SYKES, Circuit Judge.
This interlocutory appeal arises from a complaint filed against the City of Indianapolis, its law-enforcement Merit Board, and seven city officials alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and 42 U.S.C. § 1983. The plaintiffs—three white police lieutenants—claim they were subjected to reverse discrimination because they were passed over for promotion to the rank of captain despite ranking higher on the Police Department's promotion eligibility list than three African-American lieutenants who were promoted ahead of them. The individual city officials moved for judgment on the pleadings, claiming qualified immunity based on the terms of a 1978 consent decree entered into by the Indianapolis Police Department and the United States Department of Justice ("DOJ"). They maintained that the consent decree required them to make the promotions at issue here. A magistrate judge disagreed and denied the motion, and the city officials appealed.
We affirm. The 1978 consent decree does not operate to confer qualified immunity on the city officials who were involved in making the challenged promotions. Nothing in that decree required them to take race into consideration in making promotions. To the contrary, specific language in the decree required promotions within the Police Department to be made without regard to race or color.
In December 2006 the Indianapolis Police Department
After receiving a Notice of Right to Sue, the three lieutenants brought this suit alleging that the City of Indianapolis and its law-enforcement Merit Board violated Title VII, and that seven individual city officials who were involved in making these employment decisions violated § 1981 and § 1983 by denying them a promotion to captain solely on the basis of their race.
More specifically, the city officials claimed in their motion that the 1978 consent decree conferred qualified immunity from suit because it effectively mandated the promotion decisions at issue here. The magistrate judge disagreed, concluding that the consent decree did not require—or even permit—the Police Department to make promotions based on race. The judge noted that although the consent decree set recruitment and hiring goals for African-American officers, it specifically stated that "[p]romotions shall be based upon relevant standards and criteria which will be applied without regard to race or color." The judge denied the Rule 12(c) motion in its entirety, and the individual city officials appealed.
We have jurisdiction under the collateral-order doctrine to hear this appeal challenging the magistrate judge's denial of the individual city officials' claim of qualified immunity. In Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Supreme Court held that "a district court's denial of a claim of qualified immunity, to the extent it turns on an issue of law, is an appealable `final decision' within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment."
District-court orders denying qualified immunity are reviewed de novo. Carvajal v. Dominguez, 542 F.3d 561, 566 (7th Cir.2008). Because this case comes to us following the denial of a Rule 12(c) motion for judgment on the pleadings, we construe the allegations in the complaint in the light most favorable to the plaintiffs, Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir.2009), and ask two questions: (1) Do the facts alleged show that a constitutional right was violated, and (2) was the right in question sufficiently well established that a reasonable officer would have been aware of it? Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); Narducci v. Moore, 572 F.3d 313, 318 (7th Cir.2009). Under Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 812, 172 L.Ed.2d 565 (2009), we need not consider these questions sequentially, but in this case, it makes sense to do so.
In denying the defendants' claim of qualified immunity, the magistrate judge concluded that the lieutenants had adequately alleged a violation of their right to equal protection in their employment, that this right was sufficiently well established in 2006 when the promotions in question took place, and that the 1978 consent decree did not require the City to make promotions based on race. These determinations were sound.
"Race-conscious employment decisions made by the state are presumptively unconstitutional and will satisfy the requirements of equal protection only where they are consistent with strict scrutiny." Alexander v. City of Milwaukee, 474 F.3d 437, 444 (7th Cir.2007); see also Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) ("[W]e hold today that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny."); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493-94, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (holding that the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefitted by a particular classification). The lieutenants alleged in their complaint that they were passed over for promotion in favor of three black lieutenants despite ranking higher on the Police Department's merit-based "eligibility list" than those who received promotion. A racial classification having been identified, it is the defendants' burden to prove that the classification satisfies strict scrutiny, Alexander, 474 F.3d at 444-45, a burden rarely carried at the pleadings stage. The lieutenants' complaint thus sufficiently alleges a constitutional violation. As for the second inquiry, it is well established under Croson and Adarand that racial classifications undertaken by governmental officials are constitutionally suspect and subject to strict scrutiny. Id. at 446-47.
The city officials do not challenge this basic analysis. They argue instead that they are entitled to qualified immunity because their actions were compelled by the 1978 consent decree. They cite the Eighth Circuit case of Martinez v. City of St.
The 1978 consent decree is a comprehensive agreement designed to remedy unlawful racial discrimination and correct underrepresentation and underutilization of African-Americans in the Police Department.
Section X, titled "Job Assignments," is designed to eliminate race-based work assignments; it states that "duties, job assignments and transfers given to any individual officer are not to be based solely upon any individual's race or color." Importantly here, the consent decree is quite clear that race shall have no place in the promotions process. Promotions are addressed in Section IX, and that section contains language specifically mandating that "[p]romotions shall be based upon relevant standards and criteria which will be applied without regard to race or color." (Emphasis added.)
Faced with this unmistakable directive, the city officials contend that they were more generally required to take appropriate remedial actions—including actions that were directly motivated by racial considerations—in order to effectuate the overall purposes of the consent decree, i.e., to increase the number of African-Americans throughout all levels of the Police Department. They insist that this reading is the only one that "harmonizes" all of the consent decree's key provisions. Their argument hinges on the "Goals" subsection of Section IX of the decree, which states in relevant part:
The city officials ask us to read this provision in conjunction with an earlier provision which provides that "[r]emedial actions and practices required by the terms or permitted to effectuate and carry
The defendants also contend that the consent decree would be rendered internally inconsistent if Section IX's prohibition on using race as a promotion criterion is read as an absolute bar against any race-based decision-making in the promotions context. This argument is unconvincing. We find no inconsistencies in the language of the various provisions; in fact, the framework the decree establishes is quite logical.
Three critical elements of the consent decree work to ensure that African-Americans are promoted to sergeant, lieutenant, and captain at a reasonable rate. First, Section IV requires that the pool of applicants for these various positions (i.e., officers in the Police Department) include a "reasonably representative" number of African-Americans. Second, Section X requires the Police Department to refrain from using race as a factor when handing out job assignments; among other things, this provision assures that African-American officers are not routinely excluded from work assignments likely to lead to promotion. Finally, the consent decree requires that the "promotional selection device[s]" adopted by the Police Department be racially neutral. More specifically, Section IX(D) mandates that any promotional screening tool "may not be used more than one (1) time if it has an adverse effect on blacks and it is not shown to be properly validated in accordance with applicable federal guidelines."
If the Police Department were permitted to adjust the results of any promotional test, ex post, in order to advantage African-American officers, Subsection IX(D) would be of little use because the results of any offending test could simply be manipulated after the fact in order to produce the desired outcome. Properly understood, Subsection IX, read as a whole, operates to prohibit so-called "race-norming" in promotions. Accordingly, we agree with the magistrate judge that the consent decree did not require the use of race as a factor in making promotion decisions. The individual defendants are not entitled to qualified immunity from suit.
AFFIRMED.
In separate litigation the DOJ brought suit against the Police Department alleging that the Department had violated Title VII by making promotions on the basis of race and sex, citing in particular (among other examples) the lieutenants who are plaintiffs in this case as instances of reverse discrimination in the Department's promotion decisions. The Police Department entered into another consent decree in which, without admitting any liability, it agreed to retroactively promote all of the alleged victims, including the lieutenants in this case. Instead of pursuing relief through this new consent decree, the lieutenants elected to proceed with this lawsuit.