Firefighters Local Unio No. 1784 v. Stotts Brief of Petitioners, Memphis Fire Department

    Nos. 82-206 and 82-229

In the Supreme Court of the United States
October Term, 1983

,|>| \ Q 'jggffIREFIGHTERS LOCAL UNION NO. 1784,
Petitioner, 

vs.
CARL W. STOTTS, et al,, 

Respondents,
and

MEMPHIS FIRE DEPARTMENT, et al., 
Petitioners,

vs.
CARL W. STOTTS, et al., 

Respondents.

On  W rit of Certiorari to the U nited States Court 
of A ppeals for the Sixth  C ircuit

BRIEF OF PETITIONERS, 
MEMPHIS FIRE DEPARTMENT, et al.

\a. • JK - r i

Clifford D. P ierce, Jr.*
City Attorney
125 North Mid-America Mall 
Memphis, Tennessee 38103

EOT0
L1lRa R^0UIS r  Britt 111

99 HUDSON S t W f  Attorney 
NEW YORK, N. Yp7i $&$83on Avenue, 12th Floor 

Memphis, Tennessee 38103 
(901) 521-1111 

Attorneys for Petitioners,
Memphis Fire Department, et al.

^Counsel of Record

E. L. M endenhall, Inc.., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-8030



QUESTION PRESENTED

Did the trial court have the authority to modify a 
consent decree between a municipal employer and a class 
of black employees by enjoining the application of a layoff 
policy that is based upon a bona fide seniority system and 
by requiring layoffs to be based upon racial considerations, 
where the consent decree is silent with respect to the 
method to be used for layoffs and where there has been 
no judicial finding of racial discrimination?



Ill

TABLE OF CONTENTS

QUESTION PRESENTED ...................................    I
TABLE OF AUTHORITIES ........... ................ .............  iv
OPINIONS BELOW ......................................................... 1
JURISDICTION ..............................................................  2
STATUTORY PROVISIONS INVOLVED ..................  2
STATEMENT OF THE CASE........................................  3
SUMMARY OF ARGUMENT........................................  10
ARGUMENT ....................................................................  13

I. The District Court Erred in Modifying the 
1980 Consent Decree to Preclude a Reduction 
in Force Pursuant to a Bona Fide Seniority 
System Where That Decree Did Not Pre­
clude Seniority-Based Layoffs .........................  13
A. The Consent Decree Does Not Impose an 

Obligation on the City to Deviate From
Its Bona Fide Seniority System ..............  13

B. The Court’s Reliance on Changed Cir­
cumstances to Support Modification of the 
Consent Decree Is Misplaced.................... 18

II. The Court Erroneously Enjoined the Use of 
a Bona Fide Seniority System Without a Find­
ing of Unlawful Discrimination Against the
City ..........         21
A. The Abrogation of the Bona Fide Senior­

ity System Exceeded the Court’s Remedial 
Authority Under §§703(h) and 706(g) of 
Title VII .....................................................  23

B. The Court’s Modification of the Seniority
System Constitutes a Judicially-Mandated 
Preference Based on Race in Direct Vio­
lation of §703(j) ........................   30



IV

III. The Decision Below Will Have a Chilling Ef­
fect on the Use of Voluntary Consent Decrees 34

IV. The Decision Below Constitutes an Improper 
Judicial Intrusion Into Local Governmental
Affairs ....................................................... .........  36

CONCLUSION ..................................................................  38
ADDENDUM A ..........................    A1
ADDENDUM B ................................................................  A4

TABLE OF AUTHORITIES 

Cases

Airline Stewards and Stewardesses v. American Air­
lines, 573 F.2d 960 (7th Cir.), cert, denied, 439 U.S.
876 (1978) ..................................................................19,22

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)
........................................................................................ 24, 26

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) 34
American Tobacco Co. v. Patterson, 456 U.S. 63 (1982)

...................................................................................25, 26, 27
Brown v. Neeb, 644 F.2d 551 (6th Cir. 1981) .......... 16,17,18
Caminetti v. United States, 242 U.S. 470 (1917) ___   30
Chance v. Board of Examiners, 534 F.2d 993 (2d Cir. 

1976), cert, denied, 431 U.S. 965, reh’g denied, 434
U.S. 881 (1977) .......................................................... 33,34

Chrysler Corporation v. United States, 316 U.S. 556
(1942) ..........................................................................  21

Dayton Board of Education v. Brinkman, 433 U.S. 406
(1977) ...........................................................................  36

EEOC v. McCall Printing Corp., 633 F.2d 1232 (6th 
Cir. 1980) ..... 19



V

EEOC v. Safeway Stores, 611 F.2d 795 (10th Cir. 1979),
cert, denied, 446 U.S. 952 (1980) ............................... 19

Ford Motor Co. v. EEOC, 102 S.Ct. 3057 (1982) .......24, 26
Fox v. United States Department of Housing, 680 F.2d

315 (3rd Cir. 1982) ..........................................20, 21, 23, 35
Franks v. Bowman Transportation Co., 424 U.S. 747

(1976) ....................................................................22, 26, 28
General Bldg. Contractors Ass’n v. Pennsylvania, 102

S.Ct. 3141 (1982) ........................................................... 24
Griggs v. Duke Power Co., 401 U.S. 424 (1971) ....... 31
Guardians Ass’n v. Civil Service Commission of New

York, 51 U.S.L.W. 5105 (U.S. July 1, 1983) ..............  28
Gurmankin v. Costanzo, 556 F.2d 184 (3rd Cir. 1977),

cert, denied, 450 U.S. 923 (1981) ................................. 24
Hills v. Gautreaux, 425 U.S. 284 (1976) .....................  23
Hughes v. United States, 342 U.S. 353 (1952) ...10,14,15,16
Humphrey v. Moore, 375 U.S. 335 (1964) ............ ......... 26
International Brotherhood of Teamsters v. United

States, 431 U.S. 324 (1977) .....................................passim
Jersey Central Power & Light Co. v. Local Union 327, 

I.B.E.W., 508 F.2d 687 (3rd Cir. 1975), cert, denied,
425 U.S. 998 (1976) ..................................................... 17, 18

Milliken v. Bradley, 418 U.S. 717 (1974) ..................... 36, 37
Milliken v. Bradley, 433 U.S. 267 (1977) .....................  36
Oliver v. Kalamazoo Board of Education, 706 F.2d 757

(6th Cir. 1983) ...............   16,27
Pasadena City Board of Education v. Spangler, 427

U.S. 424 (1976) ............................................................  38
Pullman-Standard v. Swint, 456 U.S. 273 (1982) ........ 27
Regents of University of California v. Bakke, 438 U.S.

265 (1978) ...................................................................... 31
Stotts v. Memphis Fire Department, 679 F.2d 541 (6th 

Cir. 1982) ........................................     passim



VI

Stotts v. Memphis Fire Department, 679 F.2d 579 (6th 
Cir.), cert, denied sub nom., Orders v. Stotts, 103
S.Ct. 297 (1982) ...........................................................

Swann v. Charlotte-Mecklenburg Board oj Education,
402 U.S. 1 (1971) .........................................................

System Federation No. 91 v. Wright, 364 U.S. 642
(1961) ...........................................................................

Trans World Airlines v. Hardison, 432 U.S. 63 (1977)
United Air Lines v. Evans, 431 U.S. 553 (1977) .......28,
United States v. American Trucking Ass’ns, 310 U.S.

534 (1940) .............. ........................................................
United States v. Armour & Co., 402 U.S. 673 (1971)

..................................... .............................. .............. 14,18,
United States v. Atlantic Refining Co., 360 U.S. 19

(1959) ...........................................................................
United States v. ITT Continental Baking Co., 420 U.S.

223 (1975) .................................................................... 15,
United States v. Swift & Co., 286 U.S. 106 (1932) .......

.................................................................................. 18,19,
United Steelworkers of America v. Weber, 443 U.S.

193 (1979) .................................................................... 31-
Washington v. Davis, 426 U.S. 229 (1976) ..................
Waters v. Wisconsin Steel Works of International Har­

vester Co., 502 F.2d 1309 (7th Cir. 1974), cert, denied,
425 U.S. 997 (1976) ...................................................

Watkins v. United Steel Workers Local No. 2369, 516
F.2d 41 (5th Cir. 1975) ............................................

Youngblood v. Dalzell, 568 F.2d 506 (6th Cir. 1978) ....17, 
Zipes v. Trans World Airlines, 455 U.S. 385, reh’g 

denied, 102 S.Ct. 2001 (1982) .............................26, 28,

4

36

23
26
29

31

23

14

36

21

-32
24

33

33
18

29



VII

Statutes

42 U.S.C. §1981 ...................................................... 2,3,24,30
42 U.S.C. §1983 .........................................................2,3, 24, 30
Title VII, Civil Rights Act of 1964, as amended, 42

U.S.C. §2000e, et seq.....................................................  2
Title VII, §703 (h), 42 U.S.C. §2000e~2(h) ..........2, 27, 28, 29
Title VII, §703 (j), 42 U.S.C. §2000e-2(j) ....................passim
Title VII, §706 (g), 42 U.S.C. §2000e-5(g) .....2, 11, 23, 24, 25

Articles

Hamburger, Alternatives to Seniority-Based Layoffs: 
Reconciling Teamsters, Weber and the Goal of Equal 
Employment Opportunity, 15 U. Mich. J. L. Ref. 523,
(1982) ............................................... ...........................  16

Summers and Love, Work Sharing As an Alternative 
to Layoffs by Seniority: Title VII Remedies in Re­
cession, 124 U. of Pa. L. Rev. 893 (1976) .................. 27

Legislative Sources

110 Cong. Rec. 1518 (1964) ...............................................  32
110 Cong. Rec. 1600 (1964)............................................... 32
110 Cong. Rec. 6549 (1964)............................................... 25
110 Cong. Rec. 7214 (1964) ................................ ............. 25
110 Cong. Rec. 11848 (1964) ........................ ...................  32
110 Cong. Rec. 14314 (1964) ............................................ 32
Section-by-Section Analysis, 118 Cong. Rec. 7168 

(1972) ...........................................................................  25

Miscellaneous

Tennessee Department of Employment Security, Ten­
nessee Data for Affirmative Action Plans, 6th Edi­
tion (1980) ..................................................................... 7



Nos. 82-206 and 82-229 
In the Supreme Court of the United States

October Term, 1983

FIREFIGHTERS LOCAL UNION NO. 1784, 
Petitioner,

vs.
CARL W. STOTTS, et al.,

Respondents,
and

MEMPHIS FIRE DEPARTMENT, et al., 
Petitioners,

vs.
CARL W. STOTTS, et al.,

Respondents.

