Johnson v. City of Albany Plaintiffs' Proposals for the Handling of Back Pay

    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 ' ---------

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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).

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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). ---

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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

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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.

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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.

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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.
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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.

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-__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.

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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

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.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

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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.

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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

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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

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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.

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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.

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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.

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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.

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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).

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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

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