Smith et al v. Consolidated City of Jacksonville et al

Filing 100

ORDER AS TO 3:12-cv-451-J-32MCR, granting to extent stated (28) NAACP and related parties' Motion to Intervene in DOJ case (intervenors to file complaint in intervention by 5/2/2013); directing parties to file amended proposed case schedule by 5 /2/2013;AS TO 3:12-cv-491-J-32TEM, denying (13) Union's motion to dismiss EEOC case; denying (19) EEOC's Motion to Consolidate Cases; staying EEOC case and directing Clerk to administratively close that file; AS TO 3:11-cv-345-J-32MCR, gran ting in part and denying in part (75) Smith plaintiffs' motion to Consolidate Cases; denying (95) City's motion to dismiss; denying (96) Union's motion to dismiss in case; granting (95) City's alternative motion to stay to extent stated. Signed by Judge Timothy J. Corrigan on 3/30/2013.(SRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

RUFUS SMITH, et al.,
Plaintiffs,
vs.

Case No. 3:11-cv-345-J-32MCR

CONSOLIDATED CITY OF JACKSONVILLE,
JACKSONVILLE ASSOCIATION OF
FIREFIGHTERS, LOCAL 122, IAFF,
Defendants.
______________________________________
UNITED STATES OF AMERICA,
Plaintiff,
vs.

Case No. 3:12-cv-451-J-32MCR

CONSOLIDATED CITY OF JACKSONVILLE,
JACKSONVILLE ASSOCIATION OF
FIREFIGHTERS, LOCAL 122, IAFF,
Defendants.

UNITED STATES EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
vs.

Case No. 3:12-cv-491-J-32TEM

JACKSONVILLE ASSOCIATION OF
FIREFIGHTERS, LOCAL 122, IAFF,
Defendants.

ORDER
A number of African-American and Native-American firefighters, the Department of
Justice, and the Equal Employment Opportunity Commission, have all filed lawsuits to stop
what they allege to be a racially discriminatory process for promoting firefighters in the City
of Jacksonville (other lawsuits are pending before the undersigned with regard to the City’s
hiring of African-American firefighters1). Both the City and the Jacksonville Association of
Firefighters, Local 122, International Association of Fire Fighters (“the Union”), have been
named as defendants or identified as having a role in the allegedly discriminatory promotion
process. Also, the NAACP, the Jacksonville Brotherhood of Firefighters, and a number of
additional African-American firefighters seek to intervene in one of the cases. The parties
have filed various motions which require the Court to determine an appropriate process to
move these cases forward. The Court held a joint hearing on these issues on October 24,
2012, the record of which is incorporated by reference, and the parties submitted additional
filings following the hearing.2

1

See Coffey v. Braddy, 3:71-cv-44-J-32TEM; NAACP v. City of Jacksonville, 3:13-cv-161J-32MCR; see also, Hopkins v. City of Jacksonville, 3:07-cv-147-J-32MCR (relating to the
failure to promote one specific firefighter).
2

The hearing transcript has been filed in all three cases. See Doc. 89 in Smith v.City of
Jacksonville, Case No. 3:11-cv-345-J-32MCR (“the Smith suit”); Doc. 42 in United States v.
City of Jacksonville, Case No. 3:12-cv-451-J-32MCR (“the DOJ suit”); Doc. 27 in United
States Equal Employment Opportunity Commission v. Jacksonville Association of
Firefighters, Local 122, IAFF, Case No. 3:12-cv-491-J-32TEM (“the EEOC suit”). In the
Smith suit, the parties’ relevant filings from before and after the hearing include Docs. 75,
76, 77, 83, 84, 92, 94, 95, 96, 98, 99; Docs. 93 & 97, requesting leave for extensions or
additional briefing, are granted and the relevant filings may remain of record. From the DOJ
suit, the relevant filings are Docs. 1, 21, 22, 23, 24, 26, 27, 28, 34, 35, 39, 40, 44, 45, 47, 50,
51. From the EEOC suit, the relevant filings are Docs. 1, 13, 14, 18, 19, 21, 22, 24, 25, 30,
2

I.

