Petition — MEMPHIS FIRE DEPARTMENT v. STOTTS (Nos. 82-229, 82-206)

No. 82-229

—_—_——

In the Supreme Court of the Unit

October Term, 1982

MEMPHIS FIRE DEPARTMENT, ROBERT W.

WALKER, CITY OF MEMPHIS AND

JOSEPH SABATINI,

Petitioners,

VS.

CARL W. STOTTS, Individually And On Behalf

Of All Others Similarly Situated,

AND

FRED L. JONES,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

Currrorp D. Pierce, JR.

(Counsel of Record)

City Attorney

Louts P. Barrr III

Assistant City Attorney

Office of the City Attorney

125 N. Main

Memphis, Tennessee 38103

Telephone: (901) 528-2614

Attorneys for Petitioners, Memphis

Fire Department, Robert W.

Walker, City of Memphis and

Joseph Sabatini

EL. “ewpewsane, Ive., 096 Cherry Street, Kansse City, Mo. 64106, (816) 421 -s030

QUESTION PRESENTED

Did the court have the authority to modify a consent

decree between a municipal employer and a ciass of black

employees by enjoining the application of a tayoff policy

that is based upon a bona fide seniority system and by

requiring layoffs to be based upon racial considerations,

where the consent decree is silent with respect to the

method to be used for layoffs and where there has not

been any judicial finding of racial discrimination?

LIST OF PARTIES

In addition to the parties named in the caption, the

Firefighters Local Union No. 1784 was an intervenor-

appellant to this proceeding in the Court of Appeals.

Robert W. Walker was sued in his official capacity of

Director of Memphis Fire Department. Walker has re-

signed from that position since the proceedings in District

Court and has been succeeded by James R. Smith.

Il

TABLE OF CONTENTS

QUESTION PRESENTED ....................... PR! PER Ter I

ET DEE NES

TABLE OF AUTHORITIES ..0o0.....-.-ccccccccccsodcssssssssssssseeee IV

Se MNO eee” 2

SA RE CS 2

STATUTORY PROVISIONS INVOLVED ...................... 2

STATEMENT OF THE CASE oo0.........-0-cccccccccccccscssssssssee 3

REASONS FOR GRANTING THE PETITION FOR

WRIT OF CERTIORARI ...........---:----.cccccccccceee-------- 7

I. The Decision Of The Sixth Circuit Conflicts

With Recent Decisions Of This Court As To

The Operation Of A Bona Fide Seniority Sys-

II. The Decision Below Will Have A Chilling Ef-

fect On The Use Of Voluntary Consent De-

III. The Decision Below Constitutes An Improper

Judicial Intrusion Into Local Governmental

APPENDIX A Opinion of the Sixth Circuit Court of

Appeals entered May 7, 1982 ................ Al

APPENDIX B Oral Ruling of District Court, May 8,

ED sdetachieniiehitaial ~ccsessseunbsnstt-sihasiajeusiieiine A72

APPENDIX C Order of the District Court, May 18,

DEED siicichewascxtstilininnininvetaniagsiitideiiicgasae AT77

APPENDIX D Order of the District Court, June 23,

ETT deipuoctstevineciupesiciniinecemigpietenielatamaiaatan A80

Iv

APPENDIX E Order of the District Court, June 25,

RR ee oe A82

TABLE OF AUTHORITIES

Cases

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) 13

American Tobacco Co. v. Patterson,» 456 U.S. ........ , 102

Ts GEE TEUITIEEED cccsccsscsecniseestignicatinnmenetthiaisdaieaigiaaninane 8, 11

Brown v. Neeb, 644 F.2d 551 (6th Cir. 1981) 00000000... 14

Carson v. American Brands, Inc., 450 U.S. 79 (1981) ... 14

Detroit Police Officers’ Assn. v. Young, 608 F.2d 671

(6th Cir. 1979), cert. denied, 452 U.S. 938 (1981) ... 17

Ford Motor Co. v. EEOC, 50 U.S.L.W. 4937 (U.S. June

Bi TID ccineccsessissrstinsenssiopnrsnssnevinvesscnsediiausiiiesianaaal 11,17

Franks v. Bowman Transportation Company, 424 U.S.

We COD | ceerrcnrivascnsnsinnsinqeestsinisenncenciemtniaaidimeaaaaimaaale 9,11

Humphrey v. Moore, 375 U.S. 335 (1964) 0.000... 1]

Milliken v. Bradley, 433 U.S. 267 (1977) 0.0.2.0... 16

Morgan v. O’Bryant, 671 F.2d 23 (1st Cir. 1982), peti-

tion for cert. filed sub nom. Boston Assoc. of School

Administrators & Supervisors v. Morgan, 50 U.S.L.W.

3937 (U.S. May 18, 1982) (No. 81-2124) .......00....... 12

NAACP v. Beecher, ........ PAD: <taent , 28 Fair Empl.

Prac. Cas. 1657 (1st Cir. 1963) .................ccsescscsrecscsssvese 12

Pullman-Standard v. Swint, 102 S.Ct. 1781 (1982) ... 8

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63

SIT ....-ccnsnnstnnintisrasitanunsmaniiaiiiaia ian il

United States v. Swift & Co., 286 U.S. 106 (1932) ........ 15

v

United Steelworkers of America v. Weber, 443 US.

rR? 16, 17

Youngblood v. Dazell, 568 F.2d 506 (6th Cir. 1978) ........ 14

Zipes v. TWA, 455 US. ......., 102 S.Ct. 1127 (1982) ..... 10

Federal Statutes

AE EE ee 2

Civil Nights Act of 1866, 42 U.S.C. § 1981 0... 2,3,4

Civil Rights Act of 1871, 42 U.S.C. § 1983 .......... 2, 3, 4, 10

Title VII Civil Rights Act of 1964, as amended, 42

RETIRE <TC a 2

Title VII § 703(h), 42 U.S.C. § 2000e-2(h) ...0. 2,3, 11

>

No.

In the Supreme Court of the United States

October Term, 1982

MEMPHIS FIRE DEPARTMENT, ROBERT W.

WALKER, CITY OF MEMPHIS AND

JOSEPH SABATINI,

Petitioners,

vs.

CARL W. STOTTS, Individually And On Behalf

Of All Others Similarly Situated,

AND

FRED L. JONES,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

Petitioners, Memphis Fire Department, Robert W.

Walker, City of Memphis and Joseph Sabatini (hereinafter

referred to collectively as the “City”), pray that a writ

of certiorari issue to review the judgment of the United

States Court of Appeals for the Sixth Circuit entered in

this case on May 7, 1982.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Sixth Circuit as to which the writ of certiorari is

sought is reported at 679 F.2d 541 and is reproduced as

Appendix A to this petition. The oral ruling of the Dis-

trict Court of the Western District of Tennessee issued

May 8, 1981, granting the injunctive relief, is not reported

but is reproduced herein as Appendix B. The orders of

the District Court (two orders granting injunctive relief

dated May 18, 1981, and June 23, 1981, and an order ex-

panding injunctive relief entered June 25, 1981) are not

reported but are reproduced herein as Appendices C, D

and E, respectively.

JURISDICTION

The judgment of the Court of Appeals was entered

on May 7, 1982 (Appendix A). This petition is filed

within ninety (90) days of that judgment. The jurisdic-

tion of this Court is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved are relevant por-

tions of Title VII of the Civil Rights Act of 1964, a:

amended (hereinafter referred to as “Title VII"), 42 U.S.C.

§ 2000e et seq., specifically Sevtion 703(h) thereof (42

U.S.C. § 2000e-2(h):; the Civil Rights Act of 1866, 42

U.S.C. § 1981, and the Civil Rights Act of 1871, 42 U.S.C.

§ 1983. Section 703(h) of Titie VII, Section 198] and

Section 1983 are reproduced as Appendix F hereto.

oil

STATEMENT OF THE CASE

This case concerns the extent to which a court under

its equity powers may impose obligations on a party to a

consent decree regarding a subject not included in the

decree and whether § 703(h) of Title VII protects the

operation of a bona fide seniority system from collateral

judicial intervention. Specifically, this case raises ques-

tions of significance pertaining to the authority of the

lower courts to modify a voluntary consent decree between

two parties in order to impose additional race conscious

obligations not agreed to by the parties and to override

the operation of a bona fide seniority system where there

has not been any judicial finding of racial discrimination

under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 1981, or 42 U.S.C. § 1983.

Petitioner City of Memphis anticipated an operating

revenue deficit for the fiscal year from July 1, 1981 to

June 30, 1982, which compelled the Petitioner to imple-

ment city-wide layoffs and/or reductions in rank of per-

sonnel effective June 24, 1981.' The proposed layoffs in-

cluded approximately forty individuals in the Fire Depart-

ment. The City proposed to implement the layoffs and

reductions in rank based upon a seniority system which

was founded upon length of service with the City and in

accordance with the provisions of the collective bargaining

agreement (referred to as “Memorandum of Understand-

ing”) between the City and Local 1784 of the International

Association of Firefighters, the employees’ collective bar-

gaining representative

3. e Serin ees © Se ate st financial

crisis need for reduction in personne} the

on the application for s preliminary Injuneton

4

Respondents, Carl Stotts, individually and on behalf

of all others similarly situated, and Fred L. Jones, sought

to enjoin the seniority-based layoffs pursuant to a 1980

Consent Decree between City and Respondents. Respon-

dents had previously brought separate lawsuits against the

City of Memphis alleging that the City of Memphis Fire

Department maintained racially discriminatory hiring and

promotional practices in violation of Title VII, 42 U.S.C.

§ 1981 and 42 U.S.C. § 1983. The two cases were consol-

idated, and on April 25, 1980, a consent decree (hereinafter

“1980 Decree”) between Respondents and the City of

Memphis was approved by the court, thereby settling the

cases. No finding of discrimination was ever made by

the court, nor did the City of Memphis admit to any viola-

tion of law as alleged by Respondents.’

The 1980 Decree provided that promotions be made

to several named individuals and backpay be awarded to

specified persons. No award of retroactive seniority was

granted to any class member. The 1980 Decree contained

a general long-term minority hiring goal which paralleled

an earlier hiring goal, to which the City had previously

agreed by consent decree entered into with the United

States Department of Justice, Case No. CA-74-286 (here-

inafter “1974 Decree”). The long-term goal established in

both decrees obligated the City to attempt to increase the

level of black representation in each job classification of

the Memphis Fire Department to equal the black

representation in the labor force in Shelby County, Ten-

nessee. An interim hiring rate of fifty percent (50% )

black personnel was included in both decrees as a means

5

to more quickly achieve the long-term goal. (Both decrees

are set forth as an appendix to the opinion of the Court

of Appeals, App. A hereto.) The 1980 Decree also included

a twenty percent (20%) black promotional goal in each

civil service classification. Neither decree included pro-

visions concerning layoffs or reductions in rank, although

the 1974 Decree did obligate the City to utilize a seniority

system based upon City-wide seniority for various employ-

ment practices including promotions, transfers and job

assignments (App. A, p. A56, paragraph 6(a)).

On May 4, 1981, Respondents applied for a temporary

restraining order enjoining the City from laying off or

reducing in rank any black employee of the Memphis Fire

Department. Respondents contended that the proposed

layoffs would violate the terms of the 1980 Decree. The

Union, representing Fire Department employees, inter-

vened by consent of the parties on May 5, 1981, and a

hearing on Respondent’s request for a preliminary injunc-

tion was held on May 8, 1981.

The District Court found that, although neither the

1974 nor the 1980 Decree contemplated a method to be

used for layoffs or reductions in rank, the Court possessed

the authority to modify the 1980 Decree by restraining

the City from implementing the last-hired, first-fired lay--

off policy within four (4) classifications in the Fire De-

partment. The Court further found that, while the policy .

was not adopted with the intent or specific purpose to

discriminate, the policy was not a bona fide seniority

system because its effect was discriminatory (App. B,

pp. A73-A74, App. C) The Court instructed the City to

propose a layoff method consistent with its order. Subse-

quently, on June 23, 1981, the Court expanded the pre-

liminary injunction to include three (3) additional classi-

fications and on June 25, 1981, approved the newly-fash-

ioned layoff policy which was verbally explained to the

Court.*

On appeal, the Court of Appeals for the Sixth Circuit

affirmed the judgment of the District Court in modifying

the 1980 Decree to enjoin the last-hired, first-fired senior-

ity system. The Court of Appeals relied upon both con-

tract and equity theories to support the modification.

First, the Court held that the 1980 Decree was in effect

a contract on behalf of the City to increase the number

of minorities in the work force, and the implementation

of a seniority-based layoff would constitute a repudiation

of that agreement. Thus, the Court concluded that it

could compel compliance with the additional obligations

by enjoining the City from layoffs which would reduce

the percentage of black representation in the work force

(App. A, pp. A32-A34).

Second, the Sixth Circuit found that the lower court

could exercise its equity jurisdiction to modify the 1980

Decree upon a showing of “changed circumstances.” The

Court of Appeals found that the layoffs made as a result

of an unanticipated economic crisis would frustrate the

purpose of the decree; therefore, modification of the decree

to prevent a retrogressive effect was appropriate (App. A,

pp. A35-A37).

The Court further found that the District Court did

not abuse its discietion in modifying the decree in such

a manner as to alter the existing seniority provisions be-

tween the City and the Union, which was not a party

to the 1980 Decree. The Sixth Circuit, however, vacated

3. Pursuant to the Court’s orders, the City proposed that the

layoffs would be made based upon seniority, however the black

employees on the seniority list would be over so as to

maintain the racia! composition of each classification. Thus,

7

the District Court’s holding that the layoff policy was non-

bona fide merely because its effect would be discrim-

inatory (App. A, pp. A-11 n.6, A41). The Court advanced

three legal theories to support its holding that the bona

fide seniority system between the City and the Union

could be modified without the consent of either party.

These theories included: 1) a settlement theory by

which an employer may alter seniority provisions of af-

fected employees in settlement of disputed claims; 2) a

court’s authority under the Supremacy Clause; and, 3)

an employer’s authority to temporarily override the provi-

sions of a collective bargaining agreement pursuant to

a valid affirmative action plan.

Circuit Judge Boyce F. Martin rendered a separate

opinion concurring in part and dissenting in part. Judge

Martin agreed with the majority holding that the District

Court did have the authority to modify the decree in

light of changed circumstances but dissented from the

majority’s holding that the 1980 Consent Decree between

the City and Respondents could legally alter existing bona

fide seniority provisions over the objection of the adversely

affected Union.

