.2d 1018 
(5th Cir. 1978). Seniority rights are creatures of contract, always 
subject to modification. Thus, there is no merit to the DPOA's 
argument that there were legal obstacles to a voluntary agree­
ment regarding affirmative action layoffs.

For the reasons given, the Court finds that the DPOA has 
breached the duty of fair representation owned to its minority 
members and must respond legally.19

The Court finds no liability of the DPOA under the Thir­
teenth Amendment. It has found no case law applying to the 
Thirteenth Amendment under the facts of this case, and declines 
to do so here. The Court finds no reason to consider the claim 
under 42 U.S.C. § 1981 in light of the result reached here. The 
Court finds no violation of 42 U.S.C. § 1985(3). See n. 14 supra.

19 This finding has support in Brown v. Neeb, 644 F.2d 551 (6th Cir. 1981):
We find the Union’s refusal [to agree on wage reductions] disturbing. 
Where large numbers of union members scheduled for layoff are mem­
bers of a racial minority, a union’s refusal to take pay cuts to avert layoffs 
is significant, prima facia  evidence of racial discrimination. This is 
especially true in a situation where the laid-off minorities were recently 
hired under an affirmative action plan and/or where the union has 
opposed affirmative action.



A-54

Opinion

V

The Court having determined that the defendant DPOA has 
breached its duty of fair representation, it now must turn to a 
consideration of relief.

In determining relief, the Court retains the full measure of 
its equitable and legal power to fashion a remedy that is just and 
equitable to all parties.

The Supreme Court in Steele, supra, said:

We conclude that the duty which the statute imposes on 
a union representative of a craft to represent the interests of 
all its members stands on no different footing and that the 
statute contemplates resort to the usual judicial remedies of 
injunction and award of damages when appropriate for 
breach of that duty,

323 U.S. at 207, 65 S. Ct. at 234.

In fashioning a remedy, this Court, as a chancellor, does not 
desire to punish defendants for what they have done in the past, 
but to fashion a remedy that will insure that in the future the 
DPOA will adequately represent, as a bargaining agent, all of its 
members, and will not discriminate against its minority 
members.

No assessment of damages will be made against the DPOA, 
but rather, an order will be entered guaranteeing that the black 
members of the DPOA have their just and fair say in the 
operation of the union. In this way, positive steps towards 
preventing a future breach in the duty of fair representation will 
be taken.

If the black members of the DPOA are given their proper 
representation in the leadership structure of the DPOA they can, 
in the future, protect minority members against a breach of the 
duty of fair representation by the Union. It is this goal that this 
Court seeks. The Court is only intervening in the internal affairs



A-55

Opinion

of the DPOA to the extent necessary to assure adequate repre­
sentation of black members in the relationship between the 
DPOA and the City of Detroit.

[25] Therefore, the following relief against the DPOA will 
be ordered: within 12 months of the date of this opinion, all 
committees of the DPOA, especially grievance and finance, the 
board of directors, and the executive board shall reasonably 
reflect the racial composition of the union.

At the end of 12 months, plaintiffs shall notice a hearing 
before this Court so that the Court can determine if there has 
been substantial compliance with this order, and a good-faith 
effort to reach the goals set forth above. At that hearing, the 
Court will take such action as it deems necessary against the 
DPOA, if it has failed to comply with this mandate.

VI

For the reasons given in this opinion, a judgment will issue 
embodying the following:

1. The previous determination of this Court that the City 
breached its affirmative obligations to plaintiffs in violation of 
their rights under the Fourteenth Amendment in the layoffs of 
1979 and 1980 is reaffirmed.

2. The City of Detroit is ordered to recall all black police 
officers laid off in the 1979 and 1980 layoffs who desire to return 
to the force, and who are qualified for police work, within 180 
days, and submit a plan to accomplish this to this Court within 
30 days.

3. No back pay will be awarded to any recalled officer, but 
all recalled officers will be entitled to the full seniority they would 
have had, if they had remained on duty from the time of the 
layoffs until the time of the recall.

4. The City of Detroit shall not lay off, suspend, or dis­
charge any police officer, except for disciplinary reasons, without



A-56

Opinion

the prior approval of this Court. This order will remain in effect 
until the further order of this Court.

5. Any white police officer laid off in the 1979 and 1980 
layoffs who has seniority over any black officer recalled may, 
within 30 days, petition this Court for consideration of his or her 
case, and for consideration of his or her recall. The Court 
expresses no opinion as to the merit of any such claim.

6. The DPOA breached its duty of fair representation under 
Michigan law in bargaining on behalf of plaintiff police officers.

7. The DPOA is ordered, within 12 months, to remedy its 
breach of the duty of fair representation by having a reasonable 
representation of blacks in the leadership structure of the DPOA, 
including, but not limited to, the board of directors, all commit­
tees, and the executive committee. Within 12 months from the 
date of this opinion, the Court will conduct a further hearing to 
determine if reasonable representation has been achieved and, if 
it has not, to determine what remedies the Court will order 
against the DPOA for its failure to comply with this order.

This opinion shall constitute the findings of fact and conclu­
sions of law required by F.R.C.P. 52(a).



A-57

Opinion

N.A.A.C.P., DETROIT BRANCH; The Guardians, Inc.; 
Brady Bruenton; Cynthia Martin; Hilton Napoleon; Sharron 
Randolph; Betty T. Roland; Grant Battle; Cynthia Cheatom; 
Evin Fobbs; John Hawkins; Helen Poellnitz, on behalf of them­
selves and all others similarly situated, Plaintiffs-Appellees (84- 
1836, 85-1026, 85-1027), Cross-Appellants (85-1041),

v.

DETROIT POLICE OFFICERS ASSOCIATION 
(DPOA); Thomas Schneider, President of the DPOA; City of 
Detroit, a Michigan Municipal Corporation; Mayor Coleman A. 
Young; Detroit Police Department; Board of Police Commission­
ers; Chief William Hart; Governor William Milliken; and the 
Michigan Employment Relations Commission, Defendants- 
Appellants (84-1836, 85-1026, 85-1027), Cross-Appellees 
(85-1041),

and

Kenneth C. Champagne; Mark Surma; Marsha Dreslinski; 
Adela Matias-Rivera, et al., Applicants in Intervention- 
Appellants (85-1027).

Nos. 84-1836, 85-1026, 85-1027 and 85-1041.
United States Court of Appeals,

Sixth Circuit.
Argued Nov. 20, 1986.
Decided June 12, 1987.

Rehearing and Rehearing En Banc
Denied Aug. 31, 1987.

Black Detroit police officers brought action against city, 
mayor, police department, police commissioner, police chief, and 
police officers association, alleging that city had violated affirma­
tive duties imposed by previous approval of city’s voluntary 
affirmative action plan, and that association had breached its 
duty of fair representation. The United States District Court for



A-58

Opinion

the Eastern District of Michigan, Horace W. Gilmore, Jr., 591 
F.Supp. 1194, enjoined city from laying off any police officers 
because layoffs reversed effects of voluntary affirmative action 
plan, and further found that association had breached its duty of 
fair representation to black association members. Appeal was 
taken. The Court of Appeals, Merritt, Circuit Judge, held that:
(1) district court erred in concluding that doctrine of collateral 
estoppel permitted it to modify previously approved voluntary 
affirmative action plan and prevent city from laying off any 
police officers as part of planned reduction in force, and (2) under 
Michigan law, police officers association's failure to act force­
fully regarding planned layoffs did not constitute breach of duty 
of fair representation.

Injunctive orders reversed, case remanded.

1. Judgment—634
Before collateral estoppel may be applied to bar litigation of 

issue, it must be established that precise issue raised in present 
case was raised and actually litigated in prior proceedings, that 
determination of issue must have been necessary to outcome of 
prior proceeding, that prior proceeding resulted in final judgment 
on merits, and that party against whom estoppel is sought had 
full and fair opportunity to litigate issue in prior proceeding.

2. Judgment—715(3)
Although city’s institution of voluntary police department 

affirmative action plan was previously determined to be constitu­
tionally permissible, based on city’s own determination that it 
had discriminated in past, and precluded city from denying fact 
of prior discrimination, doctrine of collateral estoppel did not 
thus warrant modification of previously approved voluntary 
affirmative action plan and foreclose application of bona fide 
seniority layoff provisions of collective bargaining agreement 
between police association and city.



A-59

Opinion

3. Labor Relations—52
Public employees of political subdivisions of state are not 

governed by federal labor law. National Labor Relations Act, 
§ 2(2), as amended, 29 U.S.C.A. § 152(2).

4. Labor Relations—178, 219
City Police officers association’s failure to act forcefully in 

response to city’s threatened layoffs of black police officers hired 
under voluntary affirmative action plan did not constitute breach 
of association’s duty of fair representation; under Michigan law, 
city’s initial decision to lay off officers, as part of planned reduc­
tion in force that was permitted under collective bargaining 
agreement last-hired, first-fired provision, was permissive subject 
of bargaining, and union had no mandatory duty to act on behalf 
of its members in response to threatened layoffs.

Walter S. Nussbaum (lead counsel), Mara Kalnins-Ghafari, 
Donald J. Mooney, Jr., argued, Paxton & Seasongood, Cincin­
nati, Ohio, Jack F. Fuchs, Farmington Hills, Mich., Frank W. 
Jackson, Detroit, Mich., Teri L. Hayles, Daniel B. Edelman, 
argued, Washington, D.C., for defendants-appellants.

Daune Elston, Thomas Atkins, (lead counsel), argued, 
Brooklyn, N.Y., Jeanne Mirer, Gary Benjamin, James W. 
McGinnis, Detroit, Mich., for plaintiffs-appellees.

Diane L. Vaksdal, argued, Mountain States Legal Founda­
tion, Denver, Colo., for applicants in intervention-appellants.

Before MERRITT, WELLFORD and NORRIS, Circuit 
Judges.

MERRITT, Circuit Judge.

Two questions are raised in this case arising from the layoff 
of black employees hired under an affirmative action plan. The 
first question is whether prior judicial approval of a public 
employer's affirmative action plan forecloses that employer from 
later laying off recently hired employees who would otherwise be



A-60

Opinion

laid off on the basis of seniority under a collective bargaining 
agreement. This case arises because the City of Detroit laid off 
1100 police officers in 1979-80, approximately 75 percent of 
whom were black. The layoffs occurred under the last-hired, 
first-fired provision of the City’s collective bargaining agreement 
with the Detroit Police Officers Association.

In Bratton v. City o f Detroit, this Court upheld a voluntary 
affirmative action plan providing for the promotion of a black 
sergeant to every second job opening for lieutenant in the police 
department of the City of Detroit. See 704 F.2d 878 (6th Cir.)
(Bratton I), modified, 712 F.2d 222 (6th Cir. 1983) (Bratton II), 
ajfig Baker v. City o f Detroit, 504 F.Supp. 841 (E.D.Mich. 
1980), modifying 483 F.Supp. 930 (E.D. Mich.1979), cert, 
denied, 464 U.S. 1040, 104 S.Ct. 703, 79 L.Ed.2d 168 (1984). 
In that case, although we held that the factual and legal basis for 
the promotional plan was sufficient to justify the City in adopting 
the plan voluntarily, we specifically and expressly reversed the 
District Court order which made the plan mandatory. See 
Bratton II, 712 F.2d at 223.

In this case, the District Court, applying the doctrine of 
collateral estoppel, held that our decision in Bratton forecloses 
further litigation on the issue of prior discrimination in the police 
department, and leads to the conclusion that the City could not 
lay off any police officers as part of a planned reduction in force. 
See NAACP  v. Detroit Police Officers Ass'n, 591 F.Supp. 1194 
(E.D.Mich.1984). The net effect of the District Court's order is 
to mandate that the City may not reduce the staffing and budget­
ary level of the police department in effect at the time of the 
order without the prior permission of the court. The District 
Court enjoined the City from laying off any police officers under 
the plan because the layoffs reversed the effects of the voluntary 
affirmative action plan. Based on its collateral estoppel ruling, 
the District Court ordered reinstatement of all officers previously 
laid off pursuant to the plan.



A-61

Opinion

The City of Detroit and its Mayor, Coleman Young, and the 
Detroit Police Officers Association appealed the issuance of the 
injunction preventing any layoffs. The Mayor, the City, and the 
union argue that the District Court erroneously applied doctrines 
of estoppel to significantly modify what had previously been a 
voluntary affirmative action plan.

The doctrine of collateral estoppel dictates that “once a 
court has decided an issue of fact or law necessary to its judg­
ment, that decision may preclude relitigation of the issue in a suit 
on a different cause of action involving a party to the first case.” 
Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 
L.Ed.2d 308 (1980); see generally C. Wright, Law o f Federal 
Courts 678-96 (4th ed. 1983).

[1] Before collateral estoppel may be applied to bar litiga­
tion of an issue, four specific requirements must be met:

(1) the precise issue raised in the present case must 
have been raised and actually litigated in the prior 
proceedings;1

(2) determination of the issue must have been neces­
sary to the outcome of the prior proceeding;2

(3) the prior proceeding must have resulted in a final 
judgment on the merits;3 and

1 See Parklane Hosiery Co. v. Shore. 439 U.S. 322, 326 n. 5. 99 S.Ct. 645, 
649 n. 5, 58 L.Ed.2d 552 (1979): Blonder-Tongue Laboratories, Inc. v. 
University o f  Illinois Found. 402 U.S. 313, 323, 91 S.Ct. 1434, 1439, 28 
L.Ed.2d 788 (1971); United S ta tes v Sm ith. 730 F.2d 1052, 1057 (6th 
Cir. 1984); Spilm an  v Harley, 656 F.2d 224, 228 (6th Cir.1981).

: See Parklane. 439 U.S. at 326 n. 5, 99 S.Ct. at 649 n. 5: Sm ith . 730 F.2d 
at 1057; Spilman, 656 F.2d at 228.

3 See Blonder-Tongue. 402 U.S. at 323, 91 S.Ct. at 1439: Sm ith . 730 F.2d 
at 1057.



A-62

Opinion

(4) the party against whom estoppel is sought must 
have had a full and fair opportunity to litigate the issue in 
the prior proceeding.4

Applying these principles to the facts of this case, it was 
proper for the District Court to invoke doctrines of estoppel and 
judicial admission to preclude the City from denying the facts of 
prior discrimination that it had earlier demonstrated and con­
ceded. See Baker, 483 F.Supp. 930 (E.D. Mich.1979). How­
ever, it was incorrect for the District Court to then rely on these 
findings as the sole basis for making a very significant modifica­
tion to the voluntary plan by disallowing any further layoffs until 
the goals of the plan are met.

