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Finch v. City of Indianapolis
Citations: 886 F. Supp. 2d 945; 2012 WL 3294959; 2012 U.S. Dist. LEXIS 112701Docket: No. 1:08-cv-00432-DML-RLY
Court: District Court, S.D. Indiana; August 10, 2012; Federal District Court
Plaintiffs Joseph W. Finch, David E. Hensley, and Peter W. Mungovan, police officers from the Indianapolis Police Department (IPD) and its successor, the Indianapolis Metropolitan Police Department (IMPD), allege race discrimination in promotions and retaliation for filing discrimination charges under Title VII of the Civil Rights Act, 42 U.S.C. 1981, and the Fourteenth Amendment's equal protection clause via 42 U.S.C. 1983. The case arises from the 2006 promotion of eleven officers to captain, which plaintiffs claim they were denied due to their Caucasian race. Both parties filed cross-motions for summary judgment, with defendants seeking dismissal of all claims and plaintiffs targeting the City of Indianapolis for violations of Title VII and section 1983. The court notes that the plaintiffs did not adequately address several defendants' arguments about the viability of certain claims against them, allowing the court to dismiss those claims preliminarily. The court determines that all defendants except the City are entitled to summary judgment on Title VII claims because only "employers" are liable under Title VII. Although the City acknowledges its role as the plaintiffs' employer, the plaintiffs fail to substantiate claims against the Merit Board and its members, leading to their dismissal from the case. The court emphasizes that liability under Title VII cannot be imposed on entities that do not qualify as employers, thereby dismissing claims against the Merit Board as duplicative. The court grants summary judgment to all defendants except the City of Indianapolis concerning the plaintiffs' Title VII race discrimination and retaliation claims. All defendants are also granted summary judgment on the plaintiffs' section 1981 claims due to the plaintiffs' failure to counter the defendants' arguments regarding these claims, effectively waiving their right to contest the summary judgment. The court notes that under 42 U.S.C. 1981, race discrimination in employment is prohibited, and the plaintiffs did not address the merits of their section 1981 claims in their briefs. Additionally, the court finds that the plaintiffs' claims under section 1983 for violating Title VII are not valid, as section 1983 does not create substantive rights but serves only to vindicate existing federal rights. The court emphasizes that Title VII claims must proceed against the employer as an entity and cannot be pursued under section 1983. Consequently, the court grants summary judgment to all defendants on both the section 1981 claims and the section 1983 claims related to Title VII violations. The Merit Board and the individual defendants, when sued in their official capacities, are granted summary judgment on the plaintiffs' equal protection claims. These claims are deemed redundant as they duplicate the claim against the City, leading to their dismissal. Official capacity claims are essentially claims against the entity represented by the officials and are properly dismissed when the entity itself is also a defendant. The court will now address claims requiring more complex factual and legal analysis. Summary judgment is applicable when there is no genuine dispute regarding material facts, and the movant is entitled to judgment as a matter of law. A "material fact" influences the outcome of the case, while a genuine dispute arises when sufficient evidence exists for a jury to favor the nonmoving party. The party carrying the burden of proof cannot rely solely on pleadings; they must provide specific facts demonstrating a genuine issue that necessitates a trial. Disputes concerning irrelevant facts do not prevent summary judgment, and mere doubts about material facts are insufficient to defeat a motion for summary judgment. The court interprets evidence and draws reasonable inferences in favor of the nonmoving party. In instances of cross-motions for summary judgment, evidence is construed in favor of the party opposing the specific motion under consideration. If there are genuine doubts and a reasonable fact-finder could favor the opposing party, summary judgment is not appropriate. The section notes that the facts presented are undisputed, allowing for the determination of cross-motions for summary judgment regarding the plaintiffs' Title VII claims against the City. The resolution of equal protection claims, including qualified immunity and punitive damages, will require additional factual analysis. Additionally, it references the establishment of the Indianapolis Metropolitan Police Department (IMPD) in 2005 through General Ordinance No. 110, which consolidated the Indianapolis Police Department and the Marion County Sheriff's Department. Michael T. Spears served as the Chief of the Indianapolis Police Department (IPD), while Frank Anderson was the elected Sheriff of the Sheriff's Department. An Ordinance mandated that starting January 1, 2006, both police departments were to coordinate their financial and operational functions through the Indianapolis Metropolitan Police Department (IMPD), which would begin law enforcement duties for the City on January 1, 2007. Following this transition, all IPD officers and county sheriff deputies would become members of IMPD effective after December 31, 2006. Merit promotion lists for the separate departments expired on January 1, 2006, requiring joint promotional processes for all merit ranks before January 1, 2007. A 'Transition Authority' was established to oversee the consolidation, comprising the Sheriff, the Mayor, and the City-County Council President. Additionally, a transition advisory committee and a steering committee were formed to manage consolidation issues and provide recommendations. The 2006 promotion process highlighted differences in merit ranks between the IPD and the Sheriff's Department; specifically, the rank of captain was a merit rank in IPD and an appointed rank in the Sheriff's Department. A joint promotional process was created for officers from both departments to compete for captain promotions, which included written tests, oral interviews, and evaluations of qualifications such as education and military service. Fifty-two lieutenants applied for promotion, leading to the creation of an eligibility list ranked by overall scores. Promotions were governed by Section 253-207 of the City's Code, which assigned the Chief of IPD the responsibility for promotions, contingent upon approval from a five-member civilian merit board. The Chief was to promote candidates based on their promotion scores and qualifications, ensuring that selections were made without regard to political affiliations. Chief Michael T. Spears of the Indianapolis Police Department (IPD) recommended