Petition for Writ of Certiorari — Metropolitan Government of Nashville & Davidson County v. Harrison
Supreme Court brief1996
Ask Donna
What actually matters in this document.
Text
Supreme Coug, uU.s
“
FIL RD
96 36 sys j996
No.
In The
Supreme Court of the United States
October Term, 1995
*
THE METROPOLITAN GOVERNMENT OF
NASHVILLE AND DAVIDSON COUNTY,
Petitioner,
VS.
ROBERT DALE HARRISON,
Respondent.
+
Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Sixth Circuit
¢
PETITION FOR A WRIT OF CERTIORARI
¢
James L. Murpny III
STEPHEN NuUNN*
JoHN L. KENNEDY
Metropolitan Department of Law
Attorneys for Petitioner
204 Metropolitan Courthouse
Nashville, Tennessee 37201
615/862-6341
*Counsel of Record
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTION PRESENTED FOR REVIEW
Whether the United States Court of Appeals for the
Sixth Circuit construed a consent decree in a federal civil
rights case in a way which conflicts with applicable deci-
sions of the United States Supreme Court by effectively
modifying the terms of the decree, and holding defendant
municipal corporation in contempt thereof.
li
LIST OF PARTIES
The parties in this cause are Mr. Robert Dale Har-
rison, plaintiff; and defendant The Metropolitan Govern-
ment of Nashville and Davidson County, Tennessee. Also
named as parties defendant are the Board of Health of the
Metropolitan Government of Nashville and Davidson
County, Tennessee, and certain former members of the
Board in their official capacities. However, relief was
entered only against the defendant Metropolitan Govern-
ment.
TABLE OF CONTENTS
Page
Question Presented for ee EES EUT PTET ES TER i
List of Parties ........-.cccccsccrccsccrecsccecccees ii
Table of Contents. ........---seeeec ce ereeeeeeeeeees iii
Table of Authorities ........------eeeeecceeeeeeeeee iv
Opinions Below ......--------+sesrrrerrrstre tte 1
Statement of Jurisdiction.......-----++++seeerrrreee 1
Authorities Involved.......------++eesterreteerreee 1
Statement of the Case ........----eeee reer rererceee 3
Reasons for Granting the Petition for Writ of Cer-
ee ip ek ses paevbeeVabsccuscosecauses 10
UNMIS . cs eens vee dsnearsecceccvecsessctcces 17
iv
TABLE OF CITED AUTHORITIES
Page
Cases CITED:
Aguayo v. Richardson, 473 F.2d 1090 (2d Cir. 1973)... 12
City of Santa Clara v. Andrus, 572 F.2d 660 (9th Cir.
SPOO eck ovatscsuns ds conv add seAcvoUtreemeeeses 11
Glover v. Johnson, 934 F.2d 703 (6th Cir. 1991) ....... 10
Harrison v. Metropolitan Government, 80 F.3d 1107
Ci ah | Rrratpeertyy sie eee passim
International Association of Firefighters v. City of
Ciemeised, 476 U3. FOE CURR Gs sven viwsesccke. 1; 32
River Vale Township v. Town of Orangetown, 403 F.2d
COS CR CE. RUE ikidnao ae aed eeek cin bene 12
Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367
io | Ba Pp arte or anenr ge por pe ene y ey RIS LE 10
South Carolina v. Katzenbach, 383 U.S. 301 (1966)..11, 12
United States v. ITT Continental Baking Co., 420 U.S.
ve Be, cE OECye ee TOTS ee rey Tre Tee eT Tr ere 11
United States v. Armour & Co., 402 U.S. 673 (1971) ..11, 13
STATUTES CITED
28 RE I oo a ee ae 1
, ik Coe E RPRMENeaR Seen sune Scena set 3
VEE. © CO ss oe eee 3
U8 8 Ge ee wae 3
OSE Oe eek ee 3
Vv
TABLE OF CITED AUTHORITIES - Continued
Page
42 U.S.C. § 1983.......2cce ccc cccccececerccceceeccees 3
42 U.S.C. § 1986.-..... 0 cece eccceccecerccscccccccceee 3
A2 US.C. § 198B...... 0 ccccccccncccccccccccccccceecs 3
42 U.S.C. § 2000d, Title VII of the Civil Rights Act
ee eS ener eee eT ers TIE T TT Se cs et ete 3
42 U.S.C. § 2000e, Title VII of the Civil Rights Act
oie SN oe La aas oh ed sna ned und aeeag ewes. 3, 8
ee WR ere eee Sete
OPINIONS BELOW
The petitioner urges that a writ of certiorari issue to
review the judgment and opinion of the United States
Court of Appeals for the Sixth Circuit in the above-
captioned cause. The opinion is reported. Harrison v. Met-
ropolitan Government, 80 F.3d 1107 (6th Cir. 1996). The
opinion was filed April 8, 1996. The slip opinion is set
forth at pages la through 27a of the appendix to this
petition. The United States District Court for the Middle
District of Tennessee entered its memorandum and order
in this matter on June 10, 1994. The district court entered
a memorandum and order on the Metropolitan Govern-
ment’s motion for stay of judgment on September 1, 1994.
Neither district court opinion is reported at this time. The
principal district court opinion is set forth at pages 37a
through 67a of the appendix to this petition. The mem-
orandum and order on the motion for stay are at pages
28a through 36a of the appendix to this petition.
4
STATEMENT OF JURISDICTION
The appellate court judgment was filed on April 8,
1996. The jurisdiction of this court is pursuant to 28
U.S.C. § 1254(1).
AUTHORITIES INVOLVED
The due process clause of the Fifth Amendment to
the United States Constitution reads as follows:
No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a pre-
sentment or indictment by a grand jury, except
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 offense to be twice put in jeopardy
of life or limb; nor shall be compelled in any
criminal case to be a witness against himself;
nor be deprived of life, liberty, or property,
without due process of law; nor shall private
property be taken for public use, without just
compensation.
Rule 10 of the Rules of this Court reads as follows:
.1. A review on writ of certiorari is not a mat-
ter of right, but of judicial discretion. A petition
for a writ of certiorari will be granted only when
there are special and important reasons therefor.
The following, while neither controlling nor
fully measuring the Court’s discretion, indicate
the character of reasons that will be considered:
(a) When a United States court of
appeals has rendered a decision in conflict
with the decision of another United States
court of appeals on the same matter; or has
decided a federal question in a way in con-
flict with a state court of last resort; or has
so far departed from the accepted and usual
courts of judicial proceedings, or sanctioned
such a departure by a lower court, as to call
for an exercise of this Court’s power of
supervision.
(b) When a state court of last resort
has decided a federal question in a way that
conflicts with the decision of another state
court of last resort or of a United States
court of appeals.
(c) When a state court or a United
States court of appeals has decided an
important question of federal law which has
not been, but should be, settled by this
Court, or has decided a federal question in a
way that conflicts with applicable decisions
of this Court.
2. The same general considerations outlined
above will control in respect to a petition for a
writ of certiorari to review a judgment of the
United States Court of Military Appeals.
4
STATEMENT OF THE CASE
Robert Dale Harrison was first employed by the
respondent Metropolitan Government in the Rabies Con-
trol Division of the Metropolitan Health Department on
June 2, 1972. Mr. Harrison filed this lawsuit on June 18,
1980, under 42 U.S.C. §§ 1981, 1982, 1983, 1986 and 1988;
and under Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000d and 2000e. The district court had jurisdic-
tion under 28 U.S.C. §§ 1331 and 1342. At that time, he
was employed in the position of Rabies Control Officer I.
Mr. Harrison, who is black, alleged that he was denied
promotional opportunity due to his race, and that he was
a victim of retaliation for filing a complaint with the
EEOC in November 1973, the retaliation being that he
was denied light-duty work and rehabilitation after suf-
fering an on-the-job injury in 1976.
On May 17, 1982, the United States District Court for
the Middle District of Tennessee entered a Consent
Decree. The Consent Decree stated that the parties had
agreed that the case could be dismissed upon satisfaction
of certain requirements by Metropelitan Government as
set forth below:
1. The defendant Board of Health of the Metro-
politan Government of Nashville and Davidson
County shall rehire the plaintiff at the position
of Rabies Control Officer II in the Rabies Control
Division of the Metropolitan Department of
Health at a minimum salary of $1,057.00 per
month, plus any pay increments or raises to
which he may be entitled. The rehire shall be
effective June 1, 1982.
2. The plaintiff shall receive any on-the-job
training necessary to perform efficiently in the
position and for promotion to the position of
Rabies Control Officer III upon such position
becoming available and plaintiff meeting the
qualifications therefor.
3. Job seniority will be calculated as if the
plaintiff had been on the job with no break in
service.
4. The plaintiff will receive back pay in the
amount of $15,000.00 with necessary deductions
for Federal Income Tax and FICA contribution.
5. Annual leave and sick days will be calcu-
lated as if there had been no break in plaintiff's
employment at the Metropolitan Health Depart-
ment and will be a minimum of 18 days of
annual leave and sick days.
6. Attorney’s fees of $5,000.00 will be paid to
plaintiff’s attorney over and above the back pay
above ordered, the attorney’s fee having been
determined to be a reasonable fee for services.
7. The defendants shall not discriminate
against plaintiff or other black persons on
account of race, or on account of his complaints
against racial discrimination or this lawsuit.
8. The parties to this action are hereby mutu-
ally released of any further liability to each
other, or their privies, arising out of this action;
and any and all charges against the defendants
either individually or in their professional
capacities are dismissed upon defendant's com-
pliance with this Order of Judgment.
9. The defendant, the Metropolitan Govern-
ment, shall pay all costs resulting from this
action.
Harrison v. Metropolitan Government, Order of Judgment,
May 17, 1982, Appendix at 68a [hereinafter cited as Con-
sent Decree].
Pursuant to the Consent Decree entered on May 17,
1982, Mr. Harrison was reinstated to employment in the
Rabies Control Division of the Metropolitan Health
Department on June 1, 1982 as a Rabies Control Officer II,
in a position created specifically for him pursuant to the
agreed order. Back pay of $15,000.00 and attorney's fees
of $5,000.00 were also paid. Mr. Harrison received full
seniority benefits, such as longevity pay, annual leave,
sick leave, and credit for continuous employment for
pension purposes, as if there had been no break in
employment.
As of the date of entry of the Consent Decree, Robert
Gibbs, Ronnie Cartwright and Kenneth Chambers were
employed in the higher classification of Rabies Control
Officer III. Mr. Gibbs and Mr. Cartwright are black; Mr.
Chambers is white. Mr. Gibbs had longer employment
than Mr. Harrison at the Rabies Control Division of the
Metropolitan Health Department. Mr. Cartwright and Mr.
Chambers did not; however, they were in their Rabies
Control Officer III positions before the Consent Decree
was entered.
Mr. Harrison filed applications for promotion to
Rabies Control Officer III on July 25, 1984, and August 20,
1988; however, there were no open positions for Rabies
Control Officer III. On September 19, 1988, he filed an
application for the position of Rabies Control Manager.
Messrs. Gibbs, Cartwright, Chambers, and Mr. Bill
Hendrickson also applied for that position. Ultimately,
Mr. Larry Cole, who was employed in the Pollution Con-
trol Division of the Health Department was chosen for
the position of Rabies Control Manager. Mr. Cole is black.
In October 1988, Mr. Cole and the Metropolitan
Health Department implemented a new policy that disci-
plinary problems of employees in the Rabies Control
Division would not be held against them; in other words,
all would have a clean slate. Also, after October 1988, the
Metropolitan Health Department instituted a progressive
discipline policy for employees of the Rabies Control
Division who had had accidents while driving Metro
motor vehicles in which the employee appeared to be at
fault. For the first such act, there would be an oral repri-
mand; for the second, a written reprimand; for the third,
suspension; and the fourth could result in dismissal. The
policy was communicated to the employees there. After
October of 1988, Mr. Harrison had four (4) accidents
Aik De ROE LIN a TOE
NS
while driving a Metro motor vehicle. In two accidents, he
struck other vehicles in the rear; in one he backed into
another vehicle; and in another he collided with a police
car at an intersection. Traffic tickets issued to Mr. Har-
rison after two of the accidents were dismissed, and he
testified that the prosecuting police officer was not pre-
sent for one of the court dates.
Mr. Harrison received a suspension of three (3) days
after his third accident which occurred in July of 1991. He
was also suspended at the same time for another three (3)
days on the stated grounds of encouraging a junior
Rabies Control Officer to leave his territory and help him
trap cats running at large, at the request of a relative of
Mr. Harrison. Mr. Harrison filed a claim with the EEOC
arising out of these suspensions. The EEOC found the
claim to be without merit.
In October of 1989, the classifications of Rabies Con-
trol Officer II and III were abolished, and in their place
the position of Senior Rabies Control Officer was created.
Mr. Harrison and Mr. Billy Hendrickson, who is white,
occupied the position of Rabies Control Officer II at that
time; they were both transitioned to Senior Rabies Con-
trol Officer at a lower step than the three (3) men in the
Officer III positions - Mr. Gibbs, Mr. Cartwright and Mr.
Chambers.
Mr. Harrison’s employment was terminated effective
November 3, 1992, after his fourth at-fault accident. Other
grounds cited in the termination were paperwork errors
and rudeness. Mr. Harrison appealed his dismissal to the
Metropolitan Board of Health. The Board ruled that the
SS
charge of rudeness was not supported by a prepon-
derance of the evidence, but that the careless driving and
paperwork errors were grounds for dismissal. Mr. Har-
rison filed a claim with the EEOC arising out of his
dismissal. The EEOC found no cause and dismissed the
claim.
Mr. Harrison filed two prior EEOC claims since 1982.
Each of these claims involved disciplinary action for falsi-
fication of doctors’ appointment slips, and the EEOC
found no cause in either case.
On December 30, 1993, Mr. Harrison filed two law-
suits. In Case No. 80-3271, he filed a petition for con-
tempt, alleging that the Metropolitan Government did not
comply with all the provisions of the Consent Decree, and
that his employment had been terminated on account of
his race and in retaliation for filing complaints with the
EEOC. Mr. Harrison also filed Case No. 3:93-1075, a com-
plaint arising out of the same facts and alleging unlawful
race discrimination and damages under 42 U.S.C.
§§ 2000(e), et seq. The complaint in Case No. 3:93-1075
also alleged causes of action arising under Tennessee
common law; breach of contract; and intentional or negli-
gent infliction of emotional distress. The Metropolitan
Government filed answers to both actions on January 24,
1994. A jury trial was requested by both parties in Case
No. 3:93-1075.
Mr. Harrison moved to reopen Case No. 80-3271 on
January 3, 1994. By Order entered on January 31, 1994,
the Court granted the Motion to Reopen and set oral
argument on the Petition for Contempt for February 24,
Se
1994. By agreement, hearing on the Petition for Contempt
was continued to March 28, 1994.
The case on Mr. Harrison’s Petition for Contempt was
heard, with extensive testimony, over four (4) days -
March 28, March 31, April 5 and April 8, 1994. By Mem-
orandum and separate Order entered on June 14, 1994,
the District court found the Metropolitan Government in
contempt of the Consent Decree of May 17, 1982. Speci-
fically, the District Court found the Metropolitan Govern-
ment to be in contempt of the Consent Decree with
respect to its action vis-a-vis Mr. Harrison in the areas of
training; promotion; seniority; discrimination; harass-
ment and retaliation. No findings were entered against
the individual defendants.
The Order consolidated Case No. 3:93-1075 with Case
No. 80-327. By Order entered on June 29, 1994, the Dis-
trict Court awarded Mr. Harrison lost earnings of
$33,109.97 and attorney’s fees of $44,754.36.
The Metropolitan Government filed its Notice of
Appeal on July 14, 1994. In an opinion filed April 8, 1996,
the Sixth Circuit Court of Appeals upheld the District
Court findings of contempt with respect to the Metro-
politan Government in the areas of training, promotion,
discrimination, and retaliation. It reversed on the issues
of seniority and harassment. Judge Kennedy filed a sepa-
rate opinion, concurring in part and dissenting in part.