The Three Lawsuits

In the first of the three suits filed (3:11-cv-345, now proceeding on the fourth amended
complaint), Rufus Smith and 26 other African-American and Native-American firefighters are
suing the City and the Union for racial discrimination in the City’s promotion process, a
process that is largely required by the terms of the City’s collective bargaining agreement
with the Union. The Smith plaintiffs, who have unsuccessfully sought promotions to the
ranks of Engineer, Lieutenant (Suppression), Captain (Suppression), Captain (Rescue),
District Chief (Suppression), and District Chief (Rescue), have sued the City for violations
of their rights to Equal Protection under the United States and Florida Constitutions (Counts
I and IX); they have sued the Union for “race discrimination in contract and interference with
civil rights under 42 U.S.C. § 1981" (Count VII); and they have sued both the City and the
Union for disparate treatment under Title VII (Counts II and V) and Florida law (Counts X and
XII), disparate impact under Title VII (Counts III and VI) and Florida law (Counts XI and XIII),
and for conspiracy to deprive the plaintiffs of their civil rights in violation of 42 U.S.C. §§ 1985
and 1343(a) (Counts IV and VIII). The Smith plaintiffs also seek a declaratory judgment
which would void the promotion provisions of the collective bargaining agreement as being
in violation of the City’s charter and Florida law (Count XIV).

In the second suit filed

(3:12-cv-451), the DOJ claims the City used a promotion process in certain years that
resulted in a disparate impact upon black firefighters who sought promotions to the ranks of
District Chief (Suppression), Captain (Suppression), Lieutenant (Suppression), and

35.
3

Engineer, and that the City continues to pursue policies and practices in its promotion
process that discriminate. The Department of Justice claims these practices are in violation
of Section 707 of Title VII and seeks back pay for the affected firefighters and an Order
enjoining the City from engaging in discriminatory employment practices against blacks in
the referenced fire department ranks. Because the promotion process at issue is embodied
in the City’s collective bargaining agreement with the Union, the Union is affected by the
outcome of the DOJ suit and the DOJ has therefore named the Union as a Rule 19(a)
defendant.3
A few days after the DOJ filed suit, the third suit in this series was filed by the EEOC
(3:12-cv-491), naming only the Union as a defendant and seeking damages (both
compensatory and punitive) under Title VII for the Union’s alleged role in advocating for and
negotiating in favor of an allegedly unlawful promotion process.4, 5

3

At the hearing, counsel for the DOJ explained (and then supported his position with
additional briefing) that the DOJ does not have authority to seek relief against the Union and
has therefore named it as a defendant only to satisfy Rule 19(a). The Union disagrees,
contending the DOJ could seek relief from it but, upon review of the authorities cited, the
Court is satisfied that the Union cannot be sued directly by the DOJ. However, the Court
anticipates that the Union’s nominal status will not at all diminish its ability to fully participate
in the liability phase of the DOJ’s case. See United States v. City of Hialeah, 140 F.3d 968,
976 (11th Cir. 1998) (explaining that DOJ could not establish prima facie case of disparate
impact merely by consent with the City where unions, which had been joined as defendants
under Rule 19, were not permitted to put on evidence to rebut the DOJ’s showing).
4

The EEOC has sued the Union under Section 703 of Title VII, which states that “[i]t shall
be an unlawful employment practice for a labor organization . . . to cause or attempt to cause
an employer to discriminate against an individual in violation of this section.” 42 U.S.C. §
2000e-2(c)(3). While the EEOC’s complaint also cites Sections 706(f)(1) and (3) (which
relate to filing claims following individual employee charges), Section 707 of Title VII (which
relates to the Attorney General’s authority) and Section 102 of the Civil Rights Act of 1991,
42 U.S.C. § 1981a (permitting compensatory and punitive damages) as authority for its
4

