Johnson v. City of Albany Plaintiffs' Proposals for the Handling of Back Pay
Public Court Documents
June 10, 1976

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Brief Collection, LDF Court Filings. Johnson v. City of Albany Plaintiffs' Proposals for the Handling of Back Pay, 1976. 637c380e-b69a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/281d8ec5-7bde-463d-b258-4827eb1c2bae/johnson-v-city-of-albany-plaintiffs-proposals-for-the-handling-of-back-pay. Accessed April 22, 2025.
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n O IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ALBANY DIVISION JOHNNIE JOHNSON* JR., et al., Plaintiffs v CIVIL ACTION NO. 1200 THE CITY OF ALBANY, GEORGIA et al. , Defendants. PLAINTIFFS' PROPOSALS FOR THE HANDLING OF BACK PAY A . Introduction While there is no longer any doubt that back pay should ordinarily be awarded in Title VII cases after a finding of dis crimination and will be awarded in this case, plaintiffs submit that it is still appropriate to reflect for a moment on the purposes and functions of such an award and upon the spirit which should guide its determination. The finding of discrimination herein comes after a four-year effort before this Court. It comes more than four years after the majority of the black workers who bore the brunt of its effects placed their jobs on the line in protest and paid dearly for the right of all present and future black employees and applicants to be free of the badges of slavery long outlawed by the laws and Constitution of the United States. As an across-the-board employ ment discrimination class action, this Court's finding of May 6, 1976 opens the door to enforcement of the law but in and of itself enforces nothing. One arm of the laws enforcement is the injunctive relief to be entered by this Court. It will set forth the concrete meaning of Title VII in the facts and circumstances of this case and those whose lives are touched by it will come away from the experience with a renewed sense of faith in the nation and in its commitment to the ideals of equality and justice. For the vast majority of them this Court’s Decree will make Title VII a reality rather than an abstract proposition. The second arm of the laws enforcement is the monetary relief to be awarded. For many people this Court's Decree will come too late to have any effect of their lives. Some class mem bers have worked for the defendants for years in low paying jobs until their retirement. Some engaged in the strike of April 19, 1972 and were never rehired. Finally, there are some who once endured the humiliation and degradation of segregation and low pay, quit in frustration and went on to employment elsewhere. For each of these persons the Decree will provide no relief. For each class member, only this Court's award of back pay and the manner in which it makes that award will enable them to derive any benefit from the enactment of Title VII or from plaintiffs' laborious effort to enforce it in Municipal employment. The Fifth Circuit once described the meaning of the promise of Title VII in terms truer than any traditional phrasing could have: "Beneath the legal facade a faint hope is discernible, arising like a distant star 1/over a swamp of uncertainty and perhaps of despair." The people described in this paragraph are entitled to taste the reality of that hope as fully as the defendants' present and future employees.t B. The Legal Context of Plaintiffs' Back Pay Proposals Plaintiffs' proposals for the handling of back pay in this case are set forth beginning at page 16. Before developing them, plaintiffs examined the leading appellate decisions on the manner handling class back pay claims, with chief reference to the Fourth and Fifth Circuits. M Miller v. International Paper Co.. 408 F.2d 283, 294 (5th Cir. 1969K ----- O ........... ... ' ' J ' --------- - 2- - - r v - ...... -... — -w The most striking features of these decisions are the strength of the courts' insistence that some effective way be found to compensate the members of a class which has been shown to have been discriminated against in the liability phase of the trial, and the variety of ways in which the courts have shifted the burden of proof with respect to the back pay claims of indi vidual class members to the employer found to have discriminated. The decisions, most of which have been entered in the last two years, seem to establish seven broad principles, and they are: 1. Classwide Back Pay Cannot Be Denied On The Ground That It Is Speculative. In Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1380 (5th Cir. 1974) and Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 259 (5th Cir. 1974), the Fifth Circuit held that back pay could not be denied on the ground that it was speculative. The Court stated that "unrealistic exactitude is not required" and that "uncertainties ... should be resolved against the discrimina ting employer," Pettway, supra, 494 F.2d at 259. The Fifth Cir cuit has referred to the "quagmire of hypothetical judgments" caused by the impossibility of "determining which jobs the class members would have bid on and obtained" absent discrimination, particularly where there are more class members than vacancies, but concluded: "It does not follow that back pay claims based on promotions cannot be awarded," Pettway v. American Cast Iron Pipe Co., 404 F.2d 211, 260 (5th Cir. 1974). The Sixth Circuit reached the same conclusion in Meadows v. Ford Motor Co., 510 F.2d 939 (6th Cir. 1975). There, the District Court had denied back pay to a class of unhired female applicants because there were more of them than there were vacancies, and because there was no way to tel which of them would have been hired absent discrimination. Holding 2/that "The wrongdoer is not entitled to complain" since it had created the situation that made the ascertainment of relief diffi- j/ Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563-64 (1931). - 3- cult, the Sixth Circuit reversed. 