31 F.3d 1548 (11th Cir. 1994), 91-7799, Ensley Branch, N.A.A.C.P. v. Seibels

Docket Nº:91-7799.
Citation:31 F.3d 1548
Party Name:ENSLEY BRANCH, N.A.A.C.P.; Donald Nixon; William Moss; Alvin Mahaffey, Jr.; et al., Plaintiffs, Birmingham Fire Fighters Association 117; Birmingham Association of City Employees; et al., Intervenors, v. George SEIBELS, individually and as Mayor of the City of Birmingham, et al., Defendants. John W. MARTIN; Major Florence; Ida McGruder; Sam Coar; e
Case Date:August 25, 1994
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1548

31 F.3d 1548 (11th Cir. 1994)

ENSLEY BRANCH, N.A.A.C.P.; Donald Nixon; William Moss;

Alvin Mahaffey, Jr.; et al., Plaintiffs,

Birmingham Fire Fighters Association 117; Birmingham

Association of City Employees; et al., Intervenors,

v.

George SEIBELS, individually and as Mayor of the City of

Birmingham, et al., Defendants.

John W. MARTIN; Major Florence; Ida McGruder; Sam Coar;

et al., Plaintiffs,

Birmingham Fire Fighters Association 117; Birmingham

Association of City Employees; Billy Gray; et

al., Intervenors,

v.

CITY OF BIRMINGHAM; George C. Seibels, Jr.; Mayor of

Birmingham; Jefferson County Personnel Board; et

al., Defendants.

UNITED STATES of America, Plaintiff-Appellant,

Birmingham Fire Fighters Association 117; et al., Intervenors,

Robert K. Wilks; James A. Bennett; Floyd E. Click; James

D. Morgan; Joel Alan Day; et al.,

Plaintiffs-Intervenors-Appellants,

v.

JEFFERSON COUNTY, et al., Defendants,

City of Birmingham; and George G. Seibels; et al.,

Defendants-Appellees.

No. 91-7799.

United States Court of Appeals, Eleventh Circuit

August 25, 1994

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Raymond P. Fitzpatrick, Jr., Johnston, Barton, Proctor, Swedlaw & Naff Birmingham, AL, Miriam R. Eisenstein, Civ. Rights Div., Marie K. McElderry, Dennis J. Dimsey, U.S. Dept. of Justice, Washington, DC, Frank W. Donaldson, U.S. Atty., Birmingham, AL, for U.S.

Mark T. Waggoner, LaVeeda M. Battle, Gorham, Waldrep, Stewart, Kendrick, Bryant, Battle & Alfano, P.C., Birmingham, AL, for Jefferson County Personnel Bd.

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James P. Alexander, Bradley, Arant, Rose & White, Birmingham, AL, for Richard Arrington, Jr. & The City of Birmingham.

Robert D. Joffe, Cravath, Swaine & Moore, New York City, for Bryant.

Appeal from the United States District Court for the Northern District of Alabama.

ON PETITIONS FOR REHEARING

(Opinion May 4, 1994, 11th Cir., 20 F.3d 1489).

REVISED OPINION

Before EDMONDSON and CARNES, Circuit Judges, and HILL, Senior Circuit Judge.

CARNES, Circuit Judge:

The panel hereby grants rehearing, withdraws the previous panel opinion dated May 4, 1994, and published at 20 F.3d 1489, and substitutes the following opinion:

This litigation began more than twenty years ago when the United States and private parties filed civil rights complaints against the City of Birmingham, the Personnel Board of Jefferson County, and other local governmental agencies and officials. 1 The City and the Board share responsibility for hiring and promoting local government employees. The Board, pursuant to state law, administers written tests and other job selection procedures that produce a pool of qualified, or "certified," candidates for a particular position. See Act of July 6, 1945, No. 248, Secs. 2, 16, 1945 Ala. Acts 376, 377-79, 391-92 ("Act of 1945"). The Board ranks the passing applicants and then forwards a list of the top candidates to the City for final selection. See id., Sec. 18, 1945 Ala. Acts at 392-94 (regulating civil service appointments), amended, Act of May 4, 1989, No. 89-467, Sec. 1, 1989 Ala. Acts 967, 967-70 ("Amendments of 1989"). The original complaints alleged, first, that the Board used discriminatory tests to determine eligibility for hiring and promotion, and second, that the City and other "employing agencies engaged in still further discrimination when selecting individuals from [the Board's] already tainted lists." In re Birmingham Reverse Discrimination Employment Litig., 37 Fair Empl.Prac.Cas. (BNA) 1, 2, 1985 WL 1415 (N.D.Ala.1985). Over the past twenty years, the resulting litigation has prompted three decisions of this Court and one of the Supreme Court.

This appeal stems from a recent proceeding to modify two consent decrees negotiated thirteen years ago by the original parties. In the present appeal, none of the original parties contends that the district court's modifications were inappropriate--as far as those modifications went. Instead, the United States, joined by an intervening class of male, non-black employees of the City (the "Wilks class"), contends that the district court failed to go far enough in modifying the consent decrees to address changed circumstances. Because we agree that the Constitution requires further modifications, we reverse a portion of the district court's order and remand for further proceedings.