REASONS FOR GRANTING THE PETITION

FOR WRIT OF CERTIORARI

I. The Decision Of The Sixth Circuit Conflicts With

Recent Decisions Of This Court As To The Op-

eration Of A Bona Fide Seniority System.

As a result of the economic plight necessitating in-

creased layoffs of municipal and state employees, courts

are now faced with a legal controversy similar to the

flurry of the economic-related litigation regarding senior-

ity systems which arose from the 1974 recessionary era.

tal

Oo

Here, however, an additional factor is included within the

legal issue—consent decrees between public employers

and minority employee groups (and/or the Justice De-

partment) by which the employer has agreed to increase

minority representation in the work force. The question

now presented is, what is the effect of a consent decree

which obligates the public employer to increase minority

representation in the work force on the utilization of a

bona fide seniority system to bring about the necessary

reduction in personnel. Petitioners assert that the pro-

tections afforded bona fide seniority systems, as declared

by this Court, are applicable to and immunize the seniority

system from attack under a consent decree which is silent

as to layoffs, particularly where there is no evidence that

the employer has failed to comply with the decree.

The Sixth Circuit opinion held that, under the 1980

Decree, the Court had the authority to forbid the City

from utilizing a layoff policy based upon a bona fide

seniority system agreed to by the City and the employees’

collective bargaining representative, even though no find-

ing of racial discrirnination had been made against the

City.‘ The Sixth Circuit ignored this Court’s teachings

regarding the special protection afforded bona fide senior-

ity systems.

This Court recently coalesced its earlier decisions re-

garding the statutory protection afforded bona fide senior-

ity systems in American Tobacco Co. v. Patterson, 456

) sabia , 102 S.Ct. 1534, 1541 (1982):

4. Under the Court’s holding in Pullman-Standard v. Swint,

102 S.Ct. 1781, 1796 (1982), the bona fide status of the seniority-

based layoff policy is not at issue herein as the finding of the

District Court that the layoff policy was not adopted with a

yor purpose was not challenged on appeal (App. A,

p. All n.6).

9

Our prior decisions have emphasized that ‘seniority

systems are afforded special treatment under Title

VII itself,’ Trans World Airlines Inc. v. Hardison, 432

U.S. 63, 81, 97 S.Ct. 2264, 2275, 53 L.Ed.2d 113 (1977),

and have refused to narrow § 703(h) by reading into

it limitations not contained in the statutory language

In Teamsters v. United States, supra, we held thai

£ 703(h) exempts from Title VII the disparate impact

of a bona fide seniority system even if the differential

treatment is the result of pre-Act racially discrim-

inatory employment practices. Similarly, by holding

that ‘[a] discriminatory act which is not made the

basis for a timely charge is the legal equivalent of

a discriminatory act which occurred before the statute

was passed,’ United Air Lines, Inc. v. Evans, 431 US.

553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977),

the Court interpretated § 703(h) to immunize senior-

ity systems which perpetuated post-Act discrimina-

tion. Thus, taken together, Teamsters and Evans

stand for the proposition stated in Teamsters that

‘[s]ection 703‘h) on its face immunizes all bona fide

seniority systems, and does not distinguish between

the perpetuation of pre- and post-Act’ discriminatory

impact.

By prohibiting the use of the bona fide seniority

systems in the reduction of City personnel, the Sixth

Circuit, in effect, awarded retroactive or constructive

seniority to the minority firemen without any showing or

proof of discrimination against the minority firemen.

Under this Court’s holding in Franks v. Bowman Trans-

portation Company, 424 U.S. 747 (1976), an award of

retroactive seniority may be granted only upon a show-

ing of post-Act discrimination against identifiable in-

dividuals. This position was recently reiterated in

10

the concurring opinion of Mr. Justice Powell, with whom

the Chief Justice and Mr. Justice Rehnquist joined,

in Zipes v. TWA, 455 USS. ........ ens , 102 S.Ct. 1127, 1136

(1982): “My concern with the Court’s opinion is that

it does not make clear that a timely charge, as well as

a violation of Title VII, is a prerequisite to disturbing

rights under a bona fide seniority sys*em. . . .” (Emphasis

added). Zipes approved an award of competitive seniority

to identifiable victims of discrimination where there had

been a previous judicial finding of a discriminatory em-

ployment practice. No like finding has been made herein;

rather, the Sixth Circuit has insulated empiluyees from

layoff merely because of their minority status

The Sixth Circuit’s majority opinion rationalized that,

had a violation of 42 U.S.C. § 1983 been established, the

Court would have had the authority to invoke the Su-

premacy Clause of the Constitution to override the Union’s

seniority provisions; consequently, the majority found that

the trial court had such authority to override the seniority

provisions between the City and the Union (App. A,

p. A43). The majority based its conclusion not on any

judicial finding of discrimination but rather on its assump-

tion that the allegations in the complaints could support

a finding of discrimination.

It is clear, however, that the invocation of the Su-

premacy Clause as a tool to override a non-party’s rights

can only be predicated upon a finding that a party’s con-

stitutional rights have been infringed. As stated by Judge

Boyce Martin in his concurring and dissenting opinion

below, 679 F.2d at 569, App. A, p. A49:

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 par-

11

ticipating party, and a court determines that: ‘(1)

plaintiffs’ constitutional rights had been infringed;

and (2) it was necessary, to vindicate plaintiffs’ con-

stitutional 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).

y) @..

Thus, there is no support in the record for the majority’s

extension of its authority under the Supremacy Clause.

Moreover, by prohibiting the use of the bona fide

seniority system, the Sixth Circuit has failed to recognize

the importance of seniority provisions in this country’s

labor policy detailed by this Corrt in numerous opinions.

In American Tobacco Co. v. Patterson, supra, the Court

reaffirmed seniority’s special role as found in the earlier

decisions of Humphrey v. Moore, 375 U.S. 335, 346 (1964)

(seniority provisions are of “overriding importance” in

collective bargaining), and Trans World Airlines, Inc. v.

Hardison, 432 U.S. 63, 79 (1977) (seniority in the collec-

tive bargaining process “lies at the core of our national

labor policy... .”). See also Ford Motor Co. v. EEOC,

50 U.S.L.W. 4937, 4942 (U.S. June 28, 1982).

The unique position of seniority in the national labor

policy must be viewed vis a vis the purpose of Title VII

to eliminate discrimination in employment. The legisla.

tive history, as reviewed by this Court in Patterson and

Franks, demonstrates that Congress was concerned with

the potential effect that Title VII would have on seniority

rights. Thus, the exemption afforded seniority systems

under § 703(h) of Title VII clearly represents a balance

between the two policies, and the courts should not dis-

turb the balance so carefully struck by Congress in passage

of Title VII. See American Tobacco Co. v. Patterson,

12

supra. This balance has been destroyed by the Sixth

Circuit’s judgment below.

Given the newly framed collateral challenge to senior-

ity systems, it is evident that the conflict between the

decision below and the principles stated by this Court

regarding the protection and operation of bona fide senior-

ity systems present an important and recurring issue that

should be settled by this Court.°

II. The Decision Below Will Have A Chilling Effect

On The Use Of Voluntary Consent Decrees.

The judicial willingness to modify consent decrees to

include provisions not agreed to by the parties and to

override contractual obligations of one party to a consent

decree will discourage future use of voluntary consent

agreements entered into by both private and public em-

ployers in settlement of discrimination lawsuits. This

case brings to the Court the opportunity to give needed

guidance concerning the scope of judicial authority to ex-

pand or alter consent agreements under contract principles

or a court’s equity jurisdiction pursuant to “changed cir-

cumstances.”

In considering the issue, an understanding of the spe-

cific terms and agreements contained in the 1980 Decree

is essential. The parties agreed, inter alia, to three major

points relevant to this issue: 1) a long-term goal of in-

5. Petitioners would show that at least one other Circuit

has been faced with this issue. The United States Court of Ap-

peals for the First Circuit has rendered two decisions involving

the effect of consent decrees on reduction in personnel, NAACP

v. Beecher, ........ - == , 28 Fair Empl. Prac. Cas. 1657 (1982),

and Morgan v. O’Bryant, 671 F.2d 23 (1982), petition for cert.

filed sub nom. Boston Assoc. of School Administrators & Super-

visors v. Morgan, 50 U.S.L.W. 3937 (U.S. May 18, 1982) (No. 81-

2124). Im both cases, the First Circuit enjoined the use of a

facially neutral layoff policy where the lower courts had made

previous findings of racial discrimination.

13

creasing the percentage of minority employment in the

Memphis Fire Department, equal to that of the labor force

of Shelby County, Tennessee, 2) an interim hiring goal of

50% black personnel, and 3) an interim 20% black promo-

tional goal in each civil service classification. No time

tables were specified in the 1980 Decree; rather, the obli-

gations under the decree were purposefully set forth as

“long-term.”

There is no dispute that the City has made a good

faith attempt to comply with its obligation under the de-

cree. In fact, at the time of the hearing on the injunctive

relief in this case, the proof revealed that the City had

exceeded the 50% minority hiring goal (56%) and that

the minority promotional rate stood at sixteen percent

(16%) since the entry of the 1974 Decree. Under the

long-term goal, the black representation in the Fire De-

partment had increased from roughly three-four percent

(3-4%) to eleven and one-half percent (1142%). The

testimony was that the layoffs to be made under the senior-

ity system would have reduced the percentage of black

employees in the Fire Department by only one percent

(1%). Moreover, the personnel affected by the reductions

possessed preferential recall and/or promotional rights (in

order of seniority) for a two year period. Thus, prior to

new hirings or promotions within the affected job classi-

fications in the Fire Department, the laid off or demoted

employees would be returned to their original positions,

and the overall goal of the 1980 Decree would suffer only

minimal, temporary disruption.

Congress fully recognized that voluntary settlement

of Title VII suits was a preferred means of achieving

the elimination of employment discrimination. See Alezx-

ander v. Gardner-Denver Co., 415 U.S. 36 (1974). Refusal

by a court to enter a consent decree is an appealable order

14

because, in part, such refusal undermines one of the pol-

icies of Title VII regarding voluntary compliance. See

Carson v. American Brands, Inc., 450 U.S. 79, 88 n.14

(1981). The willingness by the courts, as demonstrated

below, to impose upon a party obligations not specified

in a consent decree over the party’s objection and absent

evidence establishing liability would serve only to defeat

the Congressional and judicial policy favoring voluntary

settlment.

As stated by Judge Bailey Brown in his concurring

opinion in Brown v. Neeb, 644 F.2d 551 (6th Cir. 1981),

judicial caution should be exercised in interpreting decrees

to provide additional obligations:

Because the City is being required to pursue a course

of action that it has not, by the consent decree, con-

tracted to follow, and because liability has never been

established, it seems to me that the district court

should take particular care to exercise judicial re-

straint 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. National League of Cities v. Usery,

426 U.S. 853 (1976).

Id. at 565. Similar reluctance to incorporate obligations

not negotiated by the parties was expressed in Youngblood

v. Dazell, 568 F.2d 506 (6th Cir. 1978), where the Court

refused to enjoin seniority-based layoffs notwithstanding

the existence of a consent decree obligating the city to

increase minority employment.

In modifying the consent decree to impose additional

obligations which were not agreed to by the City and

nts, the Sixth Circuit stated that the Respon-

dents would suffer an undue hardship absent modification

15

(App. A, p. A37). Modification should not be granted

unless supported by “a clear showing of a grievous wrong

evoked by new and unforeseen circumstances.” United

States v. Swift & Co., 286 U.S. 106, 119 (1932). The

seniority-based layoffs which would have resulted in a tem-

porary one percent (1% ) reduction in black representation

do not constitute a grievous wrong such as to vitiate

the intended effect of the decree. The City was and is

still obligated to increase minority representation in the

Fire Department under the interim hiring and promotonal

goals, and there has been no evidence offered to even

suggest that the City would not continue to comply with

its obligations under the 1980 Decree. Thus, modification

of the decree by enjoining the proposed layoffs and by im-

posing additional obligations upon the City was improper.

If the judgment below is allowed to stand, the adverse

effects upon voluntary settlement of discrimination claims

will be significant. The message will be clear to all public

and private employers that obligations under a consent

decree may be expanded without a finding of unlawful

conduct to include items not agreed to by the employer,

even though the employer has fully complied with its

obligations under the decree.* Such position will only

serve to impair voluntary settlement and greatly increase

litigation.

Ill. The Decision Below Constitutes An Improper Ju-

dicial Intrusion Into Local Governmental Affairs.

In fashioning equitable remedies for racial discrim-

ination the Court has recognized the potential for the ju-

diciary to overreach into local affairs and has cautioned

6. The Mayor of the City of Memphis testified that he

would not have agreed to the 1980 Consent Decree had it pro-

vided for layoffs other than by City-wide seniority.

16

the federal courts to be mindful of the interests of state and

local authorities in managing their own affairs consistent

with the Constitution. Milliken v. Bradley, 433 U.S. 267,

282 (1977). The Sixth Circuit's finding that the bona fide

seniority system could be overridden with respect to the

layoffs without a finding of discrimination clearly demon-

strates excessive judicial intrusion into the local affairs of

the City of Memphis. The Sixth Circuit attempts to avoid

this limitation on its authority by stating that the District

Court’s orders merely prohibited the layoffs as proposed,

and the City was free to choose alternative solutions. Such

disclaimer, however, is mere sophistry.

The District Court’s orders did not merely enjoin the

layoffs. Rather, the Court ordered the City to propose an

alternate method for the layoffs, and then, by the Order

entered June 25, 1981, approved layoffs of the fire per-

sonnel which contravened both the seniority provisions

contained in the Memorandum of Understanding between

the City and the Firefighters Union Local 1784 and the

layoff policy previously embodied by the City government.

The District Court’s imposition of the race-conscious lay-

off policy on the objecting municipality and Union without

a finding of racial discrimination exceeds the bounds of

judicial restraint as expressed in Milliken v. Bradley,

supra.

Moreover, the approval of a race conscious layoff plan

by the court constitutes an unreasonable affirmative action

plan imposed upon the City. This Court has held that

an employer may utilize a voluntary affirmative action

plan where that plan provides an effective remedy for

past discrimination without unnecessarily trammeling the

interests of nonminority employees. United Steelworkers

of America v. Weber, 443 U.S. 193, 208 (1981). Petitioners

submit that the judicially approved layoff plan which

abrogates the nonminority employees’ pre-existing senior-

17

ity rights is far more detrimental than the mere delay of

employment expectations before the Court in Weber. The

Court’s orders herein unnecessarily deprive those non-

minority employees of a vested employment right and are

therefore impermissible. See Detroit Police Officers’ Assn.

v. Young, 608 F.2d 671, 696 n.12 (6th Cir. 1979), cert.

denied, 452 U.S. 938 (1981). See also Ford Motor Co. v.

