Reynolds v. Alabama Dept. of Transp.

• Decision Date: 01 June 1998
• Docket Number: No. CIV. A. 85-T-665-N.,No. CIV. A. 2709-N.,CIV. A. 85-T-665-N.,CIV. A. 2709-N.
• Citation: 4 F.Supp.2d 1092
• Parties: Johnny REYNOLDS, et al., Plaintiffs, v. ALABAMA DEPARTMENT OF TRANSPORTATION, et al., Defendants. UNITED STATES of America Plaintiff, v. Halycon Vance BALLARD, et al., Defendants, Alabama State Conference of Naacp Branches, Amicus Curiae.
• Court: U.S. District Court — Middle District of Alabama

4 F.Supp.2d 1092

Johnny REYNOLDS, et al., Plaintiffs, v. ALABAMA DEPARTMENT OF TRANSPORTATION, et al., Defendants.

UNITED STATES of America Plaintiff, v. Halycon Vance BALLARD, et al., Defendants, Alabama State Conference of Naacp Branches, Amicus Curiae.

No. CIV. A. 85-T-665-N.

No. CIV. A. 2709-N.

United States District Court, M.D. Alabama, Northern Division.

June 1, 1998.

Robert L. Wiggins, Jr., Ann K. Wiggins, Russell W. Adams, Abigail P. van Alstyne, Kimberly C. Page, Scott Gilliland, and Kell A. Simon, Gordon, Silberman, Wiggins & Childs, Birmingham, AL, for Johnny Reynolds, plaintiff, and Cecil Parker, Frank Reed, Ouida Maxwell, Martha Ann Boleware, Florence Belser, Peggy Vonsherie Allen, and Jeffrey W. Brown, intervenor-plaintiffs.

Claudia H. Pearson, Nakamura & Quinn, Birmingham, AL, for Robert Johnson, intervenor-plaintiff.

Raymond P. Fitzpatrick, Jr., R. Scott Clark, J. Michael Cooper, Fitzpatrick, Cooper & Clark, Birmingham, AL, for William Adams, Cheryl Caine, Tim Colquitt, William Flowers, Wilson Folmar, George Kyser, Becky Pollard, Ronnie Pouncey, Terry Robinson, Tim Williams, intervenors.

Raymond P. Fitzpatrick, Jr., R. Scott Clark, J. Michael Cooper, Fitzpatrick, Cooper & Clark, Birmingham, AL, for Michael Grant, John D'Arville, and Andrew McCullough, intervenors.

Thomas R. Elliott, Jr., Allen R. Trippeer, Jr., Lisa W. Borden, C. Dennis Hughes, London & Yancey, Birmingham, AL, and William H. Pryor, Jr., Attorney General for the State

of Alabama, Montgomery, AL, for Alabama Department of Transportation, Alabama State Personnel Department, Jimmy Butts, in his official capacity as Director for the Alabama Department of Transportation, Halycon Vance Ballard, in her official capacity as Director of the Alabama State Personnel Department, and Fob James, in his official capacity as Governor of the State of Alabama, defendants.

William P. Gray, Jr., Gray & Jauregui, Montgomery, AL, for Fob James, in his official capacity as Governor of the State of Alabama, defendant.

Elaine R. Jones, Norman J. Chachkin, NAACP Legal Defense Fund, New York, NY, for NAACP Legal Defense and Educational Fund, Inc., amicus.

Barbara R. Arnwine, Thomas J. Henderson, Richard T. Seymour, Teresa A. Ferrante, Lawyers' Committee for Civil Rights Under Law, Washington, DC, for The Lawyers' Committee for Civil Rights under Law, amicus.

ORDER

MYRON H. THOMPSON, District Judge.

The narrow but important question confronting the court is whether, in light of two recent United States Supreme Court decisions, Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), and City of Boerne v. Flores, ___ U.S. ___, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), the United States Congress exceeded its authority in providing for the imposition of `disparate-impact' liability on the States and their officials under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 1981a, 2000e through 2000e-17. It appears that, with these two decisions, the Supreme Court has unsettled greatly the terrain of eleventh and fourteenth amendment jurisprudence.

I. BACKGROUND

These two consolidated race-discrimination lawsuits, Reynolds v. Alabama Dep't of Transp., Civil Action no. 85-T-665-N, and United States v. Ballard, Civil Action no. 2709-N (previously styled United States v. Frazer, but still commonly known today as Frazer or the Frazer litigation),¹ are now before the court on a motion, filed by the Reynolds defendants (hereinafter referred to as merely the defendants), requesting that the court dismiss the disparate-impact claims asserted by the Reynolds plaintiffs (hereinafter referred to as merely the plaintiffs).² The defendants contend that Congress, in providing for the imposition of disparate-impact liability on the States and their officials under Title VII, exceeded its authority under the eleventh and fourteenth amendments to the United States Constitution.

