Lowery v. Circuit City Stores Brief Amicus Curiae in Support of the Plaintiffs-Appellees/Cross-Appellants
Public Court Documents
September 8, 1997
Cite this item
-
Brief Collection, LDF Court Filings. Lowery v. Circuit City Stores Brief Amicus Curiae in Support of the Plaintiffs-Appellees/Cross-Appellants, 1997. b063dcfe-bb9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/67205a00-d3c2-465d-b6fd-670a2d4422c4/lowery-v-circuit-city-stores-brief-amicus-curiae-in-support-of-the-plaintiffs-appelleescross-appellants. Accessed July 01, 2025.
Copied!
No. 85-999
31 n ttje Suprem e C o u rt of tfje Mmteti s ta te d
October Term, 1986
U nited States of A merica, petitioner
v.
P hillip Paradise, Jr., et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
JOINT APPENDIX
Dennis N. Balske, Esquire
400 Washington Avenue
P.O. Box 2087
Montgomery, AL 36101
(Counsel for Respondents
Paradise, et al.)
Edward L. Hardin, Esquire
Hardin & Hollis
1825 Morris Avenue
Birmingham, AL 35203
(Counsel fo r Defendants in
Support o f Petitioner)
James S. Ward
Corley, Moncus, Bynum
& DeBuys
2100 16th Avenue South
Suite 300
Birmingham, AL 35205
(Counsel fo r Defendants/
Intervenors in Support o f
Petitioner)
Charles Fried
Solicitor General
Department o f Justice
Washington, D.C. 20530
(202) 633-2217
PETITION FOR A WRIT OF CERTIORARI
FILED DECEMBER 10, 1985
CERTIORARI GRANTED JULY 7, 1986
INDEX TO JOINT APPENDIX
Document Date Page
1) District Court Docket Sheet-
Civil Action No. 3561-N (Rele
vant Docket Entries)
3/15/84 1
2) Order (enjoining racially dis
criminatory policies and prac
tices and imposing one-for-one
hiring requirement)
2/10/72 23
3) Order (enjoining artificial re
striction of size of state trooper
force)
8/5/72 30
4) Proposed Partial Consent
Decree and Order (entering
decree)
2/16/79 37
5) Agreement of Counsel for the
Parties
2/16/79 46
6) Consent Decree 8/18/81 49
7) Plaintiffs’ Motion to Enforce
the Terms of the February 16,
1979 Partial Consent Decree and
the August 18, 1981 Consent
Decree
4/7/83 58
8) Motion to Intervene 4/15/83 81
9) Amendment to Motion to In
tervene
4/18/83 96
10) Complaint of Intervenors
(♦lodged 4 /1 5 /8 3 ; filed
10/28/83)
4/15/83 98
11) Order (setting motions to en
force and to intervene for hear
ing)
5/3/83 114
12) Order (granting intervention) 10/28/83 116
(i)
11
13)
14)
15)
16)
17)
18)
19)
20)
21)
22)
23)
24)
Document Date
Order (prohibiting use of
defendants’ promotion pro
cedure and directing them to
submit a new promotion plan)
Proposed Promotion Procedure
Order (granting motion to en
force and imposing one-for-one
promotion requirement)
Memorandum Opinion
Order (denying motions to alter
or amend judgment)
Statement of Completion of
Procedure for Promotion to
Rank of Corporal
Motion to Approve Selection
Procedure for Promotion to
Corporal
Response to D efendant
Prescott’s Motion to Approve
Selection Procedure for Promo
tion to Corporal
Plaintiffs’ Response to Defend
ants’ Motion to Approve Selec
tion Procedure for Promotion to
Corporal
Plaintiffs’ Response to In-
tervenor’s Objection to Im
plementation of New Promotion
Procedure
Response to Order
Response of the United States to
Defendants’ Motion to Approve
Selection Procedure
10/28/83
11/10/83
12/15/83
12/15/83
1/13/84
6/18/84
6/18/84
6/28/84
6/29/84
6/29/84
6/29/84
7/2/84
Page
117
125
128
130
138
142
144
146
151
155
157
159
Ill
Document Date Page
25) Order 7/27/84 163
26) Notice of Appeal 8/24/84 165
27) Intervenors Objection to Op
posed Corporal Promotion
9/10/84 168
28) Motion for Stay 10/25/84 171
29) Order 10/25/84 175
30) Order 10/25/84 176
RELEVANT DOCKET ENTRIES
Date
1972
Jan. 3
Jan. 12
Jan. 13
Feb. 2
Feb. 10
NR Proceedings
Complaint filed. Injunctive relief re
quested.
ORDER designating the United States to
appear and participate in all pro
ceedings in this action as a party and
amicus curiae. (Copies mailed to Gor
don Madison, defts. Stanley Frazer
and Walter L. Allen; copies handed to
U.S. Attorney and Morris Dees; copy
also mailed to David Norman.)
Temporary Restraining ORDER. De
fendants temporarily enjoined and
restrained from recruiting, hiring, or
making any commitment to hire any
additional Alabama State troopers un
til this Court can conduct a hearing on
plaintiffs motion for a preliminary in
junction and until this Court can
determine the issued involved. (Copies
mailed to counsel; copy handed to
U.S. Attorney’s secretary; copies
delivered to Marshal for service on
defts.)
Defendants’ answer to complaint.
ORDER/(l) denying defendants’ motion
to dismiss; (2) enjoining defendants
John S. Frazer, as Director, Ala. Per
sonnel Dept, and Walter L. Allen, as
Director, Ala. Department of Public
Safety, their agents, officers, etc.
from engaging in any employment
practices, including recruitment, ex-
(1 )
2
Date NR Proceedings
amination, appointment, training,
promotion, retention or any other per
sonnel action for the purpose or with
the effect of discriminating against
any employee, or actual or potential
applicant for employment on the
ground of race or color; (3) enjoining
defendants from failing to hire and
permanently employ after the proba
tionary period 1 Negro trooper for
each white trooper hired until approx
imately 25 percent of the Ala. state
trooper force is comprised of Negroes;
(4) enjoining defendants from con
ducting any training courses for the
purpose of training new troopers until
the groups to be given said training
courses are comprised of approx
imately 25 percent black trooper can
didates; (5) enjoining defendants from
failing to hire supporting personnel
for the Dept, of Public Safety in the
ratio of 1 Negro for each white until
approximately 25 percent of the sup
porting personnel are black; (6)
abrogating eligible and promotional
registers heretofore used for the pur
pose of hiring troopers to the extent
necessary to comply with this decree;
(7) requiring defendants to assign
employees on the basis of their train
ing and ability, without regard to race.
Defts. shall advise the public in all
advertisements and announcements
that they will appoint and employ per-
3
Date
Mar. 7
NR Proceedings
sons on an equal opportunity, merit
basis, without discrimination on the
ground of race or color. Defts. shall
adopt and implement a program of
recruitment and advertising which will
fully advise the Negro citizens of the
State of Ala. of the employment op
portunities now available to them with
the Ala. Dept, of Public Safety. No
commitments of employment given by
either of the defts. or any of their
agents to any applicant or potential
applicant, short of actual hiring prior
to 1/13/72, the date the temporary
restraining order was entered in this
case, shall be given any priority over
the hiring ratio set out in decree.
Defendants to file within 90 days from
this date a written report setting forth
in detail the efforts which have been
undertaken to recruit and hire black
applicants. Costs taxed against
defendants in this case. Jurisdiction
retained. AMENDMENT FILED
8/5/75 and 2/16/79.
Defendants’ notice of appeal to the U.S.
Court of Appeals, Fifth Circuit from
the order entered in this Court
2/10/72. (Copies of notice mailed to
Morris Dees and Joseph J. Levin, Jr.;
U.S. Attorney; Edward W. Wads
worth, Clerk, U.S. Court of Appeals;
David L. Norman.)
4
Date
1973
Jan. 5
1974
Apr. 22
May 15
1975
Aug. 5
ORDER that record in this case be sup
plemented to include all evidence
received in case of U.S. v. Frazer,
Civil Action No. 2709-N inter
rogatories and answers, depositions
and stipulations of the parties filed in
this case since Nov. 12, 1973, and a
copy of this order. Attorneys for U.S.
ordered to file with Clerk of CCA
within 7 days all evidence received by
this Court in Civil Action No.
2709 —N; Clerk ordered to forward
forthwith to Clerk of CCA, the other
supplemental materials. (Copies
mailed to counsel.)
Plaintiffs’ motion for further relief. (Re
ferred to Judge Johnson)
JUDGMENT of U.S. Court of Appeals
(issued as mandate 5/13/74). Judg
ment of Judgment of district court af
firmed; defendant-appellant to pay
plaintiff, intervenor-appellee, and
plaintiff and amicus curiae-appellee
costs on appeal. Certified copy of
opinion attached.
41 ORDER denying plaintiffs’ motion for
further relief insofar as the motion
seeks modification of the terms of the
Court’s order of 2/10/72; further
ordered (1) denying Governor George
C. Wallace’s motion to be dismissed as
a party defendant; (2) enjoining
defendants George C. Wallace, John
NR Proceedings
5
Date NR Proceedings
S. Frazer, E. C. Dothard, their agents,
officers, successors in office,
employees and all persons acting in
concert or participation with them
from taking any action or failing to
take any action, which action or inac
tion results in the artificial restriction
of the size of the Alabama state
trooper force; (3) continuing the mo
tion for further relief filed 4/22/74,
insofar as it seeks an adjudication of
the validity of the employment criteria
and tests of the Alabama Department
of Public Safety until further order of
the Court; (4) denying defendants’
motion for “Modification and/or
Reconsideration of Certain Findings
in the Court’s Order of January 5,
1974” and (5) directing defendants to
file with this Court on or before
1/20/76, a comprehensive report
reflecting as of 1/1/76, the number of
troopers by race, the number of sup
port personnel by race, the number of
troopers and support personnel hired
since this order and the number of
troopers hired since this order that
have achieved permanent status.
(Copies mailed to counsel.) AMEND
MENT FILED 2/16/79.
1977
Sept. 23 Plaintiffs’ motion for supplemental re
lief. Referred to Judge Johnson. Ex
hibit attached. SEE ORDER OF
2/16/79.
NR
6
ProceedingsDate
1979
Feb. 16
Feb. 16
Feb. 21
Apr. 13
Apr. 13
1981
Apr. 13
Agreement of counsel for the parties re
lating to promotions to the rank of
corporal. Referred to Judge Johnson.
50 Parties’ proposed partial consent decree
57 (referred to Judge Johnson) and
ORDER approving said partial con
sent decree; directing that said decree
be implemented in accordance
therewith and in accordance with the
orders of the Court of 2/10/72 and
8/5/75. (Copies furnished to counsel.)
58 SEE AMENDMENT FILED 2/16/79.
Defendants’ motion to more fully define
quota relief or, in the alternative, mo
tion for supplemental relief. Referred
to Judge Johnson. Hearing requested.
SEE ORDER OF 2/22/79. SEE
ORDER 4/13/79.
61 MEMORANDUM. (Copies furnished to
counsel.)
65 ORDER denying defendants’ motion to
define quota relief or, in the alter
native, for supplemental relief filed
2/21/79. (Copies furnished to
counsel.)
66 Defendants’ motion for approval to
utilize the Corporal’s Promotional Ex
amination along with a Report of a
Validation Study prepared by the
State of Alabama, Personnel Depart
ment and for a hearing on same.
Referred to Judge Thompson.
7
Date NR
1981
July 20 83
Aug. 18 . 101
1983
Apr. 7 108
Apr. 13 129
Apr. 15 130
Memorandum brief of plaintiffs and
U.S. to the proposed examination for
State Trooper Corporal. Referred to
Judge Thompson.
Consent DECREE and ORDER that the
proposed selection procedure for State
Trooper Corporal, shall be admini
stered and used as set out in this order.
Exhibit attached. (Copies furnished to
counsel.)
Plaintiffs’ motion to enforce the terms of
the 2/16/79 partial consent decree the
8/18/81 consent decree. Exhibits at
tached. Referred to Judge Thompson.
ORDER that the other parties file writ
ten responses to the plaintiffs’ 4/?????
motion to enforce the terms of the
2/16/79, partial consent decree and
8/18/81, consent decree. If any of the
parties desires to engage in dis??? to
present evidence, or for the court to
set a briefing schedule on the motion,
the party must request the same in
writing by 4/29/83; otherwise motion
and any responses thereto shall be
deemed under submission as of
4/29/83. (Copies mailed to counsel;
copy furnished to U.S. Attorney.)
Motion of V. E. McClellan, William M.
Bailey, D. B. Mansell and Dan Daven
port; intervene. Exhibits attached.
Referred to Judge Thompson.
Proceedings
8
Date
Apr. 18
Apr. 18
Apr. 26
Apr. 26
Apr. 26
Apr. 26
Apr. 26
Apr. 26
Apr. 29
May 2
NR Proceedings
145 Amendment to motion to intervene of
V. E. McClellan, William M. Bailey,
D. Mansell and Dan Davenport.
Referred to Judge Thompson.
147 ORDER setting the motion to intervene
filed 4/15/83, for submission, without
oral agrument, on 4/29/83; DIRECT
ING the movants for intervention to
file their brief and any evidentiary
materials by 4/22/83; DIRECTING
the other parties to respond by
4/29/83. (Copies mailed to counsel;
copy furnished to U. S. Attorney.)
150 Memorandum of applicants for inter
vention in support of motion to in
tervene.
166 Affidavit of Dan Davenport.
170 Affidavit of V. E. McClellan.
174 Affidavit of D. B. Mansell.
178 Affidavit of William M. Bailey.
182 Motion of applicants for intervention
for evidentiary hearing or in the alter
native request for oral argument.
Referred to Judge Thompson.
184 United States’ response to motion of
V. E. McClellan, et al. to intervene.
Referred to Judge Thompson.
191 Defendants’ response to plaintiffs’
motion to enforce the terms of the
2/16/79 partial consent decree and the
8/18/81 consent decree. Referred to
Judge Thompson.
9
May 6
May 12
June 1
Oct. 28
Date
May 5
Oct. 28
NR Proceedings
195 Response of the U.S. to plaintiffs’ mo
tion to enforce decrees.
269 Plaintiffs’ response to motion to inter
vene and defendants’ request for
discovery. Referred to Judge Thomp
son.
282 Applicants for intervention file ob
jection and response to 5/3/83 order.
Referred to Judge Thompson.
290 Defendants’ response to plaintiffs’ mo
tion to enforce consent decrees. Re
ferred to Judge Thompson.
309 ORDER granting 4/15/83 motion to
intervene filed by McClellan, Bailey,
Manson and Davenport, to the extent
that the movants may participate in
these proceedings on a prospective
basis only and may not challenge
previously entered orders, judgments,
and decrees since intervention is un
timely as to these denying motion in
all other respects. (Copies mailed to
counsel and furnished to U.S. At
torney’s office.)
311 ORDER (1) that the plaintiffs’ 4/7/83
motion to enforce the terms of the
2/???? partial consent decree and the
8/18/81 consent decree, be and it is
hereby granted to the extent hereafter
set forth; (2) that it is hereby declared
the defendants’ selection procedure
for promotion to corporal has an
adverse racial impact and that said
selection procedure may not be used
10
Date
Oct. 28
Nov. 3
Nov. 10
NR Proceedings
by the defendants for promotion; (3)
that on or before 11/10/83, the de
fendants file with the court a plan to
promote to corporal, from qualified
candidates at least 15 persons in a
manner that will not have an adverse
racial impact; (4) that on or before
11/18/83, the plaintiffs, the United
States and the defendant-intervenors
may file any objections and counter
proposals; (5) if by 11/25/83, the
plaintiffs, the United States, and the
defendants have filed a promotion
plan agreed to by all said parties, the
issue of corporal promotions shall be
deemed submitted for resolution by
the court; and (6) if the plaintiffs, the
United States and the defendants file
an agreed-to promotion plan, the
defendant-intervenors are allowed 7
days from the date of filing to file any
objections to the plan. (Copies mailed
to counsel; furnished to U.S. At
torney.)
320 Complaint in intervention of McClellan,
Bailey, Mansell and Davenport.
332 Intervenors’ motion to amend or to
clarify order allowing intervention.
Referred to Judge Thompson.
344 Defendant State of Alabama Depart
ment of Public Safety’s motion for
reconsideration. Exhibits A and B At
tached. Referred to Judge Thompson.
11
Nov. 10 359
Nov. 14 365
Nov. 17 382
Nov. 17 420
Nov. 18 423
Nov. 21 437
Nov. 28 441
Nov. 28 444
Nov. 28 450
Date NR
Nov. 10 356
Proceedings
Defendant State of Alabama Depart
ment of Public Safety’s proposed pro
motion procedure. Referred to Judge
Thompson.
Defendant State of Alabama Personnel
Department’s response to 10/28/83
order to submit a plan to promote to
Corporal from qualified candidates.
Referred to Judge Thompson.
Defendant Department of Public
Safety’s response to defendant-inter-
venor’s motion to amend or to clarify
order allowing intervention.
Plaintiffs’ response to defendants’ pro
posed promotion procedure Exhibits
A & B attached. Referred to Judge
Thompson.
Plaintiffs’ response to intervenors’ mo
tion to amend.
Response of the United States of defend
ants’ proposed promotion procedure.
Response of the United States to inter
venors’ motion to amend or clarify
order allowing intervention.
Defendant-Intervenors’ response to
order of 11/4/83. Referred to Judge
Thompson.
Defendant-Intervenors’ response to pro
posed promotion procedure of defen
dant Department of Public Safety.
Referred to Judge Thompson.
Response of personnel defendants to
intervenors’ motion. Referred to
Judge Thompson.
12
Date NR Proceedings
Nov. 30 452 ORDER denying defendants’ motion of
10/19/83; denying defendants’
11/10/83 motion for reconsideration;
granting the U.S.’s motion for leave to
file a response to proposed protective
order; granting defendants’ 10/19/83
motion for protective order as further
set out in order. (Copies mailed to
counsel.)
Dec. 7 454 ORDER (entered 12/8/83) vacating the
11/30/83 order and entering this order
in its place. ORDERED that the
defendants’ 10/19/83, motion to allow
administration of entry-level test be
denied; that the defendants’ 11/10/83
motion for reconsideration be denied
and that the United States’ 11/16/83,
motion for leave to file response to
proposed protective order be granted;
that the defendants’ 10/19/83 motion
for protective order be granted; that
counsel for the plaintiffs, the U.S.,
and defendant-intervenors shall notify
the entry-level examination or permit
the examination to be used or seen by
anyone except in connection with this
lawsuit; and that said counsel shall
make any use or distribution of the ex
amination designed to or having the
probable effect of getting into the
hand of those who may take the ex
amination. (Copies mailed to
counsel.)
13
Date
Dec. 7
Dec. 9
Dec. 15
Dec. 15
NR Proceedings
456 Semi-annual report of the State of
Alabama of persons employed by the
State; filed by plaintiff. Referred to
Judge Thompson.
473 ORDER granting the motion of
defendant-intervenors, filed 11/3/83,
to amend or clarify order, with leave
to the defendant-intervenors to file ap
propriate motion for class certifica
tion pursuant to Fed. R. Civ. P. 23.
(Copies mailed to counsel.)
474 MEMORANDUM OPINION.
482 ORDER (1) that the plaintiffs’ 4/7/83
motion to enforce the terms of the
2/16/?? partial consent decree and
8/18/81 consent decree be granted to
the extent hereafter set forth; (2) that
the defendants and their agents and
employees and each is hereby en
joined and restrained from failing to
promote from this day forward, for
each white trooper promoted to a
higher rank, one black trooper to the
same rank, if there is a black trooper
objectively qualified to be promoted
to the rank; (3) that the promotion re
quirement shall remain in effect as to
each trooper rank above the entry-
level rank until either approximately
25% of the rank is black or the
defendants have developed and im
plemented a promotion plan for the
rank which meets the prior orders and
14
Date
Dec. 23
Dec. 27
Dec. 27
Dec. 27
NR Proceedings
decrees of the court and all other rele
vant legal requirements; (4) that
within 35 days from the date of this
order the defendants shall submit to
the court for the approval a schedule
for the development of promotion
procedures for all ranks above the
entry-level position; (5) that the plain
tiff be allowed 21 days from this date
to file a request for interim attorney
??? and (6) that all other relief re
quested by the plaintiffs in their mo
tion not specifically granted be denied.
(Copies furnished U.S. Attorney; mail
remaining counsel.)
487 The United States’ motion to alter or
amend judgment of 12/15/83. Re
ferred to Judge Thompson.
492 Defendants’ motion to alter or amend
judgment of 12/15/83 and to stay
order, and request for hearing. Re
ferred to Judge Thompson.
503 Motion of the defendant-intervenors to
alter or amend the judgment of
12/15/83 and to stay its enforcement.
Affidavit of William P. Cobb, II at
tached. Referred to Judge Thompson.
509 Defendant Personnel Director of the
State of Alabama’s motion for recon
sideration of the court’s order of
12/15/83. Referred to Judge Thomp
son.
15
Date
Dec. 30
Dec. 30
1984
Jan. 6
Jan. 6
Jan. 6
Jan. 13
NR Proceedings
557 Defendant-Intervenors’ supplement or
amendment to motion to alter or
amend judgment of 12/15/83 and to
stay its enforcement. Referred to
Judge Thompson.
562 Plaintiffs’ response to defendants’ mo
tions for reconsideration, to alter or
remand judgment, and to stay en
forcement of the 12/15/83 order.