2. After A Finding Of Discrimination Against The Class, The "Initial Burden" On A Back Pay Claimant Is Light After a finding of discrimination against a class, there is an "initial lighter burden" on a class member or on whoever is acting on behalf of the class member, "with a heavier weight of rebuttal on the employer," Pettway, supra, 494 F.2d at 259. The "initial lighter burden" does not include any requirement that the class member show he or she would have been hired or promoted absent discrimination; it is the employer's burden to show "by clear and convincing evidence" that the class member would not 3/ have been hired or promoted absent discrimination, id. The Supreme Court recently approved the placing of this burden on the employer. See Franks v. Bowman Transportation Co., __ U.S. __, 47 L.Ed.2d 444, 466 (1976). The nature of the "initial lighter burden" and the means of discharging it will vary from case to case depending on the facts of the case in question. In some cases, as the Fifth Circuit suggested in United States v. United States Steel Corp.. 520 F.2d 1043, 1054 (5th Cir. 1975), it may be appropriate to discharge it in a series of individual, claimant-by-claimant trials. In other cases, as that same case suggests and Part 3 discusses, it may be appropriate to use a "classwide" or "formula" approach. In Johnson v. Goodyear Tire & Rubber Co.. 491 F.2d 1364 (5th Cir. 1974), for example, the Fifth Circuit used a group approach and held that the initial burden would be discharged by evidence showing that a black was hired into the labor department before Goodyear's aban donment of a high school diploma requirement for better-paid jobs, and was "frozen into" that department by Goodyear's testing and seniority systems. 491 F.2d at 1380. Of course, the employer has the right to rebut such a prima facie claim. The burden is not easy to discharge and under the y Accord, Hairston v. McLean Trucking Co.. 520 F.2d 226 (4th Cir. L975). --- - 4 - facts of this case the defendants would have to prove either that no vacancies existed at any time during the term of the individual employees 1 term of employment or that he or she was not qualified or qualifiable for any job other than the one held. In many cases, the evidence necessary to discharge the "initial burden" can easily be obtained from employer records and the trial record. Where this is true, there is no reason to require an individual class member to appear and testify unless the defendants seek to rebut his or her claim and such testimony is essential to pierce the defendants' rebuttal. It bears stressing that the form of discrimination herein will prevent many black employees from knowing very much about their own claims. The defendants have no valid objective criteria for determining who should be hired and who should be promoted, and class members could not ordinarily say that they knew their "qualifications" were superior to those of whites. Many class members were simply not permitted to obtain the on-the-job train ing necessary to become qualified for some high paying jobs and, therefore, could not say that they are qualified for that job. However, if given the opportunity, they could become qualified. Additionally, since job openings occur in several different departments of the City, some of which blacks have been excluded from in the past, and information as to job openings was communi cated by word-of-mouth, many black employees simply would not know what jobs were available. it seems to follow that a black class member could not be held accountable for specifying the vacancies he would have filled absent discrimination. To require class members to file proof-of-claim forms would in effect impose "opt-in" requirements. Its only effect would be to unfairly reduce defendants' liability by immunizing them from the merito rious claims of people who do not understand the rights that they may have, do not know the facts adding up to a claim, or do not - 5- realize the legal significance of the facts which they do know. Because of a widespread belief that this was the practical effect of "opt-in" requirements, the Advisory Committee on the Civil Rules amended Rule 23(b)(3) in 1966 to repeal the former requirement that the described persons must "opt-in" to become class members, and to add a provision that the described persons would automatically be class members unless they opted out. Then- 5/ Professor Kaplan, the Reporter to the Advisory Committee, explained the traditional defendant's justification for the old rule — and one which plaintiffs expect the defendants to proffer herein: 4/ It was suggested that the judgment in a (b) (3) class action, instead of covering by its terms all class members who do not opt out, should embrace only those individuals who in response to notice affirmatively signify their desire to be included .... It is unfair to a defendant opposing the class, so the argument goes, to subject him to possible liability toward indi viduals who remain passive after receiving notice or who may, indeed, have had no notice of the proceeding: under the previous law, some, perhaps many, of those persons might simply have foregone any claims against the defendant; they might in fact have remained ignorant of having any possible claims. Running through this argu ment was the idea that litigation should be a matter for the distinct action by each individual. Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv. L. Rev. 356, 397 (1967). After criticizing the legal assumptions in that theory, he went on to explain the reasons for the policy choice made by the Advisory Committee and adopted by the Supreme Court: If, now, we consider the class, rather than the party opposed, we see that requiring the indi viduals affirmatively to request inclusion in —/ Such a requirement also immunizes defendants from the claims of those most in need of the Court's protection: those who are frightened of legal proceedings and those who are frightened of retaliation against them if they assert their rights. Whether or not such fears are realistic is less important than the fact that they do exist. Counsel is aware of at least some current employees who could have testified to facts which affected liabil ity but refused to come forward at the time of trial for fear of retaliation. 