Appeal from the United States District Court for the Northern District of Indiana, South Bend Division, No. 82 C 209, Allen Sharp, Judge.
Bauer, Chief Judge, Pell, Senior Circuit Judge, and Dupree, Senior District Judge.*fn*
ON REMAND FROM THE UNITED STATES SUPREME COURT
We again face the question whether the City of South Bend, Indiana (the City) could adopt an affirmative action program for its police and fire departments based solely upon a finding that a disparity existed between the percentage of minorities in the City's population and the percentage of minorities in the departments. The district court granted summary judgment to defendants-appellees, the City and various municipal agencies and officers, holding that the City's proffered statistical comparison justified its affirmative action program. 576 F. Supp. 1461 (N.D. Ind. 1983). We reversed. 750 F.2d 557 (7th Cir. 1984). The Supreme Court granted the City's petition for a writ of certiorari, vacated our judgment, and remanded for further consideration in light of Johnson v. Transportation Agency, 480 U.S. 616, 107 S. Ct. 1442, 94 L. Ed. 2d 615 (1987) and Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (1987). Again, we reverse the district court.
During a June 20, 1979 meeting, the City's Board of Public Safety (the Board) appointed a task force to design and implement a plan to improve the recruitment of minorities for the City's police and fire departments. The Board noted that the percentage of minorities in the City's population was 14.1 percent and the percentage of minorities in the fire department was approximately 5.3 percent.
The Minority Recruitment Task Force (the Task Force) submitted its report to the Board on January 29, 1980. In the report, the Task Force emphasized that the Board's existing hiring standards were reasonable and advocated continued use of those standards.*fn1 The Task Force recommended, however, that the Board adopt a preferential hiring plan to reflect, within five years, the minority composition of the city.
A Minority Recruitment Review Committee (the Committee) then reviewed both the Board's hiring procedures and the Task Force's report and presented its own report and recommendation to the Board. The Committee's report noted the disparity between the percentage of minorities in the police and fire departments and the percentage of minorities in the City. Although the Committee determined that the Board's testing standards were reasonable and should be retained, it recommended that the departments utilize separate lists to rank minority and nonminority applicants who achieved a certain base score on the hiring test. A three-member panel would then recommend the number of applicants the Board should hire from each list.
The Board adopted the Committee's recommendations in June, 1980 and, consistent with the affirmative action program, appointed four minority applicants and one nonminority applicant to the fire department in November, 1980. Although one minority hiree failed the required physical examination, the Board replaced him with the next applicant on the minority hiring list in February, 1981.
Plaintiff-appellant Janowiak ranked second of the twenty-two applicants on the fire department's nonminority hiring list. After Janowiak learned in February, 1981 that he would not be hired as a firefighter, he filed a charge of race discrimination with the Equal Employment Opportunity Commission, which issued a right-to-sue letter in February, 1982. Janowiak then brought suit in the district court, which granted defendants' motion for summary judgment. The district court, after finding that the statute of limitations did not bar plaintiff's action,*fn2 held that summary judgment was proper because neither Title VII nor the fourteenth amendment prohibited adoption of an affirmative action program designed to remedy the disparity between the percentage of minorities in the City's population and the percentage of minorities in the fire department. We reversed, holding that the statistical comparison proffered by the City to support the affirmative action program, without more, did not show the predicate past discrimination required to justify such a program under either Title VII or the fourteenth amendment. The Supreme Court granted the City's petition for a writ of certiorari, vacated our judgment, and remanded for further consideration in light of Johnson and Wygant.
Summary judgment is appropriate when there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the burden of persuading the court that no issue of material fact exists. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); see Herman v. National Broadcasting Co., 744 F.2d 604, 607 (7th Cir. 1984), cert. denied, 470 U.S. 1028, 84 L. Ed. 2d 782, 105 S. Ct. 1393 (1985). In determining whether an issue of material fact exists, the court must construe the facts alleged in the light most favorable to the party opposing the motion for summary judgment. Id.; see Trulson v. Trane Co., 738 F.2d 770, 771 (7th Cir. 1984). Upon review of a summary judgment, we must consider the entire record in the same light. Cedillo v. International Assoc. of Bridge & Iron Workers, 603 F.2d 7, 11 (7th Cir. 1979).
Initially, we note that Janowiak bears the burden of establishing the invalidity of the City's plan. Under the framework ...