[2] In Bratton, we merely recognized as a sufficient justifi­
cation for its voluntary plan the City’s own determination that it 
had discriminated in the past. We therefore held that the City's 
institution of a voluntary affirmative action plan was constitu­
tionally permissible. See Bratton I, 704 F.2d at 886-90. This is a 
different issue from whether a constitutional violation has 
occurred which mandates a court-ordered remedy. See Bratton 
II, 712 F.2d at 223; Bratton I, 704 F.2d at 902 (Merritt, J., 
dissenting). It was therefore improper for the District Court to 
rely solely on the Bratton findings and conclusions to set aside the 
reverse seniority provision of the collective bargaining agree­
ment. The constitutional and social policies that permit affirma­
tive action do not mandate it. Such a rule would only lead 
employers to reject voluntary affirmative action at the outset so 
as not to compromise their flexibility in the future when reduc­
tions in force become necessary.

The court in Bratton did not impose a legal duty on the City 
to hire or retain the particular employees being laid off here. 
Judicial approval of a voluntary affirmative action plan does not 
create a contract of permanent employment or invalidate or

‘ See Haring v Prosise, 462 U.S. 306, 313, 103 S.Ct. 2368, 2373, 76 
L.Ed.2d 595 (1983); Allen  v McCurry. 449 U.S. at 95, 101, 101 S.Ct. at 
415, 418; see generally Restatement (Second) of Judgments § 29 (1982).



A-63

Opinion

modify a collective bargaining agreement providing for layoffs on 
the basis of seniority. The District Court erred in reading the 
doctrine of collateral estoppel to modify a previously voluntary 
affirmative plan and thereby foreclose application of the bona 
fide seniority layoff provisions of the collective bargaining 
agreement.

On the second issue presented on appeal, the District Court, 
in deciding a pendent state claim, held that the Detroit Police 
Officers Association breached the duty of fair representation it 
owed to its minority members under Michigan law. This finding 
was predicated upon the union's “perfunctory and passive” 
behavior in response to the layoffs at issue in this case. See 
NAACP v. DPOA, 591 F.Supp. at 1219. The Court found that 
the breach occurred because the union did not fight the layoffs 
forcefully or effectively. At the outset we should note what the 
finding was not predicated upon: There was no finding of inten­
tional discrimination by the union against its members. The 
District Court stated that the union had not been found guilty of 
intentional discrimination, and that its defense of the bona fide 
seniority provision was not improper. Id. The District Court's 
finding of liability instead stemmed from the union’s action “as a 
whole” in response to the threatened layoffs, not its “defense of 
any particular position.” Id. To remedy this alleged breach of 
the duty of fair representation, the District Court ordered the 
union to integrate black officers into its leadership structure 
within one year.

Courts are reluctant to allow the electoral processes of a 
union to be abridged. In Donovan v. Illinois Education Ass'n, 
the Seventh Circuit struck down a union’s voluntary plan to 
allocate a certain percentage of its elected offices to minorities 
where there had been no finding of prior intentional discrimina­
tion by the union. See 667 F.2d 638, 640-42 (1982) (applying 
federal labor laws).

[3] The union is concededly the exclusive bargaining agent 
under state law for all Detroit police officers below the rank of



A-64

Opinion

sergeant.5 Public employees of the political subdivisions of a 
state are not governed by the federal labor laws. See 29 U.S.C. 
§ 152(2) (1982). Therefore, the laws of Michigan define the 
permissible contours of the relationship between the union and its 
members. See Mich.Comp.Laws § 423.201 et seq. (1978).

In Goolsby v. City o f  Detroit, 419 Mich. 651, 660-61 n. 5, 
358 N.W.2d 856, 861 n. 5 (1984), the Michigan Supreme Court 
expressly recognized the union’s duty of fair representation 
under the state’s labor law. The Goolsby Court generally adopted 
the fair representation standard enunciated by the United States 
Supreme Court in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 
L.Ed.2d 842 (1967). Under this analysis, the duty of fair repre­
sentation is comprised of three distinct responsibilities: “(1) ‘to 
serve the interests of all members without hostility or discrimina­
tion toward any’, (2) ‘to exercise its discretion with complete 
good faith and honesty’, and (3) ‘to avoid arbitrary conduct’.” 
See Goolsby, 419 Mich, at 664, 358 N.W.2d at 863 (quoting 
Vaca, 386 U.S. at 177, 87 S.Ct. at 909). A union's failure to 
comply with any one of the three responsibilities constitutes a 
breach of its duty of fair representation. Id.

The general question facing the Court in Goolsby has a 
superficial similarity to the issue facing our Court—absent 
improper motive, when does a union’s unexplained failure to act 
constitute a breach of its duty of fair representation? In Goolsby, 
the union failed to follow through on grievance proceedings 
brought on behalf of a group of its members. This failure to 
further process the grievance was without explanation but there

5 The union was granted this authority by the Public Employment Relations 
Act, Mich.Comp. Laws § 423.211 (1978), which provides in pertinent 
part:

Representatives designated or selected for purposes of collective bar­
gaining by the majority of the public employees in a unit appropriate for 
such purposes, shall be the exclusive representatives of all the public 
employees in such unit for the purposes of collective bargaining in 
respect to rates of pay, wages, hours of employment or other conditions 
of employment.. . .



A-65

Opinion

was no evidence of bad faith on the part of the union. The 
question facing the Court was whether this unexplained failure to 
act met the third prong of the Vaca standard which prohibits 
arbitrary conduct.

The Goolsby Court held that a union’s unexplained failure 
to process the grievances of its members could constitute arbi­
trary conduct sufficient to meet the third prong of the test. See 
419 Mich, at 679, 358 N.W.2d at 870. The Court further held 
that no bad faith on the part of the union was necessary to meet 
the third prong of the test.

[4] The question presented in this case differs in one signifi­
cant respect from that presented in Goolsby. In our case, the 
District Court held that the union’s failure to act forcefully on 
behalf of its members in response to threatened layoffs consti­
tuted a breach of the duty of fair representation. The union's 
duty to process grievances on behalf of its members, which was at 
issue in Goolsby, is an essential linchpin of the collective bargain­
ing process. In our case, under Michigan law, a public employer's 
initial decision to lay off is a permissive subject of bargaining. 
Local 1277, AFSCM E  v. City o f Center Line. 414 Mich. 642, 
665, 327 N.W.2d 822, 831-32 (1982). Therefore, the union had 
no mandatory duty to act on behalf of its members in response to 
the threatened layoffs.6 Absent a duty to act, failure to act 
forcefully does not breach the union’s duty of fair representation. 
See e.g. B. Gorman, Basic Text on Labor Law 706 (1976).

This does not mean that other circumstances may not arise 
which would create a duty on the part of the union to bargain 
against threatened layoffs. For example, if federal or state law 
prohibited the layoffs, or if the voluntary affirmative action plan 
or the collective bargaining agreement did not permit the layoffs, 
then the union may have had a duty to bargain against them. In 
the context of this case, however, we have held that the District

6 The union remains under a duty to bargain over the Impact of the layoff 
decision on workload and safety. See Center Line, 414 Mich, at 661-66, 
327 N.W.2d at 830-32. None the less, this is not an issue in this case.



A-66

Opinion

Court erred in applying principles of collateral estoppel to create 
a constitutional obligation on the part of the City to avoid these 
layoffs. Moreover, the voluntary affirmative action plan did not 
address layoff's, and the collective bargaining contract between 
the parties expressly provided for layoffs to be made strictly on 
the basis of reverse seniority. The District Court specifically 
found the seniority provision to be bona fide. NAACP  v. DPOA, 
591 F.Supp. at 1219. For these reasons, based upon the facts set 
forth in the District Court's opinion, the union was under no 
special obligation to bargain against these layoffs.

The failure to bargain against layoffs could also have been 
found to be evidence of bad faith or discrimination on the part of 
the union. However, the District Court did not find that the union 
was improperly motivated in its reaction to the threatened lay­
offs. Rather, the District Court held that the union’s failure to 
act alone constituted a breach of the duty of fair representation. 
Absent a finding of intentional discrimination or other improper 
motivation, the union’s mere failure to bargain forcefully enough 
in a permissible context does not by itself constitute bad faith or 
discrimination.

The plaintiffs also allege that the union violated 42 U.S.C. 
§ 1981. The District Court did not address this issue. Accord­
ingly, we reverse the District Court’s injunctive orders against 
the City and the union and remand for further proceedings 
consistent with this opinion.



A-67

Opinion

NAACP, DETROIT BRANCH; The Guardians, Inc.; 
Brady Bruenton; Cynthia Martin; Hilton Napoleon; Sharron 
Randolph; Betty T. Roland; Grant Battle; Cynthia Cheatom; 
Evin Fobbs; John Hawkins; Helen Poelinitz, on behalf of them­
selves and all others similarly situated, Plaintiffs,

v.

DETROIT POLICE OFFICERS ASSOCIATION 
(DPOA); Thomas Schneider; President of the DPOA; City of 
Detroit, a Michigan Municipal Corporation; Mayor Coleman A. 
Young; Detroit Police Department; Board of Police Commission­
ers; Chief William Hait, Governor William Milliken; and the 
Michigan Employment Relations Commission. Defendants.

No. 80-73693-DT.

United States District Court,
E.D. Michigan, S.D.

Jan. 13, 1988.

Black police officers brought action against city and union in 
which it was alleged that city violated affirmative duties imposed 
by previous approval of city’s voluntary affirmative action plan 
and that union breached duty of fair representation. The United 
States District Court for the Eastern District of Michigan, 591 
F.Supp. 1194, enjoined city from laying off police officers and 
found that union had breached duty of fair representation to 
black members, and appeal was taken. The Court of Appeals, 
Merritt, Circuit Judge, 821 F.2d 328, reversed and remanded. 
On remand, the District Court, Gilmore, J., held that;
(1) officers could not maintain § 1983 action against union;
(2) officers could maintain § 1983 action against city; and (3) 
union's motion for summary judgment on § 1981 claim was 
without merit.

Ordered accordingly.



A-68

Opinion

1. Civil Rights—13.5(4)
Dismissal of black police officers’ § 1983 action against 

police officers association was required; actions of association did 
not constitute state action. 42 U.S.C.A. § 1983.

2. Courts—99(1)
Under doctrine of “ law of the case,” decision on issue of law 

made at one stage of case becomes binding precedent to be 
followed in successive stages of same litigation; like stare decisis, 
it protects against relitigation of settled issues and assures obedi­
ence of inferior courts to decision of superior courts.

See publication Words and Phrases for other judicial 
constructions and definitions.

3. Courts—99(1)
After law of the case is determined by superior court, 

inferior court lacks authority to depart from it.

4. Limitation of Actions—58(1)
Black police officers' § 1983 action against city was not 

barred under state’s three-year statute of limitations period 
which governed claims of general injuries to person; findings of 
fact from prior opinion, concerning events within statute of 
limitations, provided evidence that race was motivating factor in 
city's recent actions to lay off black police officers. 42 U.S.C.A. 
§ 1983; M.C.L.A. § 600.5805(8).

5. Courts—99(1)
Black police officers were entitled to maintain § 1981 claim 

against union despite fact that in original opinion, district court 
noted that no one had previously brought action against union in 
which union was found guilty of intentional racial discrimination; 
court had previously found that union had history of racial 
hostility and indifference to rights and needs of black officers.



A-69

Opinion

that there was absence of black representation at leadership 
levels of union, and that union did not respond aggressively to 
layoffs of black officers. 42 U.S.C.A. § 1981.

6. Civil Rights—13.10
Evidentiary hearing was necessary to determine whether 

employment discrimination action against city and police union 
was moot as city allegedly recalled discharged black police 
officers and majority of membership of union was now made up 
of minorities.

Thomas Atkins, Brooklyn, N.Y., Barnhart and Mirer by 
Jeanne Mirer, Gary Benjamin, James W. McGinnis, Detroit, 
Mich., for plaintiffs.

Walter S. Nussbaum, Farmington Hills, Mich., for defend­
ants Detroit Police Officers Ass'n, David Schneider, President of 
DPOA.

Frank W. Jackson, Asst. Corp. Counsel, Detroit, Mich., 
Daniel B. Edelman, Washington, D.C., Terri L. Hayles, Asst. 
Corp. Counsel, Detroit, Mich., for defendants City of Detroit, 
Mayor Coleman A. Young, Detroit Police Dept., Bd. of Police 
Com’rs, Chief William Hart.

OPINION

GILMORE, District Judge.

This matter is before the Court upon remand from the Court 
of Appeals.' Before the Court are two motions; defendant City of 
Detroit’s (City) motion for entry of judgment, and DPOA’s 
motion for summary judgment concerning the 42 U.S.C. §§ 1981 
and 1983 claims.

'This Court’s original opinion is found at 591 F.Supp. 1194 (E.D.Mich. 
1984), and the Court of Appeals’ opinion is found.at 821 F.2d 328 (6th 
Cir. 1987).



A-70

Opinion

For the reasons set forth below, the Court will deny both 
motions, except for the section 1983 claim against the DPOA. 
This leaves the Court with the much more difficult question of 
whether the entire matter is moot. A discussion of that issue is 
found in part IV of this opinion.

The issue for determination in the City’s motion for entry of 
judgment is whether the Sixth Circuit’s mandate forbids any 
retrial of liability issues and requires the entry of judgment for 
the City.

[ 1 ] With reference to the DPOA, the Sixth Circuit reversed 
the judgment of this Court finding a breach of the duty of fair 
representation and remanded it to this Court to address the 42 
U.S.C. § 1981 claim. The issue here is whether this Court is 
foreclosed from considering the section 1981 claim in light of its 
findings on the breach of the duty of fair representation. The 
DPOA also seeks summary judgment on the 42 U.S.C. § 1983 
claim not addressed by this Court or the Sixth Circuit. The 
Court grants this summary judgment because the actions of the 
DPOA do not constitute state action.

I

[2,3] The Court must first consider what authority it has to 
act under the opinion and mandate of the Sixth Circuit. This 
requires a consideration of the doctrine of the “law of the case.” 
Under that doctrine, a decision on an issue of law made at one 
stage of a case becomes a binding precedent to be followed in 
successive stages of the same litigation. Like stare decisis, it 
serves the dual purpose of: (1) protection against the re-litiga­
tion of settled issues; and (2) assuring the obedience of inferior 
courts to the decision of superior courts. After the law of the case 
is determined by a superior court, the inferior court lacks author­
ity to depart from it. See IB J. Moore, J. Lucas & T. Currier, 
Moore’s Federal Practice 11 0.404(1), at 118 (2d ed. 1984) 
(hereinafter Moore's).