5/ He is presently a Justice of the Mass. Supreme Judicial Court. - 6- the lawsuit would result in freezing out the claims of people — especially small claims held by small people — who for one reason or another, ignorance, timidity, unfamiliarity with business or legal matters, will simply not take the affirmative step. The moral justification for treating such people as null quantities is questionable. For them the class action serves something like the function of an administrative proceeding where scattered indi vidual interests are represented by the Govern ment. In the circumstances delineated in sub division (b)(3), it seems fair for the silent to be considered as part of the class. Other wise the (b)(3) type would become a class action which was not that at all — a prime point of discontent with the spurious action from which the Advisory Committee started its review of Rule 23. 81 Harv. L. Rev. at 397-98. See also Note of the Advisory Com mittee on the Civil Rules. 34 F.R.D. 325, 387-88. Accord, Clark v. Universal Builders. 501 F.2d 324, 340 (7th Cir. 1974). Apart from the legality of the procedure, it is apparent that its actual effect may vary widely in different kinds of cases. In English v. Seaboard Coast Line r .r . Co ., 12 F.E.P. cases 90 (S.D. Ga. 1975) where an experimental proof-of-claim procedure was used, there were less than 250 employees (approxi mately 110 blacks) at the facility and there were only 29 tradi- tionally-white job categories at issue as of the date of trial. Here, the defendants have over 1,000 employees and over a hundred job categories. Given the high rate of turnover, defendants may well have employed several thousand persons during the six-year period covered by this litigation. In English, there were unions and well-established seniority systems throughout the period covered by the litigation, and the class members presumably knew about vacancies as they came open and could now identify specific 6/vacancies on their claim forms. Here, however, the jobs are not well defined and there was no mechanism by which employees knew 17" New York counsel in this case succeeded Morris J. Bailer as co counsel in the English/Hayes litigation. While it does not appear in any of the published opinions in that case, Seaboard Coast Line had a practice (called "dead-ending") of permitting all its employees to train on their own time for any job. Thus, the English/Hayes class members knew not only what jobs were available but what the requirements of those jobs were. - 7- what jobs existed or when vacancies occurred, except perhaps with in their own department. Even where a class member knew of a particular vacancy in a higher paying job, he or she may not know that there was discrimination in filling those jobs. Defendants have no valid objective criteria for determining who should be hired and who should be promoted, and class members could not ordinarily say that they knew their "qualifications" were superior to those of whites. Mack v. General Electric Co., 15 F.R. Serv. 2d 799 (E.D. Pa. 1971) is directly in point. There, the court reversed its earlier stand and held that the use of proof-of-claim forms was Vimproper in Title VII cases: We are not here dealing with sophisticated litigants such as those in the ordinary antitrust case who are invariably well counselled. Rather, we are dealing with a large group of persons who can be assumed to be generally untutored and unaware of the intrica cies of the law's demands. I am now convinced that Paragraph 4 places an unnecessary and difficult burden upon the members of the class which could well result in the technical extinguishment of what may be meritorious claims. This point is strengthened by the widespread judicial and Congressional recognition that "[Sophisticated general policies and practices of discrimination are not susceptible to such pre cise delineation by a layman who is in no position to carry out a full-fledged investigation himself." Graniteville Co., Sibley Div. v. E.E.O.C.. 438 F.2d 32, 38 (4th Cir. 1971). This is why the courts have not demanded that witnesses to specific acts of discrimination step forward and have relied heavily on statistics instead. United States v. Hayes Int'l Corp.. 456 F.2d 112, 120 (5th Cir. 1972); Brown v. Gaston County Dyeing Machine Co.. 457 F.2d 1377, 1382 (4th Cir. 1972), cert, denied 409 U.S. 982 (1972). Congress recognized the same reality when it was considering the Equal Employment Opportunity Act of 1972, Pub. L. 92-261, 86 Stat. 103: 2/ A copy of this Memorandum is attached. r - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 1 - 8- During the preparation and presentation of Title VII of the Civil Rights Act of 1964, employment discrimination tended to be viewed as a series of isolated and distinguishable events, due, for the most part, to ill-will on the part of some identifiable individual or organization .... Employment discrimination, as we know today, is a far more complex and pervasive phenomenon. Experts familiar with the subject generally describe the problem in terms of "systems" and "effects" rather than simply intentional wrongs. The literature on the subject is replete with discussions of the mechanics of seniority and lines of progression, perpetuation of the present effects of earlier dis criminatory practices through various institutional devices, and testing and validation requirements. The forms and incidents of discrimination which the Commission is required to treat are increasingly complex. Particularly to the untrained observer, their discriminatory nature may not appear obvious at first glance .... Report of the House Committee on Education and Labor, 92nd Cong., 1st Sess. (Report No. 92-238, 1971) at 8 (footnote omitted). In the circumstances of this case, the imposition of a proof-of-claim requirement as to claims adequately disclosed by the defendants' records would give them an undeserved windfall and would unfairly prejudice the rights of class members. 