Appendix — Arrington v. Wilks
Supreme Court brief1995
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No.4 941422 FB 231995
IN THE OFFICE QE THE GLARE
Supreme Court of the United States
October Term, 1994
JOHN W. MARTIN, ef al.,
Petitioners,
V.
ROBERT K. WILKS, ef al.,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
APPENDIX
ROBERT D. JOFFE
Richard T. Seymour Counsel of Record
Sharon R. Vinick
LAWYERS’ COMMITTEE
FOR CIVIL RIGHTS
Rowan D. Wilson
Michelle K. Jacobs
Karin J. Dell’ Antonia
UNDER LAW
1450 G Street, NW 7 SWAINE &
(Suite 400)
Washington, DC 20005 Worldwide Plaza
(202) 662-8350 825 Eighth Avenue
New York, NY 10019
Susan W. Reeves (212) 474-1000
714 29th Street South
Birmingham, AL 35233
(205) 322-6631
Counsel for Petitioners
John W. Martin, et al.
February 23, 1995
ls 9@# 2
APPENDIX
Page
U.S. Constitutional Amendment XIV, §1 .......... Al
Title VII of the 1964 Civil Rights Act,
er Al
In re: Birmingham Reverse Discrimination
Empl. Litig., 20 F.3d 1525 (11th Cir.
PO se ae Mat eee dso cwhss vows A2
Bennett v. Arrington, 806 F. Supp. 926
UU WUE op ack Pencucdss cease cess A5S2
In re: Birmingham Reverse Discrimination
Empl. Litig., 39 Fair Empl. Prac. Cas.
(BNA) 1431 (N.D. Ala. 1985) ........0........ A65
United States v. Jefferson County, 28 Fair
Empl. Prac. Cas. (BNA) 1834 (N.D.
Ce rg ss dnt bd os Kk vs ha A106
Consent Decree with the City of
Birmingham, May 19, 1981 (with
Sra aa a a a All8
United States v. Jefferson County, Order
and Opinion of Judge Pointer,
Nos. CV 75-P-666-S, CV 74-Z-17-S,
CV 74-Z-12-S (May 21,1991) ...... 0.0.00... A166
United States v. Jefferson County, Order
and Opinion of Judge Pointer,
Nos. CV 75-P-666-S, CV 74-Z-17-S,
CV 74-Z-12-S (September 25, 1991)........... Al8]
STATUTORY AND CONSTITUTIONAL PROVISIONS
U.S. Constitutional Amendment XIV, § 1
The Equal Protection Clause provides, in relevant part, that
“[nJo state shall make or enforce any law which shall . . . deny
to any person within its jurisdiction the equal protection of the
laws”. U.S. Const. amend. XTV, § 1.
42 U.S.C. § 2000e-2
Title VII of the Civil Rights Act of 1964 provides, in
pertinent part:
(a) It shall be unlawful employment practice for an
employer—
(1) to fail or refuse to hire . . . or otherwise to discriminate
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of
such individual’s race. . . ; or
(2) to ... classify his employees ... in any way which
would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his
Status as an employee, because of such individual’s race. . . .
42 U.S.C. § 2000e-2.
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In re BIRMINGHAM REVERSE DISCRIMINATION
EMPLOYMENT LITIGATION.
James A. BENNETT, Plaintiff,
Floyd E. Click; James D. Morgan; Joel Alan Day; Gene E.
Northington; Vincent Joseph Vella; and Lane L.
Dendard, Plaintiffs-Appellants, Cross Appellees,
Vv.
Richard ARRINGTON, Jr., as Mayor of the City of
Birmingham; City of Birmingham; James B. Johnson;
Henry P. Johnston; and Hirma Y. McKinney, as
Members of the Jefferson County Personnel Board;
Joseph W. Curtin, as Director of the Jefferson County
Personnel Board; and Jefferson County Personnel
Board; and Jefferson County Personnel Board,
Defendants-Appellees,
John W. Martin, Major Florence, Ida McGruder, Sam
Coar, Eugene Thomas, Charles Howard, Defendant-
Intervenors-Appellees-Cross Appellants,
United States of America, Defendant-Intervenor-
Appellee.
BIRMINGHAM ASSOCIATION OF CITY EMPLOYEES,
an unincorporated labor association, and Kenneth O.
Ware, Plaintiffs-Appellants, Cross Appellees,
Gerald L. Johnson; Philip H. Witley; David H. Woodall;
Danny R. Laughlin; Marshall G. Whitson; Dudiey L.
Greenway, Plaintiffs,
Vv.
Richard ARRINGTON, Jr., as Mayor the City of
Birmingham; City of Birmingham; City of Birmingham;
James B. Johnson; Henry P. Johston; and Hiram Y.
McKinney, as Members of the Jefferson County
Personnel Board; Joseph W. Curtin, as Director of the
Jefferson County Personnel Board; and the United
States of America, Defendants—Appellees;
' A3
John W. Martin, Major Florence, Ida McGruder, Sam
Coar, Wanda Thomas, Eugene Thomas and Charles
Howard, Defendants-Intervenors-Appellees, Cross
Appellees,
Robert K. WILKS; Carlice E. Payne; Ronnie J. Chambers;
John E. Garvich, Jr., James W. Henson; Robert Bruce
Millsap, Plaintiffs—A ppellants, Cross Appellees,
United States of America,
Plaintiff-Intervor,
Howard E. Pope, Charles E. Carlin, Plaintiffs-
Intervenors-Appellants,
v.
Henry P. JOHNSTON, Defendant,
John W. Martin, Major Florence, Ida McGruder, Sam
Coar, Eugene Thomas and Charles Howard,
Defendants-Intervenors-Appellees-Cross Appellants,
Wanda Thomas, Defendant, Intervenor.
No. 92-6778.
United States Court of Appeals,
Eleventh Circuit.
May 4, 1994.
Subsequent to entry of consent decrees in prior employment
discrimination litigation, providing for plan to remedy
discrimination against blacks in city’s public service
employment practices, white firefighters brought action against
city and personnel board. The United States, a signatory of
consent decrees, brought action against city and personnel
board, asserting essentially the same allegations as individual
firefighters. Following affirmance in part and reversal in part,
833 F.2d 1492, the Supreme Court, 490 U.S. 7565, 109 S.Ct.
2180, 104 L.Ed.2d 835, affirmed. Following remand for further
trial, the United States District Court for the Northern District
of Alabama, Nos. CV-84-0903-S, CV-82-P-00850-S, CV82-P-
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01852-8, CV83-P-02116-S, Sam C. Pointer, Jr., Chief Judge,
806 F.Supp. 926, found for city. Appeal was brought. The Court
of Appeals, Black, Circuit Judge, held that: (1) city presented
sufficient evidence to allow trial court to make factual
determination that employer had strong basis for its conclusion
that remedial action was necessary, and thus thorough appellate
review was permitted; (2) affirmative action plan unnecessarily
trammeled rights of nonblack employees and thus violated
Title VII; and (3) city did not properly consider efficacy of
alternatives to race-based promotional quota system for fire
lieutenants, for purposes of determining whether consent
decree’s quota plan was narrowly tailored to accomplish
compelling purpose.
Affirmed in part, reversed in part, and remanded.
District court need not await party’s motion to terminate
consent decree over which court retains supervisory jurisdiction;
when remedy prescribed in consent decree is accomplished,
district court may sua sponte terminate decree.
Employers may develop affirmative action plans designed
to further Title VII’s purpose of eliminating effects of
discrimination in workplace. Civil Rights Act of 1964, § 701 et
seq., as amended, 42 U.S.C.A. § 2000¢ et seq.
Employer’s decision to account for race in affirmative
action plan is consistent with Title VII’s objective of breaking
down old patterns of racial segregation and hierarchy. Civil
Rights Act of 1964, § 701 et seq., as amended, 42 U.S.C.A.
§ 2000e et seq.
Employer implementing race-conscious affirmative action
plan must assure that race will be considered consistent with
Title VII’s purpose, and that interests of those employees not
benefiting from plan will not be unduly infringed. Civil Rights
Act of 1964, § 701 et seq., as amended, 42 U.S.C.A. § 2000¢e et
seq.
In determining whether affirmative action plan was
implemented consistent with Title VII’s purpose and without
unduly infringing interests of nonblacks, Court of Appeals was
AS
required to first determine whether employer’s consideration of
race or promotional candidates was justified by manifest racial
imbalance that reflected underrepresentation of blacks in
traditionally segregated job categories, and, if such justification
was present when plan was developed, to determine whether
plan itself provided proper remedy for that imbalance. Civil
Rights Act of 1964, § 701 et seq., as amended, 42 U.S.C.A.
§ 2000e et seq.
Remedy is proper under Title VII if affirmative action plan
does not unnecessarily trammel rights of nonbeneficiary
employees or create absolute bar to their advancement. Civil
Rights Act of 1964, § 701 et seq., as amended, 42 U.S.C.A.
§ 2000e et seq.
For purposes of challenge under Title VII to affirmative
action plan, when job requires no special expertise, determining
whether manifest imbalance exists that would justify race-
conscious decision making by employer involves comparison
of percentage of minority employees in that job with percentage
of minorities in general area labor market; however, when job
requires special skills or training, appropriate comparison is to
those in labor market who possess that special skill or training.
Civil Rights Act of 1964, § 701 et seq., as amended, 42
U.S.C.A. § 2000e et seq.
In determining whether manifest imbalance existed that
would justify race-conscious decision making by city in
response to suit alleging that city violated Title VII in making
promotions from firefighter to fire lieutenant, appropriate
comparison was between black representation in lieutenant
ranks and black representation among entry level firefighters.
Civil Rights Act of 1964, § 701 et seq., as amended, 42
U.S.C.A. § 2000e et seq.
In Title VII action challenging affirmative action plan
adopted by city to remedy discrimination against blacks in fire
department, city presented sufficient evidence to allow trial
court to make factual determination that employer had strong
basis for its conclusion that remedial action was necessary, and
thus Croson requirement that government entity identify with
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specificity the discrimination it seeks to remedy was satisfied,
and thorough appellate review was permitted; city was not
required to make formal findings about its past discrimination,
and district court found, inter alia, that blacks were not
represented in lieutenant ranks. Civil Rights Act of 1964, § 701
et seq., as amended, 42 U.S.C.A. § 2000¢e et seq.
For trial court to conclude that remedial action under
Title VII is warranted, there must be sufficient evidence to
allow it to make factual determination that employer had strong
basis in evidence for its conclusion that remedial action was
necessary. Civil Rights Act of 1964, § 701 et seq., as amended,
42 U.S.C.A. § 2000¢e et seq.
Unless trial court makes factual determination that employer
had strong basis in evidence for its conclusion that remedial
action was necessary to redress Title VII violation, appellate
court has no basis upon which to determine whether race-based
action was justified as remedy for prior discrimination by city.
Civil Rights Act of 1964, § 701 et seq., as amended, 42
U.S.C.A. § 2000e et seq.
City settling Title VII litigation by consent decree is not
required to declare itself to have violated law by discriminating
in employment, detailing elements of potential plaintiff’s
complaint in the process, before adopting affirmative action
plan designed to remedy effects of its own past discrimination.
Civil Rights Act of 1964, § 701 et seq., as amended, 42
U.S.C.A. § 2000e et seq.
Before city may settle Title VII litigation by consent decree,
it is necessary that trial court make some finding that city
engaged in past discrimination, in order to allow for proper
judicial review of city’s use of race in its affirmative action
plan. Civil Rights Act of 1964, § 701 et seq., as amended, 42
U.S.C.A. § 2000e et seq.
Court of Appeals review district court’s factual findings
under clearly erroneous standard.
District Court’s legal conclusions are subject to de novo
review.
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In Title VII action challenging affirmative action plan
adopted by city to remedy discrimination against blacks in fire
department, evidence was sufficient to support findings that
manifest racial imbalance existed and that city was therefore
justified in implementing affirmative action plan that provided
for use of race as remedy; no department employees above rank
of firefighter were black, and city was aware that district court
had disapproved hiring tests because they had adverse impact
on blacks. Civil Rights Act of 1964, § 701 et seq., as amended,
42 U.S.C.A. § 2000e et seq.
City’s affirmative action plan, designed to remedy
discrimination against blacks in fire department, unnecessarily
trammeled rights of nonblack employees and thus violated
Title VII; plan established right quota in that it made race the
sole factor used to determine eligibility for lieutenant
promotions, 50-percent figure chosen for quota was unrelated
to percentage of blacks in firefighter ranks, 50-percent figure
was to be in use indefinitely, and plan was entered pursuant to
voluntary consent decree, not pursuant to court order to combat
egregious refusal to follow court orders. Civil Rights Act of
1964, § 701 et seq., as amended, 42 U.S.C.A. § 20006 et seq.
Entry level hiring goals, while burdening some innocent
persons, do not impose same type of injury on nonbeneficiaries
as that imposed by use of race to determine employee layoffs,
for purposes of determining whether affirmative action plan
unnecessarily trammels rights of nonbeneficiaries under
Title VII. Civil Rights Act of 1964, § 701 et seq., as amended,
42 US.C.A. § 20006 et seq.
Promotion situation lies somewhere between entry level
hiring and layoffs in terms of burden permitted on
nonbeneficiaries, for purposes of determining whether
affirmative action plan unnecessarily trammels nghts of
nonbeneficiaries under Title VII. Civil Rights Act of 1964,
§ 701 et seq., as amended, 42 U.S.C.A. § 20006 et seq.
Under Title VII, affirmative action plan can unnecessarily
trammel rights of nonminority employees without requiring
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firings or layoffs.Civil Rights Act of 1964, § 701 et seq., as
amended, 42 U.S.C.A. § 2000e et seq.
Where nonminorities bore entire burden of race-based
promotion remedy under city’s affirmative action plan designed
to remedy discrimination in the fire department, it was
imperative under Title VII that remedy be related in some
reasonable manner to representation of minorities in
department. Civil Rights Act of 1964, § 701 et seq., as amended,
42 U.S.C.A. § 2000e et seq.
Governmental entity should take immediate steps to remedy
its history of discrimination by awarding victims of that
discrimination their rightfully earned promotions. Civil Rights
Act of 1964, § 701 et seq., as amended, 42 U.S.C.A. § 2000e et
seq.
Strict scrutiny is employed in examining racial classification
under equal protection clause even though classification
operates against a group not historically subject to
discrimination by government. U.S.C.A. Const.Amend. 14.
To assure proper balance between individual nghts secured
by Fourteenth Amendment and permissible burden placed on
innocent persons, use of race in government decision making
is subject to strict judicial scrutiny to smoke out illegitimate
uses of race by assuring that the legislative body is pursuing a
goal important enough to warrant use of a highly suspect tool.
U.S.C.A. Const.Amend. 14.
To survive challenge under equal protection clause, city’s
use of race in making promotion decisions was required to be
justified by compelling interest and to be narrowly tailored to
achieve that interest. U.S.C.A. Const.Amend. 14.
To survive challenge to its use of race in making promotion
decisions under equal protection clause, city was required to
show that compelling government purpose justified use of racial
preference, and that means chosen was narrowly tailored to
achieve that purpose. U.S.C.A. Const.Amend. 14.
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Public employers are required to eliminate vestiges of prior
racial segregation and discrimination. U.S.C.A.
Const.Amend. 14.
While attempting to eliminate vestiges of past
discrimination against persons of one race, government must
minimize imposition of new discriminations on persons of other
races. U.S.C.A. Const.Amend. 14.
Before governmental unit may execute affirmative action
| plan remedying prior discrimination by using race in narrowly
| tailored manner, showing must be made that governmental unit
| engaged in prior discrimination, and strong basis must exist in
evidence that remedial action is warranted. U.S.C.A.
i Const.Amend. 14.
Even when city is justified in implementing affirmative
action plan, only a plan that is carefully constructed will do.
U.S.C.A. Const.Amend. 14.
Classifications based upon race carry a very real danger of
harm because they threaten to stigmatize individuals by reason
of their membership in a racial group. U.S.C.A.
Const.Amend. 14.
Race conscious government policy justified by compelling
purpose of remedying past discrimination must also use race in
as limited a manner as possible to accomplish that compelling
purpose. U.S.C.A. Const.Amend. 14.
Several factors determine whether race-based promotional
relief is narrowly tailored to accomplish a compelling purpose,
including necessity for relief and efficacy of alternative
remedies, flexibility and duration of relief including availability
of waiver provisions, relationship of numerical goals to relevant
labor market, and impact of relief on rights of nonbeneficiaries.
U.S.C.A. Const.Amend. 14.
City did not properly consider efficacy of alternatives to
race-based promotional quota system for fire department
lieutenants, for purposes of determining whether consent
decree’s quota plan was narrowly tailored to accomplish
compelling purpose; city had increased number of black
F
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firefighters fivefold prior to implementation of system, and city
could have implemented plan that accounted for race of
candidate as one factor among many to be considered. U.S.C.A.