A-71

Opinion

According to Moore’s, the decision of an appellate court on 
an issue of law becomes the law of the case on remand. “The 
district court owes obedience to the mandate of the supreme 
court or the court of appeals, and must carry it into effect 
according to its terms.” Id. 11 0.404(10), at 170 (citing In re 
Sanford Fork & Tool Co., 160 U.S. 247, 16 S.Ct. 291, 40 L.Ed. 
414 (1895)).

What remains within the power of the district court after 
remand depends upon the scope of the mandate. When further 
proceedings are specified in the mandate, the district court is 
limited to holding such as directed:

When the remand is general, however, the district court 
is free to decide anything not foreclosed by the mandate.

In the case of a remand for further proceedings, the 
mandate constitutes the law of the case only on such issues 
of law as were actually considered and decided by the 
appellate court, or necessarily inferred by the disposition on 
appeal. In the course of subsequent proceedings directed or 
permitted by the mandate, the district court otherwise will 
apply the law as it reads it, subject to correction on a second 
appeal.

Id. at 172-74.

Courts have also held that, upon remand, a trial court may 
consider “those issues not expressly or implicitly disposed of by 
the appellate decision.” See, e.g., Bankers Trust Co. v. Bethle­
hem Steel Corp., 761 F.2d 943, 950 (3d Cir. 1985). See also 
Quern, v. Jordan, 440 U.S. 332, 347 n. 18, 99 S.Ct. 1139, 1148 n. 
18, 59 L.Ed.2d 358 (1979).

“A trial court is thereby free to make any order or direction 
in further progress of the case, not inconsistent with the decision 
of the appellate court, as to any question not settled by the 
decision. Id .” Moreover, “ [t]he mere fact that it could have 
been decided [by the appeals court] is not sufficient to foreclose



A-72

Opinion

the issue on remand.” Maggard v. O'Connell, 703 F.2d 1284, 
1289 (D.C.Cir.1983).

A general rule has been provided by the Third Circuit in 
Bankers Trust, supra:

[U]pon a reversal and remand for further consistent 
proceedings, the case goes back to the trial court and there 
stands for a new determination of the issues presented as 
though they had not been determined before, pursuant to 
the principles of law enunciated in the appellate opinion, 
which must be taken as the law of the case.

761 R.2d at 950 /'citing United States v. Iriarte, 166 F.2d 800, 
803 (1st Cir.), cert, denied, 335 U.S. 816, 69 S.Ct. 36, 93 L.Ed. 
371 (1948)).

It therefore becomes essential to consider what was actually 
considered and disposed of by the Sixth Circuit, or necessarily to 
be inferred from the disposition.

II

The Sixth Circuit stated that in Bratton v. City o f Detroit, 
704 F.2d 878 (6th Cir.) (Bratton I), modified, 712 F.2d 222 (6th 
Cir. 1983), (Bratton II), a ffg  Baker v. City o f  Detroit, 504 
F.Supp. 841 (E.D.Mich. 1980), modifying 483 F.Supp. 930 
(E.D.Mich.1979), cert, denied, 464 U.S. 1040, 104 S.Ct. 703, 79 
L.Ed.2d 168 (1984), it upheld a voluntary affirmative action plan 
providing for the promotion of a black sergeant to every second 
job opening for lieutenant in the Detroit Police Department. The 
court noted that, although it held that the factual and legal basis 
for the promotional plan was sufficient to justify the City in 
adopting the plan voluntarily, it “specifically and expressly 
reversed the District Court order which made the plan 
mandatory.” NAACP  v. DPOA, 821 F.2d at 330 (citing Bratton 
II, 712 F.2d at 223).

The Sixth Circuit noted that this Court, in applying the 
doctrine of collateral estoppel, held that the Bratton decision



A-73

Opinion

foreclosed further litigation on the issue of prior discrimination in 
the police department, and “leads to the conclusion that the City 
could not lay off any police officers as part of a planned reduction 
in force.” 821 F.2d at 330. According to the Sixth Circuit, the 
“net effect of [this Court’s] order is to mandate that the City 
may not reduce the staffing and budgetary level of the police 
department in effect at the time of the order without prior 
permission of the Court.” Id.

The Sixth Circuit held that this Court properly invoked the 
doctrine of collateral estoppel to preclude the City from denying 
the facts of prior discrimination that it had earlier demonstrated 
and conceded. It held, however, that “ it was incorrect for the 
District Court to then rely upon these findings as the sole basis 
for making a very significant modification to the voluntary plan 
by disallowing any further layoffs until the goals of the plan are 
met.” Id. at 331 (emphasis added). The court stated that in 
Bratton it merely recognized that the City’s voluntary affirmative 
action plan, based on the City’s own determination that it had 
discriminated in the past, was constitutionally permissible, which 
is “a different issue from whether a constitutional violation has 
occurred which mandates a court-ordered remedy.” Id. (citing 
Bratton //. 712 F.2d at 223; Bratton I, 704 F.2d at 902).

In sum, the Sixth Circuit stated that this Court erred by 
relying “solely on the Bratton findings and conclusions to set 
aside the reverse seniority provision of the collective bargaining 
agreement.” Id. It was concerned about the impact this decision 
would have on future employers' decisions to set up voluntary 
affirmative action plans, and held that judicial approval of a 
voluntary affirmative action plan does not create a contract of 
permanent employment, or invalidate or modify a collective 
bargaining agreement providing for layoffs on the basis of senior­
ity. With reference to the City, the Sixth Circuit merely stated: 
“ [W]e reverse the district court’s injunctive orders against the 
City and the union, and remand for further proceedings consis­
tent with this opinion.” 821 F.2d at 333.



A-74

Opinion

The Sixth Circuit held that remedial orders of this Court 
could not be bottomed solely on the Baker/Bratton findings. 
Effectively, to allow the voluntary affirmative action program to 
become mandatory based upon the same evidence that was 
presented merely to deem the program constitutional would be 
going too far. It did not find, however, that no evidence of 
unconstitutional conduct could be presented that could support 
the imposition of remedial orders by this Court.

In accordance with the general rule of Bankers Trust, 
supra, upon remand a trial court may consider “those issues not 
expressly or implicitly disposed of by the appellate decision.” 
The trial court must redetermine the issues “presented as though 
they had not been determined before, pursuant to the principles 
enunciated in the appellate opinion.”

It should be noted that in this case plaintiffs originally 
brought suit against the City under the Fourteenth Amendment, 
the Thirteenth Amendment, 42 U.S.C. §§ 1981, 1983, and 
1985(3). This Court bottomed its determination of liability on 
the Fourteenth Amendment, relying primarily upon Baker/  Brat­
ton, dismissed the section 1985(3) claim, and did not address the 
Thirteenth Amendment claim or the sections 1981 and 1983 
claims.

It therefore appears that, upon remand based upon the 
Bankers Trust general rule, and considering the narrow and very 
specific basis of the Sixth Circuit for reversal—namely, this 
Court’s reliance on Baker/Bratton as the sole basis for decision— 
if otherwise applicable and relevant, the Court can consider other 
claims, providing that consideration is based on something other 
than the findings and conclusions of Baker/Bratton.

It appears, however, that there is no basis for consideration 
of several of these claims. The Court finds no basis in the record 
for the Thirteenth Amendment claim and will not consider it. 
Nor will this Court consider the section 1981 claim because, if 
there is a claim under the Civil Rights Act, it is based on section 
1983 in view of the fact that state action is involved here.



A-75

Opinion

With reference to the Fourteenth Amendment claim, the 
Court concludes that, in light of Thomas v. Shipka, 818 F.2d 
496 (6th Cir.1987), plaintiffs may not pursue a Fourteenth 
Amendment claim. Thomas held that, where a plaintiff states a 
constitutional claim under 42 U.S.C. § 1983, that statute is the 
exclusive remedy for the alleged constitutional violation, and a 
direct claim under the Constitution cannot also be asserted. 818 
F.2d at 500, 503.

Thomas involved a civil rights action brought by a former 
employee of the municipal court against the clerk of the court. 
Plaintiff alleged she had been wrongfully discharged because of 
her political party affiliations in violation of section 1983 and the 
First and Fourteenth Amendments. Noting that “ [T]he 
Supreme Court has never recognized a cause of action arising 
directly under the Constitution in a case where section 1983 was 
available as a remedy,” the Court dismissed the constitutional 
claim. It concluded: ” [I]t is unnecessary and needlessly redun­
dant to apply a cause of action arising directly under the consti­
tution where Congress has already provided a statutory remedy 
of equal effectiveness through which the plaintiff could have 
vindicated her constitutional rights.” Id. at 500.

[4] It thus appears that the present case against the city 
must be evaluated as a section 1983 action.2 The city, however.

: This Court recognizes that the Supreme Court has decided cases involving 
affirmative action and racial discrimination under solely the Fourteenth 
Amendment, even though the cases theoretically could have been brought 
under section 1983. See e.g.. United S tates  v. Paradise. — U.S. — , 107 
S.Ct. 1053, 94 L.Ed.2d 203 (1987) (allowed Fourteenth Amendment 
action in case involving long-standing practice of the Alabama Depart­
ment of Public Safety of excluding blacks from employment); Columbus 
Board o f  Education v. Penick, 443 U.S. 449, 99 S.Ct. 2982, 61 L.Ed.2d 
666 (1979) (involved racial discrimination by the Columbus Board of 
Education in which the Court recognized a Fourteenth Amendment cause 
of action); Arlington Heights v. M etropolitan Housing Development 
Corporation. 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (Court 
considered Fourteenth Amendment violations due to allegedly racially 
discriminatory rezoning in the village of Arlington Heights). However,



A-76

Opinion

asserts that such an action is time-barred in light of Wilson v. 
Garcia, 471 U.S. 261, 105 S.Ct. 1988, 85 L.Ed.3d 354 (1985).

Wilson held that all claims under section 1983 are governed 
by the state limitation period applicable to personal injury 
actions. As applied to claims in Michigan, Wilson provides that 
sections 1981 and 1983 claims will be governed by M.C.L.A. 
§ 600.5805(8), the three year period governing claims of general 
injuries to the person. See Garland v. Shapiro, 579 F.Supp. 858, 
859 (E.D. Mich.1984). Hence, asserts the City, given that the 
suit began in 1980, the section 1983 action is time-barred to the 
extent that the claim arises from the City’s pre-1967 intentional 
discrimination.

This Court is unwilling to recognize that the section 1983 
claim is time-barred. First, assuming that Thomas applied and 
that plaintiffs can now only proceed under section 1983, this 
Court made specific findings of fact with regards to the City 
above and beyond the Court’s acceptance of the Baker/Bratton 
findings.

This Court found that on December 31, 1978, blacks held 
1719 of 4393 positions in the rank of police officer, or 89.1 
percent, and 1946 of the total of 5630 positions in the depart­
ment, or a total of 84.6 percent. “This figure represents the 
highest percent of blacks ever in the Detroit Police Department.” 
591 F.Supp. at 1197. On February 23, 1984, when this Court 
issued its partial summary judgment ruling, the Detroit Police 
Department had a total sworn personnel of 3762, of which 1007, 
or 26 percent, were black. It had a total of 2668 police officers, of 
whom 756, or 28 percent, were black. “Thus, it is clear that the 
net effect of the layoffs in 1979 and 1980 was to wipe out most of 
the affirmative action recruiting that had brought large numbers 
of blacks onto the police force in 1977 and 1978.” Id.

because the Sixth Circuit language in Thomas is clear, and because 
plaintiffs could obtain no greater relief under the Fourteenth Amendment 
than they could under section 1983, this Court will not consider the 
Fourteenth Amendment claim any further.



A-7 7

Opinion

This Court also noted the testimony of Dr. Mark Bendick, 
Jr., an economist who updated the statistical figures established 
by Allen Fechter in Baker:

Dr. Bendick made a projection for 1988, and indicated 
that, if the Detroit Police Department had hired blacks in 
proportion to the labor market representation in all of the 
years from 1945 to 1978, the presence of black officers in 
1988 would be 50.5 percent. As of 1984, blacks comprised 
65 percent of the relevant labor market, and the City of 
Detroit is 67 percent black.

Id. at 1198. Furthermore, Dr. Bendick also testified that the 
statistical shortfalls of blacks in the Detroit Police Department 
over the years, up to the early 1970’s, could only be explained as 
the result of racial discrimination. Id , at 1200.

“Although in 1978, the year before the layoffs involved in 
this case took place, 89 percent of Detroit Police Officers were 
black, the highest percentage ever, blacks still represented a 62.3 
percent of the relevant labor market.” Id. At the time of the 
1984 decision, the “percentage of black representation in the 
ranks of police officers [was] 28.3 percent, and in all ranks 27.9 
percent. The relevant labor market in the City of D etroit. . .  
[was] well over 65 percent.” Id.

The September 3 letter of Mayor Young to David Watroba 
(former president of DPOA) shows that “ the City knew that it 
was under a legal mandate to continue its affirmative obligation 
to plaintiffs, and knew that the layoffs would have a drastic effect 
upon this obligation.” See 591 F.Supp. at 1201 (quotes portion 
of letter).

Moreover, it was obvious from “the testimony and the 
exhibits that in 1979, and more particularly in 1980, the City 
made a politically expedient decision that it would rather face a 
lawsuit by black police officers than face a lawsuit by white police 
officers.” Id. at 1202.



A-78

Opinion

With regards to the remedy, this Court found, based on the 
testimony of Chief William Bracey, former Chief of Patrol of the 
New York City Police Department “that in addition to the usual 
losses sustained with the loss of employment, the class of black 
officers suffered injury as a direct result of the City’s past racial 
discrimination, and its failure in 1979 and 1980 to continue to 
remedy this discrimination. To put it bluntly—they suffered the 
trauma of betrayal.” Id. at 1204.

Numerous police officials testified concerning the impact of 
the layoffs to the police and the community:

Although the presence of many black command officers, 
who were unaffected by the layoffs, somewhat ameliorates 
this problem, it is undisputed that black patrol officers are 
the most visible, have the most daily contacts with the 
community, and are most important in crime prevention and 
community relations. Therefore, massive reductions in the 
numbers of black police officers below the rank of sergeant 
on the street will have dramatic effects.

Thus, the City is in real danger of seeing the gains of 
the 1970’s in terms of police-community cooperation 
reversed, if the City’s unconstitutional layoffs are not 
remedied.