4
:
10
REASONS FOR GRANTING THE PETITION
FOR WRIT OF CERTIORARI
Both the appellate and district courts rewrote, and
vitiated, the 1982 Consent Decree in the guise of inter-
preting it. In so doing, they acted inconsistently with the
jurisprudence of this Court and prejudiced the rights of
this defendant.
The Metropolitan Government does not here address
the question whether the 1982 Consent Decree should be
modified. Such modification might be in order given the
length of time that has passed since 1982 and certain
changed circumstances, such as the restructuring of the
Rabies Control Officer III classification into that of Senior
Rabies Control Officer. But established procedure and
criteria exist for reviewing consent decrees and modify-
ing them in light of changed circumstances. Rufo v.
Inmates of Suffolk County Jail, 502 U.S. 367 (1992). The
effect of the rulings below was to modify the 1982 decree
and then find the Metropolitan Government in contempt of
the order as modified - a violation of the Metropolitan
Government’s rights under the order.
As the district court stated, the test for a finding of
civil contempt is whether it has been shown by clear and
convincing evidence that the defendant failed to take “all
reasonable steps within [its] power to comply” with the
order. Glover v. Johnson, 934 F.2d 703 at 708 (6th Cir. 1991).
The Metropolitan Government respectfully submits that
no such showing was made by clear and convincing
evidence in this case and that the finding of contempt
necessarily depends on the unacknowledged modifica-
tion of the terms of the Consent Decree.
Aa .
Ne OA DNR i, RIN RAGS Rae Ded PR a heel
11
The terms of consent decrees are arrived at through
the parties’ material agreement and are contractual docu-
ments, as well as judicial decrees. International Association
of Firefighters v. City of Cleveland, 478 U.S. 501 (1986). They
are hybrids, having characteristics of judicial decrees and
contracts. Id. at 519. Although subject to continued judi-
cial policing, they should be construed basically as con-
tracts. United States v. ITT Continental Baking Co., 420 U.S.
223 (1975). It is crucial to bear in mind that, in a consent
decree, the defendant has given up all chance to prevail
on the merits in exchange for the limits placed on affir-
mative relief. As this Court has said:
Because the defendant has, by the decree,
waived his right to litigate the issues raised, a
right guaranteed to him by the Due Process
Clause, the conditions upon which he has given
that waiver must be respected and the instru-
ment must be construed as it is written, and not
as it might have been written had plaintiff estab-
lished his factual claims and legal theories in
litigation.
United States v. Armour & Co., 402 U.S. 673 at 682 (1971).
The due process rights of the Metropolitan Government
have been compromised here because the limitations
placed by the Consent Decree upon the scope of relief
available to Mr. Harrison have not been respected, and
the instrument has not been construed as written.
It may be that this defendant, as a political subdivi-
sion of a state, cannot fully avail itself of the protections
of the due process clause. See, e.g., South Carolina v.
Katzenbach, 383 U.S. 301 (1966). But see City of Santa Clara
v. Andrus, 572 F.2d 660 (9th Cir. 1978), (assuming without
12
deciding city to be a person for purposes of due process
clause); Aguayo v. Richardson, 473 F.2d 1090 (2nd Cir.
1973), (question whether city is a person under due pro-
cess clause for some purposes not necessarily “fore-
closed” by Katzenbach); River Vale Township v. Town of
Orangetown, 403 F.2d 684 (2d Cir. 1968), (holding city can
invoke due process clause in proceeding against a state
other than the state which created it).
In any event, the Metropolitan Government has
rights under the Consent created by the jurisprudence of
this Court. These rights may be conceptualized as based,
in addition to due process, on contract rights and on the
federal common law applicable to consent decrees cre-
ated by the decisions of this Court. The failure of the trial
and appellate courts to respect these rights “so far
[departs] from the accepted and usual course of judicial
proceedings, or [sanctions] such a departure by a lower
court, as to call for an exercise of this Court’s power of
supervision.” Supreme Court Rule 10.1(a). To allow this
decision to stand as a precedent will almost certainly lead
to further misinterpretation of consent decrees in the
future, causing them to become unreliable and disfavored
as mechanisms of resolving litigation. And the consent
decree is an especially important and valued instrument
for resolution of Title VII litigation. See International Asso-
ciation of Firefighters v. City of Cleveland, 478 U.S. 501 at
517-524 (1986).
The Sixth Circuit found the District Court’s rulings
that the Metropolitan Government violated the 1982 Con-
sent Decree to be supported by clear and convincing
evidence on four out of six points: training; promotion;
discrimination; and retaliation for the plaintiff’s filing
icaitniatinicaaiiitaaniacinieitamaninaiiiiiiailauaaiiaddiil
13
EEOC actions. It affirmed the District Court on these
points. It found clear error on the remaining two,
seniority and harassment, and reversed as to those. Judge
Kennedy, in a separate opinion, dissented from the major-
ity on promotion and discrimination. The following
matrix is thus produced:
Majority Dissent
1. Training No clear error — affirmed Concur
2. Promotion No clear error — affirmed Dissent
3. Seniority ' Clear error — reversed Concur
4. Discrimination No clear error — affirmed Dissent
5. Harassment Clear error — reversed Concur
6. Retaliation No clear error — affirmed Concur
Thus, the Court of Appeals unanimously reversed
the District Court’s findings that the Metropolitan Gov-
ernment violated the Consent Decree as to seniority
rights and plaintiff’s harassment. From this reversal, the
Metropolitan Government does not of course appeal. This
leaves the issues of promotion; discrimination; training;
and retaliation.
1. Promotion
On the question of promotion, the majority initially
appears to accept the Metropolitan Government’s argu-
ment that the 1982 Consent Decree should be interpreted
“within its four corners”, citing United States v. Armour &
Co., 402 U.S. 673 at 682 (1971). The majority concludes the
Metropolitan Government circumvented the 1982 Con-
sent Decree in promoting certain employees to Rabies
Control Officer III prior to the Order’s entry. The majority
seems to reason that the positions were filled with others
14
so as to make them unavailable to Mr. Harrison. As the
dissent notes, there is absolutely no evidence, or even any
claim by plaintiff, that he was unaware of these promo-
tions when the Consent Decree was entered. These pro-
motions were part of what the Metropolitan Government
bargained for when the decree was entered. To use the
promotions now as a predicate for a finding of contempt
violates the Metropolitan Government’s rights under the
order. As the dissent succinctly states, “[t]here is no legal
or factual basis to find that Metro violated the consent
judgment by these . . . promotions.” Harrison v. Metro-
politan Government, 80 F.3d 1107 at 1120 (6th Cir. 1996);
Appendix at 26a. Further, the majority goes beyond the
four corners of the Consent Decree to the extent that it
seems to hold that the decree required the creation “at
will” of promotional opportunities for Mr. Harrison. Id. at
1114, Appendix at lla. The decree simply does not
require, per se, the promotion of Mr. Harrison to Rabies
Control Officer III unless a vacancy occurs in the normal
course of events.
The Consent Decree reads:
2. The plaintiff shall receive any on-the-job
training necessary to perform efficiently in the
position [of Rabies Control Officer II] and for
promotion to the position of Rabies Control
Officer III upon such position becoming available
and plaintiff meeting the qualifications therefor.
(Emphasis supplied).
Appendix at 68a-69a. The majority states that “the record
suggests that the defendants could create positions at
will, because Mr. Harrison’s position as a Rabies Control
15
Officer II was created especially for his 1982 reinstate-
ment, and because Metro eliminated the title distinctions
between level II and level III officers altogether in 1989.”
80 F.3d at 1114, Appendix at 11a. But the Consent Decree
unambiguously did not require creation of a position
especially for Mr. Harrison’s promotion; and, as stated,
no promotions for a level III position - or to a higher step
in the Senior Rabies Control Officer classification —
became available during the relevant time frame. And of
course, the Decree in no way addresses promotion to
manager of the facility.
2. Discrimination
The majority’s conclusions as to discrimination are
based on findings of unequal treatment of plaintiff and
similarly situated employees regarding traffic accidents
and paperwork errors. The majority upheld the District
Court in its finding that these reasons relied upon by
Metro for terminating the plaintiff were pretextual. The
dissent points out that the other employees disciplined
for traffic infractions were not similarly situated to the
plaintiff because their infractions occurred prior to the
1988 clean-slate policy. The Consent Decree did not pro-
hibit Metro from adopting a clean-slate policy.
3. Training
On training, the Consent Decree provides:
2. The plaintiff shall receive any on-the-job
training necessary to perform efficiently in the
position [of Rabies Control Officer II] and for
promotion to the position of Rabies Control
16
Officer III upon such position becoming avail-
able and plaintiff meeting the qualifications
therefor. (Emphasis supplied).
Appendix at 68a-69a. The Sixth Circuit says:
The district court found that the defendants had
failed to exercise reasonable diligence in com-
plying with the 1982 consent decree because
despite the order’s training directive, ‘Mr. Har-
rison was . . . excluded from opportunities to
improve his skills and gain training credentials.’
On appeal, Metro asserts that the training provi-
sion of the 1982 Judgment should be construed
to require only that it provide the plaintiff with
‘whatever on-the-job training was normally pro-
vided to Rabies Control Officers II and Rabies
Control Officers III ....*’ No proof, it says, was
ever presented to suggest that any formal train-
ing was ‘necessary’ for the positions of Rabies
Control Officer II or for promotion to level III.
We do not disagree with Metro's construction of
the training requirement. (Emphasis supplied).
80 F.3d at 1113, Appendix at 8a-9a.
Nevertheless, the Court goes on to affirm. But, in
acknowledging that Metro’s construction of the training
requirement is correct, the Court has acknowledged that
Metro is not in contempt unless it failed to provide train-
ing necessary for the plaintiff’s job or for promotion. And
the Court makes no such finding. Therefore, it goes
beyond the limits of the Consent Decree.
17
4. Retaliation
The Sixth Circuit’s finding of retaliation by the Met-
ropolitan Government depends upon, and is derivative
of, its previous finding that the Metropolitan Govern-
ment’s reasons for terminating Mr. Harrison’s employ-
ment were pretextual. 80 F.3d at 1119, Appendix at 23a.
To repeat, those reasons were an excessive number of at-
fault traffic accidents, under the October 1988 policy; and
excessive paperwork errors. The Metropolitan Govern-
ment respectfully submits that the dissent’s view on the
implementetion of the traffic accident policy states the
better reasoned position and that the other individuals —
“blundering employees” though they may have been to
use the majority’s phrase — were not similarly situated to
the plaintiff. The valid finding with regard to his at-fault
traffic record is sufficient to support his termination,
under the correct view espoused by the dissent.
+
CONCLUSION
The Court of Appeals unanimously reversed the Dis-
trict Court’s findings of contempt with regard to the
issues of seniority and harassment. On the issue of failure
to promote, the majority simply ignores the fact that the
promotions in place prior to the entry of the Consent
Decree were part of the Metropolitan Government’s bar-
gained for position under that decree, and their validity
must therefore be respected. Nor does the decree in any-
way mandate promotion unless vacancies arise in a Level
III position or its equivalent. No such promotional oppor-
tunities arose after entry of the Consent Decree, except
18
that to manager of the facility, which is not addressed by
the decree. On the training issue, the majority simply
ignores the fact that all the Consent Decree requires is
necessary training for promotion to a Level III. And the
majority’s finding of retaliation fails because of the flaws
inherent in its findings of discrimination in application of
the clean-slate traffic accident policy, which was the basis
for Mr. Harrison’s termination.
What the District Court did, and what the Sixth Cir-
cuit has sanctioned on appeal, was effectively rewrite the
Consent Decree without notice to the Metropolitan Gov-
ernment, and then enter a finding of contempt of the
decree as re-written. This action violates the case law of
this Court concerning consent decrees. Even if Mr. Har-
rison is entitled to relief in some form, that relief is not
holding the Metropolitan Government in contempt but a
hearing on whether the Consent Decree should be mod-
ified. At a minimum, therefore, this holding should be
reversed and the case should be remanded for a hearing
on whether the circumstances since the entry of the 1982
Consent Decree have sufficiently changed to warrant its
modification.
Respectfully submitted,
James L. Murpny III
STEPHEN NuNN*
JOHN L. KENNEDY
Metropolitan Department of Law
Attorneys for Petitioner
204 Metropolitan Courthouse
Nashville, Tennessee 37201
615/862-6341
*Counsel of Record
OREN ALT OER MO Atte I GEES REE
tite BER EER EDA Be Bits
Pe a ee
la
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 24
ELECTRONIC CITATION:
1996 FED App. 0113P (6th Cir.)
File Name: 96a0113p.06
No. 94-6042
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Rosert DALE Harrison,
On AppeEAL from the
United States District
Court for the Middle
District of Tennessee
Plaintiff-Appellee,
v.
METROPOLITAN GOVERNMENT OF
NASHVILLE AND DavIDSON
County, TENNESSEE,
Defendant-Appellant,
BoarD OF HEALTH OF THE
METROPOLITAN GOVERNMENT OF
NASHVILLE AND DAvIDSON
Counrty,
eee eee eee ee ee ee ee ee SN
Defendants.
Decided and Filed April 8, 1996
Before: LIVELY, KENNEDY, and RYAN, Circuit
Judges.
2a
LIVELY, J., delivered the opinion of the court, in
which RYAN, J., joined. KENNEDY, J. (pp. 21-23), deliv-
ered a separate opinion concurring in part and dissenting
in part.
LIVELY, Circuit Judge. The defendant, Metropolitan
Government of Nashville and Davidson County, Tennes-
see (Metro), appeals from a judgment of the district court
entered on June 14, 1994, finding it in contempt of a 1982
consent decree terminating litigation between the plain-
tiff, former Metro employee Robert Dale Harrison, and
Metro. The district court, which had retained jurisdiction
over the case after entering the consent decree, granted
Mr. Harrison’s motion to reopen the case upon his filing a
petition for an adjudication of civil contempt. Following a
four-day hearing, the district court found Metro in con-
tempt and ordered it to perform specific affirmative acts
in addition to paying the plaintiff for lost earnings. The
court also directed Metro to pay all costs and the plain-
tiff’s attorney fees. Upon Metro’s posting a supersedeas
bond, the district court stayed the money judgment, but
refused to stay the injunctive provisions of its decree.
A
A.
The plaintiff, who is black, was hired by Metro in
1972 to work in the Rabies Control Division of the Metro-
politan Health Department (the Health Department). The
Rabies Control Division is located in the Animal Control
Facility (the pound). Mr. Harrison filed an employment
discrimination action in district court on June 12, 1980,
against Metro, the Board of the Health Department (the
3a
Board) and Board members. The plaintiff alleged that the
defendants had denied him promotional opportunities on
account of his race, and that they had retaliated against
him for filing a complaint with the Equal Employment
Opportunity Commission (EEOC). At the time of the
lawsuit, Mr. Harrison was employed as a Rabies Control
Officer I.
Pursuant to an agreement among the parties, the
district court entered an Order of Judgment on May 17,
1982 (1982 Judgment or the consent decree), which
directed the defendants to reinstate Mr. Harrison at the
Rabies Control Officer II level; to calculate his annual
leave and sick days as if there had been no break in his
employment; and to pay Mr. Harrison $15,000 in back pay
and $5,000 in attorney fees, plus costs. The consent decree
also contained the following affirmative provisions:
2. The plaintiff shall receive any on-the-job
training necessary to perform efficiently in the
position [of Rabies Control Officer II] and for
promotion to the position of Rabies Control
Officer III upon such position becoming avail-
able and plaintiff meeting the qualifications
therefor.
3. Job seniority will be calculated as. if the
plaintiff had been on the job with no break in
service.
* * *
7. The defendants shall not discriminate
against plaintiff or other black persons on
account of race, or on account of his complaints
against racial discrimination or this lawsuit.
