Most Of Reverse Discrimination Verdict Upheld By Appeals Court

The tumultuous tenure of Arthur Jones as the Chief of the Milwaukee, Wisconsin Police Department continues to reverberate through the court system. Jones, who was Chief from 1996 to 2003, considered candidates for promotion to captain in a manner a federal appeals court later referred to as a “fairly amorphous and private process.” The City had no promotional procedures, and Jones testified he could not recall his thought processes with respect to the nominations. Jones did not post a position announcement when a vacancy became open in the captain ranks, and did not consider any records regarding nominations. Instead, Jones personally evaluated potential candidates to determine the candidate he thought would be “most qualified to fill the position.” His conclusions were based on his “personal observations of the individual over some – in most instances a long – period of time, and verbal recommendations from various individuals.”

Women and minority candidates for captain fared particularly well under Jones. Of the 20 women and minorities promoted during Jones’ tenure between 1996 and 2003, 17 had spent less than five years in the lieutenant rank, while the same was true for only four of the 21 white males promoted during the same period.

Eventually, a group of 17 lieutenants filed a reverse discrimination lawsuit against Jones, the Milwaukee Board of Fire and Police, and the City. A jury awarded the lieutenants compensatory damages ranging from $9,500 to $50,000, not including lost wages and benefits, and assessed $289,000 in punitive damages against each of the Board’s commissioners ($17,000 from each commissioner and Chief Jones to each of the 17 lieutenants). After a special master determined the amount of back pay owed to each of the lieutenants, the City appealed.

The Court upheld most of the jury’s verdict. The Court rejected the City’s argument that it did not intentionally discriminate on the basis of race in failing to promote the white lieutenants. While the Court acknowledged that there could be a compelling interest on the part of the City in “diversity in law enforcement,” the Court held that for race to be taken into account in making promotional decisions, an employer must show that its actions are “narrowly tailored” to the purpose of increasing diversity and ending discrimination.

The Court ruled that the City failed to show that the affirmative action considerations Jones used were narrowly tailored. As the Court put it, “the City was under no specific court orders directing it to increase promotional opportunities for women and minorities. Reports prepared by staff expressly noted that there were no affirmative action goals for the command staff ranks. Each commissioner denied the use of race-conscious policies in their votes to approve potential candidates for promotion. The record therefore discloses no policy, no set parameters and no means of assessing how race should be weighed with other promotional criteria.

“Faced with the lack of any evidence of a plan in the trial record, the City is left to urge that the testimony demonstrates that, even though they considered each candidate individually, they embraced a view of increasing diversity. The City contends that it took a flexible approach, in which diversity was important, but under which the individual qualifications of each candidate were considered before promotion.”

The Court was clearly skeptical not only of the factual basis for the City’s argument, but also thought that it was legally insufficient: “Our cases approving of a race-conscious promotion policy for a public employer as a narrowly-tailored response to a compelling governmental interest have never approved such a loose and indeed effectively standardless approach. A race-conscious promotion system with no identifiable standards to narrowly tailor it to the specific, identifiable, compelling needs of the municipal department in question cannot pass constitutional scrutiny.”

The City next argued that there was insufficient evidence of malice upon which the jury could have based an award of punitive damages. Once again, the Court disagreed. As the Court analyzed the matter, “the jury found the personal participation of the commissioners in discrimination, and this finding would suggest that the jury concluded that the commissioners had done more than simply evaluate single candidates that had come before them. The lieutenants also produced evidence of the apparent racial animus of Chief Jones of which the commissioners were aware. This evidence could be interpreted as having put the commissioners on notice that the promotional policies in effect in the Police Department, over which they had authority, were resulting in a quickly changing racial makeup exhibiting under-representation of white males on the command staff. Taking that evidence in the light most favorable to the lieutenants and in light of the jury’s verdict, the commissioners knew about a problem, failed to act to control it, as the responsibility of their office required them to do so, and knowingly participated in its continuation. This evidence permitted a jury to find reckless or callous indifference to the federally-protected rights of the lieutenants.”

The Court sided with the City on one issue – the particular method the trial court used to calculate back pay. The Court remanded the case to the trial court for reconsideration of the amount of the back pay awards for the lieutenants.

Alexander v. City of Milwaukee, 2007 WL 117491 (7th Cir. 2007).

The article appears in our April 2007 issue.