It is clear from the testimony of Mayor Young and the 
police experts, Bracey, Hart, Bannon, Murphy, and the 
exhibits, that the return of black officers to the streets of the 
City of Detroit is not only necessary to vindicate the consti­
tutional rights of the black police officers, but is also an 
absolute necessity to restore balance to the community, and 
the confidence of the community in the Detroit Police 
Department. Their testimony was intelligent, credible and 
convincing, and clearly established the need for the return to 
the force of the black police officers.

Id. at 1206-07.



A-79

Opinion

The City argues, however, that in this case there is no 
contention that the City acted with racial animus in making the 
1979 and 1980 layoffs, and that this Court has specifically found 
that it did not. Therefore, the City asserts that discriminatory 
action did not occur within the limitations period. To support 
this contention, the City quotes the Court’s opinion: “This Court 
does not ascribe racially discriminatory animus to Mayor Young 
and his administration.” 591 F.Supp. at 1202. Even though this 
Court does not ascribe racial animus to the Mayor and his 
administration, the fact remains that the Mayor made a con­
scious choice to face a lawsuit from black officers rather than 
from white officers, and did effectuate layoffs that drastically 
reduced the minority representation of the Detroit Police Depart­
ment well below the proportion of the black population of the 
City. This Court’s earlier findings show that race was a motivat­
ing factor in the City’s action to layoff black officers:

However, it is equally obvious from the testimony and 
exhibits that in 1979, and more particularly in 1980, the 
City made a politically expedient decision that it would 
rather face a lawsuit by black police officers than face a 
lawsuit by white officers. It also decided that it would 
threaten layoffs of black officers as a club against the DPOA 
in an attempt to roll back the 1978 Act 312 arbitration 
award, especially the retroactive pay and COLA increases 
ordered in the award.

It is not the function of this Court to inquire into the 
political wisdom of these decisions. However, the Constitution, 
and particularly the Fourteenth Amendment, exists precisely to 
insure that the individual and group rights of all individuals, 
especially minorities, who have been historically shut out of the 
political process, are protected in the political process.

The rights of the black police officers and black citizens of 
Detroit to a fully integrated police force were sacrificed in the 
1979 and 1980 layoffs. A city does not fulfill its obligations 
under the Fourteenth Amendment . . .  by simply giving the



A-80

Opinion

difficult problem of redressing racial injustice in our society to 
the federal courts.
Id. at 1202 (footnote omitted).

Thus, even though the Court ascribed no racial animus to 
the Young administration, the facts are that sufficient findings 
exist indicating racial discrimination to defeat a motion for entry 
of judgment. We are not here on a full trial on the issue of 
violation of section 1983, but only on the question of whether a 
sufficient factual basis exists to withstand a motion for entry of 
an order of dismissal.

The findings of fact from this Court's prior opinion provide 
evidence that race was a motivating factor in the City's actions to 
layoff the black officers. All of these findings concern events 
within the statute of limitations that is, events occurring after 
1977. Therefore plaintiffs’ section 1983 claim is not time-barred, 
and can be considered under the terms of the mandate of the 
Sixth Circuit. Additionally, evidence can be presented of events 
prior to 1977 to the extent that the earlier occurrences impact 
upon the post-1977 events.

It is therefore clear that the City’s motion for entry of 
judgment must be denied. Plaintiffs have represented they will 
demonstrate that “wholly apart from Baker/Bratton the evidence 
of record . . . dictates a finding that the City’s prior unconstitu­
tional behavior was a continuing and proximate cause of the 
illegal layoffs of 1979 and 1980.” Assuming that the issues in 
this case are not moot, plaintiffs should be given the opportunity 
to present this evidence.



A-81

Opinion

III

The Court of Appeals disposition with reference to the 
DPOA was very specific. It reversed this Court’s finding that the 
DPOA breached its duty of fair representation, and said:

The plaintiffs also allege that the union violated 42 
U.S.C. § 1981. The district court did not address this issue. 
Accordingly, we reverse the district court’s injunctive orders 
against the City and the union, and remand for further 
proceedings consistent with this opinion.

821 F.2d at 333.

The DPOA contends that all that remains for consideration 
pursuant to the remand order are the sections 1981 and 1983 
claims.3 As stated in the introduction to this opinion, it is obvious 
that the section 1983 claim must be dismissed because there is no 
state action by the DPOA. Therefore, the Court needs only to 
address the section 1981 claim.

[5] It is the position of the DPOA that, to prevail on the 
section 1981 claim, the plaintiff must present evidence of defen­
dant’s specific discriminatory intent because section 1981 
reaches only purposeful discrimination. It argues that, because 
there was no finding by this Court in its original opinion of 
intentional discrimination by the DPOA, the Court should grant 
summary judgment on the section 1981 claim, and dismiss the 
action against the DPOA.

The Court disagrees. As pointed out by plaintiffs, it is 
impossible to fairly read this Court’s findings concerning the 
DPOA’s history and conduct before, during, and after the 1979 
and 1980 layoffs without concluding that the DPOA was indeed

! The plaintiffs originally brought suit against the DPOA based upon the 
Thirteenth Amendment, 42 U.S.C §§ 1981, 1983, and 1985(3), and a 
pendent state claim for breach of the duty of fair representation. In its 
earlier opinion, the Court dismissed the section 1985(3) and the Thir­
teenth Amendment claims. This Court did not address the section 1983 
claim.



A-82

Opinion

guilty of intentional discrimination. This Court made five major 
findings in its opinion.

It first found a history of racial hostility and indifference to 
the rights and needs of black officers. “Witness after witness, all 
black and all police officers or sergeants, testified to the discrimi­
natory manner in which they were treated by the DPOA.” 591 
F.Supp. at 1213.

Second, the Court found a total absence of black representa­
tion at the leadership levels of the DPOA. As of the time of this 
Court’s opinion in 1984, no black had ever been elected to one of 
the top officer positions, only two blacks had served on the 
executive board, and no black member had ever served on the 
negotiating committee. This Court specifically rejected the 
DPOA's reason for not putting blacks on this committee, namely 
that there were not sufficient “trustworthy” blacks to fill the 
positions using the union's criteria of political patronage. 591 
F.Supp. at 1214.

Third, through the recitation of the negotiating history, the 
Court established the perfunctory behavior on the part of the 
DPOA when the City eliminated one-half of the blacks from the 
force. This Court in its earlier opinion clearly questioned why the 
union responded in a totally routine manner to the layoffs of one- 
quarter of the DPOA members at a dramatic loss of overall dues 
income to the union. 591 F.Supp. 1214-18.

Fourth, the Court noted the DPOA’s present-day failure in 
1984 to make any serious efforts to assist the black officers. It 
stated:

The actual fact is that the union, even in its 1983 
demands, evinced no real interest in getting black laid-off 
police officers back to work. Again, given the DPOA’s his­
tory, this Court cannot believe that this behavior would be 
the same if one-half of its white membership was laid off.

591 F.Supp. at 1218.



A-83

Opinion

Finally, this Court noted the DPOA's history of concessions 
and prompt union action to avert layoffs in 1975 and 1981, when 
the jobs of white officers were at stake. Comparing these layoffs 
with the 1979 and 1980 layoffs of the black officers, this Court 
noted that, in the layoffs of the white officers, the DPOA did 
something, whereas with the black officers it did nothing. The 
Court concluded by stating:

Thus, this Court is not concerned with any reasonable 
activity of the DPOA in collective bargaining, even certain 
activity which sacrifices the interests of minorities for the 
majority. This Court is only concerned with activity that is 
arbitrary, racially discriminatory, and not in good faith. 
And this Court finds that, in its representation of its black 
members, the DPOA's perfunctory and passive behavior in 
1979 and 1980 breached the duty of fair representation.

591 F.Supp. at 1219 (emphasis added).

These findings contradict the DPOA's assertion that the 
court found as a matter of fact that there had been no discrimi­
nation in the layoff negotiations.

Furthermore, this Court’s findings with respect to the viola­
tion of the duty of fair representation were tantamount to a 
finding of intentional discrimination under 42 U.S.C. § 1981 
when it awarded attorney fees and costs against the DPOA. See 
NAACP v. DPOA, 620 F.Supp. 1173 (E.D.Mich.1985), rev’d. 
819 F.2d 1142 (6th Cir. 1987). In granting attorney fees to 
plaintiffs attorneys, this Court held:

The Court did not reach plaintiff s claim under § 1981 
because that claim was mooted by the finding of the breach 
of duty of fair representation. Plaintiffs § 1981 claim and 
duty of fair representation claim arose out of a common 
nucleus of operative facts, i.e. the DPOA's action as a whole 
with regard to the 1979 and 1980 layoffs of black officers.

Id. at 1180 (emphasis in original).



A-84

Opinion

Furthermore, this Court cannot overlook the recent 
Supreme Court case of Goodman v. Lukens Steel Co.,— U.S.—, 
107 S.Ct. 2617, 96 L.Ed.2d 572 (1987), decided a week after the 
Sixth Circuit issued its opinion in this case. This opinion also 
favors denial of the DPOA’s motion for summary judgment. At 
issue in Lukens were findings of racial discrimination and harass­
ment by Lukens Steel against its black employees, and findings 
that the union had correspondingly failed to comply with the 
statutory and contractual duties to defend its black members in 
challenging the company’s discriminatory practices. The union 
was found not guilty of having racial animus against blacks 
generally, but those acts of omissions which were racially moti­
vated were found to violate section 1981 in much the same way 
as racially motivated or racially charged acts of commission:

As we understand it, there was no suggestions below 
that the unions held any racial animus against or denigrated 
blacks generally. Rather, it was held that a collective bar­
gaining agent could not, without violating Title VII and 
section 1981, follow a policy of refusing to file grievable 
racial discrimination claims however strong they might be 
and however sure the agent was that the employer was 
discriminating against blacks. The unions, in effect, catego­
rized racial grievances as unworthy of pursuit and, while 
pursuing thousands of other legitimate grievances, ignored 
racial discrimination claims on behalf of blacks, knowing 
that the employer was discriminating in violation of the 
contract. Such conduct, the courts below concluded, inten­
tionally discriminated against blacks for seeking a remedy 
for disparate treatment based on their race, and violated 
both Title VII and section 1981. As the district court said, 
“a union which intentionally avoids asserting discrimination 
claims, either so as not to antagonize the employer and thus 
improve its chances of success on other issues, or in defer­
ence to the perceived desires of its white membership, is 
liable under both Title VII and section 1981, regardless of 
whether, as a subjective matter, its leaders were favorably



A-85

Opinion

disposed towards minorities.” 580 F.Supp. [1114] at 1160 
[ED Pa.1984],

The courts below, in our view, properly construed and 
applied Title VII and section 1981. Those provisions do not 
permit a union to refuse to file any and all grievances 
presented by a black person on the ground that the employer 
looks with disfavor on and resents such grievances. It is no 
less violative of these laws for a union to pursue a policy of 
rejecting disparate treatment grievances presented by blacks 
because the claims assert racial bias and would be very 
troublesome to process.

I d —  U.S. at —, 107 S. Ct. at 2625, 96 L.Ed.2d at 586-87.

Because the central premise of the DPOA motion, that this 
Court did not find intentional discrimination by the DPOA in its 
earlier opinion, is erroneous, the DPOA's motion for summary 
judgment under section 1981 must be denied. In its earlier 
opinion, this Court did not rule that no intentional discrimination 
occurred, only that nobody previously brought a lawsuit against 
the DPOA, or that involved the DPOA, in which the DPOA was 
found guilty of intentional racial discrimination. This does not 
mean that the DPOA had not discriminated in the past, nor does 
it mean that the DPOA did not intentionally discriminate against 
blacks with respect to the layoff negotiations in 1979 and 1980.

It is true that the Sixth Circuit stated that this Court did not 
make a specific and explicit finding of intentional discrimination, 
but it did not state this Court did not make findings that could 
rise to the level of intentional discrimination. The Sixth Circuit 
seems to suggest that enough evidence existed to make the 
finding of intentional discrimination, yet it had to recognize that 
the Court did not make its ruling based on that explicit finding.

It is clear that abundant evidence exists in this Court’s 1984 
decision regarding the DPOA’s intentional discrimination. 
Because this Court did not bottom its decision on this basis, the 
Sixth Circuit felt compelled to reverse. This does not mean that 
evidence of intentional discrimination does not exist.



A-86

Opinion

For the foregoing reasons, the motion for summary judg­
ment on section 1981 will be denied, and the motion on section 
1983 will be granted.

IV

This Court thus finds that the City’s motion to dismiss the 
section 1983 claim and the DPOA’s motion for summary judg­
ment on the section 1981 claim are without merit. Nevertheless, 
the Court must consider a more serious question—that of moot­
ness. Defendants have represented to the Court that the remedies 
ordered in its prior judgment against the City of Detroit have 
been complied with in that the City has recalled all of the 
discharged black police officers, and has hired additional black 
officers to the Detroit Police Department. With reference to the 
DPOA, defendants have represented that a majority of the mem­
bership of the DPOA is now made up of minorities and that, 
therefore, any order requiring minority representation at the 
various levels of the DPOA is moot, in that minorities, through 
intra-union political action, can protect themselves.

[6] These issues are of great concern to the Court. First, 
there are factual issues that must be determined. The representa­
tions made to the Court by counsel do not constitute a factual 
determination unless there can be a stipulation of facts by all 
sides. Secondly, the legal import of these facts, if they are 
established, is also of significance. If they are established, does 
that preclude this Court’s jurisdiction under Article III under 
which the Court may consider only an actual case or contro­
versy? To resolve these issues, the Court will schedule a hearing 
for the purpose of establishing a factual basis, and for dealing 
with the legal issues involved if the facts as alleged are true.

A hearing on the factual issues as to mootness and the legal 
effect thereof will be held on Wednesday, February 17, 1988, at 
2:00 p.m. Plaintiffs’ brief shall be filed by February 1, 1988. 
Responsive briefs shall be filed by February 12, 1988.

An order in compliance herewith may be presented.



A-87

Opinion

NAACP, DETROIT BRANCH; The Guardians, Inc.; 
Brady Bruenton; Cynthia Martin; Hilton Napoleon; Sharron 
Randolph; Betty T. Roland; Grant Battle; Cynthia Cheatom; 
Evin Fobbe; John Hawkins; Helen Poelinitz, on behalf of them­
selves and all others similarly situated. Plaintiffs,

v.

DETROIT POLICE OFFICERS ASSOCIATION 
(DPOA); Thomas Schneider, President of the DPOA; City of 
Detroit, a Michigan Municipal Corporation, Mayor Coleman A. 
Young; Detroit, Police Department; Board of Police Commis­
sioners; Chief William Hart; Governor William Milliken; and 
The Michigan Employment Relations Commission, Defendants.

