                                                                   [PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                      FOR THE ELEVENTH CIRCUIT
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                        ________________________              11/17/99
                                                           THOMAS K. KAHN
                               No. 98-4626                     CLERK
                        ________________________

                     D. C. Docket No. 75-3096-CV-JWK

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellant,


                                    versus

CITY OF MIAMI,

                                                       Defendant-Appellant,

FRATERNAL ORDER OF POLICE,
LODGE NO. 20,
                                                       Defendant-Appellee,

BOARD OF TRUSTEES OF THE CITY OF MIAMI
FIREFIGHTERS’ AND POLICE OFFICERS’
RETIREMENT TRUST,
                                                       Intervenors-Appellants.


                       ________________________

                 Appeals from the United States District Court
                     for the Southern District of Florida
                       _________________________
                            (November 17, 1999)
Before ANDERSON, Chief Judge, MARCUS, Circuit Judge, and MILLS*,
Senior District Judge.

MARCUS, Circuit Judge:

      This appeal is the latest chapter in a lengthy litigation saga over a 1977

nondiscrimination consent decree between the United States of America, the City of

Miami, and the Fraternal Order of Police, Lodge No. 20.           In this iteration, the

Fraternal Order of Police (“Appellee”), on behalf of a class of white and Hispanic

police officers, brought two civil contempt actions against the City of Miami for

“reverse” race discrimination in its 1992 police officer promotion practices. The

district court found that the City had discriminated on the basis of race in its “special

certification” of several minority promotion candidates, resulting in the unlawful

promotion of one black lieutenant and one black sergeant. As a result, the district

court held the City in civil contempt of the 1977 consent decree. The district court

then awarded broad “make-whole” relief to all “adversely affected” police officers,

as if each of these officers actually would have received one of the two promotions

in 1992.

      On appeal, the United States of America and the City of Miami (“Appellants”)

do not challenge the district court’s finding of race discrimination or civil contempt.


      *
        Honorable Richard Mills, Senior U.S. District Judge for the Central District of
Illinois sitting by designation.
                                           2
The sole issue before us is whether the district court abused its discretion in fashioning

broad “make-whole” relief for the entire officer class. After a thorough review of the

record and the parties’ briefs, we conclude that the district court’s chosen remedy was

excessive and that it should have divided the monetary value of the two promotions

on a pro rata basis amongst the class of eligible candidates. We therefore vacate, in

part, the judgment filed on March 13, 1998, and remand with instructions for its

modification consistent with this opinion.

                                            I.

      The facts of this prolonged case began in 1975 when the United States of

America sued the City of Miami, various City officials, and several police officer

unions for discriminatory employment practices adversely affecting black, Hispanic,

and female individuals in police hiring and promotion policies in violation of Title VII

of the Civil Rights Act of 1964, the Fourteenth Amendment, and 42 U.S.C. §§ 1981

and 1983. The United States and the City agreed to settle the case, and the district

court approved a consent decree in 1977 over the objections of a police union, the

Fraternal Order of Police (“FOP”). The consent decree required the City to establish

promotional “goals” for protected minority groups.2


      2
       The decree contains the following relevant provisions:

             1. The defendant City of Miami, its officials, agents . . . are
                                            3
      At the time, police promotion decisions were governed by a civil service rule,

Ordinance No. 6945, known as the “Rule of One.” The rule required the City to hire

and promote certified applicants rigorously based on their designated rank order on


            permanently enjoined and restrained from engaging in any
            act or practice which has the purpose or effect of
            unlawfully discriminating against any employee of, or any
            applicant, or potential applicant for employment with the
            City of Miami because of such individual’s race, color, sex,
            or national origin. Specifically, the City shall not refuse to
            hire, promote, upgrade, train, or assign any individual,
            discharge any individual, or otherwise discriminate against
            any individual as an employee or applicant for employment
            with respect to compensation, terms, conditions, or
            privileges of employment because of race, color, sex, or
            national origin.
                                       ...

