Grant v. Metro. Gov't of Nashville, 3:04-0630

• Decision Date: 22 July 2010
• Docket Number: No. 3:04-0630,3:04-0630
• Citation: 727 F.Supp.2d 677
• Parties: Claude GRANT, Oralene Day, Princess Martindale, Faletha Reid, Darryl McKibbens, Darrel Gant, Antonia McKissack, Pamela Tucker, Sandra Derrick, individually and on behalf of all others similarly situated, Plaintiff, v. METROPOLITAN GOVERNMENT OF NASHVILLE and Davidson County, Tennessee, Defendant.
• Court: U.S. District Court — Middle District of Tennessee

727 F.Supp.2d 677

Claude GRANT, Oralene Day, Princess Martindale, Faletha Reid, Darryl McKibbens, Darrel Gant, Antonia McKissack, Pamela Tucker, Sandra Derrick, individually and on behalf of all others similarly situated, Plaintiff,
v.
METROPOLITAN GOVERNMENT OF NASHVILLE and Davidson County, Tennessee, Defendant.

No. 3:04-0630.

United States District Court,
M.D. Tennessee,
Nashville Division.

July 22, 2010.

727 F.Supp.2d 678

Martin D. Holmes, Dickinson Wright PLLC, Nashville, TN, Colleen M. Sweeney, Waller, Lansden, Dortch & Davis, LLP, Nashville, TN, for Plaintiff.

J. Brooks Fox, James W. J. Farrar, Allison L. Bussell, Francis Howard Young, Kevin C. Klein, Metropolitan Legal Department, Nashville, TN, for Defendant.

MEMORANDUM

WILLIAM J. HAYNES, JR., District Judge.

Plaintiffs, Claude Grant, Oralene Day, Princess Martindale, Faletha Reid, Darryl McKibbens, Darrel Gant, Antonia McKissack, Pamela Tucker, and Sandra Derrick, individually and on behalf of all other similarly situated, filed this class action under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981 against the Defendant Metropolitan Government of Nashville and Davidson County, Tennessee ("Metro"). Plaintiffs are current and former employees of Metro Water Services ("MWS"), a Metro governmental department and seek to represent a putative class of all current, past, and future MWS black employees from January 1, 2000 to the present.

The gravamen of Plaintiffs' complaint is that MWS engages in systemic practices of discrimination against black employees in post-employment opportunities, including disparate job assignments, promotions, pay, accommodations, discipline, and other terms and conditions of their employment. Plaintiffs asserted theories of disparate treatment and disparate impact for their individual and class claims. With the exception of Martindale, who worked at MWS for four and one-half years, the named Plaintiffs had between fourteen (14) and thirty (30) years of service with MWS. Id. Each Plaintiff filed timely charges with the Equal Employment Opportunity Commission ("EEOC") and the Tennessee Human Rights Commission ("THRC") and received a right-to-sue letter from the EEOC.

In earlier proceedings, the Court concluded that Plaintiffs met the prerequisites of class certification under Rule 23(a) and Rule 23(b)(2) of the Federal Rules of Civil Procedure because Plaintiffs seek primarily declaratory and injunctive relief related to programmatic and institutional changes in Metro Water's employment practices.¹

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The Court also denied Metro's motion for summary judgment ² (Docket Entry No. 89) concluding that material factual disputes existed.

The action proceeded to trial on April 15-18, and April 21-25, 2008. Plaintiffs' individual and class claims based on disparate treatment and hostile work environment were decided by the jury. After proof and closing arguments, the jury found for the Defendant on Plaintiffs' disparate treatment and hostile work environment claims of the individual Plaintiffs' and the class. The Court reserved ruling on the Plaintiffs' individual and class claims based on their disparate impact theory. (Docket Entry No. 191). The Court later granted the Plaintiffs' motion for a new trial on their disparate treatment claims and set a new trial date. (Docket Entry No. 223). Metro then filed a notice of appeal of the Court's Order granting Plaintiffs' motion for a new trial. (Docket Entry No. 225). Plaintiffs then moved to stay the Court's decision on their disparate impact claims pending completion of Metro's appeal (Docket Entry No. 228) and the Court granted that motion. (Docket Entry No. 232). Metro then filed a petition for writ of mandamus for a ruling on Plaintiffs' disparate impact claims in the Sixth Circuit. (Docket Entry No. 233). Metro's notice of appeal divested this Court of jurisdiction to decide any claims except for ancillary matters. Pickens v. Howes, 549 F.3d 377, 383 (6th Cir.2008). Thus, with Metro's notice of appeal, the Court lacked the authority to decide Plaintiffs' disparate impact claims that are not ancillary matters.