On W rit of Certiorari to the U nited States Court 
of A ppeals for the Sixth  Circuit

BRIEF OF PETITIONERS, 
MEMPHIS FIRE DEPARTMENT, et al.

OPINIONS BELOW

The question presented derives from two orders en­
tered by the United States District Court for the Western 
District of Tennessee, and the judgment of the United 
States Court of Appeals for the Sixth Circuit affirming 
those orders. The opinion of the Sixth Circuit below ap­
pears at 679 F.2d 541 and is reprinted in the appendix to



2

the petition for writ of certiorari filed by the municipal 
petitioners (City Pet. Al-71).1 The orders of the district 
court (unpublished) are printed in the appendix to the 
petition for writ of certiorari (City Pet. A77-79, Order 
Granting Preliminary Injunction entered May 18, 1981; 
and A82-83, Order Expanding Preliminary Injunction en­
tered June 26, 1981).2 The oral ruling of the district court 
is printed at City Pet. A72-76.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to 
28 U.S.C. §1254(1). The judgment of the court of appeals 
was entered on May 7, 1982. The petition for writ of cer­
tiorari was timely filed on August 4, 1982, and was granted 
on June 6, 1983.

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved are relevant por­
tions of Title VII of the Civil Rights Act of 1964, as 
amended (hereinafter referred to as “Title VII” ), 42 U.S.C. 
§2000e et seq., specifically §§703(h), 703(j ) and 706(g) 
thereof (42 U.S.C. §§2000e-2(h), 2(j) and 5 (g )); the Civil 
Rights Act of 1866, 42 U.S.C. §1981; and the Civil Rights 
Act of 1871, 42 U.S.C. §1983. Sections 703(h) and (j), 
706(g), and 42 U.S.C. §§1981 and 1983 are reproduced in 
Addendum A, hereto.

1. The appendix to the petition for writ of certiorari filed 
by the municipal petitioners will be designated by the signal: 
“ (City Pet. A ).” The joint appendix submitted in this matter 
will be designated “ (J.A.).”

2. An order was entered by the district court on June 23, 
1981, enjoining the seniority-based reduction in personnel in 
three classifications (City Pet. A80-81). That injunctive relief 
was reiterated in the June 26 order, along with the court’s ap­
proval of the modified seniority plan.



3

STATEMENT OF THE CASE

The instant controversy arose out of a 1980 consent 
decree entered into between the City of Memphis (herein­
after “ City” ) and its black firefighters in settlement of a 
race discrimination lawsuit.

In 1977, a black Memphis fireman filed a class action 
alleging that the Memphis Fire Department had maintained 
racially discriminatory hiring and promotional practices 
in violation of Title VII of the Civil Rights Act of 1964 
and 42 U.S.C. §§1981 and 1983. In 1979, another black 
employee of the Memphis Fire Department filed a separate 
action alleging that he had been denied a promotion in 
the Department’s Fire Prevention Bureau in violation of 
Title VII and 42 U.S.C. §1983. The cases were consolidated 
by the district court and settled less than a year later, 
before trial, when the district court approved a consent 
decree. The district court made no finding of discrimina­
tion by the City, and the decree contained no admission of 
discrimination. In fact, the decree provides:

Defendants, by entering into this Consent Decree, do 
not thereby admit any violations of law, rule or regu­
lation with respect to the allegations made by plain­
tiffs in their complaints (City Pet. A60).
The decree (hereinafter “ 1980 Decree” ) provided for 

promotions of 13 named individuals and payment of $60,000 
in back pay to 81 Fire Department employees. Retroactive 
seniority was not given to any member of the class, which 
was defined as “all incumbent black employees of the 
Memphis Fire Department, all those black employees who 
will be employed there in the future, and all black per­
sons who have been denied employment with the Memphis 
Fire Department since March 24, 1972.” Notice of the set­
tlement was mailed to each identified class member and



4

was posted in all engine houses of the Fire Department. 
Class members were given 15 days in which to file objec­
tions to the terms of the decree (City Pet. A69). No ob­
jections were filed by any class member.3

The 1980 Decree set forth a general, long-term minor­
ity hiring goal which paralleled an earlier hiring goal 
agreed to by the City in a consent decree entered into in 
1974 in a case brought by the United States (herein­
after “ 1974 Decree” ).4 The long-term goal established in 
both decrees obligated the City to increase the level of 
black representation in each job classification of the Mem­
phis Fire Department to approximate the black represen­
tation in the labor force in Shelby County, Tennessee. An 
interim hiring ratio of 50% black personnel was included in 
both decrees as a means of achieving the long-term goal 
more quickly.5 6 The 1980 Decree also included a 20% black 
promotional goal in each civil service classification within 
the Fire Department.8 By the terms of the 1980 Decree, 
the minority class members agreed that they would “seek 
no further relief for the acts, practices or omissions al­
leged in the complaints save to enforce the provisions of 
this Decree, thereby waiving the right to seek further 
relief” (City Pet. A61).

3. Several non-minority employees, however, unsuccessfully 
sought to intervene. Stotts v. Memphis Fire Department, 679 
F.2d 579 (6th Cir.), cert, denied sub nom., Orders v. Stotts, 103 
S.Ct. 297 (1982).

4. The 1980 Decree is set forth as an appendix to the opin­
ion of the Court of Appeals, City Pet. A59-69; the 1974 Decree 
is set forth in its entirety at J.A. 98.

5. The 1974 Decree provided, however, “ [a] 11 of said goals 
are subject to the anticipated budgeted vacancies in the City” 
(J.A. 105, 1110).

6. The inclusion of the promotional goal in the 1980 De­
cree was the only substantive addition to the affirmative action 
goals of the 1974 Decree. The hiring goal and the long-term 
goal remained unchanged. By its own terms, the 1980 Decree was 
“not intended to conflict with any provisions of the [1974] De­
cree;” rather, it was “ intended to parallel and supplement the 
relief provided in that Consent Decree” (City Pet. A60).



5

Like the 1980 Decree, the 1974 Decree was entered 
into by the City and approved by the court prior to trial 
on the merits. The 1974 Decree specifically provided that 
the entry of the decree did not constitute an adjudication 
or admission of discrimination by the City.7 The parties to 
both decrees waived all hearings, findings of fact and con­
clusions of law on all issues raised by the complaints. 
Neither decree included provisions concerning layoffs or 
reductions in rank, although the 1974 Decree did obligate 
the City to utilize a seniority system based upon City-wide 
seniority for various employment practices, including pro­
motions, transfers and job assignments (J.A. 103, 116(a)). 
The 1974 Decree further provided that “ [i]n no event shall 
the City be required to hire unnecessary personnel” (J.A. 
101, H3), and that “ [n]o specific numerical ratio for em­
ployment . . .  of black firefighters shall be established un­
less the city fails in its good faith attempt to meet the 
interim goals [of increasing minority employment] . . 
(J.A. 105-06, 1T10).

In early May, 1981, the City announced that due to a 
substantial projected operating deficit for the 1981-82 fiscal 
year, a reduction in personnel in non-essential services 
would be necessary in all divisions of City government. 
To effectuate the reduction in personnel, the City promul­
gated a layoff policy in which layoffs and reductions in 
rank would be based upon City-wide seniority, determined 
from each employee’s length of continuous service from

7. The 1974 Decree provides: “ The City of Memphis de­
nies it has heretofore engaged in any pattern or practice of dis­
crimination in hiring or promotion on the basis of race or sex 
but realizes that certain past practices of the City may have 
given rise to an inference that such practice may have oc­
curred. . . .

“The City of Memphis and the United States, by agreeing 
to the issuance of this order, waive a hearing and finding of facts 
and conclusion of law on all issues raised by the Complaint 
. . . and the parties have mutually agreed to the entry of the 
consent decree, which shall not constitute an adjudication or 
admission by the City of any violation of law or findings on 
the merits of this case” (J.A. 99).



6

latest date of permanent employment (J.A. 85, f[3). Em­
ployees in ranking positions possessed “bumping rights,” 
i.e., they could choose to “bump down” to a lower-ranking 
position rather than face layoff. The layoffs were sched­
uled for June 26, 1981, the ending pay period in the 1980-81 
fiscal year.

The layoff policy adopted by the City was consistent 
with the Memorandum of Understanding between the City 
and Local 1784 of the International Association of Fire­
fighters (hereinafter “Union” ), which provided that se- 
nority would govern layoffs and recalls (J.A. 119, Art. 
XIX, §5). “Seniority” was referred to as City-wide senior­
ity (J.A. 117, Art. XIX, §1).

On May 4, 1981,8 plaintiffs moved in the Stotts case 
for a temporary restraining order enjoining the City from 
laying off or reducing in rank any black employee in the 
Memphis Fire Department, because the layoffs would im­
pair the results then achieved under the 1980 Decree. The 
following day, the Union (which had not been a party to 
the 1980 Decree) intervened by consent of the parties, and 
on May 8 a hearing was held on plaintiffs’ request for pre­
liminary injunctive relief.

The evidence adduced at the May 8 hearing revealed 
that approximately 450 City-funded positions within the 
various departments of City government were to be elim­
inated (J.A. 55).9 Approximately 220 of the 450 positions 
were actually filled at that time; the remaining positions 
were funded but vacant. Within the Fire Department, 55 
then-filled positions were to be eliminated, along with a sig­
nificant number of funded but vacant positions (J.A. 55).10

8. Unless otherwise specified, all dates hereinafter refer 
to 1981.

9. A total o f almost 1,000 positions, City-wide, were sched­
uled to be abolished (J.A. 54).

10. The Fire Department then employed over 1500 persons 
(Hearing Ex. 3, see p. 186 of the joint appendix in the Sixth 
Circuit).