            5. Goals

            In order to eliminate the effects of past discriminatory
            practices against blacks, Latins, and women, the City shall
            adopt and seek to achieve as its long term goal the
            participation at all levels throughout its workforce of
            blacks, Latins, and women approximating their respective
            proportions in the City’s labor force. . . . The purpose of
            this goal is to eliminate the substantial under-representation
            and uneven distribution of blacks, Latins, and women
            throughout the City’s workforce. . . .

            (b) Promotions

            Subject to the availability of qualified applicants,
            promotional goals shall be established for minorities . . . .

                                          4
the eligible candidate register. This rank order was determined solely by the results

of the civil service promotional exam. On April 17, 1978, the Justice Department

wrote a letter to the Miami City Manager outlining how the City’s “Rule of One”

adversely affected minority employees in violation of the consent decree. In July

1979, the City amended its civil service rules, adopting Ordinance No. 8977 which,

among other things, substituted a “Rule of Eight" for the previous “Rule of One.”

      Under the new rule, eight candidates must be certified for each vacant position

by the City Director of Personal Management. The first five candidates must be

chosen in rank order from the results of the promotional exam. However, the Director

also has the discretion, as affirmative action needs dictate, to certify three minority

officers by exam rank order. For each additional vacancy, two candidates are to be

added to the certified candidate pool: the officer with the next highest overall test

score and the minority officer with the next highest test score. In addition, the City

also passed a “special certification” rule, Rule 8.7, that allows the Director to certify

up to three additional candidates if special requirements of sex or domicile are

involved, or additional “special qualifications” are required. All certified candidates

must score high enough on the promotional exam to satisfy the City’s eligibility

requirement. Once a list of eligible candidates has been certified, the Miami Police

Chief conducts interviews with each certified candidate. The Chief then chooses his


                                           5
promotions based on the interview and other subjective factors. A candidate’s written

exam score plays no role in this final decision-making process.

      In 1981, we finally heard the FOP’s appeal of the consent decree. We approved

the decree’s provisions pertaining to the City and the United States, but adjudged

those provisions pertaining to the FOP invalid because the FOP had not consented to

the decree. See United States v. City of Miami, 614 F.2d 1322 (5th Cir. 1980),

vacated in part, 664 F.2d 435, 438-39 (5th Cir. 1981) (en banc). On remand, the

district court entered a consent order on April 4, 1983, to which the FOP voluntarily

consented, that maintained in full force and effect the provisions of the earlier consent

decree including the “Rule of Eight.” The City still employs the “Rule of Eight” for

all police hires and promotions.3

      On March 24, 1992, a promotional register for the rank of police lieutenant was

posted by Director Angela Bellamy based on the results of the written exam. On April



      3
        In 1983, the Miami Association of Firefighters, Local 587 challenged the
City’s implementation of the “Rule of Eight.” The district court ruled that the union
had signed the consent decree and therefore was bound by its terms, particularly
including the “Rule of Eight.” The district court also determined that the “Rule of
Eight” was a legitimate tool to remedy the effects of past City discrimination. Local
587 appealed, but the appeal was dismissed for procedural reasons. See United States
v. City of Miami, 2 F.3d 1497, 1500-01 (11th Cir. 1993). Because this litigation
involves only the Police and not the Fire department, we limit our discussion of the
history of all relevant litigation involving the Fire Department to the extent necessary
to understanding the issues raised in this appeal.
                                           6
8, Miami Police Chief Calvin Ross requested a certification list to fill sixteen police

lieutenant vacancies. That same day, the Chief also requested in a memo that

additional black candidates be “specially certified” for the position in accordance with

Rule 8.7 to provide “positive role models and ethnic recognition.” At the time, two

of twenty-nine lieutenants (roughly seven percent) in the Miami police department

were black. On May 18, Director Bellamy ordered that a portion of the promotional

exam be re-administered due to errors in the original exam. A new exam was given

on May 28 and June 1. On June 19, a new eligible register was established. On July

21, 1992, Police Chief Ross again requested Director Bellamy to issue a certification

list to fill the sixteen vacancies. In a same-day memo, Ross also re-requested that

additional black candidates be “specially certified” in accordance with Rule 8.7. The

memo explained that black supervisors were needed to “understand and speak ” non-

traditional English. It also noted that black supervisors were needed because many

drug enforcement operations occurred in black neighborhoods, requiring supervisors

who could “blend” into the environs and make “command-level decisions.”

