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Vivenzio v. City of Syracuse, No. 08-2436 (2d Cir. July 1, 2010); Lowe v. Hamilton County Dept. of Job and Family Services, No. 09-3432 (6th Cir. July 1, 2010)

| Jun 30, 2010 | Daily Developments in EEO Law |

The Second Circuit vacates summary judgment, and remands for further development, a challenge by two frustrated white applicants for fire-fighter positions to a 1980 consent decree that required the city fire department ranks to mirror the percentage of African-Americans in the city’s labor pool. The Sixth Circuit affirms denial of Eleventh Amendment immunity in an ADA discrimination and retaliation case to an agency that was indemnified by the state, but otherwise operated by the county.

Vivenzio v. City of Syracuse, No. 08-2436 (2d Cir. July 1, 2010): In 1978, the fire department of Syracuse was made up of 1% African-Americans.  Suits were filed both by the city itself (to obtain relief from state-law hiring rules that supposedly inhibited minority hiring) and the U.S. Justice Department, leading to the 1980 consent decree that mandated measures aimed at bringing black hiring in line with local labor pool.  By 2004, 16.5% of city firefighters were African-American; the overall black population was about one-quarter.

In 2005, several white applicants who sat for the 2002 exam challenged (under Title VII, § 1981, Equal Protection and state law) the use of a dual hiring list — one general and one specifically for African-American applicants — which enabled blacks scoring lower on a civil service exam to be hired past higher-scoring whites. Both sides filed for summary judgment, and the district court granted summary judgment to the city defendants, holding that consent decree remained in effect, the plaintiffs had not challenged its legality and the racial hiring goals in the original order had not yet been met. The district court then certified the order for immediate appeal under Fed. R. Civ. P. 54(d).

The Second Circuit vacates.  It holds that the city did not establish, as a matter of law, that continued adherence to the 30-year old decree was a legitimate and non-discriminatory reason for using dual hiring lists. The panel opinion, signed by Judge Kearse, concludes that there are material facts in dispute about the reasonableness of relying in the decree:

“Given the long-term goal stated in the consent decree of having African American employees in [the Syracuse Fire Department] ‘approximat[e African Americans’] representation within the [City’s] labor force,’ the racial makeup of the City’s labor pool is a material ingredient in the issue of whether the City’s hiring practices could be justified by its reliance on the Consent Decree. Yet the City did not adduce any evidence as to the percentage of African Americans in its labor pool. Indeed, the City’s Mayor and the Chief of SFD, in their deposition testimony described in Part I.B above, seemed unaware that the labor pool was the Consent Decree’s stated fram of reference. The City having made no showing as to the racial makeup of its labor force at the time of the hiring decisions challenged here, its claim of reliance on the Consent Decree was entirely inadequate to show a legitimate nondiscriminatory reason for the challenged hiring decisions.”

The panel holds that without evidence as to the relevant minority labor pool, neither side had established their entitlement to judgment. It observes that on remand, “we assume that the record will be augmented to permit resolution of the issues of . . . the racial makeup of the City’s labor force in 2004 and 2005, and whether the goals of the Consent Decree have been met.”  It foresees, without directing, the filing of renewed motions for summary judgment after the record is augmented.

Two judges on the panel (Judge Livingston and visiting U.S. District Court Judge Vitaliano), issue a brief concurrence. The separate opinion adopts the court’s opinion in full, but expressly disaffirms the district court’s dictum that the plaintiffs had not preserved a challenge to the constitutionality of the consent decree:

“I believe that the plaintiffs do make such a challenge, though I reach no conclusion as to whether plaintiffs adequately presented it before the district court. I also conclude that the merits of such a challenge, if sufficiently argued, need not be addressed on this appeal. . . . Should it become necessary on remand, however, I believe that the district court should address the plaintiffs’ constitutional claims and determine whether they were sufficiently argued as to be preserved, and whether any failure to preserve them should nevertheless be excused.”

Lowe v. Hamilton County Dept. of Job and Family Services, No. 09-3432 (6th Cir. July 1, 2010): The plaintiff’s various age, race and disability claims before the district court were winnowed down, on summary judgment, to just disability (based on depression and ADHD) and retaliation claims. As to those, the district court held that there was no Eleventh Amendment immunity for the department, that the plaintiff met his charge-filing requirements, and that there were genuine issues of material fact on the merits. The defendant took a collateral-order appeal of the denial of immunity.

The Sixth Circuit affirms.  After declining to accept the merits issues under pendent appellate jurisdiction, the panel focuses on whether the department constituted an arm of the state, or was simply a political sub division that enjoyed no immunity under the Eleventh Amendment.  The panel, in a majority decision, rejects the suggestion that there was immunity simply because the state might ultimately indemnify the department:

“The state’s potential legal liability for a judgment against the defendant ‘is the foremost factor’ to consider in our sovereign immunity analysis. Ernst, 427 F.3d at 359. In analyzing this factor, we focus our inquiry on ‘the state treasury’s potential legal liability for the judgment, not whether the state treasury will pay for the judgment in that case.’ Id. (citing Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 431 (1997)). HCJFS concedes that it will pay directly any judgment awarded to Lowe. However, it contends that the state will reimburse it for any such damages because Lowe’s primary job duties were to help administer state and federal benefits programs and her wages were funded largely through a system of state and federal reimbursement. HCJFS argues that this factor weighs in its favor based on this reimbursement theory. This argument is unavailing in two regards. First, it misconstrues the relevant inquiry, which is whether the state is potentially legally liable for a judgment against the entity seeking immunity, not whether the state or another party is obligated to reimburse or indemnify the entity for damages incurred. Second, even if we were to accept HCJFS’s reimbursement theory as determinative, HCJFS has not met its burden to show that the state necessarily will reimburse it for damages awarded to Lowe. Thus, this factor weighs against a finding that HCJFS is an arm of the state.”

The panel rejects, in the analysis, the defendant’s argument that two provisions of state law (Ohio Rev. Code §§ 5101.16 and 5101.161) required the state to cover any damage award because the plaintiff was engaged in work subsidized through the state treasury. The panel concludes that the other factors that might support a finding of immunity were also lacking:  the relevant state statutes designated the department as a local entity, controlled by the county board of commissioner; the leadership of the department was appointed by the county board of commissioners, and the entity’s functions (to issue federal benefits) were carried out locally.

Concurring, Judge Suhrheinich evaluates the state-indemnification issue and finds the Ohio code to be a closer call than the majority, but ultimately joins the majority on the limited ground that “HCJFS failed to meet its burden of proof regarding whether the damages would be reimbursable as an administrative cost. HCJFS has not put forward sufficient evidence that the state would reimburse any litigation costs, let alone the costs that would be imposed if the plaintiff prevails in this case. By narrowly disposing of this case on the issue of what constitutes an administrative cost, this court could have avoided the unnecessary risk of sweeping too broadly with its interpretation of Doe, § 5101.161, and § 5101.16.”

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