Stotts v. Memphis Fire Dept.
| Decision Date | 07 May 1982 |
| Docket Number | No. 80-1469,80-1469 |
| Citation | 679 F.2d 579 |
| Parties | 28 Fair Empl.Prac.Cas. 1522, 28 Empl. Prac. Dec. P 32,678 Carl W. STOTTS, Individually and on behalf of all others similarly situated, Plaintiffs-Appellees, and Fred L. Jones, Plaintiff-Appellee, v. MEMPHIS FIRE DEPARTMENT, Robert W. Walker, City of Memphis, Joseph Sabatini, Defendants-Appellees, D. L. Orders, W. R. Wilkinson, Jackie Parminter, Warner C. Uselton, Jr., Jack Presgrove, Harold Wallace, Harvey Jenkins, Fred E. Person, Jr., Preston Lee Dunn, Charley Jones, John W. Blanton, for themselves and all other non-minority employees of the Memphis Fire Department, similarly situated, Proposed Intervenors-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Dan M. Norwood, Richardson, Norwood & Richardson, Memphis, Tenn., for appellants.
Richard B. Fields, Clifford D. Pierce, Jr., City Atty., Edward R. Young, Louis P. Britt, III, for appellees.
Before KEITH and MARTIN, Circuit Judges, and DUNCAN *, District Judge.
On February 16, 1977, Plaintiff Carl Stotts filed a class action alleging that the hiring and promotion policies of the Memphis Fire Department were racially discriminatory. After three years of internecine discovery and over four months of intense negotiations, a consent decree settled the action. The decree was preliminarily approved and subsequently posted for comment on April 25, 1980. Neither class members nor the Firefighters Union, the union representative of Memphis firemen, filed objections to the decree. However, two weeks after the court preliminarily approved the decree, eleven non-minority firemen filed a motion to intervene alleging that the decree operated as reverse discrimination against non-minority firemen. After affording the proposed intervenors a hearing, the court rejected the alternative remedial action proffered by the intervenors and ruled that the decree was reasonable. The motion to intervene was denied on the ground that it was untimely. The proposed intervenors appeal. We affirm.
On February 16, 1977, Plaintiff Carl Stotts ("Plaintiff") filed a class action against the City of Memphis, the Memphis Fire Department, and the Director of Fire Services for the City of Memphis ("City") alleging that the hiring and promotion policies of the First Department were racially discriminatory. During the 18 months following the filing of the complaint, two articles appeared in the Memphis Press-Scimitar which described the Stotts case as an attack on the allegedly racially discriminatory hiring and promotion practices of the Memphis Fire Department. One of the articles was a front page story which reported that discovery in the Stotts case revealed that non-minority firemen had been given "cheat sheets" prior to certain Fire Department promotion examinations.
On December 4, 1979, Plaintiff sought and obtained a temporary restraining order ("TRO") enjoining the City from making 19 scheduled promotions in the Fire Prevention Bureau. Plaintiff alleged that minorities would be irreparably harmed if the promotions occurred. The promotions would prevent minorities from acquiring the experience necessary to qualify for supervisory positions. The City opposed the motion, arguing that the promotions were necessary for the efficient operation of the Fire Department. The City rejected the idea of creating "acting" or "temporary" positions and stated adamantly, "We do need to make the promotions." The court granted the motion for the TRO after finding that "there would be irreparable harm if promotions were granted that were not consistent with the rights of plaintiff." On December 5, a front page article in the Memphis Press-Scimitar described the effect the TRO would have on the Fire Department.
On January 17, 1980, the City appeared before the court and stated that settlement negotiations were continuing. The parties were not able to agree on the terms of a consent decree for several months. Finally, on April 25, 1980, the parties presented the court with a consent decree ("1980 Decree") which embodied an affirmative action plan. The 1980 Decree contained a minority hiring goal of 50% and a minority promotion goal of 20%. The court preliminarily approved the 1980 Decree and posted it in the fire stations for comment.