eleven officers for promotion to the rank of captain based on anticipated personnel needs, presenting these recommendations during a December 14, 2006, IPD Merit Board meeting and subsequently at a Transition Authority meeting on December 19, 2006. The recommendations included candidates ranked one through seven on the eligibility list, all of whom were white males, along with four additional candidates chosen out of rank order. Notably, candidates eight, ten, and eleven were African American, selected in part due to a consent decree aimed at addressing racial discrimination within the police department. This consent decree, established in 1978, was interpreted by some as allowing promotions to be made based on race, a view deemed erroneous in relation to the 2006 promotions. The plaintiffs, ranked eighth through tenth, would have been promoted had Spears adhered to rank order. The Merit Board approved Spears’s recommendations by a 3-2 vote, with the Transition Authority ratifying these decisions. Remaining issues for the court's summary judgment evaluation include the plaintiffs' Title VII discrimination and retaliation claims against the City, section 1983 claims against the City and individual defendants for Fourteenth Amendment violations, and the plaintiffs' request for punitive damages. The plaintiffs are entitled to summary judgment on their Title VII race discrimination claims, as the City acknowledges that promotion decisions made by Chief Spears were based on race, promoting three African American candidates over plaintiffs Hensley, Finch, and Mungovan. The City defends its actions by citing a Consent Decree that it claims allowed for race-based promotions, arguing it acted within a 'safe harbor' from discrimination claims. However, the court rejects this defense, reaffirming that the Consent Decree explicitly required promotions without regard to race. The historical context of the 1978 Consent Decree is noted, indicating it was based on evidence of discriminatory impact rather than an admission of prior intentional discrimination. Statistical data from the 1970 U.S. census showed a significant disparity in the racial composition of the police force compared to the local population, further supporting the court's findings against the City's rationale. Testing results reveal a significant disparity in promotion outcomes for black officers compared to white officers. Between 1972 and 1975, 66% of black officers failed promotion tests to sergeant, while 33% of white officers failed. During this period, 95% of the sergeant promotions (108 out of 114) were awarded to white officers, with only 5% (six promotions) going to black officers. For promotions from sergeant to lieutenant in the same timeframe, 63% of black officers failed the tests, versus 44% of white officers. Only one black officer was promoted to lieutenant out of 35 total promotions, representing 2.86% of the total. The Consent Decree delineates separate guidelines for recruitment and hiring versus promotions. Section IV mandates the City to implement affirmative recruitment measures to address historical hiring disparities affecting black individuals, targeting a goal of at least 25% black representation in future training classes until the demographic makeup of black officers reflects that of the broader workforce in Marion County. This 25% quota could be renegotiated upward if significant progress toward achieving this goal was not made, but there is no indication that it was ever revised. Conversely, Section IX of the Consent Decree governs promotions, requiring the City to address past adverse promotion practices without applying race or color considerations in promotion decisions. The goal is for black officers to be promoted in percentages representative of their ranks, which is expected to occur naturally as barriers to promotion are eliminated and as recruitment efforts increase the number of black officers. The framework outlined in the Consent Decree is crucial to addressing promotion disparities and is central to the case. Section IX outlines a comprehensive plan aimed at addressing the historical disparities in promotion practices affecting black individuals within the Police and Fire Departments. **Goals:** 1. Defendants commit to achieving a long-term goal of promoting black individuals to the ranks of Sergeant, Lieutenant, and Captain in the Police Department (and certain ranks in the Fire Department) to reflect their representation in the ranks from which promotions are traditionally made. This effort is to be supported by increased recruitment and hiring of black personnel. 2. To ensure equitable promotions, no promotional certifications from examinations conducted before February 5, 1978, shall be utilized for promotions to Sergeant, Lieutenant, and Captain, due to their potential adverse impact on black candidates. **Periodic Review:** Promotion procedures will undergo regular reviews to eliminate race or color discrimination. Documentation of these procedures and any revisions will be accessible to relevant personnel within both departments and other stakeholders, including the Department of Justice and plaintiffs' counsel. **Affirmative Action:** 1. Promotions will adhere to standards and criteria applied without racial bias. 2. The Jacobs Division of Planning Research Corporation has been engaged to analyze and enhance the selection process for promotions and to develop a promotional examination in compliance with EEOC and FEA testing guidelines. 3. Regular counseling will be provided to officers seeking promotion, detailing necessary skills and experience for advancement. 4. Defendants are required to inform all sworn personnel about available training opportunities and the promotion application process through postings at least two weeks prior to application deadlines. 5. Written notifications will be sent to eligible personnel regarding promotion examination dates and application deadlines. 