Stotts v. Memphis Fire Department

BOYCE F. MARTIN, Jr., Circuit Judge,

concurring in part, dissenting in part.

I write separately because I can concur only in the result. I agree that the District Court properly enjoined the City of Memphis from laying off black firefighters on the basis of city-wide seniority. In my view, the plaintiffs satisfied the traditional prerequisites for injunctive relief, and the District Judge did not abuse his discretion in granting plaintiffs the temporary relief which they sought. I also agree that the District Court erroneously determined that the seniority system was not bona fide.

*568 However, I can agree with only one of the theories Judge Keith espouses to justify modification of the consent decree by injunction. Judge Keith is correct in stating that a consent decree is essentially a contract between adversaries to end litigation and settle differences. As such, a decree is subject to interpretation and construction as a contract. Unfortunately, the parties did not foresee the financial crisis which required massive layoffs. The decree therefore contains no provision that could be construed either to prohibit or permit layoffs according to city-wide seniority.

However, the decree contains the following provision whereby the parties agreed that the District Court should retain jurisdiction over the parties: “for such further orders as may be necessary or appropriate to effectuate the purposes of this decree.” In essence, this provision is boiler-plate language which recognizes that the District Court has the power to modify the consent decree in light of changed circumstances, in order to preserve the level of benefits procured through the decree. I disagree with Judge Keith to the extent he concludes that this clause gives the District Court “derivative authority” to modify the provisions of the Union’s collective bargaining agreement. However, to the limited extent that Judge Keith concludes that the District Court did not abuse its discretion in protecting the status quo in the Fire Department by injunction, I concur.

The District Court’s decision to enjoin imminent layoffs was made after an evidentiary hearing and was based on its assessment that the decree would be vitiated by the impending layoffs. I believe that a District Court should be cautious in modifying a consent decree, especially if such action would cause the parties to assume obligations for which they have not contracted. Judge Brown, speaking for himself and Wiseman, the majority of the panel, articulated this concern in his special concurrence in Brown v. Neeb, 644 F.2d 551, 565 (6th Cir. 1981):

Because the City is being required to pursue a course of action that it has not, by the consent decree, contracted to follow, and because liability has never been established, it seems to me that the district court should take particular care to exercise judicial restraint in modifying the consent decree to overrule the decision of the elected City officials and their appointees concerning the proper way to meet this financial crisis.

These considerations apply with equal force to the circumstances of the present case; and based upon the facts found by the District Court, I cannot say that its decision to enjoin impending layoffs was an abuse of discretion.

I disagree with Judge Keith’s statement that: “a consent decree can alter existing seniority provisions over the objection of an adversely affected union.” As support for this statement, Judge Keith reasons that this Court held in Brown that “the Supremacy Clause enabled the trial court to override the conflicting provisions of a seniority system and Ohio law because that case had been brought pursuant to 42 U.S.C. §§ 1981 and 1983 as well as Title VIL” I cannot agree that his statement accurately reflects this Court’s holding in Brown . Although Judge Keith reached this conclusion in his opinion in that case, Judge Brown expressly rejected it in his special concurrence, in which District Judge Wise-man joined. As I read Brown , its holding on the issue of a union’s rights is expressed in Judge Brown’s opinion. Judge Brown, writing for himself and for District Judge Wiseman, the majority of the panel, stated that:

In my view, even though this action was brought pursuant to 42 U.S.C. §§ 1981 and 1983 and not pursuant to Title VII, the district court did not have the authority, when it issued the preliminary injunction to abrogate the contract and statutory rights of the Union to layoffs by seniority. The Union, although it had existing contract and statutory rights to layoffs by seniority, was not a party to this litigation when it was filed and when the consent decree was entered. Therefore, its rights vis-a-vis the City were not affected by the consent decree. Al *569 though it intervened at the time plaintiffs moved for the instant preliminary injunction, there was, again, no determination of liability in this proceeding, and the Union’s position was that the district court could not and should not authorize layoffs on a basis other than seniority. The district court did not so authorize layoffs. The district court could abrogate the rights of the Union to layoffs by seniority, as required by its contract and the Ohio statute, only in a proceeding in which the Union was a party, and in which there was a determination that: (1) plaintiffs’ constitutional rights had been infringed; and (2) it was necessary to vindicate plaintiffs’ constitutional rights to hold such contract and statutory rights of the Union to be unenforceable.

