Turner v. Orr, 84-3266
| Citation | 759 F.2d 817 |
| Decision Date | 18 April 1985 |
| Docket Number | No. 84-3266,84-3266 |
| Parties | 37 Fair Empl.Prac.Cas. 1186, 36 Empl. Prac. Dec. P 35,220 William C. TURNER, et al., Plaintiffs-Appellees, v. Verne ORR, Secretary of the Air Force, et al., Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Mark W. Pennak, U.S. Dept. of Justice, Civil Div. Appellate Staff, Robert S. Greenspan, Washington, D.C., for defendants-appellants.
Thomas A. Warren, Tallahassee, Fla., for PMC.
Appeal from the United States District Court for the Northern District of Florida.
Before GODBOLD, Chief Judge, HATCHETT, Circuit Judge, and TUTTLE, Senior Circuit Judge.
This case concerns a final order entered by a special master and affirmed by the district court applying and enforcing the provisions of a consent judgment. The consent judgment was entered January 12, 1981, in settlement of a class action suit brought against the Air Force under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, for alleged racial discrimination against civilian black employees and applicants for employment at Eglin Air Force Base in Florida. This consent judgment was adopted by the district court after conducting a four-day fairness hearing on February 4, 1980; September 16, 1980; December 16, 1980; and January 12, 1981.
Under the consent judgment, defendants agreed "to make a good faith effort" to reach and maintain specified racial proportions on a percentage basis for specific job categories. (Judgment, Sec. VII p 1). Similarly, in Section X of the consent judgment, defendants agreed to "make every good faith effort" to fill supervisory positions with blacks "in proportion to the percentage of blacks in the occupational category wherein the vacancy arises." (Section X, p 3). The consent judgment defines the phrase "good faith effort" as meaning "every necessary and appropriate step will be taken to realize the specified objectives." (Section II, p 9). The percentages specified in the consent judgment are stated not to be quotas; rather the specified proportions are expressly referred to as "goals." (Section VII, paragraphs 2, 3, 4, 5).
Pursuant to Sec. IX of the consent judgment, in September 1983, the plaintiffs' monitoring committee ("PMC") brought before the special master the complaint of Raymond Little, a member of the plaintiff class.
The complaint was in form of a statement filed by the PMC in which the following language was used:
C. The Issues Brought Before The Special Master:
Whether, in violation of Paragraph 4, Section IX of the Consent Judgment, the Defendants discriminated against Raymond Little when they failed to hire him for two positions. The two vacancies at issue are both supervisory positions in Series 5306 at the WS-7 level, Air Conditioning Equipment Mechanic Foreman. The first was filled by Arthur Kelly on March 21, 1982....
The special master found that the defendants in filling one of the supervisory positions had violated the provision of the consent judgment that required them to "make every good faith effort" to fill supervisory positions with blacks "in proportion to the percentage of blacks in the occupational category wherein the vacancy arises." He ordered that Little be placed in a vacant supervisory position and awarded back pay. The court denied motion for stay, so Little is filling the job now.
Appellees have questioned the jurisdiction of this Court over this appeal. The special master ordered the immediate promotion of Little and instructed counsel to "calculate seniority, back pay, and other appropriate relief." Appellees contend that because the amount of the damages was undetermined, this was not an appealable final judgment. We disagree. The calculation required under the special master's report is purely ministerial in nature--a simple arithmetic calculation of back pay and seniority. Such ministerial acts concerning the execution of a judgment do not affect the finality of the decree.
The issues for decision by this Court are as follows:
1. Did the special master err in finding that the Air Force had violated the "good faith" provisions of the consent judgment?
2. Is the remedy ordered by the special master authorized by the consent judgment?
3. Does the remedy ordered by the special master violate Section 706(g) of Title VII?
The special master held that the Air Force violated the good faith provisions of the consent judgment. The Secretary contends that this finding was based on a construction of the consent judgment which is contrary to the intent of the parties.
