Morrow v. Dillard

• Decision Date: 12 April 1976
• Docket Number: Civ. A. No. 4716-N.
• Citation: 412 F. Supp. 494
• Parties: Willie L. MORROW and Jerome Mangum, Individually and on behalf of all others similarly situated, Plaintiffs, v. W. O. DILLARD, Commissioner of Public Safety of Mississippi, et al., Defendants.
• Court: U.S. District Court — Southern District of Mississippi

412 F. Supp. 494

Willie L. MORROW and Jerome Mangum, Individually and on behalf of all others similarly situated, Plaintiffs, v. W. O. DILLARD, Commissioner of Public Safety of Mississippi, et al., Defendants.

Civ. A. No. 4716-N.

United States District Court, S. D. Mississippi, Jackson Division.

March 31, 1976.

As Amended April 12, 1976.

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Frank R. Parker, Jackson, Miss., for plaintiffs.

Charles A. Marx, A. F. Summer, Atty. Gen., State of Miss., William A. Allain, Special Asst. Atty. Gen., Jackson, Miss., for defendants.

POST-REMAND MEMORANDUM OPINION

NIXON, District Judge.

This remanded racial discrimination case, which involves employment practices of the Mississippi Highway Patrol (MHP) as well as the entire Department of Public Safety (DPS) of which it is a part, is before us pursuant to the mandate of the Court of Appeals for the Fifth Circuit (en banc) 491 F.2d 1053 which affirmed this Court's finding that the Highway Patrol has historically engaged in unconstitutional discrimination in its employment practices, but found insufficient our decreed affirmative injunctive relief to eradicate or eliminate the effects of past racial discrimination. The Appellate Court found that additional specific relief must be granted if the Mississippi Highway Patrol's employment practices are ever to pass constitutional muster. More specifically, the en banc court remanded this case "for the District Court, in the first instance, to fashion an appropriate decree which will have the certain result of increasing the number of blacks on the Highway Patrol" and adumbrated guidelines to aid this Court in complying with this requirement.

The Court of Appeals concluded that because these defendants in oral argument represented that subsequent to this Court's decree they had hired every black applicant who had met all employment qualifications, resulting in only six black patrolmen having been hired since the entry of the decree "during a period when 91 patrolmen were added to a total force of approximately 500 troopers, (400 is the correct figure) these figures alone negate the State's argument that its present employment practices are nondiscriminatory, and give no support whatsoever to any argument that the decree appealed from was sufficient to eliminate the effects of past racial discrimination." The majority of the Court of Appeals concluded that it is apparent that either the qualifications are discriminatory in effect or the State has not conducted a sufficient recruitment campaign to enlist blacks who meet those requirements. This Court was then instructed to scrutinize the DPS's recruitment procedures and hiring criteria and to order additional appropriate recruitment measures to insure that black applicants will be attracted, as well as to require that hiring criteria, including testing, should be job validated by encompassing criteria predictive of successful job performance. Stated another way, this Court must insure the application by the DPS and the Mississippi Highway Patrol of objective, racially neutral, job-related and validated employment criteria and testing procedures which are correlated to satisfactory job performance.

The Court of Appeals found it incumbent upon this Court to order affirmative hiring relief which will have the certain result of increasing the number of blacks on the Highway Patrol, but at the same time emphasized that this affirmative hiring relief need not inexorably lead to the dilution of valid employment qualifications, and that the proportion of blacks on the patrol is not required to mirror the proportion of blacks in the population of the State of Mississippi.

The Appellate Court further pointed out that in view of the protractive and pervasive discrimination practiced by the DPS and the inefficacy of the prior decree of this Court in producing a more integrated Patrol, the burden will be upon the Patrol to prove that the residual effect of past discrimination has in fact been eliminated, and that prior to the cessation of affirmative hiring programs, if any black individual challenges the Patrol's refusal to employ him, it must show the refusal to be for legitimate, job-related reasons. This Court has also been instructed that upon completion of its scrutiny of the recruitment program and hiring criteria consistent with the principles set forth in the en banc majority opinion, we should require the DPS to fashion and submit for immediate approval and subsequent periodic review a plan which incorporates this Court's mandates; and that the plan to be submitted and ultimately enforced must be one "that works and works now to eliminate discriminatory hiring policies and eradicate their existence."