6. Officers passed over for promotions may request written explanations for why lower-ranked officers were selected over them. This section emphasizes the necessity of transparency, equitable treatment, and proactive measures to foster diversity in leadership positions within the departments. Interim testing allows Defendants to utilize any promotional selection device, provided results align with established goals. However, devices causing adverse effects on black candidates cannot be reused without proper validation per federal guidelines. The Consent Decree's provisions regarding promotions were previously interpreted by the court and the Seventh Circuit. Defendants argued that the Decree necessitated considering race in promotions, claiming compliance shielded them from liability. The court rejected this, clarifying that the Decree expressly prohibits racial considerations in promotions. The Seventh Circuit affirmed this, stating that the Decree does not permit race-based remedial actions for promotions and prohibits "race-norming." The court evaluated statistical evidence, comparing the percentage of eligible African American officers to those in sergeant ranks. In January 1993, 23% of eligible officers were African American, but only 16% of sergeants were, indicating a failure to achieve the racial balance required by the Consent Decree. The court determined that the City did not violate the standard established in Johnson by considering race and gender in its 1993 promotions, thereby granting judgment in favor of the City regarding the plaintiffs' Title VII claims. The City argued that two prior decisions, known as Black, justify its race-conscious promotion decisions under a Consent Decree. However, the court found that those decisions did not modify or address a specific provision of the Consent Decree that mandates promotions be based solely on relevant standards and criteria, explicitly stating that they should be applied without regard to race or color. This provision, Section IX.C.1, was not discussed in the Black decisions, leading the court to conclude that the City cannot use Black as a justification for race-based promotions. The court also noted that the language in Section IX.C.1 was overlooked by both parties in their arguments, leading to its absence in the court's considerations. The defendants' reliance on the DOJ's past acquiescence to race-based promotions was deemed irrelevant, as it does not alter the Consent Decree's language or the court's findings. Defendants claim that the Department of Justice (DOJ) accepted a view allowing the City to implement affirmative action promotions based on race under the Consent Decree. However, the court finds no legal grounds to interpret the Consent Decree contrary to its explicit terms, regardless of any alleged DOJ acquiescence. The Consent Decree, a court order, could only be amended through a court order, which did not occur until August 2008, long after the 2006 promotions in question. The court emphasizes that the Consent Decree does not require race consideration in promotions; in fact, it mandates that promotions within the Police Department must be made without regard to race or color. This applies equally to "reverse" discrimination against Caucasians and discrimination against any race, rejecting the City’s unsupported argument that the decree's language applies only to African Americans. Consequently, the City is found liable for race discrimination under Title VII due to its admitted practices affecting plaintiffs Finch, Mungovan, and Hensley, with remedies to be determined at trial. Regarding retaliation claims under Title VII, the court denies the City's motion for summary judgment on Finch's claim while granting it for Hensley and Mungovan due to their failure to provide factual support for their claims. The City argues that the plaintiffs did not include these claims in their EEOC charges, a point the court will consider specifically for Finch's retaliation claim. Hensley and Mungovan's claims lack sufficient basis to meet the exhaustion requirement. Defendants are granted summary judgment regarding the Title VII retaliation claims of Hensley and Mungovan. Plaintiff Finch claims retaliation after filing a January 2007 EEOC charge related to his non-promotion in December 2006, citing transfers to less authoritative positions and denial of benefits, including a new police car. Title VII requires administrative exhaustion, permitting court claims only for those included in the EEOC charge or closely related to it. The Seventh Circuit distinguishes between retaliatory actions occurring before and after the EEOC charge. Claims of retaliation following an EEOC charge do not necessitate a new charge. This stance aims to prevent unnecessary procedural barriers that could discourage employees from pursuing retaliation claims, as established in cases like McKenzie v. Illinois Dep’t of Transportation. The City argues that this precedent is negated by the Supreme Court’s National Railroad Passenger Corp. v. Morgan decision; however, National Railroad addresses a different issue concerning statutes of limitations and does not explicitly overrule McKenzie, which remains binding unless the Seventh Circuit decides otherwise. National Railroad examined the timeliness of filing an EEOC charge and whether employees can pursue claims for conduct occurring before the charge was filed but outside the statutory limitations period. Under Title VII, an EEOC charge must be filed within 180 days (or 300 days in dual-filing states like Indiana) of the alleged unlawful employment practice. The Court clarified that the limitations period is unambiguous, stating that each discrete act of discrimination or retaliation must have a charge filed within the specified timeframe; failure to do so results in loss of recovery for that act. The Court rejected the continuing-violation theory for most claims, except hostile environment claims, indicating that past discrimination cannot be included unless it is part of timely filed allegations. The case differs from McKenzie, which addressed whether a second EEOC charge is necessary for retaliation claims stemming from an initial charge's filing. The Supreme Court's ruling does not alter the principle that related claims can be pursued even if not specifically mentioned in the charge, nor does it undermine McKenzie’s rationale that requiring a second charge could deter employees from filing due to fear of retaliation. The Tenth Circuit interprets National Railroad as necessitating a separate EEOC charge for each act related to a Title VII claim, including retaliation. However, other circuits have ruled that National Railroad does not eliminate the McKenzie exception allowing for claims related to post-charge retaliation without a new charge, permitting claims where the initial EEOC charge indicated some retaliatory conduct. This divergence among circuits highlights differing interpretations of the requirements for administrative exhaustion in retaliation claims. The Seventh Circuit has not explicitly reconciled its McKenzie rule with the Supreme Court’s findings in National Railroad regarding statute of limitations, yet it has endorsed McKenzie in subsequent rulings, indicating it remains valid. In Horton v. Jackson County, the court reiterated that retaliation complaints to the EEOC need not be filed separately from the underlying discrimination claims. In Troutt v. City of Lawrence, a district judge found that the McKenzie rule is compatible with National Railroad, allowing certain retaliation claims to bypass the statute of limitations typically applied to EEOC filings. Consequently, the court denied the City’s motion for summary judgment on plaintiff Finch's retaliation claims. Regarding equal protection claims, the plaintiffs have a right to summary judgment against some defendants, while others are entitled to summary judgment, and factual disputes prevent summary judgment for additional