Reynolds v. Alabama Dept. of Transp.

Decision Date03 March 1998
Docket NumberNo. CIV. A. 85-T-665-N.,CIV. A. 85-T-665-N.
Citation996 F.Supp. 1130
PartiesJohnny REYNOLDS, et al., Plaintiffs, v. ALABAMA DEPARTMENT OF TRANSPORTATION, et al., Defendants.
CourtU.S. District Court — Middle District of Alabama

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., Atty Gen. for the State of Alabama, Montgomery, AL, for Alabama. Dept. of Transp., Alabama State Personnel Dept., Jimmy Butts, in his official capacity as Director for Alabama Dept. of Transp., Halycon Vance Ballard, in her official capacity as Director of the Alabama State Personnel Dept., and Fob James, in his official capacity as Governor of the state of AL, 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, Chief Judge.

The history of this 13-year-old lawsuit — in which African-American plaintiffs have charged defendants Alabama Department of Transportation and Alabama State Personnel Department with employment discrimination — documents a struggle to create a Transportation Department where merit is considered and evaluated in a color-blind fashion, so that opportunities are equally available to qualified candidates. A 1994 consent decree, commonly referred to as `consent decree I,' set up an open and competitive system in which persons, regardless of race, could pursue and be considered for promotions, both provisional and permanent, on the basis of merit.1

Currently before the court are the plaintiffs' motions for an injunction permanently prohibiting the Transportation Department from perverting its employee grievance procedure into a tool to allow supervisors again to engage in the secretive and non-competitive selection and promotion of employees. Under the challenged grievance procedure, according to the plaintiffs, a favored employee whose supervisor has selected him or her to fill an out-of-class position would file a grievance to be provisionally promoted to the new out-of-classification position and possibly receive backpay from the time of the appointment, the employee and the supervisor would then enter into a `settlement' of the grievance, and the employee would then receive a provisional appointment, with backpay, to the position pursuant to the so-called settlement agreement. Employees whom their supervisors disfavored, for whatever reason, could not compete for the position, no matter how well qualified. The plaintiffs maintain that to allow the grievance procedure to be used in this manner would be to allow the procedure to become essentially a closed and non-competitive means for friendly promotions. Indeed, according to the plaintiffs, three white employees — Andrew Grant, Michael McCullough, and John D'Arville — have attempted, and hundreds of other employees are attempting, to have the grievance procedure used to this very end.

For the reasons that follow, the court finds that the use of the grievance process in this manner perpetuates practices forbidden by consent decree I and condemned in another longstanding, companion case, United States v. Frazer, civil action no. 2709-N (M.D. Ala.).2 For this reason, and with the goal of creating a level playing field in the Alabama Department of Transportation always before it, the court grants the plaintiffs' motions for permanent injunction, albeit only to the extent of giving declaratory relief.3

I. BACKGROUND

This lawsuit, filed by African-American applicants and employees of the Alabama Department of Transportation alleging racial discrimination, is now about to begin its fourth year under consent decree I, a partial settlement between the parties designed to remedy past discriminatory policies and establish open and equal access to employment opportunities throughout the Transportation Department. Incorporated by reference into the consent decree are the findings and orders from permanent injunctions entered in an earlier discrimination lawsuit against the Transportation Department, the Frazer litigation. Because the histories of these two lawsuits against the Transportation Department are so interrelated, the court will begin with an overview of the relevant history of the period leading up to both the Frazer injunctions and the entry of consent decree I.

Frazer Litigation: For the first three-quarters of this century, the State of Alabama and its agencies excluded African-Americans, because of their race, from employment other than in low and menial positions, and throughout the last quarter of this century, despite outstanding court orders, the Transportation Department manipulated, or even circumvented, State personnel procedures to avoid hiring and promotion of African-Americans into responsible and non-menial jobs.

In the late 1960s, the United States brought an action against the Alabama State Personnel Department challenging personnel practices which it contended intentionally discriminated against African-American applicants and employees. In 1970, in United States v. Frazer, 317 F.Supp. 1079 (M.D.Ala.), this court agreed with the United States, and found that agencies of the State of Alabama had engaged in a State-sanctioned policy of manipulating and circumventing the State's personnel procedures to avoid the hiring and promotion of African-Americans. Id. at 1084-87. The court found intentional, pervasive, systematic exclusion and avoidance of black employees and applicants throughout numerous State departments.