569 Defendant Alabama Department of
Public Safety’s response to 12/15/83
court order.
571 The United States’ motion for stay of
this court’s order of 12/15/83. Re
ferred to Judge Thompson.
574 Defendant-intervenors’ motion for stay
of enforcement of the Order rendered
12/15/83. Referred to Judge Thomp
son.
578 ORDER that the following motions be
and they are hereby denied:
defendant-intervenors’ 1/6/84 motion
to stay; to the United States’ 1/6/84
motion to stay defendant Prescott, et
al.’s 12/27/83 motion to alter or
amend judgment and ??? of order;
defendant Alabama Personnel Direc
tor’s 12/27/83 motion for reconsidera
tion; defendant-intervenors’ 12/27
and 12/30/83 motions to alter or
amend and to stay enforcement; and
16
Date
Jan. 19
Jan. 23
Jan. 24
the United States’ 12/23/83 motion to
alter or amend judgment. (Copies fur
nished U.S. Attorney and mailed to
remaining counsel.)
582 Personnel defendant’s response to Court
Order of 12/15/83
585 ORDER directing all parties to show
cause within 14 days from this date as
to why the schedule for development
of promotion procedures for all ranks
above entry-level filed 1/6/84, should
not be approved by the court. (Copies
furnished to U.S. Attorney; mailed to
remaining counsel.)
595 Defendant, the Department of Public
Safety’s Notice of Appeal to the U.S.
Court of Appeals, 11th Circuit from
the Order granting plaintiffs’ 4/7/83
motion in part and enjoining and re
straining defendants from failing to
promote one black trooper for each
white trooper promoted to a higher
rank entered 12/15/83, and all other
orders relating thereto, and the Order
denying all motions filed by defendants
to amend, alter, or stay the 12/15/83
order entered 1/13/84. [Copies mailed
to: John Carroll, Dennis Balske, Cyn
thia Drabek, Charles Graddick,
Richard Meadows, Rosa Davis, Ed
ward L. Hardin, Jr., Ray Acton, Ken
Wallis, James S. Ward-furnished to
Judge Thompson, John Bell & W.H.
NR Proceedings
17
Harris, J r .—certified to: Clerk,
USCA w/docket entries —appeal in
formation sheet furnished Edward L.
Hardin, Jr.
Jan. 27 599 Defendants-Intervenors, V.E. Mc
Clellan, William M. Bailey, D.B.
Mansell and Dan Davenport’s Notice
of Appeal to the U.S. Court of Ap
peals, 11th Circuit from the Order
entered 12/15/83 granting plaintiffs’
motion to enforce the terms of
2/16/79 partial consent decree and the
8/18/81 consent decree and further
enjoining and restraining the defend
ants from failing to promote from
12/15/83, forward, for each white
trooper promoted to a high rank, one
black trooper to the same rank, if
there is a black trooper qualified to be
promoted to the rank, until approx
imately 25% of all rank are black, and
from the Order denying these defend
ants’ motion to alter, amend or stay
the 12/15/83 Order entered 1/13/84.
[Copies mailed to: John Carroll, Den
nis Balske, Cynthia Drabek, Charles
Graddick, Richard Meadows, Rosa
Davis, Edward L. Hardin, Jr., Ray
Acton, Ken Wallis, James S.
Ward —furnished to: Judge Thomp
son, John Bell & W.H. Harris,
J r .— certified to Clerk, USCA
w/docket entries —appeal information
sheet furnished James S. Ward.]
Date NR Proceedings
18
Date NR Proceedings
Feb. 3 603 Plaintiff United States of America’s re
sponse to schedule for development of
promotion procedures.
Feb. 6 610 Intervenors’ response to the order of
1/23/84. Referred to Judge Thomp
son.
Feb. 8 627 ORDER (1) that the schedule for devel
opment of promotion procedures for
all above entry-level, filed 2/6/84, by
defendant Department of Public Safe
ty adopted 1/19/84 by defendant Per
sonnel Department, be approved; and
that defendants be and they are hereby
DIRECTED to develop and submit to
the promotion procedures in accor
dance with said schedule; (2) that
defendant intervenors’ 2/6/84 motion
for temporary retention of record in
district be and it is hereby granted; (3)
that the plaintiffs’ 2/6/84 motion for
to dismiss, etc., be and it is hereby
granted; and that the plaintiffs’ mo
tion for order to enforce consent
decree, etc., and motion for pre
liminary injunction be and they are
dismissed; and (4) that the plaintiffs’
2/6/84 supplemental motion for in
terim attorney fees, be set for submis
sion, with oral argument, on 2/17/84.
Any briefs, evidentiary materials, and
request for a hearing must be filed by
said date. (Copies furnished U.S. At
torney and mailed to remaining
counsel.) (Certified copy mailed to
Clerk, USCA docket entries.)
19
Date
Mar. 13
June 19
June 19
June 27
June 28
June 29
NR Proceedings
3 Plaintiff, United States’ Notice of Ap
peal to the U.S. Court of Appeals,
11th Circuit, from the Order entered
12/15/83; and from the Order entered
1/13/84, denying plaintiffs motion to
alter or amend judgment entered
12/23/83. (Copies mailed to: John
Carroll, Cynthia Drabek, Richard
Meadows, Ray Acton, Ken Wallis,
James S. Ward, Edward L. Hardin,
Jr. —furnished to: Ken Vines along
with appeal information sheet and
W.H. Harris J r .—certified to USCA
w/orders appealed from and docket
entries.)
9 Defendant Prescott’s statement of com
pletion of procedure for promotion to
rank of corporal. Referred to Judge
Thompson.
12 Defendant Prescott’s motion to approve
selection procedure for promotion to
corporal. Referred to Judge Thomp
son.
19 Plaintiff United States’ response to de
fendants’ motion to approve selection
procedure.
27 Defendant-intervenors’ response to de
fendant Prescott’s motion to approve
selection procedure for promotion to
corporal. Referred to Judge Thomp
son.
33 Plaintiffs’ response to Defendants’ mo
tion to approve selection procedure
for promotion to corporal. Referred
to Judge Thompson.
20
Date
June 29
July 2
July 27
Aug. 16
Aug. 16
Aug. 24
NR Proceedings
38 Plaintiffs’ response to intervenors’ ob
jection to implementation of new pro
motion procedure. (Copy of brief at
tached.) Referred to Judge Thomp
son.
101 Defendant Personnel Board of State of
Alabama response to court order of
reference defendant Prescott’s motion
to approve selection procedure for
promotion to corporal. Referred to
Judge Thompson.
115 ORDER that defendants are permitted
to make promotions as requested;
shall make selections from the group
as set forth in order; that the one-for-
one quota shall not apply in this in
stance; that the parties may proceed
with discovery; the court shall conduct
further proceedings to determine if
further review would be necessary.
(Copies mailed to counsel.)
118 Defendant Byron Prescott’s motion to
approve selection procedure for pro
motion to sergeant. Referred to Judge
Thompson.
121 Defendant Byron Prescott’s statement of
completion of procedure for promo
tion to sergeant. Referred to Judge
Thompson.
126 Defendants-Intervenors, V. E. Mc-
Cellan, William M. Bailey, D. B.
Mansell and Dan Davenport’s Notice
of Appeal from the Order entered
21
Date
Sept. 10
Sept. 14
Oct. 25
Oct. 25
Oct. 25
NR Proceedings
7/27/84. (Certified copy to Clerk,
USCA along w/certified copies of
docket entries and order appealed
from; copies mailed to James S. Ward
[furnished appeal information sheet],
Cynthia Drabek, Richard N.
Meadows, Dennis N. Balske, Edward
L. Hardin, Jr., Ray Acton, Ken
Wallis; furnished Ken Vines and
Court Reporter, Dub Harris)
Defendant Prescott’s response to court
order requesting summary of selection
procedure for promotion to sergeant.
Attachments. [SEALED per Court’s
instructions.]
140 Intervenors’ objection to proposed cor
poral promotion.
168 Defendant-intervenors’s motion for stay
of order entered on 7/27/84. Referred
to Judge Thompson.
173 ORDER denying the defendant-inter-
venors’ 10/25/84 motion to stay.
(Copies mailed to counsel; furnished
to John Bell.)
174 ORDER that 1) subject to the limitations
set forth in this order, defendants
Prescott, et al., are permitted to make
promotions to State Trooper Sergeant
from the group of 13 persons
designated “most qualified” pursuant
to the selection procedure described in
defendants’ 9/10/84, submission; 2)
defendant Prescott, et al, shall select
22
Date NR Proceedings
sergeants from the “most qualified”
group in a non-discriminatory manner
and shall provide actual notice of such
promotions to counsel for the parties
not less than 5 working days prior to
the effective date of such promotions
as further set out in this order; 3) that
the one-for-one quota for sergeant
promotions, ordered 12/15/83, shall
not apply to the use of this selection
procedure as described in paragraphs
1 and 2 of this order; 4) that the court
shall conduct further proceedings
upon motion of a party to determine
whether the results of future ad
ministrations of the selection pro
cedure presented by defendants
Prescott, et al., or a similar procedure,
may be used to select State Trooper
Sergeants without further review. Un
til further order of this Court, defend
ants shall make no promotions to
State Trooper Sergeant positions other
than from the group they have iden
tified as the 13 “most qualified” can
didates. (Copies mailed to counsel;
furnished U.S. Attorney.)
Dec. 11 182 Defendant Prescott’s motion to promote
eight lieutenants and three captains.
Referred to Judge Thompson.
Dec. 26 201 ORDER granting the defendants’
12/11/84, motion to promote eight
lieutenants and three captains. (Copies
mailed to counsel; furnished to U.S.
Attorney.)
23
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CIVIL ACTION NO. 3561-N
NAACP, plaintiff, P hillip P aradise, Jr.,
INDIVIDUALLY AND ON BEHALF OF THE CLASS SIMILARLY
SITUATED, INTERVENING PLAINTIFF,
U nited States of A merica, plaintiff and amicus curiae,
v.
W alter L. A llen, as D irector of the A labama
Department of P ublic Safety, his agents, assigns, and
SUCCESSORS IN OFFICE; STANLEY FRAZER, AS PERSONNEL
D irector, P ersonnel Dept., State of A labama, his
AGENTS, ASSIGNS, AND SUCCESSORS IN OFFICE, DEFENDANTS.
Civil Action No. 2709-N
U nited States of A merica by John N. M itchell,
A ttorney General, plaintiff,
v.
John S. Frazer, as D irector, A labama Personnel
D epartment, et al., defendants.
ORDER
This action was originally brought by the National
Association for the Advancement of Colored People on
behalf of its members and all similarly situated Negroes in
the State of Alabama. The complaint alleged that defend
ant Allen as Director of the Alabama Department of
Public Safety and defendant Frazer as Personnel Director
24
of the Alabama Personnel Department have followed a
continuous and pervasive pattern and practice of ex
cluding Negroes from employment in the Department of
Public Safety. At the commencement of the hearing in this
case, a motion by Phillip Paradise, Jr., to intervene as a
party plaintiff, individually and on behalf of the class
similarly situated, was granted.
The Department of Public Safety has two major com
ponents: the state troopers and those secretaries, clerks
and others who comprise the supporting personnel. There
are two other groups closely associated with the depart
ment: the trooper cadets and auxiliary troopers. The
cadets are men too young to qualify as regular troopers
but who receive training from the department toward
becoming troopers. The auxiliary force is a group of un
paid volunteers which performs trooper functions under
department direction in time of emergency and which is
selected on the basis of a recommendation.
Because the agency’s supporting staff is essentially iden
tical to those personnel who were the focus of this Court’s
order in United States v. Frazer, 317 F.Supp. 1079 (M.D.
Ala. 1970) and because these employees are obtained from
the defendant Frazer’s department, this Court has deter
mined that the appropriate relief as to these positions will
be treated as a motion for supplemental relief under the
Frazer decision.
The state troopers, however, are a different matter. This
group is a distinct, specialized force which is unlike the
relatively fungible secretaries and clerks who populate
every office. For example, the troopers have their own
height, weight and age requirements, maintain a separate
testing program and require an oral interview. The trooper
force has an extensive and specialized training program.
25
For these reasons, it is clear that the state trooper aspect of
this case justifies the filing and prosecution of separate
litigation and requires separate adjudication.
The defendants have raised an objection to the
NAACP’s right to bring this suit. It was, however, the un
controverted testimony of the association’s state president,
Mr. Thomas Reed, that some of its members have sought
jobs with the department and have been refused. It is well
established that the NAACP has standing to assert the
rights of its members. NAACP v. Button, 371 U.S. 415,
428 (1963); Louisiana ex rel. Gremillion v. NAACP, 366
U.S. 293, 296 (1961); NAACP v. Alabama ex rel. Patter
son, 357 U.S. 449, 458 (1958). Any standing question in
this case was further obviated by the intervention of plain
tiff Paradise. His testimony at the hearing for a temporary
restraining order was undisputed that he was refused a
trooper application. He contends that the refusal was
racially motivated. Accordingly, defendants’ motion to
dismiss is due to be denied.
Plaintiffs have shown without contradiction that the
defendants have engaged in a blatant and continuous pat
tern and practice of discrimination in hiring in the
Alabama Department of Public Safety, both as to
troopers and supporting personnel. In the thirty-seven-
year history of the patrol there has never been a black
trooper and the only Negroes ever employed by the depart
ment have been nonmerit system laborers. This unex
plained and unexplainable discriminatory conduct by state
officials is unquestionably a violation of the Fourteenth
Amendment. Burton v. Wilmington Parking Authority,
365 U.S. 715 (1961); Brown v. Board o f Education, 347
U.S. 483 (1954); United States v. Frazer, supra.
Under such circumstances as exist in these cases, the
courts have the authority and the duty not only to order an
end to discriminatory practices, but also to correct and
eliminate the present effects of past discrimination.
26
Hutchins v. United States Industries, Inc., 428 F.2d 303,
310 (5th Cir. 1970); Local 53, Asbestos Workers v. Vogler,
407 F.2d 1047, 1052 (5th Cir. 1969). The racial discrimina
tion in this instance has so permeated the Department of
Public Safety’s employment policies that both mandatory
and prohibitory injunctive relief are necessary to end these
discriminatory practices and to make some substantial
progress toward eliminating their effects.
While further discrimination will be enjoined, this
Court is not inclined to order new tests or testing pro-
, cedures. This Court recognizes that Griggs v. Duke Power
Co., 401 U.S. 424 (1971) is authority for the view that if an
employment practice which operates to exclude Negroes is
unrelated to job performance, the practice is prohibited.
Yet there are persuasive reasons for avoiding the imposi
tion of new procedures. First, the Government’s selection
technique expert, John E. Furcon, testified that it would
require a minimum of six months to properly analyze the
job of state trooper and compile proper selection methods.
The plaintiffs’ expert, Dr. Richard S. Barrett, estimated
that the process may take as much as four or five years,
particularly in light of the fact that there are presently no
black troopers. Thus, it would in all likelihood take
several years to implement the selection procedures which
these experts envision.
Second, Dr. Barrett described Mr. Furcon’s cost
estimate of $40,000 for the completion of such an analysis
as perhaps too low. Imposition of such a study would be
an undue burden upon the state. Moreover, in light of the
affirmative relief which this Court will require, primary
concern over the testing procedures is unnecessary. This is
not to say that the state may not undertake some revision
of its selection methods if it desires to do so. In fact, the
testimony reflects that changes are appropriate and
necessary. This Court will simply not order it at this time.
27
This particular aspect of the state trooper case will be
reserved pending receipt of implementation reports to be
filed by the defendants.
Accordingly, it is the ORDER, JUDGMENT and
DECREE of this Court:
I. That defendants’ motion to dismiss be and the same
is hereby denied.
II. That the defendants John S. Frazer, as Director,
Alabama Personnel Department and Walter L. Allen, as
Director, Alabama Department of Public Safety, their
agents, officers, successors in office, employees and all
persons acting in concert or participation with them, be
and they are hereby enjoined from engaging in any
employment practices, including recruitment, examina
tion, appointment, training, promotion, retention or any
other personnel action, for the purpose or with the effect
of discriminating against any employee, or actual or
potential applicant for employment, on the ground of race
or color.
III. It is further ORDERED that the defendants be
and they are each hereby enjoined from failing to hire and
permanently employ after the probationary period, one
Negro trooper for each white trooper hired until approx
imately twenty-five (25) percent of the Alabama state
trooper force is comprised of Negroes. This injunction ap
plies to the cadet and auxiliary troopers as well as to the
regular troopers. It shall be the responsibility of the
Department of Public Safety and the Personnel Depart
ment to find and hire the necessary qualified black
troopers.
IV. It is further ORDERED that the defendants be
and they are hereby enjoined from conducting any train
ing courses for the purpose of training new troopers until
28
the groups to be given said training courses are comprised
of approximately twenty-five (25) percent black trooper
candidates.
V. It is further ORDERED that the defendants be and
they are each hereby permanently enjoined from failing to
hire supporting personnel for the Department of Public
Safety in the ratio of one Negro for each white until ap
proximately twenty-five (25) percent of the supporting
personnel are black. The decree in United States v. Frazer,
317 F.Supp. 1079 (M.D. Ala. 1970) is hereby amended in
sofar as the Department of Public Safety’s employment
practices are concerned.
VI. It is further ORDERED that eligible and promo
tional registers heretofore used for the purpose of hiring
troopers be and they are hereby abrogated to the extent
necessary to comply with this decree.
VII. It is further ORDERED that:
1. The defendants shall assign employees on the basis
of their training and ability, without regard to race. Negro
employees shall not be assigned to serve exclusively or
predominantly Negro clientele.
2. The defendants shall advise the public in all adver
tisements and announcements that they will appoint and
employ persons on an equal opportunity, merit basis,
without discrimination on the ground of race or color. In
such public announcements, the defendants shall advise
potential and actual applicants and employees of their
right to be free from discrimination. Said announcements
shall be made throughout the State of Alabama within
thirty days from the date of this order.
3. The defendants shall adopt and implement a pro
gram of recruitment and advertising which will fully ad
vise the Negro citizens of the State of Alabama of the
employment opportunities now available to them with the
29
Alabama Department of Public Safety. The defendants
shall institute regular recruitment visits to predominantly
Negro schools (vocational, high and college) throughout
the State of Alabama, such visits to be made in person by
appropriate officials of the Alabama Department of
Public Safety.
4. No commitments of employment given by either of
the defendants or any of their agents to any applicant or
potential applicant, short of actual hiring prior to January
13, 1972, the date the temporary restraining order was
entered in the state trooper case, shall be given any priority
over the hiring ratio set out in this decree. The present hir
ing lists, compiled as a result of the discriminatory prac
tices, may be used to hire the white troopers, white trooper
cadets and white supporting personnel. New lists,
however, must be compiled and utilized for the black
troopers, black trooper cadets and black supporting per
sonnel.
5. The defendants shall file through their counsel with
this Court within ninety days from the date of this decree a
written report setting forth in detail the efforts which have
been undertaken to recruit and hire black applicants. The
report shall also include the number of vacancies filled
among the state troopers, the auxiliary troopers, the
cadets and the supporting personnel of the Department of
Public Safety during this period and the number of each
race hired into each of these groups.
VIII. It is further ORDERED that the costs of this
proceeding be and they are hereby taxed to the defendants
in Civil Action No. 3561-N, for which execution may
issue.
The Court retains jurisdiction over these cases.
Done, this the 10th day of February, 1972.
[SIGNATUREl___________
United States District Judge
30
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CIVIL ACTION NO. 3561-N
Phillip Paradise, Jr.,
INDIVIDUALLY AND ON BEHALF OF THE CLASS SIMILARLY
SITUATED, PLAINTIFF,
U nited States of A merica, plaintiff and amicus curiae,
v.
E. C. Dothard, as D irector of the A labama
D epartment of Public Safety, etc., et al., defendants.
ORDER
This action was originally brought by the National
Association for the Advancement of Colored People on
behalf of its members and all similarly situated Negroes in
the State of Alabama. In its order of February 10, 1972,
this Court found that the original defendants had “en
gaged in a blatant and continuous pattern and practice of
discrimination in hiring in the Alabama Department of
Public Safety, both as to troopers and supporting person
nel.”1 In order to end these practices and correct their ef
fects, the Court ordered mandatory and prohibitory in
junctive relief. After an interim order of this Court,
entered January 5, 1974, the original order was affirmed
by the Court of Appeals.1 2
1 N A A C P v. Allen, 340 F. Supp. 703, 705 (M.D. Ala. 1972).
2 493 F.2d 614 (5th Cir. 1974).
31
The current phase of the case arises from a motion for
further relief filed by plaintiffs April 22, 1974. A hearing
on this motion was held on September 26, 1974. The hear
ing focused on two principal issues: the allegation that the
defendants had artifically restricted the size of the trooper
force in order to frustrate the Court’s hiring order, and the
problem of “black attrition” in the force —the dispropor
tionate failure of blacks hired to achieve permanent
trooper status.3
The then-Director of the Department of Public Safety
testified at the hearing that at the time of the Court’s 1972
order there was a critical shortage of troopers and that at
least 100 additional troopers were required immediately.
The current Director testified that when he took office the
need for troopers was at least as great as before. In the
1971 session of the Alabama legislature the administration
introduced a bill which would have funded 100 new
trooper positions. The evidence is clear that at the time of
the Court’s hiring order and at all material times thereafter
the responsible state officials recognized the need for
substantially increasing the size of the trooper force.
In the eight years prior to the Court’s 1972 order, the
department had hired on the average 40 troopers per year.