defendants. The plaintiffs allege violations of 42 U.S.C. § 1983 due to race-based denials of promotions to captain. Individual defendants assert qualified immunity and argue against punitive damages, stating that Section 1983 requires proof of intentional discrimination by individuals acting under color of law, without respondeat superior liability. The individual defendants do not dispute their roles as officials in the promotional decisions but claim a lack of knowledge regarding any race-based motives behind Chief Spears's recommendations, which they followed. The City can be held liable under § 1983 if a municipal policy leads to rights violations. The City does not dispute that the promotion decisions meet the Monell standard, but additional facts must be examined regarding the equal protection claims and defenses. The court identifies undisputed facts relevant to the plaintiffs’ section 1983 equal protection claims and highlights those requiring resolution by a jury. The decision-making process involved Chief Michael T. Spears, the Merit Board, and the Transition Authority regarding the December 2006 promotions to captain. Chief Spears, appointed in 2005 and previously serving as Assistant Chief since 1998, had never read the Consent Decree but was aware that prior chiefs utilized it to promote diversity. He understood that the Consent Decree suggested a target of 25% African American representation in promotions and hiring. Spears believed that if sufficient African American candidates were available in rank order, deviations from that order would be unnecessary. However, if the representation fell short of 25%, he would seek additional candidates to meet that goal. Spears’ initial promotion recommendations in 2005 followed the rank order of the eligibility list without a strong focus on the 25% ratio, as there were fewer promotions. The 2006 promotions were complicated by the merger of the Indianapolis Police Department (IPD) and the Sheriff’s Department, leading to an excess of sergeants and lieutenants, and a new structure for the rank of captain. As a result, Spears determined that eleven promotions to captain should occur, although he was uncertain about the Consent Decree's applicability to these promotions within the newly formed Indianapolis Metropolitan Police Department (IMPD). Chief Spears communicated his promotion recommendations for eleven captain positions to City Legal via email on December 11, 2006, prior to meetings of the Merit Board and Transition Authority. He sought confirmation that his proposals complied with applicable laws and the Consent Decree, detailing that three recommendations were "consent decree" promotions and two aimed to ensure proportional representation of former sheriff's deputies. Despite not having received prior advice regarding the Consent Decree's requirements for promotions, he calculated that his recommendations included 27.27% African American candidates and former sheriff's officers. After receiving no initial feedback, he followed up with City Legal on the evening of December 13, 2006, and received responses on December 14, 2006, confirming that his recommendations were in line with the Consent Decree. Suzannah Overholt and Kevin Murray both indicated that Kobi Wright, head of the City’s legal department, approved the promotions. Chief Spears also recalled an in-person confirmation from Mr. Wright affirming that the promotions were necessary under the Consent Decree. The legal advice he received, primarily from Wright, was limited to these communications, with no further evidence provided by the defendants about Wright's analysis or opinions. Chief Spears subsequently prepared documentation to present his recommendations to the Merit Board and Transition Authority. Chief Spears recommended eleven promotions to captain to address current and anticipated vacancies, citing candidates based on either strict rank order from the eligibility list or out-of-rank order to comply with a consent decree and achieve proportionality between the Indianapolis Police Department (IPD) and the Sheriff's Department. Specifically, three African American candidates were recommended out-of-rank order to adhere to the "25% rule" stipulated in the consent decree, despite Chief Spears' preference for rank order promotions. While Chief Spears utilized an outline for his presentation to the Merit Board, it was not provided to the board members. Instead, they received a document ranking all 52 candidates with details on scores, race, and department affiliation. They also received individual packets for the recommended candidates, including photos and personnel histories. Chief Spears could not recall if he labeled any out-of-order recommendations as "consent decree" promotions or discussed the decree during the meeting. Meeting minutes did not detail his presentation or the rationale behind the 3-2 vote favoring his recommendations, indicating discussions likely occurred in a private executive session. Board member Michael Morken, who dissented against the out-of-order recommendations, recalled that Chief Spears did reference the consent decree as the rationale for these promotions, a practice he noted had been common in prior years. Other board members did not corroborate this recollection in their depositions. Chief Spears communicated his out-of-rank order recommendations for promotions based on the Consent Decree during a public meeting with the Transition Authority on December 19, 2006, attended by Mayor Peterson, Sheriff Anderson, and City-County Council President Gray. The meeting, which was recorded, revealed that Chief Spears did not discuss the specific rankings of the candidates or make any mention of the Consent Decree. His presentation, where he expressed pride in the eleven officers approved by the Merit Board, was largely ceremonial. Testimony indicates that Mayor Peterson was unaware of any race discrimination evidence in the promotion process, did not see Chief Spears's prior email detailing his recommendations, and had no discussions about the promotions before the meeting. Similarly, Monroe Gray stated he received no information on the promotions outside of the meeting itself. Although Chief Spears claimed to have discussed his recommendations and the Consent Decree with Sheriff Anderson prior to the meetings, Anderson did not recall such discussions. There is conflicting testimony regarding the knowledge of the Merit Board members about the racial implications of the recommendations. While Merit Board member Michael Morken suggested that race and the Consent Decree influenced Chief Spears's decisions, other members contested this. This discrepancy creates a factual issue that must be resolved by a jury, particularly concerning whether the Merit Board members understood that Chief Spears's recommendations of three African American candidates deviated from the established ranking due to their race. A jury may infer that the board