John R. Patterson Roland J. Broussard Elmer Stevenson, on Their Own Behalf and on Behalf of All Other Persons Similarly Situated, and Equal Employment Opportunity Commission v. Newspaper & Mail Deliverers' Union of New York & Vicinity
Docket: 1480
Court: Court of Appeals for the Second Circuit; December 19, 1993; Federal Appellate Court
The case involves an appeal by the Equal Employment Opportunity Commission (EEOC) and a class of minority employees against the Newspaper Mail Deliverers' Union of New York concerning the modification of a consent decree from 1974. The decree established a comprehensive affirmative action program for newspaper deliverers in New York City and included anti-discrimination provisions, enforced by an appointed Administrator. The District Court for the Southern District of New York vacated the entire consent decree in 1992, leading to this appeal.
The plaintiffs argue that the District Court applied the incorrect standard when modifying the decree, with the NAACP Legal Defense Fund contending that none of the decree should have been vacated and the EEOC asserting that the anti-discrimination provisions were improperly vacated, without taking a position on the affirmative action program.
The Second Circuit Court concluded that the District Court applied the correct standard and was justified in vacating the decree, as its essential purpose had been fulfilled. The appeal was therefore affirmed. The background highlights that the Union historically restricted membership based on lineage until 1952, after which it established a new membership system that categorized workers based on job status and hiring priority.
Group II allowed deliverers to earn additional income from employers outside their primary employment. Major employers would source additional daily workers from a Group III list, which included individuals who reported for work a minimum number of times each week, regardless of available work. Union membership was restricted to those in regular positions, and minority individuals faced discouragement from joining Group III. Although contracts stipulated that group lists would be used to fill regular vacancies, various abuses hindered movement from Group III to regular positions. The Union permitted employees to transfer to the Group I list of different employers and sometimes granted Group I status to relatives of Union members.
In 1973, the Equal Employment Opportunity Commission (EEOC) and a group of minority deliverers filed separate Title VII actions against the Union and employers, arguing that the 1952 system, while ostensibly neutral, perpetuated discrimination against minorities. These cases were consolidated and tried before District Judge Pierce, who approved a settlement agreement before issuing a ruling. The judgment mandated the Union and employers to implement the agreement and allowed the District Court to retain enforcement jurisdiction.
Judge Pierce's findings revealed a persistent pattern of discrimination against minorities, who made up 30% of the eligible workforce but only 2% of deliverers, with even lower representation among regular position holders and Group I members. The decision was upheld despite objections from White Group III deliverers claiming unfair advantages for minorities.
The settlement agreement, consisting of five sections, acknowledged a statistical imbalance in minority representation without admitting any legal violation. Its purpose was to rectify this imbalance and its effects. Section A prohibited discriminatory actions by both the Union and employers. Section B established the role of an Administrator to address complaints of disparate treatment, with a term of an initial five years, subject to extension by the District Court.
Section C of the agreement establishes an affirmative action program aimed at achieving a minimum of 25% minority employment in the industry by June 1, 1979, described as an objective rather than a strict quota. To facilitate this, provisions include promoting all minorities in Group III to Group I, filling regular positions by seniority from Group I, and ensuring that for each regular position filled, one Group III deliverer ascends to Group I, alternating between senior minority and nonminority employees. Additionally, Group III vacancies are to be filled with a ratio of three minorities for every two nonminorities, with specific variations for certain employers and special rules imposed for one-time scenarios. Section D mandates employer assistance for qualified applicants, regulates job applications, requires compliance reporting, allows backpay for certain class members, and maintains District Court jurisdiction. It also includes a provision indicating that conflicting collective bargaining agreements may be reimplemented post-termination unless otherwise directed by the Court.
By 1979, minority employment only reached 13.3%, prompting an extension of the Administrator’s office for five years. In 1984, the office was extended indefinitely. A motion to terminate the order in 1985 was based on claims of meeting the 25% goal, but in 1987, Judge Conner reaffirmed that the target was industry-wide. By November 1988, sufficient evidence led to suspending specific affirmative action program ratios pending further evaluation. A report in May 1991 indicated an industry-wide minority employment figure of 28.53%, allowing for a hearing on vacating the order. The private plaintiffs opposed any termination, while the EEOC sought to retain certain provisions of the agreement. In a ruling on July 8, 1992, Judge Conner determined the entire order could be vacated, citing a modern flexible standard for consent decree termination once primary objectives are met. He dismissed the plaintiffs' claims for continued enforcement until all discrimination was eradicated and denied their motion to amend the judgment, though allowing processing of discrimination claims filed before the ruling.
