56 Fair Empl.prac.cas. 766,56 Empl. Prac. Dec. P 40,890michael Barfus, Jack Chambers, Michael Fisher, Darrellhawks, Edmund Lamb, Robert Robinson, Terryremland, Plaintiffs-appellants, v. City of Miami, Defendant-appellee.robert J. Sullivan, Plaintiff-appellant, v. City of Miami, a Municipal Corporation, Defendant-appellee, 936 F.2d 1182 (11th Cir. 1991)

This is an appeal by Miami firefighters (Barfus et al.) and a Miami police officer (Sullivan) from the district court's dismissal of their Title VII action for reverse discrimination as an impermissible collateral attack on a consent decree. The district court dismissed the complaints pursuant to Fed. R. Civ. P. 12(b) (1), reasoning that because the complaints constituted collateral attacks, the court lacked subject matter jurisdiction over appellants' claims.¹  Because we hold that appellants' Title VII complaints do not constitute collateral attacks on the consent decree, and because appellants have standing to bring an independent Title VII suit, we reverse and remand to allow the district court to consider the merits of appellants' claims and to permit the City to file its answer and to present any defenses to appellants' charges of reverse discrimination.

FACTS

This litigation has its genesis in two suits filed by the United States against the City of Miami.²  In the first, the United States filed suit against the City of Miami, city officials, the Fraternal Order of Police ("the FOP" or "the police union"),³  and the Miami Police Benevolent Association, alleging discriminatory employment policies and practices against black, Spanish-surnamed, and female individuals. On February 18, 1976, the United States and the City filed a proposed consent decree, which was approved by the district court for the Southern District of Florida over objections to its entry by the FOP. After hearing argument on the FOP's motion to vacate the decree,⁴  the district court directed the parties to attempt to resolve their differences regarding provisions of the decree. On November 17, the Attorney General and the City moved to reinstate the consent decree; with that motion, they filed, among other things, affidavits from the FOP and the City stating that they had been unable to resolve their differences. After a December 13, 1976 hearing on the motion for reentry of the decree, at which the court heard the FOP's objections to the decree, the court, again over the objections of the FOP, entered a modified decree proposed by the City and the United States which set forth promotional goals to increase minority employment. The date of entry of the consent decree was March 29, 1977. The FOP appealed, and that appeal ultimately was heard by this court sitting en banc.

In United States v. City of Miami,⁵  we held that the modified consent decree was valid as between those parties consenting to its entry, i.e., the City and the United States, but that it was not valid as to provisions affecting the FOP as a nonconsenting party. The Court, therefore, held that " [t]he provisions of the court's decree shall be modified to provide that it does not affect the promotion of members of the Police Department. As thus restricted, we affirmed its reentry upon remand."⁶ 

On remand, the district court, on April 4, 1983, issued a consent order maintaining in full force and effect the earlier decree.⁷  The court, there, stated:

The FOP accepts this order in resolution of all claims it has against the City of Miami concerning the prior promotional practices of the City of Miami in the implementation of the Consent Decree in the Police Department, including, but not limited to, the adoption and implementation of Ordinance No. 8977....⁸ 

The second suit against the City of Miami, filed by the United States on December 29, 1975, also alleged discriminatory employment practices against blacks, Latins, and women in violation of federal civil rights law. On March 29, 1977, the district court entered a consent decree between the City and the United States. The district court notes that on or about July 26, 1978, the International Association of Firefighters, AFL-CIO Local 587 ("the firefighters union") signed the consent decree.⁹ 

On October 28, 1987, appellants, white employees of the Miami Fire Department, filed a complaint against the City of Miami seeking a permanent injunction and restitution under Title VII, 42 U.S.C. § 2000e et seq. In a separate action, appellant Lieutenant Robert Sullivan, on April 19, 1988, filed a complaint alleging reverse discrimination in the promotion practices of the Miami Police Department; he also alleged that he was denied administrative review of his promotion bypass. Both complaints allege that the City, which has operated under the terms of the court-approved consent decree since 1977, was obligated under the terms of the decree and the "Miami Civil Service Rules and Regulations" (Ordinance No. 8977) promulgated pursuant to the decree to meet certain promotional goals to enhance opportunities for minorities. Significantly, appellants claim that they were denied promotions in favor of less qualified black candidates in violation of Title VII, the consent decree, and Ordinance No. 8977.