Const.Amend. 14.
Where relief is not provided to identified victims of
discrimination, given odious nature of race-based decision
making, race-neutral alternatives should be considered before
government implements affirmative action plan using race as
sole criteria upon which promotions are based. U.S.C.A.
Const.Amend. 14.
Flexibility and duration of city’s affirmative action plan,
which included race-based promotional system for fire
department lieutenants, was insufficient to allow finding that
plan was narrowly tailored to accomplish compelling purpose;
system placed great burden on small number of nonblack
firefighters since lieutenant was the only position for which
firefighter might reasonably compete, and in attempting to
achieve government-mandated racial balancing, system
perpetuated discrimination by government. U.S.C.A.
Const.Amend. 14.
Fact that no relationship existed between numerical goal for
fire lieutenant promotions and representation of blacks among
firefighters compelled finding that city’s affirmative action plan
did not use race in narrowly tailored manner. U.S.C.A.
Const.Amend. 14.
Pointed impact of relief on nonbeneficiaries compelled
finding that city’s race-based promotional quota system for fire
department lieutenants, initiated pursuant to consent decree, was.
., hot narrowly tailored to accomplish compelling purpose;
provisions of decree were to continue until racial balancing
objective was achieved or until decree was terminated, and
nonblack firefighters who constituted 90 percent of firefighters
were consigned to competing for half of promotions to
lieutenant. U.S.C.A. Const.Amend. 14.
Appeal from the United States District Court for the
Northern District of Alabama.
All
Before EDMONDSON and BLACK, Circuit Judges, and
HENDERSON, Senior Circuit Judge.
BLACK, Circuit Judge:
In the latest chapter of this ongoing litigation we determine
whether certain provisions of a 1981 consent decree mandating
that the City of Birmingham (City) select employees for
promotion based upon their race can withstand scrutiny under
Title VII of the Civil Rights Act of 1964 and the Equal
Protection Clause of the Fourteenth Amendment. We hold that
they cannot.!
I. Background
Appellants are fourteen male, non-black employees of the
Birmingham fire rescue service (BFRS) and one male-non-black
employee of the City engineering department.” Appellants
assert that the City, acting pursuant to a consent decree it
entered in 1981 to resolve then-pending litigation, violated their
rights under Title VII and the Equal Protection Clause when it
made promotion decisions based upon the race of the person to
be promoted. To place the City’s use of race in promoting
candidates under the consent decree in context, we first review
the pertinent events that led to the consent decree and brought
us to this stage of the litigation.
| We affirm without discussion the district court’s holding that § 108
of the Civil Rights Act of 1991 is inapplicable because the conditions for
application of that section, ever if retroact ve application is appropriate, are
not present in this case.
2 The engineering department employee has been included among the
Appellants since the original trial of Appellants’ case is 1985. No material
aspect of the claims relating to the engineering department is discussed in
the district court opinion that is the subject of this appeal. We will, therefore,
confine our analysis to the claims raised regarding the BFRS. On remand,
the district court should apply our analysis and holdings to all Plaintiffs with
pending claims.
4 ;
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A. Events Leading to the Consent Decree
In the mid-1970s, the United States, the Ensley Branch of
the NAACP, and seven black individuals (Martin plaintiffs)
sued the City and the Personnel Board of Jefferson County
(Board) in three separate class actions. The suits charged that
the City and the Board had unlawfully discriminated against
blacks and women in their hiring and promotion decisions.” The
district court consolidated the three original cases and held two
trials. The first trial, in 1976, was held on the limited issue of
the validity of the Board’s screening tests for entry-level police
and firefighter applicants. The district court found that the tests
violated Title VII and ordered the Board to certify a number of
black applicants for employment with the City. Jn re
Birmingham Reverse Discrimination Employment Litig., 833
F.2d 1492, 1494 & n.4 (11th Cir. 1987), aff’d sub nom.
Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835
(1989) (BRDEL J). In 1979, the district court held a second tnal
on the validity of other testing and screening devices used by
the Board. /d.
While awaiting the outcome of the second trial, the parties
entered settlement negotiations. Eventually, two consent decrees
resulted, one between the plaintiffs and the Board and the other
between the plaintiffs and the City. The City’s negotiation
process was not without its puzzling aspects. As in any
negotiation, the City and the United States exchanged proposals
several times. The City initially proposed for itself a fixed quote
of 35% across-the-board black appointments to all job openings
in the City for five years. The United States, the party pressing
the discrimination claim against the City, countered with a
proposal that addressed certain job categories individually. With
3 The Board and the City share responsibility for hiring and promoting
City employees. The Board administers tests, tracks employee seniority
points, and develops lists of certified candidates for various job openings
within City government. When a job opening occurs, the Board certifies
candidates it deems qualified for the position to the City and the appropriate
City official selects a candidate from the Board-certified list. See infra
part 1.D.
_eee Ae ee
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respect to BFRS promotions, the United States’ response set a
lower standard than that initially proposed by the City for
promotions of blacks to the lieutenant ranks; it proposed
promoting blacks from entry-level firefighter to fire lieutenant
at a rate equal to two times the percentage of blacks in the entry
level position.’ That is, because at that time blacks comprised
9% of entry-level firefighters, blacks would receive:18%, not
the City’s proposed 35%, of all promotions to fire lieutenant.
In response, the City accepted the two-times-representation
language, but added for itself a more stringent minimum
requirement of 25% black promotions in all job categories,
regardless of black representation in the job classification
immediately below the promotional job. Under the City’s
counter-proposal, then, blacks would receive 25% rather than
the United States’ proposed 18%, of all promotions to fire
lieutenant.
After additional negotiation and cross-submission of draft
decrees, the City’s attorneys presented a settlement proposal to
the Birmingham City Council for approval.” The decree as it
read when presented to the City Council set a long-term
: Throughout this opinion, we refer to the pyramid-type hierarchy of
the BFRS as follows: firefighter is the entry-level position within the
department; fire lieutenant is the first significant promotion level to which
a firefighter might aspire; fire captain is the next promotion following service
as a fire lieutenant; battalion chief is the position to which a fire captain
might be promoted; and fire chief is the top office within the BFRS. We
mean by the terms firefighter only those BFRS employees occupying entry-
level positions. Firefighter does not include fire lieutenants, captain, and
battalion chiefs.
> Testimony indicates that the Mayor called the City Council to a
special meeting the day before its regularly scheduled meeting to hear a
presentation by attorneys for the City regarding a proposed settlement. It is
unclear from the record whether Council members were given copies of the
draft consent decree at that meeting. It is clear that two City attorneys
involved in the litigation and settlement negotiations discussed the general
terms of the decree with the Council and recommended settlement as the
preferred course over continuing to defend the City’s record regarding
employment opportunities for blacks and women.
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objective for the City to employ blacks in all jobs within the
City in proportion to the representation of blacks in the
surrounding Jefferson County labor market, which was 28% at
the time. There was no fixed annual percentage of black
promotions to fire lieutenant. Instead, the decree presented to
the City Council mandated that two of the next four lieutenant
promotions would be filled by blacks; thereafter, the City would
promote blacks to lieutenant at gwo times the rate of black
representation among firefighters.° The decree as presented also
provided for back pay relief in an unspecified amount to
individuals who were the victims of alleged past employment
discrimination by the City.’ The City Council passed Resolution
© In 1981, when the decree was negotiated, approximately 9% of BFRS
firefighters were black. This provision, therefore, meant that approximately
18% of annual promotions to lieutenant would be filled by blacks. The
decree, however, also contained provisions designed to increase the number
of black firefighters hired by the City. Therefore, as the percentage of black
firefighters increased, the percentage of lieutenant promotions annually
reserved for blacks would also increase.
7 The record regarding back pay relief is somewhat confusing. At one
Stage in the negotiations, the United States was demanding that the City pay
$500,000 in back pay relief to alleged victims of discrimination. The final
decree provides for payment of $265,000 to settle all claims against the City.
Whether the total amount of back pay relief to be provided by the City had
been agreed upon when the decree was presented to the City Council is
uncertain. Defense exhibit 39, the draft of the decree as itstood when the City
Council met, contains a provision that “[t]he City agrees to pay the sun of
$ in full and complete settlement of the claims against the City
of Birmingham for monetary relief of the blacks identified on Appendices __
and ___ of this Decree.” The Appellees maintain that attorneys for the City
told the City Council that $265,000 would be paid to settle the claims.
James Baker, City Attorney when the decree was entered, testified at the
1991 trial. Baker’s testimony indicates that the City Council approved a
settlement sum of $265,000 when it passed Resolution 547-81. Baker
testified on cross examination as follows:
Q. And you prepared Resolution 547 which authorized entry into the
consent decree?
A. Yes, sir.
Q. And did Resolution 547 talk about the amount of money or just the
entry into the decree?
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547-81 at its regular meeting the following day, authorizing
entry into the consent decree.
Resolution 547-81 notes that the parties had reached
substantial agreement on the content of a consent decree
designed to end the pending litigation. As we read the
resolution, it authorized the City Attorney, with approval of the
Mayor, to enter into a decree “embodying such terms” as those
that were presented to the Council. Following passage of
Resolution 547-81, negotiations continued and produced the
final version of the decree, which was subsequently approved
by the district court and is still in effect today.
In the final decree the City did not admit to “any violation
of law, executive order or regulation,” but adopted the following
plan to remedy past underrepresentation of blacks and women
in City employment:
In order to correct the effects of any underrepresentation of
blacks and women in the City’s workforce caused by any
alleged prior discriminatory employment practices, the City
agrees to adopt as a long term goal, subject to the
availability of qualified applicants, the employment of
A. My recollection is that let me look at it and discuss the money
because the City would not have been able to settle this case without
council approving that sum of money being paid.
Q. Well, not only did the council approve the sum of money but the
council approved entry into the decree by Resolution 547?
A. It did. Yes.
(Emphasis added.) Resolution 547-81, however, contains no reference to any
sum of money to be appropriated for settlement. It simply authorizes the City
Attomey, following consultation with the Mayor, to enter into a consent
decree to settle pending litigation. We are unable to tell at what point the
parties reached agreement on a dollar figure to settle outstanding claims. It
is clear that no figure was approved in Resolution 547-81 and that the City
desired to keep its financial obligations to a minimum.
8 Certain aspects of the decree were modified by the district court in
1991. An appeal from the modification order is before another panel of this
Court. See Birmingham Firefighters v. Seibels, \\th Cir. 1994, __ F.3d ____
(No. 91-7799).
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blacks and women in each job classification in each
department of the City of Birmingham in percentages which
approximate their respective percentages in the civilian
labor force of Jefferson County as defined by the 1970
Federal Census.
Decree 95. The final decree also set a specific annual
percentage for black promotions to fire lieutenant different from
the one contained in the version presented to the City Council.
Instead of setting black fire lieutenant promotions at two times
the percentage of black firefighters, the final decree establishes
that, each year, 50% of all promotions to lieutenant in the BFRS
will be filled by qualified blacks. Decree J 6. Under the decree,
for every two lieutenant positions that come open, one must be
filled by a black candidate, as long as there are qualified black
applicants.”
[1] The decree contains no termination date. Rather, it
provides that the district court will retain jurisdiction over the
decree and that, after the decree operates for a minimum of six
years, any party may move to modify or dissolve it. ™
9 The decree also provides that, subject to the availability of qualified
black candidates, at least one of the next two captain vacancies in the BFRS
would be filled by a black, with subsequent captain and battalion chief
openings filled at the rate of two times the percentage representation of
blacks in the job category from which captains and battalion chiefs are
usually drawn. Decree § 8. It is unclear exactly how this provision was
intended to work given that, at the time the decree was entered, there were
no black lieutenants from which to select a black captain. Another provision
of the decree, however, provides some insight. “Employees who have
obtained permanent status as fire lieutenant or fire captain shall not be
deemed ineligible for promotion to the next higher rank based upon any
minimum length of service or time in rank.” Decree 4 19b. This allows black
firefighters to progress rapidly through the ranks of lieutenant and captain
to battalion chief.
10 A district court need not await a party’s motion to terminate a
consent decree over which the court retains supervisory jurisdiction. When
the remedy prescribed in the consent decree is accomplished, the district
court may sue sponte terminate the decree. United States v. City of Miami,
2 F.3d 1497, 1506 (11th Cir. 1993). The district court has not yet acted to
(nig Neb ar Wi sag Sem Md Miia Det Sy
Al7
Before giving its final approval to the decree, the district
court held a hearing to consider objections of interested parties.
BRDEL I, 833 F.2d at 1494. The Birmingham Firefighters
Association filed objections and, along with two of its members,
moved to intervene as of right in each of the three pending
cases, contending that the proposed decree would adversely
affect members’ rights. Jd. at 1495. The district court denied the
motion to intervene and, on August 18, 1981, approved the
decree. Jd. The City has promoted fire lieutenants in the manner
prescribed by the final decree since that time. See infra part 1.D.
Following denial of the motion to intervene, seven non-
black male firefighters sought a preliminary injunction to enjoin
operation of the decree, asserting that the promotion provisions
would discriminated against them based upon their race, in
violation of Title VII. The district court denied the injunction.
The district court’s refusal to permit intervention and its denial
of the application for a preliminary injunction were consolidated
on appeal to this Court. Jd. We affirmed the denial of injunctive
relief and dismissed the appeal of the denial of intervention,
noting that the complaining firefighters would not be prejudiced
by that denial because they could file a separate Title VII action
against the City to address whatever harm they might suffer as
a result of the operation of the decree. United States v. Jefferson
County, 720 F.2d 1511 (11th Cir. 1983).
B. Post-decree History
The non-black male firefighters then brought suit in the
district court against the City and the Board, under both the
Equal Protection Clause and Title VII, charging reverse
discrimination. They asserted that they were being denied
promotions because of their race and that the City was
promoting allegedly less qualified black firefighters to
lieutenant solely on the basis of race, while claiming the City
and Board consent decrees protected its actions from scrutiny.
terminate the City decree.
Al8
BRDEL 1, 833 F.2d at 1495. The City and the Board admitted
making “numerous race conscious promotion and employment
decisions pursuant to [the City decree’s] terms.” Jd. at 1496
(alteration in orginal). They contended that the plaintiffs,
although not signatories, were bound by the City and Board
decrees and that the promotions in question were lawful because
they were made pursuant to the decrees. /d.
In BRDEL I we noted that, when the nonblack firefighters’
claims were tried in 1985, the district court “treated the
plaintiffs as if they were bound by the consent decrees and as
if they were alleging solely that the City had violated [the terms
of] the City decree.” /d. As a result, the district court focused
on whether the City had violated paragraph 2 of the decree,
which provided that nothing in the decree required the City to
promote a person who was less qualified “in preference to a
person who is demonstrably better qualified based upon the
results of a job related selection procedure.” Jd. at 1497. The
issue tried in 1985 thus was whether the City had complied with
the terms of the decree, not the legality of the consent decree
itself.
The district court found that the City did not use a job
related selection procedure to evaluate candidates referred to it
by the Board and that it had made no effort to develop any such
procedure. /d. On appeal, we noted that this finding prevented
plaintiffs from establishing a violation of paragraph 2: “since
the City did not use a job-related selection procedure, the court
apparently reasoned, paragraph 2 imposed no obligations on it.”
Id. We held that the district court erred in finding the individual
plaintiffs bound by the consent decree and remanded the case
for trial on the merits of the claims of unlawful discrimination
under Title VII and the Equal Protection Clause. Jd. The
Supreme Court affirmed. Martin v. Wilks, 490 U.S. 755, 109
S.Ct. 2180, 104 L.Ed.2d 835 (1989). Thus, in 1991, more than
ten years after the City consent decree was entered, the district
court held a trial on the Appellants’ claim that the City’s use of
race when making promotions in the BFRS violated both
Title VII and the Equal Protection Clause.
it te titan —
Al9
C. The 1991 Trial
In BRDEL 1, we perceived “no reason for treating a consent
decree entered pursuant to a voluntary settlement differently
from a voluntary affirmative action plan” and rejected “any
notion that the memorialization of that voluntary undertaking
in the form of a consent decree somehow provides the employer
with extra protection against charges of illegal discrimination.”
BRDEL 1, 833 F.2d at 1501 (footnote omitted).'! We therefore
instructed the district court on remand to treat the consent
decree as a voluntary affirmative action plan and evaluate it
under Title VII, using the analysis articulated in Johnson v.
Transportation Agency, 480 U.S. 616, 107 S.Ct. 1442, 94
L.Ed.2d 615 (1987), and under the Equal Protection Clause
using the analysis of Wygnant v. Jackson Board of Education,
476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986). Jd. at
1501 & N. 23.
Noting that this case involved race-based employment
decisions made by a government employer, the district court
recognized that it should apply a strict scrutiny review to the
decree. Bennett v. Arrington, 806 F.Supp. 926, 928 (N.D. Ala.
