Appendix — Martin v. Wilks
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87 161
IN THE
Supreme Court of the United Stapegn:
OCTOBER TERM 1987
No. 87-
JOHN W. MARTIN, et al.,
y Petitioners,
ROBERT K. WILKS, et al.,
Respondents.
No. 87-
RICHARD ARRINGTON, JR., et al.,
y Petitioners,
ROBERT K. WILKS, et al.,
Respondents.
No. 87-
PERSONNEL BOARD OF JEFFERSON COUNTY, et al.,
y Petitioners,
ROBERT K. WILKS, et al.,
Respondents.
APPENDIX TO PETITIONS FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
ROBERT D. JOFFE
Counsel of Record
WILLIAM L. ROBINSON THOMAS D. BARR
RICHARD T. SEYMOUR ROBERT F. MULLEN
STEPHEN L. SPITZ ALDEN L. ATKINS
LAWYERS’ COMMITTEE FOR MARK A. SIROTA
CIVIL RIGHTS UNDER LAW JAMES E. FLEMING
1400 Eye Street, N.W. CRAVATH, SWAINE & MOORE
Suite ) One Chase Manhattan Plaza
ashington, D.C. 20005 New York, New York 10005
(202) 371-1212 (212) 428-1000
SUSAN W. REEVES
REEVES & STILL
714 South 29th Street
Birmingham, Alabama 35233
(205) 322-6631
Attorneys for Petitioners
John W. Martin, et al.
March 30, 1988 Counsel continued on inside cover.
ae =. BAKER
l tto
City of Birmingham
City Hall
Birmin , Alabama 35203
(205) 254-2372
JAMES P. ALEXANDER
Counsel of Record
ROBERT K. SPOTSWOOD
RICHARD H. WALSTON
BRADLEY, ARANT, ROSE &
WHITE
1400 Park Place Tower
Birmin , Alabama 35203
(205) 252-4500
Attorneys for Petitioners
Richard Arrington, Jr. and
the City of Birminhgam
FRANK M. YOUNG, III
Counsel of Record
HASKELL SLAUGHTER & YOUNG
800 First National-Southern
Natural yn
Birmingham, Alabama 35203
(205) 251-1000
Attorneys for Petitioners
the Personnel Board of Jefferson
County, ef al.
TABLE OF CONTENTS
Constitutional Provisions and Statutes Involved
Opinion of the Court of Appeals, December 15,
ee
Order of the Court of Appeals on Petition for
Rehearing and Suggestion of Rehearing In
Banc, January 25,1988 ..........
Trial Transcript of the District Court’s findings
of fact and conclusion of law, December 20,
CEE cht Wht ek ek a ele eo. 0
Defendants Richard Arrington, Jr. and the City
of Birmingham and Defendant-Intervenors’
Proposed Findings of Fact, December 20,
| Pe a re i Oe A ee
50) te ore 0 be ee 8 ee
: “oso a « 6 6 4.6 6 6 6 8 ¢ 6.¢
Order, January'6, 1986 ........266..
Combined Findings of Fact and Conclusions of
ee ee
Complaint, Bennett, et al. v. Arrington, et al.,
MI Ba aes oy i.
Consent Decree with the City of Birmingham,
United States v. Jefferson County, et al.,
signed by the parties May 19, 1981 ......
Consent Decree with the Jefferson County Per-
sonnel Board, United States v. Jefferson
County, etsal., signed by the parties May 19,
ee 40 08 8S ee oe Oe O86 80 be
Opinion of the District Court, United States v.
Jefferson County, et al., August 18, 1981
Order and Judgment, United States v. Jefferson
County, et al., August 18,1981 ......
Page
. 236a
la
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
United States Constitution
& @ @
AMENDMENT V
No person shall be held to answer for a capi-
tal, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, ex-
cept in cases arising in the land or naval forces,
or in the Militia, when in actual service in time
of War or public danger; nor shall any person
be subject for the same offence to be twice put
in jeopardy of life or limb; nor shall be com-
pelled in any criminal case to be a witness
against himself, nor be deprived of life, liber-
ty, or property, without due process of law; nor
shall private property be taken for public use,
without just compensation.
AMENDMENT XIV
SECTION 1. All persons born or natural-
ized in the United States and subject to the juris-
diction thereof, are citizens of the United States
and of the State wherein they reside. No State
shall make or enforce any law which shall
abridge the privileges or immunities of citizens
of the United States; nor shall any State deprive
any person of life, liberty, or property, without
due process of law; nor deny to any person
within its jurisdiction the equal protection of
the laws.
2a
Civil Rights Act of 1964
Section 703 [42 U.S.C. § 2000e-2]:
(a) Employer practices
It shall be an unlawful employment practice
for an employer—
(1) to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate
against any individual with respect to his com-
pensation, terms, conditions, or privileges of
employment, because of such individual’s race,
color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his
employees or applicants for employment in any
way which would deprive or tend to deprive any
individual of employment opportunities or
otherwise adversely affect his status as an
employee, because of such individual’s race,
color, religion, sex, or national origin.
3a
In re BIRMINGHAM REVERSE DISCRIMINATION
EMPLOYMENT LITIGATION
No. 86-7108
United States Court of Appeals,
Eleventh Circuit.
Dec. 15, 1987.
[As Amended]
Before TIOFLAT and ANDERSON, Circuit Judges, and
HENDERSON, Senior Circuit Judge.
TJOFLAT, Circuit Judge:
I.
This litigation has its origin in three employment dis-
crimination actions filed in 1974 and 1975 against the City of
Birmingham (the City), the Jefferson County, Alabama Person-
nel Board (the Board), ! and various other defendants. 7 In
January 1974, the Ensley Branch of the NAACP and seven
1 The Board is an independent public agency that administers the civil
service system in Jefferson County. One of functions is to recruit, screen,
and test applicants for classified City employee positions. Employees hold-
ing classified positions include all full-time City employees except common
laborers, judicial officers, elected officials, and certain executives. When
a classified position opens, the Board certifies to the City a list of three
eligible applicants, from which City makes its choice.
2 The complaints also named as defendants the mayor of Birmingham
and several officials associated with the Board. Unless otherwise indicated,
we shall throughout this opinion refer to these parties collectively as “the
City and the Board.”
4a
black individuals filed separate class action complaints in the
district court alleging that the City and Board had violated,
among other things, Title VII of the Civil Rights Act through
racially discriminatory hiring and promotion practices. > In
May 1975, the United States brought suit against the same
defendants, also alleging a pattern or practice of discrimination
in several areas of public service employment.
The district court consolidated the three cases. In Decem-
ber 1976, it held a bench trial on the limited issue of the validity
of entry-level tests the City and the Board used to screen ap-
plicants for firefighting and police officer positions. The dis-
trict court concluded that the tests were discriminatory in
violation of Title VII. * In January 1977, the district court
entered a final judgment on this limited issue, and the defen-
dants appealed. This court affirmed the district court’s deter-
mination of liability. Ensley Branch of NAACP v. Seibels 616
F.2d 812 (Sth Cir.) cert. denied, 449 U.S. 1061, 101 S.Ct. 783,
66 L.Ed.2d 603 (1980).
The district court held a second trial in August 1979 on
the issue of the validity of other testing and screening devices
3 The plaintiffs alleged violations of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e-2000e-17 (1982); 42 U.S.C. § 1981 (1982); and
42 U.S.C. § 1983 (1982).
4 Asa remedial measure, the court ordered the Board to certify a cer-
tain number of black applicants for employment.
Sa
the Board employed. The plaintiffs’ independent claims against
the City, however, were not tried.
While awaiting the district court’s decision in connection
with the August 1979 trial, the parties entered into settlement
negotiations which resulted in two proposed consent decrees:
one between the City and the black plaintiffs, the Ensley Branch
of the NAACP, and the United States (the City decree), and one
between the Board and the black plaintiffs, the Ensley Branch
of the NAACP, and the United States (the Board decree). The
consent decrees set forth an extensive remedial scheme, includ-
ing long-term and interim annual goals for the hiring of blacks
as firefighters and the promotion of blacks to the position of
fire lieutenant. > Each decree specifically provided that it did
not constitute an adjudication or admission of liability by the
Board or the City.
After entering an order provisionally approving the
decrees, the district court conducted a fairness hearing to con-
sider the objections of interested parties. At that hearing, the
Birmingham Firefighters Association 117 (BFA)” filed objec-
5 Under the proposed City decree, which the district court ultimately
approved, the City was to be enjoined permanently from engaging in dis-
criminatory employment practice. The decree required the City to adopt as
a long-term goal the employment of women and blacks in cach City job clas-
sification “in percentages which approximate their respective percentages
in the civilian labor force of Jefferson County.” The decree set forth specific
interim annual goals for the hiring of blacks in specified job classifications,
including a 50% annual goal for firefighter, a 50% annual goal for fire
lieutenant, and a 25% goal of engineering department positions. The
proposed Board decree, which the district court ultimately approved as well,
required the Board to certify blacks in numbers sufficient to meet the goals
set forth in the City decree.
6 The BPA is a labor association of City firefighters. It represents a
majority of the firefighters and negotiates with the City on their behalf.
6a
tions as amicus curiae. After the fairness hearing but before
final approval of the consent decrees, the BFA and two of its
members moved, pursuant to Fed. R. Civ. P. 24(a), to inter-
vene as of right in each of the three cases, contending that the
proposed consent decrees would adversely affect their rights.
The court denied the motions as untimely, and, on August 18,
1981, entered an order approving the fairness of the two
decrees. Although noting that the only judicial finding of dis-
crimination to that point had been with respect to the entry-level
screening tests, the court stated that “it can hardly be doubted
that there is more than ample reason for [the Board and the City]
to be concerned that they would be in time held liable for dis-
crimination against blacks at higher level positions in the police
and fire department.”’ The court concluded that “[wJhether or
not the proposed decree would in each instance correspond to
some finding of discrimination which this court might make . . .
is not the question. The settlement represents a fair, adequate
and reasonable compromise of the issues between the parties to
which it is addressed and is not inequitabie, unconstitutional,
or otherwise against public policy.” The court retained juris-
diction to enforce the decrees.
After the district court denied the motion to intervene and
approved the decrees, seven white male firefighters brought
suit in the district court against the City and the Board. They
asked the court to enjoin the enforcement of the two consent
decrees on the ground that the decrees would operate to dis-
criminate against them in violation of Title VII. The plaintiffs
applied for a preliminary injunction, but the court denied it.
7 The district court recited the following statistics for the police and
fire departments as of July 21, 1981: “79 of the 480 police officers are
black, 3 of the 131 police sergeants are black, and none of the 40 police
lieutenants and captains are black. In the fire department, 42 of the 453
firefighters are black, and none of the 140 lieutenants, captains, and bat-
talion chiefs are black.” The parties to the present litigation stipulated that
in 1980 the civilian labor force of the City of Birmingham was approximate-
ly 49.9% black and 50.1% white.
7a
The court’s orders denying the motion to intervene and
the preliminary injunction were appealed, and the appeals were
consolidated. This court dismissed the appeal of the order
denying the motion to intervene, concluding that the district
judge had not abused his discretion. We pointed out that the
white firefighters would not be prejudiced by the denial of in-
tervention because they could file a separate Title VII action on
their own behalf. We also affirmed the order denying prelimi-
nary injunctive relief, concluding that the individual
firefighters had not carried the burden of showing irreparable
harm. United States v. Jefferson County, 720 F.2d 1511 (11th
Cir. 1983).
After having been denied preliminary injunctive relief,
the seven white firefighters brought suit in the district court
against the City and the Board. They alleged that they were
being denied promotions in favor of certain black firefighters
whom they asserted were less qualified, and asked the court to
enjoin the City from making those promotions. Maintaining
that “(t]he defendants are certifying candidates and making
promotions on the basis of race under the assumed protection
of the consent settlements,” the seven white firefighters alleged
that the City and the Board were engaged in a practice or pat-
8a
tern of discrimination and were intentionally favoring blacks
over whites in violation of Title VII and the equal protection
clause of the fourteenth amendment. ®
Several other City employees who had been denied
promotions subsequently brought similar Suits in the district
court against the City and the Board.? In addition, the United
States, notwithstanding its status as a signatory of the Consent
decrees, brought suit against the City and the Board, 10 lodg-
ing essentially the same allegations as the various individual
plaintiffs. |
In its answers to the complaints in these cases, the Board
admitted that it had made “race conscious certifications pur-
suant to [the] Consent Decree, as is required by the Consent
Decree.” The City likewise admitted that it had made
“numerous race conscious promotion and employment
decisions pursuant to [the City decree’s] terms.” Both the City
and the Board, however, denied that they had violated Title VII
or the equal protection clause. Both contended that the plain-
tiffs were bound by the consent decrees and that the promotions
8 The complaint also alleged violations of the Omnibus Crime Control
and Safe Streets Act of 1968, the State and Local Fiscal Assistance Act of
1972, and the fifth amendment of the United States Constitution. The plain-
tiff did not pursue these claims at trial and, accordingly, they are not in-
volved in this appeal.
9 Suits were filed by City engineering departmenten oyees as well as
fire department employees. Members of both departmeuis are among the
Parties to this appeal.
10 The United States, as a signatory of the consent decrees, was
Originally named as a defendant in two of the reverse discrimination suits.
It then moved the district court to intervene as party plaintiff in the remain-
ing cases. The court granted the motion, and also granted the United States’
motion to realign itself as plaintiff in the two suits in which it had been named
as defendant.
11 The United States’ complaint, however, contained no mention of the
consent decrees.
9a
were therefore lawful as a matter of law because they had been
made pursuant to those decrees.
Seven black individuals moved both in their individual
capacities and as class representatives to intervene as parties
defendant in several suits. ' The movants sought, pursuant to
Fed. R. Civ. P. 23, to represent the class of black applicants
and employees that had negotiated and signed the consent
decrees in 1981. Because the relief requested by the plaintiffs,
if granted would foreclose future promotions of blacks under
the decrees, and perhaps result in the demotion of blacks al-
ready promoted, the movants urged that they were entitled in-
tervene as as of right under Fed R. Civ. P. 24(a). The district
court denied the motion to intervene under Rule 24(a), but
granted the motion to intervene under Rule 24(b) (permissive
intervention). ! 13 The court also ruled that the movants could
intervene only in their individual capacities. !*
In April 1984 the district court consolidated the several
suits for all purposes under the caption “In re Birmingham
Reverse Discrimination Employment Litigation.” After the
parties joined issue, they engaged in extensive discovery con-
cerning the criteria the City used when making the challenged
12 These were the same individuals who had filed a class action against
the City and the Board in 1974. At that time, they alleged that they had been
denied employment or promotion due to discriminatory employment prac-
tices by the City and the Board.
13 In light of our discussion in Part II of this opinion, these individuals
were entitled to intervene as of right because they represented the interest
of persons whose jobs were directly at stake given the relief sought by the
plaintiffs.
14 The court held that “[nJeither Rule 23 nor Rule 24 contemplates that
a class determined to exist in one case can intervene, as such class, in another
case .... If [the movants] wish the adjudication in this case to be binding
upon class, they must seek class certification as a defendant class under the
procedures and requirements of Rule 23.” The defendant-intervenors have
not challenged this ruling.
10a
promotions. The court then held a series of pretrial conferen-
ces in an effort to settle issues for trial. At those conferences,
the plaintiffs '> made repeated requests for guidance as to what
they would have to prove to make out a case of unlawful dis-
crimination.
Without expressly so stating, the district judge treated the
plaintiffs as if they were bound by the consent decrees and as if
they were alleging solely that the City had violated the City
decree. Specifically, the district judge treated the plaintiffs as
if they were contending that the City had violated paragraph 2
of the City decree, which provides as follows:
Nothing herein shall be interpreted as requiring
the City to hire unnecessary personnel, or 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 person who
is demonstrably better qualified based upon the
results of a job related selection procedure.
— By narrowing its attention to paragraph 2, the district
court effectively transformed the plaintiffs’ position from that
of asserting unlawful discrimination under Title VII and the
equal protection clause to that of requesting the court to enforce
15 We use “plaintiffs” to refer to both the United States as plaintiff-in-
tervenor and the individuals who filed the reverse discrimination suits.
When we refer to the latter group alone, we shall use “individual plaintiffs.”
lla
a specific provision of the City decree. '© Given this charac-
terization of the case, the plaintiffs’ claims against the Board
became irrelevant.