3. The Courts of Appeals Have Suggested Several Means Of Making Back Pay Determinations On A Formula Basis The courts of appeals have considered the problem of situa tions in which it is impossible to prove which class members would have been hired, or initially assigned or promoted to good paying jobs, absent discrimination, and have also considered the problem situations in which it is impossible to prove exactly how much more money an individual class member would have earned absent discrimination. Three principles emerge fairly clearly from their decisions: that back pay must nonetheless be awarded (see Part 1, supra); that it is preferable to make these determinations on as individualized a basis as possible (see United States Steel, supra); and that it is sometimes appropriate to use a "formula" approach to calculate back pay for the class and to ascertain the amount of each class member's entitlement. - 9- -__W~> V The seminal case on the formula approach is Pettway. First, the court defined the problem: When a court is faced with the employment situation like this case, where employees start at entry level jobs in a department and progress into a myriad of other positions and departments on the basis of seniority and ability over an extended period of time, exact reconstruction of each individual claimant's work history, as if discrimination had 152/ not occurred, is not only imprecise but impractical. j-JL?,/ The key is to avoid both granting a windfall to the class at the employer's expense and the unfair exclusion of claimants by defining the class or the determinants of the amount too narrowly. For instance, in this case, actually to assume that employee #242 would have been promoted in three years to such-and-such a job instead of employee #354 is so speculative as to unfairly penalize employee #3 54 ___ 494 F.2d at 261-62. The Fifth Circuit then cited with approval the formula approaches adopted by several courts. For example, it stated: Another method of computation can be categorized as a formula of comparability of representative employee earnings formula. Approximations are based on a group of employees, not injured by the discrimination, comparable in size, ability, and length of employment — such as "adjacent persons on the seniority list or the average job progress of persons with similar seniority" — to the class of plaintiffs ___ 494 F.2d at 262 (footnote omitted). The Fifth Circuit then quoted with approval a similar formula approach suggested by EEOC which said that "it has more basis in reality (i.e., actual advancement of a comparable group not discriminated against) than an individual-by-individual approach," and explained its operation: In other words, the total award for the entire class would be determined. At that point, individual claims would be calculated on pro rata shares for those workers of similar ability and seniority claim ing the same position, possibly eliminating the necessity of deciding which one of many employees would have obtained the position but for the discrim ination. Claimants dissatisfied with their portion of the award could be allowed to opt out in order to prove that they were entitled to a larger portion. Cf. Fed.R.Civ.P. 23(d) (2); Protective Committee v. Anderson. 390 U.S. 414, 435, n.17, 88 S.Ct. 1157, 20 L .Ed.2d 1 (1968). 494 F.2d at 263 and at 263 note 154. - 10- The Fifth Circuit followed Pettway with Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437 (5th Cir. 1974), cert, denied 419 U.S. 1033 (1974). As in the case at bar, personnel decisions were made subjectively. The Fifth Circuit suggested two possible approaches for the consideration of the district court. The first was the comparability formula approach suggested by EEOC in pett- way, with the court first ascertaining the actual objective qualifications of white workers, then determining which of those qualifications "are established by Savannah to be job related," and then applying these court-determined standards to black workers: The evidence distilled from this process should pro vide a standard for determining whether an individual black worker was actually qualified for promotion under a true merit system. 494 F.2d at 444. Alternatively, if Savannah could establish that turnover in higher paid jobs was too low for all blacks to have been promoted: ... then the district court might consider a black incumbent's accumulated seniority in determining which black employee would have been promoted from the available pool. The next occasion on which the Fifth Circuit confronted the problem of identifying the class members who would have been pro moted absent discrimination was in the united States Steel case, supra. The court suggested the division of the class into several smaller groups with comparable qualifications and seniority to ensure the greatest possible individualization. Because of United States Steel's reliance on seniority systems and lines of progression, the court thought that it might be possible to flow chart vacancies which occurred and, separately for each such smaller group, "award back pay by reconstructing hypothetically each eligible claimant's work history" based on the court's "sound judgment" as to which claimants would have occupied vacancies apart from discrimination. 