4a
Metro paid Mr. Harrison $20,000 and reinstated him
on June 1, 1982, as a Rabies Control Officer II. He was
then reclassified in 1989 as a Senior Rabies Control Offi-
cer, as were all other employees who formerly held
Rabies Control Officer II or III positions.
B.
Under the applicable civil service rules, the pound
was required to enforce a progressive disciplinary policy
which provided that an employee would receive a written
reprimand for a first infraction of work rules, suspension
for a second infraction, demotion for a third infraction
and termination for a fourth infraction. With respect to
driving accidents, the policy at the pound was to give an
oral reprimand for an employee’s first accident, a written
reprimand for the second, suspension without pay for the
third, and to terminate the employee after the fourth.
During the plaintiff’s employment, and after his rein-
statement, a new pound manager, Larry Cole, imple-
mented a policy by which all driving accidents that
occurred prior to October 1988 would be “wiped clean”
from the employees’ records.
In 1989, the plaintiff received an oral reprimand after
hitting the rear of another car in a driving accident. He
received a written reprimand for colliding into a police
car at an intersection in July 1991. In August 1991, Mr.
Harrison was suspended for six days without pay after he
allegedly encouraged Jeffrey Baker, another rabies control
officer, to leave his assigned territory to help him capture
stray cats. The defendants claimed that leaving one’s
territory as well as picking up cats was against pound
5a
policy. Mr. Harrison appealed his suspension to the Board
under the civil service grievance procedure in May 1992,
but apparently to no avail.
The plaintiff had two more driving accidents, one in
September 1991 and one in the fall of 1992, the latter of
which he allegedly failed to report to his supervisor
according to pound practice. At around the same time,
Mr. Harrison was involved in two incidents in which he
was allegedly rude to customers. Further, on July 30,
1992, the plaintiff received a written reprimand for exces-
sive errors in paperwork.
On July 31, 1992, Paul Botranger, the Director of the
Bureau of Environmental Health Services, issued a mem-
orandum to all rabies control personnel regarding errors
commonly made on receipts. The defendants had discov-
ered these errors after reviewing all paperwork com-
pleted by pound employees between October 29, 1991,
and July 27, 1992. On September 28, 1992, Mr. Botranger
wrote a memorandum to Dr. Fredia Wadley, the director
of the Health Department, indicating that Mr. Harrison
continued to make the mistakes pointed out in his July 31
memorandum. Although a number of employees contin-
ued to forget to write in the number of days an animal
had been impounded, the plaintiff was allegedly the only
employee who consistently failed to follow proper pro-
cedure in correcting errors on receipts. Mr. Botranger
therefore recommended that Mr. Harrison be terminated.
On November 2, 1992, Dr. Wadley informed Mr. Har-
rison in writing that he was terminated. Initially, the
plaintiff was terminated on the grounds that he had been
involved in four vehicular accidents, had failed to report
6a
his fourth accident to his supervisor, had made excessive
paperwork errors and had been rude to the public. How-
ever, after Mr. Harrison appealed his dismissal to the
Board in February 1993, the Board upheld his dismissal
only on the grounds of careless driving and paperwork
errors.
Mr. Harrison filed four separate charges with the
EEOC after his 1982 reinstatement alleging discrimination
and/or retaliation in his employment at the Health
Department. In 1992, he also complained either orally or
in writing to his supervisor, the director of the Health
Department and the mayor of Nashville about how he felt
he had been harassed at the pound.
c
On December 30, 1993, the plaintiff filed the petition
of contempt alleging that Metro, the Board and Board
members failed to comply with the 1982 Judgment and
ultimately terminated him on account of his race and in
retaliation for filing a complaint with the EEOC. On the
same day, Mr. Harrison filed a separate federal complaint
arising out of the same facts and alleging unlawful race
discrimination and retaliation in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), 42 U.S.C. Sec.
2000e et seq., and Tennessee law. The district court consol-
icated the two cases. After an evidentiary hearing, the
court found that the defendants had paid Mr. Harrison
$20,000 and rehired him as a Rabies Control Officer II, but
were in contempt because they had “failed to take all
reasonable steps to comply” with the order’s directives in
the areas of training, promotion, seniority and anti-
7a
discrimination. Accordingly, the court included affirma-
tive directives in its 1994 judgment similar to those in the
1982 consent decree.
On appeal Metro argues that the district court's find-
ings that the defendants violated the 1982 consent decree
by failing to train, failing to promote, failing to grant
seniority and pay at the required level, and harassing and
discriminating against the plaintiff in disciplining and
terminating him are all clearly erroneous. Metro also
contends that the district court, in the guise of interpret-
ing the 1982 consent decree, actually rewrote it.
II.
A.
In order to hold the defendants in civil contempt, a
district court must find that the plaintiff established by
clear and convincing evidence that the defendants vio-
lated the court’s prior order. Glover v. Johnson, 934 F.2d
703, 707 (6th Cir. 1991) (citing N.L.R.B. v. Cincinnati
Bronze, Inc., 829 F.2d 585, 590 (6th Cir. 1987)). In fact, each
finding of a violation of the order must be supported by
clear and convincing evidence. See id. at 710-13. The test
for determining a violation is whether the defendants
failed to take “all reasonable steps within their power to
comply with the court’s order.” Peppers v. Barry, 873 F.2d
967, 969 (6th Cir. 1989). We review the district court’s
finding of civil contempt for an abuse of discretion. Id. at
968. A district court may abuse its discretion when it
relies on clearly erroneous findings of fact. Southward v.
South Central Ready Mix Supply Corp., 7 F.3d 487, 492 (6th
Cir. 1993) (citation omitted). In examining findings of
8a
fact, this court may reverse only if after a review of all the
evidence, we are “left with the definite and firm convic-
tion that a mistake has been committed.” Anderson v. City
of Bessemer City, North Carolina, 470 U.S. 564, 573 (1985)
(quotation marks and citation omitted). “Where there are
two permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous.” Id. at
574. We review the district court’s interpretation of the
consent decree de novo. Stotts v. Memphis Fire Dep’t, 858
F.2d 289, 299 (6th Cir. 1988) (citation omitted).
With these principles in mind, we now consider each
claim of a clearly erroneous finding separately.
1. Training
The district court found that the defendants had
failed to exercise reasonable diligence in complying with
the 1982 consent decree because despite the order’s train-
ing directive, “Mr. Harrison was . . . excluded from
opportunities to improve his skills and gain training cre-
dentials.” On appeal, Metro asserts that the training pro-
vision of the 1982 Judgment should be construed to
require only that it provide the plaintiff with “whatever
on-the-job training was normally provided to Rabies Con-
trol Officers II and Rabies Control Officers III. ...” No
proof, it says, was ever presented to suggest that any
formal training was “necessary” for the positions of
Rabies Control Officer II or for promotion to level III.
_ ee eee 2 EOE
9a
We do not disagree with Metro’s construction of the
training requirement. Nevertheless, the district court
explicitly found training was indeed offered to other
rabies control officers, whether “necessary” or not, while
Mr. Harrison was not afforded any such opportunities.
Specifically, witnesses testified that at least three white
rabies control officers —- Victoria Maxwell, Billy Hendrix-
son and Kenneth Chambers - attended a four- or five-day
training session on supervisory skills as well as another
training session on animal control. Although the testi-
mony is conflicting, there is also sufficient evidence to
show that Mr. Harrison was not offered any training after
his reinstatement except for euthanasia training from
which he was excused and perhaps some private counsel-
ing regarding his paperwork mistakes. In fact, the evi-
dence suggests that he and three other black employees
were never even apprised of such training opportunities,
and that they only heard about such training after-the-
fact when employees who had attended discussed the
matter. Thus, the district court’s finding of a violation of
the training provision is not clearly erroneous.
2. Promotion
Next, the district court found that the defendants
failed to promote Mr. Harrison “as directed.” Metro con-
tends that the plain language of the 1982 Judgment
requires only that the plaintiff be considered for a promo-
tion if and when a Rabies Control Officer III position
became available. Metro points out that those employees
who were promoted to the position of Rabies Control
Officer III were promoted before the 1982 Judgment was
in effect. According to Metro, between the date of entry
10a
of the consent decree until the level II and III positions
were combined in 1989 into the new position of Senior
Rabies Control Officer, there were no vacancies in the
position of Rabies Control Officer III. Citing United States
v. Armour & Co., 402 U.S. 673, 682 (1971) (consent decree
must be construed by its express terms since the defen-
dant waived his due process right to litigate the issues in
exchange for the decree), Metro argues that the district
court’s construction of the 1982 Judgment required auto-
matic promotion of Mr. Harrison and therefore erro-
neously went beyond the four corners of the consent
decree. See also Firefighters Local Union No. 1784 v. Stotts,
467 U.S. 561, 574 (1984).
Armour admonishes courts to interpret the scope of a
consent decree “within its four corners, and not by refer-
ence to what might satisfy the purposes of one of the
parties to it.” Armour, 402 U.S. at 682. However, even if
we accept Metro’s interpretation of the 1982 Judgment,
the district court’s finding in the area of promotions was
not clearly erroneous. In its September 1994 memoran-
dum addressing Metro’s motion for stay of judgment, the
district court explained that it had “specifically rejected
Defendant’s argument that Defendant failed to promote
Plaintiff as ordered because no promotions to Rabies
Control Officer III were available after Plaintiff was rein-
stated.” The court then noted that “it was Defendant's
unlawful conduct that resulted in Plaintiff being termi-
nated, and Defendant should not be rewarded for taking
actions during Plaintiff’s illegal termination which then
made it ‘impossible’ for Defendant to comply with the
Court’s Order.”
lla
We understand the district court to be referring to its
belief that the Rabies Control Officer III positions were
“filled” by the defendants prior to Mr. Harrison’s rein-
statement in order to circumvent the promotion provision
of the 1982 Judgment. The court’s inference can be sup-
ported by the record. The record contains evidence of bad
faith in that it indicates the defendants denied Mr. Har-
rison’s request for reinstatement as a Rabies Control Offi-
cer III in 1982 on the ground that no level III position was
available. Yet in that same year, three employees were
promoted to the position of Rabies Control Officer III,
and two of the three employees who were promoted had
less seniority than the plaintiff. Mr. Harrison then for-
mally applied for the position of Rabies Control Officer
III in 1984 and 1988, but again was denied, at least once
because Metro had not yet “posted a [position for] R.C.
Officer III.” As the district court found, however, promo-
tional opportunities were disseminated only by word of
mouth and were never publicly posted or made known to
the plaintiff, despite civil service rules that required such
opportunities to be announced and advertised in a man-
ner such that all eligible employees could apply. Finally,
the record suggests that the defendants could create posi-
tions at will, because Mr. Harrison’s position as a Rabies
Control Officer II was created especially for his 1982
reinstatement, and because Metro eliminated the title dis-
tinctions between level II and level III officers altogether
in 1989. This evidence convinces us that the district
court’s view that the defendants did not exert the requi-
site diligence in complying with its order was not clearly
erroneous. See Glover, 934 F.2d at 708 (citing Fortin v.
Commissioner of Massachusetts Dep't of Pub. Welfare, 692
12a
F.2d 790, 796-97 (ist Cir. 1982), for the proposition that
the defendants have the burden of proving impossibility
of compliance).
3. Seniority
The third directive of the 1982 Judgment states: “Job
seniority will be calculated as if the plaintiff had been on
the job with no break in service.” Metro maintains that
the district court abused its discretion because its finding
that the defendants violated this provision was not sup-
ported by clear and convincing evidence. The district
court found that “Mr. Harrison was paid less than all
other Senior Officers and was the only Senior Officer to
be denied supervisory responsibilities.”
Here we agree with Metro. Although the plaintiff
was the second most senior employee at the pound and
received less pay than the other Senior Rabies Control
Officers, the plaintiff presented no evidence that an
employee at the pound would necessarily receive higher
pay than all employees junior to him. The evidence
showed that while longevity pay was based on years of
service, step increases in salary were based only on merit.
Mr. Harrison did in fact receive the second highest lon-
gevity pay of all the pound employees. Although the
failure of the plaintiff to start at the same pay step or to
progress up the pay scale at the same rate as his col-
leagues might be evidence of discrimination or retalia-
tion, it does not support a finding that the defendants
violated the order with respect to restoring Mr. Har-
rison’s full seniority.
13a
In addition, even though the record demonstrates
that Mr. Harrison was denied the supervisory respon-
sibilities given to all other Senior Rabies Control Officers,
there is no proof that supervisory duties were a necessary
incident to seniority. Since the consent decree at issue
does not expressly state that supervisory duties must be
given to the plaintiff, we decline to read such a require-
ment into the decree. See Stotts, 467 U.S. at 574-75. The
district court’s finding that the defendants violated the
consent decree by failing to “calculate” Mr. Harrison’s
seniority as directed was therefore clearly erroneous.
4. Discrimination
The district court found clear and convincing evi-
dence that the defendants had violated the anti-discrimi-
nation provision of the 1982 Judgment on two grounds.
First, the court held that Mr. Harrison’s supervisor, Mr.
Cole, had unlawfully harassed or retaliated against Mr.
Harrison and had been “unresponsive to Mr. Harrison’s
complaints about harassment.” Second, the court held
that the reasons articulated for firing the plaintiff were
pretext for discrimination, pointing to its finding that Mr.
Harrison was punished more severely than other
employees for his infractions. In this regard, the district
court also questioned the legitimacy of Metro’s audit for
paperwork errors.
Mr. Harrison presented a disparate treatment claim
in which there was no direct evidence of discrimination.
Thus, we apply the familiar three-part analysis: (1) the
14a
plaintiff must establish a prima facie case of racial dis-
crimination; (2) the employer must articulate some legiti-
mate, nondiscriminatory reason for its actions; and (3) the
plaintiff must prove that the stated reason was in fact
pretextual. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-04 (1973); Texas Dep’t of Community Affairs v. Burdine,
450 U.S. 248, 252-53 (1981). Metro argues that the district
court erred because it failed to explicitly employ the
McDonnell Douglas/Burdine framework of proof in its
analysis of the facts at bar. However, even though the
district court did not use “magic words,” we are satisfied
that the court’s finding of discriminatory discipline in
violation of the consent decree was not clearly erroneous.
A plaintiff may establish a prima facie case of dis-
criminatory discipline by showing that: (1) he belongs to
a racial minority; and (2) “for the same or similar con-
duct, he was treated differently than similarly-situated
non-minority employees.” Mitchell v. Toledo Hosp., 964
F.2d 577, 582-83 (6th Cir. 1992). The Supreme Court has
noted that in comparing employment discipline deci-
sions, “precise equivalence in culpability between
employees” is not required. McDonald v. Santa Fe Trail
Transp. Co., 427 U.S. 273, 283 n. 11 (1976). Rather, the
plaintiff must simply show that the employees were
engaged in misconduct of “comparable seriousness.” [d.;
Stotts, 858 F.2d at 296; Mitchell, 964 F.2d at 583 n. 5. The
plaintiff must also demonstrate that the non-minority
employees to be compared with himself were “similarly-
situated in all respects.” Mitchell, 964 F.2d at 583 (emphasis
in original). Accordingly,
[T]he individuals with whom the plaintiff seeks
to compare his/her treatment must have dealt
15a
with the same supervisor, have been subject to
the same standards and have engaged in the
same conduct without such differentiating or
mitigating circumstances that would distinguish
their conduct or the employer’s treatment of
them for it.
Id.
We agree with Metro that the district court improp-
erly compared the discipline the plaintiff received and
the discipline meted out to some of the other blundering
employees because those employees were not “similarly-
situated” with respect to Mr. Harrison. Thus, H.B.