7

It was estimated that 39 positions to be eliminated in 
the Fire Department were filled by employees who pos­
sessed bumping rights, enabling them to bump to a lower- 
ranking classification rather than be laid off. It was also 
estimated that approximately 40 Fire Department privates 
would ultimately be laid off. The 40 least senior employees 
on the seniority roster consisted of 25 white and 15 black 
employees ( J.A. 68). These figures were based on pre­
liminary forecasts and were subject to change due to at­
trition and the possibility of individuals choosing retire­
ment rather than exercising their bumping rights.11

The evidence also showed that approximately 56% of 
the employees hired into the Fire Department since the 
entry of the 1974 Decree were black (J.A. 48).12 The per-

_ 11. Under the last-hired, first-fired seniority system, the 
projected layoffs and/or demotions in the affected classifications 
were to be as follows:

Present Positions Eliminated
Lieutenants white 211 1

black 29 16

total 240 17
Drivers white 296 7

black 15 10

total 311 17
Inspectors white 14 3

black 6 0

total 20 3
Privates white 497 25

black 85 15

total 582 40 (laid off)
12. According to the Tennessee Department of Employment 

Security, Tennessee Data for Affirmative Action Plans, 6th Edi­
tion (1980), non-whites constituted 32.8% of the total civilian 
labor force of Memphis, Shelby County, Standard Metropolitan 
Statistical Area (SMSA). These population figures were based 
on 1978 data.



8

centage of black employees in the Memphis Fire Depart­
ment had increased from approximately 3% or 4% in 1974 
to 11-1/2% in 1980. It was estimated that the seniority- 
based reduction in force would have resulted in a one per­
cent (1%) decrease in minority employment in the Fire 
Department (J.A. 54).

At the conclusion of the hearing, the district court en­
joined the City from implementing the seniority-based 
reduction in force under the last-hired, first-fired seniority 
policy within four classifications and instructed the City to 
propose a layoff policy consistent with the injunction 
(City Pet. A72, oral ruling; A77, written order). The 
court found that the layoff policy was not adopted with 
the intent or purpose to discriminate, but nevertheless 
concluded that it was not a bona fide seniority system be­
cause its effects were discriminatory.

On June 23, the district court expanded its order to 
include three additional classifications: supervisor-fire
prevention, fire alarm operator I and clerk typist.13 At that

13. The evidence: revealed that the racial composition of
the positions, and the planned layoffs were as follows:

Present Positions Eliminated
Supervisor- white 4 1
Fire Prevention black 1 1

total 5 2
Fire Alarm white 3 0
Operator I black 4 2

total 7 2
Clerk Typist white 3 1

black 6 0

total 9 1
The clerk typist position was not actually affected by the court’s 
orders as the original seniority system did not operate so as to 
reduce the percentage of minority employees.



9

time, the City orally presented its modified layoff plan 
for approval. By order entered June 26, the district court 
approved the modified seniority plan, and the City pro­
ceeded with the reduction in force. The reduction in force 
was still based upon seniority. However, junior black 
employees in the seven classifications affected by the 
injunction were protected so as not to reduce the percentage 
of minority employees in those classifications. Thus, non­
minority employees with greater seniority than the 
skipped-over minority employees were laid off or reduced 
in rank. The actual layoffs under the court’s orders are 
listed in Addendum B, hereto.14

On May 7, 1982, the United States Court of Appeals for 
the Sixth Circuit affirmed the orders of the district court. 
679 F.2d 541 (Martin J., concurring in part, dissenting in 
part). The court of appeals found that the district court’s 
holding that the layoff system was not bona fide was 
erroneous in the face of the uncontroverted fact that the 
system was adopted without discriminatory intent or pur­
pose. Nevertheless, the court upheld the district court’s ac­
tion in modifying the consent decree and altering the exist­
ing seniority provisions between the City and the Union 
(which had not been a party to the 1980 Decree). Judge 
Martin concurred in the result only and dissented from the 
majority’s holding that the district court could alter the ex­
isting seniority rights through modification of the 1980 De­
cree where no finding of discrimination had been made. 
679 F.2d at 568-69.

14. Due to the difficult nature of identifying the actual 
employees to be affected and uncertainty as to who would or 
would not exercise their bumping rights, the City could not pro­
vide an actual list of affected employees to the court. Only after 
the reduction in force was implemented was a final list available. 
This list was not included in the record in the district court 
but is included herein to assist in the Court’s understanding of 
the factual issues below.



10

SUMMARY OF ARGUMENT

I. The modification of the 1980 Decree to enjoin the 
use of a bona fide seniority-based layoff system was not 
warranted by the Sixth Circuit’s erroneous construction 
of the Decree, nor by the principle of changed circum­
stances. The court of appeals erroneously construed the 
1980 Decree as requiring the City to maintain a certain 
level of minority employment. However, an examination 
of the Decree reveals that it had no such purpose; rather, 
the parties had agreed to specific affirmative hiring and 
promotion methods to achieve the stated goal of the De­
cree. The court of appeals’ newly-fashioned obligation 
requiring the maintenance of a certain level of minority 
employment constitutes an improper judicial modification 
by construction. Hughes v. United States, 342 U.S. 353 
(1952).

Nor does the principle of changed circumstances sup­
port modification in this case. The reduction in personnel 
under a bona fide seniority system did not transform the 
Decree into an instrument of wrong. The City remained 
obligated to increase minority employment through the 
agreed affirmative hiring and promotional goals, and there 
was no evidence that the City did not or would not 
continue to abide by its agreement. The unintended and 
temporary delay in achieving the long-term goal, resulting 
from economic conditions beyond the control of the City, 
did not so thwart the purpose of the Decree as to require 
judicial modification.

II. Even had changed circumstances warranted mod­
ification of the 1980 Decree, the district court exceeded its 
remedial authority by overriding the operation of a bona 
fide seniority system. Under Title VII, a district court’s 
equitable authority must be drawn from the objectives of



11

the statute—to make victims of discrimination whole. As 
there was no finding by the district court that the minority 
employees protected from layoff in this case were victims 
of past hiring discrimination, the district court’s award 
of relief exceeds the scope of its equitable authority under 
§706 (g ). International Brotherhood of Teamsters v. United 
States, 431 U.S. 324 (1977).

The Sixth Circuit completely ignored the specific im­
munization afforded bona fide seniority systems bjr Con­
gress under §703 (h). As there was no showing that the 
system was adopted with the intent to discriminate, the 
court’s abrogation of the bona fide seniority system was 
improper. Moreover, the district court’s requirement that 
the City insulate minority employees from the operation 
of a bona fide seniority system, without a finding of un­
lawful discrimination, constitutes a judicially-imposed pref­
erence in direct contravention of the express terms of 
§703 (j).

III. Policy considerations also require reversal of 
the court’s unsupported modification of the Decree. Here, 
the court’s willingness to impose new obligations on a party 
to a consent decree, without a finding that the party has 
breached the terms of the decree, or without any finding 
of a new violation that would warrant modification, will 
have a chilling effect on the use of consent decrees to 
settle discrimination lawsuits.

IV. The district court’s abrogation of a bona fide 
seniority system constitutes an improper judicial intrusion 
into the affairs of local government. Although the Decree 
provided for retention of jurisdiction for entry of orders 
necessary to effectuate the purpose of the Decree, that 
provision cannot be read as a retention of jurisdiction to 
expand or change that purpose. The City had imple­
mented the non-discriminatory policies required by the De­



12

cree, and there was no evidence that the City had other­
wise defaulted under its legal obligations. The district 
court improperly usurped the managerial prerogatives of 
local authorities by enjoining the use of a bona fide senior­
ity system and expanding the Decree to require a certain 
level of minority employment.



13

ARGUMENT

I. THE DISTRICT COURT ERRED IN MODIFY­
ING THE 1980 CONSENT DECREE TO PR E ­
CLUDE A REDUCTION IN FORCE PURSUANT 
TO A BONA FIDE SENIORITY SYSTEM 
WHERE THAT DECREE DID NOT PRECLUDE 
SENIORITY-BASED LAYOFFS.

This case presents the question as to the extent of the 
equitable power of the judiciary to impose (through modi­
fication of a consent decree) a type of unbargained for 
affirmative action on a party, despite the congressionally- 
mandated restrictions on the equitable authority of courts 
under Title VII. The City submits that judicial modifi­
cation of the 1980 Decree to enjoin seniority-based layoffs 
for the purpose of maintaining a certain level of minority 
employment was improper.

A. The Consent Decree Does Not Impose an Ob­
ligation on the City to Deviate From Its Bona 
Fide Seniority System.

The Sixth Circuit’s decision correctly noted that the 
1980 Decree obligated the City to engage in certain affirma­
tive action in hiring and promotional decisions to ulti­
mately achieve a level of minority employment approxi­
mating that in the civilian labor force. The court, how­
ever, erroneously construed this obligation as a guarantee 
of a minimum level of minority employment in the event of 
layoffs and concluded that seniority-based layoffs could be 
precluded if minority employment was adversely affected. 
The court did not construe the Decree as written but, 
rather, as the court felt it should have been written by the



14

parties.15 This judicial rewriting of the Decree contra­
venes the directives of both Congress and this Court.

In United States v. Armour & Co., 402 U.S. 673 (1971), 
the Court detailed the proper approach for a court to fol­
low in construing a consent decree:

Thus the decree itself cannot be said to have a pur­
pose; rather the parties have purposes, generally op­
posed to each other, and the resultant decree embodies 
as much of those opposing purposes as the respective 
parties have the bargaining power and skill to achieve. 
For these reasons, the scope of a consent decree must 
be discerned within its four corners, and not by refer­
ence to what might satisfy the purposes of one of the 
parties to it. Because the defendant has, by the 
decree, waived his right to litigate the issues raised, a 
right guaranteed to him by the Due Process Clause, 
the conditions upon which he has given that waiver 
must be respected, and the instrument must be con­
strued as it is written, and not as it might have been 
written had the plaintiff established his factual claims 
and legal theories in litigation. Id. at 681-82 (footnote 
omitted; last emphasis added).

The court of appeals incorrectly substituted its judgment 
for the specific agreement of the parties. Such judicial 
modification disguised as construction is not proper. 
United States v. Atlantic Refining Co., 360 U.S. 19 (1959); 
Hughes v. United States, 342 U.S. 353 (1952).

The language of the Decree reveals that the purpose of 
the parties was to raise the level of minority representa­
tion in the Memphis Fire Department by setting affirma-

15. The City submits that the court’s invalidation of the 
bona fide seniority system would have been impermissible even 
if plaintiffs had prevailed in litigation. See Section II, infra.



15

five hiring and promotional goals, a purpose which remains 
in full force and effect. By entering into this compromise, 
it was not the City’s intent to guarantee a certain level or 
percentage of minority employment at all times and at the 
expense of non-minority employees.16 Further, the court’s 
imposition on the City of a new obligation to maintain a 
level of minority employment in the event of a reduction 
in force also runs contrary to the City’s previously nego­
tiated agreement with the Union providing for a method 
to be used for layoffs.17 The 1980 Decree’s silence regard­
ing layoffs in no way manifests an intent to cancel the terms 
of its existing contract. Thus, the court’s reading of the 
1980 Decree so as to preclude seniority-based layoffs de­
parts from standard precepts of contract construction 
which are traditionally applied to consent decrees. See 
United States v. ITT Continental Baking Co., 420 U.S. 223 
(1975).