In dismissing appellants' complaints as impermissible collateral attacks on the consent decree, the district court reasoned that "because the unions of which the present Plaintiffs are members both signed the Consent Decree and were parties to the original discrimination suit out of which the present consent decree arose," the plaintiffs "may be properly characterized as 'parties or privies' to the Decree."¹⁰  Acknowledging that "independent claims of unlawful discrimination are not precluded" simply because a consent decree is implicated,¹¹  the court nevertheless held that because the unions were signatories to the consent decree, the union members could not "collaterally attack" the decree by means of Title VII. In so holding, the court relied upon case law holding that a party or privy to a consent decree cannot launch a collateral attack upon the decree. Additionally, the court held that even if plaintiffs only challenged the City's compliance with the decree, i.e., even if plaintiffs were not "attacking" the decree, the district court lacked jurisdiction because enforcement of the decree was " 'under the supervision of the district court that entered the decrees.' "¹²  The court, however, concluded that the plaintiffs were free to seek an order to show cause, from the court that entered the decree and that retained jurisdiction over it, why the City should not be held in civil contempt for misapplication of the consent decree.¹³ 

DISCUSSION

While not quarreling with the law relied upon by the district court, we reverse because we do not deem plaintiffs' Title VII complaints to be an attack upon the consent decree. The complaints do not challenge the terms of the decree; nor do they seek to modify the decree.¹⁴  Neither do we think that the complaints seek relief pursuant to the decree. We disagree with the district court's alternative conclusion that plaintiffs are limited in their relief to seeking sanctions in a contempt proceeding challenging the City's implementation of the decree. Moreover, even if appellants may challenge implementation of the decree as parties or privies through contempt, we know of no law so limiting their right to that relief under the facts alleged in the complaints.¹⁵ 

Appellants instituted this suit pursuant to Title VII; jurisdiction is vested in this court by 42 U.S.C. § 2000e-5(f) (3). Theirs are individual and independent claims of reverse discrimination premised on Title VII, rather than an action seeking to enforce rights created in their favor by the decree. The firefighters, in their complaint against the City, seek permanent injunctive relief and restitution under Title VII, 42 U.S.C. § 2000e et seq. They allege that:

18. Minority candidates for promotion who ranked below some or all of the Plaintiffs were promoted ahead of Plaintiffs, notwithstanding Plaintiffs' higher scores on the promotional examination.

19. Said minority candidates were accorded a preference in promotion based solely upon race and national origin.

20. But for their status as "Anglo" males, Plaintiffs would also have been promoted to the rank of fire lieutenant.

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25. In employing promotional goals in excess of those authorized by the Consent Decree, the City has transformed its affirmative action program into a form of reverse discrimination, creating a new class of victims of discrimination who are denied promotion based on factors other than merit.

26. As a result of the adoption of this pattern and practice, Plaintiffs have been deprived of promotion to the rank of fire lieutenant, together with the earnings and other benefits they would have received but for the discriminatory practices of the Defendant.¹⁶ 

Police Lieutenant Robert Sullivan also alleges reverse discrimination in the promotion practices of the Miami Police Department. As set forth in his complaint, Sullivan contends that:

14. The City of Miami, in the administration of its Civil Service System and the terms of the Consent Decree, is obligated to promote minority candidates in numbers equal to the Miami City work force population statistics or the percentage of minorities currently employed in the Department, whichever is smaller.

15. On August 22, 1984, the City of Miami, Department of Personnel Management, established a promotional register which ranked candidates based upon examination score for eligibility to be promoted to the rank of police captain.

* * * * * *

18. Minority candidates for promotion who were ranked below Plaintiff were promoted ahead of Plaintiff, notwithstanding his higher score on the promotional examination.

19. Said minority candidates were accorded a preference based solely upon race and national origin.

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27. In failing to promote Plaintiff, while at the same time according an additional preference to persons who had previously received a preference for promotion, the City has engaged in a practice of reverse discrimination, creating a new class of victims of discrimination who are denied promotion based on factors other than merit or lawful compliance with the Consent Decree.