At trial, the parties focused on the extent to which the City
had complied with paragraph 2. The plaintiffs’ case consisted
of three elements: (1) whether the individual plaintiffs were
“demonstrably better qualified” within the meaning of
paragraph 2; (2) whether the criteria that plaintiffs proposed for
comparing qualifications were based on “job related selection
procedures” within the meaning of paragraph 2, and
(3) whether the City had in fact been aware of those criteria
when it made the challenged promotions. !®
At the conclusion of plaintiffs case, the court granted the
Board’s motion to dismiss. After further proceedings, the court
entered an order in favor of the City and the defendant inter-
venors. The court held that the plaintiffs—both the United
States and the individual plaintiffs—were bound by the consent
decrees. It further held that the plaintiffs had failed in their ef-
fort to show a violation of paragraph 2 of the City decree. In
16 In effect, the court treated the plaintiffs as if they were parties to the
City decrees seeking an order to show cause why the City should not be held
in civil contempt for violating the terms of the decree.
17 The Board, therefore, is only a nominal party to this appeal.
18 While the first two elements were derived directly from the language
of paragraph 2, the third element was implied by the district judge. The
judge ‘sad informed plaintiffs’ counsel at pretrial conference that “you...
better be prepared to deal with the demonstrably better qualified issue and
establish that blacks were promoted when there were demonstrably better
qualified whites there on the list that the decision makers knew to be
demonstrably better qualified.”
12a
fact, the court expressly found that the City “does not use a job-
related selection procedure in evaluating the qualifications of
certified candidates [and] has made no effort to develop. . .
such a procedure.” (Emphasis added.) Thus, the court in ef-
fect held that the City had unilaterally foreclosed the plaintiffs
from establishing a violation of paragraph 2: since the City did
not use a job-related selection procedure, the court apparently
reasoned, paragraph 2 imposed no obligations on it. Having
thus disposed of the issue whether the City had violated
paragraph 2, the court did not decide the plaintiffs’ Titic VII
and equal protection claims.
Following entry of partial final judgment for the defen-
dants pursuant to Fed. R. Civ. P. 54(b), *” several of the in-
dividual plaintiffs appealed, as did the United States. Because
the district court erred in holding that the individual plaintiffs
- were bound by the consent decrees, we reverse and remand with
instructions that the district court try their claims of unlawful
discrimination. We affirm the district court’s dismissal of the
United States’ claims.
With respect to the individual plaintiffs, the issue on ap-
peal is whether they are precluded by the consent decrees from
bringing an independent Title VII suit against the City and the
Board asserting that actions taken pursuant to those decrees
have resulted in unlawful discrimination against them. Because
we conclude that these plaintiffs were neither parties nor privies
19 The order of partial final judgment provided that it did not affect the
counterclaims pending against the United States. These counterclaims,
lodged by the City and the defendant-intervenors, alleged that the United
States had failed to fulfill its obligation as a signatory of the consent decrees
to “defend the lawfulness of . . . remedial measures [under the decrees] in
the event of challenge by any other party.” The City and the defendant-in-
tervenors requested the court to dismiss the United States’ complaint ig in
tervention and enter an order in the earlier cases directing the United States
to comply with its obligation to defend the decrees.
13a
to the consent decrees, we hold that their independent claims of
unlawful discrimination are not precluded.
As the district court recognized, the parties to a consent
decree cannot attack the decree after it has been entered. With
respect to the preclusive effect of a consent decree on nonpar-
ties, however, the same principles of res judicata and collateral
estoppel that govern ordinary judgments come into play.
United States v. Jefferson County, 720 F.2d 1511, 1517 (11th
Cir. 1983). An examination of those principles is thus essen-
tial to our analysis.
It is a fundamental premise of preclusion law that “[a] non-
party to a prior decision cannot be bound by it unless he had
sufficient identity of interest with a party that his interests are
deemed to have been litigated.” Wilson v. Attaway, 757 F.2d
1227, 1237 (11th Cir. 1985). As the Supreme Court has em-
phasized, this premise is required by due process: “[iJt is a
violation of due process for a judgment to be binding on a
litigant who was not a party or a privy and therefore has never
had an opportunity to be heard.” Parklane Hosiery Co. v.
Shore, 439 U.S. 322, 327 n.7, 99 S. Ct. 645, 649 n.7, 58
L.Ed.2d 552 (1979).
Some courts, however, have seen fit not to apply this
aspect of preclusion law to consent decrees in Title VII cases.
See, e.g., Thaggard v. City of Jackson, 687 F.2d 66 (Sth Cir.
1982) cert. denied, 464 U.S. 900, 104 S. Ct. 255, 78 L.Ed.2d
241 (1983); Dennison v. City of Los Angeles, 658 F.2d 694 (9th
Cir. 1981); EEOC v. McCall Printing Corp., 633 F.2d 1232
(6th Cir. 1980). Instead, these courts have decided to clothe
consent decrees with the doctrine of “impermissible collateral
attack,” thereby immunizing parties to a consent decree from
charges of discrimination by nonparties, provided the alleged-
ly discriminatory acts were taken pursuant to the consent
decree. Courts taking this approach have emphasized the need
to encourage voluntary agreements intended to eradicate race
discrimination, and have reasoned that to permit third party at-
tacks would discourage parties from negotiating such agree-
ments.
14a
Although we also recognize the strong public policy in
favor of voluntary affirmative action plans, we have rejected
the “impermissible collateral attack” doctrine “to the e xtent that
it deprives a nonparty to the decree of his day in court to assert
the violation of his civil rights.” Jefferson County, 720 F.2d
at 1518. A contrary rule would amount to an exception to the
res judicata and collateral estoppel law that we presently apply.
Id. It would also contravene the strong public policy of includ-
ing all interested parties in settlement negotiations in order to
avoid subsequent suits and dissatisfaction caused by exclusion.
In light of the due process underpinnings of preclusion law, and
in light of public policy considerations, we are unwilling to
recognize such an exception. Thus, even if a consent decree
purports to affect the rights of third parties, those parties are
not bound by the terms of the decree unless their interests were
adequately represented by a party to the decree. See Local No.
93 v. City of Cleveland, __ U.S. __, 106 S. Ct. 3063, 3079,
92 L.Ed.2d 405 (1986) (“A court’s approval ofa consent decree
between some of the parties . . . cannot dispose of the valid
claims of nonconsenting [parties]; if properly raised, these
claims remain and may be litigated by the [nonconsenting par-
ties].”). The policy of encouraging voluntary affirmative ac-
tion plans must yield to the policy against requiring third parties
to submit to bargains in which their interests were either ig-
nored or sacrificed. See Firefighters Local Union No. 1784 v.
15a
Stotts, 467 U.S. 561, 589 n.4, 104 S. Ct. 2576, 2593 n.4, 81
L.Ed.2d 483 (1984) (O’Connor, J., concurring) (“The policy
favoring voluntary settlement does not, of course, countenance
unlawful discrimination against existing employees.”).
The individual plaintiffs were parties to neither the City
decree nor the Board decree. Indeed, their Title VII claims did
not accrue until after the decrees became effective and the chal-
lenged promotions were made; that is, their claims did not ac-
crue until they were denied promotions.
Nag did the individual plaintiffs have an identity of inter-
est with a party to the consent decrees such that they should be
treated as parties for preclusion purposes. The BFA, an or-
ganization to which the plaintiffs in the fire department belong,
did attempt with two of its members 20 to intervene in the
original suits, but the court denied intervention as untimely. 21
The BFA also filed objections as amicus curiae at the fairness
hearing the district court held before approving the decrees.
That participation, however, hardly made the BFA a party to
the consent decrees. As we have indicated above, a consent
decree by definition binds only those who explicitly or implicit-
ly consent to it. See Jefferson County, 720 F.2d at 1518 n.19.
Of course, the City did consent to the decrees, and one
might argue that the individual plaintiffs as City employees
20 The two BFA members who unsuccessfully sought to intervene in
the original employment discrimination suits are not named as plaintiffs in
any of the reverse discrimination suits. The individual reverse discrimina-
tion plaintiffs who are fireighters belong to the BFA. Their counsel, Mr.
Fitzpatrick, represented the BFA when it filed objections as amicus curiae
at the fairness hearing.
21 At first blush, it may appear anomalous that we now hold that the
individual plaintiffs are not bound by the decrees while we earlier affirmed
the district court’s denial of the BFA members’ motion to intervene in the
cases from which the decrees arose. As our opinions here and in Jefferson
County demonstrate, however, the issues of intervention and preclusion in-
volve entirely different analyses. Indeed, as we took pains to point out in
Jefferson County, the denial of the motion to intervene was not prejudicial
to the movants partly because they were not precluded from instituting an
independent Title VII suit. Jefferson County, 720 F.2d at 1518.
16a
shared an identity of interest with the City such that they are
now bound. However, the record fails to indicate that the City
mounted a vigorous defense to the allegations leveled against it
before entering into settlement negotiations. Indeed, the dis-
trict court never tried the independent claims against the City.
Consequently, it is far from clear that the City in any way ade-
quately represented the individual plaintiffs’ interest in the
events leading up to the entry of the decrees. Moreover, it is
not clear that the plaintiffs and the City shared any identity of
interest at all. The City’s various interests in this dispute con-
ceivably may have conflicted in part with the plaintiffs’ single
interest in preserving preexisting promotion opportunities. In-
deed, the City’s interests were antagonistic in that it had every
reason to avoid a determination of liability and little reason to
object to the promotion of aspect of the settlement. The settle-
ment did not require the City to make any additional promo-
tions, but only to reallocate the promotions that it would have
made in any event. In real terms, the relief contemplated by the
decrees was to come not from the hands of the City, but from
the hands of the employees who would have otherwise received
the promotions. At the very least, the City was in the position
of a disinterested stakeholder with respect to the contested
promotions. Given the disparate interests of the City and the
individual plaintiffs, it is clear that the City could not have
served as an effective surrogate for the individual plaintiffs’ in-
terests when it negotiated the plan incorporated into the consent
decrees. Accordingly, it would be impossible to conclude that
these plaintiffs are in any way bound by those decrees.
As we have stated before, “[t]he judge must be cautious
in approving consent decrees only to the extent that he should
be aware the decree is more likely to be of little effect the fewer
parties there are in the suit to be bound.” Jefferson County, 720
F.2d at 1518 n.19; see City of Cleveland, __ U.S. __, 106 S..
Ct. at 3079 (“Of course, parties who choose to resolve litiga-
tion through settlement may not dispose of the claims of a third
party, and a fortiori may not impose duties or obligations on a
third party, without that party’s agreement.”). Thus, to avoid
claims such as those that have risen in the present case, it is in-
cumbent upon the district judge to ensure before entering a con-
sent decree that the interests of all real parties in interest have
17a
been adequately represented. See Stotts, 467 U.S. at 588 n.3,
104 S. Ct. at 2593 n.3 (O’Connor, J., concurring) (“[I]f in-
nocent employees are to be required to make any sacrifices in
the final consent decree, they must be represented and have had
full participation rights in the negotiation process.”). If the
plan affects promotion practice so as to alter or abolish the
promotion opportunities of existing employees, those
employees must be represented as parties to the decree if they
are to be bound by it.
Ill.
Having concluded that the individual plaintiffs are not
bound by the consent decrees, we remand with instructions that
the district court try the plaintiffs’ claims of unlawful dis-
crimination. Because the defendants concede that the chal-
lenged promotions were made in a race conscious manner, and
because the defendants seek to use the consent decrees to jus-
tify their actions, we feel compelled to provide the district court
with some guidance as to the legal significance of a consent
decree in Title VII litigation when, as in this case, an employer
seeks to interpose it as a defense against employees who were
neither parties nor privies to it.
The Supreme Court’s interpretation of Title VII’s applica-
tion in reverse discrimination suits was recently articulated in
Johnson v. Transportation Agency, ____ U.S. ___, 107 S. Ct.
1442, 94 L.Ed.2d 615 (1987). In Johnson, the Court upheld
against Title VII attack a county’s promotion of a woman over
a marginally better qualified man pursuant to a voluntary af-
firmative action plan. Under the plan, which set as a long-range
goal the creation of a workforce in which women and minorities
were proportionately represented according to their repre-
sentation in the area labor market, the county authorized its of-
ficials to consider, among other factors, race and gender when
making promotion decisions. Following the promotion of a
woman pursuant to the plan, a male employee who had been
passed over filed a Title VII suit.
Guided by its decision in United Steelworkers v. Weber,
443 U.S. 193, 99S. Ct. 2721, 61 L.Ed.2d 480 (1979) the Court
set forth a two-part inquiry to be used when a Title VII defen-
18a
dant seeks to use a voluntary affirmative action plan to justify
a race or gender conscious employment decision. First, con-
sideration of the race or gender of promotion candidates must
be “justified by the existence of a ‘manifest imbalance’ that
reflected underrepresentation of women [or minorities] in
‘traditionally segregated job categories.’” /d. at , 107
S. Ct. at 1452 (quoting Weber, 443 U.S. at 197, 99 S. Ct. at
2724 (1979)). The manifest imbalance “need not be such that
it would support a prima facie case [of discrimination] against
the employer.” /d. With respect to the specific facts before it,
the Johnson Court concluded that women had been “egregious-
ly underrepresented” in the relevant job categories, noting that
“none of the 238 positions was occupied by a woman.” /d. at
__, 107 S. Ct. at 1454.
Second, to withstand Title VII scrutiny, the voluntary af-
firmative action plan must not “unnecessarily trammel[ ]” the
rights of nonminority employees or “creat{ ] an absolut- bar to
their advancement.” /d. at__, 107 S. Ct. at 1455. In hold-
ing that the plan before it was tailored narrowly enough to meet
this second requirement, the Court emphasized that “the Plan
merely authorizes that consideration be given to affirmative ac-
tion concerns when evaluating qualified applicants.” /d. The
Court concluded that “[t}]he Plan thus resembles the ‘Harvard
Plan’ approvingly noted by Justice POWELL in University of
California Regents v. Bakke, 438 U.S. 265, 316-319, 98S. Ct.
2733, 2761-63, 57 L.Ed.2d 750 (1978), which considers race
along with other criteria in determining admission to the col-
lege.” /d. The Court also noted that the petitioner remained
eligible for other promotions when they came open.
19a
On remand, we direct the district court to evaluate the
defendants’ justification for the challenged promotions under
the standards articulated inJohnson. In an analytical sense, this
case differs from Johnson only to the extent that defendants
point to a consent decree, rather than a voluntary affirmative
action plan, to justify their race conscious promotion decisions.
We perceive no reason for treating a consent decree entered pur-
suant to a voluntary settlement 22 differently from a voluntary
affirmative action plan. In both instances, the employer has em-
barked on a voluntary undertaking; we reject any notion that
the memorialization of that voluntary undertaking in the form
of a consent decree somehow provides the employer with extra
protection against charges of illegal discrimination. A contrary
conclusion would fly in the face of our earlier observations
about the preclusive effect of such decrees.
The reasons for according a consent decree no more
weight than a voluntary affirmative action plan when the con-
sent decree is offered as justification for a race conscious
employment decision are especially strong where, as here, vi-
tally interested parties are not parties to the plan incorporated
into the decree. The City Decree does contain a provision—
paragraph 2—that facially serves to protect the interests of non-
minority employees. In light of the district court’s
interpretation of paragraph 2, however, that protection is il-
lusory at best. The district court’s interpretation of the City
22 It should be emphasized that there has been no judicial determina-
tion that the City is liable for past discrimination with respect to its promo-
tion practices. The only finding of discrimination related to the adverse
impact of entry-level screening examinations. See supra note 4 and accom-
panying text. Thus, with respect to the promotion practices upon which
plaintiffs base their claims, we are not presented with a case in which the
defendant was required by law to implement an affirmative action program
designed to remedy the effects of past discrimination.
23 Likewise, the consent decree in this case must be considered
equivalent to a voluntary affirmative action plan for purposes of equal
protection analysis. The Supreme Court addressed the equal protection
obligations of an employer who has instituted a voluntary affirmative action
plan in Wygant v. Jackson Bd of Educ., 476 U.S. 267, 106 S. Ct. 1842, 90
L.Ed.2d 260 (1986).
20a
decree permits the City to make race conscious promotions
without using any job-related selection procedure. Given the
natural potential that such an arrangement will trammel the in-
terests of nonminority employees, we are compelled to the con-
clusion that the district court should subject the consent decrees
to heightened scrutiny under the second prong of the Johnson
analysis when it tries the individual plaintiffs’ claims.
IV.
Our disposition of the United States’ appeal involves a
separate analysis. As the district court correctly observed, the
United States is estopped from collaterally attacking the con-
sent decrees because it is a party to them. Moreover, we hold
that the United States, as a party to the decrees, may not pur-
sue its claims as plaintiff intervenors in the present cases. The
court that entered the consent decrees retains jurisdiction over
the cases out of which the decrees arose, and the United States’
remedy, if it believes that the City has violated the terms of the
decrees, is to seek an order to show cause why the City should
not be held in civil contempt. See Newman v. State, 683 F.2d
1312, 1318 (11th Cir. 1982), cert. denied, 460 U.S. 1083, 103
S. Ct. 1773, 76 L.Ed.2d 346 (1983). Likewise, if the United
States believes that the decrees should be modified based on
changed circumstances, its remedy as a party to the dec-ees is
to seek modification in the court which retained juris:liction
over the cases in which the decrees arose. /d. at 1315 n.15.