In the three years immediately preceding the order, the
average was over 50. In the two and one-half years follow
ing the Court’s order, approximately 70 new troopers were
hired, of whom 56 were permanently employed. This post
order level of hiring was insufficient to cover normal attri
tion.
3 Plaintiffs’ motion for further relief was directed in part to the
question of validation of the department’s employee selection pro
cedures and tests. By stipulation of the parties, resolution of the
validation issue was continued pending the development of new selec
tion procedures.
32
The Department of Public Safety has two sources of
state funds: unconditional appropriations and appropria
tions conditioned on the state of the general fund and the
approval of the Governor. The evidence reflects that the
department traditionally spends less than its full uncondi
tional appropriation and that in the five years preceding
the 1972 order in this case the approximate average unex
pended amounts in the major budget categories were
these: salaries —$50,000; equipment purchases —$7,200;
other expenses —$121,300. For the fiscal year in which the
hiring order was entered and the following fiscal year, the
approximate average unexpended amounts were these:
salaries —$170,400; equipment purchases —$164,700;
other expenses —$461,700. These unexpended amounts
revert to the general fund and are not recoverable by the
department. These figures establish that the reversions in
each category at least tripled after the entry of the hiring
order and that during those two years the department had
unconditional funds available to cover both the salaries
and ancillary expenses associated with the hiring of addi
tional troopers.4 The evidence further reflects that, con
trary to general state policy, appropriations within the
“salaries” category were, in the years following the 1972
order, shifted from troopers to support personnel.5
On February 10, 1972, the Alabama legislature condi
tionally appropriated 1.25 million dollars to the Depart
ment of Public Safety for fiscal 1971-72 and the same
amount for fiscal 1972-73 —a total of 2.5 million dollars.6
4 The salary reversion for the fiscal year ending September 30, 1974,
was approximately $479,100.
5 From 1964 to 1971, an average of approximately 83 percent of the
department’s salary appropriation was spent on troopers and cadets.
This figure fell to 78 percent in fiscal 1971-72 and 75 percent in fiscal
1972-73.
6 Act No. 254, 1971 Ala. Acts 4519. This is the final, substantially
modified version of the administration’s “hundred trooper bill.”
33
The appropriation Act provided that part of the funds
be used for an across-the-board salary increase, but the
balance could be used in any fashion. The language of the
statute by implication authorized the use of the funds for
the hiring of new troopers. Release of the funds was condi
tioned on the state of the general fund and the approval of
the Governor. The closing balances for fiscal 1971-72 and
1972-73 were approximately $12 million and $17 million.7
None of the conditional appropriation for 1971-72 was
utilized; $785,000 of the second year’s funds were
released.8
The evidence outlined above establishes and this Court
now finds that, at the time of and in the years following
the Court’s 1972 order, the administration and the heads
of the Department of Public Safety perceived a need for
additional troopers —a need characterized as critical; that
there were appropriated and available to the defendants
funds in excess of $3 million, a substantial portion of
which could have been used for salaries and ancillary ex
penses for new troopers; and that this money was not
spent for the critically needed additional troopers but went
unspent or was diverted to other uses. These findings,
when combined with the considerable testimony regarding
the defendants’ reluctance to implement the Court’s
remedial order by placing black troopers on the state’s
highways, necessitate the conclusion that the defendants
7 The State Budget Officer, James V. Jordan, testified that it is
sound fiscal practice to end the fiscal year with approximately a 10
percent “cushion” of unexpended general fund revenues. The evidence
indicates that this cushion would have existed even if the entire $2.5
million had been spent.
8 Mr. Jordan also testified to the percentage of conditionally ap
propriated funds actually released. For 1971-72, the figure was 35 per
cent overall and 0 percent for the department; in 1972-73, 65 percent
overall and 62 percent for the department.
34
have, for the purpose of frustrating or delaying full relief
to the plaintiff class, artificially restricted the size of the
trooper force and the number of new troopers hired.
Between February 10, 1972, and the September 26,
1974, hearing in this case, the Department of Public Safety
hired 40 black troopers, of whom 27 remained on the force
at the time of the hearing.9 During the same period, the
department hired 29 white troopers, all of whom remained
on the force. Evidence was presented at the hearing which
supports a finding that the high attrition rate among
blacks resulted from the selection of other than the best
qualified blacks from the eligibility rosters, some social
and official discrimination against blacks at the trooper
training academy, preferential treatment of whites in some
aspects of training and testing, and discipline of blacks
harsher than that given whites for similar misconduct
while on the force. Most of these incidents of discrimina
tion against new black troopers occurred during the early
phases of the implementation of the Court’s hiring order.
The Court sees no reason at this time to modify the hiring
order in this regard but reiterates and emphasizes the perti
nent portion of that order:
It is further ORDERED that the defendants be and
they are each hereby enjoined from failing to hire and
permanently employ after the probationary period,
one Negro trooper for each white trooper hired until
approximately twenty-five (25) percent of the
Alabama state trooper force is comprised of Negroes.
By order dated August 7, 1974, George C. Wallace,
Governor of the State of Alabama, was made a party
defendant in this case. The Court subsequently denied the
Governor’s motion seeking his dismissal as a defendant. In
9 As of July 16, 1975, the Attorney General for the State of
Alabama advised that the state now has 40 black troopers.
35
his briefs filed in this case, the Governor again questions
the necessity of his inclusion as a defendant. The evidence
presented at the September 26, 1974, hearing demonstrates
clearly that the Governor is a necessary party if the Court’s
remedial order is to be fully implemented. The Governor,
as noted above, has the ultimate authority for releasing
conditionally appropriated funds. In addition, it has been
the practice of the directors of the Department of Public
Safety to consult with the Governor prior to hiring
substantial numbers of new troopers, and in practice the
Governor possesses and sometimes exercises the authority
to deny such requests for additional troopers.
Upon consideration of the findings and conclusions
discussed above, it is ORDERED that the motion for fur
ther relief, filed by plaintiffs April 22, 1974, be and is
hereby denied insofar as the motion seeks modification of
the terms of the Court’s order of February 10, 1972, in this
case.
It is further ORDERED that:
1. Governor George C. Wallace’s motion to be
dismissed as a party defendant be and the same is hereby
denied.
2. Defendants George C. Wallace, as Governor, State
of Alabama; John S. Frazer, as Director, Alabama Per
sonnel Department; and E. C. Dothard, as Director,
Alabama Department of Public Safety; their agents, of
ficers, successors in office, employees, and all persons act
ing in concert or participation with them be and each is
hereby ENJOINED from taking any action, or failing to
take any action, which action or inaction results in the ar
tificial restriction of the size of the Alabama state trooper
force, for the purpose of or which has the effect of delay
ing or frustrating the achievement of the hiring goal
specified in paragraph III of this Court’s order in this case
dated February 10, 1972.
36
3. The motion for further relief filed April 22, 1974,
insofar as it seeks an adjudication of the validity of the
employment criteria and tests of the Alabama Department
of Public Safety, be and is hereby continued until further
order of the Court.
4. Defendants’ motion for “Modification and/or
Reconsideration of Certain Findings in the Court’s Order
of January 5, 1974,” be and the same is hereby denied.
5. Defendants file with the Court on or before
January 20, 1976, a comprehensive report reflecting, as of
January 1, 1976, the number of troopers by race, the
number of support personnel by race, the number of
troopers and support personnel hired since this order and
the number of troopers hired since this order that have
achieved permanent status.
Done, this the 5th day of August, 1975.
[SIGNATURE!___________
United State District Judge
37
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CIVIL ACTION NO. 3561-N
P hillip Paradise, Jr., individually and on behalf of
THE CLASS SIMILARLY SITUATED, PLAINTIFFS,
United States of A merica, plaintiff and amicus curiae,
Clifton Brown, plaintiff-intervenor,
v.
M. L. H ilyer, as D irector of the A labama D epartment
of Public Safety, etc., et al., defendants.
PROPOSAL PARTIAL CONSENT DECREES
Come the parties, plaintiff Phillip Paradise, Jr., in
dividually and on behalf of the class similarly situated,
plaintiff and amicus curiae the United States of America
(hereinafter referred to collectively as “plaintiffs”) and de
fendants, M. L. Hilyer, as Director of the Alabama
Department of Public Safety, his agents, assigns, etc., and
Stanley Frazer, as Director of the Alabama Department of
Personnel, his agents, assigns, etc., and enter into a con
sent agreement as to Plaintiffs’ Motion for Supplemental
Relief as follows:
1. STATEMENT OF PURPOSE
Defendants recognize the continuing effect of the orders
issued by this Court on February 10, 1972 and August 5,
1975. Defendants will have as an objective within the
Department of Public Safety an employment and promo
tion system that is racially neutral. In this respect, defend
ants and their officers, agents and employees, successors
38
and all persons acting in concert with them or any of them,
in the performance of their official functions, agree not to
engage in any act or practice which has a purpose or effect
of unlawfully discriminating against blacks. In addition,
defendants agree not to engage in any act or practice
which discriminates on the basis of race in hiring, promo
tion, upgrading, training, assignment, discharge or other
wise discriminate against any employee of, or any appli
cant, or potential applicant for employment with respect
to compensation, terms and conditions or privileges of
employment because of such individual’s race. Defendants
agree that any time after entry of this partial consent
decree the plaintiffs may apply to this Court for an order
which would enforce the terms of the partial consent
decree or apply for any other relief which may be ap
propriate.
II. NEW DISCIPLINARY REVIEW PROCEDURES
Defendants will distribute the attached Notice of
Disciplinary Review Procedures to all Department
employees of the trooper rank. In this way, all troopers
will be apprised of the availability of procedures for them
to obtain a review of certain disciplinaries contained
within their files, including oral and written counseling,
oral reprimands, written reprimands, suspensions,
transfers and pay raise denials, which said troopers con
tend were the result of racial discrimination. These pro
cedures are fully described in the attached Notice of
Disciplinary Review Procedures and are fully incorporated
herein and agreed to by the parties.
This notice will be distributed to all employees of the
trooper rank no later than thirty (30) days from the date of
this decree. Plaintiffs and defendants will submit names of
the persons they have selected for the Disclipinary Review
Board within thirty (30) days of the date of this decree,
39
and they request the Court to select the third Board
member at its earliest convenience. Board members who
are not members of the Department of Public Safety will
be compensated at a reasonable rate by the Department
for Board service.
III. RACE RELATIONS PROGRAM
In order to further their objective of a racially neutral
employment and promotion system, defendants will
establish a comprehensive Equal Employment Opportuni
ty (EEO) Program. This program will be designed to pro
vide a vehicle for airing grievances concerning allegations
of racially disparate treatment and to further and promote
race relations within the Department. Defendants agree to
appoint an employee of the Department of Public Safety
as the Department-wide EEO officer. This officer will
have responsibility for supervising the Equal Employment
Opportunity Program within the Department and
monitoring Departmental compliance with this and other
court decrees. This officer will also conduct a class or
series of classes concerning race relations for each state
trooper academy class and for each supervisory in-service
training program held by the Department. This officer will
also be responsible for instituting an EEO grievance pro
cedure, which will provide all troopers with access to
specially trained EEO officers when such troopers have
complaints of a racial nature. This grievance procedure
will be implemented as an addition to present grievance
procedures. The Department-wide EEO officers will make
recommendations to the Director concerning resolutions
of these racial grievances.
Defendants also agree to appoint an EEO officer for
each state trooper district in the State and to provide him
with special training in the field of race relations. These
40
district EEO officers will process racial grievances and for
ward them to the Department-wide EEO officer for
resolution, and will promote and further race relations
within each individual district.
Defendants will, within 60 days, publish a comprehen
sive description of the EEO program and distribute it to all
state trooper personnel, along with a letter from the Direc
tor encouraging all personnel to utilize the program.
IV. PROMOTIONS
A. The defendants agree to have as an objective the
utilization of a promotion procedure which is fair to all
applicants and which promotion procedure when used
either for screening or ranking will have little or no
adverse impact upon blacks seeking promotion to corporal
(hereinafter referred to as the “objective” or “above-stated
objective.”) In accordance with that objective defendants
agree to utilize a promotion procedure which is in confor
mity with the 1978 Uniform Guidelines o f Selection Pro
cedures, 43 Fed. Reg. 38290, and which, in addition, when
used either for screening or ranking will have little or no
adverse impact on blacks seeking promotion to corporal.
B. In accordance with the above-stated objective de
fendants agree to develop for the position of corporal a
promotion procedure which (1) would be developed by de
fendants no later than one year from the signing of this
Consent Decree, (2) would be submitted upon completion
of the formulation of the promotion procedure to counsel
for plaintiffs who would have at least 60 days to review the
promotion procedure and would be able to request from
defendants any information relevant to the proposed pro
motion procedure, and (3) would be submitted upon com
pletion of plaintiffs’ review to this court for approval on
the basis of the above-stated objective.
41
In the interim, defendants agree to utilize the state merit
system for all promotions to corporal, during which time
defendants will promote at least three black troopers to
the rank of corporal.
Upon completion of validation of a new procedure for
promotion to corporal, defendants, in accordance with the
above-stated objective, agree to begin validation of a pro
motional procedure for the position of sergeant and, in
turn, for the positions of lieutenant, captain and major.
V. TERMINATIONS
Defendants agree to review all terminations of state
troopers made from August 5, 1975 through March 1,
1979. If the Department finds that any termination
resulted in whole or in part from racial discrimination,
each such person shall be offered re-employment at the
level at which he was terminated, unless such termination
occurred prior to graduation from the trooper Academy,
in which case such person shall be required to complete the
entire Academy training course.
A report of this review will be presented to counsel for
plaintiffs as soon as practicable, but not later than April
15, 1979. All reinstatements will be made by April 15,
1979, with the exception of any individual terminated dur
ing his Academy training, who shall be reinstated at the
next Academy training session. Plaintiffs except from this
portion of the decree with respect to class member Charles
Gregory Potts. Plaintiffs contend that Mr. Potts should be
reinstated irrespective of the review conducted by defen
dants.
42
VI. ATTORNEY FEES AND COSTS
The defendants hereby agree to pay all court costs and
related expenses incurred by plaintiffs, as well as
reasonable attorneys fees to counsel for the plaintiffs.
/ s / Edward L. Hardin, Jr.
Edward L. Hardin, Jr.
Attorney for Defendants
/ s / D ennis N. Balske______
Dennis N. Balske
John L. Carroll
Attorneys for Plaintiffs
/ s / Gerald S. H artman
Gerald S. Hartmann
Attorney for United States
o f America
43
TO: All Department Employees Holding the Rank
of State Trooper
FROM: M. L. Hilyer, Director
NOTICE OF DISCIPLINARY REVIEW PROCEDURES
Judge Frank M. Johnson, Jr. has approved of a new
procedure whereby the Department of Public Safety will
review certain disciplinary actions taken by the Depart
ment against its employees holding the rank of state
trooper, which disciplines were given between August 5,
1975 and March 1, 1979.
All troopers are hereby given permission to review their
201 files. Any trooper who, after reviewing his file, feels
that any discipline given him during this period, including
oral and written counselings, oral and written reprimands,
suspensions, transfers and pay denials, was given him as a
result of racial discrimination, shall give notice thereof to
the Department in writing. This written notice shall
specify the dates and nature of the disciplinary which the
trooper contends was racially motivated, as well as the
name(s) of the Department personnel whose conduct the
trooper contends was racially motivated.
Each claim so presented will then be assigned a date, at
which time each trooper will be given an opportunity to
present his contentions to an impartial review board. This
board will consist of three persons, as follows: one private
citizen chosen by Judge Frank M. Johnson, Jr.; one per
son chosen by the attorneys representing the plaintiff
class; and one person chosen by the Department of Public
Safety. Troopers presenting such claims may, on their
own, obtain an attorney, who will be given an opportunity
to participate in the hearing. The Department may re
spond to such claims through an attorney of its choice.
44
Attorneys for both sides will be afforded an opportunity
to present opening statements, to examine and cross-
examine witnesses, to introduce documentary evidence
and to give closing arguments. Although the hearing will
be conducted in a trial-like manner, formal rules of
evidence will not be followed.
If after hearing both sides, a majority of the Board finds
the claim to be established by a preponderance of the
evidence, any and all records relating to such disciplinaries
shall be removed from all three of said trooper’s personnel
files and given to the trooper. No copies shall be retained
by the Department. If the Board finds that a trooper has
not established his claim, no action will be taken. Neither
side has a right to appeal from the determination of the
Board.
All written request for review in accordance with this
notice must be submitted within sixty (60) days of the date
of this notice. The Department gives its assurance that no
.adverse action will be taken against troopers who utilize
these procedures.
M.L. Hilyer
Date
45
ORDER
Upon consideration of the foregoing proposed partial
consent decree executed and presented by all parties in this
case, and with the specific understanding by this Court
that the orders made and entered herein on February 10,
1972, and August 5, 1975, continue in full force and ef
fect, it is the ORDER, JUDGMENT and DECREE of this
Court that said partial consent decree be and is hereby ap
proved and the parties are hereby ORDERED to imple
ment same in accordance therewith and in accordance with
the orders of this Court of February 10, 1972, and August
5, 1975.
Done, this the 16th day of February, 1979.
[SIGNATURE!_________
United States District Judge
46
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CIVIL ACTION NO. 3561-N
Phillip Paradise, Jr., individually and on behalf of
THE CLASS SIMILARLY SITUATED, PLAINTIFFS,
U nited States of A merica, plaintiff and amicus curiae,
Clifton Brown, plaintiff-intervenor,
v.
M. L. H ilyer, as D irector of the A labama Department
of Public Safety, etc., et al ., defendants.
AGREEMENT OF COUNSEL FOR THE PARTIES
Defendants hereby agree to utilize the following promo
tion procedure for all promotions to the rank of corporal
during the period in which a new promotion procedure is
being validated. Defendants further agree to move to in
corporate this letter into the attached Consent Decree on
March 1, 1979.
1. Defendants will administer a written examination to
all troopers seeking promotion to the rank of corporal as
soon as practicable (the same examination that was given
in 1975).
2. The examination will be considered in conjunction
with other factors, as follows:
a) Examination — 40%
b) Supervisory interviews — 40%
c) Seniority— 10%
d) Last three evaluations—10%
47
3. When these categories are combined, a list of results
will be compiled, a copy of which will be provided to
plaintiffs (this list will include each trooper’s scores in all
four categories).
4. If three or more blacks score in the upper fifty
percentile, at least three blacks will be promoted to cor
poral as described below. If less than three black troopers
score in the upper fifty percentile, no promotions to cor
poral will be made from this list during the interim period,
and defendants will develop an alternate procedure which
will insure the promotion of at least three black troopers
during the interim period.
5. During the interim period, defendants will promote
at least three, but not more than ten, troopers to the rank
of corporal. The actual number of promotions will be
determined by the number of vacancies which open during
the interim period.
6. If four or more blacks score in the upper fifty
percentile, the procedure, will work as follows:
a) The first three vacancies will be filled by blacks
scoring in the upper fifty percentile;
b) The next three available vacancies will be filled by
those with the highest rankings on the list;
c) If a seventh vacancy becomes available, provided
that vacancies four through six were filled by
whites, it will be filled by a fourth black who
scored in the upper fifty percentile; and
48
d) If any other vacancies after the seventh vacancy
become available, they will be filled by the
troopers ranking highest on the list, irrespective of
race.
/s / Edward L. Hardin, Jr,
Edward L. Hardin, Jr.
Attorney for Defendants
/s / D ennis N, Balske______
Dennis N. Balske
John L. Carroll
Attorneys for Plaintiffs
/ s / Gerald S. Hartman
Gerald S. Hartmann
Attorney for United States
o f America
49
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CIVIL ACTION NO. 3561-N
Phillip Paradise, Jr., individually and on behalf of
THE CLASS SIMILARLY SITUATED, PLAINTIFFS,
United States of A merica, plaintiff and amicus curiae,
v.
Jerry Shoemaker, as D irector of the
A labama D epartment of Public Safety, etc., et al.,
DEFENDANTS.
CONSENT DECREE
On February 16, 1979, this Court entered a Partial Con
sent Decee in resolution of certain issues raised in Plain
tiffs’ Motion for Supplemental Relief. Part IV of the Par
tial Consent Decree provides in part as follows:
The defendants agree to have as an objective the
utilization of a promotion procedure which is fair to
all applicants and which promotion procedure when
used either for screening or ranking will have little or
no adverse impact on blacks seeking promotion to
corporal . . . In accordance with that objective de
fendants agree to utilize a promotion procedure
which is in conformity with the 1978 Uniform
Guidelines [on Employee] Selection Procedures, 43
Fed. Reg. 38290, and which, in addition, when used
either for screening or ranking will have little or no
adverse impact on blacks seeking promotion to cor
poral.
Defendants have submitted to plaintiffs Paradise, et al.,
and the United States [hereinafter referred to collectively
as plaintiffs] and to the Court a proposed selection proce
50
dure for State Trooper Corporal positions and a validity
study for the written examination component of that selec
tion procedure. Defendants have presented no validity
evidence in support of the components of the proposed
selection procedure other than the written examination.
Plaintiffs and defendants disagree whether the proposed
selection procedure is in conformity with the Uniform
Guidelines on Employee Selection Procedures, 43 Fed.
Reg. 38290, 28 C.F.R. Sec. 50.14 (1978) [hereinafter,
Uniform Guidelines]. Because the selection procedure has
not yet been administered, the adverse impact of the selec
tion procedure, if any, is not known.
