Appeal from an order of the United States District Court for the District of Connecticut, modifying remedial order in employment discrimination case. Affirmed.
Before: KEARSE, PIERCE, and PRATT, Circuit Judges.
Intervening defendants Bridgeport Firefighters for Merit Employment, Inc., et al. ("BFME"), appeal from an order of the United States District Court for the District of Connecticut, T. F. Gilroy Daly, then Judge, now Chief Judge, modifying an injunction previously entered by the court with the approval of this Court as a remedy for violations by defendants City of Bridgeport, et al. (the "City"), of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e to 2000e-17 (1976 & Supp. V 1981), and the antidiscrimination provision of the State and Local Fiscal Assistance Act ("Revenue Sharing Act"), 31 U.S.C. § 1242(a) (1976), in the hiring of firefighters. BFME contends that the district court's modification violates this Court's rulings in the two previous appeals in this matter. We disagree and affirm the order of the district court.
The history of this action is described in detail in two prior opinions of this Court, see Association Against Discrimination in Employment v. City of Bridgeport, 594 F.2d 306 (2d Cir. 1979) ("ADE I" ); Association Against Discrimination in Employment v. City of Bridgeport, 647 F.2d 256 (2d Cir. 1981) ("ADE II" ), aff'g in part 479 F. Supp. 101 (D. Conn. 1979), cert. denied, 455 U.S. 988, 102 S. Ct. 1611, 71 L. Ed. 2d 847 (1982), familiarity with which is assumed. The principal focus of the present appeal is the mandate of this Court in ADE II, which largely affirmed the district court's order, whose principal thrust was that, in order to remedy the City's violations of antidiscrimination laws, the City would be required to offer firefighter positions and to pay backpay to minority victims of the City's past discrimination.
In ADE II we upheld findings of the district court that the City had "engaged in a continuous policy of discrimination" against black and hispanic candidates in the hiring of firefighters, 647 F.2d at 274, as evidenced by many discriminatory acts, "includ[ing] the giving of the 1975 exam that was not job related and had discriminatory impact, and the individual acts of discrimination against several minority candidates who sought to take that exam in 1975," id. at 275. We also upheld findings
that, in addition to administering discriminatory exams, the City had purposely failed to recruit minority applicants, and had discriminated against several individual minority candidates, and that the City's failure to recruit and its discriminatory treatment of minority individuals were not in good faith.
Id. at 284 (footnote omitted).
In light of the district court's factual findings, we also upheld the remedial provisions fashioned by the court,*fn1 based upon its considered judgment "that merely ordering nondiscriminatory hiring in the future, even coupled with the requirement that the City actively recruit minority candidates, would be inadequate either to remedy past discrimination or to 'assure prospective minority candidates that applying is no longer futile.'" 479 F. Supp. at 113 (citation omitted). The remedial order, as set out in id. at 115-19 and in ADE II, 647 F.2d at 267-69, and as quantitatively modified in ADE II, see note 1 supra, provided in pertinent part (1) that the City must prepare a list of 73 victims of the City's discrimination to be offered positions as firefighters, consisting principally of
(a) The black and hispanic persons who filed applications for either the 1971 or 1975 test, who have not been offered but still seek employment with the Fire Department, and who pass both the agility test and medical examination to be administered by the City,
479 F. Supp. at 115-16; 647 F.2d at 267, and (2) that the City must prepare a list of up to 73 discriminatees to receive backpay. Most pertinently for purposes of the present appeal, preference for inclusion in the backpay list was given to persons on the list of discriminatees to be offered firefighter positions.
Events following our decision in ADE II have proceeded largely in accordance with the remedial plan structured by the district court, with one major exception. At some point it was discovered that some discriminatees who would be eligible to be placed on the list of 73 persons to be offered firefighter positions, if they still sought such positions, would represent that they were still interested when in fact they were not, simply in order to receive the backpay to be awarded offerees.*fn2 The result would be that a number of persons would have themselves placed on the offeree list and go through training programs with no genuine intention of becoming fullfledged firefighters. The City would then have expended substantial sums in training persons who would perform no firefighting services; and the number of minority firefighters in the Bridgeport Fire Department would be lower than it would be if only still-interested discriminatees were placed on the list of those to be offered positions.
In order to avert this potentially unproductive and wasteful turn of events, plaintiffs and the City agreed to request the district court to modify the remedial scheme in one respect. In order to eliminate the incentive for those not still desiring to be firefighters to misrepresent their intentions, it was agreed that the backpay list should simply be divorced from the offeree list.Thus, up to 73 persons*fn3 who could prove they were victims of the City's discrimination could be awarded backpay without the need to commit themselves to becoming firefighters; 73 discriminatees still interested in ...