644 F.2d at 566 .

Applying Judge Brown’s reasoning here, I must conclude that the District Court has no authority to abrogate the Union’s contractual and statutory rights. The Union was not a party to this suit when the consent decree was entered. Judge McRae simply enjoined the City from making its proposed layoffs in the Fire Department. Judge McRae’s actions do not affect the collectively bargained rights of the Union. I therefore dissent from Judge Keith’s opinion, to the extent that it holds otherwise. The law in this Circuit does not sanction modification of a consent decree to alter or destroy the rights of a non-party union concerning layoffs by seniority, unless a hearing is held in which the union is a participating party, and a court determines that: “(1) plaintiffs’ constitutional rights had been infringed; and (2) it was necessary, to vindicate plaintiffs’ constitutional rights, to hold such contract and statutory rights of the Union to be unenforceable.” Brown v. Neeb, 644 F.2d at 567 (Brown, J. concurring in result only), (emphasis added).

Furthermore, the consent decree does not concede liability, and it cannot be construed as such an admission. The District Court has never held an evidentiary hearing nor has it determined that the City is liable for past acts of discrimination. To the extent that Judge McRae and Judge Keith assume that liability has, in fact, been established, I must also disagree.

I dissent from those sections of Judge Keith’s opinion that purport to discuss the merits of the proposed intervenors’ suggestions for alternative relief. As I read the record, Judge McRae never held a hearing on the merits of constructive promotion, monetary damages, or any of the other alternatives advanced by the unsuccessful intervenors in their motion to intervene. In fact, Judge McRae did not discharge his duty to consider fully the interests of incumbent employees before approving the settlement decree. See Airline Stewards v. American Airlines, 573 F.2d 960 (7th Cir. 1978). The sole purpose of the May 16,1980 hearing was to determine the validity and timeliness of the intervention request itself. The only consideration Judge McRae gave to the merits of the proposals he expressed in these words: “And I would not be a party to any of this constructive promotion bit. That’s not much good for anybody. And it is certainly not good — well, that’s no way to run a fire department.”

Today this Court has upheld the District Court’s decision that the intervention motion was untimely. Stotts v. Memphis Fire Department, 679 F.2d 579 . I have dissented from that conclusion, and I reaffirm my judgment on the intervention issue here. Judge Keith states for the majority that the proposed intervenors’ attempt to intervene to challenge the consent decree is “an impermissible collateral attack.” Judge Keith misapprehends the very purpose of intervention, which is to afford to unrepresented persons who have an interest in litigation a legitimate avenue for asserting and protecting that interest. Intervention confers standing on a party to participate in litigation and thus affords the intervening party the very means by which to avoid estoppel. I also disagree with Judge Keith’s statement that compensatory relief for incumbents would impose conflicting obligations on the Department. In my view, it would merely make compliance more expensive.

*570 This Court has not been asked to review the merits of a judicial determination on the proposed intervenors’ arguments. The proposed intervenors are not formal parties to this litigation, nor to any of the prior proceedings. Because Judge McRae never held a hearing on the merits, no issue has either been raised or preserved for appellate review beyond the timeliness of the motion to intervene itself. Having decided that the motion was untimely, Judge McRae had no jurisdiction to entertain the merits of the proposed intervenors’ arguments. Neither does this Court. Nor has this Court been presented with the contention that the decree constitutes “reverse discrimination.” I dissent from Judge Keith’s sua sponte conclusion that the decree is “constitutional.” I am disturbed by Judge Keith’s lengthy discussion of the consent decree’s validity and reasonableness vis a vis the proposed intervenors. In my view, this discussion is purely advisory, inappropriate in light of the conclusions I reach in my dissent in Stotts v. Memphis Fire Department, 679 F.2d 579 , and most importantly, far beyond the scope of our appellate jurisdiction.

