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Topic: Remember Police Citizens Service Bureau & Williamson?
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untanglingwebs
El Supremo

arbitrators- whites considered for only 1 position and was probably an afterthought- the positions were racially motivated.

All police officers were certified officers.

Sparks and Hamilton, Gibbs Plaintiffs, were Sgts in the Detective Bureau and were active in the opposition. They supported the Union president in opposing the CSB, attended union meetings, publicly supported the union and were prominently featured on television.

Sparks attended 3 union meetings and 2 City Council meetings, and was a member of APPL. Sparks was told to "back off" by Williamson's council ally, Darryl Buchanan. Sparks spoke out at a City Council meeting that was televised by a Flint news station.
The Union meetings were held in the City health Dome on December 8, 2006 and Mayor Williamson had his aide videotape activity. As a union steward, Sparks stood with union leadership opposing the CSB.

On December 18, 20006 Sparks, Hamilton and others were transferred. The transfers were beyond Chief hagler's control as they were signed by the mayor personally. This was the only time a Mayor ever signed a transfer.
Post Tue Feb 07, 2017 8:18 pm 
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untanglingwebs
El Supremo

When Sparks approached Council President Darryl Buchanan, he was told the mayor was upset with Sparks for speaking out and if he had "backed off" like he was instructed, he would still be in the Detective Bureau.

There were similar unnamed acts of retaliation.

Race must be one reason, but must be one which makes a difference.

An asserted racial discrimination claim under 42 USC 1983 Equal Protection Clause, race must be a substantial causation factor in an an employment cause and that employment decision violates the Equal Protection Clause.

Defendants were well aware of the issue of racial discrimination because of Middleton vs City of Flint 92 F 3d (6th Circuit, 1996) where it's promotional and employment policies were struck down by the Courts as illegal discrimination. "An employee who is disciplined solely in retaliation for his membership in support of a union states a valid 1st amendment claim.
Post Tue Feb 07, 2017 8:37 pm 
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untanglingwebs
El Supremo

Boals v Gray, 775 F 2d 686, 69 (6th circuit 1985)

Silent expression protests constituted free expression protected by the First Amendment. (professional Associates of College Educators (TSTA/NEA) vs El Paso Community College District, 730 F2d 258, 264-267, 262 (5th Circuit 1984)

For Sparks and Hamilton to prevail under their 1st Amendment Unlawful Retaliation claim, they must show that their constitutionally protected expression was a motivating factor. Farhat Vs opke 70 F d 588 (6th Circuit 2004)

Plaintiffs must further prove their speech involved a matter of public concern and was made outside their duties of employment, at which point the burden shifts to the government to establish tht its legitimate interest outweighs those of the publc employee. Hughes vs Region VII Area Agency on Aging 542 F d 169, 180 (6th Circuit 2008)
Post Wed Feb 08, 2017 11:48 am 
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untanglingwebs
El Supremo

The arbitrtors find that the City's action and that of the mayor violated Elliott Larsen and 42 USC 198 regarding the CSB positions and that plaintiffs have sustained their burden of proof and have established liabilities against the City of Flint and Mayor Donald Williamson.

With regards to Officers Hamilton and Sparks, the arbitrator finds the plaintiffs have sustained their burden on all claims of liability except as to the age discrimination claim against plaintiff Hamilton.
Post Wed Feb 08, 2017 12:15 pm 
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untanglingwebs
El Supremo

A. DAMAGES FOR DENIAL OF THE CSB POSITIONS
With respect to the CSB positions, there are four components to the damages sought:
1) economic damages for the loss of the positions;
2) emotional distress damages for the loss of the positions;
3) emotional distress damages for the loss of equal employment opportunity; and
4) punitive damages.

[1] Economic and emotional distress damages for the loss of positions

In order to obtain an award of economic damages in a denial of promotion case, generally a plaintiff must prove that their race was a determining factor in them not receiving the promotion.
Lewis v University of Pittsburgh, 725 F 2d 910 (rd Cir, 1983
Loitenen v City of Saginaw, 21Mich App. 10 (1995)
Matras v City of Amoco Oil co. 424 Mich (1995) 675, 682 (1986)


Last edited by untanglingwebs on Thu Feb 09, 2017 2:16 pm; edited 1 time in total
Post Thu Feb 09, 2017 2:00 pm 
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untanglingwebs
El Supremo

In cases where multiple plaintiffs are claiming discrimination with respect to a single or limited number of positions and where it is impossible to determine which candidate would have obtained the positions, some courts have allowed economic damages to be apportioned amongst the plaintiffs who were viable candidates.
See, eg, U.S. v Miami, 195 F d, 1292 (11th cir 1999);
Bishop v Gainer, 27 F 3d 1009, 1017 (7th cir 2001);
Dougherty v Barry, 869 F 2d 605 (DC cir 1989)