Tomlinson, Ed Watkins and Willie Swafford, each identi-
fied by the district court as having received more lenient
discipline than the plaintiff, were inappropriate compara-
bles. However, the plaintiff’s disciplining may be com-
pared with that of any non-minority rabies control officer
under the supervision of Mr. Cole. Mitchell, 964 F.2d at
583. For comparison of discipline records, the plaintiff
identified Robert Rhodes and Troy Kelley as white rabies
control officers who also have poor driving records. We
look to see whether their infractions were of “comparable
seriousness.” Santa Fe Trail, 427 U.S. at 283 n. 11.
Mr. Rhodes had twelve motor vehicle accidents in
eight years, two of which occurred after the “clean slate”
policy was implemented. During Mr. Cole’s tenure, Mr.
Rhodes was also accused of speeding in a Metro vehicle,
and of twice improperly removing a dog from pound
property, although there is some dispute over whether
the dog incidents occurred during Mr. Cole’s administra-
tion. For each “type” of infraction - the two driving
accidents which occurred after the “clean slate” policy
16a
went into effect, the speeding incident and the dog inci-
dents — Mr. Rhodes received no more than a written
reprimand.
Mr. Kelley had four motor vehicle accidents. Two of
them occurred after the 1988 “clean slate” cut-off date. He
was not disciplined for the first of his post-1988 accidents
because the pound did not consider him to be at fault, but
then received a written reprimand after his last accident
because of his involvement in the collision and because of
his failure to notify his supervisor of the accident. In
February 1991, Mr. Kelley received another written repri-
mand for confronting animal rights activists in a hostile
manner. In October 1992, he received a third written
reprimand after he was found to be intoxicated while on
duty. In addition, the testimony at the hearing suggested
that Mr. Kelley often came to work while intoxicated, that
he was arrested during work hours for driving under the
influence of alcohol, and that he was allowed to drive
Metro vehicles despite the fact that his driver’s license
had been revoked for a DUI conviction.
In comparison, the plaintiff was involved in four
traffic accidents while driving a Metro vehicle between
1989 and 1992. He received traffic tickets as a result of
only two out of the four accidents, and both tickets were
ultimately dismissed. He maintained that he was not at
fault in one of the instances in which he was ticketed
because the accident occurred as a result of a faulty traffic
light. Further, Mr. Harrison was accused of encouraging
another employee to leave his assigned territory to pick
up cats, of being rude to members of the public on two
occasions, of failing to report his fourth and final accident
to his supervisor and of committing too many paperwork
17a
errors. As a defense witness admitted, the progression of
discipline for the plaintiff before his termination was as
follows: an oral reprimand for his 1989 accident, a written
reprimand for his July 1991 accident, and suspension for
picking up cats and securing the help of a co-worker not
assigned to that territory. He was ultimately terminated
on the stated grounds of a combination of his infractions.
The respective conduct of Mr. Rhodes, Mr. Kelley and
Mr. Harrison are of comparable seriousness. Each was
involved in multiple driving accidents, although Mr.
Rhodes and Mr. Kelley fortuitously had only two such
accidents after the “clean slate” policy went into effect.
Mr. Rhodes and Mr. Kelley were each involved in other
sorts of misconduct at least as comparable in seriousness
to that of Mr. Harrison, if not more serious, ranging from
rudeness to the public to being intoxicated at work. How-
ever, Mr. Harrison was treated differently than his co-
workers. The defendants apparently treated Mr. Rhodes’
and Mr. Kelley’s infractions as falling into separate cate-
gories such that neither employee ever received more
than a written reprimand. Mr. Harrison’s infractions, in
contrast, were considered cumulatively, evidenced by the
fact that he was suspended without pay for the cat inci-
dent even though he had never committed a similar
infraction. The plaintiff was also treated differently with
respect to his termination, since neither Mr. Rhodes nor
Mr. Kelley was terminated as a result of their careless
driving standing alone, or taken together with their
assortment of other offenses. Also, many other rabies
control officers made mistakes in paperwork, but none
was ever discharged on that ground.
18a
Having established a prima facie case of disparate
treatment, the plaintiff raised an inference that his
employer more likely than not took its actions based on
impermissible factors. Burdine, 450 U.S. at 254 (citing
Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)).
The burden then shifted to the defendants to articulate a
legitimate, nondiscriminatory reason for their actions. Id.
at 253-54. Here, the defendants did not offer any reason
for suspending Mr. Harrison after his first offense of that
particular kind. The presumption of discrimination thus
remains, and our inquiry concerning this disciplining is
at an end.
As to Mr. Harrison’s termination, the defendants
pointed out that no other employee had a succession of
four accidents after 1988, and no other employee made as
many errors in paperwork. Since the defendants met their
burden of production on the issue of discriminatory dis-
charge, the plaintiff was left with the burden of proving
that the defendants’ stated reasons for firing him were
pretext for discrimination. Burdine, 450 U.S. at 253, 256;
St. Mary’s Honor Center v. Hicks, ___ U.S. __, __, 113 S.Ct.
2742, 2747-48 (1993). On this point, the district court
explicitly found that “Metro’s rationale for firing Mr.
Harrison [was] pretextual,” and we agree. Although
Metro relies on its stated discipline policies, the record
shows that neither the “clean slate” policy nor the pro-
gressive discipline policies were uniformly applied. In a
written reprimand for one of Mr. Rhodes’ post-1988 acci-
dents, Mr. Cole admonished Mr. Rhodes for his numerous
accidents prior to 1988 despite his “clean slate” policy.
And although the plaintiff was terminated, in part, as a
result of his fourth accident, he was never suspended
19a
upon his third accident. No evidence was presented as to
whether Mr. Rhodes was ever disciplined for his ten
accidents before the “clean slate” policy went into effect,
although it is undisputed that prior to that time, the civil
service rules would have required termination upon four
infractions.
Moreover, the district court “question[ed] the legit-
imacy of Metro’s paperwork audit,” which supposedly
revealed Mr. Harrison’s excessive errors. The court found
that the defendants’ audit showed that Mr. Harrison
made 38 errors in comparison to the 12 errors made by all
the other employees combined. However, other evidence
supported a finding that all comparable employees, and
even Mr. Cole himself, made numerous errors. In fact, a
witness for the plaintiff testified that her analysis showed
that 99 percent of the receipts written out during the
period covered by the defendants’ audit contained errors.
Whatever the number may have been, the district
court found that the defendants’ actions or inaction con-
tributed to Mr. Harrison’s paperwork troubles. Mr. Har-
rison was first assigned to paperwork duty in the office in
October 1991 and worked in the office only every fifth
week. Furthermore, although the defendants claimed that
Mr. Harrison was given adequate training for his office
duties, the district court accepted Mr. Harrison’s conten-
tion that he did not. Thus, the record supports the district
court's finding that the reasons given for Mr. Harrison’s
termination were a pretext for discrimination.
On the basis of this record, we find no clear error in
the finding of discriminatory discipline, including termi-
nation.
20a
5. Harassment and Retaliation
a.
To determine whether the plaintiff was the victim of
racial harassment in violation of the 1982 Judgment, we
look to the standards applicable to hostile work environ-
ment cases under Title VII law. In Meritor Sav. Bank v.
Vinson, 477 U.S. 57 (1986), the Supreme Court held that
for harassment to be actionable, “it must be sufficiently
severe or pervasive to alter the conditions of [the vic-
tim’s] employment and create an abusive working envi-
ronment.” Id. at 67 (quotation marks and citation
omitted). The district court relied on relatively few inci-
dents over a rather lengthy period of time to find that the
defendants were guilty of harassing the plaintiff in the
work setting. Metro argues that some of the incidents had
no racial connotations, or were not directed at Mr. Har-
rison. Metro’s principal contention with respect to harass-
ment, however, is that the incidents were too few and
isolated to support a finding of racial harassment.
As reprehensible as the incidents of alleged harass-
ment may have been, we do not find that they constituted
an unreasonably abusive environment. See Davis v. Mon-
santo Chem. Co., 858 F.2d 345, 349 (6th Cir. 1988), cert.
denied, 490 U.S. 1110 (1989). One element required for
proof of sexual harassment is that the alleged harassment
“had the effect of unreasonably interfering with the
plaintiff’s work performance and creating an intimidat-
ing, hostile, or offensive working environment... . ”
Rabidue v. Osceola Refining Co., 805 F.2d 611, 619 (6th Cir.
1986), cert. denied, 481 U.S. 1041 (1987). In Risinger v. Ohio
Bureau of Workers’ Compensation, 883 F.2d 475, 485 (6th Cir.
21a
1989), relying on Patterson v. McLean Credit Union, 491
U.S. 164, 180 (1989), we determined that the elements and
burden of proof that a Title VII plaintiff must meet are the
same for racially charged harassment as for sexually
charged harassment.
Here, the record reveals that Mr. Harrison testified at
the hearing that Mr. Cole’s statements, including Mr.
Cole’s use of a racial epithet, affected him such that he
“couldn’t hardly think a lot during the day,” and had
“sleepless and restless nights.” Mr. Harrison also testified
that he was “rather shocked” in response to a Ku Klux
Klan hood incident at work and that it caused him “a lot
of stress.” Further, the district court observed that a phy-
sician who had diagnosed Mr. Harrison as having stress-
related situational insomnia stated that Mr. Harrison
worked “under a great deal of stress with a manager who
is trying to run him off of a job.” However, the plaintiff
has failed to present evidence that his work performance
was affected by the racial hostility, even if only in his own
opinion. We conclude that the finding of harassment was
therefore clearly erroneous.
b.
The 1964 Civil Rights Act protects an employee who
has “opposed any practice made an unlawful employ-
ment practice” by Title VII or who has made a charge
under the statutory scheme. 42 U.S.C. Sec. 2000e-3(a)
(1988). Like a disparate treatment claim, proof of a retal-
ation claim under federal employment discrimination
law is governed by the McDonnell Douglas/Burdine tripar-
tite framework of shifting burdens of production and
22a
proof. Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir. 1987). A
prima facie retaliation claim is established by showing
the following: “(1) that plaintiff engaged in an activity
protected by Title VII; (2) that the exercise of his civil
rights was known by the defendant; (3) that, thereafter,
the defendant took an employment action adverse to the —
plaintiff; and (4) that there was a causal connection
between the protected activity and the adverse employ-
ment action.” Wrenn, 808 F.2d at 500; see also Canitia v.
Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir.), cert.
denied, 498 U.S. 984 (1990); compare Yates v. Avco Corp.,
819 F.2d 630, 638 (6th Cir. 1987) (following the approach
in Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir.
1982), which subsumes the element of employer knowl-
edge into the causal connection analysis).
Here, Mr. Harrison has engaged in numerous pro-
tected activities known to Metro officials and Metro has
clearly taken adverse employment actions against him.
Mr. Harrison filed suit against Metro in 1980, resulting in
the 1982 Judgment. The parties stipulated that since May
1982, Mr. Harrison filed four charges of discrimination
with the EEOC regarding discrimination in his employ-
ment at the Health Department. He also wrote a mem-
orandum to Mr. Cole complaining of harassment by Mr.
Cole, and sent a copy of this memorandum to the director
of the Health Department.
Metro contends, however, that there is no causal
relationship between the protected activities and the
adverse employment actions imposed upon the plaintiff.
Specifically, Metro asserts that Mr. Harrison’s suspension
in August 1991 and his termination in November 1992
ante.
23a
were too far removed from the EEOC complaints he filed
in 1986 and 1987 to be causally related.
The Tenth Circuit’s decision in Burrus v. United Tel.
Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir.), cert. denied,
459 U.S. 1071 (1982), cited with approval by this court,
has looked to the temporal proximity of the adverse
action to the protected activity to determine whether
there is a “causal connection.” See Wrenn, 808 F.2d at 501.
Here, the plaintiff filed an EEOC charge at some point
after his August 1991 suspension and was thereafter dis-
charged. At most, one year and three months elapsed
between his filing of a charge and his termination. In
addition, the evidence showed that three employees
feared retaliation because they testified at Mr. Harrison’s
hearing, and that Mr. Cole made repeated comments that
suggested he would not hesitate to run employees out of
his department. This evidence, taken together with the
timetable of Mr. Harrison’s EEOC charge and termina-
tion, convinces us that the plaintiff established a prima
facie case of retaliation.
More important, however, is the fact that study of the
record in this case reveals an atmosphere in which the
plaintiff’s activities were scrutinized more carefully than
those of comparably situated employees, both black and
white, and that the defendants took every opportunity to
make his life as an employee unpleasant. Although the
evidence does not support a finding of racial harassment,
we conclude that it does support a finding a retaliation.
Given our earlier approval of the district court's finding
that the defendants’ proffered reasons for terminating the
plaintiff were pretextual, the district court’s finding of
retaliation was not clearly erroneous.
24a
CONCLUSION
Although we have found two of the district court’s
findings clearly erroneous, we are not required to set
aside the finding of contempt. See Glover, 934 F.2d at 717.
The judge who entered the 1982 consent decree was the
same judge who found the defendants in contempt of the
injunctive portions of that decree. Judge Nixon’s inter-
pretation of his own order is “entitled to great defer-
ence.” Kendrick v. Bland, 931 F.2d 421, 423 (6th Cir. 1991).
See also Huguley v. General Motors Corp., 999 F.2d 142, 146
(6th Cir. 1993) (“[f]ew persons are in a better position to
understand the meaning of a consent decree than the
district judge who oversaw and approved it.”) (quoting
Brown v. Neeb, 644 F.2d 551, 558 n. 12 (6th Cir. 1981)).
Furthermore, there is evidence that Metro did not
consider the consent decree to be very important.
Remarkably, both Mr. Cole, who was the plaintiff’s direct
supervisor, and Dr. Wadley, who actually terminated the
plaintiff, testified that although they knew of Mr. Har-
rison’s EEOC filings, they knew nothing of the existence
of the consent decree. Mr. Cole testified that no one at
Metro informed him there was a consent decree in effect.
Dr. Wadley testified that she knew of the plaintiff’s EEOC
filings but did not know that Metro was under a court
order to train Mr. Harrison properly and not to discrimi-
nate against him. The district court did not abuse its
discretion in finding the defendants in contempt.
The judgment of the district court is AFFIRMED in
part and REVERSED in part. The case is REMANDED to
the district court for its determination of whether our
partial reversal requires any changes in remedy.
i Rill ad Kanade dent iets) cs ba Ree KS
25a
KENNEDY, Circuit Judge. Concurring in part and
dissenting in part. I concur in all of the majority opinion
except parts II(B)(2) and II(B)(4).
First, in part II(B)(2), the court affirms the District
Court’s finding that Metro had violated the 1982 consent
judgment by failing to promote plaintiff to Rabies Control
Officer III. Defendant argued that no promotions to
Rabies Control Officer III were available after plaintiff's
reinstatement. In its order denying defendant’s motion
for stay of judgment, the District Court stated “it was
Defendant’s unlawful conduct that resulted in Plaintiff
being terminated, and Defendant should not be rewarded
for taking actions during Plaintiff’s illegal termination
which then made it ‘impossible’ for Defendant to comply
with the Court’s Order.”
These promotions - one of someone with more
seniority and the other two, one black and one white -
were made before entry of the consent judgment, a judg-
ment entered without any finding that the termination
was illegal but by consent without any admission of
liability.?
The relevant portion of the Order, of which Metro
had been found in contempt, orders Metro to
B. Provide Mr. Harrison with any on-the-job
training necessary to perform efficiently in the
position and for promotion to the position of
1 There is no claim and no indication in the record that
plaintiff was unaware of those promotions at the time he settled
his earlier discharge case and entered into the consent
judgment. These contempt proceedings were brought more than
ten years after the 1982 consent judgment.
26a
Rabies Control Officer III upon such position
becoming available and Mr. Harrison meeting
the qualifications therefor.
This provision does not entitle Mr. Harrison to a
promotion; it conditions such a promotion on a Rabies
Control Officer III position becoming available and Mr.
Harrison being found to hold the requisite qualifications.
Indeed, if Harrison had the qualifications for that office,
there would be no need to give him the training. Thus, to
the extent the District Court found this provision entitled
Mr. Harrison to a promotion, it was in error.