Accordingly, the United States’ status in the present litigation
is in effect merely that of an amicus curiae.
V.
_ To summarize, the district court correctly dismissed the
United States’ claims. The district court erred, however, in
holding that the individual plaintiffs were bound by the consent
decrees. Accordingly, it must on remand try those plaintiffs’
Claims of illegal discrimination.
2la
AFFIRMED in part, REVERSED in part and
REMANDED.
ANDERSON, Circuit Judge, dissenting:
Respectfully, I dissent. In my judgment, the opinion for
the court ignores an important holding in United States v. Jef-
ferson County, 720 F.2d 1511 (11th Cir. 1983). In Jefferson
County, the BFA and two white firefighters, who are probably
in privity with the individual plaintiffs in the instant case,
sought to intervene in the litigation which resulted in the con-
sent decree at issue in this case. This court affirmed the dis-
trict court’s denial of intervention, holding that those
intervenors “knew at an early stage in the proceedings that their
rights could be adversely affected, as was evidenced by their
conversations with the City regarding the tactics the City should
take in defending the action,” id. at 1516. In analyzing the
prejudice prong of the intervention question, this court ad-
dressed the preclusive effect of the consent decree on the inter-
venors and held:
Naturally, that the employer undertook the
challenged action pursuant to a court-approved
consent decree . . . would be evidence of non-
discriminatory intent by the employer.
Id. at 1518. I dissent because the opinion for the court in this
case ignores the holding just quoted from the previous litiga-
tion in Jefferson County. In determining whether the City has
discriminated against the instant plaintiffs, Jefferson County re-
quires that the trial judge consider as evidence of nondis-
criminatory intent ' the fact that the City’s action was taken
pursuant to the consent decree. Ignoring this mandate from Jef-
ferson County, the opinion for the court instructs the district
1 Because I write only in dissent, I need not resolve the question
reserved in Jefferson County as to whether the fact that the City merely fol-
lowed the consent decree would conclusively establish that the City is not li-
able under Title VII.
22a
judge on remand merely to evaluate the validity of the consent
decree.
In my judgment, the appropriate resolution of this case
would distinguish between the individual plaintiffs’ claim for
back pay and their claim for prospective relief. With respect
to their back pay claim, they will have to establish that the City
intentionally discriminated against them, and their attempt will
probably be defeated under the Jefferson County rationale by
the evidence that the City was merely implementing the consent
decree. This result is consistent with the demands of equity. It
would be anomalous for the City to be liable to the instant plain-
tiffs for actions that the City was required to take on pain of
being held in contempt at the hands of the black employees who
were parties to and beneficiaries of the consent decree. This
result is especially appropriate here in light of Jefferson
County’s holding that parties in privity with or situated similar-
ly to the instant plaintiffs knew at an early stage in the original
litigation that their rights could be adversely affected, consulted
with the City regarding defensive tactics, but made an “ill-ad-
vised decision” not to intervene in timely fashion deciding in-
stead to rely on the City to advance their interests. 720 F.2d at
1516-17.
This result also is supported by an analysis of § 713(b) of
Title VH, 42 U.S.C. § 2000e-12(b)(1) and the applicable
EEOC regulations. Section 713(b) provides that no Title VII
liability results from an employer’s good faith reliance on or
adherence to “any written interpretation or opinion of the Com-
mission.” * The relevant “written interpretation” of the
2 Section 713(b) of Tide VII, 42 U.S.C. § 2000e-12(b)(1) provides in
relevant part:
In any action or proceeding based on any alleged unlaw-
ful employment practice, no person shall be subject to any
liability or punishment for or on account of (1) the com-
mission by such person of an unlawful employment prac-
tice if he pleads and proves that the act or omission
complained of was in good faith, in conformity with, and
in reliance On any written interpretation or opinion of the
Commission. .. .
23a
EEOC 3 is 29 C.F.R. § 1608.8, which provides, in part, that
“(t]he Commission interprets Title VII to mean that actions
taken pursuant to the direction ofa court order [including a con-
sent decree] cannot give rise to liability under Title VII.” *
Thus, the City could rely upon the written interpretation of the
EEOC to the effect that the City is precluded from retrospec-
3 A “written interpretation or opinion of the Commission,” as defined
by the EEOC procedural regulations, includes “[mJatter published and
specifically designated as such in the Fiederal] R{egister]... .” 29 C.F.R.
§ 1601.33(0). Here, the relevant EEOC regulation, 29 C.F.R. § 1608-8, was
published in the Federal Register as part of a set of guidelines promulgated
by the EEOC to “clarify and harmonize the principles of Title VII... .” 29
C.F.R. § 1603.1(a). Section 1608.2 of the guidelines specified that the
guidelines “constitute ‘a written interpretation and opinion’ of the Equal
Employment Opportunity Commission as the term is used in [Section 713(b)
of Title VII] and § 1601.33 of the procedural regulations of the Equal
Employment Opportunity Commission. .. .” 29 C.F.R. § 1608.2. Conse-
quently, Section 1608.8 constitutes a “written interpretation” under Section
713(b) of Title VII.
4 29C.F.R. § 1608.8 provides:
Parties ave entitled to rely on orders of courts of competent
jurisdiction. If adherence to an Order of the United States
District Court or other court of competent jurisdiction,
whether entered by consent or after contested litigation,
in a case brougit to enforce a federal, state, or local equal
employment opportunity law regulation, is the basis of a
complaint filed under Title VII or is alleged to be the jus-
tification for an action which is challenged under
Title VII, the Commissioner will investigate to deter-
mine: (a) whether such an order exists and (b) whether
adherence to the affirmative action plan which is part of
the order was the basis of the complaint or justification.
If the Commission so finds, it will issue a determination
of no reasonable cause. The Commission interprets
Title V.d to mean that actions taken pursuant to the direc-
tion of a court order cannot give rise to liability under
Title Vil. (Emphasis supplied).
24a
tive Title VII liability because of its compliance with the con-
sent decree. >
On the other hand, plaintiffs’ claim for prospective relief
will not be affected in the same way by the existence of the con-
sent decree. In their claim for prospective relief, the validity
of the consent decree is itself at issue. I agree with the opinion
for the court that these plaintiffs were not parties to the prior
litigation which resulted in the consent decree, and that the in-
stant plaintiffs are not bound by the consent decree and should
be free on remand to challenge the consent decree prospective-
ly and test its validity against the recent Supreme Court prece-
dent. See Johnson v. Transportation Agency, __ U.S. __,
107 S. Ct. 1442, 94 L.Ed.2d 615 (1987).
5 I note that the Seventh Circuit has held that a consent order does not
constitute a “written interpretation or opinion of the Commission” within the
meaning of § 713(b) of Title VII. Ejirhart v. Libbey-Owens Ford Co., 616
F.2d 278 (7th Cir. 1980). That court, however, apparently overlooked the
provision of the regulation upon which I rely. Instead, it evaluated the con-
sent order under subsection (a) of 29 C.F.R. § 1601.33. My analysis is
based upon subsection (b) of 29 C.F.R. § 1601.33; therefore the conclusion
in Eirhart is inapposite to this case.
25a
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
NO. 86-7108
In Re: BIRMINGHAM REVERSE DISCRIMINATION
EMPLOYMENT LITIGATION
Appeai from the United States District Court for the
Northern District of Alabama
Filed, United States Court of Appeals, Eleventh Circuit
January 25, 1988
ON PETITION(S) FOR REHEARING AND SUGGESTION(S)
OF REHEARING IN BANC
(Opinion _ December 15, 1987 “ii: = oe » se *
( )
Before TJOFLAT and ANDERSON, Circuit Judges, and
HENDERSON, Senior Circuit Judge
PER CURIAM:
(x) ‘Lhe Petition(s) for Rehearing are DENIED and no mem-
ber cf this panel nor other Judge in regular active service on the
Court having requested that the Court be polled on rehearing in
banc (Rule 35, Federal Rules of Appellate Procedure; Eleventh
Circuit Rule 35-5), the Suggestion(s) of Rehearing In Banc are
DENIED.
( ) The Petition(s) for Rehearing are DENIED and the Court
having been polled at the request of one of the members of the
Court and a majority of the Circuit Judges who are in regular
active service not having voted in favor of it (Rule 35, Federal
Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), the
Suggestion(s) of Rehearing In Banc are also DENIED.
26a
( ) A member of the Court in active service having requested
a poll on the reconsideration of this cause in banc, and a
majority of the judges in active service not having yun in favor
of it, Rehearing In Banc is DENIED.
ENTERED FOR THE COURT:
/s/ Gerald Tjoflat
United States Circuit Judge
27a
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
In re:
BIRMINGHAM REVERSE CIVIL ACTION NO.
DISCRIMINATION CV 84-P-0903-S
EMPLOYMENT LITIGATION
[TRIAL TRANSCRIPT]
VOLUME IX
December 20, 1985
9:08 A.M.
[Text Omitted.]
THE COURT: The Court will now dictate its findings of
fact and conclusions of law. These findings of fact are based
upon the evidence that has been presented over the past four and
a half days, consisting of the testimony of various witnesses and
the reception into evidence of voluminous documents.
I state at the outset that the conclusion that | reach is to be
favorable to the defendants.
Basically the issue, the legal issue, which, as I view it, is
determinative of this case is one that was stated in an order
entered back in February of this year.
The conclusions there expressed either explicitly or im-
plicitly were that under appropriate circumstances, a valid con-
sent decree appropriately limited can be the basis for a defense
against 2 charge of discrimination, even in the situation in
which it is clear that the defendant to the litigation did act ina
racially conscious manner.
In that February order, it was my view as expressed then,
that if the City of Birmingham made promotions of blacks to
positions as fire lieutenant, fire captain and civil engineer, be-
cause the City believed it was required to do so by the consent
28a
decree, and if in fact the City was required to do so by the con-
sent decree, then they would not be guilty of racial discrimina-
tion, either under Title 7, Section 1981, 1983 or the 14th
Amendment. That remains my conclusion given the state of the
law as I understand it.
Counsel have amply noted that the iaw is not clear,
however, in this regard. And that this decision is being made
at a time when there is uncertainty as to the state of the law.
In the effort to determine what the state of the law is, as
best I can determine it, I have considered no single decision.
As I evaluate the decisions particularly out of the Supreme
Court, it becomes apparent to me that if you look at any one
given decision, you can come up with a conclusion as to what
the law is which is different from the decision you reach if you
look at some other decision. And is required as a result some-
how attempting to synthesize what I view to be a development
in the law as yet not fully and finally defined.
Much argument has been made as this case came to trial
about the burden of proof. I declined in advance of trial to rule
definitively on certain hypothetical issues, because I wish to see
the state of the evidence as it was presented. I am persuaded
that at least in that respect my earlier decision was proper. Be-
cause it has become clear to me from the evidence in this case
that it is not necessary for the Court to determine whether some
action apparently permitted by the consent decree but not man-
dated by it would be protected against claims of discrimination.
In this case, under the evidence as presented here, I find
that even if the burden of proof be placed on the defendants,
they have carried that proof and that burden of establishing that
the promotions of the black individuals in this case were in fact
required by the terms of the consent decree.
I reach that decision on the basis that the language that has
become the focus of these proceedings, namely language in
paragraph two of the consent decree, would require or would
allow an exception to the goals otherwise stated for the City in
other provisions of the decree only if the decision-makers at the
time of making the decision had information demonstrating that
29a
a black, although qualified, was demonstrably less qualified
than a white on the basis of a job-related selection device.
During the presentation of evidence here, the only pos-
sible job-related selection device that has been presented is that
of the test that the Personnel Board uses. Many other criterion
have been selected, none have been in any way indicated or
demonstrated as being job related. Job related in this sense
must be addressed in the context of the regulations under
Title 7, which were in force at the time the consent decree was
adopted, and indeed continued in force.
In this particular case, the tests used by the Personnel
Board have simply been assumed to be valid, that is, job re-
lated. However, the evidence demonstrates that the decision-
makers on the part of the City did not have the information
available to them on which they could have made any kind of
judgment that the blacks scoring lower on those exams scored
sufficiently lower to be demonstrably less qualified than the
whites who were higher ranked.
I had anticipated until this morning that at the conclusion
of the case and while still attending to the case I would attempt
at the conclusion of the case to dictate findings of fact in my
normal manner. That is, I had anticipated that I would simply
from my own memory and recollection go through the various
items of evidence and make the appropriate findings with
respect to the variety of issues and persons involved.
I am varying from that today in doing something that I
have done only once before that I can recall. The reason for
doing so is that I have received this morning some findings of
fact proposed by the defendants that I find to be ninety-eight
percent objective, fair and the same findings I would make.
The appellate decisions have cautioned trial courts against
simply adopting proposed findings submitted by parties. I am
aware of the admonition. I have, however, gone through these
proposed findings and will in just a few minutes indicate cer-
tain changes that I would make in them. To the extent I do not
make changes, I adopt them as my own individual findings.
This is both as to findings of fact and conclusions of law. There
are in addition a few facts not contained in the findings of fact
Wa
proposed by the defendants that I will recite as findings of fact
by the Court.
First, I will attend to several matters that were not covered
by the defendants’ proposed findings of fact. Each of the plain-
tiffs who complains in this litigation against the failure to be
appointed as a fire lieutenant or fire captain or civil engineer or
who claims that he was delayed in such an appointment was ad-
versely affected because he was white. Those persons in the
absence of the consent decree and in the absence of any affirm-
ative action plan adopted by the City as mandated by the decree
would, as I interpret the evidence, have been appvinted to the
positions they desired and about which they here complain.
Each of those individuals ranked higher on the certification list
provided by the Personnel Board than the blacks who were ap-
pointed by the City pursuant to the consent decree.
Most but not all of those whites who were not selected for
those positions had higher test scores on the test administered
by the Personnel Board. Although the scores, as I have already
indicated, were not known by the decision-makers at least with
a sufficient degree of accuracy and completeness to make any
judgment concerning the significance of those differences.
Several of the whites who were unsuccessful in their
promotional efforts or who were delayed in those promotional
efforts not only had higher test scores than the blacks who were
selected but had scores which were sufficiently higher on the
test that using the techniques of statistical inference would have
indicated that the true test score of the white was statistically
significantly greater than the true test score of the black. I state
that that is true for some of the whites involved but certainly
not all.
I make particular mention, although it is contained in the
proposed findings of fact submitted by the defendants, that the
practice of the fire department both before and after the consent
decree was to not consider qualifications in making promotions
but instead is to follow willfully the certification list submitted
by the Personnel Board, simply selecting the higher ranked per-
son, whether qualified or not
31a
Only since the consent decree has that been changed one
occasion, and that was at a time at deciding that a black who
otherwise would have been mandated for promotion under the
decree was not qualified. This Court upheld the decision by the
City that under the particular facts of that case and that situa-
tion the black was not qualified.
With respect to the vacancy in the engineering office, the
Court makes the following conditional matter that is perhaps
not that explicit in the proposed findings submitted by the defen-
dant. The white who would have been appointed to the posi-
tion of civil engineer and who certainly was qualified for that
position did score higher on the test than did the black who was
selected. He, | am referring to Mr. Ware, is the individual who
vould have been selected by the chief engineer for that position
had it not been for the consent decree. In noting, however, that
the rankings and test scores coming from the Personnel Board
were not in the engineering department deemed to be particular-
ly valuable or useful, the chief engineer would have selected
that individual Mr. Ware, even though he scored much lower
than another white individual, that is the difference between his
score and another white was even greater than the difference
between Mr. Ware’s score and the black.
Furthermore, the chief engineer in his deposition tes-
timony indicated candidly that he considered the race of
Mr. Thomas, person ultimately chosen, being black, as a nega-
tive feature. And that he would have so considered that as a
negative feature, but for the fact that the consent decree required
him to look otherwise at the candidate. He also noted in his
deposition that although he would have preferred because of his
view of the experience factor and certain other characteristics,
the appointment of Mr. Ware, he could not say that Mr. Ware
was to any significant degree better qualified than the person
he chose, namely the black Mr. Thomas.
Now, with those additional matters being recited as find-
ings of the Court, I will go through the proposed findings of
fact submitted by the defendants and make certain revisions.
On page five, paragraph thirteen, the last — starting with
the words and similar underrepresentation, at that point the
32a
paragraph will simply read underrepresentation continues even
with the actions taken under the consent decree to this day. And
the following sentence will be deleted.
On page thirteen, paragraph forty-five, that item will be
revised to read as follows: Dr. Siskin did not in view of the
Court’s limitations as to the scope of trial conduct any studies
to attempt to determine whether the Personnel Board’s examina-
tions are job reiated.