I offer one final observation on the majority opinion. The majority asserts that the proposed intervenors improperly asked the District Court to “restructure” the Memphis Fire Department. Judge Keith states that Judge McRae correctly denied this request, because he lacked such authority under National League of Cities v. Usery, 426 U.S. 833 , 96 S.Ct. 2465 , 49 L.Ed.2d 245 (1976). I find the majority’s statement and citation ironic, given the fact that this Court today affirms the modification of the consent decree to prevent the City and the Department from following their standard seniority system in conducting layoffs. The irony of the majority’s statement is particularly striking, read in light of the majority’s conclusion that the Department should not have determined unilaterally to reduce the number of workers. According to the majority, “[ajlternative methods for meeting the crisis were available”, and, presumably, should have followed.

APPENDIX

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

United States of America,

Plaintiff,

v. ( Civil Action

f No. C-74-286

City of Memphis, a municipal corporation, et al,

Defendants.

CONSENT DECREE

(Filed November 27, 1974)

This action was brought by the Attorney General against the City of Memphis to enforce the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., as amended by the Equal Employment Opportunity Act of 1972 ( Pub.L. 92-261, March 24,1972); the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. 1221 et seq., the Fourteenth Amendment to the Constitution of the United States and 42 U.S.C. § 1981 . The Complaint sets forth certain allegations of the United States of America that the City of Memphis has engaged in a pattern or practice of discrimination based on race and sex in hiring and promotion within the City divisions, including the Memphis Light, Gas & Water Division. This Consent Decree resolves all issues raised by the Complaint with the City other than the employment practices of the Light, Gas & Water Division and the terms of this Decree do not apply to that Division. All issues raised by the Complaint regarding employment practices at the Light, Gas & Water Division remain outstanding.

The City of Memphis denies it has heretofore engaged in any pattern or practice of discrimination in hiring or promotion on the basis of race or sex but realizes that certain past practices of the City may have given rise to an inference that such practice may *571 have occurred. The City states that it has made good faith efforts to rectify racial or sexual exclusion in City employment and that since January 1, 1972, it has substantially increased blacks and women in the Police Division and blacks in the Fire Division. The City states that for the purpose of avoiding any further inference of discrimination, it has heretofore taken certain steps to increase the availability of qualified black and female employees by transfer and promotion, training programs, and career ladder programs in City employment.

For the same purpose and with the same intent the City is now willing to agree to the entry of a consent decree providing for additional measures to be taken. Both parties wish to avoid the delay and expense of litigation and desire to insure that any disadvantage to blacks and females that may have resulted from any past discrimination in obtaining employment and advancement is remedied so that equal employment opportunity will be provided to all. The City of Memphis and the United States, by agreeing to the issuance of this order, waive a hearing and finding of facts and conclusion of law on all issues raised by the Complaint with respect to employment by the City except employment at the Light, Gas & Water Division and the parties have mutually agreed to the entry of the consent decree, which shall not constitute an adjudication or admission by the City of any violation of law or findings on the merits of this case.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

1. The Defendant City and its officials, agents and employees and all persons acting in concert with them in the performance of City functions shall not engage 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 Memphis because of such individual’s race or sex, it being understood that remedial actions and practices permitted by this Decree shall not be deemed discriminatory. Specifically, the Defendant City shall not fail or refuse to hire, promote, upgrade, train or assign any individual, discharge any individual or otherwise discriminate against an individual as an employee or applicant for employment with respect to compensation, terms, conditions or privileges of employment because of race or sex.

2. The provisions of this Decree are intended to cover all full-time employment with the City of Memphis, except that the goals and other affirmative relief established herein, including affected class relief, shall not apply to employment in the Memphis Transit Authority, the Memphis-Shelby County Health Department, the Memphis-Shelby County Planning Commission, the Memphis-Shelby County Airport Authority, the Memphis Housing Authority, the Board of Education of the Memphis City Schools, Memphis-Shelby County Public Library and the Memphis-Shelby County Hospital Authority, said organizations either being separate authorities or administered through the County of Shelby; and provided further that the provisions set forth in the succeeding paragraphs do not apply to part time employment unless the provision so states.