The EEOC argues that the District Court improperly applied a flexible standard for modifying a consent decree rather than the more stringent standard from *United States v. Swift, Co.*, which requires a clear showing of a "grievous wrong" due to unforeseen conditions. The *Swift* case established that modification of consent decrees is only warranted when the dangers prompting the decree have significantly diminished. However, the Supreme Court's later decisions, including *United States v. United Shoe Machinery Corp.* and *New York State Association for Retarded Children, Inc. v. Carey*, suggest a more flexible approach, particularly in institutional reform cases, allowing for modifications based on changed circumstances without the stringent *Swift* threshold.
Two key Supreme Court cases, *Board of Education of Oklahoma City Public Schools v. Dowell* and *Rufo v. Inmates of Suffolk County Jail*, have reinforced this flexible standard, emphasizing that changes in factual conditions or law can justify modifications to decrees. The District Court in the current case concurred with this more flexible approach, noting that the public's interest in protecting fundamental rights warranted its application, despite the EEOC’s contention that *Swift* should govern. The District Court’s decision represents a significant shift, being one of the first to adopt this flexible standard outside of cases involving governmental entities. This shift also reflects concerns about federalism and democratic principles highlighted in the recent Supreme Court rulings, while *New York State Association* offers a broader rationale for flexibility based on the complexities of implementing institutional reforms.
The "grievous wrong" language from the Swift case is not meant to prevent all modifications of consent decrees. Subsequent decisions, including Dowell and Still's Pharmacy, indicate that Rufo represents a significant change in the standard for modifying consent judgments, applicable beyond just institutional reform cases. Different circuits have varied interpretations of the modification standard, with the Seventh Circuit asserting that Rufo effectively relaxed the Swift standard for all equitable cases. Although some circuits acknowledge a relaxed standard in institutional reform litigation, not all have addressed its application in public issues unrelated to governmental entities.
The flexible standard established in Dowell and Rufo should apply broadly, not limited to governmental institutions. Consent decrees aiming for substantial changes affecting many individuals, particularly in vindicating public rights, warrant a flexible approach to modification or termination based on changed circumstances or achievement of the decree's goals. While it is crucial to uphold agreements and avoid careless modifications, it is equally important to encourage constructive settlements to minimize lengthy litigation.
This balance creates tension: plaintiffs benefit from the certainty of enforcement without modifications, while defendants are motivated to settle by the possibility of modifications as circumstances evolve. Courts must navigate this tension carefully, leveraging their equitable powers to provide remedies and terminate authority when necessary. Thus, applying a flexible standard for determining whether to dissolve a decree is appropriate.
In reviewing the District Court's decision to vacate the decree, the focus is primarily on the affirmative action provisions, which only the LDF advocates for retention. The LDF acknowledges that minority representation has reached 25 percent and agrees with the Court's assessment that this figure is likely to increase due to the impending retirement of many White employees. Although it would have been appropriate to suspend the fixed quotas had the 25 percent goal been achieved by 1979, the LDF argues that the failure to meet this deadline necessitates setting a new goal based on the percentage of minorities in the qualified workforce and retaining hiring quotas until this new goal is met. The LDF cites census data showing minority representation rose from 42 percent in 1980 to over 50 percent in 1990. It also references Youngblood v. Dalzell, where the Sixth Circuit reversed the termination of a consent decree due to unmet goals, implying that a similar approach should apply here.
The original decree aims to remedy a "statistical imbalance" without specifying that it seeks total parity. The 25 percent goal is stated as an absolute target, though the decree allows for flexibility in time limits. The Court concluded that it was not required to raise the 25 percent goal and found it appropriate to dissolve the quotas for promotions and listings. Ultimately, the District Court determined that the affirmative action provisions could be eliminated, and it had the authority to vacate the entire decree since its primary objective had been achieved. The ruling is affirmed, recognizing the court's discretion in modifying the decree as necessary to address hiring practices effectively.