Defendants recognize their obligation under the Partial
Consent Decree to utilize a selection procedure which has
little or no adverse impact on blacks seeking promotion to
corporal. The parties agree that it would be in the best in
terest of all parties to avoid unnecessary litigation and to
put a selection procedure for State Trooper Corporals in
place as soon as possible. Accordingly, the parties have
entered into this Consent Decree governing the use of the
proposed selection procedure for promotion of State
Troopers to State Trooper Corporal positions.
NOW, THEREFORE, IT IS HEREBY ORDERED that
the proposed selection procedure for State Trooper Cor
poral, submitted to this Court May 21, 1981, shall be ad
ministered and used as follows:
1. The proposed selection procedure shall be ad
ministered and scored as set out in defendants’ letter to
plaintiffs and this Court dated May 21, 1981 and in the
proposed selection procedure and validation report ac
companying that letter. Each of the four components of
the procedure shall comprise the percentage of the total
score for the selection procedure that is set out in defend
ants’ May 21, 1981 letter.
2. Any State Trooper with permanent status for at
least 24 months as of October 15, 1981 shall be permitted
to take the written examination for State Trooper Cor
51
poral. It is recognized that the selection procedure pro
vides for a score for length of service such that thirty
months’ service at the time the selection procedure is ad
ministered shall equal seventy points and sixty months’
service (or more) shall equal one hundred points. Accord
ingly, one point more than seventy shall be awarded to
each applicant for each month of service more than thirty
months, up to a maximum of one hundred points.
3. Defendants shall compile a list of candidates for
promotion for State Trooper Corporal positions based
upon the composite numerical scores of applicants on the
selection procedure. In determining eligibility, defendants
may apply the standards for length of service set out in the
proposed selection procedure. Under this Decree, defend
ants shall not be required to promote any State Trooper
who does not have at least 30 months’ service as a State
Trooper at the time of the promotion, provided that the
length of service requirement is applied consistently.
Defendants shall provide a copy of this list, identifying
each applicant by race, to plaintiffs.
4. The list of candidates for promotion shall be
reviewed to determine whether the selection procedure has
an adverse impact against black applicants. Adverse im
pact shall be determined by reference to the Uniform
Guidelines, by comparing the numbers (by race) of ap
plicants with the numbers (by race) of persons passing the
procedure and by comparing the numbers (by race) of ap
plicants with the number (by race) of persons ranking high
enough on the selection procedure to be promoted if pro
motions were made in rank order from the list of eligible
candidates. For purposes of this Decree, “applicants” shall
include all persons who take the written examination for
State Trooper Corporal. Adverse impact shall be deter
mined for each of the following groups of “persons rank
ing high enough on the selection procedure to be promoted
if promotions were made in rank order:” (a) the first eight
52
corporal promotions, which are expected to be awarded as
soon as selections based upon the proposed selection pro
cedure are approved by the Court; (b) all corporal promo
tions expected within one year of the administration of the
selection procedure, based upon the good faith estimate of
the Department of Public Safety; and (c) all corporal pro
motions expected during the life of the list of eligible can
didates, based upon the good faith estimate of the Depart
ment of Public Safety as to the length of time the list will
be used and the Department’s anticipated staffing needs
during that time. Adverse impact shall be determined by
reference to Section 4D of the Uniform Guidelines, supra,
and the answer to question 12 of the Questions and
Answers to Clarify and Provide a Common Interpretation
o f the Uniform Guidelines on Employee Selection Pro
cedures, 44 Fed.Reg. 11996, March 2, 1979.
5. If the selection procedure has little or no adverse
impact against black applicants, selections shall be made
in rank order from the list described in paragraph 2 of this
Decree. Whether or not the selection procedure has “little
or no adverse impact” will be measured by the “four-fifths
rule” set forth in Section 4 D of the Uniform Guidelines,
supra. If the parties cannot agree whether the selection
procedure has an adverse impact, the matter shall be sub
mitted to the Court for resolution. No promotions to State
Trooper Corporal positions shall be made pending resolu
tion of the question of adverse impact.
6. If the parties agree, or the Court finds, that the
selection procedure has an adverse impact, promotions
shall be made in a manner that does not result in adverse
impact for the initial group of promotions or cumulatively
during use of the procedure. Defendants shall submit to
plaintiffs their proposal for making promotions in confor
mity with the Partial Consent Decree and with this Decree.
53
If the parties do not agree on the method for making pro
motions, the matter shall be submitted to the Court for
resolution. No promotions to State Trooper Corporal
positions shall be made until the parties have agreed in
writing or the Court has ruled upon the method to be used
for making promotions with little or no adverse impact.
7. If the selection procedure has an adverse impact
against blacks seeking promotion to corporal, defendants
shall examine the results of each component of the selec
tion procedure to identify the source(s) of the adverse im
pact and shall revise the procedure so as to avoid adverse
impact in the future. Defendants shall provide plaintiffs
with data showing the impact of each component of the
selection procedure and an item-by-item analysis of the
impact of the written test. The parties shall attempt to
agree upon modifications in the selection procedure for
future administrations. If the parties are unable to agree
upon the procedure to be used after the first administra
tion of the selection procedure and the method of using
that procedure, the matter shall be submitted to the Court
for resolution.
ORDERED this 18th day of August, 1981.
[SIGNATURE]___________
United States District Judge
54
AGREED AND CONSENTED TO:
/ s / Cynthia D rabek
Cynthia Drabek
Attorneys for Plaintiff
United States o f America
/s / Dennis N. Balske
Dennis N. Balske
Attorney for plaintiffs
Paradise, et al.
/ s / Leon Kelly, Jr.______
Leon Kelly, Jr.
Attorney for Defendants
55
LAW OFFICE OF
E d w a r d L. H a r d i n , J r ., P.C.
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
1025 NORRIS AVENUE
BIRMINGHAM, AL 35203
(203) 220-2679
May 21, 1981
Hon. John Carroll
Southern Proverty Law Center
1001 S. Hull Street
Montgomery, Alabama 36101
Re: Paradise v. Shoemaker
U.S. District Court of Alabama
Case No. 3561-N * 1
Dear John:
As per the Court’s order of May 16, I am enclosing to
you one copy of each of the following:
1. Proposed Examination of State Trooper Cor
poral;
2. Alabama Merit System Report of Validation
Study State Trooper Corporal;
3. Alabama Department of Public Safety Service
Rating Form;
4. Procedure for Evaluating Length of Service State
Trooper Corporal;
5. Supervisory Promotional Evaluation State
Trooper Corporal Form;
6. Definitions of Evaluation Factors State Trooper
Corporal;
56
7. Promotional Examination Rating Form (Defines
terms used in form described in #5 above);
8. Information and Guides Supervisory Evaluation
State Trooper Corporal.
Our proposed promotional procedure accords the
following weights to the above factors:
1. Written test 60%
2. Length of Service 10%
3. Supervisory Evaluation 20%
4. Service Ratings 10%
The Service Ratings score to be used in the above pro
cedure would be the average of the candidate’s three most
recent service ratings.
It is my understanding that we have agreed that our pro
duction of this material relieves the Defendant of the
obligation to answer the Interrogatories and Request for
Production filed by the Southern Poverty Law Center on
April 16, and that, should you have any questions after
your examination of the material we are producing today,
you will pursue the answers to those questions thru deposi
tions or additional interrogatories. Please inform me im
mediately if I have misunderstood our agreement on this
matter.
Regarding any questions you might have, if you will
convey them to me informally first via telephone or letter,
it may be that I can get them answered for you without the
necessity of formal discovery proceedings, thereby ex
pediting this whole matter.
57
If I can be of further assistance, please feel free to call
me.
Your truly,
/ s / Buddy____________
Leon (Buddy) Kelly, Jr.
LKjr/jws
Enel.
cc: Honorable Myron Thompson
U.S. District Judge
Mr. Tommy Flowers
State of Alabama Personnel Department
58
IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CIVIL ACTION NO. 3561-N
P hillip Paradise, Jr., individually and on behalf of
THE CLASS SIMILARLY SITUATED, PLAINTIFFS,
U nited States of A merica, plaintiff and amicus curiae,
v.
Jerry Shoemaker, as D irector of the
A labama D epartment of P ublic Safety, etc., et al.,
DEFENDANTS.
PLAINTIFFS’ MOTION TO ENFORCE THE TERMS OF
THE FEBRUARY 16, 1979 PARTIAL CONSENT DECREE
AND THE AUGUST 18, 1981 CONSENT DECREE * 1
Plaintiffs, by the undersigned counsel, respectfully
move the Court for an order enforcing the terms of the
February 16, 1979 Partial Consent Decree and the August
18, 1981 Consent Decree. Specifically, plaintiffs seek an
order requiring defendant:
(1) to implement “a promotion procedure which is
fair to all applicants and which promotion procedure
when used either for screening or ranking will have
little or no adverse impact upon blacks seeking pro
motion to corporal.” See Partial Consent Decree of
February 16, 1979, p.4 § IV(A).
(2) to develop and implement a new procedure for
promotion to the positions of sergeant, lieutenant,
captain and major, which will have little or no
adverse impact upon blacks seeking promotion to
these positions. See id. at § B.
59
(3) to promote qualified blacks to the corporal
position at a rate that does not result in adverse im
pact and which is within the spirit of this Court’s
previous orders and the parties’ consent decrees. See
Consent Decree of August 18, 1981, p.4 f 6.
(4) to pay reasonable attorney’s fees to plaintiffs’
counsel in this matter. The following paragraphs
disclose the reasons why this Court should grant
plaintiffs’ request.
A. History of this Litigation
On February 10, 1972, the Court found that the
Alabama Department of Public Safety had “engaged in a
blatant and continuous pattern and practice of discrimina
tion in hiring. . . .” NAACP v. Allen, 340 F.Supp. 703,
705 (M.D.Ala. 1972). The Court ordered defendants to
hire one black trooper for each white trooper hired “until
approximately twenty-five (25) percent of the Alabama
state trooper force is comprised of Negroes.” Id. at 706.
This order was affirmed on appeal and, in 1975, restated
emphatically in granting plaintiffs’ motion for supplemen
tal relief.
On February 16, 1979, a partial consent decree was ap
proved by the Court, following the second reopening of
the case by plaintiffs. This decree required, inter alia, that
defendants institute “a promotion procedure which is in
conformity with the 1978 Uniform Guidelines o f Selection
Procedure, 43 Fed. Reg. 38290, and which, in addition,
when used either for screening or ranking will have little or
no adverse impact on blacks seeking promotion to cor
poral.” See Decree at p.4, § IV(A). It gave defendants one
year to accomplish this objective, after which defendants
were “to begin validation of a promotional procedure for
the position of sergeant and, in turn, for the positions of
lieutenant, captain and major.” Id. § IV(B).
60
On April 9, 1981, the defendants moved the Court to
approve its newly developed “Corporal’s Promotional Ex
amination.” Plaintiffs objected to it on the ground that it
did not conform to the requirements of the Uniform
Guidelines, but in view of the defendants’ expression of an
urgent need for more corporals, eventually entered into
the August 18, 1981 Consent Decree. This Decree permit
ted defendants to utilize the protested promotional pro
cedure, but required that the results by reviewed to deter
mine whether they adversely impacted black applicants
prior to the making of any promotions. The Decree fur
ther provided that if the new procedure adversely im
pacted black candidates: (1) “promotions shall be made in
a manner that does not result in adverse impact;” (2)
“[djeTendants shall submit to plaintiffs their proposal for
making promotions in conformity with the Partial Con
sent Decree and with this Decree;” and (3) “[i]f the parties
do not agree on the method for making promotions, the
matter shall be submitted to the Court for resolution.” See
Consent Decree of August 18, 1981, p.4, 16.
Finally, in the event of adverse impact, the Decree re
quires defendants to “examine the results of each compo
nent of the selection procedure to identify the source(s) of
the adverse impact and . . . revise the procedure so as to
avoid adverse impact in the future.” According to the
Decree, defendants must provide this data to plaintiffs,
whereafter the parties shall attempt to agree upon
modifications. In the event of disagreement, “the matter
shall be submitted to the Court for resolution.” Id. p.5,
17.
B. Factual Developments
The new selection procedure unquestionably adversely
impacted black applicants. Two hundred sixty-two
61
troopers applied for promotion to the rank of corporal.
Black applicants were ranked as follows: 96, 100, 121,
130, 132A, 137, 144, 154, 157, 161, 163, 165, 169, 183,
191, 193, 194, 195, 197, 204, 205, 206, 210, 211, 212, 213,
218, 220, 221, 223, 224, 226, 228, 229, 230, 231, 232, 234,
236, 238, 241, 243, 244, 246, 249, 250, 251, 252, 253, 254,
255, 256, 257, 258, 259, 260, 261, 262. See Promotion
Register, attached hereto as Exhibit 1. Whites held the top
95 positions, whereas blacks held the bottom 14 positions.
Of the 59 blacks who applied, only 4 ranked in the top
half, and they were at the bottom of the top half (#’s 96,
100, 121 and 130).
In apparent recognition of the adverse impact of this
register, defendants have recently offered to promote
black applicants at a rate of 20% (1 of every 5 promotions
will be black).1 Plaintiffs have rejected this offer. Defend
ants have not “revisefd] the procedure so as to avoid
adverse impact in the future” and have not “provide[d]
plaintiffs with data showing the impact of each compo
nent of the selection procedure and an item-by-item
analysis of the impact of the written test.” See August 18,
1981 Decree at p.5, f7.
Thus, no blacks (or whites) have been promoted to cor
poral in the last four years. There is no valid promotion
procedure in place for promotions to corporal, sergeant,
lieutenant, captain or major. Under the terms of the 1979
Partial Consent Decree and the 1981 Consent Decree, this
Court must now decide: (1) what percentage of the forth
coming 18-20 promotions to corporal should be black; (2)
when to require defendants to implement a valid pro
cedure for promotions to corporal; and (3) when to re
quire defendants to implement valid procedures for pro
motions to sergeant, lieutenant, captain and major. 1
1 Defendants stated that they need to promote approximately 18 to
20 troopers to the rank of corporal.
62
C. Plaintiffs’ Position
Plaintiffs submit that blacks should be promoted to cor
poral at the same rate at which they have been hired, 1 for
1, until such time as the defendants implement a valid pro
motional procedure. Such an order will serve two pur
poses: (1) it will encourage defendants to develop a valid
promotional procedure as soon as possible; and (2) it will
help to alleviate the gross underrepresentation of blacks in
the supervisory ranks of the Department.
At the present time there are four black corporals. All
four were promoted in 1979 under the terms of the Partial
Consent Decree. There are 67 corporals. Thus, blacks
comprise 6% of the corporals at this time. Assuming the
Department promotes 20 troopers to the rank of corporal,
blacks will comprise 16% of the corporals if plaintiffs’ 1
for 1 suggestion is implemented, whereas they will only
comprise 9.2% if defendant’s 1 for 5 plan is followed.2
Plaintiffs’ request is much more in line with the Court’s
previous orders than is defendants’ plan. The ultimate goal
of the Court’s orders is a force that is 25% black. At the
present time, according to defendants, the force is approx
imately 22-23% black. However, due to defendants’ reluc
tance to promote its black troopers, all but four of these
troopers hold the lowest trooper rank. If the Department
is ever to be truly integrated, approximately 25% of its
force at every rank should be black. A requirement that
defendants promote 10 black of the next 20 corporals,
thereby raising black representation in the corporal rank
from 6% to 16% is both a reasonable and necessary3 step
to the attainment of this Court’s stated goal.
2 After 20 promotions there will be a total of 87 corporals. Under
Plaintiffs’ plan, there would be 14 black corporals, whereas under
defendants’ plan, only 8 corporals would be black.
3 It would perhaps not be necessary if the defendants had developed
their own valid promotion procedure as required by the 1979 Decree. It
is defendants’ perennial non-compliance that necessitates this action.
63
If the Court has any hesitation to order this relief, it
need look no further than Judge Johnson’s Order and
Memorandum of April 13, 1979. There, the Court rejected
the defendants’ request for an amendment to the original
order changing the requirement for black employment
from 25% of the trooper force to 25% of entry-level
troopers. Judge Johnson’s reasoning fits the instant situa
tion. It is reproduced here with the hope that the Court
will restate it in an order granting plaintiffs’ present re
quest:
In 1972, defendants were not just found guilty of
discriminating against blacks in hiring to entry-level
positions. The Court found that in thirty-seven years
there had never been a black trooper at any rank. One
continuing effect of that discrimination is that, as of
November 1, 1978, out of 232 state troopers at the
rank of corporal or above, there is still not one black.
The quota fashioned by the Court provides an im
petus to promote blacks into those positions. To
focus only on the entry-level positions would be to ig
nore that past discrimination by the Department was
pervasive, that its effects persist, and that they are
manifest. As the Fifth Circuit has recognized, the
order in this case does not seek to grant proportional
representation in public employment to the black
citizens of Alabama. NAACP v. Allen, 493 F.2d at
621. The order in this case is but the necessary remedy
for an intolerable wrong.
It has been four years since Judge Johnson wrote these
words. Yet the only change in the makeup of the Depart
ment was the promotion of four blacks to Corporal as
mandated by the 1979 Partial Consent Decree. Not only
has the Department failed to promote any of its black
troopers, but it had done nothing to insure that its black
troopers will ever play a truly representative role in the
operation of the Department. No valid promotion
64
mechanism has yet been developed by which they can
begin moving from the lowest rank, trooper, toward the
highest rank, major, even though blacks have been
employed in the Department for eleven years.
In order to insure that blacks finally gain the opportuni
ty to move toward positions of responsibility within the
Department, the Court should order defendants: (1) to im
mediately promote 18 to 20 employees to the corporal
position, depending on need, on a 1 for 1 basis; (2) to
develop and implement a valid promotional procedure for
the corporal’s position within one year;4 to develop and
implement valid promotional procedures for sergeant,
lieutenant, captain and major within two years;5 and to
pay plaintiffs’ counsel reasonable attorneys fees for the
prosecution of this action.6
Respectfully submitted,
/s / Dennis N. Balske________
Dennis N. Balske
John L. Carroll
1001 S. Hull Street
P.O. Box 2087
Montgomery, AL 36103-2087
Attorneys for Plaintiffs
4 In order to insure compliance, certain procedural safeguards
should be included, such as open discovery to plaintiffs’ counsel, a
deadline for production of the finished product to plaintiffs’ counsel,
etc. Moreover, the Court should order that all future necessary pro
motions to corporal be made on a 1 for 1 basis until the Court has ap
proved a valid promotional procedure.
5 The procedural safeguards discussed in n.4 should be included,
and the Court should order that beginning two years from the entry of
its order, all promotions to sergeant, lieutenant, captain and major be
made on 1 for 1 basis if a valid procedure for promotions, approved
by the Court, is not in place.
6 Bryon Prescott was recently appointed by Governor Wallace to
replace defendant Shoemaker. His name should be substituted for
that of defendant Shoemaker in future pleadings and orders.
65
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing have been
served upon Ed Hardin and Cynthia Drabek by U.S. first
class mail, postage prepaid, this 7th day of April, 1983.
/s / D ennis N. Balske
Attorney for Plaintiffs
66
State of A labama
Personnel Department
402 State Administrative Building
Montgomery, Alabama 36130-2301
December 30, 1981
MEMORANDUM
TO: Ms. Cynthia Drabek
Mr. Edward L. Hardin
Mr. Dennis Balske
Mr. Frank Ussery
FRANK: Thomas G. Flowers, Chief
Recruitment and Examination
SUBJECT: Enclosed Register
Enclosed for your review is a computer listing of names,
grades, sex/color, and rank of individuals on the promo
tional register for State Trooper Corporal as a result of the
examination administered October 24, 1981, in accord
ance with Judge Thompson’s order.
The sex/color code should be interpreted as follows:
1. White Male
2. White Female
3. Black Male
4. Black Female
5. Other Male
6. Other Female
TGF/brh
Enclosure
Exhibit 1
STATE OF ALABAMA
PERSONNEL DEPARTMENT
EXAMINATION REGISTER CARDS
DECEMBER 30, 1981
Name
Class
Code Grade V.P. Age
Sex &
Color Rank Option
Parsons, Gerald R. 7222 96.79 31 1 001
Johnson, Lindon, C. 7222 96.00 32 1 002
Smith, Jimmie W. 7222 95.79 41 1 003
Cox, James F. 7222 95.77 34 5 004
Cawyer, Larry D. 7222 95.66 38 1 005
Abrett, James H. 7222 95.65 32 1 006
Luther, Curtis W. 7222 95.64 30 1 007
Wolfe, Steven P. 7222 95.61 34 1 008
Hall, Danny B. 7222 95.54 31 1 009
Davis, Puger W. 7222 95.51 40 1 010
Sanderson, Roy L. 7222 95.46 30 1 011
Yates, Joseph L. 7222 95.45 31 1 012
Livingston, Donald L. 7222 95.44 40 1 013
Legg, John M. 7222 95.40 36 1 014
Name
Class
Code Grade
Sumja, Roy G. 7222 95.36
Mansell, Donald B. 7222 95.30
Bailey, William M. 7222 95.20
Kipp, Philip H. Jr. 7222 95.09
Sides, Frederick G. 7222 94.99
Hulak, Michael G. 7222 94.89
Conrad, David J. 7222 94.76
Duncan, Marvin B. 7222 94.62
Kelley, Wilburn L. 7222 94.48
Taylor, Gerald R. 7222 94.48
Cheatham, Tommy W. 7222 94.46
Yance, John E. 7222 94.45
Goree, Donald E. 7222 94.42
Atwell, Donald H. 7222 94.33
Thompson, Harold 7222 94.32
Branum, W. Albert 7222 94.31
Condrey Kenneth H. 7222 94.25
Jordan, Wiley O. 7222 94.19
Woody, Robert A. 7222 94.11
V.P.