520 F.2d at 1055. Part of the "key" to back pay determinations, said the court, is to avoid granting - 11- .J a windfall to the class at the employer's expense, and this approach would accomplish the objective. Other methods of calcu lating a class member's individual entitlement by formula are also proper. In Sabala v. Western Gillette, 516 F.2d 1251 (5th Cir. 1975), the Fifth Circuit affirmed a district court's choice of a formula: The trial judge computed back pay awards in the following manner. First, he selected a reasonably prudent (i.e., representative) road driver and a reasonably prudent city driver, each having characteristics representative of their peers with respect to seniority, earnings, and work habits. Next, he compared the average monthly earnings of these representative drivers for the period June 3, 1968 to July 17, 1973. The trial court there found that an average road driver, on a monthly basis, earns 1.56 times the amount earned by an average city driver. The trial judge acknowledged that this method of damage cal culation contains a statistical disparity and does not measure what the plaintiffs would have earned if they had been given the first available opportunity to transfer. The trial court, nonetheless, thought this formula was the best available method of esti mating the back pay to be awarded. The court then computed the discriminatee's earnings for the period from June 3, 1968 to July 17, 1973, or from his "rightful place" seniority date to July 17, 1973, whichever period was the lesser. That figure was then multiplied by a factor of 1.56, reduced by 10 percent to account for employment- related expenses, and further reduced by the amount of any "interim earnings" that the discriminatee had been able to earn while working as a city driver, which he would not have been able to earn if he had been on the road. 516 F.2d at 1265. The proposal suggested by plaintiffs seeks first to calculate individual awards by a comparison of rates of pay. Where the defendants can demonstrate availability of few vacancies compared to the number of class members, it may then be appropriate to adopt a pro rata or averaging formula. See Part 8 below. 4. The Employer, Not The Class Member, Has The Burden With Respect To "Amounts Earnable With Reasonable Dilicrence" And With Respect To Any Facts In Mitigation It is traditional law, in these types of cases, that a class member does not have the burden of proving reasonable diligence or - 12- that there are no facts which would mitigate the class member's back pay claim. The employer has the burden of proving failure of reasonable diligence or any other facts in mitigation. Sprogis v. United Air Lines, 517 F.2d 387 (7th Cir. 1975); Kaplan v. I.A.T.S.E., F.2d , 11 FEP Cases 873, 879 (9th Cir. 1975); Sparks v. Griffin, 460 F.2d 433, 443 (5th Cir. 1972); N.L.R.B. v. Madison Courier, 472 F.2d 1307, 1318 (D.C. Cir. 1973); Hegler v. Board of Educ. of the Bearden School District, 447 F.2d 1078, 1081 (8th Cir. 1971) ("The overwhelming authority places the burden on the wrongdoer to produce evidence showing what the appellant could have earned to mitigate damages.") 5. The Back Pay Award Should Include Prejudgment Interest, Vacation Pay and Retirement Benefits. An award of back pay must include more than simply the amount of the pay differential. In Pettway, the Fifth Circuit held; Finally, the ingredients of back pay should include more than "straight salary." Interest, overtime, shift differentials, and fringe benefits such as vacation and sick pay are among the items which should be included in back pay. Adjustment to the pension plan for members of the class who retired during this time should also be considered on remand. 494 F.2d at 263 (footnote omitted). Accord, Meadows v.■Ford Motor Co., 510 F.2d at 948; Chastang v. Flynn & Emrich Co., 381 F. Supp. 1348, 1351-52 (D.Md. 1974) and Fourth Circuit cases cited there; EEOC v. Kallir, Philips, Ross, Inc., 401 F. Supp. 66 (S.D. N.Y. 1975); Weitkenaut v. Goodyear Tire & Rubber Co., 381 F. Supp. 1284, 1289 (D.Vt. 1974). 6. The Defendants Must Pay The Costs Of The Back Pay Proceedings, Which Plaintiffs Believe To Include Their Counsel Fees, Regardless Of The Outcome Of The Proceedings. In Hairston, the Fourth Circuit stated that time-consuming back pay determinations were a "classic" situation for reference to a master, and continued: And since the necessity of resort to a master results from the discriminatory employment practices of McLean and MAS, they should bear his costs as well. - 13- 520 F.2d at 233. The additional legal work these proceedings will require of counsel for plaintiffs also result from the discrimina tion found by the Court and should also be paid by the defendants on a current basis. Whether or not plaintiffs ultimately prevail on all or just some of their claims does not affect their status as the prevailing parties and thus their entitlement to fees. See 10 Wright & Miller, Practice and Procedure § 2667 (1973). 7. An Award Of Back Pay Should Continue Until The Victims Of Discrimination Are In Their Rightful Place. The Fourth Circuit recently held that back pay awards should compensate the victims of discrimination for injury continuing past the date of judgment, until such time as the individual in question receives his or her "rightful place." Patterson v. American Tobacco Co., __ F.2d __, 12 F.E.P. Cases 314, 323, 11 EPD 5 10,728 (4th Cir. 1976). The Fifth Circuit had stated in Pettway that the termination date for back pay should be the date of the decree for most claim ants and earlier for some others, 494 F.2d at 258, but appears to have left discretion for further monetary relief. In Sabala, the Court of Appeals refused to reverse a similar limitation as an abuse of discretion, but suggested that the district court on remand "may, if necessary, reconsider the back pay relief granted in light of the company's ability to find jobs for the discrimina- tees." 516 F.2d at 1266. In United States v. United States Steel Corp., 371 F. Supp. 1045, 1069, note 38 (N.D. Ala. 1973), the district court ordered "forward pay" for the three subclasses for which it awarded back pay. The company did not appeal so the Fifth Circuit was not confronted with the question. In any event, an award of front pay would seem to be required by the principles of Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). It cannot be denied that it will take time ( before any Decree the Court can enter herein will wipe out every continuing effect of prior discrimination. Until enough vacancies -14- occur in high paying jobs, black will continue to earn substan tially less than whites. This is an ongoing economic loss arising from prior discrimination, and compensation for it should be denied only for compelling reasons. Albemarle Paper held that one of the "central statutory purposes" of Title VII was to "make whole" the victims of discrimination, and that monetary relief for economic injury should be denied only for reasons which, if applied generally, would not frustrate this purpose. A denial of forward pay herein would violate this standard. 