       On July 23, three black male candidates were certified under the “special

qualifications” requirement-- Roberson Brown, Jr., Bobbie J. Meeks, and Gerald L.

Darling. Each of these candidates, based on their exam scores, would have been

eligible under the Rule of Eight for certification even if no “special certification” had


                                           7
taken place. All three received a promotion to lieutenant. However, as a result of the

“special certification,” three additional minority candidates were made eligible for a

lieutenant promotion: Alphonso Erving, Javier Mayor, and Melvin Uptgrow. One of

these candidates, Erving, actually received a promotion. Erving would not have been

eligible for promotion if the “special certification” had not occurred-- i.e., his test

score was too low to be included in the normal certification pool of 38 candidates but

was high enough to be included once the pool was expanded to 41 candidates based

on the “special certification.” In the end, four white males, six Hispanic males, four

black males (including Erving), one Hispanic female, and one white female were

promoted to lieutenant.

      On November 25, 1992, Chief Ross requested Director Bellamy to add several

Creole speakers through “special certification” to the eligible candidate register for

five available police sergeant positions. Two Creole-speaking candidates were then

added to an original candidate list of 16 persons: Gary Eugene, a black male ranked

107th on the eligible register and Mario Roman, a Hispanic male ranked 77th on the

eligible register. Eugene’s employment application recorded his Creole skills as

advanced while Roman’s application recorded his Creole skills as beginner. The

police chief selected Eugene over Roman for one of the sergeant positions.




                                          8
      In 1993, the FOP filed two civil contempt motions against the City for consent

decree violations stemming from these police lieutenant and sergeant promotions.

The FOP argued that the City had employed its “special certification” procedure to

unlawfully select officer candidates solely on the basis of race. The first motion

alleged that the City’s “special certification” of several black officers, in response to

the Police Chief’s request for black lieutenants to supervise undercover operations in

predominantly black neighborhoods, was a pretext for promoting lieutenants on the

basis of race. The second motion claimed that the City’s “special certification” of two

minority sergeant candidates, in response to the Police Chief’s request for Creole-

speaking sergeants, was a pretext for promoting sergeants on the basis of race or

ethnicity. Both parties agreed to have the motions resolved on the case record and

submitted a joint statement of undisputed facts on March 14, 1997. The United States

requested an evidentiary hearing on the merits of the motions but the request was

denied.

      On March 13, 1998, the district court granted the FOP’s motions. In so ruling,

the court interpreted the consent decree to prohibit the designation of race as a

“special qualification” for promotion. The court then dismissed both City “special

certification” reasons as being pretextual. With respect to the lieutenant promotions,

the court specifically found that since lieutenants serve a supervisory rather than a


                                           9
field capacity, there was no legitimate need to select candidates on the basis of their

racial ability to “blend” into target communities. The district court also found that the

City had made no showing of how lieutenant command functions required officers of

a particular race. As a result, the court determined that the City improperly certified

three black candidates out of forty-one total candidates, of which, one improperly

received a promotion.

      With respect to the sergeant promotions, the district court found that ethnicity

rather than Creole was the predominant “special qualification” for the “special

certification” of two sergeant candidates. In its findings, the district court determined

that police sergeants conducted their official responsibilities in English rather than

Creole, and that the City had not tested sergeant candidates for language skills nor

mentioned language in its advertisements for the sergeant promotions. The district

court finally concluded that City civil service rules allowed for the temporary

appointment of Creole-speaking sergeants if an emergency situation required it. One

sergeant candidate, Gary Eugene, received a promotion after being improperly

certified under the City’s “special certification” procedures.