EEOC, supra, where this Court rejected the argument that

an offer of retroactive seniority must be included in an

offer of settlement to toll back liability under Title VII,

finding that such requirement would impose a far too

heavy burden on innocent employees.

For these reasons, the Court must delineate the pre-

requisites for judicial modification of consent decrees to

prevent this and further improper judicial intrusion into

the management of loca] governmental affairs.

CONCLUSION

For all the foregoing reasons, Petitioners pray that a

writ of certiorari issue to review the judgment and decision

of the United States Supreme Court of Appeals for the

Sixth Circuit in this case.

Respectfully submitted,

Currrorp D. Prerce, JR.

City Attorney

Louts P. Britt III

Assistant City Attorney

Office of the City Attorney

125 N. Main

Memphis, Tennessee 38103

Attorneys for Petitioners, Memphis

Fire Department, Robert W.

Walker, City of Memphis and

Joseph Sabatini

Al

APPENDIX

APPENDIX A

Nos. 81-5348-9

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Cari. W. Storrs, Individually and on ,

behalf of all others similarly situ-

ated,

Plaintiffs-Appellees,

and

Frep L. Jones,

Plaintiff-Appellee,| ON Arpgat from the

United States District

-" Court for the West-

Mempuis Fre DerartMENT; Rosent| ¢ District of Ten-

W. Waker, City oF Mempuis,and| essee.

Joserpu SABATINI,

Defendants-Appcllants,

and

Fimericuters Locat Union 1784,

Defendant-Intervenor-Appellant.

Decided and Filed May 7, 1982.

Before: Kerrn and Mantin, Circuit Judges and Duncan.*

Kerrn, Circuit Judge, delivered the opinion of the court,

in which Duncan, Circuit Judge, joined. Martin, Circuit

Judge (pp. 46-51), delivered a separate egtaien, concurring

and dissenting in part.

* Hon. Robert M. Duncan, U.S. District Court for the Southern

District of Ohio, sitting by designation.

A2

Kerrn, Circuit Judge. This case presents questions regard.

ing the entry and modification of a consent decree in an

employment discrimination case. In 1977, Plaintiff-appellee

Carl Stotts filed a class action against the City of Memphis,

alleging that the Fire Department's hiring and promotion

policies were racially discriminatory. After three years of

discovery and intensive negotiations, the Stotts suit was settled

by a consent decree in 1980 (“1980 Decree”). No trial was

held. The 1980 Decree was intended to supplement an

earlier consent decree entered in 1974 which affected em-

ployment practices in all divisions of the Memphis city gov-

ernment. The 1980 Decree provides for back-pay awards and

an affirmative action plan containing specific hiring and pro-

motion goals. The decree does not specifically address the

effect layoffs would have on these affirmative action goals.

In 1981, the City of Memphis announced that city-wide

layoffs were necessary to alleviate an unanticipated economic

crisis. The proposed layoffs in the Fire Department threat-

ened to frustrate the purpose of the decrees and the progress

accomplished under them. Minority employment in the Fire

Department would have been devastated by the proposed

layoffs. Plaintiff Stotts filed a motion to restrain the City of

Memphis from implementing the layoff proposal in a manner

which affected minority firemen. The district court found

that the proposed layoffs were an unanticipated change in

circumstance not contemplated by the consent decrees. Ac-

cordingly, the court modified the decrees and enjoined the

proposed layoffs and demotions uf minority firemen. We

affirm.

A3

I. FACTS

In 1974, the United States Department of Justice (“Gov-

ernment”) instituted an action against the City of Memphis

(“City”) under Title VII, 42 U.S.C. § 2000e et seq., 42 U.S.C.

§ 1981," the Fourteenth Amendment, and the State and Local

Fiscal Assistance Act of 1972, 31 U.S.C. § 1221 et seg. The

complaint alleged that the Fire Department and various other

City divisions had engaged in a pattern or practice of race

and sex discrimination in hiring and promotions. ‘The City

initially denied the allegations. Later in 1974, however, it

agreed to settle the litigation with a consent decree (“1974

Decree” ).?

The motivation for the 1974 Decree was the desire to

remedy past discrimination and avoid the delay and expense

of further litigation. In the decree, the City did not admit

to any misconduct. The City did acknowledge, however,

that its employment practices may create an inference of

racial and sexual discrimination.

The purpose of the 1974 Decree is to remedy any disad-

vantage to blacks and women which may have resulted from

past discrimination. Subject only to the availability of qual-

ified applicants, the City agreed to undertake the “goal of

achieving throughout the work force proportions of minority

and female employees in each job cl.-sification approximating

their respective proportions in the civilian labor force.” The

decree established interim hiring goals for each of the City’s

divisions. The interim goal affecting the Fire Department

required that minority employment in the uniformed positions

1§ 1981 provides:

a ee the pustetiotion of the Spteed Gtates shall

ve same in every and Territory

enforce be give evidence, ft . to the

of and propert is enjoyed by citizens,

shall be subject to like ‘punishment, pains, penalties, taxes,

A4

increase by 5% before July of 1976. The decree also required

the City to “engage in affirmative recruitment activities con-

sistent with their obligation to take all reasonable steps to

reach the goals set forth” in the decree. Specific numerical

hiring ratios would be established if the City failed in its

good faith attempt to meet the interim hiring goal.

The 1974 Decree did not establish specific minority employ-

ment goals for the ranks above firefighter. However, the

decree acknowledged the need to increase substantially the

number of minorities in supervisory positions. In fact, the

decree committed the City to “making significant progress in

increasing the number of black and female supervisory per-

sonnel.” Numerical promotional goals could be imposed if

the City’s performance during the preceding fiscal year did

not satisfy its obligations under the decree.

On February 16, 1977, Carl Stotts, plaintiff-appellee, filed

a class action suit against the Memphis Fire Department. His

complaint alleged that the Fire Department's hiring and pro-

motion policies violated Title VII, 42 U.S.C. § 2000e et seq.,

42 U.S.C. § 1981, and 42 U.S.C. § 1983.3

The Pioneers, a group of approximately 70 minority Mem-

phis firemen, filed a motion to intervene in the Stotts case.

The trial court denied the Pioneers’ motion to intervene, but

certified the case as a class action. During the following

months, the Stotts case received extensive attention in the

local media. The press coverage included several articles

describing the Stotts case and its effect on the Fire Depart-

ment.

361983 provides:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory, subjects,

or causes to be subjected, any citizen of the Uni States or

other person within the jurisdi ction thereof to the deprivation

of any rights, privileges, or immunities secured by the Consti-

tution and Laws, shal] be liable to the party injured in an

action at law, suit in equity, or other proper proceedings for

A5

On June 19, 1979, Fred Jones, plaintiff-appellee, filed an

action against the City, alleging that the Fire Department

had denied him a promotion solely because of his race. The

Jones and Stotts cases were consolidated in September. On

September 27, District Judge McRae set a trial date for the

Stotts case but, nonetheless, encouraged the parties to settle

the action.

In December, Plaintiffs-appellees Stotts and Jones (“Plain-

tiffs”) filed a motion for a temporary restraining order

(“TRO”) to enjoin the City from making promotions within

the Fire Prevention Bureau. The Plaintiffs stated they would

be irreparably harmed if the scheduled promotions occurred.

As proposed, the promotions would fill certain positions and

prevent minorities from acquiring the experience necessary to

qualify them for supervisory positions. The City opposed the

motion, arguing that the promotions were necessary for the

efficient operation of the Fire Department. The creation

of acting or temporary positions would create instability with-

in the department. The City stated emphatically, “We do

need to make the promotions.” The trial court granted the

TRO after finding that, “there would be irreparable harm if

promotions were granted that were not consistent with the

rights of the plaintiffs.”

On January 17, 1980, the City appeared before Judge

McRae and stated that settlement negotiations were contin-

uing. On February 20, 1980, both the City and Plaintiffs

appeared before the court and siated that the settlement was

complete “except for about five different things.” Five days

later, the parties again appeared before the court and stated

that negotiations concerning the settlement were continuing

despite some difficulties concerning the affirmative relief and

monitoring sections of the proposed settlement.

Finally, on April 25, 1980, the parties announced that they

had reached a settlement. The settlement consisted of an

affirmative action plan embodied in the 1980 Decree. The

1980 Decree contained hiring and promotion goals. The

A6

decree was the final resolution of the consolidu'ed Stotts

case and applied to all class members. The parties informed

the court that they only sought preliminary approval of

the decree and the court's consent to post the decree for

15 days in the Memphis Fire Stations for comment. Counsel

also stated that he thought the Firefighters Local Union 1784

(“Firefighters Union”) might object to the decree.

The purpose of the 1980 Decree was to remedy the past

hiring and promotions practices of the Memphis Fire Depart-

ment relative to minorities. The 1980 Decree was intended

to parallel and supplement the relief provided in the 1974

Decree. The decree reaffirmed the City’s commitment to

achieve the long-term goal of increasing minority representa-

tion in each job classification to levels approximating the level

of minority representation in the Shelby County labor force.

The 1980 Decree also established specific hiring and promo-

tion goals. The hiring goal stated that qualified minorities

should fill at least 50% of all vacancies. The promotional goal

indicated that qualified minorities should receive 20% of the

vacancies. The promotiona! goal was adopted to “insure as

quickly as practicable the attainment of [the] long range

goal.” Back pay in the amount of $60,000 was also awarded

to class members in varying amounts according to their length

of service. In addition, the decree required the trial court to

retain jurisdiction to make “such further orders as may be

necessary or appropriate to effectuate the purposes of this

decree.”

Neither the Firefighters Union nor any class member filed

an objection to the decree during the 15 day period. On

May 12, 1980, however, a group of eleven non-minority fire-

men objected to the entry of the 1980 Decree and filed a

motion to intervene. These proposed intervenors filed on

behalf of themselves and allegedly all other non-minority

firemen. The non-minority firemen were not, however, repre-

sentatives of the Firefighters Union, the union representative

of Memphis firemen.

A7

The non-minoritics asserted that the promotional goals con-

tained in the 1980 Decree operated as “reverse discrimination

against the non-minorities.”. The non-minorities also asserted

that less burdensome alternative relief for minority employees

was available which did not shift discrimination to non-

minority employees. These alternatives included the creation

of additional positions for promotion, organizational restruc-

turing of the Memphis Fire Department, constructive promo-

tion,* and the payment of monetary damages to non-minority

employees affected by the decree.

On May 16, 1980, the court held a hearing. The court

heard objections to the 1980 Decree and the motion to inter-

vene. No class member filed an objection to the decree. The

proposed intervenors indicated that the only immediate re-

lief they sought was a delay in the approval of the promo-

tion section of the decree. Allegedly, additional discovery

and expert statistical analysis were necessary before concrete

alternative remedies for the past discrimination minorities ex-

perienced could be presented. The proposed intervenors’

position was that the decrce should not have any affect on

the promotional opportunitics of incumbent employees. The

proposed intervenors did not argue that the relief provided

in the 1980 Decree unduly burdened a readily identifiable,

small group of incumbent employees. Nor did the proposed

intervenors argue that the decree was the product of collusion.

The court denied the proposed intervenors’ motion to inter-

vene after finding that the proposed intervenors adopted a

“wait-and-see” approach to the litigation. The alternatives

suggested by the proposed intervenors were also considered

and rejected. Continuation of the TRO would unduly hamper

the functioning of the Fire Department. The court also

4 According to the proposed intervenors, que sem

would occur whenever a minority and non-minority ate were

equally qualified for a position but the minority got the position.

The minority would obtain the title, he pe a pay for the

promotion while the non-minority receive the pay as a con-

structive promotion.

A8&

opined that it could take judicial notice that the City’s past

employment practices were racially discriminatory based on

evidence contained in the record. Ultimately, the court deter-

mined that the 1980 Decree was “reasonable”.

On May 4, 1981, Joseph Sabatini, Director of Personnel for

the City, publicly announced a personnel reduction in non-

essential services in all divisions of the City government.

The proposed layoffs were (1c first in the City’s history. The

City’s layoff policy was based on an individual’s city-wide

union seniority, that is, the length of his tenure as a city

employee. The seniority system was mentioned in the 1974

Decree and is incorporated in the City’s memorandum of

understanding with the Union.

A deficit in the City’s projected operating budget prompted

the proposed layoffs. The deficit was caused by an unan-

ticipated decrease in the general revenue funds from the

1980-81 fiscal year and an increase in operating costs. Plain-

tiffs were not given an opportunity to review the City’s layoff

policy before it was announced publicly. The Mayor had

ultimate authority to determine which job classifications within

the city government were affected by the new layoff policy.

On May 4, 1981, Plaintiffs obtained a TRO restraining the

City from laying off or reducing in rank any minority em-

ployee in the Memphis Fire Department. The parties con-

sented to the intervention of the Firefighters Union in the

Stotts case the next day.

An evidentiwy hearing was held on May 8 to consider

Plaintiffs’ request for a preliminary injunction. The court

made several determinations. First, the announced layoffs

and demotions were an unanticipated changed circumstance

not provided for in the text of the decree. Second, the 1980

Decree was designed to correct the effects of the City’s hiring

and promotion practices. Finally, the court concluded that

the proposed layoffs would have a devastating and retrogres-

sive effect on minority employment and the affirmative action

accomplished pursuant to the consent decrees. Most minori-

Ag

ties above the rank of private had accrued little seniority in

their respective ranks. Consequently, nearly 60% of all fire-

men affected by the demotions would have been minorities.

Moreover, fifty-five percent of all minority Lieutenants and

46% of all minority Drivers would either have been laid off

or demoted if the announced layoffs had occurred.

Based on this and other evidence in the record,’ the court

5S Between 1950 and 1976, the Memphis Fire Department hired 94

bleck and 1683 white firemen. Promotions within the Fire Depart-

ment between the years of 1969 and 1975 were as follows:

MEMPHIS FIRE DEPARTMENT PROMOTIONS

1969 Black White

Lievtenant 1 17

1970 Black White

Driver 1 60

1971 Black White

Driver 1 13

Lieutenant 0 15

Captain 0 1

1972 Black White

Drivers 2 128

Lieutenant 1 57

Investigator — Lieutenant 0 6

Captain 0 2

1973 Black White

Investigator — Captain 0 5

Captain 0 3

Emergency Unit — Lieutenant 0 4

1974 Black White

Driver 1 39

Lieutenant 0 21

1975 Black White

Driver 0 8

Lieutenant 0 5

Captain 0 2

In 1979, blacks constituted between 33 and 37 percent of the

Memphis population. However, the Fire Department was only 10

percent black. The past hiring and promotional policies of the City

of Memphis caused the Fire Department to exhibit the following

racial characteristics in 1979:

BLACK WHITE

I ADMINISTRATION

Senior Account Clerk 0 2

Accountant 0 1

Al0

III.