3. The purpose of this decree is to insure that blacks and women are not placed at a disadvantage by the hiring, promotion and transfer policies of the City, and that any disadvantage to blacks and women which may have resulted from past discrimination is remedied so that equal employment opportunities will be provided to all. The City has agreed that in determining whether that purpose has been achieved, an appropriate standard of comparison is the proportion of blacks and women in the Shelby County civilian labor force. The City, therefore, agrees to undertake as its long term goal in this decree, subject to the availability of qualified applicants, the goal of achieving throughout the work force proportions of black and female employees in each job classification, approximating their respective proportions in the civilian labor force. Except as otherwise provided in paragraphs 4, 10, and 15 below, the City shall, in meeting the long term goal for black employees, establish and attempt to *572 meet an interim goal, in classifications where the long term goal has not been met, of filling at least 50% of all vacancies with qualified black applicants. The City in meeting the long term goal for women shall actively encourage female employees in clerical positions to seek transfer or promotion to those positions where the long term goal has not been met, and shall employ affirmative recruitment efforts for female applicants for those positions which are entry level classifications. Except as provided in paragraphs 4, 10, and 15, no specific interim numerical goals shall be established for women for the initial year of this Decree. After February 15, 1976, the parties shall meet with the City to determine appropriate interim goals for women for those job classifications in which the long term goal has not been met. In no event shall the City be required to hire unnecessary personnel, to hire, transfer or promote a person who is not qualified or to hire, transfer or promote a less qualified person in preference to a better qualified person, nor shall the City apply any standard for employment which does not validly measure qualifications for that position. Compliance with interim goals established pursuant to this decree shall be measured on an annual basis except where otherwise specifically provided.

4. The City shall, for those positions such as accountant and engineer which require a professional degree, establish and attempt to achieve an initial interim goal of filling 30% of the total vacancies in such positions with qualified black and/or female applicants. This level of this interim goal shall be reviewed by the parties after February 15,1976, on the basis of performance of the City in the period and the availability of qualified black and female applicants in these professional areas.

5. (A) Insofar as the term “affected class” is used in the provisions of this Decree, it shall include:

(1) Incumbent black full-time employees hired prior to January 1, 1972, in the Public Works and Sanitation Division, and in the Park Commission, who are in pay grades 51-52-53-54-55, except for the positions of Zoo Keeper and Auto Inspection I and II, and to include service truck and wrecker operator, and all other black incumbent employees who are employed in positions considered classified which exist below grade 9 in the City’s current pay plan.

(2) Female incumbent full-time employees in positions which are by job title or description clerical in nature.

The defendant agrees to furnish to the plaintiff within ninety (90) days after the entry of this decree a list of the members of the affected class by job classification and individual seniority date.

6. (a) The City shall, for all purposes of promotion, transfer and assignment, compute the seniority of a person in the affected class as defined in paragraph 5, as the total seniority of that person with the City.

(b) Except as otherwise provided in paragraphs 10 and 15 for filling vacancies in the Police and Fire Division and in supervisory positions, the following procedure shall be followed in filling vacancies under this decree:

(1) A member of the affected class shall be given the initial opportunity to fill any vacancy in the City where the person is the senior applicant who meets the minimum qualifications for the position. This preference is exercised at the written election of the applicant. An affected class member using this preference who successfully transfers to and holds a position, as defined in paragraph 8, shall be considered on the same basis as other applicants on subsequent bids, subject to 6(a) above.

(2) Where no affected class member seeks or is entitled to a vacancy as provided in (1) above, the vacancy shall be filled pursuant to the procedures set forth in the City’s Civil Service Ordinance and in the City’s labor memoranda subject to 6(a) herein and in a manner consistent with meeting the goals set forth in the decree.