Moreover, the District Court made no factual find-
ings that Metro somehow violated this provision of the
Order by promoting white employees immediately before
the Order took effect. In the section of its opinion entitled
“Factual Findings,” the District Court merely noted that
“[tlwo employees with less seniority than Mr. Harrison
. were promoted to Rabies Control Officer III posi-
tions.” There is no acknowledgement that these promo-
tions occurred before the consent decree was signed.
Likewise, in its “Conclusion of Law” section, the District
Court wrote: “Mr. Harrison... was never promoted to a
Rabies Officer III position. Notably, employees junior to
Mr. Harrison served in the position of Rabies Control
Officer III... .
There is no legal or factual basis to find that Metro
violated the consent judgment by these earlier promo-
tions. Since the District Court gave no remedy for the
failure to promote plaintiff to Rabies Officer III except to
continue the requirement that plaintiff be trained for
future promotions, the court’s error might be found to be
harmless. However, to the extent that it may have
wheal 58 Rte BO AT lt a AN Ota Madd biennial Cai SS taal vee eS Sa Mit ee Tne
Sepa diet gem . Sh. Ste.
27a
included its erroneous conclusion regarding these prior
promotions in resolving other issues and particularly the
issue of pretext, I would require the District Court to
reconsider that issue anew on remand.
Second, while I agree with the majority that there is
evidence to support the District Court’s finding of dis-
crimination in defendant's treatment of plaintiff’s paper
errors, and therefore in his firing, | cannot agree that the
District Court was entitled to compare plaintiff’s treat-
ment under the clean slate policy with the treatment of
persons with accidents before the clean slate policy
unless there is some claim —- which there is not — that the
adoption of the clean slate policy was discriminatory.
Plaintiff’s driving infractions occurred after the intro-
duction of the clean slate policy. He was not, therefore,
similarly situated in all respects. Under the policy, he
could be fired for four accidents. Under the policy, Mr.
Rhodes could not be fired. His earlier accidents were
wiped clean. Thus, while the court was entitled to com-
pare the treatment of Rhodes with respect to other infrac-
tions versus the treatment of plaintiff’s errors, it was not,
in my opinion, entitled to compare the driving infrac-
tions.
I would set aside the above findings and remand for
further consideration by the District Court.
28a
IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ROBERT DALE HARRISON
Vs.
]
| No. 80-3271
METROPOLITAN GOVERNMENT |]
OF NASHVILLE AND DAVIDSON ]}
COUNTY, TENNESSEE, a body ]}
corporate and BOARD OF ]
HEALTH OF THE ]
METROPOLITAN GOVERNMENT ]}
OF NASHVILLE AND DAVIDSON ]
COUNTY, TENNESSEE, a body }
politic, and DR. JOE M. ]
STRAYHORN, MRS. ELIZABETH |
L. JACOBS, DR. DOROTHY L. ]
BROWN, MRS. GAIL PIGG, DR. ]}
HAROLD JORDAN, MRS. ]
REBECCA CLARK CULPEPPER, |
who constitute all of the members |
of said BOARD OF HEALTH and }
JOSEPH M. BISTOWISH, M.D. ]
MEMORANDUM
Pending before the Court is Defendant Metropolitan
Government of Nashville and Davidson County, Tennes-
see [“Metro”]’s Motion For Stay Of Judgment (Doc. No.
49), filed on July 14, 1994, to which Plaintiff filed an
Opposition (Doc. No. 52) on July 27, 1994.
eee ee
eg sas =, éiath
29a
I. BACKGROUND
By Memorandum and Order entered on June 14, 1994
(Doc. Nos. 40, 41), the Court found Metro in civil con-
tempt of the Court’s Order of Judgment entered on May
17, 1982. The Court therefore awarded Plaintiff Robert
Dale Harrison damages and fees and costs in the amount
of $77,864.33. (Ord., Doc. No. 41; Ord., Doc. No. 47.) In
addition, the Court granted Plaintiff's request for injunc-
tive relief and ordered Metro to do the following: (1)
Reinstate Plaintiff in the position of Senior Rabies Control
Officer in the Rabies Control Division of the Health
Department at a minimum salary of $23,072.00 per year,
plus any salary increases to which he may be entitled; (2)
Train Plaintiff to perform efficiently in the position and
for promotion to a higher pay step; (3) Provide Plaintiff
with the type of supervisory opportunities usually
awarded Senior Rabies Control Officers; (4) Calculate job
seniority and annual and sick leave as if there had been
no break in Plaintiff's employment; (5) Announce pub-
licly all training and promotional opportunities relevant
to Rabies Control personnel; (6) Refrain from discriminat-
ing against Plaintiff or other black persons on account of
race, or in retaliation for Plaintiff’s complaints against
racial discrimination or this lawsuit; and (7) Communi-
cate the contents of the Court’s June 14, 1994 Memoran-
dum and Order to employees in a supervisory position to
Plaintiff at the Health Department. (Ord., Doc. No. 41.)
Defendant Metro now moves the Court pursuant to
Rule 62 of the Federal Rules of Civil Procedure to stay its
judgment pending the outcome of Metro’s appeal in this
action. (Def.’s Mot. Stay, Doc. No. 49.) Metro has submit-
ted a supersedeas bond in the amount of $100,000.00
30a
(Doc. No. 51) for the Court’s approval under Rule 62(d).
Plaintiff opposes Defendant’s motion for stay on the
grounds that Defendant has failed to submit a proper or
sufficient supersedeas bond to entitle Defendant to a stay
of either the money judgment or the injunctive relief
awarded in this action. (Pl.’s Opp’n, Doc. No. 52, at 2.)
Regardless of whether the Court approves Defendant's
supersedeas bond, Plaintiff argues that Defendant has
failed to meet its burden to prove that it is entitled to a
stay of the injunctive relief awarded. (Jd.)
Il. ANALYSIS
Rule 62(d) of the Federal Rules of Civil Procedure
provides that “[w]hen an appeal is taken the appellant by
giving a supersedeas bond may obtain a stay subject to
the exceptions contained in subdivision (a) of this rule.”
Fed. R. Civ. P. 62(d). Under Rule 62(a), unless otherwise
ordered by the Court, an injunction shall not be stayed
during the pendency of an appeal except in accordance
with Rule 62(c), which governs the suspension of injunc-
tions pending appeal. Fed. R. Civ. P. 62(a). Rule 62(c)
provides that “[a] court in its discretion may suspend
... an injunction during the pendency of the appeal upon
such terms as to bond or otherwise as it considers proper
for the security ot the rights of the adverse party.” Fed. R.
Civ. P. 62(c).
Accordingly, although an injunction is stayed under
Rule 62(c) only at the court’s discretion, a money judg-
ment is stayed automatically under Rule 62(d), effective
upon the court’s approval of an appellant’s supersedeas
bond.
y
na telat Nea al Sette RE aoe hers lg ae cada
2 Slat ER EE RAE ASE be SLA Date Go aD LIT.
a Ee FO hE Bk Fe
3la
A. Money Judgment
In the instant action, the Court finds that Defendant
has provided an appropriate Rule 62(d) supersedeas
bond in the amount of $100,000.00. The Court therefore
approves Defendant’s supersedeas bond, and stays the
money judgment awarded to Plaintiff.
B. Injunctive Relief
In determining a motion to stay a court order under
Rule 62(c), a court is guided by the following factors: (1)
whether the stay applicant has made a strong showing
that he is likely to succeed on the merits; (2) whether the
applicant will be irreparably injured absent a stay; (3)
whether issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where
the public interest lies. Hilton v. Braunskill, 481 U.S. 770,
776, 107 S. Ct. 2113, 2119 (1987); Congregation Lubavitch v.
City of Cincinnati, 923 F.2d 458, 460 (6th Cir. 1991).
1. Whether the stay applicant has made a
strong showing that he is likely to succeed
on the merits?
The Court finds that Defendant Metro has not made a
strong showing that it is likely to succeed on the merits.
The Court instructs Defendant that Defendant has mis-
characterized the Court’s analysis. By clear and convinc-
ing evidence, the Court found Defendant in civil
contempt. See Glover v. Johnson, 934 F.2d 703, 707 (6th Cir.
1991). The Court applied the standard of Peppers v. Barry,
873 F.2d 967, 969 (6th Cir. 1989), and determined that
32a
Defendant failed to take all reasonable steps to achieve
substantial compliance with the Court’s previous order.
Specifically, the Court found that Defendant merely paid
Plaintiff money damages and reinstated him. Defendant
apparently ignored the remainder of the Court’s Order,
including the explicit mandate to train and promote
Plaintiff and to refrain from retaliating against him.
The Court agrees with Defendant's observation that
the Court heard conflicting testimony at the contempt
hearing. However, the Court ultimately found that Plain-
tiff was not trained, promoted, or accorded seniority as
required by the Court’s previous Order, and that Plaintiff
was selectively punished by Defendant for reasons the
Court found pretextual. The Court specifically rejected
Defendant’s argument that Defendant failed to promote
Plaintiff as ordered because no promotions to Rabies
Control Officer III were available after Plaintiff was rein-
stated. Notably, it was Defendant’s unlawful conduct that
resulted in Plaintiff being terminated, and Defendant
should not be rewarded for taking actions during Plain-
tiff’s illegal termination which then made it “impossible”
for Defendant to comply with the Court’s Order. Finally,
the Court found Defendant’s witness Larry Cole to be
completely incredible.
2. Whether the applicant will be irreparat.,
injured absent a stay?
Defendant argues that it will be irreparably harmed
because Plaintiff’s reinstatement will only exacerbate the
“disagreements” Mr. Cole has with other African-Ameri-
can employees. The Court rejects Defendant’s argument,
Lata me ita la itis ok WORE te
33a
and finds that no irreparable harm will result from rein-
stating Plaintiff.
3. Whether issuance of the stay will substan-
tially injure the other parties interested in
the proceeding?
By contrast, the record establishes that the issuance
of a stay will substantially injure Plaintiff. Plaintiff has
suffered emotional distress, financial deprivation, and
health problems in relation to his wrongful discharge. As
well, Plaintiff’s continued absence will only reinforce ten-
sions currently existing among employees at the Pound.
4. Where the public interest lies?
As Defendant concedes, the public has an interest in
remedying racial discrimination and in enforcing judg-
ments made by the Court. The Court rejects Defendant’s
suggestion that the interest in holding a wrongdoer
accountable is somehow outweighed by the public’s
interest in the efficient operation of Metro’s Rabies Con-
trol Division.
Accordingly, the Court concludes that Defendant has
failed to carry its burden, and denies Defendant’s motion
to stay the Court’s order with respect to the injunctive
relief awarded.
Il. CONCLUSION
For the above-stated reasons, the Court hereby grants
in part and denies in part Defendant’s motion for stay.
34a
Accordingly, the Court approves Defendant’s super-
sedeas bond, and stays its June 14, 1994 judgment (Doc.
No. 41) with respect to the monetary damages awarded;
and denies Defendant’s motion for stay with respect to
any injunctive relief awarded.
An Order consistent with the findings herein is filed
contemporeneously.
Entered this the 1st day of September, 1994.
/s/ John T. Nixon
JOHN T. NIXON, CHIEF JUDGE
UNITED STATES
DISTRICT COURT
35a
IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
GEIS MIN Ge NAO TITS TORE Is OE Hot
ROBERT DALE HARRISON
Vs.
METROPOLITAN GOVERNMENT
OF NASHVILLE AND DAVIDSON
COUNTY, TENNESSEE, a body
corporate and BOARD OF
HEALTH OF THE
METROPOLITAN GOVERNMENT
OF NASHVILLE AND DAVIDSON
COUNTY, TENNESSEE, a body
politic, and DR. JOE M.
STRAYHORN, MRS. ELIZABETH
L. JACOBS, DR. DOROTHY L.
BROWN, MRS. GAIL PIGG, DR.
HAROLD JORDAN, MRS.
REBECCA CLARK CULPEPPER,
who constitute all of the members
of said BOARD OF HEALTH and
JOSEPH M. BISTOWISH, M.D.
No. 80-3271
‘Lpiepadieaaaaer adie cea. ood Bion anaes
Tt i i te hd hd teed teed the! teed themed
ee
ORDER
Pending before the Court is defendant Metropolitan
Government of Nashville and Davidson County, Tennes-
see [“Metro”]’s Motion For Stay Of Judgment (Doc. No.
49), filed on July 14, 1994, to which plaintiff filed an
Opposition (Doc. No. 52) on July 27, 1994.
Consistent with the contemporaneously-filed Mem-
orandum, the
Court hereby GRANTS IN PART and DENIES IN
PART defendant's motion for stay. Accordingly, the Court
36a
APPROVES Defendant’s supersedeas bond, and STAYS
its June 14, 1994 judgment (Doc. No. 41) with respect to
the monetary damages awarded; and DENIES Defen-
dant’s motion for stay with respect to any injunctive relief
awarded.
Entered this the Ist day of September, 1994.
/s/ John T. Nixon
JOHN T. NIXON, CHIEF JUDGE
UNITED STATES
DISTRICT COURT
FER ie
ee, eee Te » .
37a
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ROBERT DALE HARRISON
Vs.
J
J
] No. 80-3271
METROPOLITAN GOVERNMENT ]
OF NASHVILLE AND DAVIDSON ]
COUNTY, TENNESSEE, a body ]
corporate and BOARD OF HEALTH ]
OF THE METROPOLITAN }
GOVERNMENT OF NASHVILLE }
AND DAVIDSON COUNTY, ]
TENNESSEE, a body politic, and ]
DR. JOE M. STRAYHORN, MRS. ]
ELIZABETH L. JACOBS, DR. }
DOROTHY L. BROWN, MRS. GAIL ]
PIGG, DR. HAROLD JORDAN, ]
MRS. REBECCA CLARK ]
CULPEPPER, who constitute all of ]
the members of said BOARD OF ]
HEALTH and JOSEPH M. ]
BISTOWISH, M.D. ]
MEMORANDUM
This matter was heard upon plaintiff’s Petition to
adjudicate defendant Metropolitan Government of
Nashville and Davidson County, Tennessee, in civil con-
tempt of this Court’s Order of Judgment entered on May
17, 1982, in the above-styled case. Upon the evidence
presented, record as a whole, and argument of counsel,
the Court makes the following Findings of Fact and Con-
clusions of Law, in accordance with Fed. R. Civ. P 52(a).
38a
I. FINDINGS OF FACT
1. Plaintiff Robert Dale Harrison, a black male, was
hired by defendant Metropolitan Government of
Nashville and Davidson County, Tennessee, [“Metro”] on
June 2, 1972. (Joint Ex. 1, at 1.) Mr. Harrison was hired to
work in the Rabies Control Division of Metro’s Depart-
ment of Health [“Health Department”]. (Compl., at 3.)
The Rabies Control Division is located in the Animal
Control Facility [“pound” or “dog pound”].
2. Mr. Harrison originally filed this action on June
18, 1980, pursuant to 42 U.S.C. §§ 1981, 1982, 1983, 1986,
and 1988, 42 U.S.C. §§ 2000d and 2000e, and the Thir-
teenth and Fourteenth Amendments to the United States
Constitution, alleging race discrimination in his employ-
ment with the Health Department. (Compl., at 1-2.) Mr.
Harrison alleged that the Health Department had failed
to promote him while white employees with less experi-
ence and seniority were promoted; harassed and intimi-
dated him after he filed a charge with the Equal
Employment Opportunity Commission [“EEOC”]; and
failed to provide him with training and equal employ-
ment opportunities. (Id. at 3-6.)