Secretary

Executive Secretary

Personne] Li

Master Plans Coordinator

OSHA Coordinator

Manager — Fire Personnel

Administrative Assistant

Total

APPARATUS MAINTENANCE

Vehicle Serviceman

Preventive Maintenance

Repairman

Fire Maintenance Mechanic

District Chief

Total

MATERIAL SERVICES

Storage Keeper

Crewman

Building Maintenance

Supervisor

Manager

BLACK

Sl hee ne oe

iS] 8

|

mm wena ee

ae

All

ruled that the layoff policy would have a discriminatory impact

and the seniority system was non-bona fide. Subsequently,

the court modified the consent decree to minimize the disrup-

2 :

i

3

z

FS

e

=}

a &

z

AMBULANCE SERVICE

Emergency Unit Operator

a aenen

District

=

=

—|coo~ -

In Teamsters, supra, the Supreme Court stated statistics indicating

racial imbalance are often “a telltale sign discrimina-

tices will in time result in a workforce more or less representative

S Oe ee sempeee & Oe oy Id. at n.20. In the spring

of 1981, blacks constituted only 11 percent the Memphis Fire

ge SM - d D

prima facie case of employment discrimination

€ The district court erred in ruling that the system was

— ek E

adopted with a discriminatory purpose.

been See wr Meller Co, 6 34 11

1122 { saail Tie austiel court ait aad that Ga lanels

Al2

tive effect the layoffs would have on the efforts to achieve the

goals of the decree. The court enjoined the City from

applying the layoff policy based on seniority insofar as it

would decrease the percentage of black Lieutenants, Drivers,

Inspectors, and Privates employed in the Memphis Fire De-

partment. The City and the Union appealed.

On June 22, 1981, Plaintiffs filed a motion requesting the

court to enjoin the proposed layoffs and demotions of minority

employees in five additional positions. After a hearing on

the motion, the court expanded the preliminary ‘njunction to

include three of the five positions.

Both the City and the Union filed a motion with the trial

court to stay its injunction pending appeal. The trial court

denied the stay on May 18, 1981. On June 25, 1981, a panel

of this Court also denied the motion for a stay pending

appeal.

INTRODUCTION

The principal issue raised on appeal is whether the district

court erred in modifying the 1980 Decree to prevent minority

employment from being affected disproportionately by unan-

ticipated layoffs. This issue, however, cannot be properly

addressed until it is first determined whether the underlying

consent decree is fair and reasonable. Only a reasonable

consent decree can be validity modified. Thus, we must first

discuss the procedure for approving consent decrees.

PRELIMINARY APPROVAL |

Before preliminarily approving a consent decree, a court

must first determine that the decree is the result of good

faith, arms-length negotiations. United States v. Miami, 614

F.2d 1322, 1330-31 on reh., 664 F.2d 435 (Sth Cir. 1981);

Flinn v. FMC Corp., 528 F.2d 1169, 1173 (2d Cir. 1975),

cert. denied, 424 U.S. 967 (1976). A preliminarily approved

decree is presumptively reasonable. See Metropolitan Hous-

Al3

ing Development Corp. v. Village of Arlington Heights, 616

F.2d 1006, 1013 (7th Cir. 1980); United States v. Philadelphia,

931,327 (.D. Penn. 1980). Notice of the preliminarily ap-

proved decree must be given to class members and others

who may be affected by the decree. See Village of Arling-

ton Heights, 616 F.2d at 1014. A hearing should be held

after an appropriate period of time. The hearing should

be 4 forum in which any comments and objections to the de-

cree can be aired. Village of Arlington Heights, 616 F.2d at

1014; Equal Employment Opportunity Commission v. Amer-

ican Telephone aad Telegraph Co., 556 F.2d 167, 173 (3d

Cir. 1977), cert. denied sub nom; Communication Workers of

America v. EEOC, 438 U.S. 915 (1978); Dennison v. Los

Angeles, 658 F.2d 694, 695-96 (9th Cir. 1981); Baker v. Detroit,

504 F.Supp. 841, 847 (E.D. Mich. 1980)

In the instant case, the parties engaged in extensive dis-

litigation. Four months before the 1980 Decree was an-

nounced, the City informed the court that settlement nego-

Al4

held a hearing to consider objections to the decree. Subse-

quently, the court determined that the decree was a product

of arms-length negotiations.* The procedure adopted by Judge

McRae in preliminarily approving the decree was adequate.

REASONABLENESS HEARING

The determination of whether the decree is adequate, fair,

and reasonable should only occur after the court has had an

opportunity to hold a hearing to consider objections to the

decree. See, e.g., Village of Arlington Heights, 616 F.2d at

1014; Airline Stewards and Stewardesses Assoc. v. American

Airlines, 573 F.2d 960, 964 (7th Cir. 1978) (per curiam), cert.

denied sub nom., Assoc. of Professional Flight Attendants v.

Airline Stewards and Stewardesses Assoc., 438 U.S. 876 (1978);

Culbreath v. Dukakis, 630 F.2d 15, 23 (1st Cir. 1980); Cotton

v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977); Miami, 614

F.2d at 1331-1334. This reasonableness determination is an

issue of law to be determined by the court. Sev Setser v.

Novack Invest. Co., 657 F.2d 96°. 969 (8th (.. 1981), cert.

denied, —— U.S. ——, 102 S.Ct. 615 (1981); Beker, 504 F.Supp.

at 843 n.i. The court should not determine the merits of the

controversy or the precise facts underlying the legal positions

of the litigants presenting the consent decree. See Swift &

Co. v. United States, 276 U.S. 311, 324 (1928); Airline Stewards

and Stewardesses Assoc., 573 F.2d at 963-64. Instead, the

court should merely satisfy itself that the decree is reasonable.

In making the reasonableness determination, the court is

under a duty to evaluate three factors. First, the court must

consider whether the decree is a fair and adequate resolution

®The better practice is to determine that the decree is not the

Product of collusion before the decree is preliminarily approved.

Al5

of the allegations contained in the complaint.* See FMC

Corp., 528 F.2d at 1172; United States v. Trucking Em-

ployers, Inc., 561 F.2d 313, 317 (D.C. Cir. 1977); later app.,

United States v. Trucking Management, Inc., 662 F.2d 36

(D.C. Cir. 1981). Cotton, 559 F.2d at 1330. Ordinarily, the fol-

lowing factors will be considered: 1) the complexity, expense

and likely duration of the litigation; 2) the stage of the proceed-

ings and the amount of discovery completed; 3) the risks of lit-

igation; 4) the resources of the defendant; and 5) the reason-

ableness of the settlement in light of the best possible recovery.

See FMC Corp., 528 F.2d at 1173; Ingram v. Madison Square

Garden Center, Inc., 21 EPD 130,393, 13,254 (S.D. N.Y.

1979); Women’s Committee v. National Broadcasting Co., 76

F.R.D. 173, 175 (S.D. N.Y. 1977). The court should be

sensitive to the objections made by class members. FMC

Corp., 528 F.2d at 1173; Cotton, 559 F.2d at 1331.

Second, the court must consider whether the decree is fair

and reasonable to non-minorities who may be affected by it.

Vulcan Society v. White Plains Fire Department, 505 F.

Supp. 955 (S.D. N.Y. 1981). American Airline Stewards and

Stewardesses, 573 F.2d at 964. An identifiable statistical

disparity must exist before a decree may embody affirmative

relief provisions." See United Steelworkers v. Weber, 443

U.S. 193, 208 (1979), on remand, Weber v. Kaiser Aluminum

& Chemical Corp., 611 F.2d 132 (5th Cir. 1980). The affirma-

* The effects of discriminatory pre-Act and post-Act

apy yey Hy RAE H.-S -F-

nm a consent decree. See Detroit Police Officers Association, 608 F.2d

s

8

sek ge8 (ee Cie sedi), Detrete Police Oflcore Assoctasion, O04 Fad

at 689, 690. In the context of consent decrees

action relief, we interpret the disclaimer of to be an

admission that there is a statistical the defendants

eS reservation of the

Al6

tive relief provisions must be reasonably related to the re-

medial purpose of correcting the racial imbalance in the work-

force. See Valentine v. Smith, 654 F.2d 503, 510-511 (8th

Cir. 1981); Lehman v. Yellow Freight System, Inc., 651 F.2d

520, 526-527 (7th Cir. 1981); Detroit Police Officers Associ-

ation v. Young, 608 F.2d 671, 694-698 (6th Cir. 1979), cert. de-

nied, — U.S. —, 101 S.Ct. 3079 (1981); United States v. City

of Alexandria, 614 F 2d 1358, 1366 (5th Cir. 1980); Setser, 657

F.2d at 968, 969. See also United Steelworkers v. Weber, supra.

The terms of the decree cannot require the discharge of non-

minority workers and their replacement with minorities. Id.

The decree’s provisions cannot bar absolutely the advancement

opportunities of non-minorities. 1d. Moreover, the decree must

be a temporary remedy designed to terminate when it has elim-

inated the racial imbalance. Id. The decree cannot mandate

the hiring or promotion of unqualified individuals. Id. Final-

ly, the court shall retain jurisdiction over the administration

of the decree and make such further orders as are necessary.

Specific race-conscious hiring and promotion goals and

ratios are appropriate elements of consent decrees. The goal

of achieving racial diversity in the top ranks of city govern-

ment is not only reasonable, but a legitimate constitutionally

permissible interest a city may pursue. See Talbert v. Rich-

mond, 648 F.2d 925, 931 (4th Cir. 1981); Detroit Police

Officers Assoc., supra. This interest justifies individual consid-

eration of race. No decision of the Supreme Court has ever

adopted the proposition that the Constitution must be color-

blind. See Bakke, 438 U.S. 265, 336 (1978); Miami, 614 F.2d

at 1336. On the contrary, the Supreme Court has approved

race-conscious affirmative action in a wide variety of situations

where it is an attempt to ameliorate the effects of past dis-

crimination. See United Jewish Organizations v. Carey, 430

U.S. 144 (1977) (reapportionment); McDaniel v. Barresi,

402 U.S. 39 (1971) (school desegregation); Bakke, 438 U.S.

265 (1978) (graduate school admissions policy); Weber, 443

Al7

U.S. 193 (1979) (admission to union training program); Fulli-

love v. Klutznick, 448 U.S. 448 (1980) (government con-

tracting).

The appropriateness of temporary race-conscious employ-

ment goals or ratios is a fact sensitive inquiry. The test is

whether the technique is a reasonable response to the racial

imbalance the decree was designed to erradicate. See Alex-

andria, 614 F.2d at 1363, 1366. Generally, there should be

some relationship between the magnitude of the imbalance,

the strength of the goals, and the reasonableness of the

provision. Ratios are particularly appropriate where the racial

imbalance is highly disproportionate. A “goal which seeks

the same racial proportion among employees as in the labor

force will ordinarily be reasonable.” Detroit Police Officers

Assoc., 608 F.2d at 696; Alexandria, 614 F.2d at 1366, n.18.

Temporary hiring goals of 50% have bee approved routine-

ly as reasonable. See, c.g., Weber, 443 U.S. 193 (reservation

of 50% of all openings in apprenticeship craft training program

reasonable ); Vulcan Society, 505 F.Supp. 955 (50% hiring ratio

reasonable where minority representation in population is

16% while workforce representation is only 3%); EEOC v.

Bartenders International Union, 22 EPD {130,700 (N.D.

Cal. 1979) (50% of job referrals from craft union reasonable);

Alexandria, 614 F.2d 1358 (50% hiring goal reasonable ); United

States v. Jackson, 519 F.2d 1147 (5th Cir. 1975) (50% hiring

goal reasonable); Firebird Society of New Haven v. New

Haven Board of Fire Commissioners, 66 F.R.D. 457 (D. Conn.

1975) (total freeze followed by 50% hiring reasonable where

minority representation in workforce is 4% while minorities are

30% of the population); Bolden v. Pennsylvania State Police,

73 F.R.D. 370, affd. 578 F.2d 912 (3d Cir. 1978) (50% hiring

goal reasonable). In Morrow v. Crisler, 491 F.2d 1053 (5th

Cir.), cert. denied, 419 U.S. 895 (1974), the Fifth Circuit re-

versed an earlier panel decision which had affirmed an affirma-

Al8

tive action plan which relied upon the good faith of the

defendants where there was gross minority underrepresenta-

tion in the employer's workforce. The en banc court or-

dered the district court to consider temporary 1 to 1 or 1 to

2 hiring, the creation of hiring pools, or a freeze on non-

minority hiring.

Temporary promotional ratios are also reasonable. See

e.g., Baker, 504 F.Supp. 841 (50% promotion ratio reasonable) ;

Dennison, 658 F.2d at 695 (Consent decree which awarded

50% of all promotions to minorities reasonable); Bolden, 73

F.R.D. at 373-74 (33% promotion ratio reasonable); United

States v. Philadelphia, 24 EPD {31,327 (E.D. Penn. 1980)

(promotion of 17% of all incumbent female police officers

reasonable); Firebird Society, 66 F.R.D. 457 (promotional

goal of 33% for the position of lieutenant reasonable ); Jackson

519 F.2d 1147 (“accelerated promotions” of incumbent blacks

reasonable). In American Telephone and Telegraph Co.,

556 F.2d 167, the consent decree directed the Bell Sys-

tem Companies to establish goals and intermediate targets

to promote the full utilization of all race, sex and ethnic

groups in each of fifteen job classifications. The intermediate

targets reflected the representation of such groups in the

external labor market in relevant pools for each operating

company’s workforce. When any operating company was

unable to achieve its intermediate target, the decree required

it to depart from normal standards and select basically quali-

fied candidates.

The final factor a court must consider is all objections to

the decree and alternatives to the decree’s provisions pre-

sented during the hearing. Miami, 614 F.2d at 1334; American

Telephone and Telegraph, 556 F.2d at 178. The preliminarily

approved decree is presumptively reasonable. Philadelphia,

24 EPD at 18,046; Miami, 614 F.2d at 1333. Consequently,

one objecting to the decree bears the heavy burden of demon-

strating that the decree is unreasonable. Philadelphia, 24 EPD

Al?

at 18,047; Miami, 614 F.2d at 1334. A decree may be finally

approved over the objections of class members and non-minori-

tics who are affected by it. See Dennison, 658 F.2d at 696;

Holmes v. Continental Can Co., 25 EPD § 31,490 (N.D. Ala.

1980). If the decree is rejected, the principaled reasons for the

rejection must appear on the record. Miami, 614 F.2d at 1333;

Philadelphia, 2A EPD at 18,047. A decree should be rejected

only after the court informs the parties of its precise concerns

and gives them an opportunity to reach a reasonable accommo-

dation. Miami, 614 F.2d at 1333.

The court should not attempt to impose its perspective on

the parties. The court should only determine whether the

decree is within the range of reasonableness. Some reliance

may be placed on the ability of competent counsel to accurate-

ly assess the strengths and weaknesses of each litigant’s case.

See Cotton, 559 F.2d at 1330; FMC Corp., 528 F.2d at 1173.

The decree is a compromise. Neither litigant obtained all that

they had hoped to gain initially through litigation.

A principal purpose of Title VII is to induce voluntary race-

conscious affirmative action. Detroit Police Officers Assoc.,

608 F.2d at 690. Courts have placed a high premium on the

voluntary settlement of Title VII actions. See, e.g., Alexander

v. Gardner-Denver Corp., 415 U.S. 36, 44 (1974); Miami,

614 F.2d at 1331-33. Dennison, 658 F.2d at 696; Village of

Arlington Heights, 616 F.2d at 1014-1016. Cotton, 559 F.2d at

1331; United States v. Allegheny-Ludlum Industries, Inc., 517

F.2d 826, 846 (5th Cir. 1975), cert. denied, 425 U.S. 944

(1976); Hutchings v. United States Industries, Inc., 428 F.2d

303, 309 (5th Cir. 1970). Consent decrees enhance the possi-

bility of compliance with Title VII and other employment

discrimination laws. Id. Consent decrees may produce more

favorable results than more sweeping judicially imposed orders

that might risk opposition and resistance. Jd. Consent decrees

also reduce the cost of litigation, engender judicial economy,

A20

and vindicate an important societal interest in affirmative ac-

tion."" Id.

On appeal, the standard of review is abuse of discretion.

Dawson v. Pastrick, 600 F.2d 70, 75 (7th Cir. 1979); Cotton,

559 F.2d at 1331, Village of Arlington Heights, 616 F.2d at

1015. Due deference will be given the trial court's greater

familiarity with the strategy and the relative strengths of each

litigant’s case. See Alexandria, 614 F.2d at 1362.

In the instant case, all pretrial discovery had been com-

pleted. Thus, counsel and the court were in an excellent

position to assess the relative strengths of each litigant’s case.

The parties agreed to the terms of the 1980 Decree. The

court found that there was no evidence of collusion, stating

“no parroting” had occurred throughout the pretrial period.

The 1980 Decree represents a reasonable compromise of their

competing interests. The City relinquished no more control

over its personnel decisions than was absolutely necessary

to avoid a trial on the merits.'? Plaintiffs did not agree to the

decree until it became apparent that they had obtained

substantially all they could have obtained, given the risks of

litigation.

11 “Settlement agreements should. . . be upheld whenever equitable

and policy considerations so permit. By such agreements are the

burdens of trial spared to the parties, to other litigants waiting their

turn before overburdened courts, and to citizens whose taxes support

the latter. An amicable compromise provides the more speedy and

reasonable remedy for the dispute.” Aro Corp. v. Allied Witan Co.,

531 F.2d 1368, 1372 (6th Cir.), cert. denied 429 U.S. 862 (1976).

12 An employer, such as the City, is unlikely to have an over-

compromising attitude toward affirmative action. Employers recog-

nize, as does the dissent, that an inequitable or overly zealous affirma-

tive action plan may create racial tension in the workplace. The

presence of this tension may creaie dissention and a general non-

productive work climate. is unfortunate, but real potential for

non-minority backlash is a potent disincentive which restrains em-

from to s ng affirmative action. H L

A21

The adequacy of the 1980 Decree can be assessed by con-

sidering the statistical evidence of discrimination in the record.

This statistical evidence is sufficicnt to create a strong prima

facie case of racial discrimination. In fact, the trial court

thought that the evidence was so compelling that it could

take judicial notice of the discriminatory employment prac-

tices of the City.'2 Minorities were excluded from mean-

ingful participation in the Memphis Fire Department for

decades. The goals embodied in the decree are reasonable.

However, the goals are merely an adequate response to the

gross underutilization of minorities within the Fire Depart-

ment. The promotion and hiring goals embodied within the

1980 Decree supplement the relief provided in the 1974

Decree. The 1974 Decree contemplated the imposition of

these goals if the utilization of minorities was not substan-

tially increased. This contingency in the 1974 Decree is an

additional factor enhancing the reasonableness of the 1980

Decree. Significantly, no class member objected to the terms

of the 1980 Decree.

The court also considered the interests of non-minorities.

The affirmative action provisions of the 1980 Decree do

diminish the promotiona! expectations of non-minorities. A

simple reduction in the “expectations” does not, however,

necessarily make a consent decree unreasonable. For exam-

ple, in Weber, 443 U.S. 193, the expectations of non-minori-

ties were adversely affected, yet the affirmative action plan

was legal. In the instant case, the harm suffered by in-

cumbent non-minority employees because of the promotional

goal is de minimus. Many minorities would have been

13 Statistical evidence of racially te ingest may establish

a statutory violation of Title VII. See age

States, 431 US. 324, 339 (1977). Under some circumstances such

evidence could te a constitutional violation. See Villiage

Arlington Heights v. Metropolitian Housing Corporation, 429 U.

252, 266 and n13 (1972).

A22

promoted even absent the consent decree. In fact, absent

disc.imination, the minority promotion rate should approx-

imate the percentage of minorities in the community."* See

International Brotherhood of Teamsters v. United States, 431

U.S. 324, 340 n.20 (1977); Detroit Police Officers Assoc., 608 F.

2d at 696-97. Minorities represent 35% of the Memphis Com-

munity, therefore, over the long-run the minority promotion

rate should exceed the 20% promotion ratio in the 1980 Decree.

Viewed in this light, the promotion ratio in the 1980 Decree

is a floor and not a ceiling on minority promotions. The

consent decree embodies a minority promotion ratio which is

less than the 35% minority promotion ratio which presump-

itvely would be the norm absent the City’s past employment

practices. Non-minorities allege the 1980 Decree’s 20% pro-

motion goal unduly interferes with their expectation of pro-

motion. It appears, however, that the expectation of non-

minorities is based upon a pre-decree minority promotion ratio

which presumptively would have been significantly higher had

the City’s employment practices been non-discriminatory. The

1980 Decree eliminated only a portion of the promotional

expectations of non-minorities which presumptively were

based on the City’s discriminatory promotional practices.

The court also held a hearing to enable the proposed inter-

venors to air their objections to the 1980 Decree. The pro-

posed intervenors suggested that the court restructure the

Fire Department, institute a constructive promotion procedure,

or create more upper management positions so the promo-

tional expectations of non-minorities would not be diminished.

The district court rejected these alternatives. The court was

correct in summarily rejecting the alternatives suggested by

the intervenors. See Philadelphia, 24 EPD at 18,048. The

court had no authority to restructure the Memphis Fire De-

partment. See National League of Cities v. Usery, 426 US.

14 This court assumes the rate of minority participation in the labor

force equals the percentage of minorities in the Memphis community.

A23

833 (1976), on remand sub nom., National League of Cities

v. Marshall, 429 F.Supp. 703 (D.C. Col. 1977).

Finally, the court determined that the decree was reason-

able. We agree. The decree was reasonably related to cor-

recting the underutilization of minorities in the Memphis Fire

Department. The decree did not require the discharge of

non-minority employees and only encompassed qualified

minorities. Moreover, the decree is temporary and does not

constitute an absolute bar to the advancement of non-minori-

ties. More importantly, the court has retained jurisdiction

to enter such further orders as are necessary to effectuate the

purposes of the decree while not unduly trammeling the inter-

ests of non-minorities.

OPERATION OF A CONSENT DECREE

A.

A consent decree is essentially a contractual agreement sub-

ject to continued judicial policing. The terms of the decree,

unlike those of a simple contract, have unique properties. A

consent decree has attributes both of a contract and of a judi-

cial act. See United States v. Motor Vehicles Manufacturers

Association of United States, Inc., 643 F.2d 644, 648 (9th Cir.

1981); United States v. ITT Continental Baking Co., 420 U.S.

223, 236, n.10 (1975). Consent decrees are construed for

enforcement purposes as contracts. See ITT Continental Bak-

ing Co., 420 U.S. at 238. Brown v. Neeb, 644 F.2d 551

(6th Cir. 1981); Strouse v. J]. Kinson Cook, Inc., 634 F.2d 883,

885 (Sth Cir. 1981). Aids such as the circumstances sur-

rounding the formation of the decree help determine the

purpose for which the decree was entered. See Brown v.

Neeb, 644 F.2d at 562; United States v. Bechtel Corp., 648

F.2d 660, 665 (9th Cir. 1981), cert. denied, 102 S.Ct.

(1981); ITT Continental Baking Co., 420 U.S. at 238. The bind-

ing substantive commands of a consent decree are embodied

A24

within the decree’s “four corners”. See United States v.

Armour & Co., 402 U.S. 673, 682 (1971); Strouse, 634 F.2d

at 885. A decree embodies the legal constraints which govern

the behavior of the parties during the life of the decree. See

ITT Continental Baking Co., 420 U.S. at 236. In interpreting

a decree, courts may not depart from its “four corners” unless

its language is ambiguous. See Id.; Motor Vehicles Manufac-

turers Assoc., 643 F.2d at 648.

A decree is always specifically enforceable as written. See

ITT Continental Baking Co., 420 U.S. at 238; Miami, 614 F.2d

at 1333; Strouse, 634 F.2d at 885. The subject matter of a

decree in an employment discrimination action, the right to

litigate the issue of discrimination, is always unique. Both

parties relinquish this valuable right in reliance upon the de-

cree. Plaintiff forgoes the right to be made “whole” by

proving a violation of Title VII.'5 A defendant, on the other

hand, relinquishes the right to rebut the allegations of dis-

crimination and avoid the affirmative responsibilities imposed

by a judicial finding of discrimination. A party cannot simul-

taneously benefit from « decree and ignore its corresponding

affirmative obligations. See Strouse, 634 F.2d at 886. The spe-

cific performance ordered should ordinarily accomplish that

progress which would have occurred but for a party's failure

to abide by the terms of the decree. See EEOC v. Local

Union No. 38, 25 EPD 931,553 (N.D. Cal. 1981); Bolden,

73 F.R.D. at 370. A trial court has continuing jurisdic-

tion to modify a decree should its operation become un-

reasonable. See United States v. Chicago, 663 F.2d 1354 (7th

Cir. 1981) (en banc); Miami, 614 F 2d at 1333-34.

'SIf a violation had been established, the remedy would have

embodied retrospective as well as prospective relief. See Albmarle

Paper Co. v. Moody, 422 U.S. 405, 418 (1974).

A25

Quite apart from the contractua] mandate of specific per-

formance, the court has an independent duty to ensure that

the terms of the decree are effectuated. The reasonableness

determination is a judicial act and a final order of the court.

This determination places the weight and authority of the

court behind the terms of the decree. An approved consent

decree is not simply a compact between former litigants, rather

it is a court order. Consequently, a court has an affirmative

duty to protect the integrity of its decree. This duty arises

where the performance of one party threatens to frustrate the

purpose of the decree.'* For example, in Local Union No.

38, 25 EPD 131,553, a union was held in contempt for

failing to comply with the terms of a consent decree which

it had entered. The court increased the number of minorities

affected by the decree’s affirmative action plan in the amount

which the union had failed to meet the plan’s goals. In EEOC

v. Bartenders International Union, Local No. 41, 22 EPD

1 30,700 (N.D. Cal. 1979), the court extended the duration of

a consent decree and increased the percentage goal of integra-

tion where the union fell short of meeting its minority mem-

bership goal, the statistical disparity between minority and

non-minority in the union workforce continued to exist, and the

long-range goal of the decree had not been met. In Bolden,

73 F.R.D. 370, the court modified a consent decree after an

unanticipated economic crisis prevented the employer from

being able to afford to comply with the terms of a decree

which mandated affirmative action. The court increased the

minority hiring goal from 33 to 50 percent and the minority

promotion ratio from 25 to 33 percent.'”

16 Absent extraordinary circumstances, the court should act only

vn the motion of the parties.

17 We express no on whether the goals contained in the

instant decree should increased at the conclusion of the unantici-

pated economic crisis in Memphis.

A26

Cc,

The operation of the promotion section of the 1980 Decree

does not constitute unconstitutional reverse discrimination.

The proposed intervenors suggest that monetary damages,

constructive promotions, and front pay are appropriate com-

pensation for non-minority employees who allegedly are ad-

versely affected by the decree’s operation. The district court

rejected this argument as substantively incorrect. We agree.

Compensatory relief is generally intended to make a litigant

whole for any losses occasioned by wrongdoing. Thus, the

proposed intervenors implicitly contend that the operation of

the decree constitutes a compensable wrong. We hold that a

reasonable consent decree does not constitute a compensable

wrong. In fact, a reasonable consent decree does not adverse-

ly affect any legally protected interest of a non-minority.

Equal Employment Opportunity Commission v. McCall Cor-

poration, 633 F.2d 1232 (6th Cir. 1980) is instructive on this

point. In McCall, male carloaders alleged that a consent

decree which granted retroactive seniority to female employees

constituted an act of discrimination. Judge Kennedy, speak-

ing for this Court, held:

“Acceptance of plaintiffs’ theory that a conciliation agree-

ment and consent decree resulting from a Title VII action

can itself be an act of discrimination would create major

problems.

This court is convinced that the consideration of a con-

ciliation agreement which results in a consent decree as

an act of discrimination against employees not benefitted

by that agreement would create a situation in which each

settlement would spark new rounds of litigation, settle-

ment of claims would be discouraged, and the courts

would continually he faced with stale claims. Conse-

quently, we hold that conciliation agreement resulting in

consent decrees may not be considered independent acts

A27

of discrimination, as a matter of law, unless there are

allegations of bad faith in making the agreement, that

is allegations that the agreement was not a bona fide

attempt to conciliate a claim but rather an attempt to

bestow unequal employment benefits under the guise of

remedying discrimination.” Jd. at 1238; Freeze v. Aro,

Inc., 503 F Supp. 1045, 1047 (F.D. Tenn. 1980). Accord, -

Setser v. Novack Investment Co., 657 F.2d 962, 970 (8th

Cir. 1981) (en banc).

A consent decree may be attacked only on the ground that

its substantive provisions unlawfully infringe the rights of the

complainant. See Society Hill Civic Assoc. v. Harris, 632 F.2d

1045, 1059 (3d Cir. 1980). We hold that a reasonable con-

sent decree which embodies an affirmative action plan does

not affect any legally protected interest of non-minorities.

See McCall, 633 F.2d at 1238. Therefore, reverse discrim-

ination challenges to reasonable consent decrees are imper-

missible collateral attacks. See Dennison, 658 F.2d at 695.

Prate v. Freedman, 430 F.Supp. 1373 (W.D. N.Y.), affd., 573

F.2d 1294 (2d Cir. 1977), cert. denied, 436 U.S. 922 (1978);

O’Burn v. Shapp, 70 F.R.D. 549 (E.D. Pa.), affd., 546 F.2d

417 (3d Cir. 1976), cert. denied, 430 U.S. 968 (1977). See also,

Miami, 614 F.2d at 1329 (Consent decree cannot be chal-

lenged by a party whose rights are not affected by it).

The proposed intervenors have not alleged that the 1980

Decree was the product of collusion. Indeed, this record

would not support such an allegation. Moreover, the 1980

Decree is reasonable. Thus, the proposed intervenors’ action

is an impermissible collateral attack. See Dennison, 658 F.2d

at 695-96.

Moreover, awarding compensatory relief to non-minority

employees would impose conflicting or inconsistent obligations

on the City. This is particularly true of the constructive pro-

motion suggestion. Under this alternative, each time the City

A28

attcnipted to promote minorities, it would be required to pro-

vide an equivalent amoum of compensation to a non-minority

employee who allegedly would have been promoted but for

the decree. This extra compensation would drastically in-

crease the cost of each promotion and the cost of complying

with the 1980 Decree. This increased cost would destroy a

primary incentive which motivated the City to enter the 1980

Decree. Thus, permitting the proposed intervenors to sue for

compensation would be inimical to the policy of encouraging

the settlement of Title VII actions.

In addition, the compensatory relief sought by the proposed

intervenors frustrates the purpose of the decree. The purpose

of the decree is to correct the effects of those past employ-

ment practices of the City which may have been racially dis-

criminatory. The decree provides that minorities are entitled

to certain affirmative treatment and consideration in future

promotions because of the City’s past employment practices.

Evidence contained in this record not only supports this en-

titlement, but is sufficient to establish a prima facie case of

racial discrimination. The decree is designed to correct past

employment practices which illegally benefited non-minorities.

The proposed intervenors seek to confer indirectly the benefits

of the decree on non-minorities. Therefore, the relief sought

by the proposed intervenors is patently inconsistent with the

purpose of the decree.

Finally, if the consent Cecree could constitute an actionable

wrong, the City would be subject to dual obligations. The

failure to enter a consent decree would leave the City poten-

tially liable in the Plaintiffs’ employment discrimination action.

On the other hand, the proposed intervenors imply that com-

pliance with the decree would subject the City to “reverse

discrimination” suits seeking comparable relief for non-minor-

ities. The proposed intervenors’ position places the City in

a “Catch-22” position of incurring liability for employment

discrimination without regard to the action taken. The

A29

absurdity of placing employers in this position has been noted

by several courts. See Telephone Workers Union of New

Jersey Local 827 v. New Jersey Bell Telephone, 450 F.Supp.

284, 298 (D. N.J. 1977), aff'd. 584 F.2d 31 (1978); Dennison,

658 F.2d at 695-6; Hunter v. St. Louis-San Francisco Ry. Co.,

639 F.2d 424, 425 n.2 (8th Cir. 1981). See also Alexandria,

614 F.2d at 1366.

The proposed intervenors contend that this potential double

liability is necessary to ensure that an employer bears the

full price of its past wrongdoing. Permitting double liability

in this situation would clearly maintain the status quo. At a

minimum, double liability would so escalate the cost of af-

firmative action that an employer's ability to implement an

affirmative action plan would be severely crippled. As a

result, affirmative action would be impractically expensive.

It is unfortunate that the City engaged in the employment

practices which precipitated the decree. However, non-

minorities benefitted from, practiced, and acquiesced in those

practices. The 1980 Decree is a reasonable means to correct

the adverse effects which minorities shouldered as a result of

those employm.:.i practices. The decree does not adversely

affect any legally protected interest of non-minorities.

The proposed intervenors apparently agree that some action

must be taken to ensure that discrimination does not prevent

minorities from receiving a fair share of the economic oppor-

tunities available. They disagree, however, on the means

selected to accomplish this end. The proposed intervenors

assert that non-minorities are unhappy with the promotion

section of the 1980 Decree. This temporary measure only

partially realigns promotional expectations to reflect minority

employment levels which would have occurred absent the

discrimination. This realignment vindicates a societal inter-

est in remedying the effects of racial and more than justifies

the displeasure some non-minorities may experience. More-

A30

over, the proposed intervenors disregard the fact that minori-

ties may also be dissatisfied with the temporary relief afforded

by the 1980 Decree. In fact, minorities may be less than total-

ly satisfied that the remedial provisions of the decrees are

adequate compensation for the many opportunities foreclosed

to them for decades. The dissatisfaction which non-minorities

and minorities may experience is inherent in the compromise

which the 1980 Decree represents. A consent decree reached

after negotiation and consultation is the preferred means of

balancing the conflicting societai and individual interests

inherent in any employment discrimination action. The only

alternative to a consent decree is a costly and lengthy trial

which would only confront the court with the difficult ques-

tion of how much affirmative action must be imposed to

correct the effects of past employment discrimination.

Il. THE PRELIMINARY INJUNCTION

On May 4, 1981, the City announced that an unanticipated

economic crisis required the layoff of certain personnel in

nonessential services. The proposed layoffs were wnprece-

dented in the City’s history. The affirmative relief accom-

plished under the decrees would be severely eroded by the

proposed layoff policy. Subsequently, the court granted an

injunction preventing the City from applying the layoff policy

in a manner which would reduce the percentage of minority

employees in each job classification below that which existed

before the layoffs were announced. The City and the Union

brought this appeal. We must veigh whether the plaintiffs

have shown a strong possibility of success on the merits,

whether the plaintiff or de:endant would suffer irreparable

harm and whether the public interest warrants the injunction.

See, e.g., Mason County Medical Assoc. v. Knebel, 563 F.2d

256, 26] (6th Cir. 1977). The standard of appellate review is

A31

whether the district court abused its discretion in granting

the preliminary injunction. United States v. School District

of Ferndale, 577 F.2d 1339, 1360 (6th Cir. 1978), on remand,

460 F.Supp. 352, vacated, 616 F.2d 895 (6th Cir. 1980), on

remand, 499 F.Supp. 367 (E.D. Mich. 1980).

Judge McRae did not abuse his discretion in granting the

preliminary injunction. First, the statistics denoting the racial

composition, hiring and promotion practices of the Fire De-

partment adequately indicate the probability of plaintiffs

success on the merits."* Moreover, the entry of the 1980

Decree constituted a “determination of probability of success

on the merits.” Culbreath v. Dukakis, 630 F.2d 15, 23 (lst

Cir. 1980). Second, the proposed layoffs would irreparably

harm minorities by preventing them from acquiring the ex-

perience necessary for supervisory positions. Finally, the in-

junction serves the public interest by not allowing unexpected

events to eradicate the progress made pursuant to an affirma-

tive action plan. Brown, supra. Racial diversity in the

supervisory ranks of municipal government serving an urban

multi-racial city is, as Judge Lively noted in Detroit Police

Officers Assoc., desirable and in the public interest. See Talbert

v. Richmond, 648 F.2d 925, 93: (4th Cir. 1981).

IV. MODIFICATION OF A CONSENT DECREE

There are three grounds upon which a consent decree may

later be modified. First, a decree may be modified in accord-

ance with basic contract priaciples. Brown, 644 F.2d at 559-560.

Moreover, Rule 60(b) provides relief from a consent decree

upon a showing that the decree is void or is no _snger equit-

able. Fed. R. Civ. P. 60(b)(4)(5). See EEOC v. Safeway

Stores, Inc., 611 F.2d 795, 799 (10th Cir. 1979), cert. denied

sub nom, Courtwright v. EEOC, 446 U.S. 952 (1980); Brown,

18 See Footnote 5.

A32

644 F.2d at 560 n.17; Philadelphia Welfare Rights Org'n. v.

Shapp, 692 F.2d 1114, 1120-21 (3d Cir. 1979), cert. denied sub

nom Thornburgh v. Philadelphia Welfare Rights Org'n., 444

U.S. 1026 (1980). A trial court’s ruling on a Rule 60(b) motion

will not be disturbed absent an abuse of discretion. See Daw-

son v. Pastrick, 600 F.2d 70, 75 (7th Cir. 1979); Cotton v. Hin-

ton, 559 F.2d 1326, 1331 (5th Cir. 1977). Finally, a court of

equity has continuing jurisdiction to modify a decree upon

changed circumstances. United States v. Swift & Co., 286 U.S.

106, 114-15 (1932); Brown, supra. Modification of a consent

decree, of course, requires a full hearing and findings of fact.

United States v. Atlantic Refining Co., 360 U.S. 19, 23 (1959);

Hughes v. United States, 342 U.S. 353, 357-58 (1952); Brown,

644 F.2d at 560.

A.

The 1980 Decree imposes a duty on the City to engage in

certain affirmative action in its hiring and promotion decisions.

The decree does not contain a provision which would prevent

the operation of the decree if one party experiences an eco-

nomic hardship. In April of 1981, the City expericnced an

unanticipated economic crisis. The City unilaterally de-

termined that a reduction in the number of City workers

could lessen the severity of the crisis. Alternative methods

for mecting the crisis were available. The City had ulti-

mate responsibility for determining: 1) that city-wide layoffs

were the alternative which would most effectively relieve the

crisis; and 2) which job classifications would be subject to

the layoff policy. It is uncontroverted that the application

of the layoff policy to the job classifications selected by the

City ‘would have virtually destroyed the progress belatedly

achieved through affirmative action. The City contracted in

the 1974 and 1980 Decrees to accomplish precisely that which

the layoffs would destroy: a substantial increase in the number

of minorities in supervisory positions.

A33

The district court, sitting as a court of equity, had the

erjuiiable power to order specific performance of the terms of

the 1974 and 1980 decrees. As noted, the 1980 Decree is

based upon the mutual assent of the parties and a judicial

determination of reasonableness. This Decree mandates an

increase in the level of minority employment and promotion

within the First Department. Minorities hired and/or pro-

moted pursuant to the 1980 Decree were parties to and the

intended beneficiarics of the 1980 Decree. Therefore, the

City’s announcement to these employees was in effect notice

of the City’s intended anticipatory repudiation of the 1974

and 1980 Decrees. The announcement notified Plaintiffs that

1) relief previously granted pursuant to the Decrees would

be diminished; and 2) prospective relief under the Decrees

would not be forthcoming.

In response to the City’s announcement, the Plaintiffs sought

to enjoin the proposed layoffs. However, it is apparent from

Judge McRae’s treatment of this case that he properly recog-

nized that Plaintiffs did not seck to modify contractually the

existing consent decrees. Instead, Plaintiffs merely sought

to compel compliance ‘vith the terms and goals of the Decrees.

Under the terms of the Decrees, the City was obligated to

employ reasonable, good faith efforts to fulfill the goal of

increasing minority representation in each job classification

in the fire department to Ievcls approximating the minority

population represented in the civilian labor force in Shelby

County.

The City’s failure to fulfill its obligations under the Decrees

would have subjected it to liability for violating both its con-

tractual obligations and a judicial order. The City contends

that the sole reason for the layoff proposal was economic hard-

ship. This argument is meritless. It is hornbook contract law

that economic hardship does not excuse performance under a

contract. See ]. Calamari and J. Perillo, Contracts, 491 (2d

ed.). Neal-Cooper Crain Co. v. Texas Gulf Sulphur Co., 508

F.2d 283 (7th Cir. 1974). Consequently, the decrees remained

A34

specifically enforceable. See ITT Continental Baking Co., 420

U.S. at 236. Plaintiffs were presumptively entitled to full per-

formance of the terms of the Decrees. Therefore, the court's

modification of the decree is simply an exercise of its equity

jurisdiction to temporarily relieve the hardship on the City

which strict compliance with the decrees would have caused.

The modification allows the City to proceed with its layoff

policy subject to reasonable deference to its obligations under

the decrees. In our view, the court's decision to modify the

Decrees is a reasonable accommodation of competing interests

and obligations. The modification partially alleviates the

City’s misfortune, while protecting the integrity of the court's

initial orders. The court gave due deference to the City in

structuring its internal affairs. See National League of Cities

v. Usery, supra.. Comity and an appreciation of federalism

caused the court to exercise its equitable powers to apportion

the burden of meeting the City’s fiscal crisis on minorities and

non-minorities alike. The court retains authority to mandate

full compliance with the decrees should circumstances change.

The relicf granted under Fed. R. Civ. P. 60(b) is extra-

ordinary and may be granted only upon a showing of excep-

tional circumstances. Mayberry v. Maroney, 558 F.2d 1159,

1163 (3d Cir. 1977); Philadelphia Welfare Rights Org’n.,

602 F.2d at 1119; Brown, 644 F.2d at 560, n.17. A change in the

facts upon which the consent decree is based usually consti-

tutes an exceptional circumstance. See King-Seeley Thermos

Co. v. Aladdin Industries, Inc., 418 F.2d 31, 35 (2d Cir. 1969),

on remand, 320 F.Supp. 1156 (D. Conn. 1970). See also Safe-

way Stores, 611 F.2d at 800. A consent decree may also be

modified “where a better appreciation of the facts in the light

of expericnce indicates that the decree is not properly adapted

to accomplishing ics purposes.” Chance v. Board of Examiners,

561 F.2d 1079, 1086 (2d Cir. 1977), quoting King-Seeley

A35

Thermos Co., 418 F.2d at 35. The availability of relief under

Rule 60(b) is not squarely presented on this appeal.'® We,

therefore, express ne opinion on whether the 1980 Decree

could have been modified pursuant to Rule 60

C.