Sex &
Age Color Rank
32 1 015
33 1 016
35 1 017
40 1 018
40 1 019
32 1 020
34 1 021
34 1 022
29 1 023
32 1 023
35 1 025
38 1 026
33 1 027
34 1 028
31 1 029
46 1 030
30 1 031
34 1 032
33 1 033
Option
o\
00
Name
Class
Code Grade
Ward, James S. 7222 94.08
Wright, Curtis A. 7222 94.08
Taylor, Thomas G. 7222 94.06
Warlick, Arthur H. 7222 93.98
Scheer, Robert S. 7222 93.92
Pouncey, James E. 7222 93.90
Bell, Jack O. Jr 7222 93.88
McElvaine Cecil A. 7222 93.85
Rhegness, William L. 7222 93.81
Steward, Rober V. 7222 93.78
Smith, Seaborn A. Jr. 7222 93.71
Smith, Richard M. 7222 93.53
Ruye, Marvin J. Ill 7222 93.51
Silveira, Steven H. 7222 93.48
McClellan Victor E. 7222 93.46
Tucker, Donald H. 7222 93.40
Green, Roy R. 7222 93.37
Roberts, Sanders P. 7222 93.36
Strickland, Elree M. 7222 93.32
V.P.
Sex &
Age Color Rank
41 1 034
32 1 034
32 1 036
46 1 037
34 1 038
31 1 039
42 1 040
32 1 041
34 1 042
46 1 043
40 1 044
38 1 045
33 1 046
35 1 047
40 1 048
30 1 049
30 1 050
40 1 051
33 1 052
Option
ONNO
Name
Class
Code Grade
Halcomb, Philip W. 7222 93.30
Brock, Thomas L. 7222 93.28
Yates, Alfred M. 7222 93.23
Neal, William A. 7222 93.24
Davenport, Henry D. 7222 93.23
Galin, Frederick C. 7222 93.20
Carson, Harold L. 7222 93.18
Hamlet, Thomas L. 7222 93.16
Elliott, Jerry W. 7222 93.15
Arrington, Loyd C. 7222 93.12
Small, Gene P. 7222 93.07
Sutton, Cary P. 7222 93.06
Cribbs, Ronnie 7222 93.04
Womack, Williams H. 7222 93.01
Jackson, Bob M. 7222 92.98
Robbins, Kermit V. 7222 92.94
Atwell, Jerry R. 7222 92.90
Reid, Johnny R. 7222 92.85
Fox, Gary L. 7222 92.83
V.P.
Sex &
Age Color Rank
32 1 053
32 1 054
31 1 054
31 1 056
37 1 057
34 1 058
48 1 059
33 1 060
31 1 061
34 1 062
28 1 063
34 1 064
33 1 065
40 1 066
33 1 067
35 1 068
29 1 069
34 1 070
35 1 071
Option
o
Name
Class
Code Grade
Cox, Robert J. 7222 92.82
Johnson, James W. 7222 92.81
Williams, Don A. 7222 92.77
Maschi, Joseph P. 7222 92.72
Tucker, Donald G. 7222 92.65
Kearley, Harry N. 7222 92.60
Bibb, Wiley L. 7222 92.55
Cook, Abner C. 7222 92.54
Brown, Cliffton L. 7222 92.51
Strength, Freddie L. 7222 92.49
Willis, Willie 7222 92.49
Barnett, Michael E. 7222 92.43
Brzezinski, Joseph 7222 92.42
Hassett, George H. 7222 92.35
Gorman, Robert W. 7222 92.32
Harrison, Robert A. 7222 92.31
Odom, Edward L. 7222 92.30
Phelps, William J. 7222 92.27
Peevy, Mark D. 7222 92.24
V.P. Age
Sex &
Color Rank
44 1 072
43 1 073
33 1 074
29 1 075
36 1 076
32 1 077
30 1 078
52 1 079
32 3 080
32 1 081
47 1 081
34 1 083
34 1 084
36 1 085
34 1 086
36 1 087
34 1 088
43 1 089
36 1 089A
Option
-j
Name
Class
Code Grade
(Nottingham, Jerry F. 7222 92.22
Pridmore, Marvin L. 7222 92.17
Slayton, Charles F. 7222 92.13
Williams, Larry 7222 92.12
Callihan, Brent L. 7222 92.11
Hampton, Leon 7222 92.03
Berry, Donald R. Jr. 7222 91.93
Mobley, Richard R. 7222 91.86
Snell, Ralph L. 7222 91.83
Calvin, Roy E. 7222 91.78
Mothershed, Willie E. 7222 91.63
Lee, Fred A. Jr. 7222 91.66
Fant, James S. 7222 91.63
Butts, Timothy P. 7222 91.60
Linder, Joseph L. 7222 91.59
Mize, Noel J. 7222 91.59
Colbert, Walter L. 7222 91.57
Richardson, Bernard 7222 91.48
Yeager, Edward C. 7222 91.44
Wise, Benny L. 7222 91.36
Age
Sex &
Color Rank Option
40 1 090 '
42 1 091
34 1 092
39 1 093
28 1 094
35 3 096
32 1 097
33 1 098
46 1 099
34 3 100
37 1 101
38 1 102
32 1 103
30 1 104
39 1 105
50 1 105
46 1 107
?? 1 108
45 1 109
34 1 110
Name
Class
Code Grade
Blakely, Michael A. 7222 91.31
Hattaway, Howard D. 7222 91.30
Mays, Kenneth N. 7222 91.29
Christenberry, John J. 7222 91.21
Stubes, Waymon E. 7222 91.21
Davidson, Jeffrey N. 7222 91.20
Reeves, Freddie R. 7222 91.17
Green, William F. 7222 91.10
Holmes, Marvette 7222 90.95
Holt, Roger W. 7222 90.92
Kyser, David C. 7222 90.91
Walden, Joseph E. 7222 90.89
Harris, Ronald E. 7222 90.86
Waller, Jack A. 7222 90.83
Mayfield, Charlie C. 7222 90.82
Walden, Carter D. 7222 90.80
Cook, David W. 7222 90.75
Clements, Paul J. 7222 90.71
Golden, John M. 7222 90.71
V.P. Age
Sex &
Color Rank
30 1 111
43 1 112
30 1 113
37 1 114
44 1 114
33 1 116
34 1 117
34 1 118
44 1 119
30 1 120
32 3 121
35 1 122
33 1 123
32 1 124
35 1 125
38 1 126
32 1 127
46 1 128
30 1 128
Option
-jUJ
Name
Class
Code Grade
Smith, Raymon D. 7222 90.70
Flanagan, Elam E. 7222 90.65
Jenkins, Lenon E. 7222 90.61
Isaac, Johnny L. 7222 90.61
Mahaney, Patrick D. 7222 90.57
Lusk, Bobby B. 7222 90.55
West, Charles G. 7222 90.55
Garner, Karen D. 7222 90.51
Leak, George W. 7222 90.41
Means, Arthur Jr. 7222 90.41
Duke, David L. 7222 90.32
Hartzog, Henry B. 7222 90.31
Burnette, James L. 7222 90.25
Thomas, Roy J. 7222 90.25
Hood, James A. 7222 90.23
Dawson, Elbert Jr. 7222 90.14
Adams, Dale W. 7222 90.12
Beasley, Perry A. 7222 90.10
Burgess, Buford R. 7222 90.02
Age
Sex &
Color
28 3
51 1
32 1
31 3
30 1
40 1
34 1
32 1
34 1
38 3
27 1
35 1
34 1
38 1
27 1
34 3
32 1
30 1
47 1
Rank Option
130
131
132
132A
133
134
134
136
137
137
139
140
141
141
143
144
145
146
147
Name
Class
Code Grade
Turner, Jackie P. 7222 90.02
Bowen, Tommy J. 7222 90.00
Olive, William R. 7222 89.96
Brown, Bobby W. 7222 89.90
Blackwood, James W. 7222 89.87
Worthey, Paul E. 7222 89.83
Lawler, Roane T. 7222 89.77
Shannon, Eldon E, 7222 89.75
Stewart, Harold 7222 89.72
Howell, Claudus R. 7222 89.71
Wooten, Billy R. 7222 89.66
Blue Clarence M. Ill 7222 89.62
Anderson, Tyrone 7222 89.57
McCarty, William R. 7222 89.52
Hood, Harvey J. 7222 89.47
Raburn, Willie D. 7222 89.47
Watkins, Cleveland R. 7222 89.45
Dit, Catherine M. 7222 89.44
Bush, Paul W. 7222 87.38
V.P. Age
Sex &
Color Rank
38 1 147
37 1 150
40 1 151
37 1 152
39 1 153
29 3 154
35 1 155
30 1 156
30 3 157
29 1 158
44 1 159
32 1 160
34 3 161
?? 1 162
30 3 163
45 1 163
36 3 165
25 2 166
40 1 167
Option
Name
Class
Code Grade
Grimmett, Elwin D. 7222 89.35
Thomas, Charles E. 7222 89.34
Kirk, Michael E. 7222 89.32
Helms, Robert W. 7222 89.21
Batson, William F. 7222 89.18
Noles, Thurman C. Jr. 7222 89.12
Mason, Bobby G. 7222 89.10
Canterbury, Charles E. 7222 89.04
Griffin, Johnny E. 7222 89.02
Patrick, Lonnie D. 7222 88.98
Bryant, Michael R. 7222 88.97
Lindsey, Norman R. 7222 88.94
Coffey, Lavdid R. 7222 88.87
Harris, James B. 7222 88.86
Paustian, William H. 7222 88.80
Head, Bobby J. 7222 88.77
Passmore, Joseph C. 7222 88.71
Kelley, Roy W. 7222 88.68
Parker, Robert L. 7222 88.60
V.P. Age
Sex &
Color Rank
39 1 168
32 3 169
34 1 170
36 1 171
38 1 172
38 1 173
41 1 174
35 1 175
34 1 176
34 1 177
32 1 178
41 1 179
41 1 180
35 1 181
37 1 182
29 3 183
41 1 184
38 1 185
44 1 186
Option
-jo\
77
G
O
+3cxo
x
G
G
P<
r - oo Os On r-( <N1 m VO r - OO On O ,--- CN m T t moo 00 oo OO On on On ON ON On ON Os On o O O o o O
r—1 ,—H F“H r”H f—i *—( t—1H ’—1 f—H <N CN CN CN CN CN
* S
x o<L)
Cfl U
m •—' m m m m cn m
<u
00 VO t Ĉ *
^ ^ <^
—' G - O G - o o O N O o o r ^ m O G - < o O N C N v o
CL
>
<u
T3
Gl-l
o
r^ m CN <N r - oo NO C" F—H oo Os C n ON r - *0 NO o (Nis) N* m CN CN T—1 »—H »—< q <q r - VO NO q q q m
ON ON OO OO OO* oo oo oo oo oo oo r - r - t" ’ r - r - r - r - r -OO OO 00 00 oo oo 00 oo oo oo oo oo oo oo oo oo oo 00 oo
<l>
T3
O
u u
CD
Ctf
<N <N <N (N (N <N (N <N <N <N CN CN CN (N (N (N CN CN<N (N <N (N <N (N <N (N CN CN CN CN CN CN (N (N (N CN(N fM (N <N (N (N <N (N (N CN CN CN CN CN (N CNj <N CN CNr~ r - r - r - r - r - r - r " r - r - t " r - C" r - r - r - r -
<L)s
Gz
o
G
(X
G
G
C
O
3
< m .2* 5
S 5 o g ^oo ^ <u E
x S3 O .E
O O >—)
^ c a •
oT 2 <BG -33 X)^ (L> o
(L) •*
O T3
C O<U o3 3 ^ O q . - r
| I
X> XJon u.
- o cu •-“ 00 p4
T3 „
£ X-4-» CO
3 3(X CQ
G *
O
X -*—>
c
<
c"o-t-*I-,
3
PQ
W
(/)
ju
TC
G
X
u
T3
O
O .
& -»
3 C
g E3
"7 Q
>n 'll
<u >t/5 >o o
CL, CL,
U
G
G
- 3<u Pc
£ * o$ q
PQ
■♦—»•*-* :<L> hJ
^ <L)Uh >
^ w
PQ
CO
<L>
E* { 6 ^ 9 ^ ax
m S ^ | 5 5 «? .
5 § 0 ^ g J J S s
Name
Class
Code Grade
Herring, Gerard W. 7222 87.05
Jones, Robert W. 7222 87.02
Tapley, John R. 7222 86.97
Price, Lindsey E. 7222 86.92
Taylor, William H. 7222 86.90
Flowers, Archie Jr. 7222 86.79
Palmore, Herbert N. 7222 86.77
Cunningham, Maurice L. 7222 86.72
Rines, David A. 7222 86.66
Pritchett, Luther J. 7222 86.59
Green, Howard A. 7222 86.52
Dean, James E. 7222 86.50
Johnson, Rector Jr. 7222 86.38
Cobb, Larry B. 7222 86.18
White, Willie L. 7222 86.15
Darden, Daniel M. IV 7222 86.06
Smith, Billy E. 7222 86.06
Reid, Andre L. 7222 85.89
White, Willie J. 7222 85.52
V.P. Age
Sex &
Color Rank
29 3 206
31 .1 207
34 1 208
46 1 209
33 3 210
30 3 211
34 3 212
32 3 213
35 1 214
48 1 215
?? 1 216
35 1 217
26 3 218
48 1 219
27 3 220
37 3 221
30 3 221
30 3 223
32 3 224
Option
oo
Name
Class
Code Grade
Lambert, Randolph 7222 85.42
Abrams, Gregory 7222 85.29
Pall, Michel A. 7222 85.21
Taylor, William H. Jr. 7222 85.17
Allen, Zack W. Jr. 7222 84.95
Bonner, Lester, Jr. 7222 84.92
Hughes, John M. 7222 84.67
Berry, Arthur S. 7222 84.54
Maynor, Benny L. 7222 84.45
Stanford, Lannie 7222 84.41
McLeod, Jesse M. Ill 7222 84.13
Johnson, Peter 7222 84.04
Pynes, Ronald D. 7222 84.03
Wright, Nathaniel 7222 83.98
Higgins, Robert L. 7222 83.95
Vardaman, James C. 7222 83.93
Knox, Jim H. 7222 83.34
Day, Robert S. Jr. 7222 83.26
Malls, Clifford W. 7222 83.19
V.P. Age
Sex &
Color Rank
39 1 225
27 3 226
26 1 227
26 3 228
28 3 229
28 3 230
33 3 231
33 3 232
37 1 233
30 3 234
42 1 235
34 3 236
32 1 237
31 3 238
50 1 ' 239
46 1 240
28 3 241
31 1 242
?? • 3 243
Option
VO
Name
Class
Code Grade
Barren, Charles 7222 83.09
Stanton, Nathan L. 7222 82.82
Steele, Gerald 7222 82.77
White, Billy M. 7222 82.57
Crittenden, Bobby L. 7222 82.54
Vaughner, Willie 7222 82.41
Finch, Hubert Jr. 7222 82.34
Marbury, Curtis L. 7222 81.92
Bagby, James A. 7222 81.78
Stallworth, Warren A. 7222 81.48
Ligon, Robert L. 7222 81.40
Jackson, Ira Jr. 7222 80.86
Sewell, Joseph M. 7222 80.74
Tyson, Ernest E. 7222 80.46
Mahomes, Nathan 7222 79.73
Hawkins, William G. 7222 78.73
Montgomery, Isaac L. 7222 77.47
Knox, Richard R. 7222 76.03
Morse, Glenn D. 7222 73.70
V.P. Age
Sex &
Color Rank
36 3 244
33 1 245
32 3 246
37 1 247
36 1 248
32 3 249
29 3 250
41 3 251
33 3 252
28 3 253
36 3 254
31 3 255
25 3 256
34 3 257
27 3 258
44 3 259
38 3 260
26 3 261
29 3 262
Option
ooo
81
IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CIVIL ACTION NO. 3561-N
Phillip Paradise, Jr., individually and on behalf of
THE CLASS SIMILARLY SITUATED, PLAINTIFFS,
United States of A merica, plaintiff and amicus curiae,
v.
Jerry Shoemaker, as D irector of
the A labama D epartment of Public Safety, etc., et al.,
DEFENDANTS.
V. E. McClellan, W illiam M. Bailey, D. B. Mansell
and Dan Davenport, on behalf of themselves and all
OTHERS SIMILARLY SITUATED,
APPLICANTS FOR INTERVENTION
MOTION TO INTERVENE
Come now V. E. McClellan, William M. Bailey, D. B.
Mansell and Dan Davenport, on behalf of themselves and
all others similarly situated, by and through their attorney
of record, and move this Court for leave to intervene as a
matter of right in this cause pursuant to Rule 24(a) of the
Federal Rules of Civil Procedure or permissibly pursuant
to Rule 24(b) of the Federal Rules of Civil Procedure so as
to assert the claims set forth in their complaint, a copy of
which is attached hereto, and as grounds therefor set down
and assign the following, separately and severally:
1. V. E. McClellan, William M. Bailey, D. B. Mansell
and Dan Davenport are citizens of the State of Alabama
and are regular employees holding positions in the classi
82
fied service of the State of Alabama as defined in Code of
Alabama 1975, § 36-26-1, et seq. and who are currently
merit system employees of the Alabama Department of
Public Safety in positions or ranks below that of Cor
poral. They seek to intervene and file a complaint on
behalf of themselves and the following similarly situated
individuals: all those persons who are citizens of the State
of Alabama and who are regular employees holding posi
tions in the classified service of the State of Alabama as
defined in Code of Alabama 1975, § 36-26-1, et seq. and
who are currently merit system employees of the Alabama
Department of Public Safety in positions or ranks below
that of Corporal who have taken the Corporal’s Promo
tional Examination pursuant to the Consent Decree
entered in this cause on August 18, 1981, and who after
taking the same were placed or ranked in terms of eligibili
ty for promotion from one (1) through seventy-nine (79)
on the Corporal Promotional Register which was com
piled thereafter. (Hereinafter referred to as “the class’).
McClellan, Bailey, Mansell and Davenport and the class
described above are all white and took the Corporal’s Pro
motional Examination described above as did all eligible
applicants for the same, whether said applicants were
white or black.
2. McClellan, Bailey, Mansell and Davenport and the
class they represent, although not parties thereto and
although their interests were not adequately considered or
protected thereby, are substantially effected and are in
fact governed in any attempt to be promoted from their
current rank or position to Corporal, including their
eligibility therefor, by the terms and provisions of a partial
consent decree entered in this cause on February 16, 1979,
and a subsequent consent decree entered in this cause on
August 18, 1981, as well as, if granted, either in whole or
in part, the Plaintiffs’ Motion To Enforce The Terms Of
The February 16, 1979, Partial Consent Decree And The
83
August 18, 1981, Consent Decree filed on April 7, 1983, a
copy of which is attached hereto and made a part hereof as
set out in full as exhibit “A”.
3. McClellan, Bailey, Mansell and Davenport and the
class they represent are currently eligible for promotion
from their current or present rank or position to that of
Corporal as the need and number for the same are re
quired by their employer and have successfully passed and
accomplished the requirements of and the Corporal’s Pro
motional Examination described above, as is further
evidenced by the Promotion Register attached as exhibit
one to the April 7, 1983, motion of the Plaintiffs referred
to above.
4. As a result, McClellan, Bailey, Mansell and Daven
port and the class they represent have an interest in the
subject matter of this action and they are so situated that
the disposition of this matter may, as a practical matter,
impair or impede their ability to protect their interests and
therefore they should be permitted to intervene in this ac
tion on the following grounds:
A. That the terms and provisions of the February 16,
1979, partial consent decree and the August 18, 1981, con
sent decree as they relate to Corporal promotion, as well
as the relief sought by the Plaintiffs in their April 7, 1983,
motion attached hereto as exhibit “A,” impede, impair,
contradict, conflict with, limit, abbrogate or otherwise in
terfere with the provisions of Code of Alabama 1975,
§ 36-26-1, et seq., also known as the Merit System Act,
and any rules or regulations promulgated thereunder,
relating to or concerning promotions.
B. That the terms and provisions of the February 16,
1979, partial consent decree and the August 18, 1981, con
sent decree as they relate to Corporal promotion, as well
as the relief sought by the Plaintiffs in their April 7, 1983,
motion attached hereto as exhibit “A”, are unreasonable,
illegal, unconstitutional or against public policy.
84
C. That the terms and provisions of the February 16,
1979, partial consent decree and the August 18, 1981, con
sent decree as they relate to Corporal promotion, as well
as the relief sought by the Plaintifffs in their April 7, 1983,
motion attached hereto as exhibit “A”, unnecessarily tram
mel the interests of McClellan, Bailey, Mansell, Daven
port and the class they represent.
D. That the terms and provisions of the February 16,
1979, partial consent decree and the August 18, 1981, con
sent decree as they relate to Corporal promotion, as well
as the relief sought by the Plaintiffs in their April 7, 1983,
motion attached hereto as exhibit “A”, amount to
unlawful reverse racial discrimination in violation of the
Fourteenth Amendment to the Constitution of the United
States and the violation of rights guaranteed to McClellan,
Bailey, Mansell, Davenport and the class they represent by
42 USCA § 1983.
E. That the terms and provisions of the February 16,
1979, partial consent decree and the August 18, 1981, con
sent decree as they relate to Corporal promotion, as well
as the relief sought by the Plaintiffs in their April 7, 1983,
motion attached hereto as exhibit “A”, violate the rights
guaranteed to McClellan, Bailey, Mansell, Davenport and
the class they represent by 42 USCA § 1981.