A similar expansive reading of a consent decree was 
rejected by this Court in Hughes v. United States, 342 U.S. 
353 (1952). In Hughes, a district court approved a modifi­
cation of a consent decree entered into in settlement of

16. This conclusion is supported by the testimony of the
Mayor of Memphis, who specifically stated that he would not 
have agreed to a layoff policy other than by seniority: “ It is
my opinion that under the Consent Decree, we agreed to hire, 
we agreed to promote, and we agreed to do it in percentages, 
or what have you. . . . But I certainly felt differently towards any 
policy that would put people out of work, put them on the 
street, based on anything other than the thing that has been 
used in every city in this country, . . . and by the city [of Mem­
phis], and in the Consent Decree since 1974, and that is the 
seniority policy in the union agreement. . , .” (J.A. 37-38).

17. Additionally, the 1974 Decree reveals that the goals of 
minority staffing were subject to anticipated budgeted vacancies 
and were not to conflict with employment expectations of non­
minority employees (see U10 of 1974 Decree, J.A. 105). Nor did 
the 1974 Decree require the hiring of unnecessary personnel in 
order to meet the interim goals (J.A. 101, TI3), or the establish­
ment of a specific numerical ratio of black firefighters (J.A. 
105-06, DO).



16

an antitrust action to compel the divestment of stock by 
Howard Hughes. The lower court reasoned that the dives­
titure was necessary to achieve the basic purpose of the 
decree, which was explained as the divorcing of production- 
distribution companies from theater exhibition companies. 
This Court reversed, holding that the court erred in sub­
stituting its own means to achieve the purpose of the de­
cree where the parties had provided their own detailed 
plans to resolve the dispute. Id. at 357. As in Hughes, 
the parties here have negotiated specific means to achieve 
their purpose of raising minority employment in the Mem­
phis Fire Department, and the court had no authority to 
impose additional obligations in order to achieve its own 
desired “purpose” of the Decree.

The Sixth Circuit’s rationale in construing the silence 
of the 1980 Decree to proscribe seniority-based layoffs had 
been previously rejected by a different panel of the Sixth 
Circuit in Brown v. Neeh, 644 F,2d 551 (1981). There, 
Judge Brown, writing for the majority,18 stated:

This consent decree is absolutely silent with respect 
to layoffs. In order to construe it to proscribe lay­
offs on the basis of seniority in spite of its silence, 
we have to construe it by implication to provide that 
the City of Toledo was to forego the right to layoff 
at all unless it laid off other than on the basis of 
seniority in which case it would be laying off con­
trary to its collective bargaining contract. . . .  To 
me, this is not a reasonable construction of the consent

18. West’s Federal Reporter mistakenly describes Judge 
Brown’s opinion as a concurrence. It was, in fact, the majority 
opinion. See the concurring and dissenting opinion of Judge 
Martin in Stotts v. Memphis Fire Department, 679 F.2d at 568; 
Oliver v. Kalamazoo Board of Education, 706 F.2d 757, 764 n.7 
(6th Cir. 1983) (Brown, J .) ; Hamburger, Alternatives to 
Seniority-Based Layoffs: Reconciling Teamsters, Weber and the
Goal of Equal Employment Opportunity, 15 U. Mich. J. L. Ref. 
523, 536 n.76 (1982).



17

decree. On the contrary, if layoffs had been within 
the contemplation of the parties at the time they ne­
gotiated and submitted the consent decree, such would 
have been covered in the decree. Id. at 564-65 (em­
phasis added).

In Brown, however, the court approved injunctive relief to 
enjoin the layoffs because of the City of Toledo’s failure 
in meeting its affirmative obligations under the decree.19

The court of appeals failed to even mention in its 
lengthy opinion in this case an earlier decision of the Sixth 
Circuit which, under quite similar facts to those here, also 
reached the opposite conclusion. In Youngblood v. Dalzell, 
568 F.2d 506 (6th Cir. 1978), the court refused to enjoin 
seniority-based layoffs in light of a consent decree which 
was silent on the issue of layoffs. The court properly 
found that, as the “negotiated product did not commit the 
City to hire any specific number of minority firemen nor 
commit the City to any policy at all in relation to forced 
employment reduction and layoffs,” an expansive reading 
of the consent decree to include such obligation was not 
justified. Id. at 508.

Similarly, in Jersey Central Power & Light Co. v. Local 
Union 327, I.B.E.W., 508 F.2d 687 (3rd Cir. 1975), cert, 
denied, 425 U.S. 998 (1976), the court held that a concilia­
tion agreement among employer, unions and the EEOC, 
setting forth a program to increase the percentage of mi­
nority and female employees by affirmative hiring and

19. To support its conclusion, the court below stated that 
the instant factual situation was virtually identical to that in 
Brown. In fact, there are critical factual distinctions between 
the two cases. In Brown, the court found that the City of 
Toledo had not made a good faith effort to comply with its ob­
ligations under the decree. Additionally, the parties did not 
include an exculpatory or non-admission clause in that decree. 
Both crucial factors are absent here. Indeed, the record demon­
strates conclusively that the City complied with the terms of 
the Decree.



18

promotion action, should not be construed to prevent the 
operation of a bona fide seniority system for reduction of 
personnel, even though the layoffs had a discriminatory 
impact on the minority and female employees. The court 
based its holding on the fact that the conciliation agree­
ment . did not contain any express seniority provision or 
expressly modify or alter the seniority provisions found in 
the collective bargaining agreement between the employer 
and the unions. Id. at 695-96.

The sound reasoning of Neeb, Youngblood and Jersey 
Central Power regarding construction of consent decrees 
is equally applicable here. The court of appeals’ strained 
interpretation of the 1980 Decree creating a new obliga­
tion to maintain a level of minority employment contra­
venes this Court’s holding in Armour and must be re­
versed.

B. The Court’s Reliance on Changed Circum­
stances to Support Modification of the Consent 
Decree Is Misplaced.

The court of appeals, perhaps realizing that its con­
struction of the 1980 Decree to expand the obligations of 
the City was suspect, offered another basis for judicial 
modification of the Decree, that of changed circumstances. 
Stotts, 679 F.2d at 562-63. Although the court purport­
edly predicated its decision on this Court’s long-established 
doctrines governing modification of consent decrees due 
to changed circumstances, the court misapplied those very 
principles.

In United States v. Swift & Co., 286 U.S. 106 (1932), 
this Court declared that a court may revoke or modify a 
consent decree if changed circumstances had transformed 
the original decree into an instrument of wrong. How­
ever, the Court cautioned that modification should not be 
predicated on anything “less than a clear showing of



19

grievous wrong evoked by new and unforeseen conditions.” 
Id. at 119. The power to modify the terms of a consent 
decree due to changed circumstances is not to be exercised 
lightly. EEOC v. Safeway Stores, 611 F.2d 795, 799 (10th 
Cir. 1979), cert, denied, 446 U.S. 952 (1980). Here, the 
court of appeals held that the intervening economic crisis 
of the City and the resulting layoffs were unforeseen 
circumstances which would have impaired the affirmative 
action previously achieved under the Decree. 679 F.2d at 
563.20 The City respectfully submits that the court’s con­
clusion as to the discriminatory effects of the reduction in 
rank does not support judicial modification of the 1980 De­
cree—imposing a new obligation on the parties—which ex­
ceeds the bounds of that court’s remedial authority.

Here, the 1980 Decree was not transformed into an in­
strument of wrong. Under the Decree, the City agreed to 
meet minority hiring and promotional goals, which the City 
has met and to which the City remains committed. There 
was no suggestion that the City would repudiate its hiring 
and promotional obligations, nor has the City done so.21

20. Although the reduction in force was unforeseen, it 
was not unforeseeable. The parties did not anticipate an eco­
nomic downturn which caused the reduction in force, but the 
parties could have provided for such event had they wished. 
See EEOC v. McCall Printing Corp., 633 F.2d 1232 (6th Cir. 
1980); Airline Stewards and Stewardesses v. American Airlines, 
573 F.2d 960 (7th Cir.), cert, denied, 439 U.S. 876 (1978). Fur­
ther, it should be noted that the City had negotiated an agree­
ment with the Union in 1975 regarding reductions in force and 
had reaffirmed that agreement in the 1978-1981 Memorandum of 
Understanding. Thus, the parties’ failure to negotiate provi­
sions concerning reduction in personnel or constructive seniority 
should be seen as a result of a compromise negotiated at arms’ 
length between the parties, and the court should not now be al­
lowed to rewrite the City’s obligations as set forth in the 1980 
Decree under the guise of changed circumstances.

21. Although the Sixth Circuit termed the 1981 announce­
ment of the reduction in force as an anticipatory repudiation of 
both the 1974 and 1980 Decrees, 679 F.2d at 561, since 1981, the 
City has exceeded the 50% minority hiring goals set forth under 
both decrees.



20

Moreover, the Decree itself could not be considered as an 
instrument of wrong merely because it did not preclude 
the lawful use of a bona fide seniority-based layoff sys­
tem.22

In a closely analogous ease, the Court of Appeals for 
the Third Circuit reversed a district court’s modification 
of a consent decree which would have imposed additional 
obligations on a party. In Fox v. United States Department 
of Housing, 680 F.2d 315 (3rd Cir. 1982), the parties vol­
untarily entered into the consent decree prior to an ad­
judication of the plaintiffs’ claims, and the defendants did 
not admit any violation of applicable laws. Due to the sub­
sequent unexpected climb in interest rates, the plaintiffs 
sought to have the decree modified to require the defendants 
to provide a particular method of financing as to which 
the decree was silent. In noting that there was no ad­
judication or admission that the defendant had violated 
the plaintiffs’ legal rights, the Third Circuit rejected the 
plaintiffs’ claim that modification of the decree was war­
ranted, stating:

The contention is solely that the plaintiffs’ expecta­
tions have been frustrated by changes in the mortgage 
market, changes beyond the control of the defendants 
that might have been anticipated by the plaintiffs. 
To impose additional duties under the decree because 
of those changes is to disregard the basic rights of 
litigants who waive their right to litigate defenses by 
consenting to have a decree entered against them.