1992); See City of Richmond v. J.A. Crown Co, 488 U.S. 469,
109 S.Ct. 706, 102 L.Ed.2d 854 (1989); Peightal v.
Metropolitan Dade County, 940 F.2d 1394, 1399 (11th Cir.
1991) (“In Croson, a majority of the Court finally agreed that
the constitutionality of a state or local public minority
preference program must satisfy a strict scrutiny standard.”),
cert. denied, __ U.S. ___, 112 S.Ct. 969, 117 L.Ed.2d 134
11 See also Local Number 93 v. City of Cleveland, 478 U.S. 501, 515,
106 S.Ct. 3063, 3072, 92 L.Ed.2d 405 (1986) (finding, for purposes of
Title VII analysis, no need to distinguish between an employer’s actions
taken pursuant to a consent decree and voluntary action taken outside the
litigation context); but see United States v. Paradise, 480 U.S. 149, 193-195,
107 S.Ct. 1053, 1078-79, 94 L.Ed.2d 203 (1987) (Stevens, T. concurring)
(comparing the presumption against race-conscious decisionmaking a
government must overcome when fashioning an affirmative action plan with
the duty that a district court has to fashion a race-conscious remedy after
finding a government guilty of racial discrimination and suggesting greater
deference to the court-ordered remedy).
A20
(1992). The district court found that the City was justified in
entering the decree because it had a strong basis in evidence for
believing that it had discriminated against minorities in the past.
Bennett, 806 F.Supp. at 928-29. The district court further found
that the City’s use of race under the decree was “limited and
tailored to the relief necessary to overcome the employment
effects of past discrimination by the city,” while placing an
“acceptable burden” on third parties like the Appellants. Jd. at
929, 931. Accordingly, it denied the Appellants’ claims. Jd. at
931.
The district court did not separately evaluate Appellants’
Title VII and Equal Protection Clause claims. Rather, it
analyzed the City decree using the approval announced in
Johnson, a Title VII case, and applied that analysis to all claims
raised. We have previously recognized the struggle that district
courts face in extracting guidance from the various multi-part
Supreme Court opinions on the constitutionality of voluntary,
government-sponsored affirmative action programs developed
in various contexts. See Peightal, 940 F.2d at 1399 (noting the
diversity of views expressed in Supreme Court, opinions leading
up to Croson).'* We believe, however, that in the interest of
clarity our analysis must separately address Appellants’
Title VII and Equal Protection claims. In order to assist our
analysis, we first describe in greater detail the way in which the
City uses race to determine candidates for promotion under the
consent decree. Our understanding of the operation of the
consent decree is informed by the City’s brief on appeal and by
12 See also Mary C. Daly, Some Runs, Some Hits, Some
Errors Keeping Score in the Affirmative Action Ballpark from Weber
to Johnson, 30 B.C.L.Rev. 1 (1988). Daly describes the opinions in the nine
Supreme Court affirmative action cases preceding Croson as “lengthy,
incohesive, contradictory and ambiguous . . . occupy[ing] over five hundred
fifty-four pages in the official reporters and consist[ing] of forty-six majority,
plurality, concurring and dissenting opinions.” /d. at 5. Daly notes further
that “[e}ven within a single case, it is often impossible to discern the Court’s
holding because not every Justice in the majority will endorse the entire
majority opinion” and frequently no majority opinion was produced at all.
Id.
ai il AD ih itt Bia al,
SANE inc Ra aint Sabot WG
A21
the district court’s findings of fact and conclusions of law
entered at the close of the first trial on the Appellants’ claims
in 1985. See In re Birmingham Reverse Discrimination
Employment Litig., 39 Fair Empl. Prac. Cas. (BNA) 1431, 1985
WL 56690 (N.D.Ala. 1965).
D. Operation of the City Decree
When a City department has a vacancy in a job
classification to be filled by promotion, it sends a “request for
certification” of promotional candidates to the Board. Jd. at
1438, | 27. The City’s personnel office review the request to
determine whether the department is in compliance with the
City’s affirmative action plan. /d. If the department is not in
compliance, the request is stamped with a notation indicating
that the City requests that the Board certify qualified blacks (or
females) for the open position. /d.
The Board administers written promotional examinations
and trades employee seniority in City jobs. Jd. § 25. It grades
promotional examinations, establishes a passing score, and
calculated a converted score on a standardized scale for persons
who pass an exam. /d. The Board then adds one point to each
employee’s converted score for each year of service with the
City, up to a maximum of twenty years’ service, to determine
a final score. Employees of all races are then ranked on a single
eligible register according to their final score. Ia.'3
The Board follows a “rule of three” when it supplies the
City with names of candidates for promotional openings,
providing a number of candidates equal to the number of
openings plus two. Id. 27'4 That is, if there is one opening, the
Board provides three names; if there are four openings, the
13 This necessarily means that an employee with less seniority must
have a higher converted score than a more senior employee in order to attain
a higher final score and a higher ranking on the eligible register.
\4 The “rule of three” was in effect at all times pertinent to this appeal.
A22
Board provides six names. If the City indicates on the request
for certification that blacks are needed to meet the requirements
of the decree, the Board reviews the eligible register and
provides the necessary number of names on separate lists of
black and non-black eligible candidates. Black candidates and
non-black candidates are listed separately in the order in which
they are ranked on the eligible register. Jd. at 1437-38, $9 17,
27. For example, if the Board supplies names of four blacks and
four non-blacks for promotional openings, the black list
contains the four highest-ranked blacks on the eligible register
and the non-black list contained the four highest-ranked non-
blacks on the eligible register, regardless of how high or low
they actually rank in the register relative to each other.
When the black and non-black candidate lists arrive in the
BFRS, the Chief reviews the personnel files of the certified
individuals and consults with the deputy chief about the
candidates to determine whether any candidates are unqualified.
Id. at 1437, 4 16. The Chief does not compare the relative
qualifications of black and non-black candidates for promotion
prior to making his selection from the lists. Nor does he
compare the relative qualifications of the individuals certified
as eligible against others of the same race certified on the same
list. Jd. This is because he believe he must provide the highest
ranked individual on each list unless he can “prove that the
highest ranked individual of either race is unqualified for the
promotional position.” Jd. at 1437-38, 918. Therefore, he
typically promotes in the order in which candidates appear on
the respective lists. Jd. at 1437, | 16. The Chief alternatives
selections between the top name on the black list and the top
name on the non-black list until all available openings are filled.
Id. at 17.'°
'5 This method was employed by the BFRS from the inception of the
consent decree through 1988. In 1988, the BFRS began to use internal review
panels to interview and evaluate the promotion candidates certified as
eligible by the Board. This review panel system is not relevant to our inquiry
because the City’s actions about which Appellants here complain occurred
before 1988 under the system described above.
A23
Under this system, then, employees who will eventually fill
an opening in the BFRS are pre-selected by race. If four fire
lieutenant positions are open, two of those will be filled by
blacks and two by non-blacks. Among employees certified by
the Board as eligible candidates, promotions are awarded solely
by race. No black employee ever competes for the two openings
designated in advance to be filled by non-blacks. No non-black
employee can compete for the two openings designated for
blacks.
The impact of this system on the Appellants was such that,
in the words of the district court:
Each of the plaintiffs who complains in this litigation
against the failure to be appointed as a fire lieutenant or fire
captain or civil engineer[,] or who claims that he was
delayed in such an appointment{,] was adversely affected
because he was white. Those persons[,] in the absence of the
consent decree and in the absence of any affirmative action
plan adopted by the City as mandated by the decree would,
as I interpret the evidence, have been appointed to the
positions they desired and about which they here complain.
Each of those individuals ranked higher on the certification
list provided by the Personnel Board than the blacks who
were appointed by the City pursuant to the consent decree.
Id. at 1433. Thus, the question we must determine here is
whether an affirmative action plus that continuously segregates
employees in this manner, and has the above-described impact
on the promotional opportunities of employees who are not
beneficiaries of its provisions, is permissible under both
Title VII and the Equal Protection Clause.
II. Method of Analysis
The Supreme Court established in Croson that strict scrutiny
is the standard of review to be applied to all claims of race-
based discrimination by state government entities, regardless of
the race of the complaining party. 488 U.S. at 493, 518-21, 109
S.Ct. at 722, 735-36. Accordingly, we apply strict scrutiny to
A24
the claims before us. Our analysis of the Appellants’ claims,
however, does not begin and end with Croson. Although
informing our analysis, Croson did not present a Title VII claim
for review. Second, Croson did not involve race-based decisions
made by a state governmental entity attempting to remedy its
own history of prior employment discrimination.'© Indeed,
Johnson, a Title VII case, is more analogous to this case in
some respects. Johnson notes that the obligations of a public
employer under Title VII and the Constitution are not identical.
480 US. at 628 n. 6, 107 S.Ct. at 1449 n. 6 (“The fact that a
public employer must also satisfy the Constitution does not
negate the fact that the statutory prohibition with which that
employer must contend was not intended to extend as far as that
of the Constitution.”); id., 480 U.S. at 632, 107 S.Ct. at 1452
(“W]e do not regard as identical the constraints of Title VII and
the Federal Constitution on voluntarily adopted affirmative
action plans.”) Because this case presents both Title VII and
Equal Protection claims, we must reconcile the case law
developed in both areas with the direction a divided Supreme
Court provided in Croson. To maintain clarity, we separately
consider the City decree under both Title VII and the Equal
Protection Clause.
16 In Croson, a city attempted to remedy alleged discrimination in the
construction industry by establishing minority business subcontractor set-
asides for general contractors building on city construction projects. 488 U.S.
at 476, 109 S.Ct. at 713. The city was not attempting to develop a remedy
for its own past discrimination. /d. at 497, 109 S.Ct. at 724. This case,
however, involves a city attempting to remedy under-representation of blacks
and women that, the district court found, arose from the City’s own previous
discriminatory employment practices, the evidence of which was before the
City when it acted.
A25
Ill. Title VII Claim
[2-4] Title VII reads in pertinent part: (a) It shall be
unlawful employment practice for an employer-——
(1) to fail or refuse to hire . . . or otherwise to discriminate
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of
such individual’s race . . .; or
(2) to... classify his employees... in any way which
would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his
status as an employee, because of such individual’s
race...
42 U.S.C. § 2000e-2. It is now well established that employers
may develop affirmative action plans designed to “further[]
Title VII’s purpose of eliminating the effects of discrimination
in the workplace.” Johnson, 480 U.S. at 630, 107 S.Ct. at
1451.'7 An employer’s decision to account for race in an
affirmative action plan is “consistent with Title VII’s objective
of break[ing] down old patterns of racial segregation and
hierarchy.” Jd. at 628, 107 S.Ct. at 1450. Yet, an employer
implementing a race-conscious affirmative action plan must
assure that race will be considered “consistent with Title VII's
purpose... and that the interests of those employees not
benefiting from the plan will not be unduly infringed.” Ja. at
632, 107 S.Ct. at 1452.
'7 See also United Steelworkers v. Weber, 443 U.S. 193, 204, 99 S.Ct.
2721, 2728, 61 L.Ed.2d 480 (1979) (observing, in a case involving a private
employer, that “[i]t would be ironic indeed if a law triggered by a Nation’s
concerns over centuries of racial injustice and intended to improve the lot
of those who had been excluded from the American dream for so long,
constituted the first legislative prohibition of all voluntary, private, race-
conscious efforts to abolish traditional patterns of racial segregation and
hierarchy”) (citation omitted); id. at 200, 99 S.Ct. at 2726 (noting the
“familiar rule that a thing may be within the letter of the statute and yet not
within the statute, because not within its spirit nor within the intention of its
makers” (quoting Holy Trinity Church v. United States, 143 U.S. 457, 459,
12 S.Ct. 511, 512, 36 L.Ed. 226 (1892)).
A26
[5, 6] Determining whether the affirmative action plan
embodied in the City decree was implemented consistent with
Title VII’s purpose and without unduly infringing the interests
of Appellants involves a two-part test. We must first determine
whether the City’s consideration of the race of promotional
candidates was justified by a manifest racial imbalance that
reflected under-representation of blacks in traditionally
segregated job categories. /d. If such a justification was present
when the plan was developed, we must then determine whether
the plan itself provides a proper remedy for that imbalance. A
remedy is proper if the plan does not unnecessarily trammel the
rights of non-black employees or create an absolute bar to their
advancement. Jd. at 637, 107 S.Ct. at 1455.
A. Justification—Manifest Racial Imbalance
[7] When a job requires no special expertise, determining
whether a manifest imbalance exists that would justify race-
conscious decisionmaking by the employer involves a
comparison of the percentage of minority employees in that job
with the percentage of minorities in the general area labor
market. /d. at 632, 107 S.Ct. at 1452. When a job requires
special skills or training, however, the appropriate comparison
is to those in the labor market who possess that special skill or
training. Jd.; see also United States v. City of Miami, 2 F.3d
1497, 1509 (11th Cir.1993) (“It is well established that, in
determining whether there is a work force imbalance that
justifies affirmative action remedies, the proper comparison is
between the minority composition of the work force in question
and the qualified minority population in the relevant labor
market.”).
[8] This case presents for review those aspects of the City
plan relating to promotions of firefighters to fire lieutenant in
the BFRS. Training and experience as a firefighter are special
skills required of those who would become fire lieutenants. As
such, to determine if an imbalance existed that would justify
race-conscious promotion decisions by the City, the appropriate
A27
comparison is between black representation in the BFRS
lieutenant ranks and black representation among entry-level
firefighters. See Stuart v. Roache, 951 F.2d 446, 450-51 (1st
Cir.1991) (comparing percentage of minorities in sergeant rank
with percentage of minorities in the rank immediately below
having years of service necessary to become sergeants), cert.
denied, US. , 112 S.Ct. 1948, 118 L.Ed'2d 553
(1992).!8
This comparison is consistent with the comparison used in
Johnson, where the Supreme Court, addressed a Title VII
challenge to an affirmative action plan developed by a county
transportation agency (agency). Johnson, a male, brought suit
after Joyce, a female, was promoted to road dispatcher instead
of him. Joyce and Johnson were among seven applicants
certified as eligible for selection after the initial round of
applicant interviews. Three agency supervisors conducted a
second round of interviews and recommended Johnson for the
position. The agency’s affirmative action coordinator, however,
acting under a duty to keep the agency’s director informed of
opportunities for the agency to accomplish its objectives under
its affirmative action plan, recommended to the director that
Joyce be promoted. The director heeded the coordinator’s
recommendation and selected Joyce over Johnson.
18 We address only the proportion provisions of the City plan in this
appeal. Promotions, by their very nature, involve elevating a current
employee to a higher position. Status as a department employee, therefore,
is a prerequisite to promotion within a City department. Simply put, an
employee must first be a firefighter before becoming a fire lieutenant, a fire
lieutenant before becoming a captain, and so forth.
Under the terms of the decree, the City cannot require a firefighter to
serve longer than two years in that position before becoming eligible to take
a promotional exam for fire lieutenant. Decree {| 19b. Further, the decree
specifically removes all length of service and time-in-grade requirements for
promotions to captain or above. /d. So, fire lieutenants promoted under the
decree must have a minimum of two years’ experience as a firefighter, but
there is no minimum experience as a lieutenant required to become a captain,
or as a captain in order to become a battalion chief.
A28
The agency in Johnson had developed an affirmative action
plan that authorized it to consider as one factor the sex of a
qualified applicant when making promotions with a traditionally
segregated job classification where women were significantly
under-represented. The agency adopted its plan believing “mere
prohibition of discriminatory practices is not enough to remedy
the effects of past practices and to permit attainment of an
equitable representation of minorities, women and handicapped
persons” in the agency’s work force. Johnson, 480 U.S. at 620,
107 S.Ct. at 1446.
The Supreme Court observed without comment that the
agency plan adopted as a long-term objective achieving an
agency workforce that mirrored in each major job classification
the percentage of women in the area labor market. /d. at 633,
107 S.Ct. at 1453. “Even as it did so, however, the Agency
acknowledged that such a figure could not by itself necessarily
justify taking into account the sex of applicants for positions in
all job categories.” Jd. Therefore, the agency developed short-
term goals for placing women in certain positions, not to be
construed “as quotas that must be met, but as reasonable
aspirations in correcting the imbalance in the Agency’s work
force.” Jd. The Court noted that the agency plan did not “dictate
mere blind hiring by the numbers [or] hold supervisors to
achievement of a particular percentage of minority
employment . . . regardless of circumstances such as economic
conditions oF the number of available qualified minority
applicants.” 9 Id. Under the plan, women competed directly
with all other qualified applicants: “/njJo persons are
automatically excluded from consideration; a// are able to have
'9 The Court noted that the agency director testified that Joyce’s sex
was only one of numerous factors he considered in reaching the decision to
promote her instead of Johnson. The Court likened the agency plan to the
“Harvard Plan” approvingly discussed by Justice Powell in Regents of
University of California v. Bakke, 438 U.S. 265, 315-318, 98 S.Ct. 2733,
2761-63, 57 L.Ed.2d 750 (1978) (approving consideration of an applicant’s
race in a college admission program as a plus in the applicant’s favor while
not insulating the applicant from comparison with all other candidates for
admission).