F. That the terms and provisions of the February 16,
1979, partial consent decree and the August 18, 1981, con
sent decree as they relate to Corporal promotion, as well
as the relief sought by the Plaintiffs in their April 7, 1983,
motion attached hereto as exhibit “A”, are unreasonable,
unconstitutional, illegal or against public policy in that
there is not sufficient or adequate statistical evidentiary
support concerning the number of black troopers eligible
for promotion to Corporal, in that the various orders and
consent decrees entered in this cause contain detailed pro
visions which reach the objectives of the Plaintiffs’ claims
for relief and in that the provisions and terms of the
85
February 16, 1979, partial consent decree, the August 18,
1981, consent decree and the Plaintiffs’ motion of April 7,
1983, have a harsh impact on innocent third parties who,
despite merit, suffer from the blemish of race, to-wit:
McClellan, Bailey, Mansell, Davenport and the class they
represent.
G. That the terms and provisions of the February 16,
1979, partial consent decree and the August 18, 1981, con
sent decree as they relate to Corporal promotion, as well
as the relief sought by the Plaintiffs in their April 7, 1983,
motion attached hereto as exhibit “A”, are unreasonable,
illegal, unconstitutional or against public policy in that
they substantially interfere and effect a protectable in
terest of McClellan, Bailey, Mansell, Davenport and the
class they represent, to-wit: the right to compete for the
benefits of public employment on the basis of individual
worth and accomplishment, fairly ascertained, without the
influence of irrelevant factors such as race.
H. That the terms and provisions of the February 16,
1979, partial consent decree and the August 18, 1981, con
sent decree as they relate to Corporal promotion, as well
as the relief sought by the Plaintiffs in their April 7, 1983,
motion attached hereto as exhibit “A,” are unreasonable,
illegal, unconstitutional or against public policy in that
they severely impair the career aspirations and promo
tional expectations of McClellan, Bailey, Mansell, Daven
port and the.class they represent.
I. That the terms and provisions of the February 16,
1979, partial consent decree and the August 18, 1981, con
sent decree as they relate to Corporal promotion, as well
as the relief sought by the Plaintiffs in their April 7, 1983,
motion attached hereto as exhibit “A”, bind or may bind
McClellan, Bailey, Mansell, Davenport and the class they
represent without affording them an opportunity to be
heard and present evidence concerning the claims outlined
above.
86
5. The interests of McClellan, Bailey, Mansell, Daven
port and the class they represent are not adequately
represented by the existing parties.
6. The claims of McClellan, Bailey, Mansell, Daven
port and the class they represent and the main action have
questions of law or fact in common and intervention will
not unduly delay or prejudice the adjudication of the
rights of the original parties.
Alternatively, because they are subject to service of
process and because their joinder will not deprive the
Court of jurisdiction over the subject matter of this ac
tion, McClellan, Bailey, Mansell, Davenport and the class
they represent move this Court to enter an Order pursuant
to Rule 19 of the Federal Rules of Civil Procedure joining
them as indispensible parties in that in their absence com
plete relief cannot be accorded among those already par
ties or that they claim an interest relating to the subject of
the action and are so situated that the disposition of the
action in their absence may as a practicable matter impair
or impede their ability to protect that interest or leave any
of the persons already parties subject to a substantial risk
of incurring double, multiple, or otherwise inconsistent
obligations by reason of their claimed interest. In support
of this motion, McClellan, Bailey, Mansell, Davenport
and the class they represent adopt and incorporate herein
by reference all the grounds, separately and severally,
alleged in support of their motion to intervene.
WHEREFORE, PREMISES CONSIDERED, Mc
Clellan, Bailey, Mansell, Davenport and the class they
represent respectfully pray that they be allowed to in
tervene in this proceeding pursuant to either Rule 24(a) or
24(b) of the Federal Rules of Civil Procedure for the
reasons so stated and that the Court permit them to file
their proposed Complaint in Intervention or in the alter
87
native enter an Order joining them as indispensible parties
pursuant to Rule 19 of the Federal Rules of Civil Pro
cedure.
Respectfully submitted
Stuart & Ward
/s / James S. Ward______
James S. Ward
Attorney for Applicants
for Intervention
OF COUNSEL
Stuart & Wood
1933 Montgomery Highway Suite 200
Birmingham, Alabama 35209
939-0276
CERTIFICATE OF SERVICE
I certify that I have served a copy of the above and
foregoing pleading on the Honorable Dennis N. Balske,
P.O. Box 2087, Montgomery, Alabama 36103-2087, the
Honorable Edward L. Hardin, Jr., P.O. Box 1214, Birm
ingham, Alabama 35201 and the Ms. Cynthia Drabek,
Federal Enforcement Section, United States Department
of Justice, Washington, D.C. 20530 by placing a copy of
same in the United States mail, postage prepaid and prop
erly addressed on this the 13th day of April, 1983.
/ s / James S. W ard
Of Counsel
88
IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CIVIL ACTION NO. 3561-N
P hillip Paradise, Jr., individually and on behalf of
THE CLASS SIMILARLY SITUATED, PLAINTIFFS,
U nited States of A merica, plaintiff and amicus curiae,
v.
Jerry Shoemaker, as D irector of
the A labama D epartment of Public Safety, etc., et al.,
DEFENDANTS.
PLAINTIFFS’ MOTION TO ENFORCE THE TERMS OF
THE FEBRUARY 16, 1979 PARTIAL CONSENT DECREE
AND THE AUGUST 18, 1981 CONSENT DECREE
Plaintiffs, by the undersigned counsel, respectfully
move the Court for an order enforcing the terms of the
February 16, 1979 Partial Consent Decree and the August
18, 1981 Consent Decree. Specifically, plaintiffs seek an
order requiring defendant:
(1) to implement “a promotion procedure which is fair
to all applicants and which promotion procedure when
used either for screening or ranking will have little or no
adverse impact upon blacks seeking promotion to cor
poral.” See Partial Consent Decree of February 16, 1979,
p.4 § IV(A).
(2) to develop and implement a new procedure for pro
motion to the positions of sergeant, lieutenant, captain
and major, which will have little or no adverse impact
upon blacks seeking promotion to these positions. See id.
at § B.
89
(3) to promote qualified blacks to the corporal position
at a rate that does not result in adverse impact and which is
within the spirit of this Court’s previous orders and the
parties’ consent decrees. See Consent Decree of August 18,
1981, p.4 16.
(4) to pay reasonable attorneys’ fees to plaintiffs’
counsel in this matter. The following paragraphs disclose
the reasons why this Court should grant plaintiffs’ request.
A. History of this Litigation
On February 10, 1972, the Court found that the
Alabama Department of Public Safety had “engaged in a
blatant and continuous pattern and practice of discrimina
tion in hiring. . . .” NAACP v. Allen, 340 F.Supp. 703,
705 (M.D.Ala. 1972). The Court ordered defendants to
hire one black trooper for each white trooper hired “until
approximately twenty-five (25) percent of the Alabama
state trooper force is comprised of Negroes.” Id. at 706.
This order was affirmed on appeal and, in 1975, restated
emphatically in granting plaintiffs’ motion for supplemen
tal relief.
On February 16, 1979, a partial consent decree was ap
proved by the Court, following the second reopening of
the case by plaintiffs. This decree required, inter alia, that
defendants institute “a promotion procedure which is in
conformity with the 1978 Uniform Guidelines o f Selection
Procedure, 43 Fed. Reg. 38290, and which, in addition,
when used either for screening or ranking will have little or
no adverse impact on blacks seeking promotion to cor
poral.” See Decree at p.4, § IV(A). It gave defendants one
year to accomplish this objective, after which defendants
were “to begin validation of a promotional procedure for
the position of sergeant and, in turn, for the positions of
lieutenant, captain and major.” Id. § IV(B).
90
On April 9, 1981, the defendants moved the Court to
approve its newly developed “Corporal’s Promotional Ex
amination.” Plaintiffs objected to it on the ground that it
did not conform to the requirements of the Uniform
Guidelines, but in view of the defendants’ expression of an
urgent need for more corporals, eventually entered into
the August 18, 1981 Consent Decree. This Decree per
mitted defendants to utilize the protested promotional
procedure, but required that the results be reviewed to
determine whether they adversely impacted black ap
plicants prior to the making of any promotions. The
Decree further provided that if the new procedure adverse
ly impacted black candidates: (1) “promotions shall be
made in a manner that does not result in adverse impact,”
(2) “[defendants shall submit to plaintiffs their proposal
for making promotions in conformity with the Partial
Consent Decree and with this Decree; and (3) “[i]f the par
ties do not agree on the method for making promotions,
the matter shall be submitted to the Court for resolution.”
See Consent Decree of August 18, 1981, p. 4, 16.
Finally, in the event of adverse impact, the Decree re
quires defendants to “examine the results of each compo
nent of the selection procedure to identify the source(s) of
the adverse impact and . . . revise the procedure so as to
avoid adverse impact in the future.” According to the
Decree, defendants must provide this data to plaintiffs,
whereafter the parties shall attempt to agree upon
modifications. In the event of disagreement, “the matter
shall be submitted to the Court for resolution.” Id. p.5,
17.
B. Factual Developments
The new selection procedure unquestionably adversely
impacted black applicants. Two hundred sixty-two
troopers applied for promotion to the rank of corporal.
Black applicants were ranked as follows: 96, 100, 121,
91
130, 132A, 137, 144, 154, 157, 161, 163, 165, 169, 183,
191, 193, 194, 195, 197, 204, 205, 206, 210, 211, 212, 213,
218, 220, 221, 223, 224, 226, 228, 229, 230, 231, 232, 234,
236, 238, 241, 243, 244, 246, 249, 250, 251, 252, 253, 254,
255, 256, 257, 258, 259, 260, 261, 262. See Promotion
Register, attached hereto as Exhibit 1. Whites held the top
95 positions, whereas blacks held the bottom 14 positions.
Of the 59 blacks who applied, only 4 were ranked in the
top half, and they were at the bottom of the top half (#’s
96, 100, 121 and 130).
In apparent recognition of the adverse impact of this
register, defendants have recently offered to promote
black applicants at a rate of 20% (1 of every 5 promotions
will be black).1 Plaintiffs have rejected this offer. Defend
ants have not “revise[d] the procedure so as to avoid
adverse impact in the future” and have not “provide[d]
plaintiffs with data showing the impact of each compo
nent of the selection procedure and an item-by-item
analysis of the impact of the written test.” See August 18,
1981 Decree at p.5, \1 .
Thus, no blacks (or whites) have been promoted to cor
poral in the last four years. There is no valid promotion
procedure in place for promotions to corporal, sergeant,
lieutenant, captain or major. Under the terms of the 1979
Partial Consent Decree and the 1981 Consent Decree, this
Court must now decide: (1) what percentage of the forth
coming 18-20 promotions to corporal should be black; (2)
when to require defendants to implement a valid pro
cedure for promotions to corporal; and (3) when to re
quire defendants to implement valid procedures for pro
motions to sergeant, lieutenant, captain and major.
1 Defendants stated that they need to promote approximately 18 to
20 troopers to the rank of corporal.
92
C. Plaintiffs’ Position
Plaintiffs submit that blacks should be promoted to cor
poral at the same rate at which they have been hired, 1 for
1, until such time as the defendants implement a valid pro
motional procedure. Such an order will serve two pur
poses: (1) it will encourage defendants to develop a valid
promotional procedure as soon as possible; and (2) it will
help to alleviate the gross underrepresentation of blacks in
the supervisory ranks of the Department.
At the present time there are four black corporals. All
four were promoted in 1979 under the terms of the Partial
Consent Decree. There are 67 corporals. Thus, blacks
comprise 6% of the corporals at this time. Assuming the
Department promotes 20 troopers to the rank of corporal,
blacks will comprise 16% of the corporals if plaintiffs’ 1
for 1 suggestion is implemented, whereas they will only
comprise 9.2% if defendant’s 1 for 5 plan is followed.5
Plaintiffs’ request is much more in line with the Court’s
previous orders than is defendants’ plan. The ultimate goal
of the Court’s orders is a force that is 25% black. At the
present time, according to defendants, the force is approx
imately 22-23% black. However, due to defendants’ reluc
tance to promote its black troopers, all but four of these
troopers hold the lowest trooper rank. If the Department
is ever to be truly integrated, approximately 25% of its
force at every rank should be black. A requirement that
defendants promote 10 black of the next 20 corporals,
thereby raising black representation in the corporal rank
from 6% to 16% is both a reasonable and necessary2 3 step
to the attainment of this Court’s stated goal.
2 After 20 promotions there will be a total of 87 corporals. Under
plaintiffs’ plan, there would be 14 black corporals, whereas under
defendants’ plan, only 8 corporals would be black.
3 It would perhaps not be necessary if the defendants had developed
their own valid promotion procedure as required by the 1979 Decree. It
is defendants’ perennial non-compliance that necessitates this action.
93
If the Court has any hesitation to order this relief, it
need look no further than Judge Johnson’s Order and
Memorandum of April 13, 1979. There, the Court rejected
the defendants’ request for an amendment to the original
order changing the requirement for black employment
from 25% of the trooper force to 25% of entry-level
troopers. Judge Johnson’s reasoning fits the instant situa
tion. It is reproduced here with the hope that the Court
will restate it in an order granting plaintiffs’ present re
quest:
In 1972, defendants were not just found guilty of
discriminating against blacks in hiring to entry-level
positions. The Court found that in thirty-seven years
there had never been a black trooper at any rank. One
continuing effect of that discrimination is that, as of
November 1, 1978, out of 232 state troopers at the
rank of corporal or above, there is still not one black.
The quota fashioned by the Court provides an im
petus to promote blacks into those positions. To
focus only on the entry-level positions would be to ig
nore that past discrimination by the Department was
pervasive, that its effects persist, and that they are
manifest. As the Fifth Circuit has recognized, the
order in this case does not seek to grant proportional
representation in public employment to the black
citizens of Alabama. NAACP v. Allen, 493 F.2d at
621. The order in this case is but the necessary remedy
for an intolerable wrong.
It has been four years since Judge Johnson wrote these
words. Yet the only change in the makeup of the Depart
ment was the promotion of four blacks to Corporal as
mandated by the 1979 Partial Consent Decree. Not only
has the Department failed to promote any of its black
troopers, but it had done nothing to insure that its black
troopers will ever play a truly representative role in the
operation of the Department. No valid promotion
94
mechanism has yet been developed by which they can
begin moving from the lowest rank, trooper, toward the
highest rank, major, even though blacks have been
employed in the Department for eleven years.
In order to insure that blacks finally gain the opportuni
ty to move toward positions of responsibility within the
Department, the Court should order defendants: (1) to im
mediately promote 18 to 20 employees to the corporal
position, depending on need, on a 1 for 1 basis; (2) to
develop and implement a valid promotional procedure for
the corporal’s position within one year;4 to develop and
implement valid promotional procedures for sergeant,
lieutenant, captain and major within two years;5 and to
pay plaintiffs’ counsel reasonable attorneys fees for the
prosecution of this action.6
Respectfully submitted,
/s / D ennis N. Balske________
Dennis N. Balske
John L. Carroll
1001 S. Hull Street
P.O. Box 2087
Montgomery, AL 36103-2087
Attorneys for Plaintiffs
4 In order to insure compliance, certain procedural safeguards
should be included, such as open discovery to plaintiffs’ counsel, a
deadline for production of the finished product to plaintiffs’ counsel,
etc. Moreover, the Court should order that all future necessary pro
motions to corporal be made on a 1 for 1 basis until the Court has ap
proved a valid promotional procedure.
5 The procedural safeguards discussed in n.4 should be included,
and the Court should order that beginning two years from the entry of
its order, all promotions to sergeant, lieutenant, captain and major be
made on 1 for 1 basis if a valid procedure for promotions, approved
by the Court, is not in place.
6 Bryon Prescott was recently appointed by Governor Wallace to
replace defendant Shoemaker. His name should be substituted for
that of defendant Shoemaker in future pleadings and orders.
95
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing have been
served upon Ed Hardin and Cynthia Drabek by U.S. first
class mail, postage prepaid, this 7th day of April, 1983.
/ s / D ennis N. Balske
Attorney for Plaintiffs
96
IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CIVIL ACTION NO. 3561-N
P hillip Paradise, Jr., individually and on behalf of
THE CLASS SIMILARLY SITUATED, PLAINTIFFS,
U nited States of A merica, plaintiff and amicus curiae,
v.
Jerry Shoemaker, as D irector of
the A labama Department of Public Safety, etc., et al.,
DEFENDANTS.
V. E. McClellan, William M. Bailey, D. B. Mansell
and Dan Davenport, on behalf of themselves and all
OTHERS SIMILARLY SITUATED,
APPLICANTS FOR INTERVENTION
AMENDMENT TO MOTION TO INTERVENE
Come now V. E. McClellan, William M. Bailey, D. B.
Mansell and Dan Davenport on behalf of themselves and
all others similarly situated, by and through their attorney
of record, and hereby amend their motion to intervene by
adding the following to the end of paragraph two of their
original motion to intervene:
Specifically, V. E. McClellan, William M. Bailey, D. B.
Mansell, Dan Davenport and the class they represent aver
that the provisions and terms of the consent decrees
aforementioned allow rank order promotion to Corporal
97
only if there is little or no adverse impact upon blacks and
that the aforesaid decrees recite or contain no evidentiary
support to justify this limitation.
Respectfully submitted
Stuart & Ward
/s/ James S. W ard_______
James S. Ward
Attorney for Applicants
for Intervention
1933 Montgomery Highway
Suite 200
Birmingham, Alabama 35209
939-0276
CERTIFICATE OF SERVICE
I certify that I have served a copy of the above and
foregoing Amendment to Motion to Intervene on the
Honorable Dennis N. Balske, P.O. Box 2087, Mont
gomery, Alabama 36103-2087, the Honorable Edward L.
Hardin, Jr., P.O. Box 1214, Birmingham, Alabama 35201
and Ms. Cynthia Drabek, Federal Enforcement Section,
United States Department of Justice, Washington, D.C.
20530, by placing a copy of same in the United States mail,
postage prepaid and properly addressed on this the 15 day
of April, 1983.
/ s / James Ward
Of Counsel
98
IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CIVIL ACTION NO. 3561-N
Phillip Paradise, Jr., individually and on behalf of
THE CLASS SIMILARLY SITUATED, PLAINTIFFS,
United States of A merica, plaintiff and amicus curiae,
v.
Jerry Shoemaker, as D irector of
the A labama D epartment of Public Safety, etc., et al.,
DEFENDANTS.
V. E. McClellan, W illiam M. Bailey, D. B. Mansell
and Dan Davenport, on behalf of themselves and all
OTHERS SIMILARLY SITUATED,
APPLICANTS FOR INTERVENTION
COMPLAINT OF INTERVENORS I
I
JURISDICTION
1. This action for appropriate equitable relief and
declaratory judgment arises under the Fourteenth Amend
ment of the United States Constitution and 42 USC §1981
and § 1983. Jurisdiction of this Court is invoked pursuant
to 28 USC § 1343 and § 2201 and § 2202. In this action,
Intervenors and the class they represent seek to have the
provisions of the consent decrees entered in this cause on
February 16, 1979, and August 18, 1981, which deal with
corporal promotion, as well as the relief prayed for in the
Plaintiffs’ Motion To Enforce The Term Of The Febru-
99
ary 16, 1979, Partial Consent Decree And The August 18,
1981, Partial Consent Decree declared unreasonable, il
legal, unconstitutional or against public policy, seek ap
propriate equitable relief enjoining the operation of these
provisions and motion and seek relief which ensures that
any future or further promotions to Corporal be ac
complished in a constitutional and non-discriminatory
manner without infringing upon the Intervenors’ and the
class they represent constitutional rights guaranteed by the
Fourteenth Amendment of the United States Constitution
and rights guaranteed to them by 42 USC § 1981 and
§ 1983.
PARTIES
2. V. E. McClellan, William M. Bailey, D. B. Mansell
and Dan Davenport (hereinafter referred to as “In-
tervenors”) are white citizens of the State of Alabama and
are regular employees holding positions in the classified
service of the State of Alabama as defined in Code of
Alabama 1975, § 36-26-1, et seq. and who are currently
merit system employees of the Alabama Department of
Public Safety in positions or ranks below that of Cor
poral. Intervenors have taken the Corporal’s Promotional
Examination pursuant to the consent decree entered in this
cause on August 18, 1981, as did all eligible applicants for
the same, whether said applicants were white or black and
are substantially effected and are currently governed in
any attempt to be promoted from their current rank or
position to Corporal, including eligibility for that posi
tion, by the terms and provisions of a partial consent
decree entered in this cause on February 16, 1979, and a
subsequent consent decree entered in this cause on August
18, 1981, as well as, if granted, either in whole or in part,
the Plaintiffs’ Motion To Enforce The Term Of The
February 16, 1979, Partial Consent Decree And The
August 18, 1981, Consent Decree. Intervenors are cur
100
rently eligible for promotion from their current or present
rank or position to that of Corporal as the need and
number for the same are required by their employer and
have successfully passed and accomplished the re
quirements of and the Corporal’s Promotional Examina
tion described above.