22. Significantly, although the 1974 Decree also dictated the 
same affirmative hiring measures as the 1980 Decree, the United 
States, plaintiff in the earlier action, neither filed suit nor sought 
to intervene in the request for injunctive relief. Indeed, it is 
petitioner’s understanding that the United States intends to 
submit an amicus curiae brief on behalf of the City in this 
matter.



21

The conditions upon which rights are waived must 
be respected. Id. at 323 (citations omitted).

As in Fox, the temporary delay in achieving the long-term 
goal, due to economic circumstances beyond the control 
of the City, does not warrant modification of the Decree.

It is especially ironic that the seniority-based layoffs 
enjoined below would have had no greater long-term ad­
verse effect on the City’s compliance with its obligation 
to increase minority employment under the 1980 Decree 
than would the layoff plan imposed by the district court. 
Under both layoff plans, the City would first recall and 
promote those employees affected by the reduction in force. 
Thus, before any further progress was made by the City 
toward achieving the long-term goal, the affected employees 
would be returned to their previous jobs. New hiring 
would be equally delayed because of the economic condi­
tions regardless of the policy used, and renewed imple­
mentation of the affirmative hiring goals would occur at 
precisely the same moment under either plan. Thus, the 
original layoff plan cannot be interpreted as thwarting 
the basic purpose of the decree so as to justify its judicial 
modification. See Chrysler Corporation v. United States, 
316 U.S. 556, 562 (1942); United States v. Swift & Co., 
supra.

II. THE COURT ERRONEOUSLY ENJOINED 
THE USE OF A BONA FIDE SENIORITY SYS­
TEM WITHOUT A FINDING OF UNLAWFUL 
DISCRIMINATION AGAINST THE CITY.

Even assuming, arguendo, that the district court pos­
sessed the power to modify the 1980 Decree, the court ex­
ceeded its equitable authority by enjoining the use of a 
bona fide seniority system. In effect, the modification 
insulated minority employees from layoffs or reductions in 
rank solely because of their race, despite a finding that



22

the layoff policy was adopted without a discriminatory 
intent and in the absence of any findings that the em­
ployees so protected were victims of unlawful discrimina­
tion. Due to the court’s misapplication of the controlling 
law, as set forth by this Court, the modification of the 1980 
Decree to override the bona fide seniority system must 
be reversed.

The court of appeals brushed aside arguments that 
modification of the 1980 Decree to require that layoffs be 
based on race constituted an award of constructive senior­
ity to non-victims in contravention of this Court’s holdings 
in International Brotherhood of Teamsters v. United States, 
431 U.S. 324 (1977), and Franks v. Bowman Transportation 
Co., 424 U.S. 747 (1976). The Sixth Circuit, without at­
tempting to reconcile its decision with prior holdings of 
this Court, merely stated that the parties’ reliance on 
Teamsters and Franks was “misplaced.” Stotts, 679 F.2d 
at 564.

The court of appeals advanced three theories to just­
ify its decision: 1) a settlement theory, 2) a fictional
remedial award theory, and 3) a judicial derivative power 
theory. Each theory, however, ignores the facts of this 
case, and none provides support for the court’s decision.

The settlement theory is premised on the existence 
of a voluntary settlement regarding seniority claims, a 
fact absent from this case. The court’s reliance on Airline 
Stewards and Stewardesses v. American Airlines, 573 F.2d 
960 (7th Cir.), cert, denied, 439 U.S. 876 (1978), is mis­
placed. Unlike American Airlines, the City has never 
agreed to a modification of its existing seniority policy. 
Secondly, the court surmised that, if a constitutional vio­
lation had been established by the original plaintiffs, the 
court would have had the authority to award the relief 
granted herein. The simple answer is, however, that no 
such violation was established. For the court to now



23

assume that the City was guilty of discrimination and 
had violated the constitutional rights of its employees, in 
the absence of trial and judgment, is a wholly improper 
exercise of judicial power. The assumption also utterly 
ignores the policy considerations underlying consent de­
crees. See United States v. Armour & Co., 402 U.S. 673 
(1971); Fox v. United States Department of Housing, 680 
F.2d 315 (3rd Cir. 1982). Finally, the court’s creation of 
a purported derivative power conferred upon the court 
under the consent decree is imaginative but unfounded. 
In effect, the court concludes that the City has surrendered 
its managerial prerogatives to the court under the decree 
and, because the City would have the right to voluntarily 
modify the seniority system without violating Title VII, 
the court could likewise act. Neither the consent decree 
nor any case or statutory law supports the existence of 
such a derivative power to compel modification of a se­
niority system over the objection of a party and without 
a finding of discrimination.

A. The Abrogation of the Bona Fide Seniority
System Exceeded the Court’s Remedial Au­
thority Under §§703(h) and 706(g) of Title VII.

Although a court’s remedial powers may be broad, 
they are not plenary. See Hills v. Gautreaux, 425 U.S. 284, 
293 (1976). The scope of the equitable powers of a court 
to enforce substantive rights must be drawn from the stat­
ute creating those substantive rights. See Teamsters v. 
United States, 431 U.S. 324, 364 (1977); System Federation 
No. 91 v. Wright, 364 U.S. 642, 651 (1961). A court’s rem­
edial authority to enforce Title VII is contained in Section 
706(g) of Title VII, 42 U.S.C. §2000e-5(g), which provides, 
in part:

If the court finds that the respondent has intentionally
engaged in or is intentionally engaging in an unlawful



24

employment practice charged in the complaint, the 
court may enjoin the respondent in such unlawful 
employment practice, and order such affirmative ac­
tion as may be appropriate, which may include . . . 
reinstatement, or hiring of employees . . .  or any other 
equitable relief as the court deems appropriate. . . .

Congress, however, limited the equitable powers of a 
court by the last sentence of §706 (g), which reads: “No
order of the court shall require the . . . hiring, reinstate­
ment, or promotion of an individual as an employee . . . 
if such individual . . . was suspended or discharged for 
any reason other than discrimination on account of 
race.. . . ”

Once the equitable powers of court have been invoked 
under Title VII, judicial exercise of that authority requires 
“the principled application of standards consistent with 
[congressional] purposes and not ‘equity [which] varies 
like the Chancellor’s foot.’ ” Ford, Motor Co. v. EEOC, 
102 S.Ct. 3057, 3063 (1982), quoting Albemarle Paper Co. 
v. Moody, 422 U.S. 405, 417 (1975). The express congres­
sional limitations under §706 (g) permit the courts to 
fashion appropriate relief to make victims of discrimina­
tion whole but do not allow the “remedial” awards of em­
ployment or reinstatement to won-victims.23

The legislative history of §706 (g) supports this 
conclusion. During the congressional debate over the 
passage of Title VII, Senators Clark and Case, the bi­

23. Although this action was brought pursuant to Title 
YII and 42 U.S.C. §§1981 and 1983, there is no distinction in a 
court’s equitable authority under the statutes. Gurmankin v. 
Costanzo, 556 F.2d 184, 188 (3rd Cir. 1977), cert, denied, 450 
U.S. 923 (1981). Thus, the proper scope of the court’s equitable 
power will be examined in light of the statutory objectives of 
Title VII rather than §§1981 and 1983, which require a heavier 
burden of proof than that of Title VII. See Washington v. Davis, 
426 U.S. 229 (1976); General Bldg. Contractors Ass’n v. Pennsyl­
vania, 102 S.Ct. 3141 (1982).



25

partisan “captains” for Title VII, entered an interpretive 
memorandum into the Congressional Record. The memo­
randum, characterized by this Court as one of the “author­
itative indicators” of the meaning of Title VII (see American 
Tobacco Co. v. Patterson, 456 U.S. 63, 73 (1982), and Team­
sters, 431 U.S. at 352), explained the remedial limitations 
contained in §706 (g):

No court order can require hiring, reinstatement, ad­
mission to membership, or payment of back pay for 
anyone who was not discriminated against in violation 
of this title. This is stated expressly in the last sen­
tence of section [706(g)] which makes clear what is 
implicit throughout the whole title; that employers may 
hire and fire, promote and refuse to promote for any 
reason, good or bad, provided only that individuals 
may not be discriminated against because of race. . . .

110 Cong. Rec. 7214 (1964) (emphasis supplied); see also 
remarks of Senator Humphrey, id. at 6549. Later, in pass­
ing the 1972 amendments to Title VII, which more broadly 
defined the equitable power of the courts, Congress re­
affirmed the equitable limitations under §706 (g) to make 
victims of discrimination whole, as set forth in the Section- 
by-Section Analysis introduced by Senator Williams:

In dealing with the present section 706(g) the courts 
have stressed that the scope of relief under that section 
of the Act is intended to make the victims of unlaw­
ful discrimination whole, and that attainment of this 
objective rests not only upon the elimination of the 
particular unlawful employment practice complained 
of, but also requires that persons aggrieved by the 
consequences and effects of the unlawful employment 
practice be, so far as possible, restored to a position 
where they would have been were it not for the un­
lawful discrimination. 118 Cong. Rec. 7168 (1972).



26

The clear objective of Title VII, to provide remedies 
only for victims of unlawful discrimination, has been recog­
nized by this Court in numerous decisions. In Albemarle 
Paper, supra, the Court identified the central purposes of 
Title VII: to eradicate discrimination in employment and
to make persons whole for injuries suffered through past 
discrimination. 422 U.S. at 421. In Franks v. Bowman 
Transportation Co., 424 U.S. 747 (1976), this Court viewed 
the 1972 amendment to Title VII as an “emphatic confir­
mation that federal courts are empowered to fashion such 
relief . . . making whole insofar as possible the victims of 
racial discrimination in hiring.” Id. at 764 (emphasis 
added). Recently, in Ford Motor Co. v. EEOC, 102 S.Ct. 
3057, 3065, this Court reiterated that view: “Title VII’s
secondary, fallback purpose is to compensate the victims 
for their injuries” (emphasis added). See also Zipes v. 
Trans World Airlines, 455 U.S. 385, reh’g denied, 102 S.Ct. 
2001 (1982).

In the instant case, however, there has been no finding 
by any court that the minority employees who were in­
sulated from the operation of a bona fide seniority system 
were in fact victims of prior discriminatiion. Affording re­
lief to non-victims does not comport with the “make- 
whole” purpose of Title VII, and in fact conflicts with con­
gressional purpose as clearly expressed in the statute and 
as equally clearly expounded by this Court in prior cases.

Nowhere is a court’s power to grant remedial, “make- 
whole” relief under Title VII more expressly limited than 
in the area of seniority relief. This Court has repeatedly 
recognized the “overriding importance” of seniority pro­
visions in collective bargaining agreements. American 
Tobacco Co. v. Patterson, 456 U.S. 63, 76 (1982), citing 
Humphrey v. Moore, 375 U.S. 335, 346 (1964), and Trans 
World Airlines v. Hardison, 432 U.S. 63, 79 (1977).