This pro rata concept was set forth by the City of Flint in its Motion to Limit Damages and was approved by the Panel in the Arbitration Award No.2.
Post Thu Feb 09, 2017 2:13 pm 
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untanglingwebs
El Supremo

However, in order to apply the apportionment method, we would need to determine the probability hat each Plaintiff would have received each of the positions, and then multiply that percent times their actual damages.
Doll v Brown, 75 F 3d, 1200, 1206-1207 (7th Cir, 1996)
Under the apportionment method, it is rror to allot more damages than the total for the positions and the percentage must total no more than 100%.
U.S. v Miami, 195 F 3d, at 1300-1301; Bishop, 272 F3d at 1016; Doll 75F d at 1206.
Therfore Plaintiffs request that we allocate economic damages amongst the viable candidates for the CB positions is only feasible if there is some method to determine the probabilities that each of them would have obtained such positions. We find that this cannot be done based on the record in this case.
Post Fri Feb 10, 2017 8:56 am 
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untanglingwebs
El Supremo

There are 47 remaining Plaintiffs in this case each asserting they should have been offered and wold have accepted one Major and/or three Inspector positions. Based on these calculations, Plaintiffs assert that the maximum economic damages are $407,010 and ask that we allocate this amount amonst the Plaintiffs. That damage figure is erroneous because it is dependent upon the assumption that we would find that Hetherington would have received the Major position and Gatica, Snyder, and Buterakos would have received the Inspector positions for the purpose of pension los, but that Roberts would have received the Major position, and Erwin, Snyder and Garceau would have received the Inspector positions for the purposes of wage loss. Such a finding would be logically inconsistent, because it would assume a total probability of success for these Plaintiffs of 200%. It would also require a finding that all other Plaintiffs and any African American officers or other non-plaintiffs would have had a zero percent chance for success if the positions had been offered in a non discriminatory manner.
Post Fri Feb 10, 2017 9:10 am 
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untanglingwebs
El Supremo

Some of the Plaintiffs seem more qualified for the CSB positions than other Plaintiffs. Some Plaintiffs seemed to be genuinely interested in the positions while others were not. But we cannot determine what the percentage chance was for each of the Plaintiffs to obtain these positions because they were created and staffed with a complete lack of objective criteria, testing, promotional ranking, or other process. Further, even if the ob offers had been made to the Plaintiffs, it is difficult to determine who would have accepted them Most of the Command officers had better paying jobs, and the stigma of the CSB positions being created outside of the collective bargaining agreements made them undesirable as indicated by the fact that three officers turned down that position
Post Fri Feb 10, 2017 5:05 pm 
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untanglingwebs
El Supremo

Plaintiffs themselves do not provide us with any real guidance as to who should have received the positions, but rather just assert that we should assume that the positions would have gone to all Caucasian officers with the greatest amount of economic damages. As discussed below, we find hat the real harm caused by the discriminatory staffing of the CB positions was not the denial of the positions themselves but the flagrant manner in which the equal employment opportunity was denied. Therefore, we decline to award any economic or emotional distress damages for the actual loss of the CSB positions. Rather we believe that the harm in this case is fully compensated for by the award of damages for loss of equal opportunity as indicated below.
Post Sat Feb 11, 2017 7:40 am 
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untanglingwebs
El Supremo

2 Emotional Distress damages for loss of Equal Employment opportunity

Under Laitnen, even candidates who would not have received the job can still claim emotional distress f they were a viable candidate and were denied the opportunity to be considered. Here, we find that each of the remaining 47 plaintiffs who asserted claims for the CSB positions were viable candidates because they met the minimum criteria set forth in the position description. We also find that to varying degrees each of these plaintiffs were harmed due to a loss of equal employment opportunity. Many of the plaintiffs testified persuasively about how they believed that the history of racial preferences in the Flint Police Department had ended after the Middleton decision, and how they had worked hard to advance in the department through good conduct, hard work, and studying for promotional exams.
Post Sat Feb 11, 2017 7:56 am 
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untanglingwebs
El Supremo

To have such a structural, comprehensive promotional process disregarded due to racial consideration caused emotional harm. Such harm was exacerbated by the manner in which Mr. Williamson staffed the CSB. For example, Mr. Williamson announced that he selected the CSB candidates because they were the "best qualified" people I have; whereas many of the plaintiffs were aware of Mr. dicks abysmal disciplinary record. The complete lack of any reasonable criteria for the selection, and the lack of an application and evaluation process created further emotional distress. Some of the were more compelling than others regarding their emotional distress, and some plaintiffs exaggerated their claims.
Post Sat Feb 11, 2017 8:08 am 
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