Birmingham Reverse Discrimination Employment Litigation, In re, 86-7108

• Decision Date: 15 December 1987
• Docket Number: No. 86-7108,86-7108
• Parties: 45 Fair Empl.Prac.Cas. 890, 45 Empl. Prac. Dec. P 37,588, 56 USLW 2379 In re BIRMINGHAM REVERSE DISCRIMINATION EMPLOYMENT LITIGATION.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1492

833 F.2d 1492

45 Fair Empl.Prac.Cas. 890,

45 Empl. Prac. Dec. P 37,588, 56 USLW 2379

In re BIRMINGHAM REVERSE DISCRIMINATION EMPLOYMENT LITIGATION.

No. 86-7108.

United States Court of Appeals Eleventh Circuit.

Dec. 15, 1987.

Rehearing and Rehearing En Banc Denied Jan. 25, 1988.

Raymond P. Fitzpatrick, Jr., Fitzpatrick & Jordan, Birmingham, Ala., for Click, et al.

Mary E. Mann, Sp. Litigation Counsel, U.S. Dept. of Justice, Civ. Rights Div., James S. Angus, Senior Trial Atty., William B. Reynolds, David Kevin Flynn, Michael A. Carvin, Dennis J. Dimsey, Washington, D.C., Frank W. Donaldson, U.S. Atty., Birmingham, Ala., for U.S.

James P. Alexander, George Hawley, Robert K. Spotswood, Eldridge D. Lacy, Richard H. Walston, Birmingham, Ala., for City of Birmingham & Arrington, appellee/cross appellant.

Robert D. Joffe, Cravath, Swaine & Moore, New York City (co-counsel), Stephen Spitz, Lawyers Committee for Civ. Rights Under Law, William L. Robinson, Richard T. Seymour, Washington, D.C., for Martin, et al., appellees/cross appellants.

Judson E. Tomlin, Jr., Haskell, Slaughter, Young & Lewis, Charles A. McCallum, III, Thomas Drake Samford, IV, Mark Ezell, A. Lee Martin, Jr., Frank M. Young, III, Birmingham, Ala., for The Personnel Bd. of Jefferson County, appellees.

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

Before TJOFLAT and ANDERSON, Circuit Judges, and HENDERSON, Senior Circuit Judge.

TJOFLAT, Circuit Judge:

I.

This litigation has its origin in three employment discrimination actions filed in 1974 and 1975 against the City of Birmingham (the City), the Jefferson County, Alabama Personnel Board (the Board), ¹ and various other defendants. ² In January 1974, the Ensley Branch of the NAACP and seven black individuals filed separate class action complaints in the district court alleging that the City and the Board had violated, among other things, Title VII of the Civil Rights Act through racially discriminatory hiring and promotion practices. ³ In May 1975, the United States brought suit against the same defendants, also alleging a pattern or practice of discrimination in several areas of public service employment.

The district court consolidated the three cases. In December 1976, it held a bench trial on the limited issue of the validity of entry-level tests the City and the Board used to screen applicants for firefighting and police officer positions. The district court concluded that the tests were discriminatory in violation of Title VII. ⁴ In January 1977, the district court entered a final judgment on this limited issue, and the defendants appealed. This court affirmed the district court's determination of liability. Ensley Branch of NAACP v. Seibels, 616 F.2d 812 (5th Cir.), cert. denied, 449 U.S. 1061, 101 S.Ct. 783, 66 L.Ed.2d 603 (1980).

The district court held a second trial in August 1979 on the issue of the validity of other testing and screening devices the Board employed. The plaintiffs' independent claims against the City, however, were not tried.

While awaiting the district court's decision in connection with the August 1979 trial, the parties entered into settlement negotiations which resulted in two proposed consent decrees: one between the City and the black plaintiffs, the Ensley Branch of the NAACP, and the United States (the City decree), and one between the Board and the black plaintiffs, the Ensley Branch of the NAACP, and the United States (the Board decree). The consent decrees set forth an extensive remedial scheme, including long-term and interim annual goals for the hiring of blacks as firefighters and the promotion of blacks to the position of fire lieutenant. ⁵ Each decree specifically provided that it did not constitute an adjudication or admission of liability by the Board or the City.