On July 8, 2009, in light of the pending Sixth Circuit proceedings, the Court administratively closed this action to be reopened upon a motion of any party. (Docket Entry No. 235). On June 4, 2010, 606 F.3d 855 (2010), the Sixth Circuit remanded this action affirming the Court's decision to grant a new trial on Plaintiffs' disparate treatment claims and requiring a decision on Plaintiffs' disparate impact claims within ninety (90) days of its decision. (Docket Entry No. 236).

A. FINDINGS OF FACT

1. MWS's General Structure

MWS, a Metro department, employed 688 employees, with minor variations, during this litigation. Historically, blacks have not held upper level management positions at MWS. Scott Potter, MWS's current director who is white, replaced Lester "Buddy" Williams, who is also white. Under its organizational structure, MWS has eight divisions: Administrative, Customer Service, Operations, Engineering, Human Resources, Information Services, System Services and Stormwater. Of MWS's Assistant Directors for each division, David Tucker is the only black assistant director and he was promoted in 1999. Prior to his promotion, MWS never had a black employee serve as an assistant director.

Below the assistant directors are MWS's other managers, supervisors, and other upper-level personnel who are: (1) Sonia Harvat, public information officer and Special Assistant to Director; (2) Glenn Mizell, finance manager; (3) Ann Dooley, Human

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Resource Manager; (4) James Brent, information systems division manager; (5) James Tarpy, special projects manager; (6) John Kennedy, deputy director of government council relations (all the above managers are white), and (7) Robin Brown, MWS's human relations manager who transferred in 2005 and was replaced by Ann Dooley, who is white.

MWS has a "Leadership Team" that has ten (10) employees of whom only one, Tucker, is black. Metro Water's "Leadership Team" sets MWS's rules, policies and budget and decides internal matters. See Plaintiffs' Exhibit 204. Plaintiff Grant who has been a MWS employee since 1973, was at one time a member of the Leadership Team and the first black employee to be so named under a prior MWS director. Among the Leadership Team members, Grant held the lowest classification and the lowest salary. According to Grant, he was removed from the Leadership Team after he disagreed with MWS's former director on promotion issues. (Docket Entry No. 199 at 74). MWS transferred Grant to a private agency working with MWS.

The next MWS management level is the "Process Owners Group" comprised of 35 to 40 employees responsible for various decisions in MWS. When this action was filed, two African-Americans were among its members. As of 2007, 6 or 7 members of the 35 to 40 "Process Owners Group" are black. (Docket Entry No. 208 at 206-07).

Of MWS's 688 employees, 178 employees are black, comprising twenty-six percent (26%) of the MWS workforce. Although minor variations exist from year to year, MWS has maintained a black workforce of at least 26%. Anthony Waggoner, a black employee at MWS since June 1988, has been supervised for most of his MWS career by an African-American. (Docket Entry No. 210 at 96). In 1996 Waggoner became a maintenance and repair leader 2. (Plaintiffs' Exhibit 51). Yet, Waggoner cited his crew's inability to secure proper equipment for their assigned field duties. (Docket Entry No. 210 at 97-98). During his career, the majority of Waggoner's crew were black and his crew was referred to as the "Black Empire." Id. at 98. By contrast, predominantly white crews were not given the name "White Empire." Id. at 213-214.

MWS employees are subject to the Metro's general pay plan applicable to most Metro employees. Under this plan, there are several "Pay Types": (1) "DP", for Department Directors; (2) "SR", for "Standard Range" employees whose primary duties involves "knowledge or experience of an administrative, clerical, scientific, artistic, or technical nature not related to trade, craft, or manual labor work;" and (3) "TLS", for "Trade and Labor" employees, who are in turn subdivided into three subcategories: (a) "TG", for positions with worker responsibility; (b) "TL", for positions with lead responsibility; and (c) "TS", for positions with supervisory responsibility. Within each grade, there are numerical ranges, representing incremental pay increases. All MWS employees are classified by pay type and pay grade and fall within one of the ranges. Although MWS utilizes the Metro pay scales for salary type and pay grade, the actual decision-making process in classifying an employee within a particular pay grade at MWS is subjective in nature, and is conducted without any formalized criteria.

For promotions, all Metro departments are bound by the promotion policies and procedures of the Metro Civil Service Commission ("MCSC"). Yet, a promotion to a "targeted position" is not included in MCSC's competitive promotion process. (Docket Entry No. 208 at 93). MCSC's promotion process begins with a

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job description that sets forth the minimum requirements that are based upon the responsibilities of the position. Most positions with MWS have pre-established job descriptions set by MCSC, but the testimony at trial was that MCSC adopts MWS's submissions on job descriptions. (Docket Entry No. 199 at 38, 105-106, 114). MWS can also request exceptions from job requirements for any position. (Docket Entry No. 208 at 190, 193). The job description and job announcement are posted publicly for all interested applicants to apply. MCSC prepares a list of the top three (3) to five (5) eligible applicants for the position, but MWS is not required to select the highest ranked applicant. Qualified applicants are notified and an interview panel...