A trial court has broad discretion in administering consent

decrees. Sec, e.g., Brown, supra; Safeway Stores, 611 F.2d

at 799; American Telephone and Telegraph Co., 556 F.2d

at 178. While acting within its equity jurisdiction, a trial

court has continuing jurisdiction to modify a consent de-

cree upon a showing that “changed circumstances” have

transformed the original decree into an instrument of wrong.

See, e.g., United States v. Swift & Co., 286 U.S. 106, 114-115

19 We note that this court has previously endorsed the analysis of

Rule 60(b) in Philadelphia Welfare Rights Org’n., 602 F.2d at 1120-21:

Any injunction imposing mandatory affirmative duties for the

future involves elements of prediction. Whether the prediction

as to achievability is made as a result of litigation or, as here,

in a negotiated settlement, it will always speculative to

some degree. This is particularly the case when the defendants’

ability to achieve compliance depends upon the receptivity of

class members or other third parties not formally before the

court. See Special Project, the Remedial Process in Institu-

tional Reform Litigation, 78 Col.L.Rev. 784, 818-19 (1978). An

approach to the modification of a complex affirmative injuction

which over-emphasized the interest of finality at the expense of

achievability would inevitably make defendants w of any

decree imposing more than the bare minimum of tive

obligation. That wariness would, we think, tend to discourage

the settlement of injunction actions by consent dec a high

rice to pay for benefits of finality. where the is

itigated, if the power to modify were too closely curtailed the

defendants might seek, and the courts might tend to impose,

minimum affirmative obligations, my less than realistically

A36

(1932); Hughes v. United States, 342 U.S. 353 (1952); Brown

supra. The court's power to modify the terms of a decree

should not be exercised lightly. Swift & Co., supra. Modifica-

tion is proper where it has been demonstrated in an evidentiary

hearing that new and unforeseen conditions have created a

hardship. See Brown, 644 F.2d at 559. Accord Chrysler Corp.

v. United States, 5316 U.S. 556, 562 (1942) ( The test is “whether

the change served to effectuate or thwart the basic purpose of

the original consent decree.”). See United States v. Chicago,

663 F.2d 1354, 1360 (7th Cir. 1981) (en banc) (the standard

for modification is not “based solely on hardship.” It in-

corporates consideration of whether the purpose of the decree

has been achieved). See alsc Sarabia v. Toledo Police Patrol-

man’s Ass'n., 601 F.2d 914, 916 (6th Cir. 1979). See generally

Requests By The Government For Modification of Consent

Decrees, 75 Yale L. Rev. 657 (1966); Flexibility and Finality

in Antitrust Consent Decrees, 80 Harv. L. Rev. 1303 (1967).

New and «unforeseen conditions exist where there has been a

fundamental change in the essential facts upon which the

decree is based. See Safeway Stores, 611 F.2d at 800 (new.

unforeseeable circumstances not present where “there is no

evidence indicating that the facts — e.g., the nature and

makeup of Safeway employees and operations — against which

the decree and the interpreting order were framed have sub-

stantially changed.” ).

It is well settled that a court can modify a consent decree

where layoffs caused by an unanticipated economic crisis

threatens to frustrate the purpose of the decree. See Brown,

644 F.2d 551; Bolden, 73 F.R.D. at 371-72; Castro v. Beecher,

522 F.Supp. 873 (D. Mass. 1981). Thus, even if Judge Mc-

Rae’s decision is not construed as compelling compliance with

the terms of the Decrees, there exists an independent justifica-

tion for the modification.

In Brown, this court held that a trial court could exercise

its inherent authority to modify a consent decree where an

economic crisis unexpectedly caused the City of Toledo to lay

A37

off firemen The layoffs were a new and unforeseen changed

circumstances which threatened to frustrate the purpose o: the

Brown dccree by destroying its mandated affirmative action.

The nature and racial composition of the Toledo Fire Depart-

ment would also have been radically altered by the layoffs.

The factual situation which Judge McRae faced was vir-

tually identical to that which confronted Judge Young in

Brown. Judge McRae specifically found that: 1) the pro-

posed layoffs were an unexpected circumstance not antici+

pated by the parties when they entered the decree; 2) the

purpose of the 1980 Decree was to correct the past hiring

and promotion practices of the City through affirmative action;

and 3) the proposed layoffs would have a devastating and

retrogressive effect on the affirmative action mandated in the

1974 and 1980 Decrees. These findings have not been chal-

lenged on appeal. The findings are not clearly erroneous.

The proposed layoffs would impose an undue hardship on

Plaintiffs. The Plaintiffs have relied on the affirmative action

provisions of the 1980 Decree. Thus, they have foregone

their right to litigate the City’s past employment practices

and possibly obtain greater relief. The proposed layoffs would

wrench the belated relief provided by the 1980 Decree from

the Plaintiffs. The City unilaterally selected the job classifica-

tions in the Fire Department which would be affected by the

proposed layoffs. The job classifications selected were those

where minorities had recently made the most gains under the

affirmative action provisions of the 1974 and 1980 Decrees.

Judge McRae was correct in not allowing the City to eradicate

the belated affirmative action it had contracted to accomplish

in the 1974 and 1980 Decrees. Judge McRae did not issue a

blanket order enjoining the layoff of all minority workers.

Instead, the court merely prevented the City from reducing

the percentage of minorities in each job classification. Judge

McRae did not abuse his discretion in modifying the consent

decree and enjoining the City from reducing the percentage

of blacks in certain job categories within the City Fire De-

partment.

A38

V. TITE SENIORITY SYSTEM

The city and the Union both assert that the trial court

abused its discretion in modifying the 1980 Decree. Allegedly,

the modification impermissibly awarded “constructive sen-

iority” to minorities in violation of Franks v. Bowman Transp.

Co., 424 U.S. 747 (1976) and International Brotherhood of

Teamsters v. United States, 431 U.S. 324 (1977), on remand

sub nom., EEOC vy. T.1.M.E. — D.C. Freight, Inc., 659 F.2d

690 (5th Cir. 1981). In Franks, the Supreme Court held

that retroactive seniority may be granted to individuals by a

court only upon a showing of post-Act discrimination against

the particular individual. Teamsters held that § 703(h)

Title VII, 42 U.S.C. § 2000e-2(h), immunizes “bona ff€e”

seniority systems which perpetuate the effects of discrimina-

tion which occurred prior to the effective date of the act.

Assuming without deciding the Firefighters Union is recog-

nized as such under Tennessee law,?® the City’s and the

Union's reliance on Teamster’s and Franks is misplaced.

A court does not abuse its discretion in modifying or ap-

proving a consent decree which conflicts with the provisions

of a collective bargaining agreement.?' At least three theories

have been advanced which indicate that a consent decree can

alter existing seniority provisions over the objection of an

20 Plaintiffs contend that Teamsters is ~~" because the col-

lective bargaining agrecment between the City and the firemen is

void and unenforceable under Tennessee law. See Keeble v. City

Alcoc 204 Tenn. 286, 319 S.W.2d 249 (1958). Consequently, the tri

court’s modification of the layoff eeceiare did not violate a valid

—sv- bargaining agreement. e need not, and do not decide

s issue.

Plaintiff has also attempted to disti h Teamsters by rai

the issue of whcther Firefighters Local Union 1784, a union fo

after the effective date of Title VII, can be bona fide. This issue is

before the Supreme Court. Sec Patterson v. American Tobacco Co.,

634 F.2d 744. (4th Cir. 1980), cert. granted, 49 U.S.L.W. 3931 (June

15, 1981). We, therefore, do not decide this issue.

2) Circuit Judge Brown and District Judge Wiseman took a con-

trary view in Brown, supra. It also appears that Circuit Judge Martin

also disagrees with my view. I have taken this a to full

explain my position and the substantial case au iy in suppert of

A39

adversely affected union. Each of the theories and the

circuit courts which espouse them are described below.

A.

The settlement theory allows a consent decree to alter ex-

isting seniority provisions. The settlement theory is epito-

mized by «irline Stewards and Stewardesses Association,

supra. There the plaintiffs, a class of former female flight

attendants, alleged that the defendant violated Title VII.

After the plaintiffs were granted summary judgment, the

parties reached a settlement during the appellate briefing

process. That settlement provided inter alia that the plain-

tiffs would receive full retroactive “occupational seniority”

upon reinstatement. The exclusive bargaining agent for

American Airlines attendants intervened and objected to this

provision of the settlement. The trial court, however, ap-

proved the settlement.

On appeal, the Seventh Circuit rejected the argument that

Teamsters required each plaintiff to prove that she would

have continued in her employment but for the defendant's

wrongful termination. The court held that:

“We believe that the issues raised by the intervenor

should not be decided on the basis of Title VII law, but

rather must be decided on the basis of legal principles

regulating judicial review of settlement of agreements.

It is a well-settled principle that the law generally

favors the encouragement of settlements. (citation omit-

ted) That general rule has been recognized as applicable

to settlements in Title VII cases. Patterson v. Newspaper

& Mail Deliverers Union of N.Y. & Vicinity, 514 F.2d 767,

771 (2d Cir. 1975). In fact, one court has concluded

that it is “the clearly expressed intent of that Act to

encourage settlements.” Flinn v. FMC Corp., 528 F.2d

1169, 1174 (4th Cir. 1975). In addition, it is generally

A40

recognized that scttlements are entered into because of

“the very uncertainties of outcome in litigation, as well

as the avoidance of wasteful litigation and expense . . .”

Florida Trailer & Equipment Co. v. Deal, 284 F.2d 567,

571 (5th Cir. 1960). Based on these considerations, this

court has held that a district court in reviewing a settle-

ment agreement “should not attempt to decide the merits

of the controversy . . . [because] [a]ny virtue which may

reside in a compromise is based upon doing away with

the effect of such a decision.” Patterson v. Stovall, 528

F.2d 108, 114 (7th Cir. 1976).

Applying these general principles to this case, we be-

lieve the district court correctly declined to decide the

merits of each of the plaintiffs’ claims. Intervenors

essentially ask this court to require in excess of 100

mini-trials on issues dealing with the adequacy of each

plaintiffs complaint and the availability of defenses. It

seems to us beyond serious dispute that no reasonable

parties are going to settle any case if an intervenor can

force them to litigate separately the merits of each claim.

The rule urged by the intervenor would most seriously

discourage efforts to settle Title VII cases, and we refuse

to sanction such a result. Id. at 963-64.

In Safeway Stores, the question presented was whether

to modify a consent decree. Although the Tenth Circuit

held the decree could not be modified, the court did en-

dorse the rationale underlying the Seventh Circuit’s decision

in Airline Stewards and Stewardesses, supra. In dicta the

court stated:

“Teamsters prohibits abrogation of a seniority system

only if that system is bona fide. Because this case was

never litigated, there has been no determination that

Safeway’s seniority system is bona fide. Intervenors

would have us assume at this point that the system was

bona fide, or at the least, remand the case for a hearing

and determination. This we decline *> do. The policy

A4l

of voluntary settlement is so important to the enforce-

ment of Title VII would be seriously undermined if the

approving court were required to establish the facts

underlying the parties’ positions before approving a con-

sent decree. The power to compromise exists partially

because of the uncertainties ard expense typical of ad-

versary hearing and judicial determinations of fact. West

Virginia v. Chas. Pfizer & Co., 440 F.2d 1079, 1085-86

(2d Cir.), cert. denied, 404 U.S. 871, 92 S.Ct. 81, 30 L.Ed.

2d 115 (1971). We concur with the district court, “A

Consent Decree would be worthless if it could be attacked

on the ground that had the Court made a particular

determination, such relief would then not be statutorily

available.” Id. at 801.

We adopt the position of the Seventh Circuit in American

Airline Stewards and Stewardesses and the Tenth Circuit in

Safeway Stores. A strong policy favoring voluntary settle-

ments is embodied within Title VII. E.g., Alexander v. Gard-

ner-Denver Co., 415 U.S. 36, 44 (1974), on remand, 8 FEP

1153, affd , 519 F.2d 503 (10th Cir. 1975), cert. denied, 423

U.S. 1058 (1976). Airline Stewards and Stewardesses, 573 F.2d

at 963; United States v. Allegheny-Ludlum Industries, Inc.,

517 F.2d 826 (5th Cir. 1976), cert. denied sub nom National

Organization for Women, Inc. v. United States, 425 U.S. 944

(1976). This policy would be seriously undermined if the

facts underlying each parties’ positions were rcquired to be

established. Accordingly, the trial court’s determination that

the seniority provisions were non-bona fide is vacated. The

modification of the consent decree was not error, even though

the Union's seniority system may have been affected.

B.

My opinion in Brown endorsed a second basis for holding

that a consent decree can modify an existing seniority system.

The theory's premise is that a consent decree, the preferred

A42

means of resolving an employment discrimination suit, docs

not decrease the power of a cour. to order relief which impli-

cates the policies of Title VII and 42 U.S.C. §§ 1981 and

1983. This theory has been approved by the Third Circuit

in an earlier decision, EEOC v. American Telephone and

Telegraph Co., 419 F Supp. at 1038-1040, aff'd., 556 F.2d 167

(3d Cir. 1977). In American Telephone and Telegraph,

Judge Higginbotham reasoned as follows. First, he noted

that had plaintiffs allegation been established, the court

would clearly have had the power to modify the existing

seniority system to require affirmative action in promotions

and transfers. He also noted that Congress had selected

cooperation and voluntary compliance as the “preferred

means” of achieving the equal employment opportunity poli-

cies of Title VII. Alexander, supra at 44. Finally, he con-

cluded:

Since . . . [the consent decree] is the product of cooper-

ation and voluntary (though possibly grudging) compli-

ance, it is a particularly striking example of the successful

use of the means preferred by Congress for the achieve-

ment of Title VII's goals. In my judgment, then, it

would frustrate the purposes of Title VII to treat the

absence of evidence about AT&T's discrimination in

transfer and promotion policies, and AT&T's denial of

liability for such discrimination, as insuperable obstacles

to the ordering of affirmative action in transfers and pro-

motions. I decline to do so. For the remainder of this

opinion, therefore, I shall treat the allegations of the

complaint with respect to transfer and promotion as if

they had in fact been proved at trial. To approach them

in any other way would make a mockery of the “pre-

ferred means” chosen by Congress to effectuate the goals

of Title VII.