was aware that certain promotion recommendations were out of rank order, as indicated by two members who voted only for candidates ranked 1-7 and opposed those ranked lower. Chief Spears likely communicated to the board that the out-of-order recommendations for candidates ranked 12th, 17th, and 26th were based on the Consent Decree, which aimed to address racial disparities. Despite the Merit Board defendants' lack of recollection during depositions, a jury must assess if defendants Burks, Maxwell, and Smith violated the plaintiffs' equal protection rights if they are not protected by qualified immunity. Mayor Peterson and Monroe Gray of the Transition Authority are entitled to summary judgment on the plaintiffs’ section 1983 claims, while Sheriff Anderson faces factual questions preventing summary judgment. The members of the Transition Authority may have received the eligibility list ranking all 52 candidates, including their race and departmental affiliation. However, this list does not clarify the reasons behind the promotion recommendations. The plaintiffs argue that the promotion of African American officers over higher-ranked Caucasians implies racial bias; however, it is unreasonable to assume that promotions were solely based on race, especially given that a white officer was also recommended out of rank order. Additionally, Chief Spears’s comments regarding the lack of promotions for African American officers do not support an inference that the Transition Authority members understood race to be the determining factor in the recommendations. Promoting racial diversity is a legitimate government interest, and the plaintiffs must demonstrate that the Transition Authority members received information outside official meetings indicating that three of the recommendations were based on race as part of the Consent Decree. Evidence presented by the plaintiffs suggests that Sheriff Anderson may have been aware that Chief Spears recommended African American candidates based on their race, as opposed to Caucasian officers with higher rankings. However, there is no similar evidence against defendants Peterson or Gray. The plaintiffs failed to counter Peterson's testimony and did not provide any witness testimony to indicate he was involved in discussions about the promotion process or race considerations prior to the Transition Authority meeting. While the plaintiffs argue that Jerry McCory, a liaison in the Mayor's office, may have informed Peterson about Chief Spears's email regarding promotions, there is no concrete evidence to support this claim. Speculation alone is insufficient to challenge Peterson's testimony or suggest he knew race was a factor in the recommendations. Consequently, Peterson is entitled to summary judgment regarding the claim of intentional racial discrimination. Similarly, there is no evidence that Gray had knowledge of any information outside the Transition Authority meeting that would suggest he knew race influenced Spears's recommendations. Thus, Gray is also granted summary judgment on the racial discrimination claim. Disputed facts concerning Sheriff Anderson's awareness of the Consent Decree and the affirmative action rationale for the recommendations remain, necessitating a jury's determination, unless Anderson is granted qualified immunity. The plaintiffs, however, are entitled to summary judgment against the City and Chief Spears regarding their equal protection claims under section 1983, as both parties acknowledge that the promotion recommendations were made with consideration of race. Race-conscious employment decisions by the state face a presumption of unconstitutionality and must meet strict scrutiny standards to comply with equal protection requirements. The City and Chief Spears bear the burden of demonstrating that race was used appropriately in promotion decisions. To satisfy strict scrutiny, any racial classification must serve a compelling state interest and be narrowly tailored to achieve that interest. The Seventh Circuit recognizes racial diversity in law enforcement as a compelling government interest, especially in diverse urban environments. However, the government must employ narrowly tailored means to address specific, compelling needs; a promotion system without identifiable standards fails constitutional requirements. In this case, the City did not provide evidence to support its claims of meeting strict scrutiny standards. The City's defense, citing compliance with a Consent Decree, is legally insufficient because the Decree does not mandate promotions based on race. Instead, it requires that promotions to merit ranks be made using relevant, race-neutral standards. The Consent Decree outlines specific mechanisms for promoting racial diversity, including recruiting a sufficient number of African Americans for training classes and ensuring race-neutral testing and promotion processes. This framework is intended to foster natural growth in racial diversity within the merit ranks over time, as African Americans enter the police force and compete for promotions on an equal basis. The City of Indianapolis was mandated by a Consent Decree to refrain from using race as a criterion in promotion decisions. The promotions in question did not comply with this decree, and the City's justification for race-conscious promotions did not meet the strict scrutiny standard required by law. Even without the decree, the City’s actions would still fail to satisfy strict scrutiny, which necessitates carefully designed measures to remedy past discrimination. The equal protection clause prohibits racial preferences, regardless of the racial group affected. The Supreme Court allows for remedial discrimination only if there is evidence of past unlawful discrimination favoring whites and if the remedial measures are thoughtfully crafted to minimize harm to white candidates. In 2006, the City failed to assess whether racial discrimination was a necessary response to past discrimination against African Americans in the police department. Since the inception of the decree in 1978, the City has implemented race-neutral practices to ensure equal opportunities for all officers. There was no evidence presented that past discriminatory practices persisted to justify race-conscious promotions. Chief Spears applied a racial quota of 25% for promotions without analyzing the necessity or impact of this measure on white candidates. The City cited statistics about the racial composition of the Indianapolis Police Department (IPD) as justification for these promotions, referencing a goal related to the labor force demographics. However, this justification contradicted the Consent Decree's prohibition on race-based promotions and did not align with its requirements, which aimed for race-neutral promotion reflecting the percentage of African Americans in the relevant promotion pool, not the total labor force. The City’s longstanding belief that the Consent Decree allowed