A29
their qualifications weighed against those of other applicants.”
Id. at 638, 107 S.Ct. at 1455. The plan “posed no danger that
personnel decisions would be made by reflexive adherence to
a numerical standard.” Jd. at 635, 107 S.Ct. at 1454.
The agency plan recognized that women were severely
under-represented in the skilled craft job category, the category
that included the road dispatcher position Johnson desired. In
fact, there were no women among the 238 workers in that
category. The Court noted that, with this type of imbalance in
a category, and given the agency’s desire to eliminate such
imbalances, it was reasonable to consider Joyce’s sex as one
factor among many in the promotion decision. Jd. at 635, 107
S.Ct. at 1454. Thus, Joyce’s promotion satisfied the first
element for Title VII scrutiny because it was made under an
affirmative action plan designed to remove imbalances that
existed in traditionally segregated job categories. Jd. at 637, 107
S.Ct. at 1455.
[9] 1. Findings of Manifest Racial Imbalance Required. As
a preliminary matter, we must first determine what effect the
Court’s opinion in Croson has on Johnson $ requirement that
a manifest racial imbalance must exist before a government
entity can use race as a criteria in its employment decisions.
Appellants assert that, in order for this Court to determine the
validity of the decree and avoid the danger that its provisions
were simply acts of racial politics rather than proper remedies
for past discrimination, the City is required under Croson to
have made particularized findings of its own past discrimination
prior to entering the decree. Appellants maintain that when the
City approved entry into the decree it made no such finding, and
they claim that the lack of a formal finding of past
discrimination by the City causes its decree to fail.
On the surface, Appellants’ position is supported to an
extent by the plain language of the decree itself. The decree, in
typical settlement agreement language, specifically provides
that the City admits to no “violation of law, executive order or
regulations,” but goes on to provide a remedy for its “alleged
A30
prior discriminatory employment practices.” In essence, the
City, speaking through the decree, refuses to admit that it has
discriminated in the past while setting about to remedy the
discrimination its adversaries in litigation asserted to have
actually occurred. Nonetheless, we believe that in these
circumstances the City was not required to make formal
findings about its own past discrimination—it merely had to
have a strong basis in evidence, as we demonstrate below.
[10, 11] Our application of the Johnson manifest imbalance
test here is informed by Croson 5 discussion of the necessity for
a government entity to identify with specificity the
discrimination it seeks to remedy through race conscious
measures. See generally Croson, 488 U.S. at 492-505, 109 S.Ct.
at 721-28. The Supreme Court has recognized that
“{e]videntiary support for the conclusion that remedial action
is warranted becomes crucial when the remedial program is
challenged in court by nonminority employees.” Wygant v.
Jackson Bad. of Educ., 476 U.S. 267, 277, 106 S.Ct. 1842, 1849,
90 L.Ed.2d 260 (1986). There must be sufficient evidence to
allow a trial court to “make a factual determination that the
employer had a strong basis in evidence for its conclusion that
remedial action was necessary.” Jd. Unless such a finding is
made, an appellate court has no basis upon which to determine
whether race-based action was justified as a remedy for prior
discrimination by the City. Jd.
Appellants’ assertion that Croson requires the City to have
made specific findings of its own past discrimination before
entering the consent decree ignores one of the important
differences between Croson and this case. In Croson, the city
was not acting to remedy its own history of discrimination, but
was acting to remedy discrimination it claimed had occurred in
private industry. The Court found the city council’s
justifications for the use of race to be “an amorphous claim that
there has been past discrimination in a particular industry [that]
cannot justify the use of an unyielding racial quota.” Croson,
488 U.S. at 497, 109 S.Ct. at 724. It makes a great deal of sense
A31
to require a city to describe with particularity the findings that
led it to conclude that an entire industry had engaged in
discrimination before setting about to fashion a race-conscious
remedy for that perceived problem. The circumstances of this
case, however, do not compel a similar requirement. See
Wygant, 476 U.S. at 289, 106 S.Ct at 1855 (O’Connor, J.,
concurring) (“The imposition of a requirement that public
employers make findings that they have engaged in illegal
discrimination before they engage in affirmative action
programs would severely undermine public employers’
incentive to meet voluntarily their civil nghts obligations.”).
[12, 13] We do not read Croson to require that a city settling
litigation by consent decree declare itself to have violated the
law by discriminating in employment, detailing the elements of
a potential plaintiff’s complaint in the process, before adopting
an affirmative action plan designed to remedy the effects of its
own past discrimination. See Croson, 488 S.Ct. at 497-505, 109
S.Ct. at 724-28; cf Cone Corp. v. Hillsborough County, 908
F.2d 908, 913 (11th Cir.) (noting that the Croson plurality
intimated that local governments could enact race-conscious
remedies “to redress clear instances of discrimination”’), cert.
denied 498 U.S. 983, 111 S.Ct. 516, 112 L.Ed.2d 528 (1990).
It is, however, a necessity that some finding be made that the
City engaged in past discrimination, in order to allow for proper
judicial review of the City’s use of race in its affirmative action
plan. See Wygant, 476 U.S. at 278 & n. 5, 106 S.Ct. at 1849 &
n. 5. (if “race-based state action is taken to remedy prior
discrimination by the governmental unit involved . . . the very
nature of appellate review requires that a factfinder determine
whether the employer was justified in instituting a remedial
plan”). In this case, the necessary finding of past discrimination
was provided by the district court.
In the opinion from which this appeal arises, the district
court found that there was a strong basis in evidence that the
City had discriminated against blacks prior to implementing the
affirmative action plan embodied in the consent decree. Bennett,
A32
806 F.Supp. at 929. It noted that blacks were not represented at
all in the BFRS lieutenant ranks as a direct result of
discriminatory testing for entry-level positions. Jd. Further, it
noted that there was a significant imbalance between the
number of black lieutenants and the number of black
firefighters, the jobs from which lieutenants were typically
drawn. /d. at 930. At the conclusion of the 1985 trial, the district
court found significant evidence of discrimination prior to the
time the City entered into the decree. Jd. Additional evidence
presented in the 1991 trial confirmed those findings. Jd. The
district court also noted that, at the time the decree was adopted,
it had already found certain tests administered by the Board to
have an adverse impact on blacks and to be insufficiently job
related to be valid under Title VII. Jd. at 929. Finally, the
district court found that the City entered into the consent decree
only when faced with the imminence of another adverse
decision by the district court related to “a further trial, with
voluminous evidence, attacking scores of other tests and
selection devices . . . as having a similar adverse impact and
insufficient job-relatedness.” /d. As a result, the district court
found that the City was justified in using race to remedy its
prior discrimination. /d. We conclude that these findings satisfy
Croson and permit thorough appellate review.
[14, 15] 2. Sufficiency of the Findings and Conclusions of
Law. We review the district court’s factual findings under the
clearly erroneous standard. Newell v. Prudential Ins. Co., 904
F.2d 644, 649 (ilth Cir.1990). The district court’s legal
conclusions are subject to de novo review. Id.
[16] The district court found that when the City decree was
entered in 198) there were 453 firefighters in the BFRS, 42 of
whom were black. Bennett, 806 F.Supp. at 930 n. 6. There were
also 94 lieutenants, 31 captains, and 15 battalion chiefs, none
of whom were black. /d. Further, the district court had already
found that tests administered by the Board for entry-level City
jobs in both the police and fire departments were invalid under
A33
Title VII because they had a significant adverse impact on
blacks and were not sufficiently job related. Jd. at 929 (citing
Ensley Branch, NAACP v. Seibels, 616 F.2d 812 (Sth Cir.),
cert. denied, 449 U.S. 1061, 101 Sv€t. 783, 66 L.Ed.2d 603
(1980)). The district court found that, against this background,
coupled with the advice of counsel that the likelihood of victory
in the pending litigation was poor, the City was justified in
adopting an affirmative action plan. The parties do not dispute
these findings, and we do not hold them to be clearly erroneous.
While the Court in Croson criticized the findings made there
for only supporting amorphous and generalized claims of
societal discrimination, 488 U.S. at 498, 109 S.Ct. at 724, the
findings by the district court here demonstrate that the City had
strong evidence before it to believe it had engaged in past racial
discrimination when it entered the consent decree. The City was
aware that the district court had disapproved the hiring tests
used by the Board because they had an adverse impact on
blacks. The City knew, through counsel, that voluminous
evidence attacking other employment tests and selection
procedures had been introduced in pending litigation and was
advised by counsel that settlement would be a preferred
alternative to another adverse decision. The City also knew of
the gross statistical disparity between the number of blacks it
employed as firefighters and as officers in the BFRS. Given
these facts as determined by the district court, the City was
justified in implementing an affirmative action plan that
provided for the use of race as a remedy for past discrimination.
Therefore, the City’s affirmative action plan satisfies the first
element of the two-part test established in Johnson. We next
consider whether the specific provisions of the City decree
provide a proper remedy to address the identified imbalances
in traditionally segregated job categories.
B. Remedy—Unnecessarily Trammeling Rights of Non-black
Employees
[17] This element of the Johnson test necessarily involves
balancing the use of race to secure opportunities for blacks in
A34
traditionally segregated jobs against the impact of the plan on
non-blacks. As we stated earlier, a proper remedy cannot
unnecessarily trammel the rights of non-black employees or
create an absolute bar to their advancement. Johnson, 480 U.S.
at 637-638, 107 S.Ct. at 1455. On its face, the decree does not
create an absolute bar to advancement for non-black employees
because it sets aside a fixed percentage of promotions for
blacks, leaving the remainder to be filled by all other
employees. Our inquiry is thus confined to whether the decree
provisions unnecessarily trammel the nghts of the non-black
employees who do not benefit from the plan.
Unlike the affirmative action plan approved in Johnson, the
City decree does not use race as one factor among several that
could be considered when making promotion decisions. Rather,
the decree makes a Board-certified firefighter’s race the sole
factor used to determine eligibility for all fire lieutenant
promotions in the BFRS. Promotion-eligible employees are
listed separately by race and promotions are made from those
separate lists to fill openings allocated by race. The decree,
therefore, embodies exactly the sort of “danger that personnel
decisions would be made by reflexive adherence to a numerical
standard” the Court cautioned against in Johnson. 480 U.S. at
637, 107 S.Ct. at 1454. Unlike the plan approved in Johnson,
in which “/njJo persons are automatically excluded from
consideration; all are able to have their qualifications weighed
against those of other applicants,” id. at 638, 107 S.Ct. at 1455,
the City decree specifically excludes all non-black firefighters
from consideration for one-half of all fire lieutenant promotions
and all black firefighters from consideration for the other half
of lieutenant promotions, based culely on their race. And, unlike
the plan approved in Johnson, the City’s annual fire lieutenant
promotion quota is not a “reasonable aspiration” designed to
correct the imbalance in the~City’s workforce without
unnecessarily trammeling the rights of the Appellants. It is,
instead, a racial quota that must be met whenever openings
occur.
A35
[18] There is no precise formula for determining whether
an affirmative action plan unnecessarily trammels the rights of
non-beneficiaries. When reviewing affirmative action plans
involving race based entry-level hiring goals, the Supreme
Court has noted that the impact of the use of race on non-
beneficiaries is diffused, spread across all those in society who
might desire the entry-level position. See, e.g., Wygant, 476
U.S. at 281, 106 S.Ct. at 1851. Entry-level hiring goals, while
burdening some innocent persons, do not impose the same type
of injury on non-beneficiaries as that imposed by the use of race
to determine employee layoffs. /d. “[L]ayoffs impose the entire
burden of achieving racial equality on particular individuals,
often resulting in serious disruption of their lives.” Jd. at 284,
106 S.Ct. at 1852. The Supreme Court has determined that the
burden imposed through race-based layoffs is too intrusive. Jd.
[19] This case involves neither hiring nor layoffs, but
instead concerns promotions made under the City’s affirmative
action plan. We view the promotion situation as lying
somewhere between entry-level hiring and layoffs in terms of
the burden permitted on non-beneficiaries. The burden imposed
by the City’s plan on non-beneficiaries in the promotion context
is not widely diffused like the burden imposed in a hiring
situation. It resembles layoffs in that only specific persons are
burdened—those who can reasonably aspire to promotions
within the BFRS because they are already employed there and
are qualified for promotion. When race is used under the City’s
affirmative action plan to determine promotions, it is the non-
black employees excluded from consideration for half of all
promotion opportunities, and not society in general, who bear
the entire burden of the remedy for the City’s past
discriminatory behavior. On the other hand, failure to receive
a promotion is not as serious a disruption in an employee’s life
as that caused by an impermissible race based layoff program.
In determining whether the City’s plan unnecessarily trammels
the rights of non-black employees, our analysis necessarily
recognizes the difference in impact between hiring, layoff, and
promotion provisions in affirmative action plans.
A36
[20] Appellees assert that no Supreme Court case dealing
with affirmative action hiring and promotion goals has ever
found unnecessary trammeling where the plan did not require
firings or layoffs of nonminority employees. In effect,
Appellees would have us read part two of the Johnson test to
say that any affirmative action plan that does not require firings
or layoffs of nonminority employees or create an absolute bar
to their advancement passes scrutiny under Title VII. We are
unwilling to define “unnecessary trammeling” as nothing short
of firings and layoffs; an affirmative action plan can
unnecessarily trammel the nghts of nonminority employees
without requiring firings or layoffs. Such is the case with the
promotion provisions of the City’s affirmative action plan under
review here.
When the plan was created, the City employed 42 black
firefighters and 411 non-black firefighters. The decree set aside
half of all future promotions to fire lieutenant for those among
the 42 black firefighters who became Board-certified as eligible.
By virtue of the ngid manner in which the City has used race
to determine promotions under the decree, see supra part I.D,
42 black firefighters, because of their race, gained an exclusive
claim to half of all fire lieutenant promotions made under the
plan, but lost any possibility of competing for the other half. On
the other hand, the remaining 411 non-black firefighters saw the
number of promotions to which they might aspire, absent the
consideration of their race, cut from 100% to half of all
lieutenant promotions. The 50% promotion quota was to
continue for the duration of the decree, subject to future
modification, without regard to the number of lieutenant
openings in any given year, the number of black firefighters
eligible to become lieutenants at any particular time, or any
factor other than race. As the decree operates, no non-black
firefighter can even be considered for a promotional job
reserved for blacks unless no blacks remain on the Board’s
eligible register.
We discern no legitimate basis for the 50% figure ultimately
‘chosen for the annual fire lieutenant promotion quota. The 50%
figure selected is completely uninfluenced by the percentage
A37
representation of blacks in the firefighter ranks, the feeder job
from which lieutenant promotions are filled. The 50% figure
appears entirely arbitrary, set at 50% through the settlement
bargaining process after the parties failed to agree on the
initially proposed 35%, or the subsequently proposed 25%, or
on any other arbitrary figure that might have been proposed as
the decree was developed by the attorneys for various involved
parties.
In our view, the City decree fails :nder Title VII because the
indefinitely-lasting, arbitrarily-selected 50% figure for annual
black promotions to fire lieutenant unnecessarily trammels the
rights of non-black firefighters by unduly restricting their
promotional opportunities through establishment of an arbitrary
fixed quota. Had the promotion figure been tied in some
reasonable manner to the percentage of blacks in the firefighter
ranks, significantly more non-black employees would have
received promotions to fire lieutenant. The district court
determined in 1985 that the Appellants, absent the consent
decree, “would .. . have been appointed to the positions they
desired and about which they here complain.” 39 Fair
Emp.Prac.Cas. (BNA) at 1433. The failure to be promoted,
caused by the arbitrarily selected 50% promotion figure, no
doubt impacted the earnings of Appellants, who are likely
heavily dependent on wages for their day-to-day living. See
Wygant, 476 U.S. at 281, 106 S.Ct. at 1851. The failure to be
promoted, or even a delay in receiving a promotion, also likely
impacts earnings long into the future under whatever retirement
program the City provides for BFRS employees.