      To remedy these certification violations of the consent decree and the

concomitant promotion of one lieutenant and one sergeant, the district court ordered

extensive “make-whole” relief for all police employees “adversely affected.” This


                                           10
class includes the twenty-three lieutenant and twelve sergeant candidates eligible for

promotion who were bypassed in favor of the two candidates improperly certified

through the City’s “special certification” rule.4 All class members were awarded full

backpay, retroactive seniority, a fifteen thousand dollar lump-sum pension payment,

and a one rank promotion from their current positions. This relief was ordered despite




       4
        Because the district court’s order never precisely defines the “adversely
affected” officer classes, we now clarify which officers may receive remedial relief.
At one point, the district court’s order suggests, with respect to the sergeant class, that
relief be granted to all persons ranked higher on the promotional register than Gary
Eugene, who received one of the sergeant promotions after being improperly certified under the
“special certification” rule. Eugene ranked 107th on the register based on his exam score. There
were over seventy officers who ranked ahead of Eugene on the register who were not selected for
one of the sergeant promotions. To the extent the district court order is read in this way, it
constitutes a clear abuse of discretion. None of the officers ranking higher than Eugene, who were
not certified under the Rule of Eight, were eligible for the sergeant promotion under the City’s civil
service promotion rules. The City’s unlawful “special certification,” which resulted in the
certification of Eugene, did not deprive any eligible sergeant candidates from being added to the
qualified candidate pool. The City’s discriminatory practice merely added additional minority
candidates to the pool of eligible candidates as already determined by the written exam. The district
court order attempts to fashion “make-whole” compensatory relief to those officers who were
adversely affected by the City’s discrimination. In the Title VII context, we have held
unambiguously that “make-whole” relief is intended to recreate employment conditions that would
have existed absent an employer’s discrimination-- i.e., to place “the injured party in the position
he or she would have been in absent the discriminatory actions.” Walters v. City of Atlanta, 803
F.2d 1135, 1145 (11th Cir. 1986) (citing Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975);
Nord v. United States Steel Corp., 758 F.2d 1462, 1470 (11th Cir.1985)). This holding draws
support from the Supreme Court’s conclusion in Stotts that Title VII “provide[s] make-whole relief
only to those who have been actual victims of illegal discrimination.” Firefighters Local Union No.
1784 v. Stotts, 467 U.S. 561, 580 (1984). The only police officers who were actually harmed by the
City’s discrimination were those officers who were “qualified” or eligible for the 1992 promotions
according to the City’s “Rule of Eight,” and were passed-over in favor of the two ineligible officers.
Twenty-three lieutenant and twelve sergeant officers fall into this group. Therefore, on remand, as
we explain infra, we instruct that remedial relief only be granted to these thirty-five officers.

                                                 11
the fact that only one lieutenant and one sergeant candidate obtained a promotion in

1992 as a result of the City’s unlawful certification procedures.

                                         II.

      We review the district court’s remedial relief award pertaining to violations of

the consent decree for an abuse of discretion. See Miranda v. B & B Cash Grocery

Store, 975 F.2d 1518, 1534 (11th Cir. 1992); EEOC v. Guardian Pools Inc., 828 F.2d

1507, 1511 (11th Cir.1987).

      District courts enjoy “wide discretion to fashion an equitable remedy for [civil]

contempt that is appropriate to the circumstances.” Guardian Pools, 828 F.2d at 1515.

These sanctions may serve one of two broad purposes: (1) coercing the contemnor to

comply with a court order, or (2) compensating a party for losses suffered as a result

of the contemptuous act. See Jove Engineering Inc. v. IRS, 92 F.3d 1539, 1557 (11th

Cir. 1996) (citing Guardian Pools, 828 F.2d at 1515). In serving these ends, a court’s

civil contempt power is measured solely by the “‘requirements of full remedial

relief.’” Citronelle-Mobile Gathering, Inc. v. Watkins, 943 F.2d 1297, 1304 (11th Cir.

1991) (quoting Guardian Pools, 828 F.2d at 1515) (citation omitted)). However, a

district court may not use the civil contempt power to impose what amounts to a

punitive or criminal contempt sanction. See In Re E.I. Dupont De Nemours &

Company-Benlate Litigation, 99 F.3d 363, 368 (11th Cir. 1996) (noting that it


                                         12
“‘requires no citation of authority to say that a district court may not, even

unwittingly, employ a civil contempt proceeding to impose what, in law, amounts to

a criminal contempt sanction’”) (quoting Blalock v. United States, 844 F.2d 1546,

1560 n.20 (11th Cir. 1988) (per curiam) (Tjoflat, J., specially concurring)). A punitive

or criminal contempt sanction may only be fashioned after many of the due process

safeguards afforded to defendants in criminal proceedings--the right to counsel, the

privilege against self-incrimination, the presumption of innocence, and the right to a

jury trial in serious cases--are provided to an alleged contemnor. See Chandler v.