7. All members of the affected classes shall be notified of the provisions of this *573 Decree and specifically of the opportunity to transfer and/or promote to other positions when such vacancies occur and are posted for bid by the City Personnel Division. At least ten (10) days before any such vacancies are to be filled, notices of the vacancies shall be posted at each location and in each department where a member of the affected class is employed. Appointed positions listed under Charter Section 248(d), (e), (f), (g), and (h) are excluded from this posting requirement.

8. If a member of the affected class shall transfer or promote to a new position pursuant to paragraph 6(b)(1), the person shall be given a reasonable opportunity of up to ninety (90) days or up to six (6) months under Civil Service, as appropriate, to determine if he or she wishes to remain in the position or for the City to determine if he or she is able to perform the job. Should the person wish to relinquish the position, or the City determine that the person is not able to perform the job, the person may return to the previously-held position with the same pay as prior to transfer and without loss of seniority. Whenever such a person is determined by the City not to be qualified or capable of performing in the position, the City shall submit in its periodic reports to the United States a written statement detailing the basis for the person’s removal from the position. It is agreed that nothing in this Decree shall require Defendant to keep an employee in any position after the trial period in which the employee cannot perform the assigned tasks as adequately as such tasks have generally been performed in the past or if the employee’s work habits or attendance are inferior as compared with other employees doing similar work.

9. No member of the affected class who makes a lateral or downward transfer for the purpose of enhancing promotional opportunities, shall be paid at a lower rate than the rate for the job from which the person transferred, including any regular within grade increments the person would have received had the person remained on that job. A person utilizing rate retention pursuant to this paragraph who returns or is returned to the original job pursuant to paragraph 8, may utilize the right to rate retention on a subsequent transfer, provided, however, that this right to rate retention may not be exercised on more than three occasions. The right to rate retention shall continue until the person has reached that level in the new department or line of progression where the rate of pay is equal to or higher than that in the previously held job classification. A transferee shall lose this privilege of rate retention if the person refuses a promotion in the new line of progression or fails to bid on a higher rate job in the new department for which he or she is eligible.

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

CONSENT DECREE

The plaintiffs Carl W. Stotts and Fred L. Jones filed their complaints in this action on February 16,1977 and June 19,1979 against the Memphis Fire Department and other City of Memphis officials, alleging that the defendants are engaged in a pattern or practice of discrimination in hiring and promotions on the basis of race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Equal Employment Opportunity Act of 1972 ( Pub.L. 92-261, March 24, 1972); 42 U.S.C. § 1981 and 42 U.S.C. § 1983 .

The parties wish to avoid the delay and expense of contested litigation and desire to insure that any disadvantage to minorities *574 that may have resulted from past hiring and promotional practices be remedied so that equal employment opportunity will be provided to all.

The Court has jurisdiction over the parties and subject matter of this action.

The parties, by agreeing to the issuance of this order, waive a hearing and findings of fact and conclusions of law on all issues raised by the complaints, and the parties have mutually agreed to the entry of this Consent Decree. Defendants, by entering into this Consent Decree, do not thereby admit any violations of law, rule, or regulation with respect to the allegations made by plaintiffs in their complaints.

The Court having been fully advised and informed of the facts and circumstances, and good cause appearing therefore,

NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:

I.

EFFECT OF THE CONSENT DECREE

This Decree is entered into as a settlement of an existing dispute between plaintiffs and defendants as to appropriate and valid procedures for the hiring and promotion of Fire Department personnel for the City of Memphis. It also provides for specific, definable and good faith efforts to be made by defendants to achieve certain goals for employment of blacks. This Consent Decree satisfies and resolves all claims of plaintiffs and the class they represent of racial discrimination with respect to those matters set forth in the complaints and the previous orders of this Court.

This Decree is not intended to conflict with any provisions of the Consent Decree entered into on November 24,1974 between the United States of America and the City of Memphis in Civil Action No. 74-286; rather this Decree is intended to parallel and supplement the relief provided in that Consent Decree.