[21, 22] It bears repeating that this case does not involve
entry-level affirmative action where the impact of race-based
decisionmaking for remedial purposes is minimized as it is
spread across society as a whole; we decide nothing about that
kind of affirmative action. Because non-biack firefighters bear
the entire burden of the race-based fire lieutenant promotion
remedy in the decree, and because of the immediate and future
ramifications of that burden, it is imperative that the remedy be
OL OS EI ee =e See
A38
related in some reasonable manner to the representation of
blacks among firefighters. We see no such relationship in this
case. We recognize that a governmental entity should take
immediate steps to remedy its history of discrimination by
awarding victims of that discrimination their rightfully earned
promotions. See Howard v. McLucas, 871 F.2d 1000, 1003 &
n. 5 (11th Cir.) (approving consent decree providing back pay
relief and 240 promotions to black civilian Air Force Base
employees into “most likely jobs lost by blacks” due to
discrimination), cert. denied 490 U.S. 1002, 110 S.Ct. 560, 107
L.Ed.2d 555 (1989). It is not permissible, however, for a
government to implement a rigid quota of race-based
promotions, to continue indefinitely, with no basis at all for the
quota figure selected.
Our review has located no cases approving a state
government affirmative action plan where the promotion
remedy was not tied in some manner to the representation of
minorities in the pool of candidates for promotion. See, e.g.,
Wilson v. Bailey, 934 F.2d 301, 303 (11th Cir.1991) (approving,
in a case involving some of the same parties present in this
litigation, use of race as one factor among many considered
when consent decree called for promotion of blacks and females
to certain jobs at rates “at least equivalent to their percentage
representation in the applicant pool from which such
promotions are made”); Davis v. City of San Francisco, 890
F.2d 1438, 1449 (9th Cir.1989) (approving consent decree
providing preferential promotions for minorities based on the
percentage of minorities in the relevant labor force), cert. denied
498 U.S. 897, 111 S.Ct. 248, 112 L.Ed.2d 206 (1990). Indeed,
within the City decree itself there are examples of promotion
provisions that are tied to the representation of blacks in the
feeder job category. There is no legitimate reason for the annual
fire lieutenant promotion figure to be completely unrelated to
the population of black firefighters.
Promotional remedies for past discrimination using
percentages not tied to the percentage of minorities in the job
immediately below the promotion position have withstood
scrutiny only when ordered by a court to combat a state
A39
government’s steadfast refusal to obey that court’s long-
standing order to develop non-discriminatory promotion
procedures. See United States v. Paradise, 480 U.S. 149, 163,
107 S.Ct. 1053, 1063, 94 L.Ed.2d 203 (1987) (upholding district
court order mandating 50% black representation in next group
to be promoted to state trooper corporal to provide relief for
state’s failure to develop acceptable promotion procedures
eleven years after first ordered to do so by the district court).
This, however, is not a case like Paradise, where the district
court ordered a remedy to combat an egregious refusal to follow
its prior orders to end discriminatory practices. This is a case
where, to end pending litigation, the City voluntarily entered
into a consent decree containing a quota-based affirmative
action plan that cannot withstand scrutiny.
We hold that the fire lieutenant promotion provision of the
City’s affirmative action plan violates Title VII because it
unnecessarily trammels the nights of non-black firefighters by
establishing a ngid, arbitrarily selected quota of 50% annual
black promotions to fire lieutenant.
IV. Equal Protection Clause Claim
We turn next to Appellants’ Equal Protection Clause
challenge to the City’s affirmative action plan. Appellants assert
that they were denied promotions to fire lieutenant because of
their race in violation of the Equal Protection Clause.?°
Appellees maintain that the use of race in determining fire
lieutenant promotions should survive an equal protection
challenge because the City had a compelling interest in adopting
the decree and the provisions of the decree are narrowly tailored
to achieve that interest.
20 The Equal Protection Clause provides, in relevant part, that “[nJo
State shall make or enforce any law which shall... deny to any person
within its jurisdiction the equal protection of the laws.” U.S. Const. amend.
XIV, § 1.
A40
[23, 24] “‘Racial and ethnic distinctions of any sort are
inherently suspect and thus call for the most exacting judicial
examination.” Wygant, 476 U.S. at 273, 106 S.Ct. at 1846
(quoting Bakke, 438 U.S. at 291, 98 S.Ct. at 2748). This strict
scrutiny is employed even though the racial classification
challenged operates against a group not historically subject to
discrimination b* government. /d.; see also Croson, 488 U.S.
at 494, 109 S.Ct. at 722 (“We thus reaffirm the view . . . that the
standard of review under the Equal Protection Clause is not
dependent on the race of those burdened or benefited by a
particular classification.”). To assure a proper balance between
the individual nghts secured by the Fourteenth Amendment and
the permissible burden placed on innocent persons, the use of
race in government decisionmaking is subject to strict judicial
scrutiny “to ‘smoke out’ illegitimate uses of race by assuring
that the legislative body is pursuing a goal important enough to
warrant use of a highly suspect tool.” Croson, 488 U.S. at 493,
109 S.Ct. at 721.
{25, 26] To survive a challenge under the Equal Protection
Clause, the City’s use of race in making fire lieutenant
promotion decisions must be justified by a compelling interest
and must be narrowly tailored to achieve that interest. See
Wygant, 476 U.S. at 274, 106 S.Ct. at 1847; Cone Corp., 908
F.2d at 913 (“Under strict scrutiny analysis, the racial
classifications must be necessary and must be narrowly tailored
to achieve the goal of remedying the effects of past
discrimination.”). The City must show that a compelling
governmental purpose justified the use of a racial preference
and that the means chosen—in this case, the selection of
candidates for promotions solely because of their race—was
narrowly tailored to achieve that purpose. See Hayes v. North
State Law Enforcement Officer Ass'n, 10 F.3d 207, 212-13 (4th
Cir. 1993). For the reasons set forth below, we hold that the City
had a compelling interest in providing a remedy for its prior
discriminatory employment practices, but that the City’s use of
race in its affirmative action plan is not narrowly tailored to
A41
achieve that interest as required under the Equal Protection
Clause.
A. Compelling Government Interest
[27-29] Public employers operate under a clear command
from the Supreme Court to eliminate the vestiges of prior racial
segregation and discrimination. Wygant, 476 U.S. at 276, 106
S.Ct. at 1848. At the same time, public employers must ““‘do
away with all governmentally imposed discriminations based
on race.”” Jd. (quoting Palmore v. Sidoti, 466 U.S. 429, 430-33,
104 S.Ct. 1879, 1881-82, 80 L.Ed.2d 421 (1984)). The Supreme
Court has noted that these two commands must be reconciled
with great care, because they are not always harmonious. Jd.
That is, while attempting to eliminate the vestiges of past
discrimination against persons of one race, government must
minimize the imposition of new discriminations on persons of
other races. Therefore, the Court requires a showing that the
governmental unit involved engaged in prior discrimination, and
requires a strong basis in evidence that remedial action is
warranted, before allowing that governmental unit to execute
an affirmative action plan remedying prior discrimination by
using race in a narrowly tailored manner. Croson, 488 U.S. at
499, 190 S.Ct. at 725.
[30] As an initial matter, then, we must decide whether there
was a strong basis in evidence that remedial action was
warranted before the City entered the consent decree embodying
its affirmative action plan.7! As noted previously, the district
court found strong evidence that the City had engaged in prior
discrimination in the BFRS. See supra part III.A.2. We accept
the district court’s findings and will not repeat them here. We
also accept the district court’s findings and conclusion that
21 We discussed above and rejected Appellants’ assertion that, under
Croson, the City was required tu articulate specific findings of its past
discrimination before entering the consent decree. See supra part III.A.1.
3 PP a : te ie lie a x: he - ’ ee £ ; ¢ —_—. em
A42
action to remedy the effects of prior discrimination in the BFRS
was warranted. But even when a city is justified in
implementing an affirmative action plan, only a plan that is
“carefully constructed” will do. See Wygant, 476 U.S. at 286,
106 S.Ct. at 1853 (O’Connor, J., concurring) (“The Court is in
agreement that... remedying past or present racial
discrimination by a state actor is a sufficiently weighty state
interest to warrant the remedial use of a carefully constructed
affirmative action program.”).
B. Narrowly Tailored Means
[31, 32] Classifications based upon race carry a very real
danger of harm because they “threaten to stigmatize individuals
by reason of their membership in a racial group.” Shaw v. Reno,
wie , , 113 S.Ct. 2816, 2824, 125 L.Ed.2d 511
(1993). “[E]ven in the pursuit of remedial objectives, an explicit
policy of assignment by race may serve to stimulate our
society’s latent race consciousness, suggesting the utility and
propriety of basing decisions on a factor that ideally bears no
relationship to an individual’s worth or needs.” United Jewish
Orgs., Inc. v. Carey, 430 U.S. 144, 173, 97 S.Ct. 996, 1014, 51
L.Ed.2d 2029 (1977) (Brennan, J., concurring in part and
dissenting in part). Preferences based on race “may only
reinforce common stereotypes holding that certain groups are
unable to achieve success without special protection based on
a factor having no relationship to individual worth.” Bakke, 438
U.S. at 298, 98 S.Ct., at 2752. As a result, a race conscious
government policy justified by a compelling
purpose—remedying past racial discrimination—must also use
race in as limited a manner as possible to accomplish that
compelling purpose.
[33] Several factors determine whether race-based
promotional relief is narrowly tailored to accomplish a
compelling purpose, including: “the necessity for the relief and
the efficacy of alternative remedies, the flexibility and duration
of the relief, including the availability of waiver provisions, the
relationship of numerical goals to the relevant labor market, and
Sea ee ee es
Sek Ab hid ee ele ei Bia 7
A43
the impact of the relief on the rights of [the Appellants].”
Howard v. McLucas, 871 F.2d 1000, 1008 (11th Cir.) (internal
quotations omitted), cert. denied, 493 U.S. 1002, 110 S.Ct. 560,
107 L.Ed.2d 555 (1989). We address each of these in turn.
[34] 1. Necessity for the Relief Granted and Efficacy of
Alternative Remedies. In Howard, we explored in detail the
provisions of a conrisent decree using race to provide relief to
victims of past discrimination by a government employer. The
consent decree provided promotions for 240 specified plaintiffs
who likely were previously denied promotions because of their
race. The decree identified 38 target positions, based upon
historical career progression patterns, to determine the jobs most
likely lost by the plaintiffs and limited the race-conscious
promotions to those positions. /d. at 1003. The 240
discrimination victims were listed on special promotion
registers and alternated with persons on a general promotion
register to fill openings as they occurred in each of the 38 target
positions. /d. at 1008. In reviewing a challenge to the decree,
we rejected the argument that promotional relief was
unnecessary because other alternatives were available. /d. at
1009. We found that the proposed alternatives were not feasible
because they did not place the plaintiffs, who were identified
victims of prior discrimination, in their nghtful place as
expeditiously as did the relief contained in the decree. /d.
[35] Where relief is not provided to identified victims of
discrimination, given the odious nature of race-based
decisionmaking, race-neutral alternatives should be considered
before a government implements an affirmative action plan
using race as the sole criteria upon which promotions are based.
See Croson, 488 U.S. at 507, 109 S.Ct. at 729 (faulting the city
for failing to consider the use of race-neutral means to increase
minority business participation in city contracting); Paradise,
480 U.S. at 171, 107 S.Ct. at 1066 (describing the need to
consider the efficacy of alternative remedies when determining
whether race-conscious remedies are appropriate). In examining
A44
this requirement in this case, the district court found that the
City “did attempt to correct its past discrimination in or around
1974, prior to the entry of the consent decree” in 1981. Bennett,
806 F.Supp. at 929. The district court noted that an affirmative
action ordinance designed to increase minority hiring by the
City was enacted by the City Council in 1974, but was later
vetoed by the Mayor. /d. at 929-30. The district court also noted
that a subsequent measure was enacted which placed
responsibility on various department heads to set and achieve
minority employment goals. /d. at 930. The district court found
that “[t]hese alternative measures were not effective, as
evidenced by the hiring of only two blacks in the Fire
Department by 1974” and by the fact that, as of the month
before the consent decree was formally entered in 1981, “only
9.3% of the firefighters were black.” Jd.
The district court’s finding that alternative measures to the
race-based promotion plan in the City decree were not effective
is clearly erroneous. First, the fact that only two blacks were
hired in the BFRS by 1974 has no bearing on the effectiveness
of affirmative action efforts implemented after 1974. Second,
post-1974 hiring data indicate that the City had made significant
progress in adding blacks to the firefighter ranks prior to
entering the consent decree.”* The effectiveness of the City’s
22 We are unable to determine from the record how much of this
progress to attribute to the effect of the City Council measure ordering
department heads to set and achieve minority employment goals and how
much to attribute to the curative measures the district court ordered the Board
to take after finding that its entry-level tests had an adverse impact on blacks.
We presurm that the two worked in concert.
A45
pre-decree efforts in hiring blacks as firefighters appears in the
chart below:
Black Non-Black Total Percent
Year Firefighters Firefighters Firefighters § Black
1974 2 n/a n/a n/a
1978 8 429 437 1.89%
198] 42 41] 453 9.3%
As the chart demonstrates, between 1978 and 1981, the City
increased the number of black firefighters from eight to forty-
two—a five-fold increase that was achieved in the absence of
the race-based affirmative action plan embodied in the consent
decree. We regard this progress as encouraging, not ineffective.
Unlike the situation in Croson, where there was no evidence in
the record that the city had even considered alternatives to race-
based quotas, Croson, 488 U.S. at 507, 109 S.Ct. at 729, there
is strong evidence in the record of this case that the City
implemented effective alternatives to race-based quotas to
remedy its prior discriminatory behavior. While the district
court correctly concluded that, when the decree was entered, no
black had as yet become a fire lieutenant, we believe that, given
the City’s progress at the entry-level, alternative measures
designed to increase black representation in the fire lieutenant
ranks were feasible.
Appellants suggest several feasible alternatives to the race-
based promotion remedy implemented by the City that could
have made a significant difference in the representation of
blacks among fire lieutenants. For example, Appellants propose
eliminating the addition of seniority points to the test score
when determining the final score that dictates an employees’
place on the eligible register. See supra part I.D. This race-
neutral alternative would prevent non-black firefighters from
benefiting in the promotion context from the City’s prior
discrimination against blacks in entry-level hiring. The non-
black status quo in the fire lieutenant ranks would not be
A46
preserved as a result of a seniority system that is a vestige of the
City’s prior discrimination against blacks. Under such a system,
recently-hired blacks who score higher on promotion exams
than more senior non-blacks would rank higher on the eligibility
register and be promoted sooner than their lower ranking but
more senior non-black co-workers. Appellants also suggest that,
if the Board’s promotion exams had an adverse impact on
blacks, a race-neutral alternative to those exams would be
implementation of another test that has no such adverse impact.
In addition, we note that the City could have implemented an
affirmative action plan, like the one approved in Johnson, that
accounted for the race of a candidate as one factor among many
to be considered. The record indicates that, in spite of its
progress at the entry level, the City considered no feasible
alternatives to the race-based promotional quota system for fire
lieutenants before it implemented this system as a remedy for
prior discrimination. Considering the efficacy of alternative
remedies, the relief provided in the decree cannot be reconciled
with the requirement that a government’s use of race must be
narrowly tailored.
[36] 2. Flexibility and Duration of Race-Based Relief. In
Howard, we identified several aspects of the consent decree that
readily demonstrated its flexibility, short duration, and minimal
adverse effects on non-beneficiaries. Howard, 871 F.2d at 1009.
First, the Howard decree did not prevent non-black employees
from being promoted because promotions to the target positions
from the special promotion roster alternated with those from the
general roster, while leaving most positions to be filled by open
competition. Jd. Second, the plaintiffs had to meet certain
qualification criteria in order to be promoted. /d. Third, the
government was not required to make unnecessary promotions
simply for the sake of providing relief to the plaintiffs. Jd.
Fourth, the relief was not intended “to set employment
percentage goals or ensure a racially balanced workforce, and
it evaporate[d] when the 240 promotions [were] made.” /d. A
comparison of the decree we approved in Howard with the City
decree in this case reveals some similarities, but some more
significant differences.
ae
Widnes & de tidih 92) SRL Le WECM -
A47
Like the Howard decree, the City decree does not require
unnecessary promotions in providing relief. The City decree
also requires that persons who benefit from the race-based
promotional relief must be Board-certified as eligible for
promotion. Further, the City decree does not prevent non-black
firefighters from being promoted to fire lieutenant, calling
instead for alternating promotions between blacks and non-
blacks. In Howard, however, the burden of the promotion plan
on non-black employees was more diffused than the burden on
non-black firefighters in this case. There were numerous
promotion opportunities in Howard for which black and non-
black employees might compete, irrespective of race, beyond
the 38 positions targeted by the decree. By comparison, in this
case the only promotional position for which a firefighter might
reasonably compete is fire lieutenant. A firefighter would be
unlikely to compete for promotions outside the career path of
the BFRS. Therefore, although the City decree does not prevent
promotions of non-black employees, it places a greater burden
on a smaller number of non-black firefighters than the Howard
decree placed on larger numbers of non-black Air Force Base
employees.
