Birmingham Reverse Discrimination Employment Litigation, In re
| Decision Date | 04 May 1994 |
| Docket Number | No. 92-6778,92-6778 |
| Citation | 20 F.3d 1525 |
| Parties | 64 Fair Empl.Prac.Cas. (BNA) 1032, 64 Empl. Prac. Dec. P 42,979, 62 USLW 2755 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. Denard, Plaintiffs-Appellants, Cross Appellees, v. Richard ARRINGTON, Jr., as Mayor of the City of Birmingham; City of Birmingham; James B. Johnson; Henry P. Johnston; and Hiram 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, Defendants-Appellees, John W. Martin, Major Florence, Ida McGruder, Sam Coar, Eugene Thomas, Charles Howard, Defendants-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; Phillip H. Whitley; David H. Woodall; Danny R. Laughlin; Marshall G. Whitson; Dudley L. Greenway, Plaintiffs, v. Richard ARRINGTON, Jr., as Mayor of the City of Birmingham; City of Birmingham; James B. Johnson; Henry P. Johnston; and Hiram Y. McKinney, as Members of the Jefferson County Personnel Board; Joseph W. Curtin, as Director of the Jefferson County Personnel Board; Jefferson County Personnel Board; and the United States of America, Defendants-Appellees, John W. Martin, Major Florence, Ida McGruder, Sam Coar, Wanda Thomas, Eugene Thomas and Charles Howard, Defendants-Intervenors-Appellees, Cross Appellants. Robert K. WILKS; Carlice E. Payne; Ronnie J. Chambers; John E. Garvich, Jr., James W. Henson; Robert Bruce Millsap, Plaintiffs-Appellants, Cross Appellees, United States of America, Plaintiff-Intervenor, 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 |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Raymond P. Fitzpatrick, Jr., Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, AL, for appellants.
Robert D. Joffe, Cravath, Swaine & Moore, New York City, for Martin, Florence, McGruder, Coar, Thomas and Howard.
James P. Alexander, Anne R. Yuengert, James Walker May, Bradley, Arant, Rose & White, Birmingham, AL, for Arrington and City of Birmingham.
Sharon R. Vinick, Richard T. Seymour, Lawyers' Committee For Civil Rights, Washington, DC, for Martin and others.
Rebecca K. Troth, Dept. of Justice, Appellate Section Civil Rights Div., Washington, DC, for U.S. as amicus curiae.
LaVeeda Morgan Battle, Gorham & Waldrep, P.C., Birmingham, AL, for Personnel Board of Jefferson County, AL and Board Members.
Appeal from the United States District Court for the Northern District of Alabama.
Before EDMONDSON and BLACK, Circuit Judges, and HENDERSON, Senior 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. 1
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. 2 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.
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. 3 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. In 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 I ). In 1979, the district court held a second trial on the validity of other testing and screening devices used by the Board. Id.
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 quota 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 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. 4 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. 5 The decree as it read when presented to the City Council set a long-term 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 for 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 two times the rate of black representation among firefighters. 6 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. 7 The City Council passed Resolution 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. 8
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 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 p 5. The final decree also sets 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 p 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. 9
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...
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