James, 180 F.3d 1254, 1267 (11th Cir. 1999) (Tjoflat, J., specially concurring).

      In this case, the district court conducted a civil rather than a criminal contempt

proceeding. The district court ordered sweeping “compensatory” relief designed to

“make-whole” those police officers adversely affected by the City’s racially

discriminatory certification procedures. Appellants do not challenge the district

court’s findings of racial discrimination and civil contempt. Therefore, the sole issue

before us is whether the district court’s broad remedial relief was an abuse of

discretion. In answering this question, we draw on relevant principles of Title VII

jurisprudence for evaluating “make-whole” compensatory relief.

      The clear purpose of “make-whole” relief in the face of unlawful

discrimination, whether in the Title VII or civil contempt context, is to “‘recreate the


                                          13
conditions and relationships that would have been had there been no ‘unlawful

discrimination.’” See International Bd. of Teamsters v. United States, 431 U.S. 324,

372 (1977) (quoting Franks v. Bowman Transp. Co., 424 U.S. 747, 769 (1976)).

Regrettably, no ex post method of fashioning remedial relief can ever truly recreate

the past as it would have existed absent an employer’s discriminatory conduct.

Nevertheless, in this case, we must attempt to discern how the 1992 police promotions

likely would have proceeded in the absence of the discriminatory “special

certification” procedures implemented by the City. In one respect, our task is clear.

We know the qualified pool of eligible candidates, based on the promotional exam

results, who were bypassed for promotion. All told, there were twenty-three certified

lieutenant candidates and twelve certified sergeant candidates not promoted. We also

know that one promotion for each of these ranks was received by a candidate who

would not have been eligible absent the City’s discrimination. Therefore, it is plain

that, in the absence of City discrimination, only one of these twenty-three lieutenant

candidates and only one of these twelve sergeant candidates would have received a

promotion.

      However, it is difficult, if not altogether impossible years later, to discern which

of these candidates would have been promoted. The Miami Police Department

utilized a wholly subjective interview process to make its final promotion decisions.


                                           14
A candidate’s exam score played no role in his ultimate selection; it merely

determined who would be “certified” or eligible for the final interview stage. Because

of the subjective promotion process, the district court, quite apparently, could not

identify which two officers, out of a total of thirty-five, should have received the 1992

promotions, and therefore it opted to employ a classwide promotion remedy instead.

Previously, we have held that a classwide remedy may be employed in such

circumstances. We have explained in the context of remedial backpay relief that a

classwide remedy is appropriate when fashioning an individualized remedy would

create a “‘quagmire of hypothetical judgment[s]’” as to which individuals, out of a

large class, should receive remedial relief. United States v. United States Steel Corp.,

520 F.2d 1043, 1055 (5th Cir. 1975) (quoting Pettway v. American Cast Iron Pipe Co.,

494 F.2d 211, 260 (5th Cir. 1974)).5 In endorsing this approach, we have recognized

that the only other relief alternatives would be unpalatable: either (1) randomly

selecting several individuals from a large class for full “make-whole” relief, or (2)

awarding no relief at all because specific individuals deserving of a “make-whole”

remedy could not be identified from a victim class. As a result, we have observed that

remedial relief does not require “‘unrealistic exactitude,’” and that “‘uncertainties’”


      5
       Decisions by the former Fifth Circuit prior to September 30, 1981 constitute
binding precedent in our circuit. See Bonner v. Prichard, 661 F.2d 1206, 1207 (11th
Cir. 1981).
                                           15
in the relief process “‘should be resolved against the discriminating employer.’”

United States Steel, 520 F.2d at 1050 (quoting Pettway, 494 F.2d at 260-61) (footnote

omitted)). However, at the same time, we have instructed that classwide remedies

must strive for equity to both parties, and that the “key is to avoid both granting a

windfall to the class at the employer’s expense and the unfair exclusion of claimants

by defining the class    . . . too narrowly.” Pettway, 494 F.2d at 262 n.152.