No. 80-73693-DT.
United States District Court,

E.D. Michigan, S.D.
June 15, 1988.

Court raised issue of mootness in civil rights action that had 
been brought against city and city police association. The Dis­
trict Court, Gilmore, J., held that the action was moot as to both 
city and association.

Action dismissed.

1. Federal Courts—13.10
Civil rights action brought against city was moot, where all 

officers that court had ordered recalled were recalled and had 
been given their full seniority rights under contract between 
police association and city, seniority rights of recalled officers 
were fully protected under collective bargaining agreement, 
there was no showing that seniority rights of any recalled officer 
had ever actually been threatened, and recalled officers would 
have clear remedy under contract grievance procedure if such 
rights were threatened, and accordingly, plaintiffs were not



A-88

Opinion

entitled to entry of consent decree accepting seniority list pub­
lished by city as contractually binding on status of recalled 
officers. 42 U.S.C.A. § 1983; U.S.C.A. Const. Art. 3, § 1 et seq.

2. Federal Courts—13.10
Civil rights action was moot as to city police association; 

court’s principal concern at time of its earlier opinions was that 
black members of association be given their proper representa­
tion in leadership structure so that they could protect their rights 
at time when black members were the minority, but since time of 
earlier opinion, racial composition of city police department had 
changed, and majority of association membership was made up 
of blacks and other minorities. 42 U.S.C.A. §§ 1981, 1983; 
U.S.C.A. Const. Art. 3, § 1 et seq.

Walter S. Nussbaum, Farmington Hills, Mich., on behalf of 
defendants Detroit Police Officers Ass'n David Schneider, Presi­
dent of DPOA.

Frank W. Jackson, Asst. Corp. Counsel, Detroit, Mich., 
Daniel B. Edelman, Washington, D.C., Terri L. Hayles, Asst. 
Corp. Counsel, Detroit, Mich., on behalf of defendants City of 
Detroit, Mayor Coleman A. Young, Detroit Police Dept., Bd. of 
Police Com’rs and Chief William Hart.

Thomas Atkins, Brooklyn, N.Y., Barnhart and Mirer by 
Jeanne Mirer, James W. McGinnis, Detroit, Mich., on behalf of 
plaintiffs.

OPINION

GILMORE, District Judge.

In its most recent opinion in this case,1 this Court held, on 
remand from the Court of Appeals, 821 F.2d 328, that plaintiff

See N AACP v. DPOA, 676 F.Supp. 790 (E.D. Mich. 1988).



A-89

Opinion

could maintain an action under 42 U.S.C. § 1983 against defen­
dant City of Detroit (City), and that the defendant Detroit Police 
Officers Association's (DPOA) motion for summary judgment on 
a claim under 42 U.S.C. § 1981 was without merit. The Court, 
however, raised the question of mootness, and ordered a further 
hearing to determine whether the case is moot so as to preclude 
this Court’s jurisdiction under Article III because of the lack of 
an actual case or controversy.2 *

I

The remand hearing ordered by the Court in its opinion of 
January 13, 19885 was held on May 4, 1988. At that hearing, all 
parties stipulated that there has been a full recall, or an ofTer of 
recall, with protection of full seniority, for all officers laid off in 
1979 and 1980. Thus, there has been full compliance with this 
Court’s order contained in its earlier opinion.4

It was also stipulated by all parties that, as of February 17, 
1988, 51.3 percent of the membership of the DPOA was black, 
and that, in addition, there were 64 other members of the DPOA 
who were in a protected class. The parties further stipulated that 
70 per cent of all new officers hired after all of those ordered 
returned to the police force by this Court’s previous order were 
black. In addition, it was agreed that the City had hired 1,290 
officers hired subsequent to the completion of the recall in June 
1985.

: There is no claim for damages against either the City or the DPOA under 
§§ 1981 or 1983. The only relief sought in this case on remand from the 
Court of Appeals is injunctive relief.

i See  676 F.Supp. at 799.

4 The Court’s earlier opinion on this matter is found at 591 F.Supp. 1194
(E.D.M ich.1984).



A-90

Opinion

II

In making a determination as to whether or not the case is 
presently moot, this Court must consider whether there has been 
full compliance with this Court’s order contained in its earlier 
opinion.5 With reference to the City, the question is whether all 
of the officers laid off in 1979 and 1980 have been offered recall, 
and whether the racial composition of the police force is now 
equivalent to the relevant labor market. The only part of this 
Court’s order that remained pending against the City prior to the 
action of the Court of Appeals6 reversing and remanding this 
case was an order requiring this Court's approval before the lay­
off, suspension, or discharge of any police officer, except for 
disciplinary reasons. With reference to the DPOA. this Court's 
prior order required reasonable representation of blacks in the 
leadership structure of the DPOA within 12 months. The 
Court’s specific concern with reference to the DPOA was that 
“ [B]lack members of the DPOA are given their proper represen­
tation in the leadership structure of the DPOA, [so] they can, in 
the future, protect minority members against a breach of the 
duty of fair representation by the Union. It is this goal that this 
Court seeks.” 591 F.Supp. at 1220.

III

The concept of mootness goes to the fundamental idea that 
Article III courts may decide only actual “cases or controver­
sies.” As the Supreme Court stated in Aetna Life Insurance Co. 
v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1987):

A justiciable controversy is thus distinguished from a 
difference or dispute of a hypothetical or abstract character, 
from one that is academic or moot. The controversy must be 
definite and concrete, touching the legal relations of parties

5 591 F.Supp. at 1220-21.
6 NAAC P  v. DPOA, 821 F.2d 328 (6th Cir. 1987). '



A-91

Opinion

having adverse legal interests. It must be a real and sub­
stantial controversy admitting of specific relief through a 
decree of a conclusive character, as distinguished from an 
opinion advising what the law would be upon a hypothetical 
state of facts.

Id. at 240-41, 57 S.Ct. at 464 (citations omitted).

A case can become moot because the law has changed,’ 
because a defendant has paid monies owed and no longer wants 
to appeal,* 8 because the allegedly wrongful behavior has passed, 
been mooted, or could not be reasonably expected to occur.’

The Supreme Court has created various exceptions to the 
rule to prevent either party from creating a technical mootness as 
a sham to deprive the Court of jurisdiction. For example, if a 
party voluntarily stops allegedly illegal conduct, that change does 
not necessarily make the case moot, for the defendant would then 
be free to return to his old ways. Defendant must show that 
“there is no reasonable expectation that the wrong will be 
repeated.” U.S. v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 
894, 897, 97 L.Ed. 1303 (1953) (quoting United States v. Alumi­
num Co. o f  America, 148 F.2d 416, 448 (2d Cir. 1945)).

Another exception is the “capable of repetition yet evading 
review” doctrine. A mere “physical or theoretical possibility” is 
not enough to meet this test, otherwise “virtually any matter of 
short duration would be reviewable.” There must be a “reason­
able expectation” or a “demonstrable possibility” that “the same 
controversy will reoccur involving the same complaining party.” 
Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1 181,1 183-84, 71 
L.Ed.2d 353 (1982).

1 See, e.g.. United States  v. Alaska S .S . Co., 253 U.S. 113, 40 S.Ct. 448, 
64 L.Ed. 808 (1920).

8 See, e.g., California v. San Pablo & Tulore R.R., 149 U.S. 308, 313-14, 
13 S.Ct. 876, 878, 37 L.Ed. 747 (1893).

'‘ See, e.g., S E C  v. M edical Committee fo r  Human Plights, 404 U.S. 403, 
406, 92 S.Ct. 577, 579, 30 L.Ed.2d 560 (1972).



A-92

Opinion

The Sixth Circuit recently dealt with mootness in Berry v. 
School District o f  the City o f Benton Harbor, 801 F.2d 872 (6th 
Cir. 1986). In Berry, the court held moot a claim for injunctive 
relief governing layoffs where no actual layoff was contemplated. 
The court pointed out that “ [wjithout knowing the facts of the 
particular layoff situation, it did not have a case of controversy 
with the immediacy necessary for an informed decision.” 801 
F.2d at 875.10

IV

Applying the law set forth above to the facts of the instant 
case, the Court concludes that the controversy truly is moot, and 
the Court must therefore dismiss the case.

[1] With reference to the City of Detroit, plaintiff concedes 
that all officers ordered to be recalled have been recalled, and 
have been given their full seniority rights under the contract 
between the DPOA and the City. The seniority rights of recalled 
officers are fully protected under the collective bargaining agree­
ment, and there is no showing that the seniority rights of any 
recalled officer has ever actually been threatened. If such rights 
were threatened, the recalled officers would have a clear remedy 
under the contract grievance procedure.

Nonetheless, plaintiffs sought an agreement from defend­
ants with reference to the rights of recalled officers, and the entry 
of a consent decree. The proposed agreement is as follows:

As represented to the Court at the May 4, 1988 hearing 
herein, the parties consider the unchallenged seniority list 
published by the City of Detroit, on which seniority is based 
on the date of initial hire as contractually binding as to the 
status of the recalled officers, notwithstanding any legal 
rights the parties might otherwise have.

10 For other cases discussing mootness, see Los Angeles v. Lyons. 461 U S. 
95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); Weinstein v. Bradford. 423 
U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975); and Spear v. City o f  
Oregon. 847 F.2d 310 (6th Cir. 1983).



A-93

Opinion

As shown by the signature of their counsel below, the
Court may consider this agreement to be the intent of the
parties, and may enter same as a consent decree herein.

The City refused to agree to the entry of any proposed 
consent decree, but argues that the case should be dismissed as 
moot.

The Court agrees with the City. Everything the Court 
sought to accomplish in its original judgment in the within 
matter has been accomplished. All officers laid off in 1979 and 
1980 have been recalled. All of these officers have been given full 
seniority rights, which are protected under the collective bargain­
ing agreement. Therefore, it appears there is no case or contro­
versy remaining with the City, and the matter is moot as to the 
City.

[2] With reference to the DPOA, the Court also finds the 
case to be moot. The Court’s principal concern at the time of its 
original opinions was that black members of the DPOA be given 
their proper representation in the leadership structure so they 
can protect their rights. At that time, the black members were a 
minority, and there was a clear indication that the rights of many 
of the black officers were not being protected by the white 
majority.

Since the time of this Court’s opinion in 1984, however, the 
racial composition of the Detroit Police Department has 
changed. Presently, blacks constitute 51.3 percent of the Depart­
ment and 70 percent of new hires. In view of the fact that the 
majority of the membership of the DPOA is now made up of 
blacks and other minorities, they are able to protect themselves 
through intra-union political action against actions of white 
officers that would deprive them of fair representation or rights 
under 42 U.S.C. § 1981. This being so, there remains no 
controversy between the NAACP and the DPOA, and the matter 
is moot.

For the reasons stated, appropriate orders may be entered 
dismissing the entire action.



A-94

Opinion

N.A.A.C.P., DETROIT BRANCH; The Guardians, Inc.; 
Brady Bruenton; Cynthia Martin; Hilton Napoleon; Sharron 
Randloph; Betty T. Rolland; Grant Battle; Cynthia Cheatom; 
Evin Fobbs; John H. Hawkins; Helen Poelnitz, on behalf of 
themselves and all others similarly situated, Plaintiffs— 
Appellants,

v.

DETROIT POLICE OFFICERS ASSOCIATION 
(DPOA); David Watroba, President; City of Detroit; Coleman A. 
Young, Mayor; Detroit Police Dept., Board of Police Commis­
sioners; William Hart, Chief; William Milliken, Governor; The 
Michigan Employment Relations Commission, Defendants- 
Appellees

No. 88-1902.

United States Court of Appeals,
Sixth Circuit.

Argued July 31, 1989.

Decided April 9, 1990.

Rehearing and Rehearing En Banc
Denied June 18, 1990.

Employment discrimination action was filed on behalf of 
black police officers. Following an earlier remand, the United 
States District Court for the Eastern District of Michigan, 685 
F.Supp.1004, Horace W. Gilmore, J., held that the action was 
rendered moot by events that occurred after the District Court 
entered an injunction. Appeal was taken. The Court of Appeals, 
Merritt, Chief Judge, held that: (1) the action was not moot: 
(2) the last hired, first-fired layoff provision of the collective 
bargaining agreement was a bona fide seniority system that was 
exempt from attack under Title VII; and (3) Title V lI’s provision 
that protects bona fide seniority systems from attack also extends 
to attacks under earlier civil rights statutes.'



A-95

Opinion

Vacated and remanded.

1. Federal Courts—13.10

Employment discrimination action brought by black police 
officers was not rendered moot, even after district court’s injunc­
tion had been invalidated, by events that led to accomplishment 
of underlying goals of original injunction. Civil Rights Act of 
1964, § 703(h), as amended, 42 U.S. C.A. § 2000e-2(h); 42 
U.S.C.A. §§ 1981, 1983.

2. Civil Rights—149

Title VII exempts bona fide seniority plans from attack, 
even if seniority system has disparate impact and even though 
result may perpetuate prior discrimination. Civil Rights Act of 
1964, § 703(h), as amended, 42 U.S.C.A. § 2000e-2(h).

3. Civil Rights—149

Last-hired, first-fired seniority system is bona fide and 
exempt from attack under Title VII unless seniority system was 
adopted or negotiated with discriminatory motivation or purpose 
or unless seniority system is administered in irregular or arbi­
trary way with intend to harm members of protected class. Civil 
Rights Act of 1964, § 703(h), as amended, 42 U.S.C.A. § 2000e- 
2(h).

4. Civil Rights—149

Last-hired, first-fired seniority provision in collective bar­
gaining agreement for city police officers was bona fide and 
exempt from attack under Title VII, even though seniority sys­
tem had effect of requiring budgetary layoffs of disproportionate 
number of black police officers. Civil Rights Act of 1964, 
§ 703(h), as amended 42 U.S.C.A. § 2000e-2(h).



A-96

Opinion

5. Civil Rights— 149
Title VII provision that exempts bona fide seniority systems 

from attack also applies to employment discrimination claims 
under earlier civil rights statutes. Civil Rights Act of 1964, § 
703(h), as amended, 42 U.S.C.A. § 2000e-2(h); 42 U.S.C.A. §§ 
1981, 1983; U.S.C.A. Const. Amend. (11), § 5.

Thomas I. Atkins (argued), Brooklyn, N.Y., for plaintiff- 
appellant.

Jeanne Mirer, Barnhart & Mirer, Detroit, Mich., for 
plaintiffs.