After entering an order provisionally approving the decrees, the district court conducted a fairness hearing to consider the objections of interested parties. At that hearing, the Birmingham Firefighters Association 117 (BFA) ⁶ filed objections as amicus curiae. After the fairness hearing but before final approval of the consent decrees, the BFA and two of its members moved, pursuant to Fed.R.Civ.P. 24(a), to intervene as of right in each of the three cases, contending that the proposed consent decrees would adversely affect their rights. The court denied the motions as untimely, and, on August 18, 1981, entered an order approving the fairness of the two decrees. Although noting that the only judicial finding of discrimination to that point had been with respect to the entry-level screening tests, the court stated that "it can hardly be doubted that there is more than ample reason for [the Board and the City] to be concerned that they would be in time held liable for discrimination against blacks at higher level positions in the police and fire departments." ⁷ The court concluded that "[w]hether or not the proposed decree would in each instance correspond to some finding of discrimination which this court might make ... is not the question. The settlement represents a fair, adequate and reasonable compromise of the issues between the parties to which it is addressed and is not inequitable, unconstitutional, or otherwise against public policy." The court retained jurisdiction to enforce the decrees.

After the district court denied the motion to intervene and approved the decrees, seven white male firefighters brought suit in the district court against the City and the Board. They asked the court to enjoin the enforcement of the two consent decrees on the ground that the decrees would operate to discriminate against them in violation of Title VII. The plaintiffs applied for a preliminary injunction, but the court denied it.

The court's orders denying the motion to intervene and the preliminary injunction were appealed, and the appeals were consolidated. This court dismissed the appeal of the order denying the motion to intervene, concluding that the district judge had not abused his discretion. We pointed out that the white firefighters would not be prejudiced by the denial of intervention because they could file a separate Title VII action on their own behalf. We also affirmed the order denying preliminary injunctive relief, concluding that the individual firefighters had not carried the burden of showing irreparable harm. United States v. Jefferson County, 720 F.2d 1511 (11th Cir.1983).

After having been denied preliminary injunctive relief, the seven white firefighters brought suit in the district court against the City and the Board. They alleged that they were being denied promotions in favor of certain black firefighters whom they asserted were less qualified, and asked the court to enjoin the City from making those promotions. Maintaining that "[t]he defendants are certifying candidates and making promotions on the basis of race under the assumed protection of the consent settlements," the seven white firefighters alleged that the City and the Board were engaged in a practice or pattern of discrimination and were intentionally favoring blacks over whites in violation of Title VII and the equal protection clause of the fourteenth amendment. ⁸

Several other City employees who had been denied promotions subsequently brought similar suits in the district court against the City and the Board. ⁹ In addition, the United States, notwithstanding its status as a signatory of the consent decrees, brought suit against the City and the Board, ¹⁰ lodging essentially the same allegations as the various individual plaintiffs. ¹¹

In its answers to the complaints in these cases, the Board admitted that it had made "race conscious certifications pursuant to [the] Consent Decree, as is required by the Consent Decree." The City likewise admitted that it had made "numerous race conscious promotion and employment decisions pursuant to [the City decree's] terms." Both the City and the Board, however, denied that they had violated Title VII or the equal protection clause. Both contended that the plaintiffs were bound by the consent decrees and that the promotions were therefore lawful as a matter of law because they had been made pursuant to those decrees.

Seven black individuals moved both in their individual capacities and as class representatives to intervene as parties defendant in the several suits. ¹² The movants sought, pursuant to Fed.R.Civ.P. 23, to represent the class of black applicants and employees that had negotiated and signed the consent decrees in 1981. Because the relief requested by the plaintiffs, if granted, would foreclose future promotions of blacks under the decrees, and perhaps result in the demotion of blacks already promoted, the movants urged that they were entitled to intervene as of right under Fed.R.Civ.P. 24(a). The district court denied the motion to intervene under Rule 24(a), but granted it under Rule 24(b) (permissive intervention). ¹³ The court also ruled that the movants could intervene only in their individual capacities. ¹⁴

In April 1984 the district court consolidated the several suits for all purposes under the caption "In re Birmingham Reverse Discrimination Employment Litigation." After the parties joined issue, they engaged in extensive discovery concerning the criteria the City used when making the challenged promotions. The court then held a series of pretrial conferences in an effort to settle issues for trial. At those conferences, the plaintiffs ¹⁵ made repeated requests for guidance as to what they would have to prove to make out a case of unlawful discrimination.

Without expressly so stating, the district judge 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 City decree. Specifically, the district judge treated the plaintiffs as if they were contending that the City had violated paragraph 2 of the City...