On the same page, paragraph forty-seven, it should read
as follows: Dr. Siskin concluded that at the 0-5 level of sig-
nificance several non-selected whites’ true test scores exceeded
the true test scores of selected blacks by four or more SEM’s.
On page fifteen, paragraph fifty-four, in the third line, the
word rank or, r-a-n-k space o-r, those two words are deleted.
On page seventeen, paragraph number sixty, the second
sentence is revised to read as follows: This underrepresenta-
tion resulted at least in part from discrimination against blacks.
On page eighteen, paragraph sixty-three, that paragraph is
deleted. On page twenty-two paragraph seventy -eight, the first
sentence should read as follows: Moreover the evidence
reflects that over the history of this program blacks have had —
excuse me, whites have had a somewhat greater opportunity
than blacks to achieve medic status. On that same page, the
parenthetical sentences at the bottom of the page are deleted.
On page twenty-three, in paragraph seventy-nine, the
third sentence it should read a lead worker assist his or her
lieutenant. The words “or her” being added.
In paragraph eighty-one on the same page, that is rewrit-
ten to state the lead worker position is usually assigned on the
basis of station seniority. On the next page, page twenty-four,
paragraph eighty-four, that first sentence should read as fol-
lows: Additionally, as is the case with all criteria based sub-
stantially on seniority, blacks have not, as a whole, had the same
opportunities as white to meet this proposed criterion.
On page twenty-seven, paragraph ninety-six, is simply a
typographical correction in the spelling of the word “selection.”
On page twenty-eight. paragraph ninety-eight, the last sen-
33a
tence, a typographical correction, the spelling of the word “con-
sider.” On page thirty, paragraph one hundred and ten, that
paragraph is deleted.
On page thirty-three paragraph one hundred and twenty-
three the figures twenty-five percent are changed to fifty per-
cent. On paragraph thirty — excuse me, on page thirty-five,
paragraph one thirty-five, that should read in appropriate part,
a selection procedure which relies in substantial part on subjec-
tive criteria is not a related selection procedure within the mean-
ing of paragraph two within the City decree.
On page thirty-eight, in paragraph one forty-three, the
footnote is deleted. On page forty, paragraph one forty-nine,
that paragraph is deleted. On page forty-one paragraph one
fifty, the following shall stand as paragraph one fifty: The City
decree entered by this Court immunizes the City from liability
for actions required by it. Any questions concerning this
proposition should be dispelled in this Circuit under the present
state of the law by the decision of the Court in Palmer versus
District Board. That will stand in place of what was written in
paragraph one fifty.
In paragraph one fifty-two on page one forty-one and
going over to page forty-two is deleted. On page forty-two
paragraph one fifty-three the following is substituted: Informa-
tion or opinions not known to the decision-maker may not be
utilized to establish that the individual selected — excuse me,
that there were job related selection devices showing one can-
didate demonstrably better qualified than another.
In paragraph one fifty-four on the same page, the third
line, the word “subject” is eliminated and substituted in its place
the word “suspect,” s-u-s-p-e-c-t. Two lines below that, the
word “contemplated,” that word is to be eliminated and instead
the word “affected” is substituted for that word.
These findings and conclusions are entered at this time
along with the findings and conclusions indicated at the outset
of this recitation.
Entry of judgment should not be delayed or deferred.
However, I am going to call upon counsel to submit to me on
34a
Monday an appropriate form of judgment that simply indicates
that in accordance with the findings and conclusions dictated or
incorporated by the Court in its oral charge that certain cases
or claims are dismissed and directing under Rule 54-B that
those findings and resolutions be made final.
I say that I ask this because there is some difficulty — I
believe this case fully disposes of or resolves at the trial level
the Bennett decision. But I don’t believe that is so with respect
to the case in which Mr. Ware had his claims, or at least I am
not sure it does, and so there would have to be a 54-B finding
in that case. Also since these cases were a part ofa larger group
of cases consolidated under the name Birmingham Reverse
Employment Discrimination Case, it is for safety’s sake ap-
propriate to use 54-B to make sure that there is no question as
to finality by virtue of those other cases not having been
resolved at this time.
It is for that reason that I call upon counsel to make some
analysis to present me with an appropriate one-page order is all
it requires which clarifies which cases are due to be resolved as
a result of this decision favorable to the defendants.
Cost but no attorneys’ fees are taxed against the plaintiffs
in this case. It is clear that there is sufficient merit in these
cases to justify the pursuit of them. I say that both on a subjec-
tive and objective basis and that claims by a prevailing defen-
dant under the Christian, Burg, Garment case would not justify
an award of attorneys’ fees against the plaintiffs even though
the defendants have prevailed. There may be some question as
to whether some change in the standards when you are talking
about a reverse discrimination case, but at the present time I am
persuaded that Christian, Burg, Garment is the applicable
standard to be applied here, even though the — with the defen-
dants having prevailed.
Let me stop at this point and see if counsel — I am ob-
viously not asking for -- but if counsel have any questions about
the Court’s ruling, the nature of it and what you are called upon
to do and if you think I have totally left out a subject area that
perhaps should be included in the findings. Of course, it’s not
to cut off a request post-judgment for additional findings, I am
35a
not asking for a waiver in that. It may be since I am sure
plaintiff's counsel have not had the opportunity to fully go
through these items and compare them with ones that you might
want a finding on, I didn’t want to place in those findings that
I think are particularly favorable to the plaintiffs to help put this
case in the appropriate context which had not been included in
the defendant’s proposal.
Do counsel know of anything that — at the present time
they would ask me to consider?
MR. FITZPATRICK: Your Honor, you are correct that
we have not had an opportunity to read this which was served
at, I guess about twelve noon.
With respect to the other consolidated cases, I think it
would be appropriate that if there is an appeal, that some
mechanism be provided for keeping those matters on hold in the
event there are additional claims filed during the process in
which these matters are ultimately resolved on appeal, if ap-
pealed, we also set up a mechanism for that.
THE COURT: As to those other cases, I really was not
suggesting anything at the moment other than to make sure the
presence of those other cases did not affect the appealability of
this decision.
MR. ALEXANDER: Your Honor, from the City, I think
one concern we would have is trying to avoid a repetition of the
expense attended tc this mattcr. And perhaps we can work out
some way to keep the other cases in a state of limbo until this
is resolved.
THE COURT: Either that or could even be that the ul-
timate findings that I made here are sufficiently — some of the
ones are going to be involved that something in the nature of a
summary judgment could be done so that those cases get to be
reviewed at the very same time. That’s simply something for
y’all to discuss. Certainly there seem to be several possible
ways of addressing this. But certainly many of the issues —
MR. ALEXANDER: The one thing I don’t want to do is
Start police depositions Monday.
36a
MR. FITZPATRICK: Me too.
THE COURT: Iam sure of it.
MS. MANN: One point of clarification, do you want to
meet with counsel on Monday or do you just want a written —
THE COURT: I would assume that there is some one
plaintiff’s lawyer that is in Birmingham and some one
defendant’s lawyer that is in Birmingham that can come to me
with a one-page document and say Judge, this I think is what
you are looking for. We don’t agree with it, we as plaintiffs,
but this is what you were trying to do in order to permit the ap-
pealability decision. I am not looking for counsel to be around,
other than somebody on behalf of the plaintiffs and somebody
on behalf of defendants. Thank you very much.
THE ABOVE WAS ALL OF THE FOREGOING PROCEED-
INGS
37a
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
In re:
BIRMINGHAM REVERSE CIVIL ACTION NO.
DISCRIMINATION CV 84-P-0903-S
EMPLOYMENT LITIGATION
DEFENDANTS RICHARD ARRINGTON, JR.,
THE CITY OF BIRMINGHAM AND
DEFENDANT-INTERVENORS’ PROPOSED
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Defendants Richard Arrington, Jr., the City of Birming-
ham, and Defendant-Intervenors (“defendants”) submit the fol-
lowing Proposed Findings of Facts and Conclusions of Law to
assist the Court in considering defendants’ Motion for Involun-
tary Dismissal at the close of plaintiffs’ case.
FINDINGS OF FACT
1. The individual plaintiffs are white males, employed
by the City of Birmingham in its Engineering Department or
the Birmingham Fire and Rescue Service (“BFRS”), who con-
tend that they have been unlawfully denied promotions on the
basis of their race.
2. Also a plaintiff is the United States Department of
Justice, an intervenor on the side of the plaintiffs. (“Plaintiffs”
will hereafter refer to the individual plaintiffs and the United
States collectively. When collective use is inappropriate, the
Court will refer to “individual plaintiffs” and “United States”
or “government”.)
3. Defendants Richard Arrington, Jr., and the City of
Birmingham (collectively the “City”) admit that the Engineer-
ing Department and the BFRS have considered race in making
promotions, but deny discriminatory intent, and proffer as their
legitimate, non-discriminatory motive compliance with a Con-
sent Decree entered in United States v. Jefferson County, 28
38a
FEP Cases 1834 (N.D. Al. 1981) (the “City Decree”); dis-
cussed more fully below.
4. Defendant-intervenors represent the interests of the
original black plaintiffs (“Martin plaintiffs”) in Martin v. the
City of Birmingham, as well as those of the beneficiaries of the
relief won by the Martin plaintiffs and their certified classes.
They join in the City’s defense that the preferential promotion
of blacks was legal pursuant to the City Decree.
5. On August 21, 1981, this Court entered an Order in
United States v. Jefferson County approving as fair two consent
decrees: one (heretofore designated as the “City Decree”) be-
tween the City, the Martin plaintiffs, and the United States, ex-
ecuted May 19, 1981; and one between the Jefferson County
Personnel Board (the “Board”), the Martin plaintiffs, and the
United States (the “Board Decree”), also executed May 19,
1981.
6. Resolution 547-81 authorized the Mayor to enter into
the City Decree (United States Exhibit 3 to Gordon Graham
1985 Deposition).
7. The decrees generally required the City to attempt to
meet certain long term and short term goals set forth in the City
Decree, and the Board to “certify” to the City (as required by
Alabama law under the Civil Service System (“Enabling Act”))
sufficient numbers of black applicants to enable the City to
meets his goals.
8. The individual plaintiffs contend that the City Decree
is illegal and does not relieve the City from liability to whites
who were “passed over” for promotion on account of their race.
The government does not join the individual plaintiffs in their
contention that the Decree is unlawful.
9. The individual plaintiffs and the government both
contend that the City has exceeded the requirements of the City
Decree and is hence not protected thereby. That argument con-
sists of two necessary premises: that only employment
decisions “mandated” in the sense of being required by the City
Decree can provide the City with immunity for its race-con-
scious promotions; and that the City Decree does not require
the promotion of less qualified blacks over demonstrably bet-
39a
ter qualified whites. The latter contention is grounded on { 2
of the City Decree, which provides, in relevant part, that the
City is not required to promote a less qualified black in
preference to a demonstrably better qualified white, as deter-
mined by the results of a job related selection procedure. They
thus contend that the promotion of a demonstrably less qualified
black is not protected by the City Decree.
10. The individual plaintiffs contend that all blacks
promoted in the Engineering Department and the BFRS since
the entry of the City Decree are demonstrably less qualified than
the white plaintiffs; the United States contends that only some
of the white plaintiffs are demonstrably better qualified than
some of the black promotees. Additionally, both the individual
plaintiffs and the United States contend that some of the black
promotees were unqualified for promotion at the time of their
promotion.
11. In response, the City and Defendant-Intervenors
contend that any action contemplated by, or made as a direct
consequence of, the City Decree is lawful, and that the promo-
tion of qualified, but demonstrably less qualified, blacks is con-
templated and permitted by the City Decree. They further
contend that in order to meet the goals provisions of the City
Decree, the City is required to promote any black individual
whom the City could not prove to be demonstrably less qualified
according to the results of a job related, validated, selection
procedure. Finally, the City and defendant-intervenors con-
tend that, in any event, none of the blacks promoted are un-
qualified, or demonstrably less qualified, according to the
results of job related selection procedure.
12. In United States v. Jefferson County, supra, this
Court found the City and Board Decrees to be warranted by the
evidence of discrimination by the City, based on the factors set
forth in United States v. Alexandria, 614 F.2d 1358 (Sth Cir.
1980), and the other applicable decisions of the several courts
of appeals. Plaintiffs have demonstrated no facts demonstrat-
ing that the previous conclusion of the Court was in any way in
error.
13. To the contrary, the employment statistics reflect
that blacks were seriously underrepresented in City empioy-
40a
ment, specifically in the Engineering Department and BFRS, at
the time the City Decree was entered (during the 1950’s, there
was a period of time where blacks were not allowed to take the
firefighter (Tr. (Pope)) or the civil engineer (Ex. 1982, 1983
examinations), and similar underrepresentation continues to
this day. The evidence further reflects that, absent the Consent
Decree, the record of the BFRS with respect to the employment
of blacks throughout the department would be as abysmal as its
record when the City entered into the Decree (See generally Ex.
23 I.A-H).
14. Nor are the interest of whites trammeled by the
Decree. Since the entry of the Decree, some have been
promoted immediately upon certification, others after only a
delay, and those not promoted have had or will have an oppor-
tunity to compete as each new exam is given and an eligible
register (which is valid for only a year) is created. (See general-
ly, certifications of eligibles.)
15. It is uncontested that the City, in its Engineering
Department (compare Duncan 1982 dep. 46-47 with Duncan
1985 dep. 42) and the BFRS (Gallant dep. 663), has followed
the same general promotional practices since the entry of the
City Decree as were in place before the entry of the City Decree,
the only material difference being that the City now considers
the goals of the City Decree in making promotional decisions.
16. Inthe BFRS, it was Chief Gallant’s pre-City Decree
practice to review the personnel file of the certified individuals
(Gallant dep. 488-89; Laughlin dep. 165), consult with Deputy
Chief Laughlin, consider any other information he had received
concerning the “certified eligibles” (Gallant dep. 214, 278,
529) (although he did not actively seek such information), and
promote the eligibles in the order in which they appeared on the
certification, absent a reason to believe they were not qualified
to perform the duties of the position for which they were being
considered (Gallant dep. 476-78; Laughlin dep. 141, 253, 328,
343, 452). The Chief made no effort to compare the qualifica-
tions of the certified individuals; the only decisions he made
were whether he could prove that they were not qualified (Gal-
lant dep. 140-41, 476; Laughlin dep. 361, 646).
4la
17. The general procedure Gallant followed before the
entry of the City Decree has not changed (Gallant dep. 663).
The only material change in Chief Gallant’s procedure since the
entry of the Decree is that he now alternates between blacks and
whites, selecting in each case the highest ranked white or black,
as appropriate under the City Decree (Gallant dep. 368, 391-
92, 489-90, 818).
18. Chief Gallant’s procedure of selecting the highest
ranked individual is based on his belief that, as a practical mat-
ter, if not a legal matter, he is required to promote in rank order
absent an ability to prove that the highest ranked individual of
either race is unqualified for the promotional position (Gallant
dep. 140-41, 329-40). Gallant bases his belief on experience
(id. , 327) the strong civil service system (id. , 480, 633-34, 813-
14), the expectation of administrative appeals and/or lawsuits
by a passed over candidate (id., 635-36), morale (id., 894),
long-standing custom and tradition (id. , 339, 634), and his in-
ability to make comparison of qualifications (id., 498).
19. In Chief Gallant’s view, the Board certifies the can-
didates as qualified for promotion, and he must assume the
Board is correct unless he can prove otherwise (id., 140-41,
894).
20. Gallant does not base his practice of following rank
order on any belief that the Board’s certification procedure is
effective in ranking candidates according to relative abilities.
He has no knowledge of whether the Board examination tests
the knowledge necessary for promotion (Gallant dep. 219), and
he does not believe the highest ranked candidates are the best
qualified (id., 659, 871). He does not believe the Board’s pro-
cedure is the best possible system (id. , 236).
21. Neither Chief Gallant nor Chief Laughlin are aware
of any meaningful, job related method by which to compare the
relative qualifications of candidates for promotion (id., 498;
Laughlin dep. 137, 190, 298, 300). Laughlin is not aware of
any way in which to quantify the value of diverse or competing
varieties of experience (Laughlin dep. 156, 450, 672).
22. Gallant would, however, reject any candidate he
could show is unqualified (id., 476) and has in fact rejected a
.