      While we agree with the classwide approach employed by the district court

under the facts of this case, we find that the scope of the remedy imposed plainly was

overly broad. Simply put, the district court treated each bypassed candidate as if he

had a one hundred percent probability of receiving a promotion absent the City’s

discrimination. Each eligible promotion candidate received the full value of a 1992

promotion including backpay, retroactive seniority, a fifteen thousand dollar pension

payment, and a one rank promotion from their current position. However, the district

court itself acknowledged that each candidate stood much less than a one hundred

percent chance of promotion since it could not identify two individuals who would

have been likely promoted absent the City’s discrimination. Based on mathematical

probability alone, each lieutenant candidate stood only a one in twenty-three (or four

percent) chance of promotion, and each sergeant candidate stood only a one in twelve

(or eight percent) chance of promotion.


                                          16
      Given these very long odds, we conclude that the district court should have

relied on a variant of the pro rata method for computing classwide remedial relief.

This computation method awards each class member a proportional share of the full

monetary value of the promotion for which they were eligible. In this case, each

certified sergeant candidate not selected for the promotion would receive a one-twelfth

share; while each certified lieutenant candidate not selected for the promotion would

receive a one-twenty-third share. In the past, we have recommended this specific

method when, even after reasonable effort, a court is unable to differentiate between

class members for remedial relief purposes. See United States Steel, 520 F.2d at

1055-56. In United States Steel, the former Fifth Circuit “commended” to the district

court a pro rata methodology where there was clear proof of systematic race

discrimination against a large class of black steelworkers but an unclear methodology

for determining which specific individuals deserved backpay relief. See United States

Steel, 520 F.2d at 1055-56. Several of our sister circuits also have recommended the

pro rata method in similar circumstances.6 See Dougherty v. Barry, 869 F.2d 605,


      6
        The only notable exception to this approach occurred in Taxman v. Board of
Educ., 91 F.3d 1547 (3d Cir. 1996), where the Third Circuit upheld full backpay relief
to a teacher laid off as a result of a discriminatory school board affirmative action
policy-- even though the plaintiff would have maintained only a fifty-fifty chance of
retaining her job absent the discrimination. See id. at 1565-66. In deciding between
two teachers of equal seniority and merit for one position, the school board used race
to break the tie, rather than a coin toss. The court of appeals concluded that because
                                          17
614-15 (D.C. Cir. 1989) (directing district court to employ pro rata method where

eight plaintiffs would have competed, absent defendant’s discrimination, for two

promotions); Ingram v. Madison Square Garden Center, Inc., 709 F.2d 807, 812 (2d.

Cir. 1983) (vacating individual “make-whole” relief to a victim class that exceeded

the number of actual vacancies and recommending pro rata method instead); Hameed

v. International Ass’n of Bridge, Structural, & Ornamental Iron Workers, Local Union

No. 296, 637 F.2d 506, 519-21 (8th Cir. 1980) (recommending classwide pro rata

backpay award given difficulty of determining which individuals, out of 45 plaintiffs,

would have received apprenticeships absent discrimination); Stewart v. General

Motors Corp., 542 F.2d 445, 452-54 & n.7 (7th Cir. 1976) (favoring classwide pro rata

award where defendant’s subjective promotion procedures made it impossible to

fashion an individualized remedy). We find the factual posture of Dougherty

particularly germane. In Dougherty, eight white firefighters received promotions as

compensatory relief for the District of Columbia Fire Department’s racially

discriminatory promotion practices, even though only two of the firefighters would



the plaintiff had a fifty percent probability of retaining her position and the school had
unclean hands as the discriminatory wrongdoer, it was within the district court’s
discretion to award full backpay. See id. This case is distinguishable since it involved
two individuals for one position, and a probability of retention (fifty percent) closely
approximate to a more likely than not standard, rather than a very large class vying for
only one position.
                                           18
have received a promotion absent the discriminatory practices. The court of appeals

vacated the award, since each class member stood only a one in four chance of

promotion, and instead recommended that each firefighter receive a pro rata share of

the promotions’ value. Dougherty, 869 F.2d at 614 (concluding that “in order to

restore appellees to the position they would have occupied absent discrimination, the

district court should have awarded each appellee a fraction of the promotions’

commensurate value with the likelihood of his receiving one of the promotions”)

(citation omitted).