Both plaintiffs and the class they represent shall seek no further relief for the acts, practices or omissions alleged in the complaints save to enforce the provisions of this Decree, thereby waiving the right to seek further relief.

Plaintiffs agree that this Consent Decree is fully binding individually and on the class they represent. Defendants agree that this Consent Decree is fully binding on each of them, each of their officers, agents, employees and successors, and all other persons acting in concert with them who have notice of this Decree.

II.

CLASS CERTIFICATION

Plaintiff Stotts brought this action as a class action, and in its order of May 4,1978, the Court certified the plaintiff class. For purposes of this Decree, the Court hereby adopts the class description set forth in that order with modifications as follows:

The class in this case consists of all incumbent black employees of the Memphis Fire Department, all those black employees who will be employed there in the future, and all black persons who have been denied employment with the Memphis Fire Department since March 24, 1972.

This action was brought, insofar as is relevant to this section of the Decree, on the basis of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended, and 42 U.S.C. §§ 1981 and 1983. For purposes of this settlement alone, and for no other purposes, the Court is satisfied that the above class should be and hereby is certified as proper under Federal Rule of Civil Procedure 23(b)(2) for injunctive, declaratory and back pay relief, and under Federal Rule of Civil Procedure 23(b)(3) for purposes of recovery of compensatory or punitive damages, if any.

III.

GENERAL

1. Defendants are compelled by law and by entering into this Consent Decree acknowledge their obligation to, and agree *575 that they shall, refrain 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 Memphis Fire Department because of such individual’s race or color. Defendants in addition acknowledge their duty under law to and agree that they shall, refrain from discrimination at any time on the basis of race in hiring, promotion, upgrading, training, assignment or discharge or otherwise discriminating against an individual employee or applicant for employment with respect to compensation, terms and conditions or privileges of employment because of such individual’s race. The City shall take reasonable steps to assure that no member of the Fire Department interferes with the enforcement of this decree by any means. The acknowledgments set forth in this paragraph do not create a right or rights in any person or groups of persons to seek relief under this Decree for defendants’ failure to comply with their general legal obligations as described in this paragraph, except for conduct which constitutes a pattern or practice of unlawful discrimination on the basis of race.

2. In the event the entry of this Consent Decree generates, either through intervention or separate, collateral lawsuits, attacks on the appropriateness or sufficiency of any of the provisions contained herein, to include actions claiming entitlement to damages against the City as a result of the ordering of any of the affirmative relief contained in this Decree, the parties hereto agree and warrant that they shall defend the lawfulness of any provision or provisions so attacked. If any such collateral lawsuit arises in state court against the City, it shall seek to remove such action to the Federal District Court.

IV.

SELECTION PROCEDURES

3. The City shall continue to develop and reassess its present affirmative recruitment program to inform minorities of job opportunities with the Memphis Fire Department. In filling vacancies in the entry level position, the City shall continue to emphasize recruitment from among qualified members of the affected class, as provided in the Consent Decree in CA-74-286.

4. The City may maintain their current or similar education standards and selection procedure for firefighters, provided, however, that these standards and procedures do not have an adverse impact on members of the affected class as measured by compliance with the interim hiring goal set out in paragraph 7 below. If such impact is shown, the City must demonstrate the job relatedness of the particular education standard or selection procedure.

5. The City may continue to use on a pass-fail basis (or other grading system authorized by the U. S. Department of Justice provided that no adverse racial impact is present) written promotional examinations for the Fire Department. However, the City shall evaluate these examinations and promotional testing procedures to insure that the use of these examinations will not have an adverse impact on black applicants. The parties agree that adverse impact will be shown if the adverse differential in the failure rate for blacks is in excess of five (5) percent. The City shall maintain records of the results of all such examinations sufficient to determine the impact on black applicants and shall provide this information to plaintiffs’ attorney at the same time as the information is submitted to the United States Department of Justice in accordance with the Consent Decree in CA-74-286.

The City also agrees that it will administer promotional examinations on a regular basis, but in any event, at least every two years. The City shall notify plaintiffs’ counsel of plans to administer promotional examinations as soon as practicable after the decision has been made on such plans.

