United States v. Jefferson Cnty.

• Decision Date: 20 August 2013
• Docket Number: Civil Action No. CV-75-S-666-S,Civil Action No. CV-74-S-17-S
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. JEFFERSON COUNTY, ALABAMA, et al., Defendants. JOHN W. MARTIN, et al., Plaintiffs, v. CITY OF BIRMINGHAM, ALABAMA, et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

UNITED STATES OF AMERICA, Plaintiff,

v.JEFFERSON COUNTY, ALABAMA, et al., Defendants.

JOHN W. MARTIN, et al., Plaintiffs,

v.CITY OF BIRMINGHAM, ALABAMA, et al., Defendants.

Civil Action No. CV-75-S-666-S

Civil Action No. CV-74-S-17-S

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

DONE and ORDERED: August 20, 2013

MEMORANDUM OPINION AND ORDER

This opinion addresses the motion filed by the Martin class of plaintiffs and the Bryant class of plaintiff-intervenors ("the Martin-Bryant parties"), petitioning the court to hold defendant Jefferson County, Alabama, in civil contempt for failing to comply with the requirements of the consent decree entered on December 29, 1982, and seeking a modification of some provisions of that decree.¹ Jefferson County was ordered to respond to the motion, and to show cause why it should not be held in contempt, and why its decree should not be modified.²

A bench trial on those issues commenced on March 30, 2009, but was recessed on April 1, 2009, for reasons related to the health of the undersigned. Those same,and subsequent, health issues delayed the resumption of trial until December 3, 2012, when the court heard seven additional days of live testimony, and received 1,144 documentary exhibits,³ including the designated deposition testimony of several witnesses.

TABLE OF CONTENTS

I. A SHORT HISTORY OF THIS LITIGATION ......................... 4

A. The Beginning: 1974 -1975 ......................... 5

B. The First Twenty-Four Years of Litigation: 1976 - 2000 ............................. 7

C. Transitions: 2000 - 2002 ............................. 15

D. The Personnel Board in Receivership: 2002 - 2008 ............................. 18

E. The Shift to Birmingham: 2008 - 2012 ............................. 20

1. The Langford interregnum ............................. 24

2. Mayor Bell and the restoration of focus ............................. 28

F. Finally, Jefferson County! ............................. 29

II. CIVIL CONTEMPT STANDARDS ............................. 31

III. STANDARDS FOR MODIFICATION OF A CONSENT DECREE ............................. 40

A. Significant Change in Facts or Law ............................. 40

B. "Suitably Tailored" Modifications ............................. 41

IV. THE COUNTY'S ADMISSIONS OF NONCOMPLIANCE ................................ 42

V. THE COUNTY'S STIPULATIONS AS TO MODIFICATIONS ................................ 48

VI. DISCUSSION ................................ 50

A. The County's Irrelevant Arguments ................................ 51

B. Receivership Factors ................................ 57

1. Have there been repeated failures to comply with court orders? ................................ 57

a. Human Resources Department ................................ 59

b. Affirmative Action Officers ................................ 62

c. Anti-harassment and anti-nepotism policies and training ............................ 70

d. Consent decree training ................................ 79

e. Recruiting at historically black colleges and universities .............................. 79

f. Production of semi-annual and annual reports ................................ 80

g. Monthly reports and quarterly newsletters ................................ 83

h. Structured interview process ................................ 86

i. Other decree violations ................................ 95

2. Will further efforts to secure compliance only lead to confrontation and delay? ...................... 96

3. Is leadership available to turn the tide within a reasonable time? ................................ 101

a. County Commissioners ................................ 101

b. County Manager ................................ 108

4. Has there been "bad faith" on the part of the County? ................................ 117

5. Are resources being wasted? ................................ 1216. Can a Receiver provide a quick and efficient remedy? .......................... 129

VII. CONCLUSIONS .......................... 143

I. A SHORT HISTORY OF THIS LITIGATION

Those who cannot remember the past are condemned to repeat it.

George Santayana, The Life of Reason, vol. 1, ch. 12 (1905).⁴

The incumbent members of the Jefferson County Commission are George Bowman (District 1), Sandra Little-Brown (District 2), Jimmie Stephens (District 3), Joe Knight (District 4), and David Carrington (District 5). Mr. Carrington currently serves as "President" of the Commission: i.e., the statutory title of the presiding officer, and a position filled by majority vote of the five District Commissioners. See Ala. Act No. 97-147. None of those persons exhibited adequate knowledge of the County's obligations under its consent decree when testifying. All demonstrated even less awareness of this litigation's long and tortuous history. Consequently, their affirmations of commitment to federal law and fulfillment of the County's responsibilities under its decree rang hollow.

The incumbent members of the Jefferson County Commission are serving their inaugural term of office, however, and their individual failures to fully grasp thesignificance of this suit and the County's requirements under its consent decree may, perhaps, be forgiven for that reason. Nevertheless, the urgency with which Jefferson County must bring itself into compliance with federal law is a lesson that must be brought home to each member of the Commission.

Part I of this opinion, therefore, is a summary of the history of this litigation, provided for the edification of the present Commissioners, because knowledge of the place from whence the County has come is necessary for understanding why this court must "give teeth" to the decree's "provisions requiring valid selection procedures." Ensley Branch, N.A.A.C.P. v. Siebels, 31 F.3d 1548, 1572 (11th Cir. 1994) (Carnes, J.) (alteration and emphasis supplied) ("Ensley II").

A. The Beginning: 1974-1975

The parties who commenced the original suit on January 4, 1974 included the Ensley Branch of the National Association for the Advancement of Colored People ("N.A.A.C.P.") and several African-American ("black") individuals who sued for themselves, and on behalf of a class of similarly-situated persons.⁵ The defendants to that action were: George Seibels, then Mayor of Birmingham, Alabama; the Cityof Birmingham; the individual members of the Personnel Board of Jefferson County, Alabama ("Personnel Board" or "Board"); and the Board's Personnel Director. The complaint alleged that those defendants had engaged in discriminatory hiring practices against blacks in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

That action was followed just three days later by another suit raising the same constitutional and statutory allegations, and filed by John W. Martin and six other black individuals (the "Martin class of plaintiffs") against the same defendants and Jefferson County and its individual Commissioners.

The following year, on May 27, 1975, the United States brought suit against Jefferson County, the Personnel Board, and the various municipalities and other governmental entities serviced by the Board. The government alleged, among other things, a pattern or practice of discriminatory employment practices against blacks and females in violation of the Fourteenth Amendment, Title VII, and 42 U.S.C. § 1981, a part of the Civil Rights Act of 1866.⁶

B. The First Twenty-Four Years of Litigation: 1976-2000

All of the cases were consolidated for trial and, on December 20-22, 1976, Judge Sam C. Pointer, Jr., conducted a bench trial on the limited issue of whether the entry-level tests used by the Personnel Board to screen and rank applicants for firefighting and police officer positions violated the constitutional or statutory rights of black applicants.⁷ All other issues under the consolidated complaints were reserved until a later date.⁸ Judge Pointer concluded that the tests violated Title VII because both

had a significant adverse impact on black applicants, a phenomenon defined as a passing rate "less than four-fifths . . . of the rate for [whites]." Ensley Branch, 13 Empl. Prac. Dec. (CCH) ¶ 11,504, at 6796-97 (internal quotation marks omitted). The court ruled that the tests could be used only if, despite their adverse impact, they were sufficiently "job related" to predict effectively test takers' future job performance. Id. at 6796 nn.10-11, 6806. After reviewing testing data, the court concluded that the tests failed to meet this standard. Id. at 6798-6808.

Ensley II, 31 F.3d at 1554 (alterations in original).⁹ Judge Pointer entered a final judgment on the limited issues addressed in the first trial on January 10, 1977,¹⁰ and ordered remedial actions by the Board and City.

Specifically, [Judge Pointer] ordered that blacks be referred for openings on the police and firefighter forces at the rate at which they took the tests when most recently administered. To accomplish this, [he] ordered that the names of a sufficient number of blacks be added to the current police and firefighter eligibility lists so that the lists [would] be representative of the racial composition of the test-takers, i.e., 28 and 14 percent black for police and firefighter lists, respectively; that, one-third of future certifications, i.e., referrals from the lists for actual employment, [were] to be black until, considering all certifications since the relevant 1975 and 1976 dates, the numbers of certifications become representative of the racial composition of the test-takers. Thereafter, blacks [were] to be certified in accordance with their representation on the lists, i.e., 28 and 14 percent of certifications for policemen and firefighters, respectively, [were to] be black. Similarly, referrals from future lists [were to] be a function of the rate at which blacks [took] the examinations on which the lists [were] based, until or

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