Mann v. City of Albany, Georgia Brief of Appellee

    UNITED STATES COURT OF APPEALS 
ELEVENTH CIRCUIT 
NO. 88 - 8468

J. DALE MANN 
Plaintiff-Appellant, 

Cross-Appellee
v.

CITY OF ALBANY, GA.,
A Municipal Corporation, 

Defendant-Appellee, 
Cross-Appellant,

and
WASHINGTON LONG, 

Defendant-Appellee.

On Appeal from the Middle District of Georgia 
No. 85-262-ALB-AMER

BRIEF OF APPELLEE WASHINGTON LONG

There is no categorical preference applicable for 
processing and disposition of this case.

JULIUS LeVONNE CHAMBERS 
RONALD L. ELLIS 
JUDITH REED

99 Hudson Street
16th Floor
New York, NY 10013

CHEVENE B. KING
C. B. King and Associates, P.C. 
502 South Monroe St.
P. 0. Drawer 3468 
Albany, GA 31706 -s

Attorneys for Appellee



CERTIFICATE OF INTERESTED PERSONS
The undersigned, counsel of record for Appellee, pursuant 

to Eleventh Circuit Rule 28-2(B), certifies that the following 
listed parties have an interest in the outcome of this case.

1. Honorable Duross Fitzpatrick, Trial Judge
2. C. Nathan Davis, Attorney for Appellant
3. Southeastern Legal Foundation, Inc., (G. Stephen 

Parker, Robert B. Baker, Jr., William 0. Miller), Attorneys for Appellant
4. J. Dale Mann, Appellant
5. City of Albany, Ga., Appellee
6. Washington Long, Appellee
7. James V. Davis, Thomas S. Chambless, Attorneys for Citv of Albany
8. NAACP Legal Defense & Educational Fund, Inc.(Julius 

LeVonne Chambers, Ronald L. Ellis, Judith Reed); 
Chevene B. King, Jr., Attorneys for Washington Long

RONALD L. ELLIS 
Attorney for Appellee 
Washington Long

STATEMENT REGARDING PREFERENCE
This instant case is not entitled to any preference in 

processing or disposition.
STATEMENT REGARDING ORAL ARGUMENT 

The issues presented by the instant case are amply argued in 
the briefs of the parties, and oral argument is not necessary.

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TABLE OF CONTENTS

Page
Certificate of Interested Persons . . . . . . . . .  i
Statement Regarding Preference............  i
Statement Regarding Oral Argument ............  . . i
Table of Contents................................  ii
Table of Authorities.......................... .. . iii
Statement of Jurisdiction ......................  . i
Statement of the Issue............................  1
Statement of the C a s e ............................  1
Standard of Review................................  3
Summary of Argument ..............................  3
Argument:

I. THE APPELLANT MAY NOT ATTACK INDIVIDUAL 
DECISIONS MADE PURSUANT TO A BONA FIDE 
AFFIRMATIVE ACTION COURT DECREE ........  4

II. THE COURT ORDERED ONE-FOR-ONE PROMOTIONAL
AND HIRING RATIO IS LAWFUL ............  7

Conclusion........................................  13

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TABLE OF AUTHORITIES
Cases: page
Johnson v. City of Albany, 413 F. Supp. 782

(M.D. Ga. 1976) ........................ .. 2, 4, 5, 8
Johnson v. Transportation Agency, 107 S. Ct. 1442

(1987 )............................. .. 3, 7, 8, 9,
Mann v. City of Albany, 687 F. Supp. 583 (MD.

Ga. 1988)......................................  3, 8
Palmer v. Dist. Bd. of Trustees of St. Petersburgs 

Junior College, 748 F.2d 595
(11th Cir. 1984).................... .. 5, 6

Setser v. Novack Investment Co., 657 F.2d 962 
(8th Cir. en banc), cert, denied,454 U. S. 1064 (1981)............................  5

4, 5,
United States v. Paradise, 

480 U. S. 149 (1987) 8 , 10, 11,



I. STATEMENT OF JURISDICTION
This Court has jurisdiction pursuant to 28 U.S.C. §1291.

II. STATEMENT OF THE ISSUE
Whether a court order temporarily requiring a one-black- 

for-one-white remedial promotion ratio is a lawful racial 
preference?