This Court has requested, received and studied proposed plans and decrees from the plaintiffs and defendants and held several conferences and hearings herein at which the parties were permitted to introduce evidence and make arguments.

It is apropos to point out that on May 15, 1974, by written order we denied the defendants' Motion for a Stay of Proceedings pending their Petition for Writ of Certiorari as well as the plaintiffs' Motion for a Temporary Restraining Order and/or Preliminary Injunction to restrain the defendants from swearing in an all-white highway patrol class consisting of fifteen recruits who had completed training. However, the defendants were restrained and enjoined from conducting any additional Patrol recruit training classes and from offering employment to or employing any additional personnel in any position in the DPS or MHP pending further order, except in an emergency, and then only with permission of this Court after a properly noticed petition-application and hearing. The order further required the defendants to submit within thirty (30) days a comprehensive plan providing for affirmative hiring which conformed to the requirements and guidelines set out in the opinion of the Court of Appeals and permitted the plaintiffs to submit proposed modifications or revisions of that proposed plan; and we ordered the plaintiffs to submit pleadings, affidavits and other evidentiary materials on the award of attorneys' fees for the filing, preparation and trial of this case, its previous appeal and further proceedings subsequent thereto. The foregoing order was fully complied with by the parties.

The post-remand evidentiary hearing held on September 12, 1974 revealed that at that time there was a total of 910 employees of the DPS, which includes the MHP as well as the newly created Bureau of Narcotics, composed of 884 whites and 26 blacks. Of this total, there were 576 sworn officers in the MHP, four of whom were black, 368 of whom were highway patrolmen in the enforcement division and 47 all-white supervisors. Of the 42 employees in the Bureau of Narcotics, 28 were agents and 14 were support personnel. Two of the 42 were black, one being an agent and the other a clerical worker. Of the 26 unsworn black employees in the DPS, 15 performed menial jobs, e. g., janitors or cooks, and 11 held clerical positions. The reason that there were only 4 black patrolmen at that time, compared to the 6 referred to by the Court of Appeals in its en banc opinion, is that of those 6, 5 were actually employed and on duty while one was in training school, and the trainee was dismissed from school on the unanimous recommendation of the training staff, and one of the remaining 5 had been indefinitely suspended because he pled guilty to charges of resisting arrest and the use of profanity in public, although two other charges against him, assault on an officer and driving under the influence, were dismissed after he refused to take an intoximeter test. In addition, he is alleged to have discharged his weapon in public while off duty. Also, the DPS, including the Highway Patrol, has been under injunction from this Court not to hire any employees other than the 15 who had given up their other jobs and completed the training class prior to this Court's last imposed injunction.

Seventy-three (73) blacks and ninety-six (96) whites have applied for jobs, been processed, and are eligible for being tested mentally and physically to become members of the MHP. Of the 73 blacks, 40 are new applicants and 33 are those who have previously taken and failed the Army General Classification Test (A.G.C.T.) and are again eligible to be tested. Of the 96 white applicants, 71 are new and 25 have previously failed the A.G.C.T. and are eligible to again be tested. These previously unsuccessful applicants have already been notified by mail that they again are eligible to be tested. Approximately 64% of the white applicants who took the A.G.C.T. passed while only 13% of the blacks made passing grades. The average number of Highway Patrolmen performing law enforcement duties during the last several years has been approximately 368 to 380, and approximately 28 to 30 are hired each year in order to replace those who resign, retire or terminate for other reasons. The number of new employees hired each year by the entire DPS depends on the annual budget which is set by the Mississippi Legislature and signed into law by the Governor.

This Court is in agreement with Judge Coleman's observation in his dissenting opinion that "there is nothing in this record to suggest that Mississippi is so bereft of Negro high school graduates and college trained persons that it has no adequate pool of qualified individuals for highway patrol service." 491 F.2d at 1062. Plaintiff's counsel stated his agreement therewith during the September 12, 1974 post-remand hearing.

As a result of the several hearings and conferences conducted by this Court subsequent to the remand of this case, the litigants have commendably reached agreements on the necessary recruiting measures to be undertaken by the DPS in order "to increase the flow of qualified minority applicants", as well as...