Frank Jackson, Terri L. Hayles, City of Detroit Law Dept., 
Detroit, Mich., Daniel B. Edelman (argued), Yablonski, Both & 
Edelman, Washington, D.C., Allan D. Sobel, Rubenstein, Isaacs, 
Lax & Bordman, Southfield, Mich., Walter Nussbaum 
(deceased) (argued), and Michael A. Lockman, Detroit, Mich., 
for defendants-appellees.

Before MERRITT Chief Judge, and KENNEDY, Circuit 
Judge, and TODD, District Judge.*

MERRITT, Chief Judge.

In a previous appeal in this action our Court published on 
June 12, 1987, an opinion, NAACP  v. Detroit Police Officers 
Ass'n, 821 F.2d 328, 333 (6th Cir. 1987), holding that a purely 
voluntary affirmative action plan instituted by Mayor Young and 
the City designed to increase minority representation in the 
Detroit Police Department could not override the last-hired, first- 
fired layoff provision of the Union’s collective bargaining agree­
ment with the City.1 We held further that because the Union had

* The Honorable James D. Todd, United States District Judge for the 
Western District of Tennessee, sitting by designation.

' This case comes to us with a long procedural history. Plaintiffs initiated 
this action on September 30, 1980, against Mayor Coleman A. Young, the 
local police union called the Detroit Police Officers Association, the City 
of Detroit, and other Detroit municipal officials and agencies. In essence,



A-97

Opinion

not engaged in intentional discrimination, its failure to bargain 
forcefully against the layoffs made for budgetary reasons did not 
breach its duty of fair representation. The appeal in the previous 
case was from a ruling by the District Court that the voluntary 
plan alone by its own force required a finding of liability against 
the City and Mayor Young, and an injunctive order disallowing 
them from laying off 900 black police officers until the plan goals 
had been met. See NAACP  v. Detroit Police Officers Ass'n, 591 * 1 2

plaintiffs made two claims concerning layoffs that the Mayor ordered 
because of budget constraints:

1) that the layoffs ordered by Mayor Young of approximately 
900 black police officers pursuant to a layoff provision in the collective 
bargaining agreement were discriminatory in light of the unmet reme­
dial obligation of the City and the Police Department to undo the 
effects of past racial discrimination: and

2) that the Union engaged in racial discrimination and breached 
it duty of fair representation by failing to actively oppose the layoffs of 
the black police officers ordered by Mayor Young

Plaintiffs sought declaratory relief, reinstatement, nondiscriminatory 
assignments, restoration of seniority, back pay, out-of-pocket expenses, and 
an injunction against future layoffs. After four years of proceedings in the 
court below, the District Court, applying collateral appeal, held that our 
decision in Bratton v. City o f  Detroit, 704 F.2d 878 (6th Cir. 1983) 
(Bratton I) (City's voluntary affirmative action plan regarding police 
department promotions to service upheld, modified. 712 F.2d 222 (6th 
Cir. 1983) (Bratton II). afTg Baker v. City o f  Detroit. 504 F.Supp. 841 
(E.D.M ich.1980), modifying Baker v. City o f  Detroit. 483 F.Supp. 930 
(E.D. Mich.1979), cert, denied.. 464 U.S. 1040, 104 S.Ct. 703, 79 L.Ed.2d 
168 (1984), automatically foreclosed further litigation on the issue of prior 
discrimination in the police department and precluded the City from laying 
off any police officers under Mayor Young's planned reduction in force. See 
N AAC P  v. Detroit Police Officers A ss ’n. 591 F.Supp. 1194 
(E.D.Mich.1984). Because it perceived that the layoffs reversed the effects 
of the voluntary affirmative action plan, the District Court enjoined the 
City from laying off any police officers in accordance with the seniority 
provisions of the collective bargaining agreement without prior court 
approval, and ordered reinstatement of all officers previously laid off. The 
District Court further found that the DPOA had breached its duty of fair 
representation by not forcefully fighting the layoffs. Id. at 1219.



A-98

Opinion

F. Supp. 1194 (E.D. Mich. 1984). We reversed the injunctive 
orders below and remanded the action for further proceedings.

I

On remand, after conducting proceedings on the motions of 
the parties for summary judgment, the District Court declared 
the issues moot and dismissed the case. The court did not reach 
the defendants’ claim that the budgetary layoffs of the black 
officers were protected under § 703(h) of Title VII because they 
were made pursuant to a bona fide seniority plan2 Plaintiffs have 
now appealed the mootness ruling. We reverse the District 
Court's decision that the case is moot but conclude that the 
defendants are protected from liability because the layoffs 
occurred pursuant to a bona fide seniority plan insulated under 
§ 703(h).

The District Court considered on remand the City's motion 
for entry of judgment on plaintiffs' § 1983 claim, and the Union’s 
motion for summary judgment on plaintiffs’ §§ 1983 and 1981 
claims. The court first granted the Union’s § 1983 motion and 
denied the others, reasoning that the trial requested by plaintiffs 
was not precluded by this Court's determination in NAACP  v. 
Detroit Police Officers Ass'n, 821 F.2d 328, that prior discrimi­
nation in the police department could not be established solely 
from our previous approval of a purely voluntary affirmative 
action plan. Without conducting a trial, the District Judge found 
that “ [ejven though [the District] Court does not ascribe racial 
animus to the Mayor and his administration,” “race was a 
motivating factor in the City’s action to layoff black officers.”

3 Title VII, § 703(h), as set forth in 42 U.S.C. § 2000e-2(h), provides in 
pertinent part:

Notwithstanding any other provision of this subchapter, it shall not be an 
unlawful employment practice for an employer to apply different stan­
dards of compensation, or different terms, conditions, or privileges of 
employment pursuant to a bona fide seniority or merit system . .  . provided 
that such differences are not the result of an intention to discriminate . . . .



A-99

Opinion

NAACP  v. Detroit Police Officers A ss’n, 676 F.Supp. 790, 795 
(E.D.Mich.1988) (citing NAACP  v. Detroit Police Officers 
Ass'n, 591 F.Supp. at 1202). On the plaintiffs’ claim against the 
Union, the District Judge first recognized that we concluded on 
the first appeal that he had found no intentional discrimination or 
other improper motivation in the Union’s reaction to the 
threatened layoffs. But again, without conducting a trial, the 
District Judge, in denying the Union’s motion for summary 
judgment, found that his findings in NAACP  v. Detroit Police 
Officers Ass'n, 591 F.Supp. 1194, “were tantamount to a finding 
of intentional discrimination . . . .” NAACP  v. Detroit Police 
Officers Ass’n, 676 F.Supp. at 797.

After denying defendants’ motions for summary judgment, 
the court ordered briefing on whether plaintiffs’ claims had been 
mooted by events occurring after the injunctive orders had been 
issued.

[1] Because all the officers laid off had been recalled with 
retroactive seniority, he concluded that plaintiffs’ claims against 
the City were moot. This conclusion rested on the District 
Judge’s observation that the Union membership had become 
predominately black, a fact enabling black police officers to 
protect themselves through their voting power and the opportu­
nity to enter Union leadership. It is this ruling that plaintiffs now 
appeal.

In dismissing the case, the District Judge said that even 
though this Court had invalidated his injunctive orders the action 
was moot because “ [ejverything the [District] Court sought to 
accomplish in it original judgem ent. . .  [by the injunction] has 
been accomplished.” NAACP  v. Detroit Police Officers A ss’n, 
685 F.Supp. 1004, 1007 (E.D.Mich.1988). Specifically, the 
District Court reasoned that by 1988 all of the officers laid off in 
1979 and 1980 had been recalled with full seniority rights thus 
leaving no case or controversy between plaintiffs and the City. In 
addition, since completing the recall in 1985, the City had hired 
1,290 new officers. The court also held that since the majority of



A -100

Opinion

the membership at the DPOA was not comprised of blacks and 
other minorities, these minorities had acquired the ability to 
protect themselves through intra-union political action, thus ren­
dering moot the plaintiffs' claim against the DPOA.

This ruling was erroneous. First the fact that the District 
Court has accomplished the goals of its own injunctive order, 
later reversed as having no basis in law, does not render a case 
moot. Second, assuming for the moment that the plaintiffs had a 
viable § 1983 claims against the City or the Union for the 1979- 
80 layoffs, the appropriate remedy would require more than mere 
recall and retroactive seniority. It would include the determina­
tion of other benefits such as backpay and out-of-pocket costs 
incurred by the laid-off police officers. Such an interest has been 
recognized as a “concrete interest in the outcome of litigation.” 
Firefighters Local Union No. 1784 v. Stotts , 467 U.S. 561, 571 
164 S.Ct. 2576, 2584, 81 L.Ed.2d 483 (198-Q) Third, minority 
police officers’ majority membership in the Union does not “with­
out more translate into the ability to protect themselves against 
discriminatory action by the leadership. Rather, their ability to 
protect themselves depends on factors such as the Union’s orga­
nizational structure and could not be evaluated in the abstract 
without further inquiry. In light of these factors, including the 
Supreme Court’s holding in Stotts, we conclude that the contro­
versy was not moot.



A -101

Opinion

U

Our inquiry may not end here, however. The defendants 
moved the District Court for dismissal of the case on alternative 
grounds. Because, as defendants contended in the court below,3 
the plaintiffs’ case is based on a fundamentally erroneous legal 
theory, we conclude that the case must be dismissed.

In their original complaint, plaintiffs claimed that defend­
ants engaged in discriminatory employment practices that vio­
lated the Thirteenth and Fourteenth Amendments to the Consti­
tution, post-Civil War civil rights acts now codified at 42 U.S.C. 
§§ 1981, 1983 and 1985(3), and Titles VI and VII4 of the Civil 
Rights Act of 1964. On this appeal, plaintiffs have preserved 
only their claims under 42 U.S.C. §§ 1981 and 1983. These 
claims are barred by § 703(h) of Title VII.

3 In their motions and supporting briefs, the Union claimed that § 703(h) of 
Title VII protected it from liability. See  DPOA's Brief in Support of 
Motion for Summary Judgment (Section] 703(h) of Title VII. 42 U.S.C. 
2000e-2(h) insulates bona-fide seniority systems from attack through civil 
rights statutes . . . .”). The City raised the issue as well, relying on the 
bona fide seniority plan as legal justification for the layoffs. See  City 
Defendants' Motion for Entry of Judgment (“ [T]he Sixth Circuit deter­
mined that the City Defendants acted lawfully and conditionally in 
making layoffs in 1979 and 1980 pursuant to the bona fide  seniority 
provision . . . ”); Memorandum of Points and Authorities in Support of 
City Defendants' Motion for Entry of Judgment ("[T]he Sixth Circuit's 
opinion ..  . upheld the 1979 and 1980 layoffs . .  . made pursuant to a bona 
fide  seniority provisions, as lawful and constitutional."). This District 
Judge ignored the defendants § 703(h) defense and his ruling on defend­
ants’ motions for judgment failed to discuss the issue.

4 Although plaintiffs now say they did not assert a Title VII claim in this 
case, their complaint belies their assertion:

The violations of law in Counts I, II and III violate the national policy 
declaration against discrimination in employment articulated by Con­
gress in Title VII of the Civil Rights Act of 1964.

Plaintiffs’ Complaint, Count IV.



A -102

Opinion

Title VII is a remedial statute, designed “to assure equality 
of employment opportunities . . .  .” McDonnell Dougals Corp. v. 
Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 
(1973). The Act was designed to bar not only overt employment 
discrimination, “but also practices that are fair in form, but 
discriminatory in operations,” Griggs v. Duke Power Co., 401 
U.S.C.A. 431,91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). “Thus, 
the Court has repeatedly held that a prima facie Title VII 
violation may be established by policies or practices that are 
neutral on their face and in intent but that nonetheless discrimi­
nate in effect against a particular group.” International B'rd o f 
Teamsters v. United States, 431 U.S. 324, 349, 97 S.Ct. 1843, 
1861-62, 52 L.Ed.2d 396 (1977).

The Act's treatment of seniority systems, however, estab­
lishes an exception to liability for employment discrimination 
based on race. From the Teamsters case on, the Supreme Court 
has recognized that were it not for Title VII's § 703(h) exception, 
last-hired, first-fired seniority plans would be invalid under the 
Griggs rationale. Id.; see Lorance v. A T  & T Technologies, 
Inc.— U.S.—, 109 S.Ct.2261, 2265, 104 L.Ed.2d 961 (1989) 
(quoting Trans World Airlines Inc. v. Hardison, 432 U.S. 63, 81, 
97 S.Ct. 2264, 2275, 53 L.Ed.2d 113 (1977)) (“ [S]eniority 
systems . . . are afforded special treatment under Title VII"); see 
also Hardison, 432 U.S. at 79, 97 S.Ct. at 2274 (“Collective 
bargaining . . .  lies at the core of our national labor policy, and 
seniority provisions are universally included in these contracts” ). 
Special treatment for seniority systems strike a balance between 
the interests of those protected against discrimination by Title 
VII and those who work—perhaps for many years—in reliance 
upon the validity of a facially lawful seniority system. Lorance, 
109 S.Ct. at 2265.

[2] The provision that exempts seniority plans from attack 
under Title VII, section 703(h), as set forth in 42 U.S.C. 
§ 2000e-2(h), provides in pertinent part:



A -103

Opinion

Notwithstanding any other provision of this sub­
chapter, it shall not be an unlawful employment practice for 
an employer to apply different standards of compensation, 
or different terms, conditions, or privileges of employment 
pursuant to a bona fide seniority or merit system . . . .

Congress included within the sentence quoted above a pro­
viso that limits to some extent the protection extended to, inter 
alial, “bona fide seniority system[s]’’;5 provided that such differ­
ences are not the result of an intention to discriminate. . . .