8. If It Becomes Necessary To Consider Vacancies, All Vacancies Occurring On Or After July 2, 1965 Should Be Considered. Considering the high turnover rate occurring among employees of the defendants, it should not be necessary to consider vacan cies in determining the back pay claims of the members of the class. Before engaging an any vacancy analysis, the defendants should be required to affirmatively demonstrate that the lack of vacancies in particular departments will have a significant effect on the amount of individual awards. Assuming that defendants can demonstrate a lack of vacancies r this Court should consider vacancies occurring on or after July 2, 1965 for the following reasons. Under the Fourteenth Amendment, 42 U.S.C. §§ 1981 and 1983, it has long been unlawful to discrimi nate in employment on the basis of race. See Guerra v. Manchester Terminal, 498 F.2d 641 (1974). Title VII of the Civil Rights Act of 1964 has been in effect since July 2, 1965. The original Act was intended to have prospective application only. In 1972 Title VII was amended and made applicable to public employers. The 8/ amendments were given retroactive effect. See Brown v . GSA, ___ U.S. ___, 44 U.S.L.W. 4704, 4705 (June 1, 1976); Palmer v. Rogers, __ F. Supp. , 10 EPD 5 10,265 (D.D.C. 1975). Thus, under all of W For this reason, the back pay period in this case should run against the City of Albany from two years prior to April 24, 1972, the date of filing of charges of unlawful discrimination with the EEOC. See Part D, infra. ■ ■ & ' J - 15- the laws that are the bases of this suit, the filling of vacancies since July 2, 1965 which have the effect of unlawfully discrimina ting on the basis of race must be considered in calculating back pay. Obviously plaintiffs and the members of the class have suffered from the effects of unlawful discrimination and have lost wages as a result prior to April 24, 1970 but claims for wages lost prior to that time are barred because of the two-year statute of limitations that apply here. See Johnson, supra, 491 F.2d at 1378. However, the filling of vacancies which existed prior to that date have effects which were perpetuated into the 9/perxod not time-barred. Accordingly, if a vacancy analysis is used for jobs in certain departments, the defense of lack of vacancy would be available only if none existed after July 2, 1965 or since the time of initial hire, whichever is later. C . Plaintiffs' Proposals Plaintiffs suggest that this Court adopt a procedure for determining the amount of individual claims which will limit the number of individual hearings required to be held to those essen tial to establish necessary facts. For each person employed during the limitations period, defendants should be required to prepare lists showing the name, Social Security number, race, sex, years of education, date of hire, application, date of termination, department and job code, each job change (including department, job and step code), and the date thereof and rates of pay. This information should be 10/ keypunched or keytaped by the defendants and plaintiffs provided 9/ Defendants may argue that the statute of limitations also bars consideration of vacancies occurring prior to April 24, 1970. Plaintiffs note that in addition to the argument made above as to present effects of past discrimination those vacancies must be considered under the 20-year limitations period provided for under Georgia law. Ga. Code § 3-704. See Franks v. Bowman Transporta tion Co.. 495 F.2d 398, 405 (5th Cir. 1974). 10/ Most, if not all, of the data suggested for inclusion on this list apparently is already possessed by the defendants in computer readable form. - 16- with the data processing cards or tapes containing this informa tion. For each such higher paid job category, the defendants should prepare three lists each of which should be subject to verification by plaintiffs. The first list would include the name, Social Security number, and dates of incumbency of each white who was employed in that job category within the period of limitations, and the "qualifications possessed by white workers u /which are ... job related" should be listed. The second list would contain the names and dates of employment of each class member whom the defendants concede to have had those qualifica tions and the earliest date, following his actual seniority date, by which the defendants concede that the class member was so qualified. The third list would contain the names of all class members whom they contend, based on a search of their records and the knowledge of their officials, do not possess the above- 12/ described qualifications. In each case, the defendants should state in detail the valid job-related reasons why the person is listed as unqualified. Pettway clearly approves such an approach when it discussed the maximum burden that could be placed on an individual class member, and stated: "The employer's records as well as the employer's aid, would be made available to the plain tiffs for this purpose," 494 F.2d at 259-60. The plaintiffs may file a motion in the nature of a motion for summary judgment to n r See Baxter, supra. 