The remaining parties in this action have been identified
in previous pleadings filed in this cause. Intervenors and
the class they represent allege that the Defendants in this
cause are now and at all times material hereto were acting
under the color and pretense of the statutes, ordinances,
regulations, customs and/or usages of the State of
Alabama.
II
CLASS ACTION AVERMENTS
A. INTERVENORS’ CLASS
1. This action is brought by the Intervenors in
dividually and pursuant to Rule 23 of the Federal Rules of
Civil Procedure as a class action on behalf of the following
described individuals:
(a) All those persons who are white citizens of the
State of Alabama and who are regular employees
holding positions in the classified service of the State
of Alabama as defined in Code of Alabama 1975,
§ 36-26-1, et seq. and who are currently merit system
employees of the Alabama Department of Public
Safety in positions or ranks below that of Corporal
who have taken the Corporal’s Promotional Ex
amination pursuant to the consent decree entered in
this cause on August 18, 1981, along with all eligible
applicants for the same, whether said applicants were
white or black, and who after taking the same were
placed or ranked in terms of eligibility for promo
tion from one (1) through seventy-nine (79) on the
101
Corporal Promotional Register which was compiled
thereafter and who are substantially effected and who
are now governed in any attempt to be promoted
from their current rank or position to that of Cor
poral, including their eligibility for that position, by
the terms and provisions of a partial consent decree
entered in this cause on February 16, 1979, and a
subsequent consent decree entered in this cause on
August 18, 1981, as well as, if granted, either in whole
or in part, the Plaintiffs’ Motion To Enforce The
Terms Of The February 16, 1979, Partial Consent
Decree And The August 18, 1981, Consent Decree
and who are currently eligible for promotion from
this current or present rank or position to that of Cor
poral as the need and number for the same are re
quired by their employer and who have successfully
passed and accomplished the requirements of and the
Corporal’s Promotional Examination described
above.
B. PRE-REQUISITE TO CLASS ACTION
2. Intervenors aver as follows:
(a) The class is so numerous that joinder of all
members is impracticable.
(b) There are questions of law and fact common to
the class in that it must be determined whether the
terms and provisions of the February 16, 1979, partial
consent decree and the August 18, 1981, consent
decree as they relate to Corporal promotion, as well
as the relief sought by the Plaintiffs in their April 7,
1983, Motion To Enforce The Terms Of The February
16, 1979, Partial Consent Decree And The August 18,
1981, Consent Decree (a) impede, impair, contradict,
conflict with, limit, abborgate or otherwise interfere
with provisions of Code of Alabama 1975, § 36-26-1,
102
et seq. also known as the Merit System Act, and any
rules or regulations promulgated thereunder, relating
to or concerning promotions, (b) are unreasonable, il
legal, unconstitutional or against public policy, (c) are
unreasonable, illegal, unconstitutional or against
public policy in that they unnecessarily trammel the
interests of the Intervenors and the class, (d) amount
to unlawful reverse racial discrimination in violation
of the Fourteenth Amendment to the Constitution of
the United States and the violation of rights
guaranteed to the Intervenors and the class by 42 USC
§ 1981 and § 1983, (e) are unreasonable, unconstitu
tional, illegal or against public policy in that there was
not sufficient and adequate statistical evidentiary sup
port concerning the number of black troopers eligible
for promotion to Corporal recited or contained in the
decrees, in that the various orders and consent decrees
entered in this cause contain detailed provisions
which reach the objectives of the Plaintiffs’ claims for
relief and in that the impact of the provisions and
terms of the aforementioned consent decrees and mo
tion have a harsh impact on innocent third parties
who, despite merit, suffer from the blemish of race,
(f) are unreasonable, illegal, unconstitutional or
against public policy in that they substantially in
terfere and effect a protectable interest of the In
tervenors and the class, to wit: the right to compete
for the benefits of public employment on the basis of
individual worth and accomplishment, fairly ascer
tained, without the influence of irrelevant factors
such as race, (g) are unreasonable, illegal, unconstitu
tional or against public policy in that they severely im
pair the career aspirations and promotional expecta
tions of the Intervernors and the class, (h) bind or
103
may bind the Intervenors and the class without af
fording them an opportunity to be heard and present
evidence concerning the claims outlined above.
3. The claims of the Intervenors are typical of the
claims of all the members of the class.
4. The Intervenors and their attorneys will fairly and
adequately protect the interest of all the members of the
class.
COUNT ONE
1. On February 10, 1972, over eleven (11) years ago,
the Court entered an order in this cause finding that prior
to that date, the Defendants had engaged in a blatant and
continuous pattern and practice of discrimination in hiring
in the Alabama Department of Public Safety, both as to
troopers and supporting personnel. Concommitantly, the
Court enjoined the Defendants from engaging in employ
ment practices, including recruitment, examination, ap
pointment, training, promotion, retention or any other
personnel action, for the purpose or with the effect of
discriminating against any employee, or actual or poten
tial applicants for employment, on the ground of race or
color, (paragraph two). Intervenors aver that this prohibi
tion prevented the Defendants from engaging in the ac
tivities described above in a manner which discriminated
against whites as well as blacks.
In addition, the Court ordered the Defendants to hire
one black trooper for each white trooper hired until ap
proximately twenty-five (25) percent of the Alabama State
Trooper force comprised of Negros (paragraph three). In
tervenors are informed and believe and on such informa
tion and belief aver that the Defendants have substantially
complied with this requirement.
2. On February 16, 1979, a partial consent decree was
executed by the parties and approved by the Court. In this
decree, Defendants agreed to have as an objective the utili
zation of a promotion procedure which was fair to all ap
104
plicants and which promotion procedure when used either
for screening or ranking would have little or no adverse
impact upon blacks seeking promotion to Corporal. In ac
cordance with that objective, Defendants agreed to utilize
a promotion procedure which is in conformity with the
1978 Uniform Guidelines o f Selection Procedures, 43 Fed.
Reg. 38290, and which, in addition, when used either for
screening or ranking will have little or no adverse impact
on blacks seeking promotion to Corporal (paragraph
1VA). However, this decree neither recites nor contains
any appropriate statistical evidentiary support for the
Defendants’ agreement contained therein or for their
agreement to utilize a promotion procedure which will
have little or no adverse impact upon blacks seeking pro
motion to Corporal.
Moreover, Plaintiffs aver that Defendants also agreed
in this consent decree to have as an objective within the
Department of Public Safety, “. . . an employment and
promotion system that is racially neutral.” and agreed not
to engage in any act or practice which discriminates on the
basis of race in hiring, promoting, upgrading, training,
assignment, discharge or otherwise discriminated against
any employee of, or any applicant, or potential applicant
for employment with respect to compensation, terms and
conditions or privileges of employment because of such in
dividual’s race, (paragraph I) Intervenors aver that these
agreements prohibit discrimination against whites as well
as blacks.
3. On August 18, 1981, another consent decree was
entered in this cause. In that decree, the parties agreed that
the proposed selection procedure for Corporal promotion
shall be administered and scored as set out in the Defend
ant’s letter to Plaintiffs and the Court dated May 21, 1981,
and in the proposed selection procedure and validation
report accompanying that letter, that information being
attached to and made a part of this consent decree.
105
Intervenors allege that it is clear from a reading of
paragraphs one and two of that consent decree that the
provisions thereof were to apply equally to all applicants
for the examination for State Trooper Corporal, regard
less of the race of the applicant. Intervenors further aver
that the Plaintiffs agreed to the procedure for, the make
up, including the components thereof, the administering
and scoring of the written examination for State Trooper
Corporal outlined in that consent decree by their approval
of that consent decree.
4. The August 18, 1981, consent decree provided that
the Defendants shall compile a list of candidates for pro
motion for State Trooper Corporal positions based upon
the composite numerical scores of applicants on the selec
tion procedure and allow Defendants, in determining
eligibility, to apply the standards for length of service set
out in the proposed selection procedure, (paragraph three)
5. Despite the provisions described in Paragraphs
three and four above, the August 18, 1981, consent decree
allowed selections or promotions to Corporal to be made
in rank order from the list described in paragraph two of
the decree only if the selection procedure had little or no
adverse impact againt black applicants, that determination
to be made based upon reference to the Uniform
Guidelines on Employee Selection Procedures, 43 Fed.
Reg. 38290, 28 C.F.R. Sec. 50.14 (1978). (paragraph five).
Intervenors aver that there is absolutely no appropriate
statistical evidentiary data recited or contained in the
August 18, 1981, consent decree to support or justify the
limitation that selections shall be made in rank order for a
Corporal only if the selection procedure has little or no
adverse impact against black applicants.
6. The August 18, 1981, consent decree permitted De
fendants to utilize the Corporal promotional procedure
outlined therein but mandated that the results be reviewed
106
by reference to the Uniform Guidelines cited above, to
determine whether they had an adverse impact against
black applicants prior to the Department being allowed to
make any promotions. The decree dictated that if the new
procedure had an adverse impact upon blacks then promo
tion shall be made in a manner that does not result in
adverse impact on the initial group of promotions or
cumulatively during the use of the procedure, that the De
fendant shall submit to Plaintiffs a proposal for making
promotions in conformity with the February 16, 1979,
partial consent decree and with the August 18, 1981,
decree and that if the parties do not agree on a method for
making promotions, the matter shall be submitted to the
Court for resolution, (paragraph six) Intervenors aver that
the decree cites or refers to no appropriate statistical infor
mation or statistical evidentiary support to justify the
limitation of, “little or no adverse impact upon blacks”
before promotions to Corporal could be made by the
Alabama Department of Public Safety. Intervenors fur
ther aver that the decree cites or refers to absolutely no ap
propriate statistical evidentiary support, or finding or in
formation to justify the use of the Uniform Guidelines re
ferred to above and the answer to question 12 of the Ques
tions and Answers to Clarify and Provide a Common In
terpretation o f the Uniform Guidelines on Employee
Selection Procedures, 44 Fed. Reg. 11996, March 2, 1979,
in determining adverse impact.
7. Intervenors aver that there is no appropriate
statistical evidentiary support cited or referred to in the
decree which supports or justifies the provisions of
paragraph seven thereof and further aver that they have an
interest, for themselves and the class they represent as
those eligible for promotion to Corporal pursuant to the
test conducted and given as outlined in the August 18,
1981, consent decree, to conduct discovery and proffer to
the Court statistical evidence concerning any modifica
107
tions on the existing selection procedure, on the use of the
existing selection procedure for future administrations, to
aid the Court in resolving this matter, or to demonstrate
that the provisions of the February 16, 1979, partial con
sent decree and the August 18, 1981, consent decree
relating to Corporal promotion are unreasonable, un
constitutional, illegal or against public policy.
8. Intervenors aver that the Corporal Promotional Ex
amination which was given subsequent to the consent
decree entered in this cause on August 18, 1981, was con
ducted, administered, graded and analyzed in a racially
neutral and non-discriminatory manner without any con
sideration or regard to race and that the said examination
was given and conducted under these conditions to all
those eligible applicants for the same, whether those ap
plicants were white or black.
9. Intervenors aver that they are governed and covered
by the provisions of Code of Alabama 1975, § 36-26-1, et
seq., also known as the Merit System Act, and any rules or
regulations promulgated thereunder, which relate to or
concern promotions and further aver that those statutes
and rules grant upon them a vested right to be promoted to
Corporal in the same manner as those previously pro
moted to that position and without any regard or influence
based on race but rather on merit and competition. See
Code of Alabama 1975, § 36-26-23.
10. Intervenors aver that they are innocent of any
wrongdoing nor did they participate in any of the activities
or practices which necessitated the granting of any orders
or decrees in this cause and are innocent victims whose
career aspirations and expectations should not be blem
ished or impeded because of their race.
11. Intervenors aver that there are other detailed pro
visions of the orders and decrees entered in this cause
which reach the objectives of the Plaintiffs’ claims for
relief.
108
12. Intervenors aver that the partial consent decree of
February 16, 1979, and the consent decree of August 18,
1981, as they relate to promotion generally and to Cor
poral promotion specifically, including but not limited to
those provisions which require that any selection pro
cedure for Corporal promotion utilized have little or no
adverse impact against black applicants, this determina
tion to be made by reference to the Uniform Guidelines on
Employee Selection Procedures, 44 Fed. Reg. 11996 28
C.F.R Sec. 5014 and the answer to question 12 of the
Questions and Answers to Clarify and Provide a Common
Interpretation of the Uniform Guidelines on Employee
Selection Procedures, 44 Fed. Reg. 11996, March 2, 1979,
as well as the relief sought in Plaintiffs’ Motion to Enforce
The Terms Of The February 16, 1979, Partial Consent
Decree And The August 18, 1981, Consent Decree,
amount to hiring and promotional quotas and affirmative
action plans or procedures for promotion which have the
effect of reverse racial discrimination on the Intervenors
and their class in violation of the Fourteenth Amendment
to the Constitution of the United States, which violates
their rights guaranteed by 42 USC § 1981 and § 1983 in
that, inter alia they deprive them of the full and equal
benefit of all laws free of racial discrimination or which
are unreasonable, unconstitutional, illegal or against
public policy.
FIRST CAUSE OF ACTION
13. That the terms and provisions of the February 16,
1979, partial consent decree and the August 18, 1981, con
sent decree as they relate generally to promotion and
specifically to Corporal promotion, as well as the relief
sought by the Plaintiffs in their motion of April 7, 1983,
which is referred to above, impede, impair, contradict,
conflict with, limit, abbrogate or otherwise interfere with
the provisions of Code of Alabama 1975, § 36-26-1, et
109
seq., also known as the Merit System Act, and any rules or
regulations promulgated thereunder, relating to or
concerning promotions and are therefore unreasonable, il
legal, unconstitutional or against public policy.
SECOND CAUSE OF ACTION
14. That the terms and provisions of the February 16,
1979, partial consent decree and the August 18, 1981, con
sent decree as they relate generally to promotion and
specifically to Corporal promotion, as well as the relief
sought by the Plaintiffs in their motion of April 7, 1983,
which is referred to above, are unreasonable, illegal, un
constitutional or against public policy.
THIRD CAUSE OF ACTION
15. That the terms and provisions of the February 16,
1979, partial consent decree and the August 18, 1981, con
sent decree as they relate generally to promotion and
.specifically to Corporal promotion, as well as the relief
sought by the Plaintiffs in their motion of April 7, 1983,
which is referred to above, unnecessarily trammel the in
terest of the Intervenors and the class they represent and
are therefore unreasonable, illegal, unconstitutional or
against public policy.
FOURTH CAUSE OF ACTION
16. That the terms and provisions of the February 16,
1979, partial consent decree and the August 18, 1981, con
sent decree as they relate generally to promotion and
specifically to Corporal promotion, as well as the relief
sought by the Plaintiffs in their motion of April 7, 1983,
which is referred to above, amount to unlawful reverse
racial discrimination in violation of the Fourteenth
Amendment to the Constitution of the United States and
the violation of rights guaranteed to the Intervenors and
110
the class they represent by 42 USC § 1983 in that the De
fendants have now and at all material times hereto acted
under the color and pretense of the statutes, ordinances,
regulations, customs and usages of the State of Alabama
in relation to the carrying out of the terms and provisions
of the consent decrees referred to above.
FIFTH CAUSE OF ACTION
17. That the terms and provisions of the February 16,
1979, partial consent decree and the August 18, 1981, con
sent decree as they relate generally to promotion and
specifically to Corporal promotion, as well as the relief
sought by the Plaintiffs in their motion of April 7, 1983,
which is referred to above, violate the rights guaranteed to
the Intervenors and the class they represent by 42 USC
§1981 in that they have been deprived of the full and
equal benefit of all laws in relation to the provisions and
terms of the decrees and motions referred to above and in
relation to promotion free of racial discrimination or
without regard to race.
SIXTH CAUSE OF ACTION
18. That the terms and provisions of the February 16,
1979, partial consent decree and the August 18, 1981, con
sent decree as they relate generally to promotion and
specifically to Corporal promotion, as well as the relief
sought by the Plaintiffs in their motion of April 7, 1983,
which is referred to above, are unreasonable, unconstitu
tional, illegal or against public policy in that the decrees
neither recite not contain any appropriate statistical
evidentiary support concerning the number of black
troopers eligible for promotion to Corporal or concerning
the requirement of little or no adverse impact against
blacks before there can be promotion in rank order, in
that the various orders and consent decrees entered in this
I l l
cause contain detailed provisions which reach the objec
tives of the Plaintiffs’ claims for relief and/or in that the
provisions and terms of the February 16, 1979, partial
consent decree, the August 18, 1981, consent decree and
the Plaintiffs’ motion of April 7, 1983, have a harsh im
pact on innocent third parties who, despite merit, suffer
from the blemish of race.
SEVENTH CAUSE OF ACTION
19. That the terms and provisions of the February 17,
1979, partial consent decree and the August 18, 1981, con
sent decree as they relate generally to promotion and
specifically to Corporal promotion, as well as the relief
sought by the Plaintiffs in their motion of April 7, 1983,
which is referred to above, are unreasonable, illegal, un
constitutional or against public policy in that they substan
tially interfere and effect a protectable interest of the In-
tervenors and the class they represent, to-wit: the right to
compete for the benefits of public employment on the
basis of individual worth and accomplishment, fairly
ascertained, without the influence of irrelevant factors
such as race.
EIGHTH CAUSE OF ACTION
20. That the terms and provisions of the February 17,
1979, partial consent decree and the August 18, 1981, con
sent decree as they relate generally to promotion and
specifically to Corporal promotion, as well as the relief
sought by the Plaintiffs in their motion of April 7, 1983,
which is referred to above, are unreasonable, illegal, un
constitutional or against public policy in that they severely
impair the career aspiration and promotional expectations
of the Intervenors and the class they represent.
112
21. There is between the parties an actual controversy
as set forth herein. The Intervenors and the class they
represent have suffered and will continue irreparable in
jury and damage by reason of the acts and the provisions
of the consent decrees and motion complained of herein.
Intervenors and the class they represent have no plain,
adequate or complete remedy to address the wrongs,
unlawful acts, and the terms and provisions of the consent
decrees and motions complained of herein other than this
action for a declaration of rights and appropriate
equitable relief. Any remedy to which Intervenors and the
class they represent could be remitted would be attended
with such uncertainties and delays as to deny substantial
relief, and would involve multiplicity of suits causing fur
ther irreparable injury, damage and inconvenience.
WHEREFORE, Intervenors, on behalf of themselves
and all others similarly situated, respectfully pray that this
Court will take jurisdiction of this cause and do the
following:
A. Certify this action as a class action pursuant to
Rule 23 of the Federal Rules of Civil Procedure.
B. Following a hearing on this complaint, issue a
preliminary injunction, to be made permanent later, en
joining the Defendants or any other party from promoting
any individual to the rank of Corporal pursuant to the
terms and provisions of the partial consent decree of
February 16, 1979, the consent decree of August 18, 1981,
or pursuant to the Plaintiffs’ Motion To Enforce The
Terms Of The February 16, 1979, Partial Consent Decree
And The August 18, 1981, Consent Decree.
C. Declare the terms and provisions of the partial con
sent decree of February 16, 1979, the consent decree of
August 18, 1981, or pursuant to the Plaintiffs’ Motion to
Enforce The Terms Of The February 16, 1979, Partial
Consent Decree And The August 18, 1981, Consent
Decree to be unreasonable, illegal, unconstitutional or
against public policy.
113
D. Enter an order which ensures that any future or
further promotion of any individual employed by the
Alabama Department of Public Safety to the rank of Cor
poral be accomplished without infringing upon the In-
tervenors’ or the class they represent constitutional rights,
including but not limited to, those guaranteed by the Four
teenth Amendment to the United States Constitution or
infringing upon their rights guaranteed to them by 42 USC
§ 1981 and § 1983.
E. Grant and award Intervenors their costs and
reasonable attorneys’ fees and expenses.
F. Award Intervenors all other, different and further
relief to which they are entitled.
Respectfully submitted
Stuart & Ward
/s / James S. Ward_______
James S. Ward
Attorney for Intervenors
OF COUNSEL
Stuart & Wood
1933 Montgomery Highway Suite 200
Birmingham, Alabama 35209
939-0276
114
CIVIL ACTION NO. 3561-N
P hillip Paradise, Jr., individually and on behalf of
THE CLASS SIMILARLY SITUATED, PLAINTIFFS,
U nited States of A merica, plaintiff and amicus curiae,
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF
ALABAMA, NORTHERN DIVISION
v.
Jerry Shoemaker, as D irector of
the A labama D epartment of P ublic Safety, etc., et al.,
DEFENDANTS.
ORDER
Upon consideration of (i) the defendants’ April 21,
1983, motion for extension of time, (ii) the applicants for
intervention’s April 26, 1983, motion for evidentiary hear
ing or in the alternative for oral argument, and (iii) the
United States of America’s April 29, 1983, motion for ex
tension of time, it is ORDERED:
(1) That the April 21,26 and 29 motions be and they are
hereby granted to the extent
(a) That the submission of the April 7, 1983, mo
tion to enforce consent decree and the submission of
the April 15, 1983, motion to intervene be and they
are hereby continued to May 27, 1983;
(b) That the parties and movants for intervention
are allowed until May 6, 1983, to file any responses or
briefs in connection with the April 7 and 15 motions;
and
115
(c) That the April 7 and 15 motions be and they are
hereby set for oral argument on May 27, 1983, at
10:00 a.m. in the fourth floor courtroom of the
federal courthouse in Montgomery, Alabama; and
(2) That the April 21, 26, and 29 motions be and they
are hereby denied in all other respects.