V.

GOALS

6. The purpose of this decree is to remedy the past hiring and promotion practices *576 of the Memphis Fire Department with respect to the employment of blacks and continuing the efforts made in the City in hiring and promotions under the consent decree entered in CA-74-286. In achieving that purpose, it is the intent of the parties to work within the arrangements established between the Department of Justice and the City of Memphis in that consent decree. In that regard the parties agree that the long term goal established in this decree shall be that set forth in CA-74-286, viz. that the goal shall be to raise the black representation in each job classification on the fire department to levels approximating the black proportion of the civilian labor force in Shelby County. Goals established herein are to be interpreted as objectives which require reasonable, good faith efforts on the part of the City, and not as rigid quotas.

7. Hiring: The City shall, in meeting the long term goal for black employees, establish and attempt to meet an interim goal, in entry level classifications where the long term goal has not been met, of filling on an annual basis at least 50% of all vacancies with qualified black applicants. Based on the experience with prior academy classes, the parties expect that the interim hiring goal above will be met both at time of initial appointment and successful completion of academy training. If any classes of firefighters hired pursuant to this order experiences a disproportionate rate of attrition among black firefighters, the parties shall meet promptly to determine the reason therefor, and to discuss methods or remedying the unbalance so that achievement of the long-term goal can be facilitated.

8. Promotion: To insure as quickly as practicable the attainment of its long range goal, the City agrees to the following interim goals, subject to the availability of qualified applicants:

(a) The City adopts the goal of promoting Black applicants to positions above the rank of private or other entry level job classification in proportion to their representation in the qualified applicant pool for each uniformed-rank or civil service classification. The parties agree to a goal of promoting blacks in the proportion of at least 20% for each civil service classification or uniformed-rank as measured on an annual basis; the parties recognize that the number of blacks qualified for a particular job rank or classification may be a relevant factor in measuring the City’s compliance with these goals. Nothing in this paragraph or Decree should be construed in such a way to require the promotion of the unqualified or the promotion of the less-qualified over the more qualified as determined by standards shown to be valid and nondiscriminatory as set forth in the Uniform Guidelines on Employee Selection Procedure, 28 C.F.R. 50.14.

(b) During periods when acting positions are available, these non-permanent assignments from the next lower rank in the uniformed force shall be based on experience and demonstrated ability, for the position to which the employee shall be assigned and, consistent with the foregoing, reasonable efforts shall continue to be made to give leadership experience to eligible blacks.

VI.

SPECIFIC RELIEF

9. Promotions: The promotions listed in Exhibit A to this Decree shall become effective upon the entry of this decree. The conditional promotions shall become effective upon fulfillment of each condition listed in Exhibit A.

10. Monetary Relief: The parties to this Decree have agreed that the aggregate monetary relief in this case shall be $60,000 of which all shall be considered back pay. This money shall be awarded pursuant to the amounts listed in Exhibit B with the City to prepare individual checks within 15 days (or as soon as practical utilizing good faith efforts) of the final entry of this decree and delivered to plaintiffs’ counsel for distribution. All persons who receive monetary relief herein shall execute a release in the form attached as Exhibit C as a condition of payment.

*577 VII.

REPORTING

11. The City shall maintain and retain during the period of this decree necessary records to support the implementation of this decree which shall be the same records kept for implementation of the Consent Decree in CA-74-286. These records shall be made available to the plaintiffs’ counsel for inspection and copying upon written request and where applicable subject to an appropriate protective order.

To avoid conflicts with the Attorney General’s continuing monitoring and compliance efforts pursuant to the Consent Decree in CA — 74 — 286, the parties agree to the following provisions:

(a) The City will furnish to Plaintiffs’ counsel copies of all reports relating to the Fire Division made to the Attorney General pursuant to the Consent Decree in CA-74-286.

(b) Should any dispute or controversy arise concerning the Defendants’ application of, or adherence to, the provisions of this decree, Defendants’ and Plaintiffs’ counsel shall confer with the Attorney General and seek a mutually agreeable resolution of the disputes.