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29. As a result of the actions complained of, Plaintiff has lost promotion to the rank of captain, together with pay, seniority, pension, credits and other emoluments of office.¹⁷ 

Thus, plaintiffs do not base jurisdiction solely on the consent decree.

Indeed, it is difficult to discern how this consent decree could be enforced by union members in a contempt proceeding, as the relief available under the terms of the decree runs to minorities discriminated against through the past hiring and employment practices of the City.¹⁸  The decree, at paragraph 5, provides that " [i]n order to eliminate the effects of past discriminatory practices against blacks, Latins and women, the City shall adopt and seek to achieve as its long term goal the participation at all levels throughout its work force of blacks, Latins and women approximating their respective proportions in the City's labor force...."¹⁹  Paragraph 7 of the decree, dealing with promotions, provides for promotion of members of the affected class. As defined in paragraph 6, the "affected class" of employees eligible for back pay under the decree includes (1) all incumbent black, Latin, and women employees currently holding positions with the City who were initially assigned to traditionally black, Latin, or female jobs and (2) all blacks, Latins and women identified as having been discriminatorily denied employment opportunities or terminated since March 24, 1972. Thus, because the decree confers on appellants no right, i.e., the relief available runs in favor of minority employees and applicants, the relief sought by appellants in this suit is outside the scope of the decree²⁰  and, instead, is from injury occurring as a result of the decree's alleged discriminatory application.

The district court recognizes the distinction between an enforcement action, on the one hand, and an independent Title VII action. In his order, he states: "Thus, while the Plaintiffs' claims may not technically have accrued until after the Consent Decree went into effect and their promotions were denied, certainly they 'share an identity of interest' with the unions of which they are members, such that they may properly be characterized as 'parties or privies' to the Decree."²¹  The issue sought to be litigated here was not involved in the consent decree. Thus, it cannot be the case that these non-minority union members, by their union's participation in the consent decree negotiations, waived their right to bring a separate Title VII action. Because appellants' cause of action had yet to accrue, this is not a case in which, through the "adequate representation" of the union members' interests by their unions,²²  res judicata bars an independent action by the individual members.

The Supreme Court's reasoning in United States v. Armour Co. in this regard is instructive:

Consent decrees are entered into by parties to a case after careful negotiation has produced agreement on their precise terms. The parties waive their right to litigate the issues involved in the case....²³ 

Simply stated the promotional rights of these eight non-minority employees and their entitlement to Title VII relief has yet to be litigated. Thus, the district court's determination that the union members are bound by the consent decree because the union was a signatory is an insufficient basis on which to deprive appellants of their Title VII cause of action.

In fact, the decree itself contemplates pursuit by individual employees of their own remedies:

(8) (c) Nothing in this Decree will be construed as limiting the rights of any individual as provided by Section 706 of Title VII, 42 US Code, Section 2000e-5.²⁴ 

The decree appears to contemplate independent litigation of private causes of action, at least for minority plaintiffs (seeking, for example, back pay) who, for whatever reason, did not benefit from enforcement of the promotional provisions of the decree.²⁵  It is clear that such cases do not arise under the consent decree and that those potential minority plaintiffs are not limited in their ability independently to seek relief in an action outside the contempt proceeding. This being so, we are not inclined to limit the choice of remedies of non-minority employees.

Having determined that the court has subject matter jurisdiction over appellants' claims of reverse discrimination, the remaining issue is whether appellants have pled a separate Title VII cause of action. Here, as in Martin v. Wilks, the plaintiffs allege that because of their race, they are being denied promotions in favor of less qualified minorities in violation of federal law. Having reviewed the complaints, we easily conclude that plaintiffs have stated the essential elements of a Title VII violation sufficient to proceed beyond the pleading stage and to require the City to plead its affirmative defenses.

CONCLUSION

In reversing and remanding to the district court so that the City of Miami may file its answer and plead any affirmative defenses, we intimate no view with respect to the ultimate disposition of this controversy. We merely hold that the complaint is not an attack upon the consent decree and that the plaintiffs do not seek relief pursuant to the decree. They seek relief under Title VII. Whether the consent decree provides a defense to plaintiffs' allegations of reverse discrimination is for the defendant to establish.

We REVERSE and REMAND so that the district court may consider plaintiffs' claims of unlawful discrimination.