42a
black firefighter certified for promotion to Fire Lieutenant (id. ,
aa
23. The United States (and, apparently, the individual
plaintiffs) have suggested that the following criteria could and
should have been considered by Chief Gallant to compare the
qualifications for promotion of the individual plaintiffs to the
promoted blacks: 1) the raw, converted, and final scores
achieved on the Board administered promotional exam,
together with the rank of the individual on the “eligible
register”; 2) the BFRS seniority (length of service on the
department) of each candidate for promotion; 3) the highest for-
mal station assignment held by a candidate; 4) whether a can-
didate has been “certified” by the BFRS as a driver or assistant
driver of an apparatus; 5) the number of months each candidate
served as a leadworker or medic; 6) the number of shifts served
by an individual as an acting officer; 7) any educational pay in-
centive received by the individual; and 8) other firefighting ex-
— from that gained in the BFRS) (See, Exhibits
Test Score and Rank
24. Under state law, the Board has the authority and
duty to “certify” candidates to the City for all positions, entry
oo or promotional, in the Classified Service (Enabling Act,
. 25. In fulfilling this obligation, the Board administers
written examinations. The Board then grades the examinations,
first determining a “raw score,” or simply the number of ques-
tions an individual answers correctly. The Board then sets a
passing point and calculates a “converted score” on a scale of
seventy (70) to one hundred (100), for those who passed the
exam. A “final score” is determined by adding to the converted
score one point for each year of service in the classified service
in the City up to twenty (20) years. Finally, the Board ranks
the candidates on an “eligible register” based on the final
scores.
. 26. Plaintiffs contend that the City should have con-
sidered test and rank information in comparing candidates for
promotion. The City and Defendant-Intervenors respond that,
43a
assuming a duty to compare qualifications, the information was
not reliably available to the City, nor was information neces-
sary to enable the City to determine the significance of any dif-
ferences in test scores. (The issue of the validity, vel non, of
the examinations has been severed. In light of the Court’s dis-
position of the case, that issue need not be reached.)
27. When a department has promotional vacancies, it
prepares a “request for certification” of promotional can-
didates. (Graham 1985 dep. 159). Prior to forwarding the re-
quest to the Personnel Board, the City Office of Personnel
reviews the Request for Certification to determine, inter alia,
whether the department is in compliance with its affirmative ac-
tion plan. If not, a notation is stamped on the request, indicat-
ing that the City requests that qualified blacks and/or females
be certified. (Graham 1985 dep. 161-162). The City then
receives a certification of the names of individuals eligible for
promotion. Prior to the entry of the Decree, the City received
a number of names equal to the number of vacancies plus two
additional names (“Rule of 3”). (Graham 1985 dep. 169). Since
the entry of the City Decree, when the City indicates on its re-
quest for certification that its promotional goals have not been
met, the Board certifies ranking individuals pursuant to the rule
of three, plus the names of a sufficient number of biack in-
dividuals to enable the City to meet its City Decree goals.
(Graham 1985 dep. 170-171).
28. The Board forwards the certification to the City Of-
fice of Personnel which, after reviewing the certification to
determine that a sufficient number of names have been iden-
tified, forwards the certificate to the department. (Graham 1985
dep. 180-81).
29. The department head selects a candidate from the
certification and submits a recommendation for the Mayor’s ap-
proval. (Graham 1985 dep. 180-81).
30. The only entity which can verify test score and rank-
ing data is the Personnel Board. (Graham 1985 dep. 223-24).
31. The Certification contains only a list of names, with
no reference to any score or rank (the rank of white individuals
can be inferred, at least initially, by the order in which they are
TE -
44a
certified ; the rank of selectively certified blacks is not reflected
nor can it be ascertained from the face of the certification.)
(Paragraph 5 Supplemental Affidavit of Gordon Graham, U.S
Exhibit 5 to Gordon Graham 1985 Dep). ;
32. The City has never received test score information
from the Board and has never relied on test scores in making
promotions (except for a single interval, the circumstances sur-
rounding which render it irrelevant to the instant controversy).
a a dep. a nt Arrington dep. 111, 113); /n re:
irmingham Reverse Discrimination Emplo itigati
37 Fair Emp. Proc. [sic] Cas. 1, 6n. is - Dishsiianaa
33. The Board Rules and Regulations provide that test
scores are confidential by reason of public policy.
Rule 1.11). public policy. (PX2, Board
34. The testimony concerning whether the Board would
have provided test scores to the City had the City requested was
inconclusive. The Court concludes that plaintiffs have not
demonstrated that the test scores were available to the City from
the Board. (Arrington dep. 111, 113).
35. Plaintiffs contend that the City could have acquired
rank and test score information from “informal lists”, reflect-
ing rank and test score information, created by individual
promotional candidates and frequently posted, as a matter of
— interest, at the stations (Tr. 851). The lists do not in-
clude descriptive statistics, such as stan -
ment (Tr. 119, 851, 1024-25). =f ancora gaan
36. The informal lists are created through a “grapevine”
process of calling various test-takers to ascertain their rank (and
sometimes score) as well as the rank of any other individuals of
which they may claim knowledge (Tr. 1024).
37. The informal lists 2re rarely compl
plete beyond the
first ten (10) to fifteen (15) positions (if complete to that point),
and reflect the scores of between zero and fifty (50%) percent
of the individuals listed. (Tr. 851, 1025).
38. The City considers efforts by the City employees to
1g score and ranking data unreliable. (Graham 1985 dep.
45a
39. Due to problems with clerical errors, the City does
not consider the Personnel Board card sent to examinees to be
a reliable source of score and rank information. (Graham 1985
dep. 224).
40. The lists are generally, though not entirely, accurate
with respect to the rank of the top ten (10) to fifteen (15) in-
dividuals, where listed, but are not as accurate with regard to
the test scores listed, if any. (See exhibits 162-165; stipula-
tion).
41. The Court concludes that the informal lists do not
provide sufficiently complete or reliable information to enable
the City to make any meaningful judgment regarding relative
qualifications of promotional candidates.
42. The plaintiffs also contend that the City could have
acquired test score information from the Board Consent Decree
reports filed with the Court. Comparison of the filing dates of
the Board’s report with dates of promotions reveals that
Woodrow Laster was the only black whose score could have
been ascertained prior to his promotion and the Court had pre-
viously determined that Mr. Laster was promotable at a hear-
ing on April 23, 1982. Moreover, there is no evidence
suggesting that these reports were contemplated as a source of
test score data and were not, under the terms of the Personnel
Board Consent Decree, required to be furnished to the City.
43. Dr. Bernard Siskin is an expert qualified to testify
concerning statistics. (Tr. 753-54).
44. Dr. Siskin analyzed the probability that the dif-
ference between two individuals’ test scores would be as ob-
served if their true test scores were a given number of standard
errors of measurement (“SEMs”) apart. (Tr. 756-57; 762-68).
45. Dr. Siskin’s analysis does not show whether the Per-
sonnel Board’s examinations are job related or valid. (Tr. 773-
74; 793-94).
46. Dr. Siskin compared the test scores of selected (i.e.
promoted) blacks with the test scores of certain non-selected
(i.e. non-promoted) whites. He used test scores from the 1982,
litte, pean
46a
1983 and 1984 fire lieutenant’
s 9 nts
Captain's exam. (Tr. 755; PX 2: OE | omy for the 1983 fire
47. Dr. Siskin concluded
that, at the .05 |
nificance, several non-selected white’s true test thoons sth
or more SEMs apart. (Tr. 768-71; PX 101). —"
48. The SEMs used by Dr. Siskin for the inati
, ex
pede oe had been calculated by the Suissniel thiaad en
a 7 ae counsel for the United States. (Tr. 771-778:
i 4 Ms had been calculated based on the Kuder-
wo reliability coefficient (“KR20”). (Tr. 787). He
eage €xamination scores, (Tr. 754-55), and, given the data
te . converted scores could not be used. (Tr 772)
ever, he testified that he did not believe that there would
be much difference in th
e results
rather than raw scores. (Tr. 773 : converted scores were used
49. Ifthe City had had all
> Cit of the converted
ey a it could calculate the mdi og
, . 781). The reliability coefficient which he used for
raw scores could reasonab]
onmmabeman te na used to calculate the SEMs for
50. To calculate the SEMs, the City would have had to
have the reliability coeffici
test being considered. tr. 75), the standard deviation of the
51. To calculate the stand iati
ard deviation, the Ci
have had to have all of the examinees’ scores ona — la st
amination. (Tr. 785-86). a
52.
Se. hie = — the KR20, the reliability coefficient
lemma reco Bes be etc ~~ had to have the number
O each question h
786). Without the . aes enem. (Tr.
pass/fail rates for any of th
KR20 could not have been determined. (rr. 18688). the
53. Dr. Siskin’s analysis could not h
53. ave
verte. A. the ei information available to the ce pend
ye aus examinee’s ranks and scores reflected in
agp a “ PX 164 and PX 165. (Tr. 788-90). There
a en that any of the informal lists contained enough
0 conduct Dr. Siskin’s analysis. ies
47a
54. The Court concludes that the City had no source
from which it could reliably obtain sufficient information to
consider in any manner on the rank or test score of a candidate
on a promotional exam in comparing competing candidates.
The City officials making (or recommending) candidates for
promotions did not on any occasion have sufficient reliable in-
formation about the test scores and about the significance of the
differences in these scores to have been justified in not promot-
ing a minority candidate. See, /n Re: Birmingham Reverse Dis-
crimination Employment Litigation, 37 Fair Empl. Prac. Cas.
1, 7(N.D. Ala. 1985).
BFRS Seniority
55. Plaintiffs appear to rely on seniority as a proxy of
sorts for experience gained in the BFRS. It is basically agreed
that experience as a firefighter with the BFRS is valuable in
terms of performing the duties of lieutenant or captain.
However, the amount of experience necessary or desirable, a
manner in which to quantify experience for purposes of com-
paring the experience of the individuals, and the relationship of
years of service to experience gained appears to be largely mat-
ters of personal opinion.
56. Several witnesses, including a Battalion Chief, take
the view that the quality and quantity of experience gained in a
given amount of time varies widely depending on the activity
of a station and the general nature of the emergencies in its ter-
ritory (e.g. industrial or commercial firefighting versus
residential firefighting) (Tr. 79, 103-04). Other witnesses, in-
cluding a Battalion Chief, testified that the station assignment
is of little significance. (Tr. 178). Yet other witnesses fall be-
tween the two extremes, agreeing that station assignment can
make a difference, but assigning varying degrees of sig-
nificance to that difference.
57. No witness was able to state a manner in which the
difference in experience could be meaningfully measured or
quantified in any fashion (Tr. 103), much less one that would
reasonably measure the job relatedness of that criterion. To the
contrary, those questioned on the matter professed an inability
to quantify or compare experience. The Court thus finds it un-
necessary to adopt any opinion as to the degree to which ex-
——
48a
perience may vary, due to the Court’ i
: ourt’s find
— be measured or compared for seipanene
performance as lieutenant or captain.
58.
“i oumneae pepe clear that experience does vary to some
ion. Gate : to extent from station to sta
4 urt concludes that time i et Se coe
a reliable or uniform measure of experience. * in service is not
that experience
f predicting job
59. i i
Most importantly, there is no evidence demonstrat-
ing a relationship bet Lawt .
as an officer. P Detween BFRS seniority and job performance
60. Additionall
y, the fi
department until 1968 (PX 27,
additi
= ag . oo prior to the initiation of the Martin
ety Sh ; al 3). This underrepresentation has alread
ponds od nd : Court to have resulted from dlectimination
megan 3 n light of the obvious adverse impact on blacks
sence of any suggettion thes eotioene, mi saube + hoon
redicts j
the Court finds that seniority is not jaardieenee
sidered under the Ci é
whingasamneas ity Decree in selecting between black and
st black was not hired on
the
Tr. Bolin, 221), and only one
Highest Formal Station Assignment
61. Within the :
Ww ‘he general classificati
poet Positions exist. For example, ite Bil _ soni
prin lowest to highest are plugman, ba ae hen posi-
» “tend esi cee — driver (the driver is also Foner
» Tecognized by the Board in the f
orm
of 5% premium pay — .
dressed selidiie tite leadworker position will be ad-
* “[I}t could hardl
be y be contended that beca
jrser "i ey ae or better qualified oe
iscriminati
Prac. Cas. at 5n.!4. ta
longer city service an in-
. promotion.” In re: Bir-
Employment Litigation, 37 Fair Empl
49a
62. The general rule, which appears to be followed the
vast majority of the time, is that station positions are assigned
based on station or department seniority. (Tr. 89-90). While
there was testimony that the captain, who assigns positions, has
the discretion to appoint a less senior firefighter to a position
“above” a more senior firefighter (e.g. Tr. 290-91), that ap-
pears to occur very rarely, and then usually due only to the
preference of the senior firefighter not to take the higher posi-
tion.
63. The only case testified to in which a junior
firefighter was assigned (in this case on a temporary basis) a
station assignment above a more senior employee involved a
junior white and senior black. (Tr. 456).
64. While there was testimony that the leadworker posi-
tion provides valuable experience for the rank of lieutenant,
there was no testimony suggesting that serving in one of the
remaining positions, as opposed to another, had any bearing on
the qualifications of an individual to serve as lieutenant or cap-
tain. (Tr. 108-109). The only testimony in that regard was
from Battalion Chief Bolin, who stated that he “certainly
wouldn’t want to make a statement that a plugman wouldn’t be
eligible to be a lieutenant.” (Tr. 106). While each position car-
ries with it a specific responsibility upon art iving at a fire, the
evidence reflects that once these responsibilities are fulfilled,
every firefighter assists in any manner necessary or helpful at
the fire scene.
65. Most significantly, there is no evidence that the
specific position(s) held as firefighter are predictive of perfor-
mance as lieutenant or captain.
66. Because there is no evidence that position assign-
ment as a firefighter is predictive of performance as a lieutenant
or captain, and because position assignment is tainted by
reliance on seniority, the Court concludes that highest formal
station assignment held is not a permissible criterion on which
to base promotional decisions, particularly in light of the un-
derlying intent of the City Decree.
50a
Certification as Driver
67. The policy of the BFRS is to require that drivers and
assistant drivers be “certified” as qualified to drive an apparatus
by passing an “examination” of skills administered by Captain
Smith (Tr. 188) at the drills and training field (Tr. 189). The
BFRS prefers that anyone in a position which makes it likely
that he or she will need to fill in as driver also be certified,
though that is not always possible, and hence, not always the
case. (Tr. 878).
68. In order to take the driver’s test, an individual must
successfully acquire a letter from his captain to Captain Smith,
requesting that Smith administer the test and stating the
Captain’s belief that the individual is prepared for the test. (Tr.
878-79; Ex. 75). It is the obligation of the individual’s officer
to prepare him for the driver’s exam (Tr. 214, 222) who hence
bears partial responsibility for a firefighter’s test result (Tr.
215). One of the blacks testified that the reason why he was not
certified as a driver was that at his station only those one level
below the driver could take the driver test.
69. The driver’s exam is administered by Smith and in-
cludes the knowledge of the equipment and the apparatus, use
of that equipment, hydraulics, and a road test. (Tr. 188-191)
The individual is tested on the apparatus he usually rides. If he
does not ride an engine, he is tested on the engine at his station
as well (Tr. 191-92). A firefighter need pass the driver’s test
only once, regardless of whether he transfers to an apparatus
on which he has never been tested (Tr. 213).
70. The test is oral, rather than written (Tr. 192), and
there apparently exists no document reflecting the questions to
be asked (Tr. 209). Though the test in each case seems to be
fairly uniform and exhaustive, there are no guarantees of con-
sistency (see Tr. 193). The grading also appears to be flexible
(see, Tr. 210, 212).
71. The first black to pass the test was Leslie Garner,
who did so in 1972 (Tr. 215-16). Only 16 blacks have since
passed the driver’s test (Tr. 216-218).
Sla
72. Records of those passing the test are forwarded to
the Chief’s office; records of those failing are not. (Tr. 200-
201).
73. While Smith testified that the driver’s test is job re-
lated to the job of driving a fire apparatus (Tr. 219), he testified
only that the knowledge covered by the driver’s test was “use-
ful” to a fire lieutenant in the performance of his duties (Tr.
222).
74. The Court concludes that the right to take the test,
the test itself, and the scoring thereof, involve too much latitude
left to be exercised at the discretion of superior officers. This
makes the criterion of certification as driver the kind which has
been found to be particularly suspect as likely to be affected by
the biases of the superior. Moreover, there is no evidence on
which to base a finding that passage of the driver’s test is predic-
tive of performance as a lieutenant or captain. It is not a per-
missible criterion on which to base promotional decisions.
Months Served as Medic
75. A “medic” is a state licensed paramedic capable of
performing advanced life support procedures. The training of
a medic is extensive (Tr. 135-39), and in light of the fact that
60% (Tr. 140) of all the BFRS runs are for emergency medical
service, it certainly appears to be valuable experience for an
employee of the BFRS of any rank.
76. While there was testimony that being a medic was
beneficial to a Lieutenant, there was also evidence that it should
not be considered (Tr. 356), and there is no evidence suggest-
ing that whatever benefit it confers can be quantified. (Tr. 824-
25).
77. More significantly, there is no evidence showing
that qualifying as a medic is predictive of job performance as a
lieutenant or captain.