(c) Should voluntary efforts to resolve the dispute or controversy fail, Plaintiffs’ counsel may then petition the Court for redress or resolution.

12. The City will maintain the following records:

(a) All applications and related records for all persons seeking employment or promotions with the Memphis Fire Department and shall include on such applications identification of the applicant by race. The records retained shall include, where applicable, copies of tests administered and the test results.

(b) All written communications between the City and applicants for both initial entrance, transfer and promotion.

13. At the times established for such reports to the Attorney General in CA-74-286, the City shall report to plaintiffs’ counsel the following information:

(a) A summary showing the total number of employees by race in each job classification of the Memphis Fire Department.

(b) A list of all newly hired employees indicating the name, race, and job classification of each since the last report was filed.

(c) A list of all persons, by job classification, to whom promotion has been offered and whether or not that promotion has been accepted.

(d) A breakdown of the applicant flow of the Memphis Fire Department by race which indicates the number of applicants by race, rejected and pending for each job classification. A person is considered an applicant for this purpose upon filing a formal application when a job is posted and upon meeting the minimum qualifications for the position.

(e) A list of all promotions, name, race, and date of hire of the employee promoted and the date of the promotion.

14. The City shall provide counsel for the plaintiffs a copy of each of the following documents relating to the Fire Division at the times established for reporting to the Attorney General pursuant to the Consent Decree in CA-74-286:

(a) each eligibility list for hiring or promotion to any rank in the department identifying each individual on said list by name and race;

(b) each new or revised job description or classification;

(c) notice of the filling of vacancy in any uniformed or non-uniformed position within the Fire Department including the name and race of the person selected.

VIII.

■MISCELLANEOUS

15. Attorneys’ Fees and Costs. The City shall pay counsel for plaintiffs, attorneys’ fees and costs in the amount of $___in settlement of all claims by said counsel for attorneys’ fees from the com *578 mencement of this action to the entry of this Decree and such amount shall be paid within 15 days of the final entry of this Decree. (The parties have followed the recommendation of Prandini v. National Tea Co., 557 F.2d 1015 , (3d Cir. 1977) and will begin to negotiate the possible settlement of fees and costs after the Court’s preliminary approval of this Consent Decree.)

16. If any provision of this Decree causes a result unintended by all the parties or an ambiguous interpretation, the aggrieved party shall notify the other parties and the Attorney General by mail of the unintended result or ambiguous interpretation. The parties shall have 30 days after the date of such letter to resolve the problem. If the parties are unable to reach agreement within such 30 days, the issue may be submitted to the Court for resolution.

17. The Court retains jurisdiction of this action for such further orders as may be necessary or appropriate to effectuate the purposes of this decree.

18. Notice. The Court hereby gives its tentative approval to this Consent Decree, subject to the notification of class members and the provision of an opportunity for them to file objections. The text of the notice to be is set forth in Exhibit D. This notice shall be posted at each firehouse or other Bureau facility of the Fire Department for a period of 15 days beginning April 28,1980, and mailed to each identified class member listed in Exhibit B on that date. Class members who file written objections within this period shall be entitled to be heard on their objections at a hearing before this Court on May 16, 1980. If no written objections are filed within the 15 day period, this Consent Decree shall become final without further action by the Court.

ENTERED, this 25th day of April, 1980.

/s/ ROBERT M. McRAE, JR.

UNITED STATES DISTRICT JUDGE

APPROVED:

/s/ RICHARD B. FIELDS

RICHARD B. FIELDS

RATNER & SUGARMON

ATTORNEYS FOR PLAINTIFFS

/s/ CLIFFORD D. PIERCE, JR.

CLIFFORD D. PIERCE, JR.

EDWARD R. YOUNG

J. DANIEL MORGAN

ATTORNEYS FOR DEFENDANTS

MEMPHIS FIRE DEPARTMENT FIRE FIGHTING CLASS

(Data derived from inspection of class pictures at the Memphis Fire Department Training Center)

*579