3. On May 17, 1982, the Court entered an Agreed
Order of Judgment which required Metro to:
A. Rehire Mr. Harrison at the position of
Rabies Control Officer II in the Rabies Control
Division of the Health Department at a mini-
mum salary of $1,057.00 per month, plus any
pay increments or raises to which he may be
entitled.
a, abidahe Ae cuan Fae pie a
Sa VS
SMES SSeS PERN S ES
39a
B. Provide Mr. Harrison with any on-the-
job training necessary to perform efficiently in
the position and for promotion to the position of
Rabies Control Officer III upon such position
becoming available and Mr. Harrison meeting
the qualifications therefor.
C. Calculate and award job seniority and
annual leave and sick days as if Mr. Harrison
had been on the job with no break in service,
and award a minimum of eighteen days of
annual leave and sick days.
D. Pay back pay to Mr. Harrison in the
amount of $15,000.00, less necessary deductions
for Federal Income Tax and FICA; pay attorney’s
fees to counsel for Mr. Harrison in the amount
of $5,000.00, over and above the back pay
award; and pay all costs resulting from this
action.
E. Not discriminate against Mr. Harrison
or other black persons on account of race, or on
account of Mr. Harrison’s complaints against
racial discrimination or this lawsuit.
(Agreed Ord. J., at 1-2.) The Court’s May 17, 1982, Order
also released the parties from further liability, and dis-
missed the charges against defendants “upon defendants’
compliance with th[e] Order of Judgment.” (Id. at 2.)
4. After entry of the Court’s Agreed Order of Judg-
ment on May 17, 1982, the Health Department reinstated
Mr. Harrison to employment in the position of Rabies
Control Officer II and paid Mr. Harrison $20,000.00 in
damages. (Tr. Vol. "I, at 17.)
5. On November 2, 1992, Mr. Harrison was termi-
nated from his employment at the pound for careless
40a
driving, paperwork errors, and rudeness. (Defs.’ Ex. 6.)
Mr. Harrison appealed his termination, and the Board of
Health held a hearing on February 3, 1993. (Id.) The
Board upheld Mr. Harrison’s termination on the grounds
of careless driving and paperwork errors. (Id.)
6. On December 30, 1993, Mr. Harrison filed a
motion for contempt, alleging that defendant Metro had
continued to discriminate and retaliate against Mr. Har-
rison in violation of this Court’s May 17, 1982, Order. Mr.
Harrison filed a motion to reopen the case on January 4,
1994.
7. The Court held a hearing on Mr. Harrison’s
motion for contempt on March 28, March 31, April 6, and
April 8, 1994.
Training
8. Between the entry of this Court’s Order on May
17, 1982, and the time Mr. Harrison was fired on Novem-
ber 3, 1992, the evidence indicates that Mr. Harrison was
never provided with any training, except for euthanasia
training from which he was excused. (Tr. Vol. I, at 18-19,
137-38; Tr. Vol. IV, at 23-24; Pl.’s Ex. 32.) According to the
training record maintained by Metro, Mr. Harrison
received no training whatsoever after 1974. (Pl.’s Ex. 32.)
Moreover, notices regarding training opportunities were
not posted or provided to Mr. Harrison. (Tr. Vol. I, at 19,
210.)
9. By contrast, white employees who had less
seniority than Mr. Harrison, including Billy Hendrixson,
Victoria Maxwell, and Kenneth Chambers, did receive
training. (Tr. Vol. I, at 19, 210, 223-24; Joint Ex. 1.) Mr.
f 4la
Hendrixson and Mr. Chambers received training at the
Stahlman Building, including training in supervision and
animal control, and were sent out of town to receive
training. (Tr. Vol. I, at 19.) As a result of such training, Mr.
Hendrixson and Mr. Chambers received certificates. (Id.)
10. Mr. Harrison learned that particular training
sessions had occurred only after they had taken place
when white employees such as Mr. Hendrixson and Mr.
Chambers discussed the training sessions. (Tr. Vol. I, at
19, 210.) Darrell Acklin, Jeffrey Baker, and Robert Har-
rison all testified that they had never seen any training
opportunities posted on the bulletin board at the pound.
(Id.; Tr. Vol. IV, at 40, 43.) Robert Gibbs testified that no
training relevant to animal control was posted on the
bulletin board, and that he became aware that a relevant
training had been offered when someone who had
attended the training mentioned it after the fact. (Tr. Vol.
IV, at 52.)
Promotion
11. Based on restoration of his seniority as required
by the Court’s May 17, 1982, Order, Mr. Harrison was the
second most senior employee at the dog pound when he
was reinstated. (Joint Ex. 1; Tr. Vol. I, at 20.) The most
senior employee at the pound was Robert Gibbs, who is
also black. (Tr. Vol. I, at 20.)
12. Mr. Harrison was never promoted to a Rabies
Control Officer III position. (Tr. Vol. I, at 29.) Two
employees with less seniority than Mr. Harrison, Ronald
Cartwright and Kenneth Chambers, were promoted to
Rabies Control Officer III positions. (Tr. Vol. I, at 25-26,
42a
29; Joint Ex. 1, at 1.) Mr. Gibbs also served in the position
of Rabies Control Officer III. (Tr. Vol. I, at 85.)
13. In October, 1989, the Rabies Control Officer II
and Rabies Control Officer III employment classifications
were abolished, and a new classification, “Senior Rabies
Control Officer”, was established. (Tr. Vol. I, at 30-31, 88.)
The former Rabies Control Officer Ill positions were then
transitioned to Senior Rabies Control Officer [“Senior
Officer”] positions. (Id. at 30-31.) As well, Mr. Harrison
and Billy Hendrixson, the two employees who had for-
merly served in the position of Rabies Control Officer II,
were also transitioned to Senior Officer positions. (Id.)
Mr. Harrison and Mr. Hendrixson were transitioned at a
lower pay step within the Senior Officer classification,
however, than the former Rabies Control Officer III
employees.
14. Metropolitan Government Civil Service Rules
and Regulations [“Civil Service Rules”] require that job
openings which would provide promotional oppor-
tunities “must be announced and advertised in such a
manner that all eligible and qualified employees within
the [Health] [Djepartment shall have an opportunity to
apply.” (Pl.’s Ex. 1, at 14.) Between May 17, 1982, and Mr.
Harrison’s discharge in 1992, Promotional opportunities
were neither publicly posted nor made known to Mr.
Harrison. (Tr. Vol. I, at 21, 24, 210.) Instead, information
regarding promotional opportunities was provided to
individuals by word of mouth. (Id. at 21.)
15. Nevertheless, Mr. Harrison filed an application
for promotion to a Rabies Control Officer III position on
both July 25, 1984, and August 20, 1988, in the event that
7
43a
such a position was available but unknown to him. (PIl.’s
Exs. 2, 3.) On September 19, 1988, Mr. Harrison applied
for the position of Rabies Control Manager, or Manager of
the pound. (P1.’s Ex. 4.) Mr. Harrison also took a test for
the Rabies Control Manager position and scored well on
it. (Tr. Vol. I, at 33.)
16. Mr. Harrison was denied all of these positions.
(Tr. Vol. I, at 29.) By memorandum dated October 11,
1988, Leslie Robeson, an Officer of the Health Depart-
ment, informed Mr. Harrison that his qualifications were
“found appropriate” and his application and experience
were given “serious consideration.” (Pl.’s Ex. 5.) The
Manager position was ultimately awarded to Larry Cole,
an individual who had no prior experience in animal
control and who had previously worked as a vehicle
inspector in the motor vehicle inspection program of
Metro’s Air Pollution Division. (Tr. Vol. I, at 34, 154; Tr.
Vol. lil, at 12.)
17. In the course of Mr. Harrison’s twenty-year
employment with the Health Department, Mr. Harrison
trained many Rabies Control Helpers who later became
Rabies Control Officers, including Jeffrey Baker, Randall
Morris, Tommy Morris, Kenneth Davis, Troy Kelley,
Robert Rhodes, and Darrell Acklin. (Tr. Vol. I, at 33-34.)
During that same time period, Mr. Harrison received
standard or above standard ratings on all of his perfor-
mance evaluations except two. (Stipulation, Doc. No. 32,
at 1.)
18. Other black current and former employees of
the pound testified that they had also been denied pro-
motion. Jeffrey Baker stated that Victoria Maxwell, a
44a
white employee, had been promoted to a supervisory
position that Mr. Baker would have liked, if the availabil-
ity of the position had been posted. (Joint Ex. 1, at 1; Tr.
Vol. I, at 208-10.) Mr. Baker has six years more seniority
than Ms. Maxwell. (Joint Ex. 1, at 1.) Mr. Baker also noted
that he had been passed over several times for “on-call”
duty. (Tr. Vol. I, at 216-17.) On-call duty is desirable
because it generally enables an employee to gain more
experience and receive overtime pay. (Tr. Vol. I, 216-17.)
19. In February, 1992, Darrell Acklin applied for a
Rabies Control Officer position. (Pl.’s Ex. 46.) At that
time, Mr. Acklin had three and one-half years experience
at the pound. (Tr. Vol. IV, at 38.) Buddy Kent, a white man
with no previous experience working at the pound, was
_chosen for the position instead. (Id. at 19-20, 39.) Mr. Kent
was fired a month after being hired because he was
unable to perform the job. (Id. at 20.)
20. Mr. Gibbs twice applied for and was denied a
promotion to a position as Quarantine Officer. (Tr. Vol. 1,
at 173-74.) The Quarantine Officer position is desirable
because a Quarantine Officer generally receives overtime
pay. (Tr. Vol. II. at 157-58.) When Mr. Gibbs was denied,
the first time, the Quarantine Officer position was given
to Tommy Martin, an individual who had never worked
for Metro government. (Tr. Vol. I, at 174.) When Mr. Gibbs
was denied the second time, the position was awarded to
Kenneth Chambers, a junior white employee. (Id. at 173,
75; Joint Ex. 1, at 1.) Mr. Gibbs was also denied the
Manager position, which was given to Mr. Cole, even
though Mr. Gibbs was the most senior employee at the
45a
pound and had served for three months as interim Man-
ager prior to Mr. Cole’s selection as Manager. (P1.’s Ex. 35;
Tr. Vol. I, at 171-72; Tr. Vol. III, at 10-11.)
Different Treatment
21. Mr. Harrison was not allowed to work in the
office at the pound until October, 1991. (Tr. Vol. I, at
59-60, 154.) Rabies Control Officers who work in the field
are generally required to do the same tasks as Rabies
Control Helpers, including chasing dogs, pulling dogs
out from under houses, burying dead and decomposed
animals, and removing the heads from dogs so that the
heads can be examined for rabies contamination. (Tr. Vol.
Il, at 131-32; Pl.’s Ex. 34.) Rabies Control Officers who
work in the office do not perform such duties. (Tr. Vol. I,
at 150-51; Tr. Vol. IL, at 145-46.)
22. Mr. Gibbs testified that he was removed from
the office at the pound and put back to work in the field
after he successfully appealed an adverse personnel deci-
sion by former Health Department Director Dr. Joseph
Bistowish to the Board of Health. (Tr. Vol. IV, at 44-45.) In
addition, Mr. Gibbs was again displaced from his assign-
ment at the office and his office keys were removed over
his objections when a junior white employee, Robert
Rhodes, retuned from sick leave. (Tr. Vol. IV, at 46-48;
Pl.’s Exs. 16, 16A.) At the same time, Kenneth Chambers,
another white employee with less seniority than Mr.
Gibbs, remained in the office as Quarantine Officer. (Tr.
Vol. IV, at 46.) Mr. Gibbs testified that he is not allowed to
work in the office and was “put out on the street”,
46a
despite the fact that he has experience doing paperwork.
(Tr. Vol. I, at 171-72.)
23. Both Billy Hendrixson and Robert Rhodes are on
permanent light duty at the pound. (Tr. Vol. III, at 52; Tr.
Vol. II, at 150.) When Mr. Harrison had a back injury
which required light work, however, he was advised that
no light duty was available at the pound, and that if he
was unable to perform his usual duties he would have to
resign or be fired. (Tr. Vol. V, at 70.)
24. In addition, Mr. Cole admitted that he assigned
supervisory duties to every Senior Rabies Control Officer
except Mr. Harrison. (Tr. Vol. IV, at 23; Pl.’s Ex. 49.)
25. The Personnel Director for the Health Depart-
ment, Robert Eadie, testified that persons with more
seniority are entitled to more longevity pay. (Tr. Vol. II, at
138-39.) As well, employees receive increment pay raises
whenever they have a performance evaluation which is
satisfactory or above. (Tr. Vol. II, at 135.)
26. At the time of Mr. Harrison’s discharge in 1992,
all of the other Senior Rabies Control Officers received a
higher salary than Mr. Harrison. (Pl.’s Ex. 13.) Mr. Har-
rison was paid less than Billy Hendrixson, Kenneth
Chambers, and Ronald Cartwright, all of whom had less
seniority than Mr. Harrison. (Id.) At that time, Mr.
Hendrixson had fourteen years seniority, Mr. Chambers
had sixteen years, and Mr. Cartwright had eighteen years,
while Mr. Harrison had twenty years seniority. (Joint Ex.
1, at 1.)
27. The Civil Service Rules specify that a progres-
sive disciplinary policy should be utilized for infractions
47a
of rules or policies. (Pl.’s Ex. 1, at 42.) Accordingly, in
disciplining an employee, the means used would be in
the following order: written reprimand, suspension,
demotion, and dismissal. (Id.)
28. In August, 1991, Mr. Harrison was suspended
for three days on the grounds that he had encouraged
another employee, Mr. Baker, to leave Mr. Baker’s terri-
tory and assist Mr. Harrison in picking up cats, as well as
on the grounds that the Health Department is not autho-
rized to catch and impound cats. (Tr. Vol. I, at 41, 43; Tr.
Vol. II, at 23, 31-32, 72; Tr. Vol. III, 70, 73.) At that time,
Mr. Harrison had no supervisory authority over Mr.
Baker. (Tr. Vol. I, at 44.) Prior to the incident, Mr. Harrison
had never been accused of being out of his territory or of
encouraging another employee to leave such employee’s
territory. (Tr. Vol. I, at 153-54; Tr. Vol. II, at 23-24.) By
comparison, other employees who had been absent from
their territory on more than one occasion were not sus-
pended. (Tr. Vol. II, at 28-29, 59-62; Pl.’s Exs. 19, 23.)
29. Although Mr. Harrison was disciplined in
August, 1991, in part because he allegedly had no author-
ity to pick up cats, the job description for a Rabies Con-
trol Officer reflects that one of Mr. Harrison’s duties was
to pick up cats. (Pl.’s Ex. 6.) Indeed, Mr. Gibbs was
dispatched to pick up two cats only weeks before the
Contempt Hearing in this matter. (Tr. Vol. I, at 195-96.)
30. After October, 1988, the Health Department
instituted a progressive discipline policy for employees at
the pound who had accidents while driving Metro motor
vehicles in which the employees appeared to be at fault.
(Tr. Vol. III, at 74.) The first such accident would result in
48a
an oral reprimand; the second in a written reprimand; the
third in suspension; and the fourth could lead to dis-
missal. (/d.) This policy was communicated to the
employees. (Id.)
31. When Mr. Cole became Manager, he also
announced a new policy that prior disciplinary problems
would not be considered, and that all employees at the
pound would be given a “clean slate”. (Tr. Vol. I, at 99; Tr.
Vol. III, at 50-51, 74.)
32. Nevertheless, in an October 11, 1988, memoran-
dum to Mr. Rhodes, Mr. Cole admonished Mr. Rhodes for
having seven accidents since 1984, and referred to acci-
dents which occurred prior to the institution of the “clean
slate” policy. (Pl.’s Ex. 11, at 4.)
33. During his employment with Metro, Mr. Har-
rison was involved in four accidents while driving a
Metro motor vehicle. (Tr. Vol. I, at 119; Tr. Vol. III, at
75-76; Defs.’ Ex. 6.) Mr. Harrison’s accidents included two
in which he hit other vehicles in the rear; one in which he
backed into another vehicle; and one in which he collided
with a police car at an intersection. (Tr. Vol. II, at 76-77.)