Section 703(h) is not an affirmative defense to the conduct 
described as illegal in Title VII. See Lorance, 109 S.Ct. at 2267. 
Rather, it has been regarded as a definitional provision, id., 
which “ ‘delineates which employment practices are illegal and 
thereby prohibited and which are not.’ ” United Air lines, Inc. v. 
Evans, 431 U.S. 553, 559, 97 S.Ct. 1885, 1889-90, 52 L.Ed.2d 
571 (1977) (quoting Franks v. Bowman Transp. Co., 424 U.S. 
747, 758, 96 S.Ct. 1251, 1261, 47 L.Ed.2d 444 (1976)). In 
determining which seniority systems are legal under Title VII,

5 Title VII does not define the term “seniority system," and no comprehen­
sive definition of the phrase emerges from the legislative history of 
§ 703(h), See  110 Cong.Rec. 1518, 5423. 7207, 7213, 7217, 12.723, 
15,893 (1964). The example of a seniority system most frequently cited in 
the congressional debates was one that provided that the “last hired" 
employee would be the “first fired." Id.; see California Brewers A ss’n v. 
Bryant, 444 U.S. 598. 605 n. 10, 100 S.Ct. 814, 819 n. 10. 63 L.Ed.2d 55 
(1980) (requirement under collective bargaining agreement that tempo­
rary employee must work at least 45 weeks in a year before claiming 
benefits attending permanent-employee status is a “seniority system" 
within § 703(h)). In the area of labor relations, “seniority" is a term that 
connotes length of employment. A “seniority system" is a scheme that 
allots to employees ever improving employment rights and benefits as their 
relative lengths of permanent employment increase. Id. The principal 
feature of any and every seniority system is that preferential treatment is 
dispensed on the basis of some measure of time served in employment. Id. 
Given the lengthy legislative history and comprehensive discussions found 
in Supreme Court opinions on the topic, it is clear that the last-hired, first- 
fired provision before us is a “seniority system” within the meaning of 
subsection(h).



A -104

Opinion

that is, which are “bona fide” and thus not precluded by the 
proviso, the Supreme Court has consistently held that under 
subsection (h), a showing of disparate impact is insufficient to 
invalidate a seniority system, even though the result may be to 
perpetuate pre- or post-Act6 discrimination. In the Court’s 
review, “ the unmistakable purpose of § 703(h),” Teamsters, 431 
U.S. at 352, 97 S.Ct. at 1863, was to allow employers and unions 
routinely to apply bona fide seniority systems even though the 
employer’s discriminatory hiring practices may have resulted in 
whites having greater seniority than blacks. See, e.g., Stotts, 467 
U.S. at 587, 104 S.Ct. at 2592 (O'Connor, J., concurring) (“Title 
VII affirmatively protects bona fide seniority systems, including 
those with discriminatory effects on minorities."): American 
Tobacco Co. v. Patterson, 456 U.S. 63, 65, 102 S.Ct. 1534, 1535- 
36, 71 L.Ed.2d 748 (1982) (under § 703(h), discriminatory 
impact alone will not invalidate otherwise rigid system); Hardi­
son, 432 U.S. at 82, 96 S.Ct. at 2276 (“ [AJbsent a discrimina­
tory purpose, the operation of a seniority system cannot be an 
unlawful employment practice even if the system has some dis­
criminatory consequences.”); Teamsters 431 U.S. at 350, 97
S.Ct. at 1862 (although Title VII violation may be established by 
facially neutral practices that freeze prior discrimination, “both 
the literal terms of § 703(h) and the legislative history of Title 
VII demonstrate that Congress considered this very effect of 
many seniority systems and extended a measure of immunity to 
them.”); White v. Colgan Elec. Co., 781 F.2d 1214 (6th Cir. 
1986) (inverse layoff procedure controls even when it retards 
goals of consent decree); see also 110 Cong. Rec. 7207, 7213, 
7217 (1964) (Title VII has no effect on established seniority 
rights).

6 Any doubt over whether § 703(h) protects discriminatory systems applied 
or adopted after the enactment of Title VII was settled in American 
Tobacco Co. v. Patterson 456 U.S. 63. 75-76, 102 S.Ct. 1534, 1540-41,71 
L.Ed.2d 748 (1982) which held that it does. The majority's position in 
American Tobacco was anticipated by the Court in Teamsters, 431 U.S. 
at 348 n. 30, 352, 97 S.Ct. at 1861 n. 30, 1863, and Evans, 431 U.S. at 
558, 97 S.Ct. at 1889.



A-105

Opinion

In order to avoid dismissal, therefore the plaintiffs’ chal­
lenge to a seniority system under Title VII must allege facts 
which if true, would make out a case of discriminatory intent. 
See Lorance, 109 S.Ct. at 2368 (successful claim depends on 
proof of intentionally discriminatory adoption of facially lawful 
system); Pullman-Standard v. Swint, 456 U.S. 273, 289, 102
S.Ct. 1781, 1790, 72 L.Ed.2d 66 (1982) (“Differentials among 
employees that result from a seniority system are not unlawful 
employment practices unless the product of an intent to discrimi­
nate.”); California Brewers A ss’n v. Bryant, 444 U.S. 598, 610- 
11, 100 S.Ct. 814, 821-22, 63 L.Ed.2d (1980) (remanding to 
district court to test whether system was bona fide or whether 
differences in employment conditions it produced resulted from 
purposeful racial discrimination); Evans, 431 U.S. at 560, 97 
S.Ct. at 1890 (“Since respondent does not attack the bona fides 
of [the employer’s] seniority system, and since she makes no 
charge that the system is intentionally designed to discriminate 
because of race . . .  [or] sex ,. . .  § 703(h) [defeats her claim].”).

Ill

[3] Neither Mayor Young, the City, nor the Union 
expected the layoffs to affect white and black officers equally. 
The defendants knew that enforcement of the seniority plan 
would have a discriminatory impact on newly hired black 
officers. This type of discrimination, however, is congressionally 
immunized by § 703(h) and by the decisions of the Supreme 
Court:

Congress was well aware in 1964 that the overall pur­
pose of Title VII, to eliminate discrimination in employ­
ment, inevitably would, on occasion, conflict with the policy 
favoring minimal supervision by courts and other govern­
mental agencies over the substantive terms of collective- 
bargaining agreements. Section 703(h) represents the bal­
ance Congress struck between the two policies, and it is not 
this Court’s function to upset that balance.



A -106

Opinion

American Tobacco. 456 U.S. at 76-77, 102 S.Ct. at 1541-42 
(citation and footnote omitted).

Of course, § 703(h) and its proviso does not immunize all 
seniority systems from attack under the civil rights statutes. It 
refers only to “bona fide” systems. As the Supreme Court has 
stated:

Significant freedom must be afforded employers and 
unions to create differing seniority systems. But that free­
dom must not be allowed to sweep within the ambit of 
§ 703(h) employment rules that depart fundamentally from 
commonly accepted notions concerning the acceptable con­
tours of a seniority system, simply because those rules are 
dubbed “seniority” provisions or have some nexus to an 
arrangement that concededly operates on the basis of senior­
ity. There can be no doubt, for instance, that a threshold 
requirement for entering a seniority track that took the form 
of an educational prerequisite would not be part of a 
“seniority system” within the intendment of § 703(h).

California Brewers Ass'n, 444 U.S. at 608-09, 100 S.Ct. at 821.

Whether last-hired, first-fired seniority provisions are bona 
fide was answered at the legislative hearings on Title VII. See 
110 Cong.Rec. 1518, 5423, 7202, 7213, 7217, 12,723, 15,893 
(1964). During the congressional debate on § 703(h), Senator 
Clark placed in the Congressional Record a Justice Department 
statement, later endorsed by the Supreme Court, which stated:

It is perfectly clear that when a worker is laid off . . .  
because under established seniority rules he is Mow man on 
the totem pole’ he is not being discriminated against because 
of his race. Of course, if the seniority rule itself is discrimi­
natory, it would be unlawful under title VII. If a rule were 
to state that all Negroes must be laid off before any white 
man, such a rule could not serve as the basis for a discharge 
subsequent to the effective date of the title .. . .  But, in the 
ordinary case, assuming that seniority rights were built up



A -107

Opinion

over a period of time during which Negroes were not hired, 
these rights would not be set aside by the taking effect of 
title VII. Employers and labor organizations would simply 
be under a duty not to discriminate against Negroes because 
of their race.

Franks, 424 U.S. at 760 n. 16, 96 S.Ct. at 1262 n. 16 (quoting 
110 Cong.Rec. 7207 (1964)).

Therefore, in analyzing the scope of subsection (h) and its 
proviso in light of the pertinent Supreme Court cases and the 
legislative history of § 703(h), we conclude that in order to 
prevail, a plaintiff must show either that the employer’s practice 
is not a seniority system or part of a seniority system, or that the 
seniority system is not bona fide. A seniority system is not bona 
fide if one of the following criteria is met: 1) that the seniority 
system was adopted or negotiated with a discriminatory motiva­
tion or purpose; or 2) that the seniority system was administered 
in an irregular or arbitrary way with intent to harm members of 
a protected class.

IV

[4] In the instant case, plaintiffs do not claim that the last- 
hired, first-fired provision to which the Union and the City 
agreed in 1967 as part of their first collective bargaining agree­
ment, was not a seniority plan or part of a seniority plan. Nor 
have they at any stage of this litigation challenged the bona fides 
of the plan, Supplemental Brief for Plaintiffs-Appellants at 14 
(“Plaintiffs throughout have not questioned whether the seniority
system was bona fide-----”), or that the plan met any of the
criteria listed above as evidence that a plan is not bona fide. Nor 
do plaintiffs contend that the same plan was re-adopted subse­
quently by Mayor Young, the City, or the Union for the purpose 
of discriminating against blacks, see NAACP  v. Detroit Police 
Officers A ss’n, 591 F.Supp. at 1219, or that its layoff provisions 
were administered in an irregular or arbitrary way in order to 
harm black officers. See id. at 1202; Plaintiffs’ Complaint 51 6, at



A -108

Opinion

22 (failure to modify seniority plan is facially neutral but dis­
criminatory in effect).

Instead, plaintiffs argue only that Mayor Young and the 
City “strictly followed” the provision, and that the Union refused 
to modify the provision in the collective bargaining agreement 
when warned that the clause would require the layoff of minori­
ties recently hired under the City's affirmative action plan. 
Plaintiffs’ Complaint HI 36-37, at 14-15; id. H 1(c), at 27. Their 
claim that the seniority plan, by “ requir[ing] officers with the 
least seniority to be laid off first,” ”perpetuat[ed] the racially 
discriminatory impact of the previous illegal exclusion of minori­
ties from the police force,” id. f  61, at 18; see also id. f  4, at 22, 
describes the type of Title VII discrimination generally prohib­
ited by Griggs specifically immunized according to Supreme 
Court interpretations of § 703(h) discussed above.

Little would be left of Teamsters if the results of the normal 
operation of a concededly bona fide seniority system could estab­
lish racial discrimination. See Teamsters 431 U.S. at 352, 97 
S.Ct. at 1863; are also California Brewers Ass'n, 444 U.S. at 
600, 100 S.Ct. at 816. In such a case the employer would be 
found liable not for present racial discrimination but for comply­
ing with a seniority system. Such a ruling would be plainly 
inconsistent with the dictates of § 703(h), both on its face and as 
interpreted in the decisions of the Supreme Court.

V

On facts similar to those before us, the Supreme Court’s 
decision in Stotts makes the same essential point as the cases 
described above: Section 703(h) will have the effect of preserving 
some prior discrimination—an effect that contracting parties are 
aware of and intend when they enter into such agreements. But 
the congressional purpose in adopting § 703(h) was to give such 
contracts priority over plans which alter seniority through 
racially based layoffs. In Stotts, the City of Memphis had 
adopted an affirmative action plan by consent decree requiring an



A -109

Opinion

increase in the proportion of minority employees in its fire 
department. As in Detroit, budgetary cuts led to layoffs, under 
which many of the black employees who had been hired pursuant 
to the consent decree would have been laid off first. The Court 
held that the District Court lacked the power to enforce a consent 
decree requiring layoffs in conflict with the bona fide seniority 
provision of the collective bargaining agreement. In so doing, the 
Court rejected the argument that

because the City was under a general obligation to use 
its best efforts to increase the proportion of blacks on the 
force, it breached the decree by attempting to effectuate a 
layoff policy reducing the percentage of black employees in 
the Department even though such a policy was mandated by 
the seniority system adopted by the City and the Union.

Stotts, 467 U.S. at 573-74, 104 S.Ct. at 2585. The Court con­
cluded that neither the decree nor the parties contemplated that 
the City would “simply disregard its arrangements with the 
Union.” Id. at 574, 104 S.Ct. at 2585. Because the District 
Court's order enjoining the City from layoffs that would decrease 
black membership in the department conflicted with § 703(h), 
and because the District Court had found that the layoff proposal 
was not adopted with the purpose or intent to discriminate on the 
basis of race, the action of the District Court enjoining the City 
from applying its seniority system in making the layoffs was 
reversible error. Id. at 579-83, 104 S.Ct. at 2588-90.



A -110

Opinion

The seniority provision in this case, which plaintiffs chal­
lenge on the same grounds, must be upheld for the same reasons. 
Neither case involved a claim or finding that the seniority plan 
was adopted or imposed with a discriminatory purpose. Likewise, 
neither the consent decree in Stotts nor the voluntary affirmative 
action plan here provided for or suggested any departure or 
intent to depart from the City’s collective bargaining agreement 
with the Union. NAACP  v. Detroit Police Officers Ass'n, 821 
F.2d at 332-33.

It should be noted that the Supreme Court declined to 
enforce a judicially approved consent decree so as to reverse the 
effects of layoffs under a bona fide seniority plan. Likewise, we 
may not enforce the purely voluntary plan in order to reverse the 
effects of the bona fide seniority plan here. We thus are barred by 
Stotts from interpreting the voluntary affirmative action plan 
before us to require the City to disregard the seniority provisions 
of the collective bargaining agreement, and hold that plaintiffs’ 
claims should have been dismissed below as a matter of law.7

Absent a finding of intentional discrimination under the 
proviso to § 703(h), we may not reverse or enjoin the operation of 
a bona fide seniority plan that Congress intended to validate and

7 Plaintiffs rely on United S la tes  v. Paradise. 480 Li.S. 149. 107 S.Ct. 1053, 
94 L.Ed.2d 203 (1987) (plurality opinion), in which the Court held that a 
one-for-one promotion requirement to redress past and present discrimina­
tion against black state troopers in Alabama withstood strict scrutiny 
analysis under the Fourteenth Amendment. Paradise did not involve 
layoffs under a bona fide seniority plan protected by § 703(h). It thus is 
inapposite in that it fails to test the validity of an inverse seniority layoff 
plan like the one at issue here.

In his plurality opinion in Paradise, Justice Brennan emphasized 
another aspect of the distinction between hiring and promotions and 
layoffs. He reasoned that the one-for-one requirement in Paradise was less 
burdensome than the layoff provision in Wvgant v. Jackson Board o f  
Education. 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986), which 
was invalid because it required the discharge of more senior white employ­
ees in favor of less senior blacks. See Paradise, 480 U.S. at 182-83, 107 
S.Ct. at 1073 (Brennan, J.); id. at 188-89, 107 S.Ct. at 1076 (Powell, J., 
concurring).



A- l l l

Opinion

protect when it passed § 703(h). Congress in so doing acted 
pursuant to its enforcement powers under section 5 of the Four­
teenth Amendment.8 See Fullilove v. Klutznick 448 U.S. 448, 
472-73, 100 S.Ct. 2758, 2771-72, 65 L.Ed.2d 902 (1980) (plural­
ity opinion) (“ [W]e are bound to approach our task with appro­
priate deference to the Congress, a co-equal branch charged by 
the Constitution with the power to ‘provide for the . .  . general 
Welfare of the United States’ and ‘to enforce, by appropriate 
legislation,’ the equal protection guarantees of the Fourteenth 
Amendment.” ) (citations omitted); Katzenbach v. Morgan, 384 
U.S. 641, 651, 86 S.Ct. 1717, 1723-24, 16 L.Ed.2d 828 (1966) 
(“Correctly viewed, § 5 is a positive grant of legislative power 
authorizing Congress to exercise its discretion in determining 
whether and what legislation is needed to secure the guarantees 
of the Fourteenth Amendment.”). No court has held, and plain­
tiffs do not contend, that § 703(h) is unconstitutional. Thus, it 
must be applied to validate and protect the bona fide seniority 
plan at issue in this case and the layoffs and recalls that occurred 
under it.

VI

[5] Although plaintiffs content that the protections granted 
to bona fide seniority systems under § 703(h) apply only to 
claims brought under Title VII, we decline to read Congress’s 
earlier, more general pronouncements in §§ 1981 and 1983 from 
the Civil Rights Act of 1870 to undermine the force of its later 
specific declarations of civil rights policy regarding bona fide 
seniority plans in § 703(h) of the Civil Rights Act of 1964. Basic 
principles of statutory construction dictate this result:

General and special acts may be in pari materia. If so, 
they should be construed together. Where one statute deals 
with a subject in general terms, and another deals with a 
part of the same subject in a more detailed way, the two 
should be harmonized if possible; but if there is any conflict,

8 "The Congress shall have power to enforce, by appropriate legislation, the 
provisions of this article.” U.S. Const, amend. XIV, § 5.



A-112

Opinion

the latter will prevail, regardless of whether it was passed 
prior to the general statute, unless it appears that the legis­
lature intended to make the general act controlling.. .. 
Where the special statute is later it will be regarded as an 
exception to or qualification of the prior general one.. ..

Sutherland Statutory Construction § 51.05, at 499-500 (N. 
Singer ed. 1984) (footnotes omitted). The Supreme Court has 
consistently endorsed this canon of construction. See, e.g.. Brown 
v. General Servs. Admin., 425 U.S. 820, 834, 96 S.Ct. 1961, 
1968-69, 48 L.Ed.2d 402 (1976) (“ In a variety of contexts the 
Court has held that a precisely drawn, detailed statute preempts 
more general remedies,"); Preiser v. Rodriquez, 411 U.S. 475, 
489-90, 93 S.Ct. 1827, 1836-37, 36 L.Ed.2d 439 (1973) 
(although § 1983 by its terms was literally applicable to prison­
ers’ actions, challenges to fact or duration of imprisonment 
appropriately lie only under habeas corpus, the “more specific 
act”).9 Inherent in the Court’s admonition that statutes such as 
those before us be read in pari materia is its recognition that 
Congress passed all three Acts pursuant to its enforcement pow­
ers under § 5 of the Fourteenth Amendment. Title VII, in 
addition to being enacted nearly a century later, devotes 27 pages 
of the United States Code to a detailed treatment of employment 
discrimination. In drafting §§ 1981 and 1983, on the other hand. 
Congress conferred on all citizens, in two paragraphs drafted in 
general terms, equal rights “to make and enforce contracts,” 
(§ 1981) and a private right of action to redress state-sponsored 
deprivations of civil rights (§ 1983).

9 The Court frequently has held that a narrowly tailored employee compen­
sation scheme preempts the more general tort recovery statutes. E.g., 
United S tates v. Demko, 385 U.S. 149, 87 S.Ct 382, 17 L.Ed.2d 258 
(1966) (18 U.S.C. § 4126; Federal Tort Claims Act); Patterson v. United 
States, 359 U.S. 495, 79 S.Ct. 936, 3 L.Ed.2d 971 (1959) (Federal 
Employees’ Compensation Act; Suits in Admiralty Act); Johansen v. 
United States, 343 U.S. 427, 72 S.Ct. 849, 96 L.Ed..l051 (1952) (Federal 
Employees' Compensation Act; Public Vessels Act).



A-113

Opinion

Assuming without deciding that plaintiffs set forth colorable 
claims against the Union under § 1981'° and against the City and 
city officials under § 1983," we decline to endorse plaintiffs’ 
claim that Title VII’s legislative protection of bona fide seniority 
plans can be evaded simply by characterizing an action otherwise 
falling within the parameters of Title Vll as a § 1981 or § 1983 
suit. Congress did not intend that its detailed remedial scheme

10 Plaintiffs contention that the Union’s failure to protect black officers from 
layoffs may not state a claim according to the Supreme Court's most 
recent interpretation of § 1981, which narrowed the statutory breadth of 
the phrase “to make and enforce contracts.” See Patterson v. McLean 
Credit U nion—  U.S.— , 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). There, 
the Court held that “post-formation conduct does not involve the right to 
make a contract, but rather implicates the performance of established 
contract obligations and the conditions of continuing employment, mat­
ters more naturally governed by state contract law and Title VII.” Id. 109 
S.Ct. at 2373. Further, the Court limited the right to enforce contracts to 
“conduct by an employer which impairs an employee's ability to enforce 
through legal process his or her established contract rights.” Id.

Because plaintiffs in our case seek relief under § 1981 for post­
formation conduct by the Union, and do not claim that their right to 
invoke the legal process has been hindered, Patterson may preclude their 
§ 1981 action altogether. In light of our understanding of the impact of 
§ 703(h) on § 1981, however, we need not reach the question of how 
Patterson might affect plaintiffs' § 1981 claim.

" Likewise, plaintiffs, § 1983 claim, grounded in the notion that the inverse 
layoff plan and procedure deprived the laid-off black police officers of 
equal protection of the laws under the Fourteenth Amendment, also may 
be without merit by virtue of previous decisions rendered in this litigation. 
We already have held that the C ity ’s institution of a voluntary affirmative 
action plan, based on the City’s own determination that it had discrimi­
nated in the past, was constitutionally permissible but did not mandate a 
court-ordered remedy tantamount to a permanent contract of employ­
ment. See N AAC P  v. Detroit Police Officers Ass'n, 821 F.2d at 331; 
Bratton II. 712 F.2d at 223; see also Bratton /. 704 F.2d at 902 (Merritt, 
J., dissenting). Accordingly, plaintiffs’ § 1983 claim could well be pre­
cluded by the “law of the case.” Again, however, as with plaintiffs’ § 1981 
claim against the Union, we believe that § 703(h) insulates the City and 
its officials from liability under § 1983, and therefore need not decide 
whether plaintiffs state a valid claim under the latter.



A-114

Opinion

constructed in Title VII be circumvented through pleadings that 
allege other causes of action under general statutes.

Although the Supreme Court has recognized that Congress 
did not, with the passage of the Civil Rights Act of 1964 and its 
1972 amendments, intend to repeal existing statutes in the civil 
rights field, or make Title VII the exclusive remedy in all employ­
ment discrimination contexts,12 see Johnson v. Railway Express 
Agency. Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 
(1975) (timely filing of Title VII action does not toll statute of 
limitations period applicable to § 1981 action brought on same 
facts) and Alexander v. Gardner-Denver Co., 415 U.S. 36, 49, 94 
S.Ct. 1011, 1020, 39 L.Ed.2d 147 (1974) (Title VII action not 
forfeited when plaintiff first pursues arbitration of grievance 
under collective bargaining agreement), it also has declined to 
permit artful pleading to avoid both the requirements and conse­
quences of a Title VII action by any other name. See Patterson v. 
McLean Credit Union.— U.S.— , 109 S.Ct. 2363, 105 L.Ed.2d 
132 (1989) (post-formation conduct more naturally governed by 
state contract law and Title VII than by § 1981); Great Ameri­
can Fed. Sav. & Loan A ss’n v. Novotny, 442 U.S. 366, 375-76, 
99 S.Ct. 2345, 2350-51,60 L.Ed.2d 957 (1979) (section 1985(3), 
which creates no substantive rights, cannot be used to bypass 
administrative process of Title VII); Brown, 425 U.S. at 828-29, 
96 S.Ct. at 1965-66 (congressional intent in 1972 amendments 
was inter alia, to create exclusive judicial scheme for redress of 
federal public employment discrimination, thus distinguishing 
Johnson, which applies only to private employment 
discrimination).

Although the Supreme Court has yet to address directly the 
relationship between § 703(h) and the earlier civil rights statutes, 
our decision to read these overlapping provisions in pari materia 
is reinforced by the decisions of other courts of appeals, See, e.g.,

12 In drafting the Equal Employment Opportunity Act of 1972, which 
extended the protections of Title VII to public employment contexts, the 
Senate rejected an amendment that would have deprived a claimant of 
any right to sue under § 1981. See  118 Cong.Rec. 3371-73 (1972).



A - 115

Opinion

Chance v. Board o f Examiners & Bd. o f Educ., 534 F.2d 993, 
998 (2d Cir. 1976) (“Congress has clearly placed its stamp of 
approval upon seniority systems in 42 U.S.C. § 2000e-2”; “ [t]hat 
plaintiffs herein are proceeding under 42 U.S.C. §§ 1981, 1983 
does not render defendants’ seniority system any more suscepti­
ble to attack.”), cert, denied, 431 U.S. 965, 97 S.Ct. 2920, 53 
L.Ed.2d 1060 (1977); Watkins v. United Steel Workers o f 
America, 516 F.2d 41, 49-50 (5th C ir.1975) (although § 1981 
prohibits some employment practices not unlawful under Title 
VII, provisions of collective bargaining agreement are valid 
under § 703(h) and do not violate § 1981); Pettway v. American 
Cast Iron Pipe Co., 576 F.2d 1 157, 1 191-92 n. 37 (5th Cir. 1978) 
(“ [T]he protection [s] accorded bona fide seniority systems by 
section 703(h) apply whether suit is brought under Title VII or 
section 1981.” ), cert, denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 
L.Ed.2d 74 (1979); Whiting v. Jackson State Univ., 616 F.2d 
116, 122 n. 3 (5th C ir.1980) (“No chameleon-like change in the 
nature of the relief is experienced simply because it is sought 
under sister provisions in the federal statutes.”); Waters v. Wis­
consin Steel Works, 502 F.2d 1309, 1320 n. 4(7th Cir. 1974) 
(“Having passed scrutiny under .. . Title VII, the employment 
seniority system utilized by Wisconsin Steel is not violative of 42 
U.S.C. § 1981”), cert, denied, 425 U.S. 997, 96 S.Ct. 2214, 48 
L.Ed.2d 823 (1976); Freeman v. Motor Convoy, Inc., 700 F.2d 
1339, 1348-49 (1 1th C ir.1983) (close relationship between Title 
VII and § 1981 leads to conclusion that § 703(h) applies to § 
1981 claims); Larkin v. Pullman-Standard Div., Pullman, Inc., 
854 F.2d 1549, 1575 n. 41 (1 1th C ir.1988) (immunity created by 
§ 703(h) extends to § 1981 claims).

No case in our Court has previously examined the § 703(h) 
issue presented here. We have, however, interpreted other specific 
provisions of Title VII as limitations upon a § 1983 cause of 
action. See Day v. Wayne County Bd. o f Auditors, 749 F.2d 
1199 (6th Cir. 1984). It would be anomalous, we said, to permit 
plaintiffs to bypass the administrative procedures of Title VII 
simply by proceeding under § 1983. Id. at 1204. We reserved



A-116

Opinion

ruling on the relationship between § 1981 and Title VII, how­
ever. Although Day suggests that Title VII and § 1981 are not 
mutually exclusive remedies in general, it does not discuss 
whether § 703(h) may protect bona fide seniority plans attacked 
under other civil rights statutes that pre-date Title VII.

VII
The plaintiffs neither state nor offer any facts or claim in 

their pleadings or in evidentiary material offered on summary 
judgment on the basis of which, if true, a federal court could hold 
that the seniority system at issue is barred by § 703(h) of Title 
VII. Plaintiffs’ theory of liability is without merit. Section 
§ 703(h) governs and protects the seniority-based layoffs by 
Mayor Young, the City, and the Union under the bona fide 
seniority plan negotiated as part of the collective bargaining 
agreement between the City and the Union.

The District Court’s erroneous judgment that the cause is 
moot is vacated and set aside.

The case is remanded to the District Court with instructions 
to dismiss the complaint, as supplemented by additional factual 
allegations and evidentiary material in motions and other docu­
ments in the record, for failure to state a claim under Rules 12(b) 
and 56 of the Federal Rules of Civil Procedure.13

13 Rule 12(b) states in pertinent part:

If, on a motion asserting the defense numbered (6) to dismiss for failure 
of the pleading to state a claim upon which relief can be granted, matters 
outside the pleading are presented to and not excluded by the court, the 
motion shall be treated as one for summary judgment and disposed of as 
provided in Rule 56 . . .  .

Fed.R.Civ.P. 12(b).

Rule 56 states in pertinent part:

The judgment sought shall be rendered forthwith if the pleadings, 
depositions, answers to interrogatories, and admissions on file, together 
with the affidavits, if any, show 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.

Fed.R.Civ.P. 56(c)



A -117

No. 88-1902
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

N.A.A.C.P., DETROIT BRANCH, )
Plaintiff-Appellant, j

THE GUARDIANS, INC., ET AL„ )
Plaintiffs )

) O R D E R
V' )

DETROIT POLICE OFFICERS )
ASSOCIATION, ET AL„ )

Defendants-Appellees )
____________________________________________ )

BEFORE: MERRITT. Chief Judge; KENNEDY, Circuit 
Judge; and TODD, United States District Judge. 

The Court having received a petition for rehearing en banc, 
and the petition having been circulated not only to the original 
panel members but also to all other active judges of this Court, 
and no judge of this Court having requested a vote on the 
suggestion for rehearing en banc, the petition for rehearing has 
been referred to the original hearing panel.

The panel has further reviewed the petition for rehearing 
and concludes that the issues raised in the petition were fully 
considered upon the original submission and decision of the case. 
Accordingly, the petition is denied.

E N T E R E D  BY O R D E R  OF T H E  C O U R T

Leonard Green, Clerk

*Hon. James D. Todd sitting by designation from the Western 
District of Tennessee



f