III. STATEMENT OF THE CASE
A. Facts.

This employment discrimination suit is brought by plaintiff 
Dale Mann who was denied a promotion within the Albany Police 
Department in favor of a black police officer, Washington Long. 
Plaintiff Mann is a white male and has been a major with the 
Albany Police Department since 1979. In April of 1985, the
position of Assistant Chief became available and the Albany 
Police Department began soliciting applications to fill the
vacancy. Four individuals applied for the position; three were 
white and one was black. All four were found to be qualified.
On or about April 26, 1985, Washington Long, the black candidate 
was selected for the position.

On June 3, 1985 plaintiff Mann made a written inquiry to the
personnel office requesting information on the procedures used to
select the Assistant Police Chief. The Personnel Director
responded in a letter on or around June 20, 1985,

In response to your letter of June 3, 1985 I have
reviewed the procedures used in the selection of an Assistant Police Chief.
In reaching the selection, the Police Chief was bound

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by the provisions of the above referenced court 
injunction rJohnson v. City of Albany. United States 
District Court, Middle District of Georgia, Civil 
Action No. 1200] Specifically one half of all job 
vacancies must be filled, subject to availability of 
qualified applicants, by hiring or promoting black persons.
Due to the previous selection being white and the fact 
that there was a qualified black person who applied for 
the job, the selection had to be black to comply with 
the provisions of the court injunction. Therefore you 
could not be selected for the position.

The Personnel Director's letter refers to the district
court's decision in Johnson v. City of Albany.. 413 F. Supp. 782
(M.D. Ga. 1976). Johnson was an employment discrimination case
in which black employees of the City of Albany claimed the city
had engaged in employment discrimination in all of its
departments, including the Police Department, in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et
seq. District Court judge Wilbur Owens made a finding of racial
discrimination and issued a permanent injunction. This
injunction provided in part the following:

4. The objective of this order is to correct the 
imbalance in employment that now exists by first 
creating a plan having as a goal the achieving of 
a work force in which the proportion of total
black employees to total white employees viewed, 
(a) overall, (b) by job classification and
description, (c) by department, and (d) by rate of 
pay, is at least equal to the proportion of blacks 
to whites in the working age population as shown 
by the most recent Albany, Georgia, Standard
Metropolitan Area reports of the Bureau of the 
Census. Until that objective is reached the 
defendants subject only to the availability of 
qualified applicants. shall fill at least one- 
half of all job vacancies by hiring or promoting 
black persons. (Emphasis in original).

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B. Course of Proceedings in the Lower Court.
Plaintiff J. Dale Mann filed suit against the City of Albany 

alleging violations of Title VII of the Civil Rights Act of 1964, 
Sections 1981 and 1983 of Title 42, and the Fourteenth Amendment. 
Both plaintiff and the City moved for summary judgment. The 
District Court entered its order granting defendant, City of 
Albany's motion. Mann v. City of Albany. 687 F. Supp. 583 (M.D. 
Ga. 1988). Judgment was entered on that order on June 7, 1988. 
A timely appeal was filed by Dale Mann on July 5, 1988.

In granting Summary Judgment to the City the district court 
held in Mann that the 1976 injunction issued in Johnson 
(including the 50/50 one-black-for-one-white remedial promotion 
ratio) met the requirements for affirmative race conscious relief 
set forth by the Supreme Court in Johnson v. Transportation 
Agency, 107 S. Ct. 1442 (1987) and United States v. Paradise. 480 
U.S. 149 (1987).

STANDARD OF REVIEW
Whether the 1976 permanent injunction issued in Johnson v. 

City of Albany, 413 F. Supp. 782 (M.D. Ga. 1976) meets the legal 
requirements for racial preferences is a question of law. 
Accordingly, the standard of review is whether the district court 
erred as a matter of law, in its ruling on this question.

SUMMARY OF ARGUMENT
The appellant cannot challenge an individual decision 

pursuant to a bona fide affirmative action decree. Because the 
decree was a valid exercise of the district court's remedial

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power, the race-conscious relief is lawful. The district court 
did not err in its conclusion that the court-ordered numerical 
relief in Johnson v. City of Albany. 413 F. Supp. 782 (M.D. Ga.
1976), which requires a 60%/40% white-black allocation of jobs in 
all job categories, and which the City construes as requiring a 
one-fc r-one promotional procedure with regard to single incumbent 
polj . jobs is consistent with the requirements of Title VII, 
Se on 1981 of Title 42, and the equal protection clause of the 
F>- ceenth Amendment. With regard to the standards set forth in 
U. S. v. Paradise. 480 U.S. 149 (1987), the one-for-one ratio is 
clearly narrowly tailored to the purpose of remedying the effects 
of the City's past discrimination.