II. The Motions
The Jacksonville Branch of the NAACP, the Jacksonville Brotherhood of Firefighters,6
and thirteen black firefighters employed by the City, have moved to intervene in the DOJ suit.
The Union has moved to dismiss the EEOC suit. Both the City and the Union have moved
to dismiss the Smith suit. The City alternatively suggests that Smith be stayed. The Smith
plaintiffs have moved to have their case consolidated with the DOJ suit. The EEOC likewise

claims, the body of its complaint focuses nearly exclusively on the Section 703 claim.
5

As an aside, the Court admits to some confusion with regard to the labels the parties
have attached to some of their claims. For example, counsel for the DOJ and the EEOC
have repeatedly stated that the difference between their cases is that the DOJ is bringing a
disparate impact claim whereas the EEOC is bringing one for disparate treatment. However,
the DOJ also emphasizes that it will prove its case by showing the City had a pattern and
practice of discrimination. Yet the Court’s reading of the case law suggests that pattern and
practice is a means by which the government can prove a disparate treatment case, not a
disparate impact case. See, e.g., Int’l Brotherhood of Teamsters v. United States, 431 U.S.
324, 335 (1977) (describing pattern and practice as a means of proving disparate treatment);
EEOC v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1286-87 (11th Cir. 2000) (explaining that
pattern and practice is a theory of intentional discrimination and a “variant of the disparate
treatment theory”). See also Serrano v. Cintas Corp, 699 F.3d 884, 892 (6th Cir. 2012)
(explaining that Teamsters’ “pattern and practice” approach provides a method by which to
prove intentional discrimination), rehr’g and rehr’g en banc denied (Jan. 15, 2013). The
Court also questions the government parties’ view that the EEOC suit- - which names only
the Union- - is a disparate treatment case. The EEOC’s claim is that the Union caused or
attempted to cause the City to discriminate when the Union advocated for and negotiated
in favor of a discriminatory promotion process. Cases such as Teamsters and Howard v. Int’l
Molders & Allied Workers Union, 779 F.2d 1546 (11th Cir. 1986), do not appear to cast a
union’s potential liability under Section 703 in terms of disparate treatment; rather, they
address whether the seniority system was “bona fide” and whether the union took “every
reasonable step” to avoid a discriminatory process; though, like a disparate treatment claim,
the conduct must be intentional. See Teamsters, 431 U.S. at 348-356; Howard , 779 F.2d
at 1547, 1548 n.19. At some point, the parties will likely be asked to clarify these theories,
but resolving the motions currently before the Court does not require them to do so now.
6

The Jacksonville Brotherhood of Firefighters is a Chapter of the International Association
of African-American Professional Fire Fighters.
5

moves to have its case consolidated with the DOJ suit. These motions present various
competing interests and a complex procedural puzzle. In considering them, the Court has
attempted to find a path that best affords “the just, speedy, and inexpensive determination
of [these] action[s].” Federal Rules of Civil Procedure, Rule 1.
Although there is little common ground among these parties, one essential point on
which they do agree is that unless the City’s promotion process is found to have an unlawful
disparate impact on black firefighters, most of the parties’ various other claims will not
survive. With the possible exception of the Smith plaintiffs, the parties further agree that the
suit by the DOJ should be the main stage for the litigation of that issue, with the other
litigants playing a supporting role. The DOJ explained that its case against the City would
most efficiently evolve as follows: first, the parties would engage in discovery to determine
whether the City’s ten specific test administrations on the four different officer ranks
referenced in the DOJ’s complaint have resulted in a disparate impact. Once that round of
discovery is completed (which will apparently involve the production of databases from the
City, and analysis by experts), the parties will file briefs seeking a ruling as to whether a
disparate impact exists. If the Court finds the tests did result in a disparate impact, the case
would proceed to an entirely new round of discovery focusing on whether the City’s use of
the tests is nonetheless job-related and consistent with business necessity. The parties
would then seek a ruling on that issue. If the tests are determined by the Court to be jobrelated and consistent with business necessity, the parties would then engage in discovery
and motion practice to determine whether there are alternatives that would have less
disparate impact. If the answer is yes, then the City’s promotion process (at least as to the
6