As a preliminary matter, we must determine the appropriate standard of review. The district court indicated that "The question whether defendants acted in good faith is a pure question of fact with the special master's determination respecting it subject to review under the ... clearly erroneous standard." The Secretary argues that the clearly erroneous standard is inapplicable because construction of a consent judgment is a question of law. He contends that the special master's finding of a violation was based on an interpretation of the legal duties placed on appellants by the term "good faith." Hence, the Secretary urges review de novo by this Court as a legal question.
The Secretary's argument fails to distinguish between construction of a consent judgment, which is a question of law, and a finding that appellants' actions failed to comply with the standards established by the consent judgment, which is a factual inquiry. As the Supreme Court indicated in the recent case of Firefighters Local Union No. 1784 v. Stotts, --- U.S. ----, 104 S.Ct. 2576, 2586, 81 L.Ed.2d 483 (1984) (citation omitted), the "scope of a consent decree must be discerned within its four corners." Construction of a consent judgment is thus a question of law subject to de novo review. In the instant case, however, the scope of the consent judgment is not in issue. The consent judgment plainly requires that the Air Force "make every good faith effort to fill [supervisory] positions in proportion to the percentage of blacks in the occupational category wherein the vacancy arises." "Good faith effort" is defined in the consent judgment to mean that "every necessary and appropriate step will be taken to realize the specified objectives." The special master reviewed the specific actions of the Air Force in filling the supervisory vacancy and determined that those actions failed to meet the good faith standard established by the consent judgment. This is a factual determination which we review under the clearly erroneous standard.
The special master found that the good faith provisions had been violated on alternative grounds, as follows:
The Special Master determined that the good faith provisons of the Consent Judgment goals section were violated by the Defendants when the Defendants hired Mr. Kelly, a caucasian male, without ever notifying the selecting supervisor at any point in time that this was a Consent Judgment goal position. Notifying selecting supervisors, in some manner, that the position is subject to the Consent Judgment goals would be a minimal action necessary to meet the good faith requirement of the Consent Judgment.
The Special Master reaches the conclusion that the good faith requirement was not meet [sic] in this particular case on an alternative ground. The essence of the closing argument by the Defendants was that even if Mr. Little were qualified to fill the vacancy it was unreasonable to select anyone other than Mr. Kelly because Mr. Kelly was more qualified than Mr. Little.... Defendants' argument misses the mark. One would assume that in the absence of the Consent Judgment that whenever selecting officials have a number of qualified candidates from which to choose the officials would hire the best qualified applicant. If all that the good faith provision requires in this situation is the selection of the best qualified candidate then the provision is a nullity. The drafters of the Consent Judgment, by its express language, clearly intended that additional effort be exerted by the Defendants in meeting the goals. Thus, in this particular situation, assuming without deciding that Mr. Kelly was the best qualified candidate, the Defendants' argument that the good faith requirement was met because the supervisors selected the best qualified candidate from a group of qualified candidates is without merit.
These findings are amply supported by the record. The Secretary concedes that the selecting supervisors were not notified that the vacancy was one covered by a consent judgment goal. When the vacancy was filled originally on a temporary basis, the Air Force unilaterally decided that the goals did not apply to temporary positions. Later, the position was converted to permanent status noncompetitively. Thus, at no point were the selecting officials even notified that good faith efforts to meet the consent judgment goals were required.
Moreover, it is clear that good faith efforts were not made. As the special master found, the Air Force officials involved testified that they considered the good faith requirement to be met if they selected the best qualified candidate. The special master correctly found that such an interpretation would render the good faith requirement a nullity because discrimination is barred by Title VII and by Section II of the consent judgment.
Little was well qualified for the supervisory position. He had an Associate of Arts Degree, additional college courses, and specialized courses in air conditioning. He had 12 years experience as an air conditioning mechanic and extensive supervisory experience in the Army and Army reserve. Two of the three members of the all white selection committee testified that Little was less qualified than the individual selected because he had less supervisory experience. Yet both admitted...
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