Mr. Harrison asserts that the accident involving the police
car was due to a faulty traffic light. (Tr. Vol. I, at 50.)
Notably, a ticket Mr. Harrison received for that accident
was ultimately dismissed. (Id.) The only other ticket Mr.
Harrison received for an accident was also dismissed.
(Defs.’ Ex. 6.)
34. Mr. Harrison was disciplined for allegedly fail-
ing to report his fourth and last accident in September,
1992. (Defs.’ Ex. 6; Tr. Vol. I, at 53; Tr. Vol. III, at 77-78.) At
that time, the Health Department had no written policy
49a
indicating how accidents should be reported to an
employee’s supervisor, or specifying a manner of report-
ing which was different from that used by Mr. Harrison.
(Pl.’s Ex. 1; Tr. Vol. I, at 145.) Mr. Harrison had called into
the office to report his first three accidents. (Tr. Vol. III, at
77.)
35. The parties are in disagreement as to what actu-
ally happened after Mr. Harrison’s fourth accident. Mr.
Harrison testified that he attempted to contact Mr. Cole,
but that he was informed by another employee, Robert
Rhodes, that Mr. Cole was unavailable. (Tr. Vol. I, at
53-54.) Mr. Harrison further stated that he informed Mr.
Rhodes about the accident and then went to retrieve his
driver’s license, which had been inadvertently taken from
the scene of the accident. (Id.) Upon returning to the
pound, Mr. Harrison spoke with Mr. Cole directly about
the accident. (Tr. Vol. I, at 54-55; Tr. Vol. Ill, at 77-78.) Mr.
Cole maintains that he was first advised of the accident
upon Mr. Harrison’s return to the pound, several hours
after the accident had occurred. (Tr. Vol. III, at 77-78.)
36. Mr. Harrison’s careless driving was one of two
grounds cited for Mr. Harrison’s dismissal. (Defs.’ Ex. 6.)
Mr. Harrison was also dismissed for failing to complete
paperwork properly. (Id.; Tr. Vol. III, at 23, 74.) Metro
discovered the paperwork errors after conducting an
audit of all paperwork completed between October 29,
1991, to July 27, 1992. (Defs.’ Ex. 10.) On July 31, 1992,
Paul Bontrager, Director of the Bureau of Environmental
Health Services at the Health Department, issued a mem-
orandum to all Rabies Control personnel in which he
described specific errors that employees were to avoid on
receipts, and to which he attached exemplars of properly-
50a
completed receipts. (Pl.’s Ex. 25; Tr. Vol. II, at 236.) The
specific items highlighted by Mr. Bontrager in his mem-
orandum were: marking the number of days an animal
was impounded; writing out the total amount of money
collected; marking a line through an error, so as to leave
it readable, and initialing it with the initials of the officer
completing the receipt; and having the owner initial the
receipt, if the error was in the total amount collected. (Id.)
37. Metro asserts that between October 29, 1991,
and July 27, 1992, Mr. Harrison made thirty-eight (38)
errors, and that all other employees combined made
twelve (12) errors. (Tr. Vol. V, at 10-40, 56; Defs.’ Ex. 10.)
Metro computed the number of errors by looking for the
following: errors in math; errors in failing to enter vac-
cination numbers; entry of fees in wrong place; failure to
require Tennessee license; entry of improper dollar fig-
ures for adopted dogs; and entry of non-existent fee. (Tr.
Vol. V, at 10-40; Defs.’ Ex. 10.) There is no allegation or
suggestion in the record that Mr. Harrison misused
funds.
38. Mr. Harrison also conducted an analysis of
paperwork errors. By Mr. Harrison’s accounting, Kenneth
Chambers had 1,628 errors, Billy Hendrixson had 317
errors, Larry Cole had 359 errors, Ronald Cartwright had
324 errors, Victoria Maxwell had 387 errors, and Robert
Harrison had 291 errors. (Pl.’s Ex. 48.) Mr. Harrison com-
puted errors by looking at such items as: failure to circle
adopted or impoundment; failure to state number of days
of impoundment; failure to write out dollar amount;
entry of non-existent (“unaccountable”) fee; blacked out
mistake, instead of line through; math error; both owner
and adoption box marked; no mark in owner or adoption
5la
box; correction not initialed by employee; illegible; no
signature by employee; voided without explanation; type
of offense not indicated; change of total not initialed by
owner; and dollar amount not written correctly. (Tr. Vol.
V, at 58-59; Pl.’s Ex. 48.)
39. By either system of accounting, many paper-
work errors were committed by various employees at the
pound. (PI1.’s Ex. 48; Defs.’ Ex. 10.) Moreover, Metro con-
cedes that other employees made paperwork errors and
were not discharged. (Tr. Vol. I, at 141-42.)
40. Notably, Mr. Harrison did not begin working in
the office or completing paperwork until October, 1991.
(Tr. Vol. IL, at 59-60.) Mr. Harrison worked in the office
only one week out of five thereafter. (Tr. Vol. I, at 60-61;
Pl.’s Ex. 8.) In addition, Mr. Harrison received no training
in how to complete paperwork prior to being assigned to
office duty. (Id. at 61-62, 176.) While Mr. Harrison worked
in the office, the chart of fees to be charged was removed
from the door. (Id. at 72; Pl.’s Ex. 7.)
41. When Mr. Harrison protested the removal of the
chart, Mr. Cole responded that Mr. Harrison should know
the charges after eighteen years of employment. (PI.’s
Exs. 7, 8.) During the Contempt Hearing, Mr. Cole
attempted to compute the same fees without the assis-
tance of a chart, and likewise failed to compute the fees
accurately. (Tr. Vol. I, at 116-17; Pl.’s Ex. 9.)
42. Finally, Metro accused Mr. Harrison of being
rude to a member of the public, Dr. Howard Salyer, who
is also a friend of and dermatologist to Robert Thomas,
Chairman of the Board of Health. (Tr. Vol. I, at 65-66; Pl.’s
Exs. 20, 28.) Upon investigation, the Board of Health
5Za
concluded that Mr. Harrison had not been rude to Dr.
Salyer. (Defs.’ Ex. 6.) As late as January, 1992, Mr. Har-
rison was rated “above standard” for his personal rela-
tionships and his relationships with the public. (Tr. Vol. I,
at 147.)
43. Several other employees at the pound received
only a written reprimand for committing a variety of
infractions, including being involved in accidents while
driving Metro motor vehicles. For example, Robert
Rhodes had twelve such accidents, some of which
required Metro to pay claims. (Pl.’s Ex. 11; Tr. Vol. I, at
122-30.) Mr. Rhodes also received written reprimands for
driving eighty-five (85) miles per hour, and both oral and
written reprimands for taking dogs home from the
pound. (Pl.’s Exs. 11, 12; Tr. Vol. I, at 127-29.) Despite
these numerous offenses, Mr. Rhodes never received any-
thing more than a written reprimand. (Tr. Vol. I, at
122-30.)
44. Another employee, Ed Watkins, received only a
written reprimand on June 25, 1990, after having his
seventh accident in a Metro vehicle in six years. (Pl.’s Ex.
40; Tr. Vol. II, at 168-69.)
45. Troy Kelley received only writte1. reprimands
for using abusive language and threatening the public at
a Board of Health meeting, and for failing to report an
accident to his supervisor. (Pl.’s Ex. 10.) Mr. Kelley was
also known to be intoxicated during working hours by
his superivosr, Mr. Cole. (Pl.’s Ex. 10; Tr. Vol. I, at 133,
211, 213.) In 1988, Mr. Cole went to the Metro jail to assist
Mr. Kelley after he had been arrested for driving under
the influence [“DUI”] during working hours. (Tr. Vol. I, at
53a
134-35.) Mr. Kelley was allowed to continue in his duties
and to drive Metro vehicles while his driver’s license was
revoked due to his DUI convictions. (Pl.’s Ex. 41; Tr. Vol.
II, at 172-73.) Although Mr. Kelley also failed to show up
for work and failed to respond when called on the radio,
he was not discharged. (Pl.’s Ex. 10.) Mr. Kelley received
only a written reprimand and remained employed even
after he was removed from being “on call” for being
intoxicated and failing to respond to calls. (Id.; Tr. Vol. I,
at 71.)
46. Willie Swafford, former Manager of the pound,
stole significant amounts of money from the pound. Nev-
ertheless, he was allowed to resign and was not dis-
charged. (Tr. Vol. I, at 33; Vol. II, at 52-53; Pl.’s Ex. 21.)
Discrimination/Retaliation
47. At this Court’s Contempt Hearing, three differ-
ent witnesses, Robert Gibbs, Jeffrey Baker, and Earl
Woods, testified that they believed Metro would retaliate
against them for testifying. (Tr. Vol. I, at 170, 187-88,
199-200, 214-15, 259.) All three witnesses are black
employees of the pound. (Joint Ex. 1, at 1.) Mr. Gibbs, Mr.
Baker, and Mr. Woods all referred to threatened shift
changes that they believed were retaliatory. (Tr. Vol. I, at
170-71, 199-200, 202, 214-15, 259.)
48. Several current and former employees of the
Rabies Control Division, including Mr. Baker, Mr. Woods,
and Mr. Acklin, testified that they witnessed harassment
of Mr. Harrison. (Tr. Vol. I, at 200-01, 245-46, 259-60.)
54a
49. Upon his appointment as Manager, Mr. Cole
stated that he was “Bontrager’s boy,” and that whatever
Mr. Bontrager said is “what goes.” (Tr. Vol. I, at 35-36,
248.) Mr. Cole informed Mr. Harrison and other black
employees that if they dug a ditch for him he would dig
five for them “until he runs [their] asses away from
there.” (Id. at 35-36, 266-67.) In addition, Mr. Harrison
and another employee, Jeffrey Baker, overheard Mr. Cole
state to Billy Hendrixson, that the white folks were
unable to get rid of Mr. Harrison, but he could get rid of
Mr. Harrison because “it takes a nigger to get one, [and] I
believe I can get him.” (Id. at 37, 207-08.) Mr. Cole is
black.
50. At several different meetings, Mr. Cole told
employees that Metro could afford to pay $20,000.00, the
same amount of money paid to Mr. Harrison upon his
reinstatement, to get rid of someone. (Tr. Vol. 1, at 37-38,
187, 206; Tr. Vol. III, at 51.) Mr. Cole stated in a meeting
that Metro would pay off a lawsuit just to get rid of
someone, no matter how long that individual had been
employed, if Metro wanted to do so. (Tr. Vol. I, at 177.)
51. Mr. Harrison protested his supervisor’s behav-
ior toward him on many occasions. (P1.’s Exs. 7, 20, 50.)
On January 16, 1992, Mr. Harrison wrote a memorandum
to Mr. Cole concerning alleged “harassment” by Mr. Cole,
and sent a copy of the memorandum to the Director of
the Health Department, Dr. Fredia Wadley. (P1.’s Ex. 7; Tr.
Vol. I, at 73-75.) Dr. Wadley testified that Mr. Harrison
complained of harassment in meetings with her, and that
he reported to her that Mr. Cole had referred to Mr.
Harrison as a “nigger”. (Tr. Vol. II, at 49.) On July 31,
1992, Mr. Harrison received a memorandum from Mr.
55a
Bontrager on which Mr. Harrison wrote in response that
he was being harassed for filing an EEOC charge. (P1.’s
Ex. 20.) Mr. Harrison wrote a letter on October 14, 1992,
to the Mayor of Nashville concerning Metro’s “campaign
of harassment” against him. (Pl.’s Ex. 50.) Metro never
took any action to address the concerns raised in Mr.
Harrison’s complaints. (Tr. Vol. I, at 75.)
52. Mr. Harrison and Mr. Baker, both of whom are
black, reported seeing Mr. Hendrixson, who is white,
display a Ku Klux Klan [“KKK”] hood and badge to Mr.
Baker in February, 1992. (Tr. Vol. I, at 69-70, 203-05, 220.)
At that time, Mr. Herdrixson was a Senior Officer, a
position senior to that held by Mr. Baker. (Tr. Vol. I, at
204, 210.) Mr. Hendrixson acknowledged that he is a
collector of. Ku Klux Klan paraphernalia, and admitted
that he used a knife with a Ku Klux Klan insignia. (Id. at
237-38.) Mr. Baker reported the incident in which Mr.
Hendrixson displayed the Ku Klux Klan paraphernalia to
his supervisor, Mr. Cole. (Id. at 204.)
53. Mr. Cole failed to take any action in response to
Mr. Baker’s complaint. (Tr. Vol. I, at 204; Tr. Vol. IIL, at 64.)
Mr. Cole testified that he did not intend to take any action
concerning the display of Ku Klux Klan materials to black
employees under his supervision, and that he did not
concern himself with “small things” like that. (Tr. Vol. III
at 64.)
4,
54. Since May 17, 1982, Mr. Harrison has filed four
charges with the EEOC alleging discrimination in his
employment with the Health Department. (Stipulation,
Doc. No. 32, at 1.)
56a
55. On November 2, 1992, Dr. Wadley wrote a mem-
’ orandum to Mr. Harrison in which she notified him that
he was being discharged from employment. (Defs.’ Ex. 6.)
In her memorandum, Dr. Wadley noted that Mr. Harrison
had not been reluctant to file “numerous” charges with
the EEOC. (Id.; Tr. Vol. II, at 58.)
56. Despite the fact that Dr. Wadley wrote the mem-
orandum discharging Mr. Harrison, Dr. Wadley sat with
the Board of Health during hearings on Mr. Harrison’s
alleged misconduct and termination, and was named as a
member of the Board of Health in transcripts of such
hearings. (Tr. Vol. I, at 78; Tr. Vol. II, at 19, 22-23; Pl.’s Exs.
17, 18.) The Civil Service Rules provide that any person
involved in investigating or prosecuting disciplinary
infractions should not assist or advise the Board in its
duties. (Pl.’s Ex. 1, at 45a-45b.)
57. Both Mr. Cole and Dr. Wadley testified that they
were never informed about this Court’s May 17, 1982,
Order. (Tr. Vol. I, at 166-67, 169; Tr. Vol. II, at 19, 42.) Dr.
Wadley stated that she first learned about the Order
when she was in court to testify in this matter on March
31, 1994. (Tr. Vol. II, at 42.) |
Damages
58. Mr. Harrison alleges that he suffered sleepless-
ness and emotional stress as a result of pressures at work.
(Pl.’s Exs. 14, 15.) Upon consulting a physician, Dr. Gary
McDonald, Mr. Harrison was diagnosed as having stress-
related situational insomnia. (PI.’s Ex. 15.) Dr. McDonald
prescribed a sedative for Mr. Harrison, and noted that Mr.
Harrison worked “under a great deal cf stress with a
57a
manager who is trying to run him off of a job.” (Pl.’s Exs.
14, 15.)
59. At the time of his discharge on November 3,
1992, Mr. Harrison earned approximately $23,072.00 per
year. (Pl.’s Ex. 13.) After his discharge, Mr. Harrison
attempted to find other work. (Tr. Vol. I, at 81-83.) Mr.
Harrison stated that he felt great shame in having to tell
prospective employers that he had been fired from his
last job. (Id. at 83.)
60. Mr. Harrison eventually found custodial work at
Opryland in December, 1993. (Tr. Vol. I, at 112-13.) He
then took a job handling biohazardous waste at night at
Vanderbilt Hospital. (Id. at 84, 113.) In 1993, Mr. Harrison
earned $411.40 at Opryland and $434.24 at Vanderbilt
Hospital, for a total of $845.64 in earnings in 1993. (Pl.’s
Ex. 9A.) Since January 1, 1994, Mr. Harrison has earned
$5.70 per hour at Vanderbilt. (Tr. Vol. I, at 84.) Between
January 1, 1994, and April 30, 1994, Mr. Harrison earned
$3,921.60. Mr. Harrison asserts that his lost earnings
between November 3, 1992, and April 30, 1994, are
$30,068.76.