ARGUMENT
I. THE APPELLANT MAY NOT ATTACK INDIVIDUAL

DECISIONS MADE PURSUANT TO A BONA FIDE 
AFFIRMATIVE ACTION COURT DECREE

The United States suggests that the appellant has been 
prevented from attacking the Johnson decree. Brief for United 
States at 12. This is not accurate and, in fact, not what the 
appellant attempted to do. The appellant's claim is not that the 
decree as a whole is invalid, but only that the decision with 
respect to the Assistant Police Chief position violates his 
individual rights. This the appellant should rightfully be 
prevented from doing. Once a court has ordered appropriate 
affirmative relief, individual decisions are not subject to a 
separate litigation. Such an option would turn a well-reasoned 
decree into a series of skirmishes every time the rights of a

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non-minority were adversely affected by the legitimate remedial 
consideration of race.

The appellant and the United States want to remove race as a 
consideration in the challenged decision. However, the very 
essence of the relief in the court decree is race-conscious 
because that is what the remedy requires:

[In] a reverse discrimination case, where the 
evidence shows that plaintiff's treatment by 
the employer was pursuant to a bona fide 
affirmative action plan, the satisfaction of 
the four part McDonnell test will not 
necessarily show a prima facie violation.
This must follow because a race-conscious 
choice by reason of a remedial affirmative 
action plan is legitimate under Title VII or section 1981.

Setser v._Novack Investment Co. . 657 F.2d 962, 968 (8th Cir. en
banc), cert, denied, 454 U.S. 1064 (1981); Accord Palmer v. nist. 
Bd.— of Trustees of St. Petersburg Junior College. 748 F.2d 595, 
600-601 (11th Cir. 1984).1 The plaintiff can avoid summary 
judgment under these circumstances by showing either that (1) 
some reason other than a remedial reason motivated the employer 
or (2) the plan unreasonably exceeds its remedial purpose, id. 
This the appellant did not do.

1 As this court held in Palmer. 748 F.2d at 600 n.16:
An affirmative action plan is perforce 
designed to result in different treatment 
between whites and blacks until the effect 
of past discrimination has been eradicated. 
The very purpose of the plan is to hire 
qualified blacks until the plan's goals 
have been accomplished, even if innocent 
whites may be affected in the process.

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The appellant and the United States attempt to raise a 
material issue by alleging that the single incumbent situation is 
somehow different. This distinction does not withstand analysis. 
The non-minority applicant in a single incumbent case is in 
essentially the same position as non-selected white applicants in 
multiple vacancy situations. If, for example, there had been 
four vacancies and appellant was the third white candidate, he 
would be similarly non-selected if there were two qualified black 
candidates for the position.

The decision in Palmer is particularly instructive. In that 
case, Palmer had applied for a teaching position with St. 
Petersburg Junior College. Florida's higher education system had 
been found guilty of past discrimination and the state had 
developed an affirmative action plan. The plan required that at 
least one of the four qualified candidates referred for each 
position be black. If no qualified blacks were available, the 
position could be filled only on a temporary, nine-month basis. 
Since no qualified blacks were available when Palmer was 
selected, he was given such a temporary appointment. The next 
year a qualified black applied and was selected over Palmer. 
Palmer challenged the selection as discriminatory. The district 
court granted summary judgment for the defendant board. This 
Court affirmed the district court holding that the board's 
"action was a reasonable means of seeking to remedy past 
discrimination." 748 F.2d at 601.

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II. THE COURT ORDERED ONE-FOR-ONE 
PROMOTIONAL AND HIRING RATIO 
IS LAWFUL.

In granting summary judgment to the City of Albany, the 
district court held that the one-for-one promotional and hiring 
ratio was lawful, as set forth in the 1976 court-ordered 
injunction in Johnson v. City of Albany. 413 F. Supp. 782 (M.D. 
Ga. 1976). The district court examined the plan under the 
standards for affirmative race conscious relief articulated by 
the Supreme Court in both United States v. Paradise. 480 U.S. 149 
(1987) and Johnson v. Transportation Aaencv. 107 S. Ct. 1442 
(1987), and correctly decided the one-for-one remedy satisfied 
these standards.