My reasoning in Brown parallels that of Judge Higgin-

botham in American Telephone and Telegraph, supra. In

Brown, the Supremacy Clause enabled the trial court to over-

A43

ride the conflicting provisions of a seniority system and Ohio

law because the case had been brought pursuant to 42 U.S.C.

§§ 1981 and 1983, as well as Title VII. In the instant case,

the Stotts complaint alleged violations of 42 U.S.C. §§ 1981

and 1983 in addition to Title VII. If a violation of 42 U.S.C.

§ 1983 had been established, the court would have had the

authority to invoke the Supremacy Clause to override the

Union's seniority provisions and state law. See, e.g., Swann

v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15

(1971); Brown, supra. It would be imcongruous to hold that

the use of the preferred means of resolving an employment

discrimination action decreases the power of a court to order

relief which vindicates the policies embodied within Title VII

and 42 U.S.C. §§ 1981 and 1983. We, therefore, refuse to do

so. The trial court had authority to override the Firefighter's

is represented in Sisco v. J. S. Alberici Construction Co., Inc.,

655 F.2d 146 (8th Cir. 1981). In Sisco, the Eighth Circuit

held that an employer can temporarily override the provisions

adopted an affirmative action plan to comply with the federal

contract regulations. The plan established a 10 percent goal

for the number of minority hours of employment on each of

the Alberici’s projects.

Clyde Sisco, a white male, was employed as an ironworker

on the Post Office project. He also held the position of

union steward. During the course of work on the project,

Alberici determined that it did not need four

However, to maintain compliance with the goals set in

i

Ad4

regulations, a cutback in its force required the maintenance

of at least one minority ironworker on the site. Consequently,

Sisco and another white ironworker were laid off, while the

only black ironworker and the crew foreman, a white male,

were retained. Sisco protested this action and informed Al-

berici that under the Ironworkers Collective Bargaining Agree-

ment, Sisco, as union steward, was entitled to special treat-

ment. Under the Agreement, the steward is supposed to be

“the last man laid off.” Subsequently, he brought suit, alleg-

ing his removal from the Post Office Project violated Title VII

and 42 U.S.C. § 198).

The court held:

“It [Alberici] was under pressure from government offi-

cials to improve its percentage of minority hours worked.

There was a history of exclusion of black workers from

the ironworkcrs’ trade in St. Louis. Alberici had decided,

for reasons wholly unrelated to race or to Sisco personally,

to reduce its force of ironworkers at the Post Office from

four to two. In order to accomplish that goal without

further worsening its ratio of minority hours, the black

ironworker (who had been on the site longer than Sisco

and whose qualifications are not questioned) had to be

retained. Of the two employees left, one was white.

The St. Louis Plan [the affirmative action plan] was tem-

porary, in the sense that its goals were expressed in

terms of percentages of hours worked; once the per-

centages were met, no further action by the company

was required. Sisco was not replaced by a new black

worker. A qualified black employee with more seniority

on the job site was simply retained in preference to

Sisco and another white man. For these reasons, we hold

that Alberici’s initial decision to remove Sisco from the

Post Office job was not unlawful.” id. at 149. See

Savannah Printing Specialties & Paper Products Local

604 v. Union Camp Corp., 350 F.Supp. 632 (§.D. Ga.

1972).

A45

The Eighth Circuit's analysis in Sisco indicates that the

City would have, at Plaintiffs urging, modified the provisions

of the collective bargaining agreement to accomplish the goals

set out in the 1980 Decree without violating Title VII or 42

U.S.C. § 1981. The City specifically empowered the trial

court to enter “such further order as may be necessary or

appropriate to effectuate the purpose of this decree.” Con-

sequently, the trial court could use this derivative authority

to temporarily override the provisions of the Union's collec-

tive bargaining agreement.

VI. CONCLUSION

Judge McRae has at all times during this very difficult and

complex case displayed sound reasoning, restraint and wisdom

in his actions. The balance he struck between the interests

of the City, the Union, incumbent non-minority employees,

and minorities who have relied upon the consent decree is

appropriate and consistent with the law. Judge McRae did

not abuse his discretion in approving the 1980 Decree or in

modifying the decree to enjoin the City from destroying the

belated affirmative action accomplished under the decrees.

Accordingly, the judgment of the district court is affirmed.

A46

Boyce F. Maxtin, Jr., Circuit Judge, concurring in part,

dissenting in part. ! write separately because I can concur

only in the result. I agree that the District Court properly

enjoined the City of Memphis frum 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 senior-

ity system was not bona fide.

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. Unfortunate-

ly, the parties did not foresee the financial crisis which re-

quired massive layoffs. The decree therefore contains no pro-

vision that could be construed either to prohibit or permit

layoffs according to city-wide seniority.

However, the decree contains the following provision where-

by 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 ot 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 con-

cludes 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 Depart-

ment by injunction, I concur.

A47

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 impend-

ing 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 Wise-

man, 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, con-

tracted 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 modi-

fying the consent decree to overrule the decision of the

elected City officials and their appointees concerning the

proper way to mect this financial crisis.

These considerations apply with equal force to the circum-

stances of the present case; and based upon the facts found

by the District Court, ] 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 stateme at,

Judge Keith reasons that this Court held in Brown that ‘the

Supremacy Clause enabled the trial court to override the con-

flicting 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 VII.” 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 Wiseman joined. As I read Brown,

its holding on the issue of a union's rights is expressed in

A48

Judge Brown's opinion. Judge Biown, writing for himself and

for District Judge Wiseman, the majority of the panel, stated

that:

In my view, even though this action was brought pur-

suant 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-

though it intervened at the time plaintiffs moved for the

instant preliminary injunction, there was, again, no de-

termination 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 seniori-

ty. 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’ constitu-

tional 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 pro-

posed 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

A49

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’ constitu-

tional rights had been infringed; and (2) it was necessary,

to vindicate plaintiffs’ constitutional rights, to hold such con-

tract 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 Dis-

trict Court has never held an evidentiary hearing nor has it

determined that the City is liable for past acts of discrimina-

tion. 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’ sug-

gestions 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. D. L. Orders,

A50

et al. v. Carl W. Stotts, et al., No. 80-1469. 1 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 chal-

lenge the conse: decree is “an impermissible collateral at-

tack.” Judge Keith misapprehends the very purpose of inter-

vention, 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 inter-

vening 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 compli-

ance more expensive.

This Court has not been asked to review the merits of a

jvdicial determination on the proposed intervenors’ argu-

ments. 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 de-

cided that the motion was untimely, Judge McRae had no

jurisdiction to entertain the merits of the proposed inter-

venors’ 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 “constitu-

tional.” 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 |

reach in my dissent in D. L. Orders, et al. v. Carl W. Stotts,

--> 80-146, and most importantly, far beyond the seupe

of our jurisdiction.

I offer one final observation on the majority opinion. The

A5l

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 (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, “[a]lternative methods

for meeting the crisis were available”, and, presumably,

should have followed.

A52

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSE!:

WESTERN DIVISION

UNrTep STATES OF AMERICA,

Plaintiff,

v. Civit ACTION

No. C-74-286

Crry or Mempuis, a municipal cor-

poration, 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

A53

do not apply to that Division. All issues raised by the

Complaint regarding employment practices at the Lig’:t, Gas

& Water Division remain outstanding.

The City of Memphis denies it has heretofore engaged in

any pattern or practice of discrimination in hiring or promo-

tion 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 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 sub-

stantially 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 discrimina-

tion, it has heretofore taken certain steps to increase the

availability of qualified black and female employees by trans-

fer and promotion, training programs, and career ladder pro-

grams 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 pro-

viding 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 em-

ployment and advancement is remedied so that equal employ-

ment opportunity will be provided to all. The City of Mem-

phis 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 DE-

CREED AS FOLLOWS:

A54

1. The Defendant City and its officials, agents and em-

ployees 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 dis-

criminating 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 Defen-

dant 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, in-

cluding affected class relicf, shall not apply to employment

in the Memphis Trawusit 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 dis-

advantage to blacks and women which may have resulted from

past discrimination is remedied so that equal employment

A55

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 meet an interim

goal, in classifications where the long term goal has not been

met, of filling at least 50% of all \ acancies 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 affirma-

tive recruitment efforts for female applicants for those posi-

tions 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 shal] 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 personncl, 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 intcrim goals established pursuant to this

decree shall be mcasured on an annual basis except where

otherwise specifically provided.

4. The City shall, for those positions such as accountant

A56

and engineer which require a professional degree, establish

and attempt to achieve an initial interim goal of filling 30%

of the total vacancics 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 avail-

ability of qualified black and female applicants in these

professional areas.

5. (A) insofar as the term “affected class” is used in “xe

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 ser-

vice 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 posi-

tions which are by job title or description clerical in

nature.

The defendant agrees to furnish to the plaintiff within nine-

ty (90) days after the entry of this decree a list of the mem-

bers 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 filing vacancies in the Police and Fire Division and in

A57 -

f

supervisory positions, the following procedure shall be fol-

lowed in filling vacancics 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 success-

fully 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 va-

cancy 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 Decree and specifically of the oppor-

tunity 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 pro-

mote 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 ap-

propriate, to determine if he or she wishes to remain in the

A58

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 with-

out 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 shali 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 can-

not 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 promo-

itonal 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 utiliz-

ing 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.

A59

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

Car. W. Storrs, |

Plaintiff,

v.

Civit. ACTION

Mempnis Fine DerarrMent, et al., No. C-79-2441-M

Defendants.

Frep L. Jones,

Plaintif, Crvit ACTION

™ No. C-77-2104

Mempnis Fire DeranTMeENT, et al.,

Defendants.

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 pro-

motions 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 US.C.

§ 1983.

The parties wish to avoid the delay and expense of con-

tested litigation and desire to insure that any disadvantage

to minorities that may have resulted from past hiring and pro-

A60

motional 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 Coasent Decree, do not thereby admit any

violations of law, rule, or regulation with respect to the allega-

tions 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, AD-

JUDGED 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 pro-

vides 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 discrimina-

tion with respect to those matters set forth in the complaints

and the previous orders of this Courts

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 Mem-

phis in Civil Action No. 74-286; rather this Decree is intended

to parallel and supplement the relief provided in that Consent

Decree.

A61

Both plaintiffs and the class they represent shal] seek no

further relicf for the acts, practices or omissions alleged in the

complaints save to enforce the provisions of this Decree, there-

by 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.

I.

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 fol-

lows:

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 Fed-

eral Rule of Civil Procedure 23(b)(2) for injunctive, declara-

tory and back pay relief, and under Federal Rule of Civil

Procedure 23(h)(3) for purposes of recovery of compensatory

or punitive damages, if any.

A62

Ill.

GENERAL

1. Defendants are compelled by law and by entering

into this Consent Decree acknowledge their obligation to, and

agree that they shall, refrain from engaging in any act or

practice which has the purpose or effect of unlawfully dis-

criminating 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. Defen-

dants in addition acknowledge their duty under lav’ 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 de-

cree 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 relicf under this Decree for defen-

dants’ failure to comply with their general legal obligations

as described in this paragraph, except for conduct which con-

stitutes 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 en-

titlement to damages against the City as a result of the order-

ing 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

A63

City, it shall seek to remove such action to the Federal Dis-

trict Court.

IV.

SELECTION PROCEDURES

3. The City shall continue to develop and reassess its pres-

ent 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 De-

cree in CA-74-286.

4. The City may maintain their current or similar educa-

tion standards and selection procedure for firefighters, pro-

vided, 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 pro-

motional testing procedures to insure that the use of these

examinations will not have an adverse impact on black appli-

cants. The partics agree that adverse impact will be shown

if the adverse differential in the failure rate for blacks is

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 informa-

iton 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.

5

A64

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 prac-

ticable 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 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 pur-

pose, it is the intent of the parties to work within the arrange-

ments 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 zoal 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 propor-

tion 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 successfu! completion of academy

training. If any classes of firefighters hired pursuant to this

order experiences a disproportionate rate of attrition among

A65

black firefighters, the partics shall meet promptly to deter-

mine the reason therefor, and to discuss methods or remedy-

ing the unbalance so that achievement of the long-term goal

can be facilitated.

8. Promotion: To insure as quickly as practicable the at-

tainment of its long range goal, the City agrees to the follow-

ing interim goals, subject to the availability of qualified ap-

plicants:

(a) The City adopts the goal of promoting Black appli-

cants 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 partics agree to a goal of pro-

moting blacks in the proportion of at least 20% for each civil

service classification or uniformed-rank as measured or 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 con-

strued in such a way to require the promotion of the unquali-

fied or the promotion of the Jess-qualified over the more qual-

ified as determined by standards shown to be valid and non-

discriminatory as set forth in the Uniform Guidelines on Em-

ployee 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, reason-

able efforts shall continue to be made to give leadership ex-

perience to eligible blacks.

A66

VI.

SPECIFIC RELIEF

9. Promotions: The promotions lisited in Exhibit A to

this Decree shall become effective upon the entry of this

decree. The conditional promotions shall become effective up-

on fulfillment of cach 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 Ex-

hibit B with the City to prepare individual checks within

15 days (or as svon 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.

Vil.

REPORTING

ll. 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 imple-

mentation of the Consent Decree in CA-74-286. These rec-

ords shall be made available to the plaintiffs’ counsel for in-

spection and copying upon written request and where ap-

plicable subject to an appropriate protective order.

To avoid confticts 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 pro-

visions:

(a) The City will furnish to Plaintiffs’ counsel copies of

all reports relating to the Fire Division made to the Attorney

Genera] pursuant to the Consent Decree in CA-74-286.

A67

(b) Should any dispute or controversy arise concerning

the Defendants’ application of, or acherence to, the provi-

sions of this decree, Defendants’ and Plaintiffs’ counsel shall

confer with the Attorney General and seek a mutually agree-

able resolution of the disputes.

(c) Should voluntary efforts to resolve the dispute or con-

troversy 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 identifica-

tion of the applicant by race. The records retained shall in-

clude, 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 At-

torney 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 De-

partment.

(b) A list of all newly hired employees indicating the

name, race, and job classification of each since the last re-

port was filed.

(c) A list of all persons, by job classification, to whom

promotion has been offered and whether or not that promo-

tion has been accepted.

(d) A breakdown of the applicant flow of the Memphis

A68

fication. 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 At-

torney 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 in-

cluding the name and race of the person selected.

au

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General by mail of the unintended result or ambiguous in-

terpretation. 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 effectu-

ate 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 mem-

bers 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

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MEMPHIS FIRE DEPARTMENT

FIRE FIGRTING CLASS

(Data derived from inspecti

This text is long and has been trimmed here. Open the source document for the complete record.