      In this case, each class member stood a much slimmer chance of obtaining one

of the two available promotions. Only one of twelve sergeant candidates (roughly

eight percent of the sergeant class) and one of twenty-three lieutenant candidates

(roughly four percent of the lieutenant class) actually would have received a

promotion absent the City’s discrimination. In short, the district court’s award placed

the officers in the class in a substantially better position then they would have

occupied absent the City’s discrimination by dramatically inflating their actual

chances of obtaining only one of two available positions. While cognizant of the need

to compensate victims of discrimination, even where relief calculations are

complicated by the size of the class, we conclude that “make-whole” remedial relief

awards, at the very least, must be proportionate to a court’s best determination of the


                                          19
actual compensatory losses of a class. In this way, we balance between our twin

duties to fairly compensate discrimination victims and yet avoid punitive remedial

relief awards.

      Under these facts, full remedial relief for all thirty-five officers--which is what

the district court ordered--amounts to an unfair and sweeping windfall to the officer

class and an abuse of the district court’s discretion to award remedial relief. Its

estimated cost would be around nine million dollars.7 However, the estimated

monetary value of the two lost promotions is only a little over five hundred thousand

dollars. To be sure, the fashioning of remedial relief is a highly fact-specific inquiry

best left to the discretion of district courts.   That said, the unambiguous goal of

“make-whole” relief is to compensate persons who have actually suffered from

unlawful discrimination for their actual compensatory losses. Therefore, remedial

relief must be constructed with a close eye towards an employer’s likely promotion

practices and those class members likely to have been promoted had there been no

discrimination. See Ingram, 709 F.2d at 812 (observing that “remedial relief should



      7
        The estimated backpay differential is $68,000 for each lieutenant and $58,000
for each sergeant, totaling around $2.2 million dollars. The lump-sum pension
payments amount to $525,000 ($15,000 for each of the thirty-five officers). The City
Retirement Trust also estimates that lost retirement benefits, for the entirety of an
officer’s career, would amount to another $180,000 for each officer or $6.3 million
dollars for the entire officer class.
                                           20
be granted only to those class members who would have filled vacancies had there

been no discrimination”). We find the nexus between thirty-five candidates and only

two promotion slots far too disproportionate to sustain full remedial relief for the

entire class.

       In fact, the amount awarded by the district court so exceeds the monetary value

of the lost promotions that we can only interpret the award as punitive in nature. The

“compensatory” civil contempt class award is eighteen times greater than the actual

value of the two lost promotions. While we previously have recognized that the line

between civil and criminal contempt sanctions is not “always clear,” Chandler, 180

F.3d at 1267 (Tjolfat, J., specially concurring), and that we must draw such

conclusions from “‘the character of the relief itself,’” International Union, United

Mine Workers v. Bagwell, 512 U.S. 821, 828 (1994) (citation omitted), this

“compensatory” award plainly is so excessive as to be punitive. Moreover, the district

court’s award of thirty-five retroactive promotions, where absent the City’s

discrimination only two additional promotions would have been available, could

radically restructure the City’s police force by creating many more lieutenants and

sergeants than the City sought fit to create under its own promotion policies. The very

magnitude of this remedy risks reshaping the Police Department in a variety of ways

unforseen and unintended by the district court.


                                          21
      We therefore vacate the award, and remand the matter to the district court.

Because of the subjective nature of the City’s promotion process, the district court was

unable to identify two individual class members who should have received the 1992

promotions. On remand, we therefore direct the district court to award each certified

officer candidate a pro rata share of the monetary value of the promotion for which

they were eligible.

                                          III.

      In sum, the district court’s remedial award was excessive, and should have been

limited to a pro rata division among those officers certified for the 1992 promotions.

The twelve sergeant candidates should share, on a pro rata basis, the value of the

sergeant promotion. The twenty-three lieutenant candidates should share, on a pro

rata basis, the value of the lieutenant promotion. Accordingly, we vacate the district

court’s award and remand.

      VACATED IN PART AND REMANDED.




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