Neither the members of the plaintiff class nor the predominantly non-minority Firefighters Local Union 1784 filed an objection to the 1980 Decree. However, on May 12, 1980, eleven non-minority firemen filed a motion to intervene as representatives of all non-minority Fire Department employees. Allegedly, the posting of the decree in the fire stations was the first occasion the proposed intervenors knew that the Stotts case "may be decided against their interests unnecessarily." The proposed intervenors alleged that the decree's minority promotional goal caused them to be "victims of reverse discrimination." The proposed intervenors also alleged:
"There were less burdensome alternatives for relief for minority employees while not shifting discrimination to non-minority employees, i.e., creation of additional positions for promotion, organizational restructuring of the Memphis Fire Department, and/or constructive or front-pay or monetary damages to innocent employees who are adversely affected."
On May 16, 1980, the district court conducted a hearing to consider the motion to intervene. At the hearing, the proposed intervenors indicated that the only immediate relief they sought was a delay in the approval of the promotion section of the decree. Allegedly, additional discovery and expert analysis were necessary before concrete alternative remedies for the City's past discrimination could be presented. These alternative remedies would shift the burden of remedying past discrimination from incumbent non-minority employees to the "wrongdoer", the City.
The court also found that the proposed intervenors had adopted a "wait-and-see" posture with respect to the litigation and ruled that the motion to intervene was untimely. The court subsequently rejected the alternatives proffered by the proposed intervenors and ruled that the 1980 Decree was reasonable. The 1980 Decree was intended to parallel and supplement a consent decree entered in 1974 ("1974 Decree"). The 1980 Decree was similar to the 1974 Decree except that it contained specific hiring and promotion goals. The 1974 Decree did, however, contemplate the imposition of hiring and promotion goals if the City's efforts to remedy the effects of its discriminatory employment practices were unsuccessful.
The eleven proposed intervenors sought permissive as well as intervention of right pursuant to Federal Rules of Civil Procedure 24(a) and (b). Rule 24, in pertinent part, provides:
(a) INTERVENTION OF RIGHT.
Upon timely application anyone shall be permitted to intervene in an action ... when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
(b) PERMISSIVE INTERVENTION.
Upon timely application anyone may be permitted to intervene in an action ... when an applicant's claim or defense and the main action have a question of law or fact in common.
An application for permissive or intervention of right must be timely. Fed.R.Civ.P. 24(a) and (b). See NAACP v. New York, 413 U.S. 345, 365, 93 S.Ct. 2591, 2602, 37 L.Ed.2d 648 (1973). Michigan Association for Retarded Citizens v. Smith, 657 F.2d 102, 105 (6th Cir. 1981). If untimely, intervention must be denied. Id. Timeliness is a matter within the sound discretion of the district court. NAACP, 413 U.S. at 366, 93 S.Ct. at 2603; Retarded Citizens, 657 F.2d at 105. Unless this discretion is abused, the court's ruling will not be disturbed on review. Id. Timeliness is to be determined from all the circumstances. Id.
In Retarded Citizens, Judge Phillips, writing for the court, set forth five factors which are particularly probative in determining whether intervention is timely. The five factors are as follows: 1) the purpose for which intervention is sought; 2) the length of time preceding the application for intervention during which the proposed intervenor knew or reasonably should have known of his interest in the case; 3) the prejudice to the original parties due to the proposed intervenor's failure after he knew of or reasonably should have known of his interest in the case to apply promptly for intervention; 4) the existence of unusual circumstances militating against or in favor of intervention; and 5) the point to which the suit has progressed. Retarded Citizens, 657 F.2d at 105.
The first factor the district court considered was the purpose for which intervention was sought. The proposed intervenors' motion to intervene was motivated by the belief that the promotion section of the 1980 Decree diminished the promotional expectations of non-minorities and constituted "reverse discrimination." The proposed intervenors sought to delay the implementation of the promotion provisions of the decree until additional discovery and expert analysis could be conducted. The proffered alternatives the proposed intervenors sought to explore were: 1) the creation of additional positions through restructuring the Fire Department; and 2) the payment of compensation to non-minorities whose promotion expectations were diminished by the 1980 Decree. The district court rejected these alternatives as substantively unavailable as a matter of law. We agree.
The district court did not have the authority to restructure the Memphis Fire Department to prevent the 1980 Decree from affecting the promotion expectations of non-minorities. S...
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