for some degree of race-based promotion did not have consistent legal support, and the decree's explicit prohibitions were clear. Consequently, the plaintiffs are entitled to a judgment affirming that their equal protection rights under the Fourteenth Amendment were violated by the City's actions. Chief Spears and the Merit Board defendants, including Sheriff Anderson, are not entitled to qualified immunity regarding the plaintiffs' equal protection claims. The court assesses the defendants' qualified immunity defense, revealing that Chief Spears's race-based promotion decisions are not justifiable under strict scrutiny, which opens him to liability unless qualified immunity applies. For defendants Smith, Maxwell, Burks, and Anderson, a jury must evaluate whether they knowingly discriminated against the plaintiffs, depending on whether they can claim qualified immunity. In contrast, defendants Peterson and Gray are not subject to qualified immunity issues since the jury cannot find evidence of their knowing discrimination. The individual defendants argue qualified immunity on two grounds: first, that the Consent Decree mandated race-based promotions, and second, that Chief Spears received legal advice indicating his recommendations were permissible under the decree. However, the law was clearly established by 2006 that race-based employment decisions violating strict scrutiny standards infringe the equal protection clause. Qualified immunity is determined as a legal question, protecting officials if a reasonable person could believe their actions were lawful given the established law and their knowledge at that time. The court examines whether a constitutional right was violated and if that right was clearly established. Evidence shows that the promotion decisions were based solely on Chief Spears's race-based recommendations, which were influenced by the need to meet Consent Decree goals. It is evident that had he adhered to rank order, the plaintiffs would have been recommended for promotion. Importantly, precedents confirm that race-based employment decisions are generally unconstitutional unless they meet strict scrutiny requirements, a principle established well before the 2006 promotion decisions. The Consent Decree explicitly prohibits race-based promotion decisions, and the court has determined that the defendants’ actions do not meet the strict scrutiny standard required for such decisions. The individual defendants claim entitlement to qualified immunity by citing the case of Black, but the court finds that Black does not alter the Consent Decree's language or its prohibition against race-based promotions. The Black decisions do not justify race-based promotions to achieve racial parity within the police department and are not rooted in the equal protection clause. The court emphasizes that the argument for qualified immunity based on compliance with the Consent Decree fails as a matter of law. Additionally, Chief Spears' reliance on legal advice does not grant immunity to him or the other defendants. While legal advice can sometimes provide a defense against liability, it must be based on extraordinary circumstances, which are not present here. The court notes that mere reliance on legal advice is common in government and does not automatically establish immunity. Factors that could indicate extraordinary circumstances include the clarity and specificity of the advice, whether complete information was provided, the qualifications of the attorney, and the timing of the disputed action in relation to the legal advice received. Overall, the court rejects the defendants' claims for immunity based on both the Consent Decree and the reliance on legal advice. In Davis v. Zirkelbach, the Seventh Circuit outlined that police officers could reasonably feel uncertain about legal proceedings under unusual circumstances, prompting them to seek legal advice. The advice provided must be thorough and consider all relevant facts. In contrast, the individual defendants in the current case rely on an email chain from Chief Spears to argue for extraordinary circumstances that would support an advice of counsel defense. Chief Spears sought legal feedback on promotion recommendations, stating his intent to comply with applicable law and the Consent Decree. He received confirmation from city lawyer Kobi Wright and Sheriff Anderson’s attorney Kevin Murray that the recommendations were compliant. However, this situation lacks the extraordinary elements seen in Davis. Chief Spears and the defendants should have known that race discrimination is unconstitutional and requires strict scrutiny. The advice received did not reflect a thoughtful legal analysis, as there was no evidence of thorough review or understanding of the Consent Decree, which explicitly prohibits promotions based on race. Additionally, the presence of a prior request from the Merit Board for legal analysis of the Consent Decree indicates that more comprehensive advice was necessary but was not provided. Overall, the reliance on legal advice in this case does not meet the standard required for qualified immunity. Mr. Wright's statement that "everything looks fine" lacks the legal depth to provide immunity against race discrimination claims, particularly since police promotion decision-makers were uncertain about the Consent Decree and sought a detailed legal analysis. There is no evidence that Mr. Wright offered any substantive legal opinion or advice, making reliance on counsel insufficient for immunity. The Seventh Circuit has differentiated between routine legal advice and extraordinary legal guidance that could justify qualified immunity; in this case, the court finds no evidence to classify Mr. Wright's advice as extraordinary. Consequently, the court does not need to consider whether Chief Spears's advice could protect other defendants from liability, as they failed to demonstrate any communication with legal counsel regarding promotion recommendations. The court concludes that none of the defendants qualify for qualified immunity. Regarding punitive damages, the court examines whether a jury could hold individual defendants liable under section 1983 for conduct driven by malicious intent or reckless indifference toward the constitutional rights of others. The evidence, viewed favorably to the plaintiffs, suggests that defendants acted with reckless disregard for the plaintiffs’ equal protection rights. Punitive damages in section 1983 cases are reserved for conduct that is evidently wrongful, not just legally questionable. There is substantial evidence showing that the Indianapolis Police Department (IPD) and its Merit Board had a longstanding belief that the Consent Decree allowed or required race-based promotions. Merit Board member Mike Morken noted that this understanding existed since at least 1988, with some members believing it recommended such promotions. Furthermore, the City's attorneys publicly supported