There is absolutely no similarity, however, between the
decree approved in Howard and the City decree in the overall
objective and operation of the two decrees. The Howard decree
was intended to provide specific relief to victims of past
discrimination. It did not attempt to ensure a racially balanced
workforce through “blind hiring by the numbers...
amount[ing] to a ngid and impermissible quota system.” /d. The
overall objective of the City decree, on the other hand, is for the
City to employ blacks in each job classification in each of its
departments in percentages which approximate the percentage
of blacks in the civilian labor force of the surrounding county.
Decree ¥ 5.
To achieve that objective among fire lieutenants, the City
decree sets a 50% annual quota for promotions of blacks. As we
explained earlier, in order to meet both its overall objective and
its annual quota, the City classifies firefighters by race and
makes promotion decisions based solely upon the race of the
A48
candidate. For every two promotions to fire lieutenant, one is
made from the list of eligible black firefighters and one is made
from the list of eligible non-black firefighters. Such use of race
by the City is not narrowly tailored to provide a proper remedy
for past discrimination. Rather, it is designed to achieve the
unconstitutional objective of outright racial balancing.
The Supreme Court has determined that it is “‘completely
unrealistic’ [to assume] that minorities will choose a particular
trade in lockstep proportion to their representation in the local
population.” Croson, 488 U.S. at 507, 109 S.Ct. at 729; see also
Sheet Metal Workers’ Int’l Ass'n v. EEOC, 478 U.S. 421, 493,
106 S.Ct. 3019, 3059, 92 L.Ed.2d 344 (1986) (O’Connor, J.,
concurring in part and dissenting in part) (“[I]t is completely
unrealistic to assume that individuals of each race will gravitate
with mathematical exactitude to each employer or union absent
unlawful discrimination.”). This determination comes despite
the Court’s acknowledgment that “absent explanation, it is
ordinarily to be expected that nondiscriminatory hiring practices
will in time result in a work force more or less representative
of the racial and ethnic composition of the population in the
community from which employees are hired.” /nternational
Bhd. of Teamsters v. United States, 431 U.S. 324, 340 n. 20, 97
S.Ct. 1843, 1856 n. 20, 52 L.Ed.2d 396 (1977). There is,
however, a considerable difference between expecting to find
a balanced work force, absent discrimination, and a
governmentally imposed plan using race to ensure a racially
balanced work force. See id. at 340 n. 20, 1856 & n. 20 (noting
that, while statistics showing racial imbalance are a probative
evidentiary tool often demonstrating telltale signs of racial
discrimination, they cannot support “an erroneous theory that
Title VII requires an employer’s work force to be racially
balanced”).
The City’s use of the 50% annual quota to establish a work
force of fire lieutenants reflecting black employment in lockstep
proportion to the proportion of blacks in the local labor force
cannot withstand strict scrutiny. See Croson, 488 U.S. at 507,
109 S.Ct. at 729 (finding that a city’s 30% contract set-aside for
minority businesses “cannot be said to be narrowly tailored to
—
~ Emel me ee
A49
any goal, except perhaps outright racial balancing”); Cone
Corp.,-908 F.2d at 914 (defining narrow tailoring in the context
of a minority business enterprise plan to “mean[] that the plan
must be designed to further some goal other than outright racial
balancing”); Mann v. City of Albany, 883 F.2d 999, 1005 (11th
Cir.1989) (noting that a majority of the Supreme Court has
“expressed clear hostility toward government affirmative-action
programs that distribute opportunities woodenly and inflexibly
on the basis of an applicant’s race”). The City decree
institutionalizes race as the sole criteria by which the City
selects certified candidates for promotion to fire lieutenant.
The City’s rigid approach, while administratively
convenient, is not a narrowly tailored means to remedy prior
discrimination. It is instead an approach designed to achieve
government-mandated racial balancing—the perpetuation of
discrimination by government. We can imagine nothing less
conducive to eliminating the vestiges of past discrimination than
a government separating its employees into two categories,
black and non-black, and allocating a rigid, inflexible number
of promotions to each group, year in and year out. We conclude
that the City’s use of race in its affirmative action plan is not
narrowly tailored to achieve a compelling government interest.
Instead, it provides for “blind hiring by the numbers...
amount[ing] to a rmgid and impermissible quota system.”
Howard, 871 F.2d at 1009.
[37] 3. Relationship of Numerical Goals to the Relevant
Labor Market. We explained above that fire lieutenants are
promoted from the ranks of firefighters, making firefighters the
relevant comparison group to which the numerical goals of the
decree must be related. See supra part III.A. We have also
determined that there is no relationship between the numerical
goal for fire lieutenant promotions and the representation of
blacks among firefighters. As such, the City’s affirmative action
plan does not use race in a narrowly tailored manner.
[38] 4. Jmpact of the Relief on Appellants. The relief
provided by the decree in Howard had a limited impact on non-
black employees. Certain promotions of non-black employees
A50
were delayed while the victims of past discrimination were
afforded relief. This impact was limited to the length of time it
took to achieve the legitimate objective of providing
promotional relief to discrimination victims and the decree
evaporated after the 240 promotions were made. Howard, 871
F.2d at 1009-10. In addition, non-black employees remained
eligible for and experienced no delay in pursuing promotions
to any of the multitude of jobs outside the 38 targeted by the
decree. In fact, in the twenty-month period during which the
decree operated, promotions made pursuant to the decree
amounted only to slightly more than 4% of all promotions
made. /d. at 1010. Under those circumstances, we determined
that the burden of the race-based promotion decisions imposed
on non-black employees did not “fall upon a narrow segment
of the work force” and was “relatively diffuse.” Jd. at 1009-10.
The impact of the City decree on the non-black Appellants
in this case is much more focused than that of the Howard
decree. First, the alternating promotion aspect of the Howard
decree delayed some promotions only until the legitimate
objective of providing relief to identified discrimination victims
was met. The provisions of the City decree, on the other hand,
continue in place until the City achieves its unconstitutional
racial balancing objective or until the district court terminates
the decree. Second, while the non-black intervenors in Howard
had open to them many other promotion opportunities beyond
those affected by the decree, in this case non-black firefighters
with more than two years’ experience could only reasonably
expect to compete for promotions in the BFRS to fire lieutenant.
When the City decree was implemented, those among the 42
black firefighters who had two years’ experience found half of
all promotions to lieutenant immediately reserved for
competition between them and only them, as a result of their
race. Those among the 411 non-black firefighters with two
years’ experience were consigned by their races to competing
for the other half of promotions to lieutenant. Thus, the impact
of the decree on non-black firefighters in this case was not
“relatively diffuse,” but was instead quite pointed.
poe ee Oe > ai
A51
In Howard, we found that race was used by the government
to provide affirmative remedies for prior discrimination in as
narrow a manner as possible under the circumstances. In this
case, however, as we concluded above, the City did not use race
as a narrowly tailored remedy for prior discrimination. “Under
strict scrutiny the means chosen to accomplish the State’s
asserted purpose must be specifically and narrowly framed to
accomplish that purpose.” Wygant, 476 U.S. at 280, 106 S.Ct.
at 1850. The use of race by government in its decision-making
is “simply too pernicious to permit any but the most exact
connection between justification and classification.” Fullilove v,
Klutznick, 448 U.S. 448, 536, 100 S.Ct. 2758, 2805, 65 L.Ed.2d
902 (1980) (Stevens, J., dissenting). The City decree uses race
as an overbroad remedy, categorizing BFRS employees by race
and promoting them woodenly and reflexively in rigid
adherence to a quota system. This broad brush approach,
designed to achieve outright racial balancing through an
inflexible but administratively convenient quota system, and
implemented without consideration of feasible, race-neutral
alternatives designed to remedy prior discrimination, is
unconstitutional. The decree violates the Appellants’ rights
under the Equal Protection Clause of the Fourteenth
Amendment.
V. Conclusion
We hold that the fire lieutenant promotion provisions of the
affirmative action plan embodied in the 1981 City decree violate
both Title VII of the Civil Rights Act of 1964 and the Equal
Protection Clause of the Fourteenth Amendment. We affirm the
district court’s holding that the Civil Rights Act of 1991 does
not bar Appellants’ claims. On remand, the district court should
provide appropriate relief consistent with this opinion.
Accordingly, the judgment of the district court is
AFFIRMED in part, REVERSED in part, and
REMANDED.
A52
James A. BENNETT, et al., Plaintiffs,
v.
Richard ARRINGTON,
et al., Defendants.
B’HAM ASS’N OF CITY EMPLOYEES,
et al., Plaintiffs,
v.
Richard ARRINGTON,
et al., Defendants. |
Robert L. WILKS, et al., Plaintiffs,
v.
Richard ARRINGTON,
et al., Defendants.
In re BIRMINGHAM REVERSE DISCRIMINATION
EMPLOYMENT LITIGATION.
Nos. CV 82-P-0850-S, CV 82-P-1852-S, CV 83-P-2116-S
and CV 84-P-0903-S.
United States District Court,
N.D. Alabama, S.D.
Aug. 14, 1992.
In reverse discrimination suit, the District Court, Pointer,
Chief Judge, held that actions taken by city pursuant to consent
decree entered into in connection with allegedly discriminatory
hiring and promotion of black and female fire fighters did not
violate constitutional rights of white fire fighters who alleged
“reverse discrimination.”
Ordered accordingly.
A53
District court was required to apply strict standard of
review, or strict scrutiny, to city’s decision-making process, in
determining whether city’s decisions pursuant to consent decree
entered into in connection with allegedly discriminatory hiring
and promotion of black and female fire fighters violated
constitutional rights of white fire fighters, since case was
founded on race- based employment decisions by public
employer, albeit pursuant to court- approved remedial action.
In action alleging that city’s decisions pursuant to consent
decree entered into in connection with allegedly discriminatory
hiring and promotion of black and female fire fighters violated
constitutional nghts of white fire fighters, burden on defendants
in action was not to prove at trial existence of past
discrimination by city; rather, issue was whether, at time it
agreed to consent decree, city had strong basis in evidence for
believing that there had been discrimination against blacks and
women. Civil Rights Act of 1964, § 701 et seq., as amended, 42
U.S.C.A. § 2000¢e et seq.
Actions taken by city pursuant to consent decree entered
into in connection with allegedly discriminatory hiring and
promotion of black and female fire fighters did not violate
constitutional rights of white fire fighters who alleged “reverse
discrimination”; city showed that before entering into consent
decree it had strong basis in evidence for believing that it had
discriminated against minorities, and consent decree was
sufficiently limited and tailored to appropriate relief. Civil
Rights Act of 1964, § 701 et seq., as amended, 42 U.S.C.A.
§ 2000e et seq.
Barbara Thawley, Washington, D.C., for U.S. Dept. of
Justice, Civ. Rights Div.
Jack Selden, U.S. Atty., Caryl Privett, Asst. U.S. Atty.,
Birmingham, Ala., for U.S. Atty.
Thomas L. Stewart, Laveeda Morgan Battle, Birmingham,
Ala., Personnel Bd. of Jefferson County.
AS4
James Alexander, Robert Spotswood, Birmingham, Ala., for
City of Birmingham and Arrington.
Demetrius Newton, City Atty., Birmingham, Ala., for
Birmingham.
Raymond Fitzpatrick, Birmingham, Ala., for plaintiff
intervenors in consolidated cases.
Susan Reeves, Birmingham, Ala., Robert D. Joffe, New
York City, St. John Barrett, Washington, D.C., for defendant
intervenors.
OPINION
POINTER, Chief Judge.
The City of Birmingham (“the City”) and the Jefferson
County Personnel Board (“the Board”), after prolonged
litigation in the 1970s over discriminatory hiring and promotion
of blacks and females, entered into settlement negotiations with
a class of black plaintiffs (“the Martin Intervenors”’) and the
United States. The negotiations resulted in separate proposed
consent decrees with the City and the Board. A fairness hearing
was held in August 1981 to consider objections from all
interested parties. The Birmingham Firefighters Association
(“BFA”), as amicus curiae, presented arguments opposing the
consent decrees. Their opposition focused on the proposed
affirmative action goals, which would impact adversely on
white males in the Fire Department.
The court approved the consent decrees on August 18, 1981.
The following day the BFA and two white firefighters moved
to intervene in the suit. Their motion was denied as untimely,
a ruling that was later upheld by the Eleventh Circuit in United
States v. Jefferson County, 720 F.2d 1511, 1520 (11th Cir.
1983). A separate suit (CA 82-P-850-S) was then filed by seven
white firefighters against the City and the Board, claiming
“reverse discrimination” would result from enforcement of the
consent decrees. An application for a preliminary injunction was
denied, and the Eleventh Circuit affirmed, ruling that the white
firefighters were unable to show irreparable harm if the decrees
were enforced. United States v. Jefferson County, 720 F.2d at
A55
1520, 1519-20 n. 21. Similar cases were later filed by other
white employees of the City.
These cases were consolidated as the “Birmingham Reverse
Discrimination Employment Litigation.” Once the Martin
Intervenors intervened as party defendants to defend the
decrees, a motion for partial summary judgment was brought
by the City and the intervening parties. The motion for partial
summary judgment was denied, and a trial was held in
December 1985 on the merits of three test cases.7> Following
the trial, the court denied the plaintiffs’ claims.7* An appeal
followed, and the Eleventh Circuit held that the white plaintiffs
were not bound by the consent decrees since they were not a
party to them. /n re: Birmingham Reverse Discrimination
Employment Litigation, 833 F.2d 1492 (11th Cir. 1987). The
Supreme Court agreed with the Court of Appeals. Martin
v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989).
The case was remanded to the district court for a further trial on
the merits of the plaintiffs’ reverse discrimination claims.
Following additional discovery, the trial was held October 21,
1991, and post-trial briefs and reply briefs were submitted by
the parties. Upon consideration of the evidence before the court,
the court concludes that plaintiffs’ claims must be denied.
23 The three test cases were CV 83-P-21 16-S, involving the claims of
plaintiffs Robert K. Wilks, Ronnie J. Chambers, Carlice E. Payne, John E.
Garvich, Jr., Robert Bruce Millsap, James W. Henson, Howard E. Pope, and
Charles E. Cariin; CV 82-P-850-S, involving the claims of plaintiffs Floyd
E. Click, James D. Morgan, Joel Alan Day, Gene E. Northington, Vincent
Joseph Vella and Lane L. Denard; and CV 82-P-1852-S, involving the claims
of plaintiffs Kenneth O. Ware and the Birmingham Association of City
Employees. The plaintiffs in the first two cases listed here were employees
of the Birmingham Fire Department; Kenneth O. Ware, an individual
plaintiff in the third listed case, was a City Civil Engineer. There have been
other members of the fire and engineering departments allowed to intervene
in CV 84-P-0903-S.
24 Numerous findings of fact were made by the district court. See 39
F.E.P.C. 1431-46 (BNA) (N.D. Ala. 1985). There is no need to repeat these
findings, which were not set aside on the appeal and under the law of the case
remain as determinations for purposes of this decision.
A56
STANDARD OF REVIEW
[1] Since this case is founded on race-based employment
decisions by a public employer, although pursuant to a
court-approved remedial action plan, the court must apply a
strict standard of review, or strict scrutiny, to the city’s
decision-making process. City of Richmond v. J.A. Croson Co.,
488 U.S. 469, 493, 109 S.Ct. 706, 720, 102 L.Ed.2d 854 (1989)
(O’Connor, J., separate opinion).
CIVIL RIGHTS ACT OF 1991
An initial matter to be addressed is the applicability of
section 108 of the Civil Rights Act of 1991. Section 108 amends
42 U.S.C. § 2000e-2 to provide that employment decisions
made pursuant to a valid consent decree which is entered under
claims of public employment discrimination may not be
challenged on a constitutional basis (1) by a person who, prior
to the entry of decree, had actual notice of the decree sufficient
to advise him that it could adversely affect him and that he
could challenge it, and an opportunity to object, or (11) “by a
person whose interests were adequately represented by another
person who had previously challenged the [decree] on the same
legal grounds and with a similar factual situation, unless there
has been an intervening change in law or fact.” It is unnecessary
to step into the mire of possible retroactive application of this
section, since neither of the conditions was satisfied. The court’s
decision therefore is grounded in the constitutional analysis
developed in recent Supreme Court rulings.
ANALYSIS
[2, 3] The central issue is whether the constitutional nghts
of the white firefighters were violated by the promotional
decisions made by the City pursuant to the consent decree
entered into by the City, the United States, and the Martin
Intervenors.2> The Eleventh Circuit directed this court to
25 The court had decided at the December 1985 trial that these
promotional decisions had been made pursuant to the decree. 39 F.E.P.C.