referenced tests) will be deemed to be unlawful and the case will move to the remedies
stage. The DOJ represents that this procedure was recently followed by U.S. District Judge
Nicholas Garaufis in the DOJ’s Title VII disparate impact lawsuit against the City of New York
over its firefighter hiring scheme. See United States v. City of New York, 637 F.Supp.2d 77
(E.D.N.Y. 2009) (finding City’s hiring procedures had an unlawful disparate impact on black
and Hispanic firefighters and case would therefore proceed to remedies phase). The Court
agrees this appears to be a logical way for the DOJ case to proceed and it serves as a
backdrop against which to decide the pending motions.
As to the NAACP, the Jacksonville Brotherhood of Firefighters, and the thirteen black
firefighters seeking relief with them, the Court finds they may intervene as of right in the DOJ
suit, at least through the liability phase, as they meet all the criteria to do so. See
Fed.R.Civ.P. Rule 24(a)(2); United States v. City of New York, Case No. 07-cv-2067(NGG),
2007 WL 2581911, *7-11 (E.D.N.Y. Sept. 5, 2007) (permitting organization of black
firefighters and individual minority firefighters to intervene under Rule 24(a) in DOJ disparate
impact suit against City).7 While their proposed complaint in intervention is styled as a class
action (and seeks a jury trial), at oral argument, the proposed intervenors agreed that any
determination as to the propriety of proceeding as a class would await much later
developments in the case. Thus, the intervenor plaintiffs named in the complaint may fully
participate in the DOJ suit through at least discovery and decision as to disparate impact.
The intervenor plaintiffs shall file their complaint in intervention in the DOJ suit, but, because

7

The Court would alternatively find they satisfy the standard to permissively intervene
under Fed.R.Civ.P. Rule 24(b).
7

they essentially agree that their interest in actual prosecution of their own claims will only
diverge from the DOJ’s if and when the DOJ proves liability, the City’s and Union’s
responses to the complaint in intervention will be abated until further Order.

These

intervenor plaintiffs will, however, be permitted to participate in discovery and briefing of the
disparate impact issues raised by the DOJ’s complaint.8
Taking up next the motions filed in the EEOC suit, the Court finds that although the
Union’s motion to dismiss is due to be denied, the EEOC’s case against it should be stayed
until such time as it has been determined in the DOJ case whether the City’s promotion
process creates an unlawful disparate impact. The Court further finds that the EEOC’s suit
may not be consolidated with the DOJ suit. In its lawsuit, the EEOC claims the Union
violated Title VII by advocating for and negotiating in favor of a discriminatory promotion
process. The Union seeks dismissal arguing that the case cannot proceed without the City,
which is a necessary party; and that the Union cannot be held liable because an earlier Court
decision found the promotion process to be lawful, so it had no affirmative duty to look for
a remedy.9 First, while the absence of the City may affect some of the remedies the EEOC
may ultimately seek, the EEOC does request prospective injunctive relief against the Union
and the City’s absence would not necessarily affect that. See EEOC v. Peabody Western

8

The Court assumes the intervenor plaintiffs will work with the DOJ to avoid any
duplication of efforts.
9

The Union also moved to dismiss on the grounds that the EEOC failed to engage in a
good faith effort to conciliate. The Court tabled that issue for now to avoid having the parties
divulge matters related to their confidential settlement discussions. If and when the EEOC
case is reactivated, the Union may resurrect the issue if appropriate.
8

Coal Co., 610 F.3d 1070, 1084 (9th Cir. 2010) (holding that case should proceed even if not
all requested relief would ultimately be available). As to the Union’s second argument, the
Court finds it is foreclosed by the Eleventh Circuit’s Howard case, which noted as an
“established principle” that “labor organizations, as well as employers, have an affirmative
duty to take corrective steps to prevent the perpetuation of past discrimination.” Howard v.
International Molders & Allied Workers Union, 779 F.2d 1546, 1547 (11th Cir. 1986).10 Thus,
the Union’s motion to dismiss is due to be denied.
However, the EEOC’s claims are entirely dependent on a finding of unlawful disparate
impact caused by the City’s promotion process. While the EEOC seeks to participate in the
process of assessing the disparate impact of the City’s promotion process through
consolidation of its suit with the DOJ suit, the Court finds that the EEOC’s statutory authority,
which specifically precludes the EEOC from pursuing claims or taking any action against a
government,

prevents

it

from

doing

so.11

See

42

U.S.C.

