Black Fire Fighters Ass'n v. City of Dallas, Tex., 3:88-CV-2304-A.

• Decision Date: 05 November 1992
• Docket Number: No. 3:88-CV-2304-A.,3:88-CV-2304-A.
• Parties: BLACK FIRE FIGHTERS ASSOCIATION OF DALLAS, et al., Plaintiffs, v. CITY OF DALLAS, TEXAS, Defendant, v. DALLAS FIRE FIGHTERS ASSOCIATION, Intervenor.
• Court: U.S. District Court — Northern District of Texas

805 F. Supp. 426

BLACK FIRE FIGHTERS ASSOCIATION OF DALLAS, et al., Plaintiffs, v. CITY OF DALLAS, TEXAS, Defendant, v. DALLAS FIRE FIGHTERS ASSOCIATION, Intervenor.

No. 3:88-CV-2304-A.

United States District Court, N.D. Texas, Dallas Division.

November 5, 1992.

Roger Earl Albright, Cloutman Albright & Bower, Dallas, Tex., for plaintiffs.

Craig Lee Hopkins, Francisco Javier Garza, City Attorney's Office, Dallas, Tex., for City of Dallas, Texas.

Hal Keith Gillespie, David Kohlman Watsky, Gillespie Rozen & Tanner, Dallas, Tex., for Dallas Fire Fighters Ass'n.

MEMORANDUM OPINION AND ORDER

McBRYDE, District Judge.

On October 1, 1992, came on for hearing the joint motion of plaintiffs, Black Fire Fighters Association of Dallas, Joe M. Spigner, Terrance Houze, Calvin Jones, Kenneth Parker, Glenn Williamson, Alonza Williams, Leslie Browne, and all others similarly situated, and defendant, City of Dallas, Texas, for entry of order approving a compromise settlement (filed August 19, 1992). Plaintiffs, defendant, and intervenor, Dallas Fire Fighters Association, appeared by and through their attorneys of record. The court, having considered the motion, the testimony at the hearing, the arguments of counsel, applicable authorities, and the record in this action, finds that the motion should be denied.

The settlement proposal submitted by plaintiffs and defendant is attached to the August 19, 1992, joint motion for entry of order approving a compromise settlement. The court need not expound upon its terms, other than to note that the agreement calls for payment by defendant of $572,000.00 attributable to class back pay and $250,000.00 as attorney's fees and for defendant to promote from among qualified African Americans an additional twenty (20) persons to the rank of driver, an additional seven (7) persons to the rank of fire lieutenant, and an additional one (1) person to the rank of fire prevention lieutenant. Intervenor opposes the settlement agreement because of the so-called "skip promotions" that are proposed to be made.

The court recognizes that intervenor can not block approval of the proposed settlement by the withholding of its consent thereto. Fire Fighters v. Cleveland, 478 U.S. 501, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986). And, the court is not disapproving the proposed settlement agreement solely because of intervenor's opposition.

The court's inquiry focuses on two criteria. First, the court looks at whether the settlement proposal is fair, adequate and reasonable. Second, the court examines whether approval of the settlement proposal will unreasonably or unlawfully impact third parties. Williams v. City of New Orleans, 116 F.R.D. 561, 563 (E.D.La. 1987).¹

The factors relevant to determining whether the settlement proposal is fair, adequate and reasonable are: (1) whether the settlement was a product of fraud or collusion; (2) the complexity, expense, and likely duration of the litigation; (3) the stage of the proceedings and the amount of discovery completed; (4) the factual and legal obstacles to prevailing on the merits; (5) the possible range of recovery and the certainty of damages; and (6) the respective opinions of the participants. Parker v. Anderson, 667 F.2d 1204, 1209 (5th Cir. Unit A 1982).

As the court discussed with the parties at the hearing, fraud or collusion is not an issue. The case is complex, has been expensive, and has already been pending for several years. However, discovery is completed and the case is set for trial November 9, 1992. Thus, avoiding the expense of litigation is not a significant factor in favor of settlement at this time.

The factual and legal obstacles to plaintiffs' prevailing are significant. This is a disparate impact case in which plaintiffs will have to prove that discrimination against them has been caused by a specific employment practice. Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 997, 108 S.Ct. 2777, 2790, 101 L.Ed.2d 827 (1988). Plaintiffs attempted to make a prima facie showing by introducing statistics reflecting that certain promotion tests given during the relevant class time period adversely impacted class members.² As intervenor demonstrated, however, plaintiffs' bare statistical studies are misleading because they are based on the assumption that all test-takers started on even footing. The probative value of the studies was impeached by evidence that those who failed the tests did not seriously study for them. Id. (citing Contreras v. Los Angeles, 656 F.2d 1267, 1273-74 (9th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 140 (1982)). Moreover, intervenor showed that even disregarding test questions found not to be job-related the passing percentages would have been relatively unchanged, and, further, the passing percentages on the now validated tests are not significantly different from those achieved on the tests given prior to validation. An additional obstacle facing plaintiffs is that because of their failure to respond fully to intervenor's discovery,³ plaintiffs may not be allowed to introduce certain evidence critical to their case. Even if plaintiffs can make a prima facie showing, defendant has indicated that if the case goes to trial it will actively defend its actions. The court is satisfied that all counsel are competent and will continue to zealously represent their clients.

As for the range of recovery, plaintiffs have admitted that defendant's settlement offer is in line with the amount they could expect to recover assuming they prevail at trial.⁴ Damages are by no means certain, however, and plaintiffs' counsel readily admits that if liability is established plaintiffs could well recover much less than the proposed amount. The settlement proposal does not make any provision for members of the hiring class. Plaintiffs' counsel admitted that he would not be able to show hiring discrimination. The best that could be done for the hiring class has been voluntarily accomplished by the validation of all tests, affirmative recruiting in the community, and by giving every applicant a second chance to pass the requisite paramedic course. The proposed settlement is recommended by plaintiffs, their counsel, defendant, and its counsel. Intervenor vigorously opposes the proposal.

The second consideration is the most important. The United States Supreme Court has directed that affirmative action programs, whether voluntarily adopted or court-ordered, are subject to heightened scrutiny. Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986). Race-conscious relief must be justified by a compelling state interest and such relief must be narrowly tailored to further that interest. Richmond, 488 U.S. at 505, 507-08, 109 S.Ct. at 727, 728-29; Covington v. Beaumont Indep. Sch. Dist., 714 F.Supp. 1402, 1406 (E.D.Tex.1989). Moreover, in making its evaluation, the court must consider the necessity for relief, the efficacy of alternative remedies, the flexibility...