Harrison v. Metropolitan Government of Nashville and Davidson County, Tenn.

• Decision Date: 08 April 1996
• Docket Number: No. 94-6042,94-6042
• Parties: Robert Dale HARRISON, Plaintiff-Appellee, v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, Defendant-Appellant, Board of Health of the Metropolitan Government of Nashville and Davidson County, Defendants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1107

80 F.3d 1107

Robert Dale HARRISON, Plaintiff-Appellee, v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, Defendant-Appellant,

Board of Health of the Metropolitan Government of Nashville

and Davidson County, Defendants.

No. 94-6042.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 8, 1995.

Decided April 8, 1996.

On Appeal from the United States District Court for the Middle District of Tennessee; John T. Nixon, Chief Judge.

Abby R. Rubenfeld, Nashville, TN, Susan S. Garner (argued and briefed), Turner Law Offices, Nashville, TN, for plaintiff-appellee.

John L. Kennedy (briefed), Stephen Nunn (argued and briefed), The Metropolitan Government of Nashville & Davidson County, Department of Law, Nashville, TN, for defendant-appellant.

Before: LIVELY, KENNEDY, and RYAN, Circuit Judges.

LIVELY, J., delivered the opinion of the court, in which RYAN, J., joined. KENNEDY, J. (pp. 1119-20), delivered a separate opinion concurring in part and dissenting in part.

LIVELY, Circuit Judge.

The defendant, Metropolitan Government of Nashville and Davidson County, Tennessee (Metro), appeals from a judgment of the district court entered on June 14, 1994, finding it in contempt of a 1982 consent decree terminating litigation between the plaintiff, former Metro employee Robert Dale Harrison, and Metro. The district court, which had retained jurisdiction over the case after entering the consent decree, granted Mr. Harrison's motion to reopen the case upon his filing a petition for an adjudication of civil contempt. Following a four-day hearing, the district court found Metro in contempt and ordered it to perform specific affirmative acts in addition to paying the plaintiff for lost earnings. The court also directed Metro to pay all costs and the plaintiff's attorney fees. Upon Metro's posting a supersedeas bond, the district court stayed the money judgment, but refused to stay the injunctive provisions of its decree.

I.

A.

The plaintiff, who is black, was hired by Metro in 1972 to work in the Rabies Control Division of the Metropolitan Health Department (the Health Department). The Rabies Control Division is located in the Animal Control Facility (the pound). Mr. Harrison filed an employment discrimination action in district court on June 12, 1980, against Metro, the Board of the Health Department (the Board) and Board members. The plaintiff alleged that the defendants had denied him promotional opportunities on account of his race, and that they had retaliated against him for filing a complaint with the Equal Employment Opportunity Commission (EEOC). At the time of the lawsuit, Mr. Harrison was employed as a Rabies Control Officer I.

Pursuant to an agreement among the parties, the district court entered an Order of Judgment on May 17, 1982 (1982 Judgment or the consent decree), which directed the defendants to reinstate Mr. Harrison at the Rabies Control Officer II level; to calculate his annual leave and sick days as if there had been no break in his employment; and to pay Mr. Harrison $15,000 in back pay and $5,000 in attorney fees, plus costs. The consent decree also contained the following affirmative provisions:

2. The plaintiff shall receive any on-the-job training necessary to perform efficiently in the position [of Rabies Control Officer II] and for promotion to the position of Rabies Control Officer III upon such position becoming available and plaintiff meeting the qualifications therefor.

3. Job seniority will be calculated as if the plaintiff had been on the job with no break in service.

* * *

7. The defendants shall not discriminate against plaintiff or other black persons on account of race, or on account of his complaints against racial discrimination or this lawsuit.

Metro paid Mr. Harrison $20,000 and reinstated him on June 1, 1982, as a Rabies Control Officer II. He was then reclassified in 1989 as a Senior Rabies Control Officer, as were all other employees who formerly held Rabies Control Officer II or III positions.

B.

Under the applicable civil service rules, the pound was required to enforce a progressive disciplinary policy which provided that an employee would receive a written reprimand for a first infraction of work rules, suspension for a second infraction, demotion for a third infraction and termination for a fourth infraction. With respect to driving accidents, the policy at the pound was to give an oral reprimand for an employee's first accident, a written reprimand for the second, suspension without pay for the third, and to terminate the employee after the fourth. During the plaintiff's employment, and after his reinstatement, a new pound manager, Larry Cole, implemented a policy by which all driving accidents that occurred prior to October 1988 would be "wiped clean" from the employees' records.

In 1989, the plaintiff received an oral reprimand after hitting the rear of another car in a driving accident. He received a written reprimand for colliding into a police car at an intersection in July 1991. In August 1991, Mr. Harrison was suspended for six days without pay after he allegedly encouraged Jeffrey Baker, another rabies control officer, to leave his assigned territory to help him capture stray cats. The defendants claimed that leaving one's territory as well as picking up cats was against pound policy. Mr. Harrison appealed his suspension to the Board under the civil service grievance procedure in May 1992, but apparently to no avail.

The plaintiff had two more driving accidents, one in September 1991 and one in the fall of 1992, the latter of which he allegedly failed to report to his supervisor according to pound practice. At around the same time, Mr. Harrison was involved in two incidents in which he was allegedly rude to customers. Further, on July 30, 1992, the plaintiff received a written reprimand for excessive errors in paperwork.

On July 31, 1992, Paul Botranger, the Director of the Bureau of Environmental Health Services, issued a memorandum to all rabies control personnel regarding errors commonly made on receipts. The defendants had discovered these errors after reviewing all paperwork completed by pound employees between October 29, 1991, and July 27, 1992. On September 28, 1992, Mr. Botranger wrote a memorandum to Dr. Fredia Wadley, the director of the Health Department, indicating that Mr. Harrison continued to make the mistakes pointed out in his July 31 memorandum. Although a number of employees continued to forget to write in the number of days an animal had been impounded, the plaintiff was allegedly the only employee who consistently failed to follow proper procedure in correcting errors on receipts. Mr. Botranger therefore recommended that Mr. Harrison be terminated.

On November 2, 1992, Dr. Wadley informed Mr. Harrison in writing that he was terminated. Initially, the plaintiff was terminated on the grounds that he had been involved in four vehicular accidents, had failed to report his fourth accident to his supervisor, had made excessive paperwork errors and had been rude to the public. However, after Mr. Harrison appealed his dismissal to the Board in February 1993, the Board upheld his dismissal only on the grounds of careless driving and paperwork errors.

Mr. Harrison filed four separate charges with the EEOC after his 1982 reinstatement alleging discrimination and/or retaliation in his employment at the Health Department. In 1992, he also complained either orally or in writing to his supervisor, the director of the Health Department and the mayor of Nashville about how he felt he had been harassed at the pound.

C.

On December 30, 1993, the plaintiff filed the petition of contempt alleging that Metro, the Board and Board members failed to comply with the 1982 Judgment and ultimately terminated him on account of his race and in retaliation for filing a complaint with the EEOC. On the same day, Mr. Harrison filed a separate federal complaint arising out of the same facts and alleging unlawful race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., and Tennessee law. The district court consolidated the two cases.

After an evidentiary hearing, the court found that the defendants had paid Mr. Harrison $20,000 and rehired him as a Rabies Control Officer II, but were in contempt because they had "failed to take all reasonable steps to comply" with the order's directives in the areas of training, promotion, seniority and anti-discrimination. Accordingly, the court included affirmative directives in its 1994 judgment similar to those in the 1982 consent decree.

On appeal Metro argues that the district court's findings that the defendants violated the 1982 consent decree by failing to train, failing to promote, failing to grant seniority and pay at the required level, and harassing and discriminating against the plaintiff in disciplining and terminating him are all clearly erroneous. Metro also contends that the district court, in the guise of interpreting the 1982 consent decree, actually rewrote it.

II.

A.

In order to hold the defendants in civil contempt, a district court must find that the plaintiff established by clear and convincing evidence that the defendants violated the court's prior order. Glover v. Johnson, 934 F.2d 703, 707 (6th Cir.1991) (citing N.L.R.B. v. Cincinnati Bronze, Inc., 829 F.2d 585, 590 (6th Cir.1987)). In fact, each finding of a violation of the order must be supported by clear and convincing evidence. See id. at 710-13. The test for determining a violation is whether the defendants failed to take "all reasonable steps within their power to comply with the court's order." Peppers v. Barry, 873 F.2d 967, 969 (6th Cir.1989). We review the district court's finding of civil contempt for an abuse of discretion. Id. at 968. A district court may abuse its discretion when it relies on clearly erroneous findings of...