Firefighter's suit spurred probe

Pontiac worker claims a minority who did worse on a test was promoted because of quota system

By David Shepardson and Oralandar Brand-Williams, The Detroit News

PONTIAC- The Justice Department's investigation into whether a city policy guaranteeing that one-third of promotions and new hires are women or minorities began after a firefighter filed a federal lawsuit last July challenging the city.

In his complaint, Arthur Frantz - a Pontiac firefighter since 1986 - said he earned the fifth-highest score on the promotional test for lieutenant in March 2002.

Because the top two firefighters on the promotion list were white, Frantz said he was moved down the list and a minority firefighter- at number 12 on the list- was moved up to the third slot and promoted, as was another minority who was No. 21 for promotion. Frantz wasn't promoted as a result.

Frantz's lawyer, James K. Fett, said white firefighters hadn't aggressively challenged the policy because they thought it was legal.

"White guys never complained. If they did, they'd be called racist," Fett said. "They didn't' want to be alienated from their colleagues."

Fett said the contract amounted to "an illegal quota that violates Michigan and federal laws."

Frantz's suit seeking more then $75,000 is still pending.

The Pontiac employment policy, which is part of the collective bargaining agreement since 1984, said there are two lists for hiring and promotions: one listing people in order of score on promotional exams and a "second list being the minorities, including women, in core order. Promotions are to be made from the first list, except that at least one minority will be promoted out of every three promotions," said the policy, according to the lawsuits.

Within the last month, the Justice Department's Civil Rights Division gave city attorney Eric Goldstein a draft of a lawsuit and a proposed consent decree - in which the city would vow not to continue its requirement that has a quota for minority and female firefighters. The suit was filed Tuesday.

Civil rights attorney Miranda Massie, who represented students backing the University of Michigan Law School's affirmative action policy in its U.S. Supreme Court case, condemned the lawsuit.

"The Bush administration has expressed extreme hostility at any measure directed at equality for minorities and women...in that way their aggressiveness against Pontiac's affirmative action program isn't a surprise. They are gong out on a limb to attack the only program that has succeeded in bringing us to a small step in equality in public employment." University of Detroit Mercy Law professor Larry Dubin said the lawsuit "is not without precedence. In recent years there have been more instances of reverse discrimination being litigated in the courts," Dubin said. "It's not unique, but it's unusual because we do not think of discrimination being effectuated by white males."

Pontiac, which has severe budget problems, wants to avoid a protracted legal fight.

It is currently in contract negotiations with the firefighters union, Local 376 of the International Association of Firefighters, which was also named by the Justice Department in its suit.

"The thrust of the (Justice Department) message is they don't like our affirmative action plan," Goldstein said. He said the city is open to a settlement. "We're not interested in fighting, and we would like to move forward."

Goldstein said the city has asked the Michigan Department of Civil Rights if it believes its affirmative action plan is legal - and what if any changes the city needs to make.

Mark Heinen, an attorney for Local 376 said the union supports ending the preferences. "The union believes it is time to take the dual-list provisions for hire and promotion out of the contract," he said.

The city also wants the provision out of the contract, Goldstein said, but insisted its goals of affirmative action are still valid.

Despite the affirmative action plan, the department currently has just one female firefighter, Fett said. Another female firefighter is on disability.

The department is nearly evenly split between blacks and whites, Fett said. Goldstein couldn't confirm whether Fett's numbers were accurate. The city is 48 percent Black, 34 percent white and 12 percent Hispanic, according to the 2000 census.

John Bueno, a five-term Pontiac city councilman who is Hispanic, said the policy was needed and adopted to get minorities in to the fire department.

"I'm hoping (the lawsuit) is not successful," Bueno said, adding that whether the quota program is still needed remains "to be determined."

The Justice Department's lead lawyer, Carl D. Wasserman, declined to comment.

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