race-based promotions during Merit Board meetings in 2004 and 2006, asserting that such actions were lawful under the Consent Decree. The Consent Decree's institutional belief in permissible race discrimination was mistakenly reinforced by prior court decisions in the Black case, which supported race-based promotions for white officers under the guise of affirmative action. The Indianapolis Police Department (IPD) derived its belief that such promotions were lawful from the Consent Decree, which aimed to promote Black officers to achieve representative percentages in the ranks of Sergeant, Lieutenant, and Captain. However, critical language in the Consent Decree stated that these promotions should occur without regard to race, a stipulation overlooked in prior litigation and discussions. Evidence indicates that until the current litigation, neither the police officers nor the court had adequately considered this crucial aspect. Arguments against race-based promotions primarily focused on whether the department had met its racial diversity goals, rather than an outright prohibition on considering race. Given this widespread understanding, it would be unreasonable for a jury to conclude that Chief Spears's promotion recommendations were driven by malicious intent or a reckless disregard for the plaintiffs’ rights. For the plaintiffs to succeed, they would need to demonstrate that Chief Spears communicated to the Merit Board and Sheriff Anderson that the Consent Decree justified his promotion selections, which is the only way to show that race was considered in those decisions. There is no substantial evidence to support claims of animus against the defendants or justification for punitive damages. While plaintiffs argue that Chief Spears may have received secret instructions to make racially discriminatory recommendations, asserting that he used a follow-up email as a cover, these claims lack a solid evidentiary basis. They contend that Chief Spears did not genuinely believe the Consent Decree permitted race-based promotions and used it as a pretext for the December 2006 promotions, suggesting his inquiries for legal approval were also part of this alleged deception. The court determined that the plaintiffs' claim for punitive damages was unsupported by evidence and contradicted by established facts. The theory relied on an alleged conspiracy involving race-based promotions justified by a Consent Decree, which was not initiated by Chief Spears or Sheriff Anderson but had been in practice for decades. The presence of City lawyers during key meetings indicated that any violations of constitutional rights were not apparent, undermining the basis for punitive damages against the individual defendants. The court granted summary judgment to the individual defendants on the punitive damages claim, emphasizing that such damages require clear evidence of constitutional violations by government officials. In the summary judgment ruling, the court granted in part and denied in part both the defendants' and plaintiffs' motions. Specifically, it granted summary judgment in favor of the plaintiffs against the City of Indianapolis on Title VII race discrimination claims, while favoring all other defendants. The determination of damages against the City will proceed to trial. For Title VII retaliation claims, summary judgment favored all defendants for plaintiffs Hensley and Mungovan, but allowed plaintiff Finch's claim against the City to go to trial. Summary judgment was also granted in favor of all defendants concerning the plaintiffs' race discrimination claims under 42 U.S.C. § 1981 and the claims under 42 U.S.C. § 1983 related to Title VII statutory rights. The court ruled on the plaintiffs' claims under 42 U.S.C. 1983 regarding constitutional violations of equal protection under the Fourteenth Amendment as follows: 1. Summary judgment is granted for the plaintiffs against the City of Indianapolis. 2. Summary judgment is granted against the plaintiffs and in favor of the Merit Board and individual defendants in their official capacities due to redundancy of claims against the City. 3. Summary judgment is granted for the plaintiffs against Michael T. Spears in his individual capacity. 4. Summary judgment is granted against the plaintiffs and in favor of defendants Bart Peterson and Monroe Gray Jr. in their individual capacities. 5. Summary judgment is denied for claims against defendants Frank Anderson, Cordelia L. Burks, Mary Maxwell, and Joseph L. Smith in their individual capacities, meaning these claims will proceed to trial, including damages but excluding punitive damages. 6. Summary judgment is granted in favor of all individual defendants concerning the plaintiffs' request for punitive damages. 7. The court finds that none of the individual defendants is entitled to qualified immunity, and the determination of damages against the City and defendant Spears (excluding punitive damages) will go to trial. Additionally, the plaintiffs waived any claims against the Merit Board and its members regarding Title VII due to failure to develop the argument. The court notes that the Ordinance creating the Indianapolis Metropolitan Police Department (IMPD) abolished the previous merit boards, transferring their duties to a new seven-member board effective January 1, 2007. The City referenced a second Consent Decree addressing gender discrimination in the police and fire departments, clarifying that it is not an issue in this case and specifying that remedial actions under this decree are not deemed discriminatory under certain statutes related to local government funding. The court also notes the repeal of the State and Local Fiscal Assistance Act of 1972 in the mid-1980s and discusses the applicability of collateral estoppel and the law of the case doctrine based on earlier rulings in related cases. The court declines to address the City’s new arguments supporting its defense of the Consent Decree, as these arguments are rejected on their merits without the need for collateral estoppel or the law of the case doctrine. The terminology surrounding race has evolved, with "black" being used in the Consent Decree as it was the common term at the time, though "African American" is now preferred. Historically, police officers in Marion County were required to reside within City limits, and between 1972 and 1978, the Indianapolis Police Department (IPD) had approximately 1,100 sworn personnel annually, with black officers numbering between 99 and 126, while about 90% were white. The Consent Decree also addressed hiring and promotions in the Indianapolis Fire Department and mandated that the City not discriminate in employment based on race. Previous court rulings indicated that the plaintiffs did not claim unlawful promotion failures under the Fourteenth Amendment's equal protection clause, thus the court did not apply strict scrutiny to the City's actions. The court clarified that the Black decisions do not