78. Moreover, the evidence reflects that blacks have
been excluded from the opportunity to achieve medic status, ex-
cept at their own time and expense, a burden not imposed on
many of the white medics. (Tr. 100-01). The medic program
was established in 1973. (Tr. 158). No black firefighters of
52a
the BFRS were in either of the first two medic classes attended
by employees of the BFRS (Tr. 161-162); the department paid
the tuition for that training and allowed the selected employees
to receive the training, in part, on company time (Tr. 163-64).
Witnesses have been able to name only a few black paramedics
out of 120 in the department as a whole. (See, Tr. 183).
Whether this was based on the intentional exclusion of blacks
from the medic program or, as is more likely, resulted from the
earlier exclusion of blacks from the department as a whole is
irrelevant. The fact remains that blacks as a group are substan-
tially underrepresented in the medic ranks, a status which is
likely to continue since the BFRS in 1982 stopped paying tui-
tion and allowing time off for paramedic training. (Tr. 165).
Reliance on medic status cannot be validated and is an imper-
missible criterion for comparing promotional qualifications.
(The Court notes that plaintiffs organized their criteria
with months served as medic/months served as leadworker as
one category and shifts served as acting officer as another. Be-
cause the evidence shows that the job of a medic is not com-
parable to the job of a leadworker, (Tr. 171), and further, that
the value of leadworker experience, if any, is due to a
leadworker’s service as acting, the Court has rearranged
plaintiffs’ categories to conform to the evidence.)
Months Served as Leadworker and Shifts as Acting Officer
79. Leadworker status is the highest position which can
be obtained by a firefighter in the BFRS. The position of lead-
worker carries with it responsibilities beyond those of other
firefighters. (Tr. 67-68) A leadworker assists his Lieutenant
in the performance of supervisory duties and can be called upon
to serve as acting officer in the absence of the regularly assigned
officer. (Tr. 67-68) An acting officer has the duties, respon-
sibilities and privileges of an officer.
80. The evidence reflects the leadworker position can
give a firefighter valuable experience for serving as an officer.
(Tr. 67-68)
81. The leadworker position is generally assigned on the
basis of station or BFRS seniority (usually station seniority).
(Tr. 91, 94, 102, 148).
53a
82. Assignment to leadworker is based on the discretion
of the captain. In cases when the most senior firefighter is not
promoted to leadworker, the captain chooses the leadworker
based on his subjective opinion of who is most qualified.
Criteria which are influenced by the subjective evaluations of
supervisors are, obviously, in this context suspect.
83. However, the evidence does not support a con-
clusion that the mere fact of service as leadworker or acting of-
ficer predicts successful job performance as an officer. (See,
Tr. 1021). While it is self-evident that leadworker and acting
officer experience is valuable, and the record so reflects, there
has been no testimony concluding that serving as leadworker or
acting officer will necessarily make an individual a good of-
ficer. To the contrary, Battalion Chief Wood notes that the
value of acting officer experience is determined by how well
the individual performs as an acting officer. (Tr. 177). The
mere fact of service does not reveal enough.
84. Additionally, as is the case with all criteria based
substantially on seniority, blacks have been barred from meet-
ing this proposed criterion. (Tr. 91). The testimony indicates
that only one black has ever served as leadworker.
85. Due to the clear adverse impact on blacks and the
absence of evidence that service as leadworker or acting officer
will successfully predict job performance, leadworker and ac-
ting officer status are not permissible criteria on which to base
promotional decisions.
Educational Pay Incentive
86. Pursuant to the Board rules, incentive pay is
awarded for certain educational accomplishments. An in-
dividual who obtains an AAS degree in Fire Science (offered at
Jefferson State Junior College) will receive a 5% pay increase.
(Tr. 964, 984). An additional 5% may be obtained if an in-
dividual earns a four year degree in certain, specified fields
(e.g., Business Administration). (Tr. 47).
87. The Fire Science Curriculum at Jefferson State con-
sists of approximately twenty-six (26) courses, thirteen (13) fire
related courses and thirteen (13) liberal arts courses. (Tr. 46).
54a
88. As with the other criteria heretofore discussed,
opinions as to the value of fire science course work cover a
broad range. A Fire Science degree was considered highly sig-
nificant by some witnesses, yet relatively unimportant to
others. Those who thought it should be considered in promo-
tional decisions were unable to assign a weight to its value rela-
tive to other criteria. Others thought it should nt be considered
at all in making promotional decisions.
_ 89. More significantly, there was no evidence that
lieutenants or captains with a Fire Science degree perform bet-
ter than lieutenants or captains without such a degree, or that a
Fire Science degree predicts to any demonstrable extent the per-
formance of an individual as an officer. Having a Fire Science
degree, hence, has not been shown to be a job related selection
criterion.
90. As to credit for non-fire-related degrees, there has
been little or no explanatory testimony that such a degree is re-
lated to the responsibilities of a fire officer. The Court finds
that any possible connection is tenuous at best and whether a
candidate has a liberal arts degree is not an appropriate measure
of comparison.
Other Firefighting Experience
Ot. The testimony reflects that firefighting experience
gained outside the BFRS may be helpful, but again may not.
(Tr. 358, 386). It would certainly appear to depend on the ex-
tent and complexity of the prior experience, factors not taken
into account by the United States. (See, Exhibits 139-159). It
appears that the BFRS’s extensive training subsumes all but ex-
tensive, sophisticated prior experience. (Tr. 748).
92. More importantly, there is no evidence demonstrat-
ing a relationship between outside firefighting experience and
performance as a lieutenant or captain. It is not a job related
selection criterion.
93. The Court finds that prior fire experience is not a
permissible criterion on which to base promotional decisions in
the Fire Department.
55a
Selection Procedure
94. The United States and plaintiffs have suggested that
the foregoing criteria should have been considered collectively
to compare promotional candidates. The City and Defendant-
Intervenors have responded, not unfairly, that the factors are a
“hodge-podge” of unvalidated criteria.
95. Irrespective of the value of any individual criterion
standing alone, the Court recognizes that there has been no tes-
timony explaining, or even suggesting, how each of the criteria
should or could have been weighed and evaluated against other
criteria. Those who testified on the subject were unable to sug-
gest an analysis; and the record reflects that each individual
questioned had a different notion of whether, and to what de-
gree, a particular factor was of significance or should be con-
sidered in making promotions.
96. While plaintiffs presented a great deal of evidence
suggesting that meeting certain criteria could be useful to an of-
ficer, this Court has heard not an iota of evidence that officers
who meet any or all of those criteria actually perform better as
officers than those who do not. Plaintiffs, in short, have not
presented evidence that their proposed criteria can be combined
to create a job related selection procedure, i.e., a method of
evaluating candidates which will accurately predict their future
performance as officers.
97. Therefore, the plaintiffs have not demonstrated that
any of the individual plaintiffs, were at the time of their promo-
tion demonstrably better qualified than any of the blacks cer-
tified from the same eligible register based on the results of a
job related selection procedure.
Engineering Department
98. John Duncan recommends candidates for promotion
in the Engineering Department. Because Duncan is personally
familiar with most of the people in the Engineering Department,
his promotional practice, both pre- and post-Decree, is to base
his recommendation for promotion on his assessment of the job
duties of the position in question, and his knowledge of the past
experience, job performance and training of the candidates for
promotion. (Duncan 1982 dep. 46-47; Duncan 1985 dep. 42).
56a
Hobson Riley, Assistant City Engineer, assists Duncan in
selecting candidates for promotion by interviewing the can-
didates and making recommendations to Duncan. (Duncan
1982 dep. 37). Of course, Duncan considered the requirements
of the City Decree (See, Duncan 1982 dep. 95).
99. In Duncan’s view, the Personnel Board determines
whether an individual is qualified; Duncan also evaluates the
individual and makes an independent determination. (Duncan
1982 dep. 83-84).
100. Neither Duncan nor Riley were aware of the test
score or rank of Lucious Thomas prior to his promotion. (Riley
dep. 99; Duncan 1982 dep. 104-05).
101. Riley and Duncan discussed the promotional list
and recommended Lucious Thomas for the position of civil en-
gineer based on the requirements of the City Decree. (Riley
dep. 38; Duncan 1982 dep. 91-92).
. 102. Lucious Thomas was qualified for the civil en-
gineer position (Duncan 1982 dep. 96; John Duncan 1985 dep.
98; Riley dep. 37-38).
103. The reasons Duncan considered Ware better
qualified than Lucious Thomas were: his higher rank on the
certification of eligibles, his seniority, the fact that his job per-
formance was slightly better (Duncan 1985 dep. 114) (though
he also testifies that they were “about equal” (id. 113)), and the
fact that Mr. Thomas was black. (id. 191-92).
104. Duncan considered the fact that Ware was white to
be a positive factor which would have supported the selection
of Ware. (Duncan 1985 dep. 191-192)
105. Though Jack Dunlap, a former supervisor of
Thomas, had certain criticisms of Thomas’s past performance
(Tr. 1162-63), Dunlap did not discuss these criticisms with
Duncan prior to Thomas’s promotion to civil engineer. (/d.
1176-77) Dunlap had also recommended Thomas for promo-
tion to Chief of Party based on his job performance (Tr. 1176).
106. Duncan believes that Lucious Thomas was not
demonstrably less qualified than Kenneth Ware (Duncan 1982
57a
Dep. 97; Duncan 1985 Dep. 97-98, 113-114), and the Court so
finds.
107. The promotion of Thomas was made pursuant to
(Tr. 1112, 1114, 1167), and was required by the City Decree
(1982 Duncan dep. 95, 97; 1985 Duncan Dep. 97-98, 113-114).
Involvement of City Administration and Promotions
108. Aside from the selection of department heads, the
Mayor of the City of Birmingham and the Mayor’s office have
very little involvement in making promotional recommenda-
tions in the Engineering and Fire Department. (Deposition of
Mayor Arrington at p. 104). Typically, the City’s Office of
Personnel reviews all personnel matters with the exception of
Department head promotions without the involvement of the
Mayor’s Office. (Arrington Dep. 104; Graham 1985 Dep.
192).
109. The Mayor’s view is that the certification of an in-
dividual for promotion by the Personnel Board creates a
presumption that the individual is qualified. (Deposition of
Richard Arrington at p. 94; pp. 38-39, 428-429, Gordon
Graham 1985 Deposition). The information provided to the
Citv by the Board relative to individuals’ qualifications is scan-
ty. The Mayor has never seen test scores of individuals cer-
tified as eligible for a position with the City of Birmingham —
even of those candidates for department head positions (Deposi-
tion of Richard Arrington at p. 111), despite the Mayor’s
having requested the Personnel Board to allow him to see all
the information that was available on candidates for the posi-
tion of Police Chief. (Deposition of Richard Arrington at 113).
110. The Court finds that the City’s ability to determine
relative qualifications is hindered further by the Personnel
Board policy against allowing the City to take further action
that the Personnel Board deems to be “additional testing”. The
Personnel Board’s refusal to allow the Mayor to establish a
three-member committee of engineers to interview candidates
for the position of City Engineer is an example of the limita-
tions imposed by the Board on the City in making employment
selections and promotions. (Deposition of Dr. Ed Lamonte at
p. 94, 96-97; deposition of Richard Arrington at p. 172).
58a
111. The Court finds further that the Mayor’s involve-
ment in reviewing promotions within the Fire Department and
the Engineering Department of the City of Birmingham is so
slight that it merits no further attention by this Court. (Deposi-
tion of Dr. Edward Lamonte at p. 27, p. 59; deposition of
Richard Arrington at p. 104, p. 356).
112. Gordon Graham, the Chief Personnel Officer of
the City of Birmingham, is responsible for directing the ac-
tivities of the Office of Personnel which includes supervision
of personnel records, affirmative action responsibilities,
benefits administration, administering the occupational safety
and health plan and labor relations. (p. 33 Gordon Graham
1982 Deposition). Pursuant to the Consent Decree, the Mayor
further designated Mr. Graham as the City’s Affirmative Ac-
tion Officer. (p. 141 Gordon Graham 1985 Deposition).
113. When the City rejects a certified candidate on the
basis that the individual is not qualified, the Personnel Board
recertifies the rejected candidate. (p. 391-394 Gordon Graham
1985 deposition).
114. The only factors department heads are required to
consider in making promotional recommendations are the in-
dividuals certified by the Personnel Board, the requirements of
the Consent Decree and the City’s preferential policy toward
City residents. (p. 196 Graham 1985 Deposition)
115. All applicants certified by the Personnel Board are
presumed qualified unless a candidate lacks some essential skill
that the Personnel Board did not test. (p. 428-429 Gordon
Graham 1985 deposition).
116. As Affirmative Action Officer of the City,
Mr. Graham is responsible for reviewing, prior to final selec-
tion, a department head’s written justification for failure to
select certified black or female applicants in jobs in which
blacks or females are underrepresented under the terms of the
Consent Decree. (Paragraph 3 Supplemental Affidavit of Gor-
don Graham, U.S. Exhibit 5 to Graham 1985 dep.).
117. The City has no formal promotional criteria.
Department heads have been instructed to recommend can-
59a
didates who in their judgment are qualified. (Graham 1985 dep.
423-24).
118. On occasion, the Office of Personnel has accepted
explanations of the failure to recommend a certified black or
female pursuant to a determination by the department head that
the female or black was less qualified. (Graham 1985 dep. 173-
75).
119. Ifadepartment fails to recommend a certified black
or female and the Consent Decree goals have not been met,
when the Office of Personnel receives the recommendation
from the department head he reviews the recommendation to
determine if there was sufficient written justification for the
failure to select a black or female. (Graham 1985 dep. 61-62,
100-101).
City Decree Interpretation
120. One purpose of the City Decree was to insure that
any disadvantages to blacks and women that may have resulted
from past discrimination against them are eliminated. City
Decree at 2.
121. One purpose of the City Decree was to avoid the
burdens and expense of litigation. City Decree at 2.
122. Paragraph 5 of the City Decree obligates the City
to adopt as a long term goal the employment of biacks and
women to each job classification in each department of the City
in percentages which approximate their respective percentages
in the civilian labor force of Jefferson County as defined by the
1970 Federal Census.
123. Paragraph 6 of the City Decree obligates the City
to establish and attempt to achieve an annual goal of making
probational appointments of blacks to vacancies in the position
of Fire Lieutenant at a rate of 25% or at the rate of black rep-
resentation among applicants, whichever is higher.
124. Paragraph 8 of the City Decree obligates the City
to promote at least one black to the next two Captain vacancies
in the Fire Department.
60a
125. The goals referred to above and set out in
paragraphs 5, 6 and 8 of the City Decree are expressly made
subject to the availability of qualified black applicants; the
aforementioned goals are not expressly made subject to the
availability of black candidates who are not demonstrably less
qualified than competing white candidates based upon the
results of a job related selection procedure.
126. The purpose of the aforementioned goals is to cor-
rect the effects of any underrepresentation of blacks and women
in the City’s work force.
127. Paragraph 10a ofthe City Decree obligates the City
to request the Personnel Board to certify selectively to the City
for appointment qualified blacks and females, whenever such
action is necessary to enable the City to meet the aforemen-
tioned goals.
128. Paragraph 3 of the City Decree provides that
“remedial actions and practices required by the terms of or per-
mitted to effectuate and carry out the purposes of the Decree
shall not be deemed discriminatory within the meaning of. . .
the provisions of 42 U.S.C. § 2000e-2(h), (j)”.
129. Paragraph 2 of the City Decree provides that noth-
ing in the City Decree shall be interpreted as requiring the City
to hire or promote a less qualified person in preference to a per-
son who is “demonstrably better qualified based upon the
results of a job related selection procedure”.
130. The purpose of paragraph 2 was to relieve the City
from liability under the Decree if, although otherwise required
by the Decree, it should reject a minority candidate because the
results of a job related selection procedure show that person to
be demonstrably less qualified.
131. The hiring and promotion by the City of less
qualified blacks in preference to competing white candidates
who are demonstrably better qualified based upon the results of
a job related selection procedure is permitted to effectuate and
carry out the purposes of the Decree.
132. The City Decree authorizes the City, in order to
meet the aforementioned goals, to hire and promote black can-
6la
didates who are certified as qualified by the Personnel Board,
even if such candidates are demonstrably less qualified than
competing white candidates based upon the results of a job re-
lated selection procedure.
133. The phrase “job related selection procedure”, as
used in paragraph 2 of the City Decree, means a selection pro-
cedure which is validated or capable of being validated.
134. The word “demonstrably”, used in paragraph 2 of
the City Decree, means both clearly and measurably.
135. A selection procedure which relies in whole or in
part on subjective criteria is not a job related selection proce-
dure within the meaning of paragraph 2 of the City Decree.