§

2000e-

10

The Burden case relied on by the Union involved a typical employee generated
disparate treatment claim against her union, and not a Section 703 case alleging union
negotiation in favor of an employer’s discriminatory policy. See Burden v. International
Longshoremen’s Ass’n, Local #1410, 510 F.Supp.2d 618, 621 (S.D. Ala. 2007). In finding
the union had no duty to police the employer’s workplace to prevent individual instances of
harassment, Burden itself noted that the Howard case presented a different posture than
the case before it because Howard addressed a union’s duty to “press for an end to
institutionalized” discrimination while negotiating a collective bargaining agreement. Id. at
623 n. 3. The Court therefore finds that Burden does not compel dismissal here.
11

The Court does not view this as being inconsistent with its holding that the DOJ, which
cannot directly sue the Union, may nonetheless name it as a Rule 19 defendant in its case.
Title VII specifically directs that the EEOC “shall take no action” against a government once
conciliation efforts fail. 42 U.S.C. § 2000e-5(f)(1). The DOJ’s inability to sue the Union is
not so clearly stated in the statute and does not appear to prevent it from naming the Union
as a Rule 19 defendant. Additionally, the Union does not object to participating in the DOJ
9

5(f)(1). See also Peabody, 610 F.3d at 1080-84 (explaining that EEOC was statutorily
precluded from naming Secretary of Interior as a Rule 19 defendant).12 Thus, the EEOC suit
will be stayed at least until the disparate impact issue is decided.
Finally, as to the Smith case, both the Union and the City have moved to dismiss the
case and the City alternatively has moved to stay it. The Smith plaintiffs seek to consolidate
their case with the DOJ suit. Both the Union and the City criticize the current Smith
complaint on two basic grounds:

first, that it is duplicative of the DOJ action which

essentially occupies the field; and second, that it suffers from various pleading deficiencies.
As to the first point, the Court finds that while the claims raised by the DOJ case are included
within Smith, Smith raises a number of additional related and unrelated claims. Additionally,
because any affected Smith plaintiffs may be entitled to pursue remedies if liability is
established in the DOJ case, they would be permitted to prosecute those same claims
through intervention if they had not already filed their own suit. Furthermore, neither the
EEOC suit nor the DOJ suit appear to have been instigated by the filing of any particular

suit (and has already filed an answer to the complaint). The City, on the other hand,
vigorously objects to having any role in defending a suit by the EEOC, which it would be
required to do if the EEOC injected itself into the disparate impact phase of the DOJ
litigation. Finally, the EEOC is not prejudiced by being left out of the first phase of the
litigation against the City because the DOJ has picked up the mantle on behalf of the people
of the United States, which is of course the same party whose interests the EEOC is
designed to protect.
12

In support of its position, the EEOC provided the Court with Orders filed in several
cases in which it participated via consolidation with actions pending against a government
entity. However, the propriety of its doing so does not appear to have been litigated in those
cases and the Court finds the language of the statute and the Peabody case to be more
persuasive on this point.
10