Briefly, the history of Frazer and Reynolds is as follows. Frazer was an action brought in the late 1960s by the United States against the Alabama State Personnel Department and other State agencies (which later included the Alabama Department of Transportation), in which the United States challenged personnel practices that it contended intentionally discriminated against African-American applicants and employees. The court entered orders prohibiting these practices. See, e.g., United States v. Frazer, 317 F.Supp. 1079 (M.D.Ala.1970); United States v. Frazer, Civil Action no. 2709-N, 1976 WL 729 (M.D.Ala. Aug.20, 1976). In 1985, plaintiffs Johnny Reynolds and other African-Americans brought the Reynolds litigation against the defendants, the Alabama Department of Transportation, the Alabama State Personnel Department, and several State officials, charging, among other things, that, despite the orders entered in Frazer, the defendants had continued to discriminate against African-Americans. The plaintiffs advanced claims based on theories of `disparate treatment' and `disparate impact,' and based their lawsuit on Title VII.³ Upon appropriate motion, the court consolidated the Reynolds case with the Frazer litigation.⁴

In 1994, the Reynolds parties entered into a partial settlement that resolved all class-wide issues, see Reynolds v. Alabama Dep't of Transp., 1994 WL 899259 (M.D.Ala. Mar.16, 1994),⁵ with the resolution of individual claims to follow. See Reynolds v. Alabama Dep't of Transp., 996 F.Supp. 1156 (M.D.Ala.1998).⁶ The court has just completed a six-month trial of some of the individual claims.

The court has previously denied, by order entered September 10, 1997, a motion filed by the defendants to stay the trial on the plaintiffs' individual claims for relief pending resolution of the instant motion. See Reynolds v. Alabama Department of Transportation, 976 F.Supp. 1431 (M.D.Ala.1997).⁷ For the reasons that follow, the motion to dismiss should also be denied because, as the court concludes, Congress validly abrogated the States' sovereign immunity against disparate-impact claims of discrimination brought under Title VII by private parties.

II. DISCUSSION

A.

In their motion to dismiss disparate-impact claims, the defendants seek dismissal of all claims in which the plaintiffs allege that the defendants' various employment practices, policies, or procedures have had a disparate impact on black applicants and employees. As both parties correctly observe, the disparate-impact theory of discrimination pervades the Reynolds lawsuit, underlying both the class-based claims that were resolved by the entry of the 1994 consent decree and the individual claims that were the subject of the recently-completed, approximately six-month-long continuation of the trial.

The defendants agree, however, that because the orders and injunctions in Frazer were brought and prosecuted by the United States, their eleventh-amendment challenge does not affect them.⁸ The eleventh amendment does not bar suit by the United States against a State. Blatchford v. Native Village of Noatak, 501 U.S. 775, 779-82 & n. 1, 111 S.Ct. 2578, 2581-82 & n. 1, 115 L.Ed.2d 686 (1991). The United States has nonetheless opted to participate in this aspect of the Reynolds litigation because of its obvious interest in defending the constitutionality of the application of Title VII, including disparate-impact liability, to the States.⁹

The plaintiffs, along with the United States in Frazer, oppose the defendants' motion both `substantively,' by contending that the defendants' eleventh-amendment argument lacks substantive merit because it misconstrues Congress's constitutional authority and ignores governing precedent that contradicts its basic premises, and `procedurally,' by arguing that, based upon the following contentions, the court should not even reach the merits of the defendants' argument: (1) the defendants have waived their right to raise an immunity defense based upon the eleventh amendment at this late stage of the proceedings because they have forsaken myriad opportunities to assert the defense at an earlier juncture; (2) although the defendants seek to portray their argument as `jurisdictional,' and hence unwaivable, because it is grounded on the federalism and comity principles that underlie the eleventh amendment, they in fact level a waivable, `substantive' challenge that is focused exclusively on the scope of Congress's authority under the fourteenth amendment; and (3) the defendants contractually agreed to refrain from raising their eleventh-amendment defense when they entered into the 1994 consent decree in the Reynolds litigation, and this court would deprive the plaintiffs of a property right without compensation if it permitted the defendants to shirk their contractual duties.

Despite the potential merit of the procedural arguments advanced by the plaintiffs and the United States, the court declines to examine whether they militate in favor of denying the defendants' motion, because, as explained more fully below, the court finds that the eleventh-amendment challenge lacks merit and the motion is due to be denied on that basis. Thus, the court will limit its discussion in this order to the substance of the defendants' eleventh-amendment argument.

B.

In support of their motion to dismiss on eleventh-amendment immunity grounds, the defendants rely primarily upon the United States Supreme Court's decision in Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), and the analytic framework provided therein for determining whether Congress has properly abrogated the States' sovereign immunity as to particular statutory claims. As the defendants correctly observe, Seminole Tribe emphasized that a two-pronged inquiry must be undertaken to decide whether a legislative abrogation is valid. First, the court must ascertain whether Congress unequivocally expressed its intent in the legislation to abrogate eleventh-amendment immunity for...