require the City to make race-conscious employment decisions. Additionally, recent legal precedents, such as Hill v. Ross and Ricci v. DeStefano, challenge the validity of previous interpretations of race in employment decisions, particularly concerning the use of race as a determinative factor. The Consent Decree's allowance for race as a promotional factor raises doubts about the legality of the 2006 promotions under Title VII. According to Ricci, race-based decisions require a strong evidentiary basis to avoid disparate impact liability. The City did not address the Black decisions until defendants' summary judgment stage, claiming it would be unjust for the court to deem Black erroneous and impose retroactive damages. A party cannot withhold relevant facts and later argue for immunity based on those facts. Individual defendants overlook that Black did not assess the 1993 promotions against strict scrutiny, which is essential for equal protection claims and could expose them to damages. The City has not substantiated that the DOJ was aware of its practice of promoting African American officers over higher-ranked Caucasian officers. The City suggests that DOJ's knowledge could be inferred from periodic reports, including promotion lists, but merely knowing a promoted officer's race does not imply the promotion was racially motivated. Promotions do not have to follow eligibility list order, and the Chief of Police and Merit Board have discretion in selecting qualified candidates, provided their decisions are not discriminatory. The City contends that DOJ never contested its interpretation of the Consent Decree in Black, yet it has not demonstrated that DOJ was aware of its arguments. The City introduced its claim regarding McKenzie being overruled by National Railroad only in a reply brief and cited a Tenth Circuit decision without acknowledging contrary rulings, including Troutt v. City of Lawrence. The court recognizes that some of Finch’s retaliation claims may challenge the foundations of McKenzie, particularly regarding retaliation linked to his EEOC discrimination charge related to the 2006 promotion failure. The document addresses issues surrounding the alleged retaliatory conduct against Officer Finch following his EEOC charge. The City argues that Finch must establish a closer connection between his charge and any subsequent retaliatory acts, as indicated by the National Railroad case, which complicates the argument for excusing his failure to file additional EEOC charges. The City also notes that much of the alleged retaliation occurred years after Finch’s initial charge and after he received promotions to captain and major, suggesting that the actions were more bothersome than retaliatory. The court has focused its analysis on the administrative exhaustion defense, leaving merit issues unresolved due to insufficient development by the City and lack of response opportunity for Finch. Additionally, the document references a widely-held belief within the police department regarding the 1978 Consent Decree, which purportedly influenced promotions of African American officers based on race to achieve racial diversity. Evidence includes complaints from Officer Wheeler, a white officer who claimed he was denied promotions due to his race. The Merit Board heard Wheeler’s grievances, during which City representatives acknowledged that the Consent Decree allowed for race-based promotions. Chief Barker expressed a commitment to promoting departmental diversity, while Merit Board member Michael Morken stated a preference for promotions based strictly on rank order, though he recognized that the Consent Decree suggested race-based promotions as a goal rather than a mandate. Confusion existed regarding the requirements of the Consent Decree and the City’s progress toward diversity goals, particularly concerning race's influence on promotion decisions. A motion was passed at the board meeting on October 21, 2004, requesting City Legal and department staff to analyze the Consent Decree's requirements and assess the City’s compliance. No evidence was provided that this analysis was completed. Ms. Overholt's affidavit claimed she conducted a detailed review of Chief Spears’s recommendations but revealed that her sole advice was relaying Mr. Wright's opinion that everything was acceptable. Chief Spears misrepresented the use of this document, stating it was only presented to the Transition Authority, despite his testimony indicating it was also used in his presentation to the Merit Board. New Merit Board member Mr. Smith did not recall any influence from the Consent Decree on promotion recommendations. Ms. Maxwell, a Board member from 2000 to 2006, acknowledged that the Consent Decree was sometimes considered but primarily relied on Chief Spears’s recommendations for promotions, trusting his judgment. Ms. Burks, a Board member from 2001 or 2002, also followed the Chief's recommendations in voting for the 2006 promotions. Chief Spears did not recall making any comments regarding the racial basis for his out-of-rank promotion recommendations during his deposition. Although race could have been a factor, he did not specifically discuss it. The Consent Decree mandates that a chief must provide a rationale when an officer ranked higher is passed over for promotion, and this officer is entitled to a written explanation. The Transition Authority confirmed the promotional lists certified by the Merit Board, which ranked 52 captain candidates and included their racial backgrounds and affiliations. While the plaintiffs argue that a jury could conclude the promotional list was shared with Transition Authority members, this assertion is speculative and contradicted by evidence. The plaintiffs inaccurately claimed that Chief Spears did not provide non-race-based reasons for promoting African American officers; he did not detail any reasons for specific recommendations. They also misrepresented that he exclusively introduced African American candidates to the Transition Authority, whereas he introduced all eleven candidates approved by the Merit Board. The Consent Decree includes a provision for a 25% quota for African Americans in training classes until their representation within the Indianapolis Police Department (IPD) reflects that of Marion County. Chief Spears interpreted this to mean that 25% of promotions should go to African Americans, differing from the views of other city officials who stated that promotions should not be based on the general labor force demographics. Notably, a city attorney had previously indicated that the decree allowed for diversity in promotions, while another clarified that hiring and promotion metrics are distinct. Officials are expected to be aware of relevant Supreme Court and Seventh Circuit precedents, but the "Black decisions" cited are not controlling and did not influence the defendants' actions, with no evidence suggesting their awareness of these decisions.