136. The use ofa selection procedure which has a com-
ponent that would perpetuate the effects of past discrimination
would be contrary to the express purposes of the City Decree;
such selection procedure is not a “job related selection proce-
dure” within the meaning of paragraph 2.
137. The City Decree does not obligate the City to com-
pare the relative qualifications of black and white candidates
for promotion prior to hiring or promoting blacks.
138. The City Decree does not obligate the City to adopt
a job related selection procedure.
139. The City Decree does not obligate the City to com-
pare scores achieved on promotional examinations by black and
white candidates prior to promoting blacks.
CONCLUSIONS OF LAW
140. The City Decree is lawful. It was approved by this
Court in United States v. Jefferson County, 28 Fair Empl. Prac.
Cas. (BNA) 1834 (N.D. Ala. 1981) and plaintiffs cannot col-
laterally attack the Decree’s validity. See Thaggard v. City of
Jackson, 687 F.2d 66 (Sth Cir. 1982); Dennison v. Los Angeles
Department of Water & Power, 658 F.2d 694 (9th Cir. 1981);
Austin v. County of DeKalb, 572 F. Supp. 479 (N.D. Ga. 1983).
[Join Pretrial Memorandum of Defendants, the City of Birming-
ham, Richard Arrington, Jr., and Defendant-Intervenors,
“Pretrial Mem.,” at 65-68.] The United States has conceded it
62a
is not attacking the Decree’s lawfulness and as a signatory it
cannot. City Decree 43. The only avenue of attack open to
the private plaintiffs is to show that challenged action was not
taken pursuant to the Decree. United States v. Jefferson Coun-
ty, 720 F.2d 1511, 1518 (11th Cir. 1983). Furthermore, under
all the relevant case law of the Eleventh Circuit and the Supreme
Court, it is a proper remedial device, designed to overcome the
effects of prior, illegal discrimination by the City of Birming-
ham. United States v. Jefferson County, 28 Fair Emp. Prac.
Cas. (BNA) 1834 (N.D. Ala. 1981). See United Steelworkers
v. Weber, 443 U.S. 193 (1979); Palmer v. District Board of
Trustees, 748 F.2d 595 (11th Cir. 1984); United States v. City
of Alexandria, 614 F.2d 1358 (Sth Cir. 1980); Paradise v. Pres-
cott, 767 F.2d 1514 (11th Cir. 1985). [Pretrial Mem. at 69-84]
141. The burden of proof is on plaintiffs. Once defen-
dants show that promotions were made pursuant to a consent
decree, the burden shifts to the plaintiffs to prove by a
preponderance of the evidence either that the promotions were
not undertaken to meet the goals of the decree or that the decree
is invalid. Palmer v. District Board; Setser v. Novack Invest-
ment Co., 657 F.2d 962 (8th Cir. 1981); Texas Department of
Community Affairs v. Burdine, 450 U.S. 248 (1981). Evidence
that race was considered in an affirmative action context is not
the equivalent of the finding of direct discrimination that shifts
the burden of persuasion to the defendants. Doughtery v.
Barry, 607 F. Supp. 1271 (D.D.C. 1985).
142. Inlight ofthe City Decree, plaintiffs cannot prevail
if they do not establish that the City acted with unlawful dis-
criminatory intent. That an action was taken pursuant to a valid
affirmative action plan or consent decree is proof that it was not
taken with the requisite discriminatory intent. United States v.
Jefferson County, 720 F.2d at 1518; Palmer v. District Board,
748 F.2d at 601. [Pretrial Mem. at 22-25.]
143. “Job related selection procedure,” as the term is
used in paragraph two of the Decree, refers to a validated
63a
employee selection procedure.** See Blake v. City of Los An-
geles, 595 F.2d 1367 (9th Cir. 1979); Craig v. County of Los
Angeles, 626 F.2d 659 (9th Cir. 1980); United States v. Geor-
gia Power Co., 474 F.2d 906 (Sth Cir. 1973). [Pretrial Mem.
at 30-37.}
144. “Any attempt to assess the relative qualifications
of two individuals on the basis of their test scores is a risky
process, and at a minimum requires knov..cdge of the mag-
nitude of the difference in their scures if not also the sig-
nificance of that difference given the characteristics of the
measuring device. The need for such information under
paragraph 2 of the consent decree is highlighted by the language
of that paragraph relieving the city from its minority employ-
ment goals only if such minority applicants are ‘demonstrably
less qualified.***
145. The criteria upon which plaintiffs are relying to
prove comparative qualifications have not been shown to be
valid; furthermore, they are the kind of criteria that have been
viewed suspiciously by courts because of their subjectivity and
tendency to perpetuate the effects of past discrimination. See
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); Miles v.
M.N.C. Corp., 750 F.2d 867 (11th Cir. 1985); Walker v. Jef-
** Indeed, more than three years ago and only one year after entry of the
City Decree, Mr. Fitzpatrick, counsel for the private plaintiffs, interpreted
paragraph two to require a “validated” procedure:
“Whether the City uses [statistics pertaining to test
scores] in making their decisions or not, we don’t claim is
relevant to the question of whether or not in fact one per-
son possesses superior job related qualifications in ac-
cordance with a validating (sic) procedure and that is our
interpretation and understanding of paragraph 2.” (Em-
phasis added.)
B.A.C.E. v. Arrington, CV 82-P-1852-S, T.R.O. Hearing on September 21,
1982, Transcript at 49.
*** Of the common meanings of the word “demonstrably”, the ones most
suitable in this context are “obviously” or “clearly”. In re: Birmingham
Employment Litigation, 37 Fair Empl. Prac. Cas. 1, 6-7 (N.D. Ala. 1985).
64a
ferson County Home, 726 F.2d 1554 (11th Cir. 1984); Ensley
Branch, NAACP v. Seibels, 616 F.2d 812 (Sth Cir. 1980).
{Pretrial Mem. at 37-46] Any selection procedure which util-
izes subjective criteria or length of service — or other criteria
which have been tainted by subjectivity or consideration of
length of service — cannot be reconciled with the City Decree,
which was expressly intended to ensure an end to discrimina-
tion against blacks, and to remedy any disadvantage to blacks
resulting from past discrimination.
146. The hodge-podge of “criteria” proposed by plain-
tiffs do not constitute a selection procedure. No formula has
been offered, let alone proven valid, to assess the relative im-
portance of the “criteria” offered by the plaintiffs. The overall
approach is wholly subjective and is as invalid as its individual
components. [Pretrial Mem. at 46-47]
147. Paragraph two of the Decree does not require the
City to develop or use a job related selection procedure. It gives
the City a limited option and limited defense should the City
fail to meet the Decree’s goals. This conclusion is compelled
by the Decree’s language and purpose, and is supported by the
pre-Decree practices of the City and the Personnel Board.
[Pretrial Mem. at 47-57.]
148. Plaintiffs have not established that any of the white
plaintiffs are demonstrably better qualified than any of the black
promotees based on the results of a valid, job related selection
procedure. The failure of plaintiffs to identify a selection pro-
cedure, let alone one that is valid and job related, compels that
conclusion.
149. The City Decree and the affirmative action plan for
the promotion of blacks it created, clearly contemplate the
promotion of blacks who are demonstrably less qualified than
competing whites. This conclusion is compelled by the word-
ing and purposes of the Decree. United States v. Jefferson
County, 28 Fair Emp. Prac. Cas. (BNA) 1834 (N.D. Ala.
1981). The 1981 Statements of the parties to the Decree and
the proceedings at the Fairness Hearing make clear that was also
the contemporaneous understanding of the parties. United
States v. Jefferson County, CA-75-P-0666-S, Fairness Hearing
on August 2, 1981, Transcript at63. [Pretrial Mem. at 8-21.]
65a
150. The City Decree entered by this Court, immunizes
the City from liability for actions taken pursuant to it. See City
Decree, 4 3. United States v. Jefferson County, 720 F.2d
1511 (11th Cir. 1983), recognizes that proposition. Ifthere had
been any doubt about that after Jefferson County, the Eleventh
Circuit’s subsequent decision in Palmer v. District Board,
made clear that an action taken pursuant to a consent decree,
not just one absolutely required by it, is not an act of discrimina-
tion under Title VII. [Defendants’ Memorandum Addressed to
the Burden of Proof and the “Mandated” Language in Jefferson
County, “Burden of Proof Mem.,” at 21-30.]
151. Race-conscious actions taken by an employer pur-
suant to a valid affirmative action plan are legal. United States
v. Jefferson County, 720 F.2d 1511, 1518 (11th Cir. 1983); Pal-
mer v. District Board of Trustees, 748 F.2d 595, 601 (11th Cir.
1984). [Pretrial Mem. at 22-25.]
152. The United States has consistently taken positions
in this litigation inconsistent with positions it pressed so
vigorously in the litigation leading up to this Consent Decree.
It has repeatedly breached its obligations to uphold the Decree
and this Court’s instructions, Jn Re: Birmingham Employment
Litigation, 37 Fair Emp. Prac. Cas. 1, 8 (1985), that it act in
accord with its obligations under the Decree. Its actions in
these proceedings have been tantamount to an attack on the
Decree’s validity.
Subsidiary Conclusions of Law
153. Information or opinions not known to the decision-
maker are inadmissible as irrelevant.
154. Evidence of prior discrimination by the City of Bir-
mingham is admissible to establish the factual basis for the
legality of the City Decree, to show that seniority based criteria
are subject as a result of prior underrepresentation, and that
subjective criteria for evaluating promotions may be con-
templated by the vestiges of such discrimination or the attitudes
of those hired during such period.
155. Selection criteria which incorporate seniority or
which are based on the subjective discretion or opinions of su-
66a
pervisors may not be considered in comparing black and white
candidates under paragraph two of the City Decree.
Respectfully Submitted,
67a
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
/s/_ Robert D. Joffe /s/_ James K. Baker
Robert D. Joffe James K. Baker
George Carroll Whipple, III City Attorney
Roy E. Hoffinger
Alden L. Atkins
Attorneys for
Defendant-Intervenors /s/ James P. Alexander
James P. Alexander
Robert K. Spotswood
Eldridge Lacy
Richard H. Walston
Greg Hawley
Attorneys for Defendants
OF COUNSEL: The City of Birmingham and
Rich
CRAVATH, SWAINE & MOORE ichard Arrington, Jr
One Chase Manhattan Plaza
New York, New York 10005
(212) 422-3000
BRADLEY, ARANT, ROSE & WHITE
1400 Park Place Tower
Birmingham, Alabama 35203
(205) 252-4500
In re:
BIRMINGHAM REVERSE CIVIL ACTION NO.
DISCRIMINATION CV 84-P-0903-S
EMPLOYMENT LITIGATION
ORDER AND PARTIAL FINAL JUDGMENT
1. Inaccord with the findings of fact and conclusions of
law dictated and adopted in open court on December 20, 1985,
the Court finds for the defendants and against the plaintiffs on
the claims described in paragraphs 2 through 5, below.
2. The claims of plaintiffs Robert K. Wilks, Ronnie J.
Chambers, Carlice E. Payne, John E. Garvich, Jr., Robert
Bruce Millsap, James W. Henson, Howard E. Pope and Char-
les E. Carlin (originally brought in CV-83-P-2116-S) are DIS-
MISSED with prejudice.
3. The claims of plaintiffs Floyd E. Click, James D.
Morgan, Joel Alan Day, Gene E. Northingtcn, Vincent Joseph
Vella, and Lane L. Denard (originally brought in CV-82-P-850-
S) are DISMISSED with prejudice.
4. Theclaims of plaintiffs Kenneth O. Ware and Birmin-
gham Association of City employees (originally brought in CV-
82-P-1852-S) are DISMISSED with prejudice.
5. The claims of plaintiff-intervenor United States of
America, as originally brought in the Complaints in Interven-
tion involving the City of Birmingham Fire and Rescue Service
and the City of Birmingham Engineering Department (filed on
Jan. 14, 1985 and May 17, 1985), are DISMISSED with
prejudice.
6. Court costs are taxed against the private plaintiffs and
the United States as the Court may subsequently allocate.
68a
Defendants and Defendant-Intervenors are ordered to file their
Bill of Costs by January 21, 1986.
7. All claims for attorneys fees in these cases under 42
U.S.C. § 1988 and Title VII of the Civil Rights Act of 1964,
as amended, by the defendants and defendant-intervenors are
DENIED.
8. This judgment does not affect the pending
counterclaims against the United States in Civil Action
Nos. CV-83-P-2116-S (Wilks); CV-82-P-850-S (Bennett); and
CV-82-P-1852-S (BACE). Consistent with 28 U.S.C.
§§ 2412(d)(1)(B) and 2412(d)(2)(G), this judgment does not af-
fect the rights of the defendants to seek an award of costs and
attorneys’ fees against the United States under the Equal Ac-
cess To Justice Act, 28 U.S.C. § 2412(d), as amended
August 5, 1985, Public Law 99-80, §§ 2, 4-7, 99 Stat. 184-87,
upon entry of a judgment in these cases that is final and not ap-
pealable.
9. Pursuant to Rule 54(b), Fed. R. Civ. P., the Court
determines that there is no just reason for delay, and expressly
directs that judgment be entered with respect to the claims and
parties described in paragraphs 2, 3, 4, 5, 6and 7 of this Order.
ni DONE and ORDERED on this the 23rd day of December,
1985.
/s/ Sam C. Pointer, Jr.
UNITED STATES DISTRICT JUDGE
69a
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
In re:
BIRMINGHAM REVERSE CIVIL ACTION NO.
DISCRIMINATION CV 84-P-0903-S
EMPLOYMENT LITIGATION
PLAINTIFFS’ AND UNITED STATES’ MOTION
TO AMEND JUDGMENT
Pursuant to Rule 59, Fed.R.Civ.P., plaintiffs and the
United States move the Court to amend the judgment entered
on December 26, 1985 in the following respects:
I. Additional Proposed Findings
As an aid to the appellate courts in resolving some of the
issues which all parties naturally expect to be raised, movants
request the following additional findings:
1. With the possible exception of Albert Isaac, the City
has not identified any of the black promotees as individual vic-
tims of past discrimination. Promotee Albert Isaac was a
recipient of backpay pursuant to the City Decree. Nor has any
evidence been submitted indicating in fact that any other black
promotee is an individual victim of past discrimination.
2. In the course of the promotional process, the City
never considered or compared the qualifications of competing
candidates for promotion in the BFRS (outside of the fact of
certification from the Board).
3. Each of the plaintiffs is qualified for the promotion
he claims was illegally denied to him.
4. But for their race, each of the plaintiffs would have
been promoted to the position which he claims was illegally
denied to him.
70a
5. Had each plaintiff been black, he would have been
promoted to the position which he claims was illegally denied
to him.
6. None of the individual plaintiffs (nor their privies)
are parties to the City Decree or the Board Decree.
7. But for the Board Decree and City Decree, none of
the black promotees would have been certified for the promo-
tions they ultimately received. (Miriam Hall depo.)
8. The certification of each of the black promotees was
not required, permitted, or authorized by the Board’s Enabling
Act. (Miriam Hall depo.)
9. Richard Arrington, Jr. is the first black mayor of the
City of Birmingham. There is strong pressure within the City’s
governmental structure to increase the percentage of black
employees in promotional positions. Arrington is the direct su-
pervisor of BFRS Chief Gallant and City Engineer Duncan. A
majority of the citizens of Birmingham are black. Since his
tenure as a City Councilman, Mayor Arrington has been an ad-
vocate of preferential treatment for blacks in City employment
and the awarding of City contracts. (Arrington depo.)
10. The City does not use a job-related selection
procedure in evaluating the qualifications of certified can-
didates or in comparing candidates’ qualifications. The City
has made no effort to develop or ascertain the cost of such a
procedure. (Graham and Gallant depos.) |
11. Race was a significant factor in the decision of the
City to promote each of the black promotees. (Gallant, Laugh-
lin, and Duncan depos. and Admissions)
12. The City has acknowledged its use of race in the
promotional process.
13. The City’s use of race in the promotional process
has had a disproportionate impact on whites seeking promotion
in the BFRS and to the position of Civil Engineer. (See PX 23
and Registers).
—
Tila
14. The City has not proven that any of the black
promotees are not demonstrably less qualified than any of the
passed-over whites according to the results of a job-related
selection procedure.
15. The City made no judgment during the promotional
process about the relative qualifications of the certified black
and white BFRS promotional candidates. (Gallant and Laugh-
lin depos.)
16. On the occasions when blacks were promoted, the
passed-over whites were not actively considered for the promo-
tional jobs awarded to the certified blacks. (Laughlin depo.)
17. Atthe time the black promotees were promoted, the
City did not determine that each black promotee was not
demonstrably less qualified than any passed-over white.
18. Each of the passed-over whites had an expectation
of promotion based on test scores and seniority.
19. In September 1981, 9.4% of the individuals in the
classification of fire fighter were black. (DX 2218).