More specifically, we hold that the district court should: determine whether the City and the Board have a strong basis in evidence for their conclusion that race-based affirmative action is necessary in departments other than the police and fire departments, and if not, terminate the race-based goals with respect to those other departments; order the City and Board to implement valid job-selection procedures forthwith; prohibit appointments based on race or gender after valid procedures are in place, unless the district court specifically finds that further affirmative action is necessary to remedy the lingering effects of discrimination; revise the decrees' annual appointment goals for blacks to make them flexible and reasonably related to the pool of qualified black applicants; and award appropriate attorneys' fees to the Wilks class.

Part I of this opinion sets forth the factual and procedural background of the present litigation. Part II sets forth our standards of review. Part III concerns the decree

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modification issues: subpart A discusses the applicable law; subpart B applies that law to the decrees' race-conscious affirmative action provisions; and subpart C applies the law to the decrees' gender-conscious affirmative action provisions. Part IV involves an attorneys' fees issue. Part V concludes.

I. BACKGROUND

The size and complexity of this case require that we consider its history in some detail. Whenever possible, we draw on our prior decisions to summarize what has come before.

  1. THE COMPLAINTS, FIRST TRIAL, AND APPEAL

    The first six years of litigation began with a series of lawsuits against the City and Board alleging discriminatory employment practices:

    On January 4, 1974, the Ensley Branch of the National Association for the Advancement of Colored People, together with certain named individuals, for themselves and on behalf of others similarly situated, filed a complaint in the United States District Court for the Northern District of Alabama, against George Seibels (then Mayor of Birmingham, Alabama), the City of Birmingham, the members of the Personnel Board of Jefferson County, and the Personnel Director of that Board, alleging that the defendants engage in discriminatory hiring practices against blacks in violation of the Fourteenth Amendment, 42 U.S.C. Secs. 1981, 1983, and 2000e et seq. (Title VII). A suit raising the same constitutional and statutory allegations was filed on January 7, 1974, by John W. Martin and other named plaintiffs [the "Martin class"] against the City of Birmingham, Jefferson County, and the Personnel Board of Jefferson County. On May 27, 1975, the United States brought suit against the Jefferson County Personnel Board and the municipal and other governmental jurisdictions within Jefferson County alleging a pattern or practice of discriminatory employment practices against blacks and women in violation of Title VII, the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 42 U.S.C. Sec. 3766(c), the State and Local Fiscal Assistance Act of 1972, as amended, 31 U.S.C. Sec. 1242, the Fourteenth Amendment and 42 U.S.C. Sec. 1981. On February 20, 1976, Lucy Walker filed suit challenging the employment practices of the Jefferson County nursing home under Title VII and 42 U.S.C. Sec. 1981. All four cases were consolidated for trial.

    On December 20-22, 1976, trial was held on the merits of the limited issue of whether the two tests used by the Personnel Board to screen and rank applicants for positions as police officers and firefighters [were] discriminatory and violative of the constitutional or statutory rights of blacks. All other issues under the complaints were reserved until a later date.

    Ensley Branch, NAACP v. Seibels, 616 F.2d 812, 814-15 (5th Cir.) (footnotes omitted), cert. denied, 449 U.S. 1061, 101 S.Ct. 783, 66 L.Ed.2d 603 (1980).

    The police officer and firefighter tests at issue were written examinations consisting of 120 multiple-choice aptitude and knowledge questions. Ensley Branch, NAACP v. Seibels, 13 Empl.Prac.Dec. (CCH) p 11,504, at 6797 & n. 16, 1977 WL 806 (N.D.Ala.1977), aff'd. in part and rev'd in part, 616 F.2d 812 (5th Cir.), cert. denied, 449 U.S. 1061, 101 S.Ct. 783, 66 L.Ed.2d 603 (1980). The score required to pass each test varied with the number of vacancies and other factors. Ensley Branch, 616 F.2d at 816 n. 10. Under procedures still in place today, the Board ranks passing applicants on an eligibility list according to their score. Id. at 816. For promotional positions, an applicant's score is increased by one point for each year of seniority. See Act of 1945, Sec. 20, 1945 Ala.Acts at 394-95; accord In re Birmingham Reverse Discrimination Employment Litig., 37 Fair Empl.Prac.Cas. (BNA) 1, 5, 1985 WL 1415 (N.D.Ala.1985). When a vacancy arises, the Board forwards the top three names from the eligibility list to the City for final selection. See Act of 1945, Sec. 18, 1945 Ala. Acts at 392-94, amended, Amendments of

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    1989, Sec. 1, 1989 Ala. Acts at 967-70; 2 accord 37 Fair Empl.Prac.Cas. (BNA) at 5 & n. 12. As discussed below, the district court in 1981 approved a pair of consent decrees requiring the City and Board to modify their procedures to take into account race and gender...

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