The Supreme Court in Johnson v. Transportation Agency, 
supra, adopted a two-pronged test in holding that the 
transportation agency's voluntary affirmative action plan was 
lawful. The Supreme Court validated the affirmative action plan 
in Johnson because: (1) it was undertaken to eliminate agency
workforce imbalances in traditionally segregated job categories 
and (2) the plan did not unnecessarily trammel the rights of non­
beneficiary employees nor create an absolute bar to their 
advancement.

It is clear that the court-ordered affirmative action plan
in Johnson v. City of Albany. 413 F. Supp. 782 (M.D. Ga. 1976)
meets the criteria of this two-pronged test. First, with regard 
to the requirement of a manifest imbalance (racial or other) in 
traditionally segregated job categories, this requirement is

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necessarily satisfied by Judge Owens' finding in Johnson that the 
city had engaged in past and present discrimination creating an 
imbalance in employment opportunities for minorities in many city 
departments (including the police department). The district 
court in this case correctly recognized that this requirement was 
satisfied and held that it was bound by that decision. Mann v. 
City of Albany. 687 F. Supp. 583, 587 (M.D. Ga. 1988).

The district court also correctly held that the one-for-one 
promotional and hiring requirement at issue in this case 
satisfies the second prong of the test in Johnson v. 
Transportation Agency since it does not unnecessarily trammel the 
rights of non-minorities.

The rights of non-minority employees are not unnecessarily 
trammeled or burdened because fifty percent of all promotions are 
still available to non-minority employees. Nor is an absolute 
bar to white advancement created. Although non-minority 
promotion may be slowed or delayed as a result of the one-for-one 
ratio, the opportunity for such advancement still exists. The 
fact that the City alternates between minorities and non­
minorities with regard to hiring and promoting into single 
incumbent positions does not change the fact that advancement is 
merely delayed, not permanently halted, in a particular job 
category. Moreover, such delay in advancement is only temporary. 
The one-for-one ratio remains in effect only until the proportion 
of blacks to whites within a job category is at least equal to 
the proportion of blacks to whites in the working age population

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of the Albany, Georgia Standard Metropolitan Area. Permanent 
Injunction order of Judge Owens, §4, Johnson v. City of Albany. 
C.A. No. 1200 (M.O. Ga., 1976). Once such a ratio is achieved 
the one-for-one promotional and hiring requirement ceases.

Such a flexible remedy when applied to a given job 
classification, whether it be a single incumbent position or not, 
is not overly burdensome to the rights of non-minority employees. 
It is true that some individuals may be temporarily halted in 
their advancement because of promotional or hiring ratios. 
However, this fact does not make such ratios unlawful.

The one-for-one promotional and hiring requirement ordered 
by Judge Owens in Johnson v. City of Albany. 413 F. Supp. 782 
(M.D. Ga. 1976), clearly satisfies the requirements of the two­
pronged test established by the Supreme Court in Johnson v.
Transportation_Agency. Additionally, however, this quota also
satisfies the "narrowly tailored" requirements for race-conscious 
affirmative relief articulated by the Supreme Court in United 
States v. Paradise. (1987).

Like Paradise, the instant case also involves a court- 
ordered one-for-one promotional and hiring ratio as an interim 
measure for remedying past discrimination. The Supreme Court 
held that such relief in Paradise did not violate the equal 
protection clause of the Fourteenth Amendment because it served a 
compelling government interest and was narrowly tailored to that 
end. Judge Owens found that the City of Albany had engaged in 
past and continuing discrimination with regard to hiring and

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promotional procedures within its police department. The 
affirmative race conscious relief ordered served the compelling 
interest of remedying the resulting imbalance in the workforce 
and thus eliminating the negative effects of the City's past and 
continuing discrimination.

To determine whether an affirmative action plan is narrowly
tailored several factors are relevant, including

the necessity of the relief and the efficacy of
alternative remedies, the flexibility and duration of 
the relief, including the availability of waiver 
provisions, the relationship of the numerical goals to 
the relevant labor market, and the impact of the relief on the rights of third parties."