20. In March 1982, 10.54% of the individuals in the
classification of fire fighter were black. (DX 2218).
21. In June 1983, 12.64% of the individuals in the clas-
sification of fire fighter were black. (DX 2218).
22. In March 1985, 12.98% of the persons in the clas-
sification of fire fighter were black.
II. Changes to Findings Proposed By Defendants
This is not intended to constitute an exhaustive analysis
of the findings submitted by the defendants. The paragraphs
are numbered in accord with the number of the proposed find-
ing of the defendants.
10. The individual plaintiffs have never claimed that
“all blacks promoted in the Engineering Department” are
demonstrably less qualified. We suggest the words “and the
Engineering Department” be struck and the words “and to the
classification of Civil Engineer” be inserted after “BFRS”.
72a
13. There is no evidence in the record of this trial that
“during the 1950’s there was a period of time where blacks were
not allowed to take the firefighter . . .” test. Mr. Pope, who is
credited with submitting that evidence, testified he did not know
that was a fact, but had heard that before.
15. It is incorrect to state that this finding is “uncon-
tested.” Movants suggest the words “race and sex” be sub-
stituted for “goals of the City Decree”.
17. The words “as appropriate under the City Decree”
are not clear.
19. Movants request these words be added to this find-
ing: “At least one other City department head (the Police Chief)
does not assume all certified promotional candidates are
qualified and has instituted a Promotional Review Board which
is expected to make an independent assessment of qualifica-
tions.”
30. Movants suggest the following addition: “Test-
takers receive a card from the Board with their rank and final
score. Test-takers are not prohibited from revealing that infor-
mation and, in fact, routinely reveal test results to their peers.”
34. Add: “The City has never requested testing infor-
mation from the Board.”
35. Add: “BFRS Battalion Chiefs make daily rounds at
each station, and sometimes review posted ‘informal lists’. In-
formation contained on the informal lists is sometimes shared
with Chief Gallant and Chief Laughlin on an informal basis. :
37. Add: “Information concerning the scores and ranks
of persons ranked below #15 is sometimes contained on infor-
mal lists. The ranks of some of the black promotees were in-
cluded on some informal lists received as exhibits.”
38. Change “The City” to “The City Personnel Direc-
tor/Affirmative Action Officer.”
39. Change “the City” to “The City Personnel Direc-
tor/Affirmative Action Officer”. Add: “No evidence of any
73a
clerical errors in the preparation of the Personnel Board card
was submitted.”
42. Add: “In addition to Woodrow Laster, the test
score information concerning the 1984 promotional examina-
tion was available at the time Albert Isaac, Eugene Baldwin,
Jackie Barton, Calvin Echols and Benjamin Garrett were
promoted.” (By comparing the certification with the Register
tendered in the Compliance Report, it would be a simple process
to ascertain the scores and ranks of these individuals.)
47. Add: “Dr. Siskin testified that, at the .05 level of
significance, any difference of at least 2 SEMs in observed test
scores is highly statistically significant.”
94. Add: “The United States’ proposed use of these
criteria would not result in adverse impact against certified
blacks.”
112. Add: “Graham reviews all departmental promo-
tional recommendations, affirmative action forms and affirm-
ative action plans. The Affirmative Action Officer signs the
Mayor’s name to departmental promotional recommendations.
Graham’s office reviews all communications and other transac-
tions between City department heads and the Personnel Board.
113. This is obviously not always true. For example,
the City’s rejection of some Police Chief candidates was ac-
cepted by the Board.
128. This is an incorrect quotation of paragraph 3. Add
a comma after “terms of” and modify this clause as follows:
“purposes of, this Consent Decree.”
Respectfully submitted,
/s/_ Raymond P. Fitzpatrick, Jr.
RAYMOND P. FITZPATRICK, JR.
One of the Attorneys for the Plaintiffs
OF COUNSEL:
74a
FITZPATRICK & JORDAN
1009 Park Place Tower
Birmingham, AL 35203
Telephone 205/252-4660
/s/_ Mary E. Mann
75a
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MARY E. MANN
Special Litigation Counsel
United States Department
of Justice
Civil Rights Division
Room 5533
Washington, DC 20530
(202) 633-3778
SOUTHERN DIVISION
In re:
BIRMINGHAM REVERSE CIVIL ACTION NO.
DISCRIMINATION CV 84-P-0903-S
EMPLOYMENT LITIGATION
ORDER
Upon consideration of the Motion to Amend filed by the
plaintiffs and the United States on December 26, 1985, it is OR-
DERED as follows:
A. Thecourt adopts as additional findings of fact the foi-
lowing numbered paragraphs listed in part I (Additional
Proposed Findings) of said motion: #1, #2, #3, #4, #5, #6, #7,
#10, #15, #19, #20, #21, #22.
B. The court amends its findings of fact as previously
adopted from the proposed findings of fact submitted by the
defendants to: read as follows (substituted or added language
being underlined):
10. The individual plaintiffs contend that all
blacks promoted in the BFRS and to the classification of
Civil Engineer since the entry of the City decree are
demonstrably less qualified than the white plaintiffs; the
United States contends that only some of the white plain-
tiffs are demonstrably better qualified than some of the
black promotees. Additionally, both the individual plain-
tiffs and the United States contend that some of the black
promotees were unqualified for promotion at the time of
their promotion.
15. The City in its Engineering Department and
the BFRS has followed the same general promotional prac-
tices since entry of the City Decree as were in place before
the entry of the City Decree, the only material difference
being that the City now considers the goals of the City
Decree in making promotional decisions.
76a
32. The Board Rules and Regulations provide that
test scores are confidential by reason of public policy.
Test-takers, however, receive a card from the Board in-
dicating their rank and final composite scr re; and many
test-takers reveal such information to their peers.
34. The testimony concerning whether the Board
would have provided test scores to the City has the City
requested them was inconclusive. Although the City never
requested testing information from the Board, the Court
concludes that the test scores were not available to the
City from the Board.
. 36. The informal lists are created through a
grapevine” process of calling various test-takers to as-
certain their rank (and sometimes score) as well as the
rank of any other individuals of which they may claim
knowledge. BFRS Battalion Chiefs make daily rounds at
each station and sometimes look at these informal lists.
Some of the information contained on the informal lists
has occasionally been shared with Chief Gallant or Chief
Laughlin on an informal basis.
37. The informal lists are rarely complete beyond
the first ten (10) to fifteen (15) positions iT comatane to
that point), and reflect the scores of between zero and fifty
percent (50%) of the individuals listed. Information con-
cerning the rank (and perhaps the score) of persons
ranked below position #15 is sometimes contained on the
lists, and some of the informal lists received as exhibits
reflected the rank of some of the black promotees.
113. When the City rejects a certified candidate on
the basis that the individual is not qualified, the Person-
nel Board ordinarily recertifies the rejected candidate.
C. In other respects, the motion of the plaintiffs and the
United States is denied.
This the 6th day of January, 1986.
/s/__ Sam C. Pointer, Jr.
United States District Judge
—
77a
COMBINED
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
THE COURT: The Court will now dictate its findings of
fact and conclusions of law. These findings of fact are based
upon the evidence that has been presented over the past four and
a half days, consisting of the testimony of varicus witnesses and
the reception into evidence of voluminous documents.
I state at the outset that the conclusion that I reach is to be
favorable to the defendants.
Basically the issue, the legal issue, which, as I view it, is
determinative of this case is one that was stated in an order
entered back in February of this year.
The conclusions there expressed either explicitly or im-
plicitly were that under appropriate circumstances, a valid con-
sent decree appropriately limited can be the basis for a defense
against a charge of discrimination, even in the situation in
which it is clear that the defendant to the litigation did act ina
racially conscious manner.
In that February order, it was my view as expressed then,
that if the City of Birmingham made promotions of blacks to
positions as fire lieutenant, fire captain and civil engineer, be-
cause the City believed it was required to do so by the consent
decree, and if in fact the City was required to do so by the Con-
sent Decree, then they would not be guilty of racial discrimina-
tion, either under Title 7, Section 1981, 1983 or the 14th
Amendment. That remains my conclusion given the state cf the
law as I understand it.
Counsel have amply noted that the law is not clear,
however, in this regard. And that this decision is being made
at a time when there is uncertainty as to the state of the law.
In the effort to determine what the state of the law is, as
best I can determine it, I have considered no single decision.
As I evaluate the decisions particularly out of the Supreme
Court, it becomes apparent to me that if you look at any one
given decision, you can come up with a conclusion as to what
78a
the law is which is different from the decision you reach if you
look at some other decision. And is required as a result some-
how attempting to synthesize what I view to be a development
in the law as yet not fully and finally defined.
Much argument has been made as this case came to trial
about the burden of proof. I declined in advance of trial to rule
definitively on certain hypothetical issues, because I wish to see
the state of the evidence as it was presented. I am persuaded
that at least in that respect my earlier decision was proper. Be-
cause it has become clear to me from the evidence in this case
that it is not necessary for the Court to determine whether some
action apparently permitted by the consent decree but not man-
dated by it would be protected against claims of discrimination.
In this case, under the evidence as presented here, I find
that even if the burden of proof be placed on the defendants,
they have carried that proof and that burden of establishing that
the promotions of the black individuals in this case were in fact
required by the terms of the consent decree.
I reach that decision on the basis that the language that has
become the focus of these proceedings, namely language in
paragraph two of the consent decree, would require or would
allow an exception to the goals otherwise stated for the City in
other provisions of the decree only if the decision-makers at the
time of making the decision had information demonstrating that
a black, although qualified, was demonstrably less qualified
than a white on the basis of a job-related selection device.
. During the presentation of evidence here, the only pos-
sible job-related selection device that has been presented is that
of the test that the Personnel Board uses. Many other criterion
have been selected, none have been in any way indicated or
demonstrated as being job related. Job related in this sense
must be addressed in the context of the regulations under
Title 7, which were in force at the time the consent decree was
adopted, and indeed continued in force.
In this particular case, the tests used by the Personnel
Board have simply been assumed to be valid, that is, job re-
lated. However, the evidence demonstrates that the decision-
makers on the part of the City did not have the information
79a
available to them on which they could have made any kind of
judgment that the blacks scoring lower on those exams scored
sufficiently lower to be demonstrably less qualified than the
whites who were higher ranked.
I had anticipated until this morning that at the conclusion
of the case and while still attending to the case I would attempt
at the conclusion of the case to dictate findings of fact in my
normal manner. That is, I had anticipated that I would simply
from my own memory and recollection go through the various
items of evidence and make the appropriate firdings with
respect to the variety of issues and persons involved.
I am varying from that today in doing something that I
have done only once before that I can recall. The reason for
doing so is that I have received this morning some findings of
fact proposed by the defendants that I find to be ninety-eight
percent objective, fair and the same findings I would make.
The appellate decisions have cautioned trial courts against
simply adopting proposed findings submitted by parties. I am
aware of that admonition. I have, however, gone through these
proposed findings and will in just a few minutes indicate cer-
tain changes that I would make in them. To the extent I do not
make changes, I adopt them as my own individual findings.
This is both as to findings of fact and conclusions of law. There
are in addition a few facts not contained in the findings of fact
proposed by the defendants that I will recite as findings of fact
by the Court.
First, I will attend to several matters that were not covered
by the defendants’ proposed findings of fact. Each of the plain-
tiffs who complains in this litigation against the failure to be
appointed as a fire lieutenant or fire captain or civil engineer or
who claims that he was delayed in such an appointment was ad-
versely affected because he was white. Those persons in the
absence of the consent decree and in the absence of any affirm-
ative action plan adopted by the City as mandated by the decree
would, as I interpret the evidence, have been appointed to the
positions they desired and about which they here complain.
Each of those individuals ranked higher on the certification list
80a
provided by the Personnel Board than the blacks who were ap
pointed by the City pursuant to the consent decree.
Most but not all of those whites who were not selected for
those positions hed higher test scores on the test administered
by the Personnel Board. Although the scores, as | have already
indicated, were not known by the decision-makers at least with
a sufficient degree of accuracy and completeness to make any
judgment concerning the significance of those differences.
Several of the whites who were unsuccessful in their
promotional efforts or who were delayed in those promotional
efforts not only had higher test scores than the blacks who were
selected but had scores which were sufficiently higher on the
test that using the techniques of statistical inference would have
indicated that the true test score of the white was statistically
significantly greater than the true test score of the black. I state
that that is true for some of the whites involved but certainly
not all.
1 make particular mention, although it is contained in the
proposed findings of fact submitted by the defendants, that the
practice of the fire department both before and after the consent
decree was to not consider qualifications in making promotions
but instead is to follow willfully the certification list submitted
by the Personnel Board, simply selecting the higher ranked per-
son, whether qualified or not.
Only since the consent decree has that been changed one
occasion, and that was at a time at deciding that a black who
otherwise would have mandated for promotion under the decree
was not qualified. This Court upheld the decision by the City
had under the particular facts of that case and that situation the
black was not qualified.
With respect to the vacancy in the engineering office, the
Court makes the following conditional matters that is perhaps
not that explicit in the proposed findings submitted by the defen-
dant. The white who would have been appointed to the posi-
tion of civil engineer and who certainly was qualified for that
position did score higher on the test than did the black who was
selected. He, 1am referring to Mr. Ware, is the individual who
would have been selected by the chief engineer for that position
had it not been for the consent decree. In noting, however, that
the rankings and test scores coming from the Personnel Board
were not in the engineering department deemed to be particular.
ly valuable or useful, the chief engineer would have selected
that individual Mr. Ware, even though he scored much lower
than another white individual, that is the difference between his
score and ancther white was even greater than the difference
between Mr. Ware's score and the black.
Furthermore, the chief engineer in his deposition tes
timony indicated candidly that he considered the race of Mr.
Thomas, person ultimately chosen, being black, as a negative
feature. And that he would have so considered that as a nega-
tive feature, but for the fact that the consent decree required
him to look otherwise at the candidate. He also noted in his
deposition that although he would have preferred because of his
view of the experience factor and certain other characteristics,
the appointment of Mr. Ware, he could not say that Mr. Ware
was to any significant degree better qualified than the person
he chose, namely the black Mr. Thomas.
Now, with those additional matters being recited as find-
ings of the Court, I will go through the proposed findings of
fact submitted by the defendants and make certain revisions.
{The Court then made the revisions, which have been in-
corporated into the findings below, together with modifications
proposed by plaintiffs and adopted by the Court. |
These findings and conclusions are entered at this time
along with the findings and conclusions indicated at the outset
of this recitation.
Entry of judgment should not be delayed or deferred.
However, I am going to call upon counsel to submit to me on
Monday an appropriate form of judgment that simply indicates
that in accordance with the findings and conclusions dictated or
incorporated by the Court in its oral charge that certain cases
or claims are dismissed and directing under Rule 54-B that
those findings and resolutions be made final.
I say that I ask this because there is some difficulty — I
believe this case fully disposes of or resolves at the trial level
82a
the Bennett decision. But | don't believe that ts so with respect
to the case in which Mr. Ware had his claims, or at least | am
not sure ut does, and so there would have to be a 54-B finding
in Chat case. Also since these cases were a part of a larger group
of cases consolidated under the name Birmingham Reverse
Employment Discrimination Case, it is for safety’s sake ap
propriate lo use 54-B to make sure that there 1s no question as
to finality by virtue of those other cases not having been
resolved at this time.
lt is for that reason that | call upon counsel to make some
Analysts CO present me with an appropriate one-page order is al!
it requires which clarifies which cases are due to be resolved as
a result of this decision favorable to the defendants.
Cost Dut no attorneys’ fees are taxed against the plaintiffs
in (his case. It is clear that there is sufficient merit in these case
to Justify the pursuit of them. | say that both on a subjective
and objective basis and that claims by a prevailing defendant
under the Christian, Burg, Garment case would not justify an
award of attorneys’ fees against the plaintiffs even though the
Jefendants have prevailed. There may be some question as to
whether some change in the standards when you are talking
sdout a reverse discrimination case, but at the present time | am
persuaded that Chrisuan, Burg, Garment is the applicable
standard to be applied here, even though the — with the defen-
Jants having prevailed.
FINDINGS OF FACT
The individual piainufts are white maies, employed
dy the City of Birmingham in its Engineering Department or
the Birmingham Fire and Rescue Service (“BFRS”), who con-
‘end that they have been unlawfully denied promotions on the
vasis Of their race.
,
2. Also a plaintiff is the United States Department of
uslice, an intervenor on the side of the plaintiffs. (“Plaintiffs”
vill hereafter refer to the individual plaintiffs and the United
States collectively. When collective use is inappropriate, the
-ourt will refer to “individual plaintiffs” and “United States”
© “government”.)
Ata
1 Defenlanta Richard Arrington, Ir, and the City of
Hirmingham (collectively the “City”) admit that the Engineer
ing
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.