12/ Some jobs, such as City Engineer or Chemist, have objective requirements which are clearly valid and no purpose would be served by requiring the defendants to compile a list of persons who do not meet such requirements. The function of such lists is to identify persons as to whom there is the possibility of a genuine dispute. If the defendants will identify to plaintiffs the jobs with requirements they believe to be obviously necessary, plain tiffs may be able to stipulate — perhaps after examining the personnel folders of the whites employed in that job or perhaps on its face — that no list need be compiled of blacks failing to mee-; that requirement. A list would still have to be compiled showing the names of blacks who meet that qualification but whom defendant:; contend to be otherwise unqualified. Plaintiffs would still need to have access to the personnel folders of blacks in order to verify the completeness and accuracy of the lists which are com piled. This suggestion simply avoids compilation of useless and lengthy lists. -17- obviate the need for some or all of the persons appearing on this list to appear and testify. Adequate grounds for such a motion include (1) that the reasons assigned are not justified by business necessity; (2) that the defendants' records show them to be inaccurate; or (3) that such reasons did not bar whites from such promotions. If plaintiffs prevail as to a class member, his name should be stricken from the third list and added in the appropriate place on the second list. The Special Master should determine such disputes. Each class member should then be sent a notice informing him of (1) his status as a class member; (2) the jobs for which the Court has found him qualified; and (3) the jobs for which there is a dispute as to his qualifications and his right to con test the assertions of the defendants by demonstrating that he n /possesses the necessary general qualifications. Individualized notices can be prepared easily and relatively inexpensively by use of the computer. Each such class member would return a notice. Plaintiffs would then prepare and file a list of each class member whose claims require individual hearings. At the hearing, each such person may show, but does not have the burden of showing, either that the reasons assigned are not true or that he had the necessary particular qualifications notwithstanding them. The defendants have the burden of showing, by clear and convincing evidence, (1) that the reasons assigned are true; (2) that the reasons are justified by business necessity; and (3) that the identical standards have consistently been applied to white 14/ applicants. The Special Master should hear and determine such Baxter v. Savannah Sugar Refining Corp. held that a class mem ber has the burden of showing that he or she possessed the neces sary "general characteristics and qualifications," but that the employer has the burden of showing any "particular lack of quali fications." 495 F.2d at 445. 14/ Johnson v. Goodyear Tire & Rubber Co. established that the employer had the burden, that it must be met by "clear and convin cing" evidence, and that all doubts "should be resolved in favor of the discriminatee." 491 F.2d at 1380. Baxter established the job relatedness requirement and the requirement that the standards had been applied to white employees. 494 F.2d at 444-45. - 18- disputes. At this point, the actual entitlements of each class member can be determined. The pay rates of those class members who have been determined to have always been in their "rightful place" should be compared with that of other employees and should be given an award if their rate of pay was lower than that of other employees with similar seniority. Each class member found to be qualified for a higher paying job would have his actual rate of pay compared with the rate of pay for the highest paying job for 15/which he is found qualified. If for a particular job classifica tion the Special Master finds that there are more class members than available vacancies, the back pay awards for those class members should be determined on the basis of pro rata shares as suggested in United States v. United States Steel, supra, 420 F.2d at 1055-56 or some other reasonable method. All these cal culations could be made by computer using the data already in computer readable form and pay scales covering the period. Individual awards should then be adjusted upward to include (1) interest at 1% per ’annum compounded; and (2) adjustments on all fringe benefits tied to income levels (e .g., overtime, vaca- 16/ tion pay, and pension). See Pettway, supra. The awards should be reduced by any withholding deduction required by statute or regulation. D . The Period of Limitations As to the City of Albany Should Begin at April 24, 1970. In the May 6 ruling, the Court found the defendants liable for back pay claims for a period of time commencing August 31, TET See Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969) and Pettway, supra, 494 F.2d at 261. 16/ The Court should also consider inclusion of an inflation fac tor to assure payment of back pay amounts in "constant dollars." I.e., the same present value as the value of income previously lost due to past discrimination. See English v. Seaboard Coast Line, supra, 12 F.E.P. Cases 90, 94. 