United States v. Paradise. 480 U.S. at 171. The plan in the 
present case meets the test articulated in Paradise.

a. The relief was necessary.
The findings made by Judge Owens amply support the need for 

the relief provided. Blacks were not only underrepresented in
upper level positions, they were absent. "Blacks were employed 
only in the lowest paying, non-supervisory, janitorial-laboring 
tYPe of jobs and were paid less than white employees of the same 
job classification." 413 F. Supp. at 789. The possiblility of
Title VII liability did not spur the City on to improving the
employment opportunities of black workers. Neither did a strike 
by black employees. Not even the pendency of the federal court 
case for four years seemed to have a salutory effect on the City. 
The statistical imbalance continued. The need for promoting 
blacks to higher jobs was evident.

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b. No alternate remedies would serve the purpose of the 
relief

Because of the pervasive and longstanding exclusion of 
blacks from positions of authority, it was necessary to promote 
blacks on an expedited basis to achieve some measure of change in 
the marked statistical imbalance in the workforce.

c. The relief is flexible and of limited duration.
The one-for-one promotion provision in this case, like that 

in Paradise. is limited to qualified black candidates and has no 
effect if no such candidates are available. The provision ceases 
when the goal of overall balance is achieved. It is overtly 
designed to redress discrimination and not to maintain racial 
balance. Moreover, the provision does not require the City to 
make promotions, only that the ratio be applied if the City needs 
to promote.

d. The goal is specifically tied to the labor market.
The one-for-one ratio ratio only remains in effect until the 

proportion of blacks to whites within a job category reaches the 
proportion of blacks to whites in the working-age population of 
the city. The appellant does not challenge the general workings 
of the decree, but confines himself to the particular job for 
which he applied.

e. The relief has a diffuse effect on third parties.
The final factor articulated by the court in Paradise is 

the impact of the ordered-relief on the rights of third parties. 
This factor is similar to the Johnson v. Transportation Aaencv. 
94 L.Ed. 2d 615 (1987), requirement that any affirmative action

11



plan adopted by an employer, not unnecessarily trammel the rights 
of non-minorities nor create an absolute bar to their 
advancement. As mentioned previously, the impact on third 
parties from the one-for-one quota ordered by Judge Owens is 
minimally harsh.

Fifty percent of all promotions are open to non-minorities, 
and the positions earmarked for minority promotions are also open 
to whites in the event there are not enough qualified minorities 
to fill them. Additionally, the one-for-one ratio does not 
create an absolute bar to advancement —  even when applied to 
single-incumbent positions. This is because the ratio is 
temporary and may be waived by the city at any time after the 
proportion of blacks to whites in a particular job category 
reaches the requisite level. At most, some innocent individuals 
may be temporarily delayed in their promotional advancement 
within the police department. However, unlike the firing of 
innocent persons —  which can seriously disrupt an individual's 
life —  a temporary delay in promotion is justified in order to 
eliminate the lingering effects of past discrimination.

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CONCLUSION
For the foregoing reasons, the judgment of the district 

court should be affirmed.
Respectfully submitted,

JULIUS LeVONNE CHAMBERS 
RONALD L. ELLIS 
JUDITH REED

99 Hudson Street . 16th Floor
New York, NY10013

CHEVENE B. KING
C. B. King and Associates, P.C. 
502 South Monroe St.
P. 0. Drawer 3468 
Albany, GA 31706

Attorneys for Appellee Long

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p

CERTIFICATE OF SERVICE
I, Ronald L. Ellis, counsel of record for the Appellee,

Washington Long, do hereby certify that I have this day served a
copy of the within Brief of Appellee Washington Long on the
following parties by mailing same in properly addressed envelopes
with sufficient postage affixed to insure delivery

Mr. C. Nathan Davis 
P. 0. Box 672 
Albany, Georgia 31702
James V. Davis, Esq.
Landau, Davis and Farkas, P.C.
P. 0. Box 128 
Albany, Georgia 31702
Thomas S. Chambless, Esq.
Watson, Spence, Lowe & Chambless P. 0. Box 2008 
Albany, Georgia 31702
Southeastern Legal Foundation, Inc. 
c/o Mr. G. Stephen Parker 
2900 Chamblee-Tucker Road Building 4
Atlanta, Georgia 30341
United States Department of Justice 
c/o Mr. Robert J. Delahunty P. 0. Box 66078 
Washington, D.C. 20035-6078

This day of November, 1988

Ronald L. Ellis

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