Petition for Writ of Certiorari — Metropolitan Government of Nashville & Davidson County v. Harrison

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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.

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