II. CONCLUSIONS OF LAW
A consent decree is simultaneously a voluntary set-
tlement agreement and a final judicial order. Lorain
NAACP v. Lorain Bd. of Educ., 979 F.2d 1141, 1148 (6th Cir.
1992), cert. denied, __ U.S. __, 113 S. Ct. 2998 (1993).
Accordingly, “a consent decree is aptly described as ‘a
settlement agreement subject to continued judicial polic-
ing.’ ” Id. (citing Williams v. Vukovich, 720 F.2d 909, 920
(6th Cir. 1983).
58a
Once a consent decree has been entered, its provi-
sions operate as an injunction. Williams, 720 F.2d at 920.
Moreover, a court will thereafter: “1) retain jurisdiction
over the decree during the term of its existence; 2) protect
the integrity of the decree with its contempt powers; and
modify the decree should ‘changed circumstances’ sub-
vert its intended purpose.” Id. (citations omitted). Con-
tempt proceedings are therefore an appropriate means by
which a district court may assure compliance with a
Consent Order.
In a proceeding for civil contempt, the plaintiff must
prove by clear and convincing evidence that the defen-
_dant violated the court’s prior order. Glover v. Johnson, 934
F.2d 703, 707 (6th Cir. 1991) (citing NLRB v.: Cincinnati
Bronze, Inc., 829 F.2d 585, 590 (6th Cir. 1987)). A finding of
civil contempt is within the discretion of the district
court. Peppers v. Barry, 873 F.2d 967, 968 (6th Cir. 1989).
Sr
Willfulness is not an element of civil contempt. TWM
Mfg. Co., Inc. v. Dura Corp., 722 F.2d 1261, 1273 (6th Cir.
1983). Moreover, neither advice of counsel nor good faith
conduct is a defense for failure to comply with a court
order. Peppers, 873 F.2d at 968; TWM Mfg., 722 F.2d at 1273
(citation omitted). Rather, the test for determining civil
contempt is whether “the defendants took all reasonable
steps within their power to comply with the court’s
order.” Glover, 934 F.2d at 708 (quoting Peppers, 873 F.2d at
969).
In the present case, the central issue before the Court
is thus whether defendant Metro took all reasonable steps
within its power to comply with this Court’s May 17,
1982, Agreed Order of Judgment. The May 17, 1982,
59a
Order clearly directs Metro to pay Mr. Harrison
$20,000.00 in back pay and attorney’s fees; rehire Mr.
Harrison at a Rabies Officer II position; train Mr. Har-
rison for promotion to a Rabies Officer III position; calcu-
late job seniority and annual and sick leave as if Mr.
Harrison had been continuously working; and refrain
from discriminating against Mr. Harrison or other black
employees on account of race, or in retaliation for Mr.
Harrison’s complaints against discrimination or this law-
suit.
It is undisputed that Metro paid Mr. Harrison
$20,000.00 and rehired him as a Rabies Officer II. Beyond
those measures, however, it is unclear whether Metro
took any further steps to comply with the Court's May 17,
1982. Mr. Harrison never received training and was never
promoted to a Rabies Officer III position. Notably,
employees junior to Mr. Harrison served in the position
of Rabies Control Officer III, and received higher salaries
than Mr. Harrison.
Although training was offered to certain Rabies Con-
trol Division employees, relevant training was neither
announced publicly nor posted on bulletin boards. Mr.
Harrison was thus excluded from opportunities to
improve his skills and gain training credentials. As weil,
even though this Court ordered that Mr. Harrison’s
seniority be restored and Mr. Harrison was thereafter the
second most senior employee at the pound, Mr. Harrison
was paid less than all other Senior Officers and was the
only Senior Officer to be denied supervisory respon-
sibilities.
60a
During the Contempt Hearing, several current and
former employees of the pound testified that they had
witnessed harassment of Mr. Harrison, and that they
feared retaliation for testifying. The Court accepts the
testimony of various witnesses that Mr. Cole harassed Mr.
Harrison, and was unresponsive to Mr. Harrison’s com-
plaints about harassment. The Court notes that Mr. Cole
refused to take corrective action even after being advised
that a white employee was displaying Ku Klux Klan ~
paraphernalia at the pound.
Metro argues that it terminated Mr. Harrison for
careless driving and paperwork errors. Although the
Court is sympathetic to Metro’s characterization of Mr.
Harrison as an imperfect employee, the Court rejects
Metro’s rationale for firing Mr. Harrison as pretextual.
The testimony revealed that several other employees
received only a written reprimand for violations which
were arguably more serious than those committed by Mr.
Harrison. Such violations included those committed by
an employee who was drinking on the job and failing to
show up for work; a previous Manager of the pound who
stole money; an employee who was involved in twelve
(12) accidents in a Metro vehicle; and an employee who
was in seven (7) accidents in a Metro vehicle over a six-
year period. The Court notes that Mr. Harrison was pun-
ished for violating an accident reporting policy which
either does not exist or, if it does, has not been applied
uniformly to all employees.
The Court also questions the legitimacy of Metro’s
paperwork error audit. Mr. Harrison had received no
training in completing receipts and had just begun work-
ing at the office during the period of the audit. Moreover,
6la
the chart of fees was removed from the wall of the office
when Mr. Harrison was working. As Mr. Cole demon-
strated in his testimony, even an employee with more
extensive experience working at the office would have
difficulty calculating fees without the assistance of the
chart. Finally, it appears that Metro arbitrarily selected
which errors to tabulate in its audit, as none of the errors
cited against Mr. Harrison were the type of errors listed
by Mr. Bontrager in his July, 1992, memorandum to all
employees.
The Court finds that Metro has failed to train or
promote Mr. Harrison as directed, and has singled out
Mr. Harrison for arbitrary and discriminatory treatment.
In addition, Metro apparently failed to apprise both Mr.
Harrison’s supervisor, Mr. Cole, and the Director of the
Health Department, Fredia Wadley, of the existence of
this Court’s May 17, 1982, Order. Such a lack of knowl-
edge on the part of Mr. Cole and Ms. Wadley does not
excuse Metro for Mr. Cole and Ms. Wadley’s failure to
comply with this Court’s directives.
Accordingly, the Court concludes that Metro has
failed to take all reasonable steps to comply with this
Court’s May 17, 1982, Order, and that Metro is therefore
in contempt.
Where a complainant prevails in a civil contempt
proceeding, judicial sanctions may be imposed “for either
or both of two purposes: to coerce the defendant into
compliance with the court's order, and to compensate the
complainant for losses sustained.” United States v. United
Mine Workers of Am., 330 U.S. 258, 303-04, 67 S. Ct. 677,
701 (1947). See also TWM Mfg., 722 F.2d at 1273 (“primary
62a
purposes are to compel obedience to a court order and
compensate for injuries caused by noncompliance”). A
district may exercise its discretion in determining the
amount of sanctions to be imposed, and such “power
does not evaporate when the cost of compliance is high.”
Fortin v. Commissioner of Mass. Dep’t of Pub. Welfare, 692
F.2d 790, 798 (1st Cir. 1982). See also Redkin Lab., Inc. v.
Levin, 843 F.2d 226, 230 (6th Cir. 1988), cert. denied, 488
U.S. 852, 109 S. Ct. 137 (1988). In addition, contempt
proceedings are compensable monitoring activities for
which attorney’s fees may be awarded. Glover, 934 F.2d at
716.
The Court finds that Mr. Harrison should be awarded
damages to compensate him for injuries caused by
Metro’s noncompliance with this Court’s May 17, 1982,
Order including lost earnings, costs, and attorney’s fees.
Upon reviewing the file, however, the Court is umable to
determine Mr. Harrison’s lost earnings without further
documentation. Accordingly, the Court requests that Mr.
Harrison submit additional documentation with respect
to his lost earnings, as well as his bill of costs and
attorney's fees.
Ill. CONCLUSION
For the above-stated reasons, the Court hereby finds
defendant Metropolitan Government of Nashville and
Davidson County, Tennessee, in civil contempt of this
Court’s Order of Judgment entered on May 17, 1982.
Accordingly, the Court orders defendant Metropolitan
Government of Nashville and Davidson County, Tennes-
see, to do the following:
63a
1. Reinstate plaintiff Robert Dale Harrison in the
position of Senior Rabies Control Officer in the Rabies
Control Division of the Health Department at a minimum
salary of $23,072.00 per year, plus any salary increases to
which he may be entitled;
2. Train plaintiff to perform efficiently in the posi-
tion and for promotion to a higher pay step;
3. Provide Mr. Harrison with the type of super-
visory opportunities usually awarded Senior Rabies Con-
trol Officers;
4. Calculate job seniority and annual and sick leave
as if there had been no break in Mr. Harrison’s employ-
ment;
5. Announce publicly all training and promotional
opportunities relevant to Rabies Control personnel;
6. Refrain from discriminating against Mr. Harrison
or other black persons on account of race, or in retaliation
for Mr. Harrison’s complaints against racial discrimina-
tion or this lawsuit;
7. Pay sanctions in an amount to be determined by
the Court upon the submission of further documentation
by Mr. Harrison; and
8. Communicate the contents of this Memorandum
and accompanying Order to employees in a supervisory
position to Mr. Harrison at the Health Department.
The Court orders plaintiff Robert Dale Harrison to
submit further documentation regarding his lost earn-
ings, as well as his bill of costs and attorney’s fees, in
accordance with this Memorandum. Furthermore, the
64a
Court orders that plaintiff’s lawsuit, styled Robert Dale
Harrison vs. Metropolitan Government of Nashville and
Davidson County, No. 3:93-1075, filed on December 30,
1993, be consolidated with this action.
An Order consistent with the findings herein is filed
contemporaneously.
Entered this the 10th day of June, 1994.
/s/ John T. Nixon
JOHN T. NIXON, CHIEF JUDGE
UNITED STATES DISTRICT
COURT
65a
IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ROBERT DALE HARRISON
vs.
]
]
] No. 80-3271
METROPOLITAN GOVERNMENT ]
OF NASHVILLE AND DAVIDSON ]
COUNTY, TENNESSEE, a body ]
corporate and BOARD OF ]
HEALTH OF THE ]
METROPOLITAN GOVERNMENT ]
OF NASHVILLE AND DAVIDSON
COUNTY, TENNESSEE, a body
politic, and DR. JOE M.
STRAYHORN, MRS. ELIZABETH
L. JACOBS, DR. DOROTHY L.
BROWN, MRS. GAIL PIGG, DR.
HAROLD JORDAN, MRS.
REBECCA CLARK CULPEPPER,
who constitute all of the members
of said BOARD OF HEALTH and ]
JOSEPH M. BISTOWISH, M.D. ]
—t a! to! toed tee! ted tee! theme! themed
ORDER
This matter was heard upon plaintiff’s Petition to
adjudicate defendant Metropolitan Government of
Nashville and Davidson County, Tennessee, in civil con-
tempt of this Court’s Order of Judgment entered on May
17, 1982, in the above-styled case.
Consistent with the contemporaneously-filed Mem-
orandum, the Court hereby finds defendant Metropolitan
66a
Government of Nashville and Davidson County, Tennes-
see, in CIVIL CONTEMPT of this Court’s Order of Judg-
ment entered on May 17, 1982. Accordingly, the Court
ORDERS defendant Metropolitan Government of
Nashville and Davidson County, Tennessee, to do the
following:
1. Reinstate plaintiff Robert Dale Harrison in the
position of Senior Rabies Control Officer in the Rabies
Control Division of the Health Department at a minimum
salary of $23,072.00 per year, plus any salary increases to
which he may be entitled;
2. Train plaintiff to perform efficiently in the posi-
tion and for promotion to a higher pay step;
3. Provide Mr. Harrison with the type of super-
visory opportunities usually awarded Senior Rabies Con-
trol Officers;
4. Calculate job seniority and annuai and sick leave
as if there had been no break in Mr. Harrison’s employ-
ment;
5. Announce publicly all training and promotional
opportunities relevant to Rabies Control personnel;
6. Refrain from discriminating against Mr. Harrison
or other black persons on account of race, or in retaliation
for Mr. Harrison’s complaints against racial discrimina-
tion or this lawsuit;
7. Pay sanctions in an amount to be determined by
the Court upon the submission of further documentation
by Mr. Harrison; and
67a
8. Communicate the contents of this Memorandum
and accompanying Order to employees in a supervisory
position to Mr. Harrison at the Health Department.
The Court ORDERS plaintiff Robert Dale Harrison to
submit further documentation regarding his lost earn-
ings, as well as his bill of costs and attorney’s fees, in
accordance with the contemporaneously-filed Memoran-
dum. Furthermore, the Court ORDERS that plaintiff's
lawsuit, styled Robert Dale Harrison vs. Metropolitan Gov-
ernment of Nashville and Davidson County, No. 3:93-1075,
filed on December 30, 1993, be CONSOLIDATED with
this action.
Entered this the 10th day of June, 1994.
/s/ John T. Nixon
JOHN T. NIXON, CHIEF JUDGE
UNITED STATES
DISTRICT COURT
68a
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
- ROBERT DALE HARRISON,
Saison
— CIVIL ACTION
VS. NO. 80-3271
OF NASHVILLE AND DAVIDSON JUDGE NIXON
COUNTY, TENNESSEE, ETC.,
ET AL.,
)
)
)
)
METROPOLITAN GOVERNMENT
)
)
)
Defendants )
ORDER OF JUDGMENT
Upon agreement of the parties hereto, this case is
hereby dismissed upon compliance with the following,
which is hereby ORDERED, ADJUDGED AND
DECREED:
1. The defendant Board of Health of the Metro-
politan Government of Nashville and Davidson County
shall rehire the plaintiff at the position of Rabies Control
Officer II in the Rabies Control Division of the Metro-
politan Department of Health at a minimum salary of
$1,057.00 per month, plus any pay increments or raises to
which he may be entitled. The_rehire shall be effective.
June 1, 1982.
2. The plaintiff shall receive any on-the-job training
necessary to perform efficiently in the position and for
promotion to the position of Rabies Control Officer III
69a
upon such position becoming available and plaintiff
meeting the qualifications therefor.
3. Job seniority will be calculated as if the plaintiff
has been on the job with no break in service. ~
4. The plaintiff will receive back pay in the amount
of $15,000.00 with necessary deductions for Federal
Income Tax and FICA contribution.
5. Annual leave and sick days will be calculated as
if there had been no break in plaintiff’s employment at
the Metropolitan Health Department and will be a mini-
mum of 18 days of annual leave and sick days.
6. Attorney’s fees of $5,000.00 will be paid to plain-
tiff’s attorney over and above the back pay above
ordered, the attorney’s fee having been determined to be
a reasonable fee ‘or services.
7. The defendants shall not discriminate against
plaintiff or other black persons on account of race, or on
account of his complaints against racial discrimination or
;
this lawsuit. 4
8. The parties to this action are hereby mutually
released of any further liability to each other, or their
privies, arising out of this action; and any and all charges
against the defendants either individually or in their
professional capacities are dismissed upon defendants’
compliance with this Order of Judgment.
9. The defendant, the Metropolitan Government,
shall pay all costs resulting from this action.
70a
Enter this 17 day of May 1982.
/s/ John T. Nixon
U.S. DISTRICT JUDGE
ENTER AS A CONSENT ORDER:
WILLIAMS AND DINKINS
By /s/ Avon N. Williams, Jr.
Avon N. Williams, Jr.
Attorneys for Plaintiff
/s/ Robert Dale Harrison
Robert Dale Harrison
Plaintiff
/s/ John Kennedy, Jr.
JOHN KENNEDY, JR.
Attorney for Defendants
CERTIFICATE
The undersigned hereby certifies that copy of the
foregoing Order Of Judgment was mailed to William
Howard, Esquire and John Kennedy, Jr., Esquire, Metro-
politan Attorneys, Metropolitan Courthouse, Nashville,
Tennessee 37201, this the 14th day of May, 1982.
/s/ Illegible
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.