The evidence demonstrated that racial discrimination was accomplished in several ways, many of which involved manipulations of personnel practices and procedures to exclude eligible and qualified black employees from competing for jobs. The evidence overwhelmingly showed refusals to hire, or even to interview, African-Americans who had qualified and appeared on the certificates of eligibles, despite an urgent and constant need to fill positions. Id. at 1087. It also showed that agencies maintained racially segregated facilities in their buildings. Id. Indeed, John S. Frazer, director of the Personnel Department, testified to his belief that the race of applicants was a legitimate factor for consideration in selecting employees. Id. at 1085.

The court found that "defendants' systematic refusal to appoint Negro applicants and their preference for lower-ranking white applicants constitute unlawful race discrimination[,] ... a clear violation of the equal protection clause of the Fourteenth Amendment." Id at 1089-90. The court entered similar findings on the defendants' recruitment and advertising practices.

The court entered an order broadly prohibiting State officials from "engaging in any employment practices, including recruitment, examination, appointment, training, promotion, retention, or any other personnel action, for the purpose or with the effect of discriminating against any employee, or actual or potential applicant for employment, on the ground of race or color." Id. at 1090. The court further imposed what has come to be known as the `no-bypass rule,' which provides that State officials "shall not appoint or offer a position to a lower-ranking white applicant on a certificate in preference to a higher-ranking available Negro applicant, unless the defendants have first contacted and interviewed the higher-ranking Negro applicant and have determined that the Negro applicant cannot perform the functions of the position, is otherwise unfit for it, or is unavailable." Id. at 1091.

Six years later, in the same litigation, similar allegations were again before the court. The United States charged that State personnel practices were systematically and deliberately manipulated to prevent blacks from competing with white applicants for jobs and promotions. In an order entered in August 1976, the court found a pattern and practice of racial discrimination in employment in the Transportation Department (then known as the Highway Department). See United States v. Frazer, civil action no. 2709-N, 1976 WL 729 (M.D.Ala. Aug.20, 1976).

Specifically, the court found that the new defendants, including the Transportation Department "avoided compliance with the decrees in this case by examining job registers maintained by the Personnel Department of the State of Alabama and by requesting certificates of eligibles only at times when no blacks were available for certification." Id. at *4. The court also pointed out other evidence of discriminatory practices, including maintaining registers on a non-continuous basis (establishing a register and not adding any persons...

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4 cases
  • Reynolds v. Alabama Dept. of Transp.
    • United States
    • U.S. District Court — Middle District of Alabama
    • April 13, 1998
    ...the court have been actively and extensively involved in the implementation of consent decree I. See, e.g., Reynolds v. Alabama Dep't of Transp., 996 F.Supp. 1156 (M.D.Ala.1998); Reynolds v. Alabama Dep't of Transp., 996 F.Supp. 1130 (M.D.Ala. 1998); Reynolds v. Alabama Dep't of Transp., 99......
  • Reynolds v. Alabama Dept. of Transp.
    • United States
    • U.S. District Court — Middle District of Alabama
    • June 25, 1998
    ...to establish new non-discriminatory ones with some urgency — the decree set time limits for compliance." Reynolds v. Alabama Dep't of Transp., 996 F.Supp. 1130, 1137 (M.D.Ala. 1998) (emphasis added).5 "In other words," the court continued, "the Transportation and Personnel Departments were ......
  • Reynolds v. Roberts
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • March 29, 2000
    ...that allowing non-black employees to use the race-neutral grievance procedure violates the consent decree. Reynolds v. Alabama Dep't of Transp., 996 F.Supp. 1130 (M.D.Ala.1998). In No. 97-6347, a class of intervenors, who consist of the Department's non-black employees (the "Adams Interveno......
  • Reynolds v. Alabama Dept. of Transp.
    • United States
    • U.S. District Court — Middle District of Alabama
    • August 29, 2001
    ...the court entered judgment granting injured merit employees $ 34,732,487, including interest. See Reynolds v. Alabama Dep't of Transp., 996 F.Supp. 1156 (M.D.Ala.1998) (Thompson, J.);9 Order of April 16, 1997.10 The Eleventh Circuit vacated and remanded this judgment with instructions to th......

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