1431 (BNA)(N.D. Ala. 1985). These findings were not disturbed on appeal
A57
evaluate whether the consent decree, while not binding on the
white firefighters, nevertheless provided the basis for a defense
by the City to charges -of discrimination when making
promotional decisions pursuant to this decree. This directive
involves basic consideration of a two-pronged inquiry under
Johnson v. Transportation Agency, 480 U.S. 616, 631, 637-38,
107 S.Ct. 1442, 1451, 1454-55, 94 L.Ed.2d 615 (1987). The first
inquiry is whether the adoption of a race-based promotional
plan “‘was justified by the existence of a ‘manifest imbalance’
that reflected underrepresentation of [blacks] in ‘traditionally
segregated job categories’.” Jd. at 631, 107 S.Ct. at 1451
(quoting Steelworkers v. Weber, 443 U.S. 193, 197, 99 S.Ct.
2721, 2724, 61 L.Ed.2d 480 (1979)). The second consideration
is whether the plan “unnecessarily trammeled the rights of
[white] employees or created an absolute bar for their
advancement.” Jd. at 637-38, 107 S.Ct. at 1454-55. The court
concludes that the first condition is met and that the plan did not
unnecessarily trammel the rights of whites, nor did it create an
absolute bar to their opportunity for advancement.
Was the City justified in entering the consent decree?
Since the City’s promotional decisions were clearly
race-conscious in that they were mandated by a race-conscious
consent decree, the burden is on the City to show its adherence
to the decree provides a valid defense for the plaintiffs’ claims.
The City has met that burden.
First, the City must show that before entering into the
consent decree it had a “strong basis in evidence” for believing
that it had discriminated against minorities. It does not have to
prove that there was an actual finding, either judicial or
otherwise, that it discriminated in order to show that it was
justified in entering the consent decree.*° Although Croson did
by the Eleventh Circuit or the Supreme Court.
26 The burden on the defendants in this action is not to prove at tral
the existence of past discrimination by the City. Instead, the issue is whether
at the time it agreed to the consent decree the City had a strong basis in
A58
affect the way the court evaluates a claim of reverse
discrimination, it did not overrule the Supreme Court’s earlier
holding that statistical evidence can support a finding of
discrimination: “Where gross statistical disparities can be
shown, they alone may in a proper case constitute prima facie
proof of a pattern or practice of discrimination.” Hazelwood
School District v. United States, 433 U.S. 299, 307-08, 97 S.Ct.
2736, 2741, 53 L.Ed.2d 768 (1977), quoted in Peightal
v. Metropolitan Dade County, 940 F.2d 1394, 1401-02 (11th
Cir. 1991), cert. denied, -- U.S. --, 112 S.Ct. 969, 117 L.Ed.2d
134 (1992). In the 1985 trial of these cases, the court found that
there was significant evidence of prior discrimination at the time
the City entered into the consent decrees. See Jn re: Birmingham
Reverse Discrimination Employment Litigation, 39 F.E.P.C.
(BNA) 1431, 1437, 9 12-13 (N.D. Ala. 1985); see also United
States v. Jefferson County, 28 F.E.P.C. (BNA) 1834 (N.D. Alla.
1981). The additional evidence presented in the 1991 tnal
confirms those findings.
It should be emphasized that, prior to the City’s entering the
consent decrees, there had been a district court
decision—affirmed in pertinent parts by the Court of
Appeals—holding thai the tests used by the Personnel Board to
determine persons eligible for entry-level positions in the City’s
police and fire departments had a severe adverse impact on
blacks and were not sufficiently job-related to pass muster under
812 (Sth Cir. 1980). The discriminatory restrictions on these
entry-level positions also meant, of course, that blacks had been
denied the opportunity to hold higher level positions in these
departments. There then had been—again before the consent
evidence for believing that there had been discrimination against blacks (and
women). See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109
S.Ct. 706, 102 L.Ed.2d 854 (1989); Wygant v. Jackson Bd. of Educ., 476 U.S.
267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (plurality opinion); Howard v.
McLucas, 871 F.2d 1000 (11th Cir. 1989). Indeed, actual “findings” of
discrimination need not be made by the City at all. See Wygant, 476 US. at
289, 106 S.Ct. at 1854 (O’Connor, J., concurring in part and concurring in
the judgment); Howard v. McLucas, 871 F.2d at 1006.
A59
decree was entered—a further trial, with voluminous evidence,
attacking scores of other tests and selection devices
administered by the Personnel Board as having a similar adverse
impact and insufficient job-relatedness. It was only when faced
with the imminence of a decision by the district court
concerning these tests and devices that the consent decrees were
entered.
Was the consent decree narrowly tailored?
The closer question seems to be the second prong of this
inquiry: Whether the consent decree was sufficiently limited
and tailored to the appropriate relief. An initial consideration in
determining whether the relevant decrees were narrowly tailored
is whether the City pursued other means to increase the
representation of minorities in the Department. Other factors
utilized by the Supreme Court in United States v. Paradise, 480
U.S. 149, 171, 107 S.Ct. 1053, 1066, 94 L.Ed.2d 203 (1987)
(Brennan, J., plurality opinion) (citing Sheet Metal Workers
v. EEOC, 478 U.S. 421, 481, 486, 106 S.Ct. 3019, 3052, 3055,
92 L.Ed.2d 344 (1986)), in evaluating whether race-conscious
employment measures by a public employer are narrowly
tailored, are “the necessity for the relief and the efficacy of
alternative remedies; the flexibility and duration of the relief,
including the availability of waiver provisions; the relationship
of the numerical goals to the relevant labor market; and the
impact of the relief on the rights of third parties.” Jd. at 171, 107
S.Ct. at 1066.
These factors, applied to the facts of this litigation, show
that the decree is limited and tailored to the relief necessary to
overcome the employment effects of past discrimination by the
City. The City did attempt to correct its past discrimination in
or around 1974, prior to the entry of the consent decree. City
Mayor Richard Arrington testified that an affirmative action
ordinance was proposed and submitted to the City Council
which would have “establish[ed] some goals for minority
hiring” and “would have permitted the City to carry out certain
efforts in recruitment to try to increase the pool in which [the
City] hired people.... It was aimed at trying to increase
A60
minority hiring in the City of Birmingham.” Trial Trans. at
96.*’ The ordinance was adopted by the City Council, but later
vetoed by the then Mayor Seibels. A subsequent ordinance was
later passed which placed the responsibility on various City
department heads to set and achieve minority employment
goals. Trial Trans. at 97-98. These alternative measures were
not effective, as evidenced by the hiring of only two blacks in
the Fire Department by 1974. Indeed, the employment records
offered at trial show that as of July 21, 1981, only 9.3% of the
firefighters were black, and none of, the fire lieutenants,
captains, or battalion chiefs were black.”®
The City decree also satisfies considerations of flexibility
and duration. It does not require the City to promote unqualified
blacks in the Fire Department. Instead, it requires that, when
both black and white firefighters are certified to the Fire
Department as qualified applicants for a promotion, the
Department will alternate between blacks and whites, selecting
the white or black applicant who is ranked highest according to
the Board’s ranking procedure.
a? Mayor Arrington, then a member of the City Council, in 1974
supported the City’s adoption of the ordinance.
28 According to the Birmingham Personnel Board’s July 21, 1981,
affirmative action rig! 42 of 453 firefighters in the Birmingham Fire
Department were black, 2 of the 10 fire communications operators were
black, and zero out of 94 fire lieutenants, 31 fire captains and 15 fire
battalion chiefs were black.
29 The Board ranks individuals according to two factors. The first
factor is the applicant’s score on a job-related test administered by the Board.
The second factor is the number of senionty points achieved by the
individual. Seniority points are accumulated according to the number of years
of service, with a maximum of 20 points available to an individual.
The court made specific findings of fact regarding seniority points in the
1985 trial of these consolidated cases. In short, it found that there was “no
evidence demonstrating a relationship between [Department] seniority and
job performance as an officer.” Since blacks were effectively barred from
employment in the Department, as evidenced by the presence of only two
black hires before the first discrimination suit in 1974, seniority points were
A6él
The consent decree is also tailored to the relief sought by its
limitation in time to achievement of the long term goal of
attaining employment representation of blacks and women in
the City’s work force in approximate relation to their respective
percentages in the civilian labor force of Jefferson County as
shown in the 1970 federal census. It provided for modification
in the long term goal in accordance with any changes in the
appropriate work force reflected in the 1980 census. City of
Birmingham Consent Decree, para. 5. Annual goals were
established to meet that long term goal. Specifically in regard
to promotion in the Fire Department, an interim goal was
established, subject to the availability of qualified blacks, of the
promotion of one black for the next two captain positions that
were vacant. Thereafter, until the long term goal in the
Department was met, blacks should be promoted to captain
vacancies “at twice the black percentage representation in the
job classification from which promotional candidates are
traditionally selected for [that] job.” Jd. at para. 8. The decree
further provided for direct recruitment of blacks when
insufficient numbers of blacks to fill the interim goals were
certified to the City by the Board. /d. at para. 10b(i). The decree
also provided that reduction of the underrepresentation of blacks
and females would be pursued through departmental affirmative
action plans, id. at para. 11; through an affirmative job
recruitment program administered through, but not limited to,
local high schools, vocational schools, colleges and
organizations aimed at obtaining job opportunities for
minorities, id. at para. 14; through advertising for qualified
minorities, id.; and through job posting, id. at para. 15. In
addition, the decree provided that any party could move the
court for dissolution of the decree after six years from the date
it was entered. /d. at para. 55. In fact, upon motion, the decree
found to have an “obvious adverse impact.” Thus, seniority was found not
to be a factor that the Fire Department could use in choosing between black
and white candidates for promotion. 38 F.E.P.C. (BNA) 1431 (N.D. Ala.
1985) (Findings of Fact Nos. 58-60).
A62
was modified in May 1991 by this court based on its continuing
jurisdiction over the decree.*?
The decree was also tailored to an appropriate relevant labor
market when the City agreed to it. The decree provides for
hiring goals for blacks in proportion to their representation in
the labor force of Jefferson County.! Since the position of
firefighter is an unskilled position, this is an appropriate
correlation under Johnson v. Transportation Agency, 480 U.S.
616, 631-32, 107 S.Ct. 1442, 1451-52, 94 L.Ed.2d 615 (1987).
The promotions within the Fire Department to captain and
battalion chief were tied to the black representation within that
Department, albeit accelerated by the original interim goal to
twice the representation of blacks in the Department.
In earlier litigation of this case, the court found that “[s]ince
the entry of the Decree, some [whites] have been promoted
immediately upon certification, others after only a delay, and
those not promoted have had or will have an opportunity to
compete as each new exam is given and an eligible register
30 The May 1991 modifications were amended by order of the district
court dated September 25, 1991, to provide, in relevant part, that the
promotional goals set for blacks in paragraph 8 of the decree “shall not apply
if all testing and screening procedures utilized by the Personnel Board and
by the City with respect to a job classification either have no adverse impact
upon such persons or are demonstrated to be valid under applicable law.”
September 25, 1991, order amending the consent decree with the City of
Birmingham. Furthermore, the decree modification was amended to provide
that the interim goals for promotions in the Fire Department would change
to reflect promotions “in approximately the same proportion as the
percentage of black applicants for such positions” once the hiring goals for
blacks in the Department were met. /d.
3 Expert witness testimony regarding the City’s selection of the
relevant labor force shows that the City did not select the labor force which
would have reflected the highest percentage of blacks. The labor force of the
City of Birmingham proper, according to the 1980 federal census, consisted
of 49.9% blacks and 50.1% whites, while the labor force of Jefferson County
was 28.1% blacks and 71.9% whites. Use of the City’s relevant labor force
in fashioning the City’s goals would have resulted in significantly higher
goals for black employment.
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(which is valid for only a year) is created.” See 39 F.E.PC.
(BNA) 1431 (N.D. Ala. 1985) (Findings of Fact No. 14). These
findings show that the effect on third parties, specifically the
white firefighters complaining of racial discrimination in this
case, is an acceptable burden. There were no provisions to use
layoffs as a means for favoring junior black employees over
more senior white employees, nor was there an absolute bar to
promotions for white Department members, since half of the
promotions would be whites. See Johnson v. Transportation
Agency, 480 U.S. 616, 631-32, 107 S.Ct. 1442, 1451-52, 94
L.Ed.2d 615 (1987).
CONCLUSION
This court concludes that the City’s actions, taken pursuant
to the consent decree constituted valid, constitutional decisions.
See, e.g., Stuart v. Roache, 951 F.2d 446 (1st Cir.1991), cert.
denied, -- U.S. --, 112 S.Ct. 1948, 118 L.Ed.2d 553 (1992). The
various claims, counterclaims, and crossclaims in CV
82-P-850-S, CV 82-P-1852-S, and CV 83-P-2116-S must be
denied. In the absence of any just reason for delay, the order
accompanying this opinion also directs final judgment in CV
84-P-0903-S pursuant to Fed.R.Civ.Proc. 54(b) to the extent
these matters have previously been incorporated as part of that
case.
Order and Final Judgment
In accordance with the accompanying Opinion, it is
ORDERED and ADJUDGED as follows:
1. All claims, counterclaims, and crossclaims in CV
82-P-850-S are DISMISSED with prejudice, and each party
shall bear its own costs.
2. All claims, counterclaims, and crossclaims in CV
82-P-1852-S are DISMISSED with prejudice, and each party
Shall bear its own costs.
3. All claims, counterclaims, and crossclaims in CV
83-P-2116-S are DISMISSED with prejudice, and each party
shall bear its own costs.
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4. All claims for attorneys fees in CV 82-P-850-S, CV
82-P-1852-S, and CV 83- P-2116-S under 42 U.S.C. s 1988,
Title VII of the Civil Rights Act of 1964 and 28 U.S.C. s
2412(d) are DENIED.
Pursuant to Fed.R.Civ.P. 54(b), the Court determines that
there is no just reason for delay, and expressly directs that
judgment in CV 84-P-903-S be entered to the extent the claims,
counterclaims, and crossclaims described in paragraphs 1-4 of
this order have otherwise been incorporated as part of CV
84-P-903-S.
ee ee
A65
In re: BIRMINGHAM EMPLOYMENT LITIGATION
U.S. District Court,
Northern District of Alabama
In re: BIRMINGHAM REVERSE DISCRIMINATION
EMPLOYMENT LITIGATION, No. CV 84-P-0903-S,
December 20, 1985
CIVIL RIGHTS ACTS OF 1866, 1871, AND 1964
City’s promotion of black firefighters was required by
consent decree, and higher-ranked white firefighters who
otherwise would have been promoted therefore cannot obtain
relief under 42 U.S.C. § 1981, 42 U.S.C. § 1983, or Title VII,
where decree allowed exception to promotion goals only if
decisionmakers had information demonstrating that a black,
although qualified, was demonstrably less qualified than a white
on basis of job-related selection device, but while it has been
assumed that tests used by personnel board are job-related,
city’s decisionmakers did not have information available to
them on which they could have made any kind of judgment that
blacks scoring lower on examinations scored sufficiently lower
to be demonstrably less qualified than higher-ranked whites.
No attorneys’ fees will be assessed against white firefighters
who brought unsuccessful reverse discrimination action
challenging city’s promotion of lower-ranked blacks pursuant
to consent decree, where whites’ cases had sufficient merit to
justify their pursuit.
See also 37 FEP Cases 1.
Raymond P. Fitzpatrick, Jr., and Albert L. Jordan
(Fitzpatrick & Jordan), Birmingham, Ala., for plaintiffs.
Ralph E. Coleman, Birmingham, Ala., for plaintiff
William L. Garner.
James K. Baker, City Attorney, Birmingham, Ala., and
James P. Alexander, Robert K. Spotswood, Eldridge D. Lacey,
Richard H. Walston, and Greg Hawley (Bradley, Arant, Rose &
A66
White), Birmingham, Ala., for defendants Richard Arrington,
Jr., and City of Birmingham.
David P. Whiteside, Jr., Michael L. Hall, and Anne P.
Wheeler, Birmingham, Ala., and Johnston, Barton, Proctor,
Swedlaw & Naff, Birmingham, Ala., for defendant Jefferson
County Personnel Board.
W. Bradford Reynolds, Assistant Attorney General, and
Mary E. Mann, William R. Worthen, and James S. Angus, U.S.
Department of Justice, for plaintiff-intervenor United States.
William L. Robinson and Stephen L. Spitz, Washington,
D.C., Robert D. Joffe, George C. Whipple, III, Roy E.
Hoffinger, and Alden L. Atkins (Cravath, Swaine & Moore),
New York, N.Y., and Susan W. Reeves (Reeves & Still),
Birmingham, Ala., for defendants-intervenors John W. Martin,
et al.
Full Text of Oral Opinion
POINTER, Chief Judge:—The Court will now dictate its
findings of fact and conclusions of law. These findings of fact
are based upon the evidence that has been presented over the
past four and a half days, consisting of the testimony of various
witnesses and the reception into evidence of voluminous
documents.
[1] I state at the outset that the conclusion that I reach is to
be favorable to the defendants.