DONE, this the 3rd day of May, 1983.
[SIGNATURE]
United States District Judge
116
CIVIL ACTION NO. 3561-N
P hillip Paradise, Jr., individually and on behalf of
THE CLASS SIMILARLY SITUATED, PLAINTIFFS,
U nited States of A merica, plaintiff and amicus curiae,
v.
Byron Prescott, as D irector of
the A labama Department of Public Safety, etc., et al„
defendants.
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA,
NORTHERN DIVISION
ORDER
Upon consideration of the April 15, 1983, motion to in
tervene, filed by V. E. McClellan, William M. Bailey, D.
B. Mansell and Dan Davenport, four white troopers with
the Alabama Department of Public Safety; and for good
cause, it is ORDERED that the motion be and it is hereby
granted to the extent that the movants may participate in
these proceedings on a prospective basis only and may not
challenge previously entered orders, judgments, and
decrees since intervention is untimely as to these; and that
the motion be and it is hereby denied in all other respects.
United States v. California Cooperative Canneries, 279
U.S. 553, 556, 49 S.Ct. 423, 424 (1929); Smith v. Missouri
Pac. R. Co., 615 F.2d 683 (5th Cir. 1980). See Thaggard v.
City o f Jackson, 687 F.2d 66, 68 (5th Cir. 1982), petition
for cert, filed, 51 U.S.L.W. 3635 (U.S. February 16, 1983)
(No. 82-1390). See also 3B J. Moore & J. Kennedy,
Moore’s Federal Practice f 24.16[5]; 7A C. Wright &.A.
Miller, Federal Practice and Procedure § 1920.
DONE, this the 28th day of October, 1983.
[SIGNATURE]___________
United States District Judge
117
CIVIL ACTION NO. 3561-N
Phillip Paradise, Jr., individually and on behalf of
THE CLASS SIMILARLY SITUATED, PLAINTIFFS,
United States of A merica, plaintiff and amicus curiae,
v.
Byron Prescott, as D irector of
the A labama D epartment of Public Safety, etc., et al.,
DEFENDANTS.
V. E. McClellan, et al., defendant-intervenors.
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA,
NORTHERN DIVISION
ORDER
This cause is now before the court on the plaintiffs’
April 7, 1983, motion to enforce the terms of two
previously entered consent decrees. A hearing was held on
the motion on May 27, 1983. For reasons which follow,
the plaintiffs are entitled to relief.
I.
On February 10, 1972, the court found that the defend
ant officials of the Alabama Department of Public Safety
had “engaged in a blatant and continuous pattern and
practice of discrimination in hiring . . . as to troopers.”
NAACP v. Allen, 340 F. Supp. 703, 705 (M.D.Ala. 1972),
affd, 493 F.2d 614 (5th Cir. 1974). The court ordered the
defendants to hire one black trooper for each white
trooper hired “until approximately twenty-five (25) per
cent of the Alabama state trooper force is comprised of
Negroes.” 340 F. ’Supp. at 706.
118
On February 16, 1979, a partial consent decree was ap
proved and entered by the court, following a reopening of
the case by the plaintiffs. This decree required, among
other things, that the defendants institute
a promotion procedure which is in conformity with
the 1978 Uniform Guidelines o f Selection Procedure,
43 Fed. Reg. 38290, [28 C.F.R. 50.14,] and which, in
addition, when used either for screening or ranking
will have little or no adverse impact on blacks seeking
promotion to corporal.
On August 18, 1981, another consent decree was approved
and entered by the court in response to the defendants’ re
quest that the court approve their newly developed selec
tion procedure, which included a written examination
component. The plaintiffs and the United States had ob
jected to the selection procedure on the ground that it
failed to comply with the Uniform Guidelines, as required
by the 1979 decree. The 1981 decree provided in relevant
part as follows:
5. If the selection procedure has little or no adverse
impact against black applicants, selections shall be
made in rank order. . . . Whether or not the selection
procedure has “little or no adverse impact” will be
measured by the “four-fifths rule” set forth in Section
4 D of the Uniform Guidelines, supra. If the parties
cannot agree whether the selection procedure has an
adverse impact, the matter shall be submitted to the
Court for resolution. No promotions to State
Trooper Corporal positions shall be made pending
resolution of the question of adverse impact.
6. If the parties agree, or the Court finds, that the
selection procedure has an adverse impact, promo
tions shall be made in a manner that does not result in
adverse impact for the initial group of promotions or
cumulatively during use of the procedure. Defendants
shall submit to plaintiffs their proposal for making
119
promotions in conformity with the Partial Consent
Decree and with this Decree. If the parties do not
agree on the method for making promotions, the mat
ter shall be submitted to the Court for resolution. No
promotions to State Trooper Corporal positions shall
be made until the parties have agreed in writing or the
Court has ruled upon the method to be used for mak
ing promotions with little or no adverse impact.
7. If the selection procedure has an adverse impact
against blacks seeking promotion to corporal, de
fendants shall examine the results of each component
of the selection procedure to identify the source(s) of
the adverse impact and shall revise the procedure so
as to avoid adverse impact in the future. Defendants
shall provide plaintiffs with data showing the impact
of each component of the selection procedure and
item-by-item analysis of the impact of the written
test. The parties shall attempt to agree upon
modifications in the selection procedure for future
administrations. If the parties are unable to agree
upon the procedure to be used after the first ad
ministration of the selection procedure and the
method of using that procedure, the matter shall be
submitted to the Court for resolution.
After the 1981 decree was approved and entered, the de
fendants administered the selection procedure to all ap
plicants seeking promotion to corporal. The procedure
was administered to 262 persons —202 (77.1%) white per
sons and 60 (22.9%) black persons. The highest ranked
black persons,1 based on the selection procedure, holds
the 80th place on the list of rankings.
There is no dispute among the parties that the defend
ants need additional corporals and that they need at least
15 of them as soon as possible. The plaintiffs and the
1 This number includes one trooper, James Cox, whose race is iden
tified as “other.”
120
United States contend that the selection procedure has an
adverse impact and, in accordance with the 1981 decree,
may not be used by the defendants. The defendants con
tend that the procedure does not have an adverse impact
and may be used.
By another order entered this date the court has allowed
four white employees of the Alabama Department of
Public Safety to intervene as defendant-intervenors. Their
intervention is on a prospective basis only; they are not
allowed to challenge prior orders, judgments, and decrees
of the court.
II.
Since the parties have been unable to agree on whether
the selection procedure has an impermissible adverse racial
impact, the court in accordance with the 1981 decree must
now make that determination. To determine whether the
selection procedure has an adverse impact, the decree
refers to the four-fifths rule set forth in section 4 D of the
Uniform Guidelines, which provides in relevant part:
Adverse impact and the “four-fifths rule. ” A selection
rate for any race, sex, or ethnic group which is less
than four-fifths (4/5) (or eighty percent) of the rate
for the group with the highest rate will generally be
regarded by the Federal enforcement agencies as evi
dence of adverse impact, while a greater than four-
fifths rate will generally not be regarded by Federal
enforcement agencies as evidence of adverse impact.
Applying the four-fifths rule and assuming fifteen candi
dates are to be promoted in rank order based on the selec
tion procedure results, the success rate for white persons
would be 15/202 or 7.4%, and the success rate for black
persons would be 0/60 or 0%. Zero is, of course, less than
four-fifths of 7.4. Indeed, even if seventy-nine corporals
were promoted in rank order, none would be black. Short
121
of outright exclusion based on race, it is hard to conceive
of a selection procedure which would have a greater dis
criminatory impact.
Also relying on section 4 D, the defendants contend that
their selection procedure nonetheless does not have an
adverse impact. The portion of the section relied upon
provides as follows:
Greater differences in selection rate may not con
stitute adverse impact where the differences are based
on small numbers and are not statistically significant,
or where special recruiting or other programs cause
the pool of minority or female candidates to be
atypical of the normal pool of applicants from that
group.
The defendants contend that the one-to-one hiring ratio
for state troopers is a “special program” which has resulted
in an atypical pool because black troopers scored lower on
a “hiring test” than did white troopers. The defendants
contend that the court should afford them an opportunity
to show this. The court agrees with the position of the
United States and the plaintiffs that a hearing is unneces
sary. Accepting the defendants’ anticipated evidence as
true, this court must nonetheless conclude that the evi
dence is an unacceptable basis to rest a claim of atypi
cality. The hiring test, to which the defendants wish to link
their promotion procedure, has not been subjected to an
adverse impact determination, nor has it been validated.2
For the above reasons, the court concludes that the
selection procedure has an adverse impact against black
candidates. United States v. City o f Montgomery, 19
E.P.D. 1 9239, pp. 7412-15 (M.D.Ala. 1979).
2 The defendants do not contend that the candidate pool in some
way distorts the labor market to the advantage of the plaintiffs.
122
III.
Since the defendants’ selection procedure has an adverse
impact on black candidates for the position of corporal,
the 1981 decree prohibits the defendants’ use of the pro
cedure. Furthermore, the defendants are now required by
the decree to fashion and submit to the court a proposal to
promote to corporal, from among qualified candidates, at
least 15 persons in a manner which which will not have
adverse impact. And if the plaintiffs, the United States,
and the defendants cannot agree to a promotion plan, they
are required by the decree to submit the matter to the court
for resolution.
As already noted, this lawsuit is now before the court on
the plaintiffs’ motion to enforce the terms of two previous
ly entered decrees. The court will grant the plaintiffs’ mo
tion to enforce to the extent the motion seeks compliance
with the immediately preceding requirements in the 1981
decree. An appropriate order will be entered declaring that
the selection procedure has an adverse racial impact and
may not be used by the defendants; requiring that the
defendants submit an appropriate proposal for the needed
promotions; and setting a deadline for submission of the
matter to the court if the plaintiffs, the United States, and
the defendants are unable to agree upon a promotion plan.
If the plaintiffs, the United States, and the defendants
should agree to a promotion plan, the plaintiff-intervenors
will be allowed an opportunity to file responses and objec
tions to the plan.
Also, as a result of the finding of adverse impact, the
defendants are required by the 1981 decree to “examine the
results of each component of the selection procedure to
identify the sources of the adverse impact,” to “revise the
procedure so as to avoid adverse impact in the future,” to
“provide plaintiffs with data showing the impact of each
component of the selection procedure and an item-by-item
analysis of the impact of the written test,” and, if the par
123
ties cannot agree upon modifications to cure the adverse
impact, to petition the court to resolve the disputed mat
ters. It does not appear, however, that the plaintiffs —who
are the movants at this stage of the proceedings —are seek
ing enforcement of this part of the 1981 decree, and the
court will therefore not enter an order compelling enforce
ment.3
Accordingly, for the above reasons, it is ORDERED:
(1) That the plaintiffs’ April 7, 1983, motion to enforce
the terms of the February 16, 1979, partial consent decree
and the August 18, 1981, consent decree, be and it is
hereby granted to the extent hereafter set forth;
(2) That it is hereby declared that the defendants’ selec
tion procedure for promotion to corporal has an adverse
racial impact and that said selection procedure may not be
used by the defendants for promotion purposes;
(3) That on or before November 10, 1983, the defend
ants shall file with the court a plan to promote to corporal,
from qualified candidates, at least 15 persons in a manner
that will not have an adverse racial impact;
(4) That on or before November 18, 1983, the plaintiffs,
the United States, and the defendant-intervenors may file
any objections and counter-proposals;
(5) That, if by November 25, 1983, the plaintiffs, the
United States, and the defendants have not filed a promo
tion plan agreed to by all said parties, the issue of corporal
promotions shall be deemed submitted for resolution by
the court; and
(6) That, if the plaintiffs, the United States, and the
defendants file an agreed-to promotion plan, the defend
3 However, if the plaintiffs are seeking enforcement of the part of
the 1981 decree regarding modifications of the selection procedure,
then the plaintiffs should file a pleading so indicating.
Also, if the defendants desire to invoke this part of the decree then
they need only carry out their responsibilities under this part and, if
the parties are unable to agree upon the modifications, petition the
court to resolve the matter.
124
ant-intervenors are allowed seven days from the date of
filing to file any responses and objections to the plan.
DONE, this the 28th day of October, 1983.
[Signature]_______________
United States District Judge
125
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CIVIL ACTION NO. 3561-N
Phillip Paradise, Jr ., individually and on behalf of
THE CLASS SIMILARLY SITUATED, PLAINTIFFS
United States of A merica, plaintiff and amicus curiae
v.
Byron Prescott, as director of the Alabama
. DEPARTMENT OF PUBLIC SAFETY, ETC., ET AL., DEFENDANTS
V. E. McClellan, et al., defendant-intervenors
PROPOSED PROMOTION PROCEDURE
This cause is now before the Court on the Court’s Oc
tober 28, 1983 Order which provided that “the defendants
shall file with the Court a plan to promote to Corporal,
from qualified candidates, at least fifteen (15) persons in a
manner that will not have an adverse racial impact”. Pur
suant to the Order, this defendant submits to the Court
herewith a proposal for making promotions to Corporal
within the Department of Public Safety. The defendant,
the Department of Public Safety, proposes to make pro
motions to Corporal as follows:
1. The defendant, the Department of Public Safety,
proposes to promote to Corporal fifteen (15) troopers. Of
these fifteen (15) individuals promoted, the defendant pro
poses to promote eleven (11) whites and four (4) blacks, on
a one time basis only. In support of this proposal, the de
fendant would say:
(a) That by promoting four (4) blacks and eleven (11)
whites the requirements of the four-fifths rule of the Uni
126
form Guidelines concerning adverse impact is met;
(b) That this percentage of blacks to whites reflects the
percentage of blacks to whites who took the Corporal’s ex
amination;
(c) That there is an immediate need for at least fifteen
(15) Corporals to be promoted within the Department of
Public Safety; and,
(d) That this procedure should only be used for this ini
tial group of promotions.
(e) That this defendant, while it does not waive any ob
jections previously made, proposes that the selections will
be made from the current Corporal Promotion List, in
rank order, utilizing the “rule of three” as provided in the
Alabama Merit System Law. The promotion of black can
didates will necessarily be made by consideration of black
candidates in the order in which they appear on the current
promotional register.
(f) The Department of Public Safety does not agree that
this method is an appropriate method for promotion of
candidates based on merit and request the Court to enter
an Order permitting the Department of Personnel of the
State of Alabama to develop a procedure for promoting
Troopers to Corporals in a nondiscriminatory manner for
use in subsequent promotions. Said procedure to be sub
mitted to the Court for prior approval within a specified
time period. The defedant, Department of Public Safety,
will cooperate with the Department of Personnel in devel
oping such a promotional procedure in order that such be
accomplished as soon as possible.
Respectfully submitted,
By: Edward L. H ardin, Jr.
Edward L. Hardin, Jr.,
Special Assistant Attorney
General for Alabama Depart
ment of Public Safety
127
OF COUNSEL:
Edward L. Hardin, Jr.
Hardin & Hollis
1825 Morris Avenue
Birmingham, Alabama 35203
Telephone: (205) 328-2675
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing
Proposed Promotion Procedure has been served upon all
counsel of record by placing same in the United States
mail, postage prepaid and properly addressed on this the
10th day of November, 1983.
/ s / Edward L. Hardin, Jr .
Edward L. Hardin, Jr.
128
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CIVIL ACTION NO. 3561-N
P hillip Paradise, Jr ., individually and on behalf of
THE CLASS SIMILARLY SITUATED, PLAINTIFFS
U nited States of A merica, plaintiff and amicus curiae
v.
Byron P rescott, as director of the Alabama
DEPARTMENT OF PUBLIC SAFETY, ETC., ET AL., DEFENDANTS
V. E. McClellan, et al., defendant-intervenors
ORDER
In accordance with the memorandum opinion entered
this date, it is the ORDER, JUDGMENT, and DECREE
of the court:
(1) That the plaintiffs’ April 7, 1983, motion to enforce
the terms of the February 16, 1979, partial consent decree
and August 18, 1981, consent decree, be and it is hereby
granted to the extent hereafter set forth;
(2) That the defendants and their agents and employees
be and each is hereby enjoined and restrained from failing
to promote from this day forward, for each white trooper
promoted to a higher rank, one black trooper to the same
rank, if there is a black trooper objectively qualified to be
promoted to the rank;
(3) That this promotion requirement shall remain in ef
fect as to each trooper rank above the entry-level rank un
til either approximately 25% of the rank is black or the de
fendants have developed and implemented a promotion
plan for the rank which meets the prior orders and decrees
of the court and all other relevant legal requirements;
129
(4) That within 35 days from the date of this order the
defendants shall submit to the court for the court’s ap
proval a schedule for the development of promotion pro
cedures for all ranks above the entry-level position;
(5) That the plaintiffs be and they are hereby allowed 21
days from this date to file a request for interim attorney
fees, which request shall be supported by affidavits and
shall address each of the criteria set forth in Hensley v.
Eckerhart, U.S— , 103 S.Ct. 1933 (1983), and Johnson
v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.
1974); and
(6) That all other relief requested by the plaintiffs in
their motion and not specifically granted be and it is here
by denied.
DONE, this the 15th day of December, 1983.
[SIGNATURE]
United States District Judge
130
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CIVIL ACTION NO. 3561-N
P hillip P aradise, Jr., individually and on behalf of
THE CLASS SIMILARLY SITUATED, PLAINTIFFS
U nited States of A merica, plaintiff and amicus
curiae,
v.
Byron P rescott, as director of the Alabama
DEPARTMENT OF PUBLIC SAFETY, ETC., ET AL., DEFENDANTS
V. E. McClellan, et al., defendant-intervenors
MEMORANDUM OPINION
The present phase of the proceedings in this lawsuit
began on April 7, 1983, when the plaintiffs filed a motion
to enforce the terms of two previously entered consent
decrees. In accordance with these decrees and as a result of
recent developments, this court must determine what pro
cedure the Alabama Department of Public Safety must use
in promoting troopers. The court understands that the de
partment is in need of at least 15 new corporals immediate
ly.
I.
In 1972, then Chief District Judge Frank M. Johnson,
Jr., remarked in this case that “[i]n the thirty-seven-year
history of the patrol there has never been a black trooper
and the only Negroes ever employed by the department
have been nonmerit system laborers.” NAACP v. Allen,
340 F. Supp. 703, 705 (M.D. Ala. 1972). The court found
131
that the department had “engaged in a blatant and con
tinuous pattern and practice of discrimination in hiring
. . . both as to troopers and supporting personnel;” and
the court ordered that the department hire one black
trooper for each white trooper hired “until approximately
twenty-five (25) percent of the Alabama state trooper
force is comprised of Negroes.” Id. at 705, 706. The order
was affirmed on appeal. 493 F.2d 614 (5th Cir. 1974).
In a later proceeding in this case, Judge Johnson was
asked to clarify “whether the twenty-five percent hiring
quota applies to the entire state trooper force or just to
entry-level troopers.” Paradise v. Shoemaker, 470 F.
Supp. 439, 440 (M.D. Ala. 1979). The court responded
that “there is no ambiguity” and that the twenty-five per
cent quota applies “to the entire force of sworn officers,
not just to those in the entry-level rank.” Id. at 440-41.
The court observed that the defendants were guilty of dis
crimination not just in hiring, but in all ranks of the
patrol. The court then emphasized that,
One continuing effect of that discrimination is that,
as of November 1, 1978, out of 232 state troopers at
the rank of corporal or above, there is still not one
black. The quota fashioned by the Court provides an
impetus to promote blacks into those positions. To
focus only on the entry-level positions would be to ig
nore that past discrimination by the Department was
pervasive, that its effects persist, and that they are
manifest.
Id. at 442 (emphasis in original).
On February 16, 1979, the parties entered into a consent
decree which required that the department develop and
implement a valid promotion procedure for the rank of
corporal. The decree gave the department a year to meet
this objective, after which the department was to do the
same, in turn, for the ranks of sergeant, lieutenant, cap
tain and major. This time schedule was not met, and on
132
August 18, 1981, the parties entered into another consent
decree which allowed the department to administer a new
ly developed promotion procedure for the rank of cor
poral, but prohibited any promotions under the procedure
until it had been first determined that the procedure had
“little or no adverse impact against black applicants.” Ac
cording to the decree, adverse impact was to be deter
mined and measured by the “four-fifths rule” set forth in
Section 4 D of the Uniform Guidelines of Employee Selec
tion Procedures, 28 C.F.R. § 50.14 (1983).
On April 7, 1983, the plaintiffs filed a motion seeking
enforcement of the 1979 and 1981 consent decrees and, in
particular, a determination whether the department’s pro
motion procedure for corporal had an adverse racial im
pact. The department needed at least 15 new corporals,
and the parties were unable to agree whether the pro
cedures developed in 1981 could be used for the promo
tions. On October 28, 1983, the court found that the pro
cedure did have an adverse racial impact on black appli
cants and, in accordance with the 1981 consent decree,
prohibited use of the procedure.
The parties have been unable to agree upon another
selection procedure for the 15 needed corporals; and, as
required by the 1981 consent decree, they have requested
that the court fashion a procedure.
II.
On February 10, 1984, less than two months from to
day, twelve years will have passed since this court con
demned the racially discriminatory policies and practices
of the Alabama Department of Public Safety. Neverthe
less, the effects of these policies and practices remain per
vasive and conspicuous at all ranks above the entry-level
position. Of the 6 majors, there is still not one black. Of
the 25 captains, there is still not one black. Of the 35 lieu
tenants, there is still not one black. Of the 65 sergeants,
133
there is still not one black. And of the 66 corporals, only
four are black. