Johnson v. City of Memphis, s. 13–5452

• Decision Date: 27 October 2014
• Docket Number: Nos. 13–5452,13–5454.,s. 13–5452
• Citation: 770 F.3d 464
• Parties: Marilyn JOHNSON, et al., Plaintiffs–Appellants/Cross–Appellees, v. CITY OF MEMPHIS, Defendant–Appellee/Cross–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

770 F.3d 464

Marilyn JOHNSON, et al., Plaintiffs–Appellants/Cross–Appellees

v.CITY OF MEMPHIS, Defendant–Appellee/Cross–Appellant.

Nos. 13–5452

13–5454.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 30, 2014.

Decided and Filed: Oct. 27, 2014.

Rehearing En Banc Denied Dec. 30, 2014.^*

ARGUED:David M. Sullivan, Memphis, Tennessee, for Appellants/Cross–Appellees. Louis P. Britt, Ford & Harrison LLP, Memphis, Tennessee, for Appellee/Cross–Appellant. ON BRIEF:David M. Sullivan, Memphis, Tennessee, for Appellants/Cross–Appellees. Louis P. Britt, J. Dylan King, Joshua J. Sudbury, Ford & Harrison LLP, Memphis, Tennessee, for Appellee/Cross–Appellant.

Before: SUHRHEINRICH, GIBBONS, and COOK, Circuit Judges.

OPINION

COOK, Circuit Judge.

After more than thirteen years of litigation, including a bench trial, numerous preliminary injunctions, and a previous appeal affirming the grant of injunctive relief for some plaintiffs, see Johnson v. City of Memphis (“Johnson Appeal I ”), 444 Fed.Appx. 856, 861 (6th Cir.2011), three consolidated cases challenging the City of Memphis's (“City”) police promotional processes as racially discriminatory return on cross-appeals. The appeals address two allegedly discriminatory sergeant promotional processes that occurred in 2000 and 2002 (the “2000 process” and “2002 process”¹ ), targeting three matters decided by the district court at different phases of the litigation: (1) the order dismissing plaintiffs' negligence claim concerning the already-invalidated 2000 process under Tennessee's governmental-immunity statute, Tenn.Code Ann. § 29–20–205 ; (2) the bench-trial decision invalidating the 2002 process for violating Title VII's disparate-impact prohibition, see 42 U.S.C. § 2000e–2(k)(1) ; and (3) the final judgment and related orders awarding back pay and interest to plaintiffs and more than $1 million in fees and expenses to their attorneys. Both the plaintiffs and the City appeal various aspects of these decisions.

For the following reasons, we affirm in part and reverse in part the district court's judgment, and we remand the fees issues for further consideration.

I. BACKGROUND

We briefly summarize the factual background of these cases thoroughly detailed in the district court's bench-trial opinion. The City's promotional processes have engendered controversy for nearly forty years, prompting numerous lawsuits alleging racial and gender discrimination by such parties as the United States Department of Justice, the Afro–American Police Association, and white and minority officers. See Aiken v. City of Memphis, 37 F.3d 1155, 1158–60 (6th Cir.1994) (en banc) (detailing the extensive litigation history). Despite the City's repeated assurances of adopting race-neutral promotional processes, we observed that, as of the mid–1990s, “incredibly, the City continue[d] to make police and fire department promotions according to procedures that have not been validated as racially neutral.” Id. at 1164.

The City responded with a 1996 promotional process (“1996 process”) designed by Dr. Mark Jones, an industrial and organizational psychologist, and overseen by a Department of Justice consultant. The 1996 process consisted of four components, weighted as follows: a “high-fidelity” law enforcement role-play exercise, 50%; written test, 20%; performance evaluations, 20%; and seniority, 10%. Arbitration proceedings involving claims under the City's Memorandum of Understanding with the police union ensued, but no Title VII litigation resulted.

Dr. Jones modeled the City's next promotion protocol after the 1996 process, replacing the role-play component with a video-based practical test because of security and practicability concerns. The 1996 simulation had taken more than two months (testing and scoring) to evaluate individually more than 400 candidates, and the City discovered problems with candidate coaching during the exercise. The following components initially comprised the 2000 process: a “low-fidelity” (i.e., no role-play) video-based practical test, 50%; job knowledge test, 20%; performance evaluations, 20%; seniority, 10%. After the City discovered that leaked answers compromised the results of the video test, the City excluded the video test and reweighted the remaining test components. The adjustments to the 2000 process prompted the first of these disparate-impact cases, Johnson v. City of Memphis, No. 00–2608, and the City ultimately consented to the invalidation of the 2000 process by Judge Jon McCalla in June 2001. (See R. 58, Order at 1–2.² )

Attempting to avoid the test-security issues encountered in the previous two promotional periods, the City hired outside consultants Jeanneret & Associates to design the replacement tests that would become the 2002 process. After the City submitted a testing proposal to the district court, Judge McCalla held a status conference to hear plaintiffs' objections and instructed plaintiffs' expert to work with the City's expert, Dr. Richard Jeanneret. The City addressed the concerns raised by plaintiffs' expert, and the district court granted the City's motion to proceed with the 2002 process. The 2002 process included the following equally weighted test components: an investigative logic test; a job-knowledge test; an application-of-knowledge test; a grammar and clarity test; and a “low-fidelity” video-based practical test.