27

Such seniority provisions have engendered strong expecta­
tions and have received wide acceptance within the field of 
labor relations. Oliver v. Kalamazoo Board of Education, 
706 F.2d 757, 763 (6th Cir. 1983); Summers and Love, Work 
Sharing As an Alternative to Layoffs by Seniority: Title
VII Remedies in Recession, 124 U. of Pa. L. Rev. 893, 899- 
906 (1976).

Congress recognized the unique status of seniority 
provisions in employment relationships, and recognized also 
the possible conflict between seniority rights and Title VII. 
Congress resolved that policy conflict by explicitly grant­
ing to bona fide seniority systems immunity from attack. 
See Teamsters, 431 U.S. at 350. Section 703 (h) of the Act 
provides, in part:

Notwithstanding any other provision of this sub­
chapter, it shall not be an unlawful employment prac­
tice for an employer to apply different standards of 
compensation or different terms, conditions, or privi­
leges of employment pursuant to a bona fide seniority 
system, . . . provided that such differences are not the 
result of an intention to discriminate because of 
race . . .

Under §703 (h), discriminatory effects of the opera­
tion of a bona fide seniority system are insufficient to 
warrant abrogation of the seniority system; rather, a find­
ing of discriminatory purpose in the adoption of such sys­
tem is necessary to enjoin its operation. Pullman-Stan­
dard. v. Swint, 456 U.S. 273 (1982). This protection against 
attack applies equally to all seniority systems whether 
promulgated before or after enactment of Title VII. Amer­
ican Tobacco Co. v. Patterson, 456 U.S. at 75-76. Thus, 
judicial abrogation of seniority systems without an adjudi­
cation of discriminatory purpose is improper.



28

This Court’s earlier holdings in Franks, Teamsters, 
and Zipes, supra, and United Air Lines v. Evans, 431 U.S. 
553 (1977), clearly establish that a court may properly 
award constructive seniority as a remedy to identifiable 
victims of discrimination but may not otherwise impair the 
operation of a bona fide system. Persons adjudicated to 
be victims of discrimination may be judicially “slotted” 
into their “rightful place” on the seniority roster, pre­
cisely in order to permit future operation of the senior­
ity system as a means of fairly allocating employment 
benefits and rights. See Franks, 424 U.S. at 764-66. Be­
cause the Sixth Circuit specifically recognized that the 
seniority-based layoff policy was bona fide, the court erred 
in ignoring the congressional mandated protection afforded 
to that system by §703 (h).

Last term this Court unequivocally explained that 
“ constructive seniority can only be viewed as compensation 
for a past wrong.” Guardians Ass’n v. Civil Service Com­
mission of New York, 51 U.S.L.W. 5105 (U.S. July 1, 1983). 
The compensatory nature of seniority relief has been previ­
ously noted by this Court in defining the permissible ex­
tent of a court’s remedial powers. Franks held 
that an award of constructive seniority may be a proper 
form of relief to identifiable victims of discrimination, but 
cautioned that “evidence that particular individuals were 
not in fact victims of racial discrimination will be material.” 
424 U.S. at 772. The following year, in Teamsters, this 
Court approved an award of retroactive seniority but care­
fully noted that the district court on remand would be 
required to determine individually which of the minority 
employees were actual victims of discrimination.24 431

24. Although the decree in Teamsters did not consti­
tute an adjudication of discrimination, the consent decree was 
entered into only after summary judgment was granted in favor 
of the plaintiffs, and the decree explicitly provided for the dis­
trict court to identify the actual discriminatees in order to 
fashion the appropriate remedy. 431 U.S. at 330 n.4.



29

U.S. at 371-72. See also United Air Lines v. Evans, 431 
U.S. 553, 559 (1977). More recently, in Zipes v. Trans 
World Airlines, 455 U.S. 385 (1982), this Court approved 
a remedial award of retroactive seniority to a class of vic­
tims of discrimination. The concurring opinion of Justice 
Powell, in which the Chief Justice and Justice Rehnquist 
joined, emphasized that “a violation of Title VII is a 
prerequisite to disturbing rights under a bona fide senior­
ity system protected by §703 (h).” Id. at 401 (emphasis 
added). Thus, the holdings of this Court have consistently 
interpreted §703 (h) as precluding precisely what the court 
below affirmed—an award of constructive seniority to per­
sons who have not been adjudged victims of past discrim­
ination.25

In this case, there has never been an adjudication or 
finding of unlawful discrimination by the City. The City 
has never admitted that it has engaged in any unlawful 
employment practice, and the City has never agreed to a 
modification of its seniority system. Despite finding 
that the City’s seniority-based layoff policy was bona fide, 
the court below nevertheless rewrote that policy in an un­
warranted expansion of the equitable powers granted by 
Congress under Title VII.

The court of appeals also erroneously concluded that its 
modification of the seniority system would have been well 
within its equitable power if discrimination by the City 
had been established. Stotts, 679 F.2d at 566. However, 
this Court’s decisions establish that the court would not

25. The final layoff list, Addendum B, indicates that the 
minority employees afforded protection against layoff were not 
victims of hiring discrimination. All privates laid off have 
seniority dates of 1979 or after. The evidence adduced at the 
hearing on plaintiffs’ request for injunctive relief established 
that the City had a 56% minority hiring rate since 1974, far 
exceeding the minority percentage within the civilian labor 
force.



30

have had the authority to grant such a “ remedy” to non­
victims under Title VII, even had the controversy below 
been litigated.26 This Court has never approved such an 
exercise of equitable authority to afford benefits to persons 
solely on account of their race and regardless of whether 
or not they had been victimized by discrimination.

B. The Court’s Modification of the Seniority Sys­
tem Constitutes a Judicially-Mandated Pref­
erence Based on Race in Direct Violation of 
§703(j).

Because no finding of unlawful discrimination against 
the affected minority employees had ever been made, 
the district court’s modification of the seniority system to 
maintain a specific percentage of minority employment 
constitutes an award of preferential status in violation of 
the express terms and objectives of Title VII. Section 
§703 (j) provides, in part:

Nothing contained in this title shall be interpreted 
to require any employer . . . subject to this title to 
grant any preferential treatment to any individual or 
to any group because of the race . . .  of such individual 
or group on account of an imbalance which may 
exist with respect to the total number or percentage 
of persons of any race . . . employed by any employer 
. . .  in comparison with the total number or percentage 
of persons of such race . . .  in the available work 
force . . . .  (Emphasis added.)

The language of §703(j) is free from doubt and “must 
be taken as the final expression of the legislative intent.” 
Caminetti v. United States} 242 U.S, 470, 490 (1917). An

26. Nor would the court have had the authority to award 
relief to non-victims under §§1981 and 1983. No violations of 
those statutes have ever been established either.



31

employer cannot be required to afford preferential treat­
ment solely because of an imbalance in its work force. 
This Court has long held that “ [djiscriminatory preference 
for any group, minority or majority, is precisely and only 
what Congress has proscribed.” Griggs v. Duke Power 
Co., 401 U.S. 424, 431 (1971).

Section 703 (j) does not preclude an award of prefer­
ential treatment as a remedy for victims of discrimination. 
But it does expressly preclude awarding preferential treat­
ment absent a finding of discrimination. See Teamsters, 
431 U.S. 324, 374 n.61 (1977). Court-ordered preferences 
have never been approved by this Court without the ex­
istence of a constitutional or statutory violation. Regents 
of University of California v. Bakke, 438 U.S. 265, 302 
(1978). In Bakke, this Court reaffirmed the necessity of 
a finding of a constitutional violation to invoke court- 
ordered preferences, stating:

Indeed, §703(j) of the Act makes it clear that prefer­
ential treatment for an individual or minority group 
to correct an existing “imbalance” may not be required 
under Title VII. 42 U.S.C. §200Qe-2(j). Thus, Title 
VII principles support the proposition that findings 
of discrimination must precede the fashioning of reme­
dial measures embodying racial classifications. Id. at 
308-09, n.44 (emphasis added).

Accordingly, the court-imposed preference below runs afoul 
of the clear mandate of §703(j).

Although the precise language of §703 (j) is persuasive 
evidence of the purpose of the statute, see United States 
v. American Trucking Ass’ns, 310 U.S, 534, 543 (1940), 
the legislative history of §703 (j) provides firm addi- 
ditional support for reversal of the lower court’s 
award of preferential treatment to non-victims. In 
United Steelworkers of America v. Weber, 443 U.S.



32

193 (1979), this Court noted that §703 (j) was enacted to 
alleviate fears of “undue ‘Federal Government interference 
with private business because of some Federal employee’s 
ideas about racial balance or racial imbalance.’ ” Id. at 
208, quoting 110 Cong. Rec. 14314 (1964) (Remarks of 
Sen. Miller). This Court further noted that the congres­
sional comments “were intended as assurances that Title 
VII would not allow establishment of systems ‘to maintain 
racial balance in employment.’ ” Id. quoting 110 Cong. 
Rec. at 11848.27 This Court concluded that a voluntary 
affirmative action plan was not an impermissible prefer­
ence precluded by §703(j), because the employer was not 
required to implement such a plan.28 The reasonableness 
of the plan was founded upon the fact that it was a tempo­
rary tool for remedying past discrimination “without at­
tempting to ‘maintain’ a previously achieved balance.” Id. 
at 216 (Blackmun, J., concurring).

Here, by contrast, the court required the City to main­
tain a racial balance without a prior judicial finding of 
discrimination. The court’s orders were not based upon 
the City’s failure to abide by its obligations under the 
1980 Decree; the City’s compliance was both clear and 
unchallenged. Rather, the court’s orders were issued solely

27. Justice Rehnquist, in his opinion dissenting on other
grounds, cited the comments of Representatives Celler and Minish 
as further indicating the purpose of §703(j) . Representative 
Celler stated: “Even [a] court could not order that any
preference be given to any particular race, religion or other 
group, but would be limited to ordering an end to discrimination.” 
443 U.S. at 233, 110 Cong. Rec. 1518. Representative Minish 
added: “ Under title VII, employment will be on the basis of
merit, not of race. This means no quota system will be set up, 
. . . and no one will be given a vested right to demand employ­
ment for a certain job.” Id. at 233-34 n.13, 110 Cong Rec. 1600.

28. In his concurring opinion, Justice Blackmun found that 
the preferential hiring was a reasonable response by a private 
employer “whether or not a court, on these facts, could order 
the same step as a remedy.” Id. at 211.



33

to prevent an expected reduction of minority employment 
(caused by economic conditions) which would have re­
sulted from the operation of a concededly bona fide senior­
ity-based layoff policy. The City voluntarily agreed to 
affirmative action in hiring and promotion, but it did not 
voluntarily agree to maintain a fixed level of minority em­
ployment. The court’s mandate to retain certain employ­
ees (and to lay off certain others) solely because of their 
race transgresses the permissible bounds of involuntary 
affirmative relief.

Courts of appeals have consistently rejected court- 
imposed preferential treatment absent a finding of dis­
crimination. See Waters v. Wisconsin Steel Works of 
International Harvester Co., 502 F.2d 1309 (7th Cir. 1974), 
cert, denied, 425 U.S. 997 (1976); Watkins v. United Steel 
Workers Local No. 2369, 516 F.2d 41 (5th Cir. 1975); 
Chance v. Board of Examiners, 534 F.2d 993 (2d Cir. 1976), 
cert, denied, 431 U.S. 965, reh’g denied, 434 U.S. 881 (1977). 
In Watkins the district court, as here, required an em­
ployer to ignore seniority and lay off employees in pro­
portion to the racial composition of the work force, not­
withstanding the absence of a judicial finding of discrim­
ination. The Fifth Circuit reversed, holding that the abro­
gation of seniority rights in the absence of a violation 
constituted an impermissible preference under §703 (j), 
516 F.2d at 46:

To hold the seniority plan discriminatory as to the 
plaintiffs in this ease requires a determination that 
blacks not otherwise personally discriminated against 
should be treated preferentially over equal whites. . . . 
The result which plaintiffs seek, therefore, is not that 
personal remedial relief available under Title VII, but 
rather a preferential treatment on the basis of race 
which Congress specifically prohibited in Section 
703 (j).



34

In Chance v. Board of Examiners, 534 F.2d at 998, the 
Second Circuit Court of Appeals also rejected the judicial 
imposition of a racially-based layoff policy where no dis­
criminatory hiring practices had been proved. There, the 
court distinguished between proper exercise of the court’s 
remedial power and impermissible preferential treatment:

If a minority worker has been kept from his rightful 
place on the seniority list by his inability to pass a 
discriminatory examination, he may, in some instances, 
be entitled to preferential treatment—not because he 
is Black, but because, and only to the extent that, he 
has been discriminated against. Id. at 999 (em­
phasis added).

The Second Circuit further noted that an award is for­
bidden when no unlawful conduct has been proved, stating: 
“ [T]he non-remedial distortion of a seniority system 
through preferential treatment based solely upon race is 
a form of reverse discrimination specifically proscribed 
by Congress.” Id. at 998.

The express prohibition of §703 (j) against judicially- 
imposed, non-remedial preferential treatment, as well as 
the legislative history and judicial interpretation of that 
section, require a reversal of the lower court’s decision.

III. THE DECISION BELOW WILL HAVE A CHILL­
ING EFFECT ON THE USE OF VOLUNTARY 
CONSENT DECREES.

Voluntary settlement of Title VII suits is a preferred 
means of achieving elimination of employment discrim­
ination. See Alexander v. Gardner-Denver Co., 415 U.S. 
36 (1974). Judicial power to modify consent decrees to 
include provisions which were not agreed to by the parties 
and which override contractual obligations will discourage



35

future use of consent agreements to settle discrimination 
lawsuits by both private and public employers.

In reaching the compromise agreement embodied in 
the 1980 Decree, the minority employees agreed that:

Both plaintiffs and the class they represent shall seek 
no further relief for the acts, practices or omissions 
alleged in the complaints save to enforce the provisions 
of this Decree, thereby waiving the right to seek 
further relief (City Pet. A61).

The City fully expected, therefore, that the terms of the 
Decree would not be enlarged absent a showing of a new 
violation or a showing that the City had not complied with 
the Decree. The court below nevertheless imposed ad­
ditional obligations upon the City, notwithstanding the un­
controverted evidence that the City had complied fully 
with the terms of the Decree. If judicial power exists to 
modify the parties’ contract without an adjudicated basis 
for doing so, both the integrity of the agreement itself and 
the very reasons why the parties voluntarily accept binding 
consent decrees are utterly destroyed.

That very concern was aptly expressed by the Third 
Circuit in Fox v. United States Department of Housing, 
680 F.2d 315 (1982). The court rejected the plaintiff’s 
request to modify a consent decree to include an additional 
obligation, stating:

As with all final judgments, the parties have a strong 
interest in the finality of the decision; in addition, 
when the plaintiffs have made a “free, calculated and 
deliberate choice to submit to an agreed upon decree 
rather than seek a more favorable litigated judgment 
their burden . . .  is perhaps even more formidable than 
had they litigated and lost.” Id. at 322 (citation 
omitted).



36

The decision below, which relieves the plaintiffs 
from their negotiated agreement, destroys any reasonable 
assurance that negotiated conditions contained in similar 
agreements will be enforced. Unless reversed, it will 
surely result in a reluctance of other municipalities and 
private employers to enter into consent decrees. See 
United States v. ITT Continental Baking Co., 420 U.S. 
223, 249 (1975) (Stewart, J., dissenting, joined by the Chief 
Justice and Justices Powell and Rehnquist). Such policy 
considerations dictate that the modification of the consent 
decree, without a finding of a breach of the terms of the 
Decree or a new violation warranting remedial action, 
ought to be reversed.

IV. THE DECISION BELOW CONSTITUTES AN 
IMPROPER JUDICIAL INTRUSION INTO LO­
CAL GOVERNMENTAL AFFAIRS.

In fashioning equitable remedies for racial discrim­
ination, this Court has recognized the possibility that judges 
may overreach into local affairs and has cautioned federal 
courts to be mindful of the interests of state and local 
authorities in managing their own affairs. Milliken v. 
Bradley, 433 U.S. 267, 282 (1977). As stated by this Court 
in Swann v. Charlotte-Mecklenburg Board of Education, 
402 U.S. 1, 16 (1971):

Remedial judicial authority does not put judges auto­
matically in the shoes of school authorities whose 
powers are plenary. Judicial authority enters only 
when local authority defaults.

The power of the federal courts to restructure the operation 
of local government “may be exercised only on the basis of 
a constitutional violation.” Milliken v. Bradley, 418 U.S. 
717, 738 (1974), quoting Swann, 402 U.S. at 16. Accord, 
Dayton Board.I of Education v. Brinkman, 433 U.S. 406, 419- 
20 (1977).



37

Rewriting the City’s bona fide seniority system in the 
absence of an adjudication that the City has breached its 
legal duty constitutes an excessive and unwarranted ju­
dicial intrusion into the local affairs of the City of Mem­
phis. The Sixth Circuit attempted to bring its opinion 
within the proper bounds of its authority by stating that 
the district court’s orders merely prohibited the layoffs as 
proposed, inferring that the City was free to choose alterna­
tive solutions to its financial problems. Such disclaimer, 
however, is mere sophistry.

The district court’s orders did not merely enjoin the 
layoffs. Rather, the court ordered the City to propose an 
alternate method for the layoffs and then, by the order 
entered on June 26, 1981, required layoffs of Fire Depart­
ment personnel which contravened both the seniority pro­
visions contained in the Memorandum of Understanding be­
tween the City and the Union and the City’s existing lay­
off policy. A court’s imposition of a race-conscious layoff 
policy on an objecting municipality and union, without a 
finding of racial discrimination, transgresses the permis­
sible bounds of judicial authority as expressed in Swann 
and Milliken I.

Nor can it be said that the local authorities had “de­
faulted.” The evidence below does not suggest that (since 
1974) the City’s hiring policies were discriminatory. 
Rather, the statistics cited by the Sixth Circuit reveal that 
between March 24, 1972 (the effective date of Title VII 
as to municipalities), and September 1977, four years prior 
to the layoffs, 26% of Fire personnel hired were black. 
679 F,2d at 578-79. When compared to the 1978 census data 
(32.8% black civilian labor force),29 the statistics do not 
reveal a default by the City. Once having implemented 
nondiscriminatory hiring practices, the district court is not

29. See n.12, supra.



38

empowered to ensure a racial balance in the City’s work 
force by requiring that a certain percentage of minority 
employment be maintained. See Pasadena City Board of 
Education v. Spangler, 427 U.S. 424, 436-37 (1976). As no 
constitutional or statutory violation was (or could be) 
found by the district court based upon utilization of a 
neutral, bona fide seniority system, the court’s intrusion 
into the administration of the local authority’s employment 
policies in this case was clearly improper.

CONCLUSION

Based upon the foregoing reasons, the decision of the 
Court of Appeals should be reversed, with instructions to 
dismiss the request for injunctive relief.

Clifford D. P ierce, Jr.
(Counsel of Record)
City Attorney 
125 North Mid-America Mall 
Memphis, Tennessee 38103 
(901) 528-2614

Louis P. B ritt, III 
Staff Attorney 
Office of the City Attorney 
67 Madison Avenue 
12th Floor
Memphis, Tennessee 38103 
(901) 521-1111

August 20, 1983



A1

ADDENDUM A

42 U.S.C. §2G00e-2(h), Section 703(h): Notwithstand­
ing any other provision of this title, it shall not be an unlaw­
ful employment practice for an employer to apply different 
standards of compensation, or different terms, conditions, 
or privileges of employment pursuant to a bona fide se­
niority or merit system, or a system which measures earn­
ings by quantity or quality of production or to employees 
who work in different locations, provided that such dif­
ferences are not the result of an intention to discriminate 
because of race, color, religion, sex, or national origin, nor 
shall it be an unlawful employment practice for an em­
ployer to give and to act upon the results of any profes­
sionally developed ability test provided that such test, its 
administration or action upon the results is not designed, 
intended or used to discriminate because of race, color, 
religion, sex, or national origin. It shall not be an unlaw­
ful employment practice under this title for any employer 
to differentiate upon the basis of sex in determining the 
amount of the wages or compensation paid or to be paid 
to employees of such employer if such differentation is 
authorized by the provisions of section 6(d) of the Fair 
Labor Standards Act of 1938, as amended (29 U.S.C. 
206(d)).

42 U.S.C. §2000e-2 (j), Section 703 (j) : Nothing con­
tained in this title shall be interpreted to require any 
employer, employment agency, labor organization, or joint 
labor-management committee subject to this title to grant 
preferential treatment to any individual or to any group 
because of the race, color, religion, sex, or national origin 
of such individual or group on account of an imbalance 
which may exist with respect to the total number or per­
centage of persons of any race, color, religion, sex, or 
national origin employed by an employer, referred or



A2

classified for employment by any employment agency or 
labor organization, admitted to membership or classified 
by any labor organization, or admitted to, or employed 
in, any apprenticeship or other training program, in com­
parison with the total number or percentage of persons 
of such race, color, religion, sex, or national origin in 
any community, State, section, or other area, or in the 
available work force in any community, State, section, 
or other area.

42 U.S.C. §200Qe-5(g), Section 706(g): If the court
finds that the respondent has intentionally engaged in or 
is intentionally engaging in an unlawful employment prac­
tice charged in the complaint, the court may enjoin the 
respondent from engaging in such unlawful employment 
practice, and order such affirmative action as may be 
appropriate, which may include, but is not limited to, 
reinstatement or hiring of employees, with or without 
back pay (payable by the employer, employment agency, 
or labor organization, as the case may be, responsible for 
the unlawful employment practice), or any other equi­
table relief as the court deems appropriate. Back pay lia­
bility shall not accrue from a date more than two years 
prior to the filing of a charge with the Commission. In 
terim earnings or amounts earnable with reasonable dili­
gence by the person or persons discriminated against shall 
operate to reduce the back pay otherwise allowable. No 
order of the court shall require the admission or reinstate­
ment of an individual as a member of a union, or the 
hiring, reinstatement, or promotion of an individual as an 
employee, or the payment to him of any back pay, if such 
individual was refused admission, suspended, or expelled, 
or was refused employment or advancement or was sus­
pended or discharged for any reason other than discrimina­
tion on account of race, color, religion, sex, or national 
origin or in violation of section 704 (a).



A3

42 U.S..C. Section 1981: All persons within the ju­
risdiction of the United States shall have the same right 
in every State and Territory to make and enforce con­
tracts, to sue, be parties, give evidence, and to the full and 
equal benefit of all laws and proceedings for the se­
curity of persons and property as is enjoyed by white cit­
izens, and shall be subject to like punishment, pains, pen­
alties, taxes, licenses, and exactions of every kind, and 
to no other.

42 U.S.C. Section 1983: Every person who, under
color of any statute, ordinance, regulation, custom, or 
usage, of any State or Territory, subjects, or causes to be 
subjected, any citizen of the United States or other person 
within the jurisdiction thereof to the deprivation of any 
rights, privileges, or immunities secured by the Constitu­
tion and laws, shall be liable to the party injured in an ac­
tion at law, suit in equity, or other proper proceeding 
for redress.



ADDENDUM B

FIRE PRIVATES
SENIORITY

A4

NAME DATE RACE DISPOSITION

Maury Tennyson 2-1-81 W Laid off
Harold Poston 1-24-81 W Laid off
Ken 0 .  Ellis 12-17-80 w Laid off
Glenn Meadors 12-4-80 w Laid off
Raymond Ray 9-20-80 w Laid off
Ernest E. Hulbert 7-17-80 w Laid off
Charles T. Belk 4-17-80 w Laid off
Larry Kirby 1-18-80 w Laid off
Leo Winfrey 11-5-79 B Laid off
James Winfield 11-5-79 w Laid off
Dell Ray Travis 11-5-79 w Laid off
Terry Thaxton 11-5-79 B Laid off
William Starrett 11-5-79 w Laid off
John D. Payne 11-5-79 w Laid off
James F. Morgan 11-5-79 w Laid off
Harold L. Moore 11-5-79 B Laid off
Timothy B. Mitchell 11-5-79 w Laid off

* Cornelius McFadgon 11-5-79 B Retained in position
Michael Maxwell 11-5-79 W Laid off
Tommy Mansfield 11-5-79 W Laid off
Billy L. Mansel 11-5-79 w Laid off
Javier Lerma 11-5-79 w Laid off

* Keith 0 .  Jones 11-5-79 B Retained in position
* Willie Johnson 11-5-79 B Retained in position
*Amos Hester 11-5-79 B Retained in position
* Larry Harris 11-5-79 B Retained in position
Larry Harmon 11-5-79 w Laid off

*Alonzo Gardner 11-5-79 B Retained in position
Gary Bennington 11-5-79 W Laid off
Stanley Darden 11-5-79 W Laid off

^Denotes minority employee passed over under Court’s order.



A5

DRIVERS
SENIORITY

NAME DATE RACE DISPOSITION

Roger Peck 9-24-73 W Bumped to Fire Private
Andrew Patton 9-24-73 B Bumped to Fire Private
Brian Nance 9-24-73 W Bumped to Fire Private

* Ronald Moore 9-24-73 B Retained in position
Donald Kuhn 9-24-73 W Bumped to Fire Private

*Terrold Bilfrew 9-24-73 B Retained in position
John Watson 1-2-73 W Bumped to Fire Private

*Bennie Shields 1-2-73 B Retained in position
William C. Pleasants 1-2-73 W Bumped to Fire Private

*Eddie Newsom 1-2-73 B Retained in position
* Robert Freeman 1-2-73 B Retained in position
Nelson Boren 1-2-73 W Bumped to Fire Private
Thomas Seever 12-17-72 W Bumped to Fire Private

*Elbert Rich 10-30-72 B Retained in position
Ronald McCarty 10-30-72 W Bumped to Fire Private

* Joseph Hodges 10-30-72 B Retained in position
Glenn Hardin 10-30-72 W Bumped to Fire Private
Gary Hall 10-30-72 W Bumped to Fire Private
Robert Franks 10-30-72 W Bumped to Fire Private
Joe Caldwell 10-30-72 W Bumped to Fire Private

*Jerome Woods 9-5-72 B Retained in position
*Malcolm Nelson 9-5-72 B Retained in position
William Murphy 9-5-72 W Bumped to Fire Private
Enoch McBride 9-5-72 W Bumped to Fire Private
Marix Hughes 9-5-72 W Bumped to Fire Private

*Johnny Harrison 9-5-72 B Retained in position
Joe Wheeler 6-5-72 w Bumped to Fire Private
Claude Terrell 6-5-72 w Bumped to Fire Private
Stephen Raney 6-5-72 w Bumped to Fire Private
James Mills 6-5-72 w Bumped to Fire Private
Enoch Gentry 6-5-72 w Bumped to Fire Private
Tony Gallo 6-5-72 w Bumped to Fire Private
Steve Simmons 6-5-72 w Bumped to Fire Private

^Denotes minority employee passed over under Court’s order.



A6

INSPECTORS

NAME
SENIORITY
DATE RACE DISPOSITION

Ronald Williams 1-15-76 W Bumped to Fire Private
Allen Roberts 9-24-73 w Bumped to Fire Private
William Billings 9-24-73 w Bumped to Fire Private
Grafton Logan 7-21-73 B Bumped to Fire Private
Steve Selph 10-30-72 w Voluntary layoff
Curtis Richmond 10-30-72 B Bumped to Fire Private

*Raymond McGahee 6-5-72 B Retained in position
Harold McKinney 6-28-71 W Bumped to Fire Private

*Fred Jones 11-3-69 B Retained in position
Gerald Alsup 11-3-69 W Bumped to Fire Private
Bobby Bennington 8-25-69 W Bumped to Fire Private
Stanley Arendale 5-1-69 W Bumped to Fire Private
Phillip T. Hall 3-17-69 W Bumped to Fire Private

*Denotes minority employee passed over under Court’s order.



A7

LIEUTENANTS
—  SENIORITY

NAME DATE RACE DISPOSITION

John Alsobrook 9 - 3 0 - 7 4 B Bumped to Fire Private
John Malone 1 - 2 - 7 3 B Bumped to Fire Private

*Percy Alexander 1 - 2 - 7 3 B Retained in position
*Ricky Tate 1 0 - 3 0 - 7 2 B Retained in position
*William Kegler 1 0 - 3 0 - 7 2 B Retained in position
Charles Smith 6 - 5 - 7 2 W Bumped to Fire Private

* Quincy McKay 6 - 5 - 7 2 B Retained in position
^Raymond Lewis 6 - 5 - 7 2 B Retained in position
* Dewey Harris 6 - 5 - 7 2 B Retained in position
*Robert Downey 6 - 5 - 7 2 B Retained in position
*Gus Bailey 6 - 5 - 7 2 B Retained in position
* Chester Anderson 6 - 5 - 7 2 B Retained in position
* Jesse Jones 6 - 2 8 - 7 1 B Retained in position
*Ray Cobb 1 0 - 2 3 - 7 0 B Retained in position
Herman Vaughn 1 1 - 3 -6 9 W Bumped to Fire Private

* Archie Scruggs 1 1 - 3 -6 9 B Retained in position
*Don Hulbert 1 1 - 3 - 6 9 B Retained in position
^Nathaniel Partee 8 - 2 5 - 6 9 B Retained in position
Jimmie Hartsfield 8 - 2 5 - 6 9 W Bumped to Fire Private

*Herbert Redden 5 - 1 -6 9 B Retained in position
W. Patterson 5 - 1 -6 9 W Bumped to Fire Private
Jerry Burnett 5 - 1 -6 9 W Bumped to Driver
John Looney 3 - 1 7 - 6 9 W Bumped to Driver

*Willie Flowers 3 - 1 7 - 6 9 B Retained in position
Robert Burns 1 1 - 2 9 - 6 8 W Voluntary retirement
Jerry Sides 1 0 - 1 - 6 8 W Bumped to Driver
James Patterson 1 0 - 1 - 6 8 w Bumped to Fire Private
Jack Pannell 1 0 - 1 -6 8 w Bumped to Fire Private

*Leon Bowen 1 0 - 1 - 6 8 B Retained in position
Donald Wolfe 7 - 1 6 - 6 8 w Bumped to Driver

*Denotes minority employee passed over under Court’s order.



A8

FIRE PREVENTION SUPERVISORS

SENIORITY
NAME DATE RACE DISPOSITION

James A. Bacon 6-12-74 W Voluntary retirement
*Clarence E. Howard 5-1-69 B Retained in position
Jack G. Bacon 3-17-69 W Bumped to Inspector

^Denotes minority employee passed over under Court’s order.



A9

FIRE ALARM OPERATOR I
SENIORITY

NAME________________  DATE_______ RACE

Denise Mathews 12-8-80 B
David P. Currie 12-8-80 W

DISPOSITION_________

Voluntary resignation 
Laid off