1970 and continuing to the present. The City of Albany is to be liable for the period commencing March 24, 1972 and continuing to the present. The individual defendants are to be liable for claims accruing from August 31, 1970 to the expiration of their term of office or to the present time, whichever is later. Plain tiffs suggest certain modifications in this ruling which are ivconsistent with current law, will afford "make whole" relief, and will be less burdensome on the individual defendants. Once the City's liability for discrimination has been established under Title VII, it must be held liable for back pay claims to remedy discrimination practiced by it prior to March 24, 1972, the effective date of the 1972 Amendments to Title VII. The 1972 Act has been held to have retroactive effect when it is invoked to remedy unlawful discrimination committed prior to the date of the Amendments when such discrimination was prohibited on other grounds. In such cases, the 1972 Amendments have been held to be a procedural statute for enforcement of preexisting rights and as such, "under the general rule favoring retrospective appli cation of procedural statutes," it is given retroactive effect. Koger v. Ball, 447 F.2d 702, 707 (4th Cir. 1974). Koger was a suit brought by an employee of the Social Security Administration alleging racial discrimination in a denial of promotion. The alleged discrimination occurred prior to February 22, 1972 when Koger initiated the grievance process with a letter to the director of the bureau where he worked. Koger, supra, at 704. No results were produced by the grievance process, and subsequent to the effective date of the 1972 Amendments to Title VII, Koger filed a civil suit under section 717 of the Act, 42 U.S.C. § 2000e-16. The government argued that it was not liable for rules on prac tices in effect prior to the inclusion of the federal government under the terms of the Act. The Fourth Circuit rejected this argument, stating that "Koger's right to be free from racial dis- --T- m i u r See Albemarle Paper Co. v. Moody, supra. - 20- crimination does not depend on the 1972 Act. Executive Order 11478 previously imposed a duty on officials of his department to 18/ promote employees without regard to their race." Id_. at 707. In this situation, the Act simply "provided ... a supplemental remedy for a violation of the existing duty defined by the Order." 19/ Id. at 707. The reasoning in Roger was explicitly adopted in Womack v. Lynn. 504 F.2d 267 (D.C. Cir. 1974) (en banc). Follow ing a per curiam reversal based on Womack, Judge Flannery in Palmer v. Rogers. ___ F. Supp. ___, 10 EPD 5 10,265 (D.D.C. July 11, 1975), awarded back pay under the Act for discrimination com mitted against a federal employee for a period commencing in May 1971, well before the effective date of the 1972 Amendments. The same reasoning applies in the present case, for the plaintiffs right to be free from racial discrimination is not dependent on Title VII. Under the Fourteenth Amendment, the City of Albany has long been under an obligation not to discriminate on the basis of race. As this Court held in its May 6, 1976 decision, jurisdiction to sue in federal court to enforce rights guaranteed by the Fourteenth Amendment lies here under 28 U.S.C. 20/ § 1331. . It is clear therefore that the inclusion of the City of Albany under the Act by the 1972 Amendments simply added a supple mental remedy against discrimination already prohibited on other grounds. This conclusion is borne out by the legislative history relating to the inclusion within the Act of state and local governments. The House report states: The clear intention of the Constitution, embodied in the Thirteenth and Fourteenth Amendments, is to prohibit all forms of discrimination. (cont'd) W Executive Order 11478 became effective August 8, 1969, 3 C.F.R 1969 Comp. 133, 42 USCA § 2000e, note. 19/ Accord, Brown v. GSA, 507 F.2d 1300, 1304-6 (2nd Cir. 1974), aff'd 44 U.S.L.W. 4704 (June 1, 1976). 20/ The right to be free of racial discrimination in municipal employment also exists under 42 U.S.C. §§ 1981, 1983. That right may be enforced by suits brought against the City's officials. Jurisdiction lies under 28 U.S.C. § 1343. - 21- Legislation to implement this aspect of the Four teenth Amendment is long overdue, and the committee believes that an appropriate remedy has been fashioned in the bill. Inclusion of state and local employees among those enjoying the protection of Title VII provides an alternate administrative remedy to the existing prohibition against discrim ination perpetuated "under color of state law" as embodied in the Civil Rights Act of 1871, 42 U.S.C. § 1983. 2 U.. S. Code & Admin. News p. 2154 (1972) (emphasis added) 21/ It is, therefore, clear that the 1972 Amendments were intended to provide an alternate remedial procedure and under "the general rule favoring retrospective application of procedural statutes," 22/ Koger v. Ball, supra, at 707, their effect is retroactive. under 42 U.S.C. § 2000e-5(g) and the case law in the Fifth Circuit, back pay liability accrues from a date two years prior to the filing of a charge with EEOC. See Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1378 (5th Cir. 1974). Consequently, the City's liability for back pay should run from two years prior to April 24, 1972. Respectfully submitted, JACK GREENBERG 0. PETER SHERWOOD 10 Columbus Circle New York, New York 10019 HERBERT E. PHIPPS King & Phipps 502 South Monroe Street Albany, Georgia 31702 Attorneys for Plaintiffs 21/ The House report is cited because the legislation that eventu ally passed was the House bill H.R.1746 in lieu of the Senate bill S.2515. See 1972 U.S. Code Congressional and Administrative News p. 2137. The conference report makes no revision of the meaning of the paragraph quoted from the House report. 22/ See also, Weise v. Syracuse University, 522 F.2d 397 (2nd Cir. 1975) where the court concluded from a review of the legislative history that "Congress intended simply to create a new means for enforcement of preexisting rights." Id. at 411 (footnote omitted). - 22- CERTIFICATE OF SERVICE This is to certify that on this 10th day of June, 1976, I served a copy of the foregoing, Plaintiffs' Proposals for the Handling of Back Pay, proposed Order and Notice, upon the following counsel for defendants by United States mail, postage prepaid: J. Lewis Sapp, Esq. Elarbee, Clark & Paul Coastal States Building Atlanta, Georgia 30303 James V. Davis, Esq. Landau & Davis P. O. Box 128 Atlanta, Georgia 31702 (Zf- Attorney for Plaintiffs - 23-