employee charge, thus distinguishing the facts here from those in EEOC v. Frank’s Nursery
& Crafts, Inc., 177 F.3d 448, 456 (6th Cir. 1999), where the Sixth Circuit explained that if the
EEOC elected to file suit based on an employee’s charge, that individual employee had no
ability to proceed on her own without the EEOC. Here, by contrast, the EEOC granted each
of the Smith plaintiffs the right to sue. The Court has not seen any authority (and the parties
have cited none) that would suggest that the EEOC could at its own option rescind that
notice once litigation is already underway. Additionally, both the EEOC and the DOJ were
in support of the consolidation of Smith with the DOJ case.13 Thus, the Court rejects the
notion that the filing of the DOJ suit requires Smith to be dismissed.
As to the alleged pleading deficiencies in the fourth amended complaint in Smith, the
Court is largely satisfied that the pleading standards have been met and it will not therefore,
require further efforts to replead at this time. This decision, though, is partially driven by the
Court’s determination that, as explained below, the Smith case is due to be stayed (except
as to some of their disparate impact claims) while the liability phase of the DOJ suit is
ongoing (which phase, when concluded, will surely require further reframing of the Smith
complaint). Proceeding with the DOJ suit first will go a long way toward resolving much of
this litigation. The Court appreciates that Smith was the earlier filed case, but if relief is
achieved by the DOJ, it will likely inure to the benefit of all the plaintiffs in these cases.
Because the Court will permit the Smith plaintiffs to participate in the disparate impact

13

The City’s view is that any party wanting to join in the DOJ litigation may only do so via
intervention. The effect of permitting the Smith plaintiffs to participate by consolidation while
the remainder of their case is stayed would appear to achieve nearly the same result.
11

litigation, they are not unduly prejudiced by a stay of the rest of their claims.14 Thus, the
Court will permit consolidation of the Smith case with the DOJ case only to the extent that
the specific claims for disparate impact raised in Smith that are the same as those raised by
the DOJ may proceed on a consolidated basis through the liability phase.
Accordingly, it is hereby
ORDERED:
1.

The NAACP, Jacksonville Brotherhood of Firefighters and individual plaintiffs’

motion to intervene in the DOJ action (filed as Doc. 28 in Case No. 3:12-cv-451-J-32MCR)
is GRANTED to the extent stated above. No later than May 2, 2013, the intervenor plaintiffs
are directed to file their complaint in intervention but, as noted above, the defendants need
not file responses to it at this time.
2.

The Union’s Motion to Dismiss the EEOC suit (filed as Doc. 13 in Case No.

3:12-cv-491-J-32TEM) is DENIED. However, the Union need not file an answer until
directed and the Court will stay this case pending results of the liability phase in the DOJ suit.
The EEOC’s Motion to Consolidate (filed as Doc. 19 in 3:12-cv-491-J-32TEM) is DENIED.
The Clerk shall administratively close this file during the pendency of the stay.
3.

The Smith plaintiffs’ Motion to Consolidate (Doc. 75 in Case No. 3:11-cv-345-J-

32MCR) is GRANTED to the limited extent that the Smith case will be consolidated with the
DOJ suit for purposes of litigation on the DOJ’s disparate impact claims against the City. In
all other respects, the Smith case is STAYED. The City’s and the Union’s Motions to
14

Alternatively, if the Smith plaintiffs wish to pursue any of their Florida claims in state
court, they are free to dismiss them from this case without prejudice to filing them there.
12

Dismiss the Smith case (filed as Docs. 95 & 96 in Case No. 3:11-cv-345-J-32MCR) are
DENIED; the City’s alternative request that the Smith case be stayed (see Doc. 95 in 3:11cv-345) is granted in part as stated. Because of the stay, the City and Union need not file
responses to the fourth amended complaint in Smith until further Order.
4.

In light of the delay between the filing of their original proposed schedule and

now,15 and with the procedural posture of these cases settled, the parties to the DOJ suit,
in consultation with counsel for the Smith plaintiffs and the DOJ suit intervenor plaintiffs, are
requested to file an amended proposed case schedule no later than May 2, 2013.
DONE AND ORDERED in Jacksonville, Florida this 30th day of March, 2013.

s.
Copies to:
counsel of record
counsel for all interested or moving parties

15

The Court received a letter from the attorney for the NAACP and related parties
questioning the Court’s delay in ruling on its motion to intervene. The Middle District of
Florida currently has two (soon to be three) judicial vacancies, including one longstanding
vacancy in the Jacksonville Division, which is affecting the Court’s ability to timely rule on
pending motions. However, as the Court has not authorized any discovery or set any case
management deadlines for these cases yet, the NAACP’s concern that it is being “left
behind” is puzzling.
13