The City administered the 2002 process to 517 applicants between September 27–29, 2001, and completed grading in fall 2002. Raw scores ranged from 174.75–358.75 out of a possible 384.5 points. The City converted these scores to a 100–point scale and then—honoring an agreement with the officers' union—added up to 10 points for seniority to the final promotion score. Promotion scores ranged from 53.511–103.303, of a possible 110 points. Despite the City's efforts, the 2002 process resulted in minority candidates scoring disproportionately worse than white candidates. Using Dr. Jeanneret's rank-ordered promotion scores, the City promoted 86 of the 274 African–American candidates (31.4%) and 176 of the 240 white candidates (73.3%). The original plaintiffs amended their pleadings to challenge the disparate impact of the 2002 process, and two additional lawsuits—Johnson v. City of Memphis, No. 04–2017, and Billingsley v. City of Memphis, No. 04–2013—joined the consolidated proceedings, which had been reassigned to then-District Judge Bernice Donald in September 2001.

The district court held a bench trial in July 2005 and issued its decision in December 2006. Its Memorandum Opinion and Order on Remedies rejected all claims except plaintiffs' Title VII disparate-impact claims as to the 2002 process. The court found that, while the 2002 sergeant test was valid and reliable, less discriminatory valid alternatives were available and, thus, the 2002 process violated Title VII. Though the court ordered the promotion of all minority plaintiffs, with back pay and seniority, it denied plaintiffs' request, at that time, to compete for promotion to the rank of lieutenant because they lacked the requisite two years' experience as sergeant. See Johnson Appeal I, 444 Fed.Appx. at 857 (detailing district court's procedural history).

Following the bench-trial decision, the district court fielded a variety of remedies-related motions for injunctions and stays between 2007 and 2010. Because so much time had passed since the problematic 2000 and 2002 processes, plaintiffs' alleged injuries, in terms of lost pay and seniority, spilled over into subsequent promotional processes, as plaintiffs were denied the opportunity to apply for additional promotions. At different points, court orders relying on the Title VII judgment invalidating the 2002 process permitted plaintiffs to participate in those promotions, see generally Johnson Appeal I, 444 Fed.Appx. at 857 (lieutenant promotions), but the district court repeatedly denied plaintiffs' request for additional retroactive seniority and back pay.

In March 2010, the court entered a preliminary injunction ordering the immediate promotion to the rank of lieutenant of 28 plaintiffs with passing exam scores and sufficient work experience, and we affirmed in Johnson Appeal I, 444 Fed.Appx. at 857–58, 861. In affirming the preliminary injunction, the panel expressed “concern[ ] at the degree of delay” of “this case, now in its eleventh year,” and admonished that it would entertain a mandamus petition if the district court failed to enter a final judgment within the next six months. Id. at 861 (noting that the district court's 2006 bench-trial decision “remains interlocutory almost five years later”). After plaintiffs petitioned for mandamus in January 2013, the district court awarded back pay, interest, and attorneys' fees and entered a final judgment, whereupon plaintiffs voluntarily dismissed their mandamus action.

The plaintiffs appeal the immunity-based denial of their negligence claim related to the 2000 process and various remedies and attorneys' fees issues related to the 2000 and 2002 processes; the City cross-appeals the district court's Title VII judgment invalidating the 2002 process and the related million-dollar attorneys' fees award; and the plaintiffs present an alternative legal justification³ for the Title VII judgment against the 2002 process.

II. JOHNSON I PLAINTIFFS' APPEAL: NEGLIGENCE CLAIM, 2000 PROCESS

First, the non-minority Johnson I plaintiffs dispute the application of governmental immunity to their negligence claim, targeting the already-invalidated 2000 process. They press this claim—their only one seeking damages—arguing that the decisionmakers responsible for the 2000 process committed non-discretionary acts ineligible for immunity. We review the district court's grant of summary judgment de novo. Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir.2006).

According to the Johnson I plaintiffs, City officials violated a key provision of the City Charter requiring the use of “practical tests” in the...