Basically the issue, the legal issue, which, as I view it, is
determinative of this case is one that was stated in an order
entered back in February of this year.
The conclusions there expressed either explicitly or
implicitly were that under appropriate circumstances, a valid
consent decree appropriately limited can be the basis for a
defense against a charge of discrimination, even in the situation
in which it is clear that the defendant to the litigation did act in
a racially conscious manner.
In that February order, it was my view as expressed then,
that if the City of Birmingham made promotions of blacks to
A67
positions as fire lieutenant, fire captain and civil engineer,
because the City believed it was required to do so by the
consent decree, and if in fact the City was required to do so by
the consent decree, then they would not be guilty of racial
discrimination, either under Title 7, Section 1981, 1983 or the
14th Amendment. That remains my conclusion given the state
of the law as I understand it.
Counsel have amply noted that the law is not clear, however,
in this regard. And that this decision is being made at a time
when there is uncertainty as to the state of the law.
In the effort to determine what the state of the law is, as best
I can determine it, I have considered no single decision. As I
evaluate the decisions particularly out of the Supreme Court, it
becomes apparent to me that if you look at any one given
decision, you can come up with a conclusion as to what the law
is which is different from the decision you reach if you look at
some other decision. And is required as a result somehow
attempting to synthesize what I view to be a development in the
law as yet not fully and finally defined.
Much argument has been made as this case came to trial
about the burden of proof. I declined in advance of trial to rule
definitively on certain hypothetical issues, because I wish to see
the state of the evidence as it was presented. I am persuaded that
at least in that respect my earlier decision was proper. Because
it has become clear to me from the evidence in this case that it
is not necessary for the Court to determine whether some action
apparently permitted by the consent decree but not mandated
by it would be protected against claims of discrimination.
In this case, under the evidence as presented here, I find that
even if the burden of proof be placed on the defendants, they
have carried that proof and that burden of establishing that the
promotions of the black individuals in this case were in fact
required by the terms of the consent decree.
I reach that decision on the basis that the language that has
become the focus of these proceedings, namely language in
paragraph two of the consent decree, would require or would
allow an exception to the goals otherwise stated for the City in
A68
other provisions of the decree only if the decision-makers at the
time of making the decision had information demonstrating that
a black, although qualified, was demonstrably less qualified
than a white on the basis of a job-related selection device.
During the presentation of evidence here, the only possible
job-related selection device that has been presented is that of the
test that the Personnel Board uses. Many other criterion have
been selected, none have been in any way indicated or
demonstrated as being job related. Job related in this sense must
be addressed in the context of the regulations under Title 7,
which were in force at the time the consent decree was adopted,
and indeed continued in force.
In this particular case, the tests used by the Personnel Board
have simply been assumed to be valid, that is, job related.
However, the evidence demonstrates that the decision-makers
on the part of the city did not have the information available to
them on which they could have made any kind of judgment that
the blacks scoring lower on those exams scored sufficiently
lower to be demonstrably less qualified than the whites who
were higher ranked.
I had anticipated until this morning that at the conclusion of
the case and while still attending to the case | would attempt at
the conclusion of the case to dictate findings of fact in my
normal manner. That is, I had anticipated that I would simply
from my own memory and recollection go through the various
items of evidence and make the appropriate findings with
respect to the variety of issues and persons involved.
I am varying from that today in doing something that I have
done only once before that I can recall. The reason for doing so
is that I have received this morning some findings of fact
proposed by the defendants that I find to be ninety-eight percent
objective, fair and the same findings I would make.
The appellate decisions have cautioned trial courts against
simply adopting proposed findings submitted by parties. I am
aware of that admonition. I have, however, gone through these
proposed findings and will in just a few minutes indicate certain
changes that I would make in them. To the extent I do not make
A69
changes, I adopt them as my own individual findings. This is
both as to findings of fact and conclusions of law. There are in
addition a few facts not contained in the findings of fact
proposed by the defendants that I will recite as findings of fact
by the Court.
First, I will attend to several matters that were not covered
by the defendants’ proposed findings of fact. Each of the
plaintiffs who complains in this litigation against the failure to
be appointed as a fire lieutenant or fire captain or civil engineer
or who claims that he was delayed in such an appointment was
adversely affected because he was white. Those persons in the
absence of the consent decree and in the absence of any
affirmative action plan adopted by the City as mandated by the
decree would, as I interpret the evidence, have been appointed
to the positions they desired and about which they here
complain. Each of those individuals ranked higher on the
certification list provided by the Personnel Board than the
blacks who were appointed by the City pursuant to the consent
decree.
Most but not all of those whites who were not selected for
those positions had higher test scores on the test administered
by the Personnel Board. Although the scores, as I have already
indicated, were not known by the decision-makers at least with
a sufficient degree of accuracy and completeness to make any
judgment concerning the significance of those differences.
Several of the whites who were unsuccessful in their
promotional efforts or who were delayed in those promotional
efforts not only had higher test scores than the blacks who were
selected but had scores which were sufficiently higher on the
test that using the techniques of statistical inference would have
indicated that the true test score of the white was Statistically
significantly greater than the true test score of the black. I state
that that is true for some of the whites involved but certainly not
all.
I make particular mention, although it is contained in the
proposed findings of fact submitted by the defendants, that the
practice of the fire department both before and after the consent
A70
decree was to not consider qualifications in making promotions
but instead is to follow willfully the certification list submitted
by the Personnel Board, simply selecting the higher ranked
person, whether qualified or not.
Only since the consent decree has that been changed one
occasion, and that was at a time at deciding that a black who
otherwise would have been mandated for promotion under the
decree was not qualified. This Court upheld the decision by the
City that under the particular facts of that case and that situation
the black was not qualified.
With respect to the vacancy in the engineering office, the
Court makes the following conditional matter that is perhaps not
that explicit in the proposed findings submitted by the
defendant. The white who would have been appointed to the
position of civil engineer and who certainly was qualified for
that position did score higher on the test than did the black who
was selected. He, I am referring to Mr. Ware, is the individual
who would have been selected by the chief engineer for that
position had it not been for the consent decree. In noting,
however, that the rankings and test scores coming from the
Personnel Board were not in the engineering department
deemed to be particularly valuable or useful, the chief engineer
would have selected that individual Mr. Ware, even though he
scored much lower than another white individual, that is the
difference between his score and another white was even greater
than the difference between Mr. Ware’s score and the black.
Furthermore, the chief engineer in his deposition testimony
indicated candidly that he considered the race of Mr. Thomas,
person ultimately chosen, being black, as a negative feature.
And that he would have so considered that as a negative feature,
but for the fact that the consent decree required him to look
otherwise at the candidate. He also noted in his deposition that
although he would have preferred because of his view of the
experience factor and certain other characteristics, the
appointment of Mr. Ware, he could not say that Mr. Ware was
to any significant degree better qualified than the person he
chose, namely the black Mr. Thomas.
OO ee et Se ae ee ee
ee es eee
A7]1
Now, with those additional matters being recited as findings
of the Court, I will go through the proposed findings of fact
submitted by the defendants and make certain revisions.
On page five, paragraph thirteen, [39 FEP Cases 1437], the
last—starting with the words and similar underrepresentation,
at that point the paragraph will simply read underrepresentation
continues even with the actions taken under the consent decree
to this day. And the following sentence will be deleted.
On page thirteen, paragraph forty-five, [39 FEP
Cases 1439], that item will be revised to read as follows:
Dr. Siskin did not in view of the Court’s limitations as to the
scope of trial conduct any studies to attempt to determine
whether the Personnel Board’s examinations are job related.
On the same page, paragraph forty-seven, [39 FEP
Cases 1440] it should read as follows: Dr. Siskin concluded that
at the 0-5 level of significance several non-selected whites’ true
test scores exceeded the true test scores of selected blacks by
four or more SEM’s.
On page fifteen, paragraph fifty-four, in the third line,
[39 FEP Cases 1440, fourth and fifth lines], the word rank or,
r-a-n-k space o-r, those two words are deleted.
On page seventeen, paragraph number sixty, [39 FEP
Cases 1441], the second sentence is revised to read as follows:
This underrepresentation resulted at least in part from
discrimination against blacks. On page eighteen,
paragraph sixty-three, [39 FEP Cases 1441], that paragraph is
deleted. On page twenty-two, paragraph seventy-eight, [39 FEP
Cases 1442], the first sentence should read as follows:
Moreover the evidence reflects that over the history of this
program blacks have had—excuse me, whites have had a
somewhat greater opportunity than blacks to achieve medic
status. On that same page, the parenthetical sentences at the
bottom of the page are deleted.
On page twenty-three, in paragraph seventy-nine, [39 FEP
Cases 1442], the third sentence it should read a lead worker
assist his or her lieutenant. The words “or her” being added.
A72
In paragraph eighty-one on the same page, [39 FEP
Cases 1442], that is rewritten to state the lead worker position
is usually assigned on the basis of station seniority. On the next
page, page twenty-four, paragraph eighty-four, [39 FEP
Cases 1443], that first sentence should read as follows:
Additionally, as is the case with all criteria based substantially
on seniority, blacks have not, as a whole had the same
opportunities as white to meet this proposed criterion.
On page twenty-seven, paragraph ninety-six, [39 FEP Cases
1444], is simply a typographical correctio. in the spelling of the
word “selection.” On page twenty-eight, paragraph ninety-eight,
[39 FEP Cases 1444], the last sentence, a typographical
correction, the spelling of the word “consider.” On page thirty,
paragraph one hundred and ten, [39 FEP Cases 1444-1445], that
paragraph is deleted.
On page thirty-three paragraph one hundred and
twenty-three [39 FEP Cases 1445], the figures twenty-five
percent are changed to fifty percent. On paragraph thirty—
excuse me, on page thirty-five, paragraph one thirty-five [39
FEP Cases 1446], that should read in appropriate part, a
selection procedure which relies in substantial part on subjective
criteria is not a related selection procedure within the meaning
of paragraph two within the City decree.
On page thirty-eight, in paragraph one forty-three [39 FEP
Cases 1447], the footnote is deleted. On page forty, paragraph
one forty-nine [39 FEP Cases 1447-1448], that paragraph is
deleted. On page forty-one paragraph one fifty [39 FEP Cases
1448] the following shall stand as paragraph one fifty: The City
decree entered by this Court immunizes the City from liability
for actions required by it. Any questions concerning this
proposition should be dispelled in this Circuit under the present
state of the law by the decision of the Court in Palmer versus
District Board. That will stand in place of what was written in
paragraph one fifty.
In paragraph one fifty-two on page one forty-one and going
over to page forty-two [39 FEP Cases 1448] is deleted. On page
forty-two paragraph one fifty-three [39 FEP Cases 1448] the
A73
following is substituted: Information or opinions not known to
the decision-maker may not be utilized to establish that the
individual selected—excuse me, that there were job related
selection devices showing one candidate demonstrably better
qualified than another.
In paragraph one fifty-four on the same page, the third line
[39 FEP Cases 1448], the word “subject” is eliminated and
substituted in its place the word “suspect, S-U-S-p-e-c-t. Two
lines below that, the word “contemplated,” that word is to be
eliminated and instead the word “affected” is substituted for that
word.
These findings and conclusions are entered at this time
along with the findings and conclusions indicated at the outset
of this recitation.
Entry of judgment should not be delayed or deferred.
However, I am going to call upon counsel to submit to me on
Monday an appropriate form of judgment that simply indicates
that in accordance with the findings and conclusions dictated
or incorporated by the Court in its oral charge that certain cases
or claims are dismissed and directing under Rule 54-B that
those findings and resolutions be made final.
I say that I ask this because there is some difficulty—I
believe this case fully disposes of or resolves at the trial level
the Bennett decision. But I don’t believe that is so with respect
to the case in which Mr. Ware had his claims, or at least I am
not sure it does, and so there would have to be a 54-B finding
in that case. Also since these cases were a part of a larger group
of cases consolidated under the name Birmingham Reverse
Employment Discrimination Case, it is for safety’s sake
appropriate to use 54-B to make sure that there is no question
as to finality by virtue of those other cases not having been
resolved at this time.
It is for that reason that I call upon counsel to make some
analysis to present me with an appropriate one-page order is all
it requires which clarifies which cases are due to be resolved as
a result of this decision favorable to the defendants.
A74
[2] Cost but no attorneys’ fees are taxed against the
plaintiffs in this case. It is clear that there is sufficient merit in
these cases to justify the pursuit of them. I say that both on a
subjective and objective basis and that claims by a prevailing
defendant under the Christian, Burg, Garment case
[ Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 16 FEP
Cases 502 (1978)] would not justify an award of attorneys’ fees
against the plaintiffs even though the defendants have prevailed.
There may be some question as to whether some change in the
standards when you are talking about a reverse discrimination
case, but at the present time I am persuaded that Christian,
Burg, Garment is the applicable standard to be applied here,
even though the—with the defendants having prevailed.
Let me stop at this point and see if counse}—I am obviously
not asking for—but if counsel has any questions about the
Court’s ruling, the nature of it and what you are called upon to
do and if you think | have totally left out a subject area that
perhaps should be included in the findings. Of course, it’s not
to cut off a request post-judgment for additional findings, I am
not asking for a waiver in that. It may be since I am sure
plaintiff’s counsel have not had the opportunity to fully go
through these items and compare them with ones that you might
want a finding on, I didn’t want to place in those findings that
] think are particularly favorable to the plaintiffs to help put this
case in the appropriate context which had not been included in
the defendant’s proposal.
Does counsel know of anything that—at the present time
they would ask me to consider?
Mr. FITZPATRICK: Your Honor, you are correct that we
have not had an opportunity to read this which was served at,
I guess about twelve noon.
With respect to the other consolidated cases, I think it would
be appropriate that if there is an appeal, that some mechanism
be provided for keeping those matters on hold in the event there
are additional claims filed during the process in which these
matters are ultimately resolved on appeal, if appealed, we also
set up a mechanism for that.
party
A75
THE COURT: As to those other cases, I really was not
suggesting anything at the moment other than to make sure the
presence of those other cases did not affect the appealability of
this decision.
MR. ALEXANDER: Your Honor, from the City, I think one
concern we would have in trying to avoid a repetition of the
expense attended to this matter. And perhaps we can work out
some way to keep the other cases in a state of limbo until this
is resolved.
THE COURT: Either that or could even be that the ultimate
findings that I made here are sufficiently—some of the ones are
going to be involved that something in the nature of a summary
judgment could be done so that those cases get to be reviewed
at the very same time. That’s simply something for y’all to
discuss. Certainly there seem to be several possible ways of
addressing this. But certainly many of the issues—
MR. ALEXANDER: The one thing I don’t want to do is
start police depositions Monday.
MR. FITZPATRICK: Me too.
THE COURT: I am sure of it.
MS. MANN: One point of clarification, do you want to meet
with counsel on Monday or do you just want a written—
THE COURT: I would assume that there is some one
plaintiff's lawyer that is in Birmingham and some one
defendant’s lawyer that is in Birmingham that can come to me
with a one-page document and say Judge, this I think is what
you are looking for. We don’t agree with it, we as plaintiffs, but
this is what you were trying to do in order to permit the
appealability decision. I am not looking for counsel to be
around, other than somebody on behalf of the plaintiffs and
somebody on behalf of defendants. Thank you very much.
A76
DEFENDANTS RICHARD ARRINGTON, JR., THE CITY
OF BIRMINGHAM AND DEFENDANT-INTERVENORS’
PROPOSED FINDINGS OF FACT AND CONCLUSIONS
OF LAW
Defendants Richard Arrington, Jr., the City of Birmingham, and
Defendant-Intervenors (“defendants”) submit the following
Proposed Findings of Facts and Conclusions of Law to assist the
Court in considering defendants’ Motion for Involuntary
Dismissal at the close of plaintiffs’ case.
FINDINGS OF FACT
1. The individual plaintiffs are white males, employed by
the City of Birmingham in its Engineering Department or the
Birmingham Fire and Rescue Service (“BFRS”), who contend
that they have been unlawfully denied promotions on the basis
of their race.
2. Also a plaintiff is the United States Department of Justice,
an intervenor on the side of the plaintiffs. (““Plaintiffs” will
hereafter refer to the individual plaintiffs and the United States
collectively. When collective use is inappropriate, the Court will
refer to “individual plaintiffs’ and “United States” or
“government”’.)
3. Defendants Richard Arrington, Jr., and the City of
Birmingham (collectively the “City”) admit that the Engineering
Department and the BFRS have considered race in making
promotions, but deny discriminatory intent, and proffer as their
legitimate, non-discriminatory motive compliance with a
Consent Decree entered in United States v. Jefferson County,
28 FEP Cases 1834 (N.D. Al. 1981) (the “City Decree’’);
discussed more fully below.
4. Defendant-intervenors represent the interests of the
original black plaintiffs (“Martin plaintiffs”) in Martin v. The
City of Birmingham, as well as those
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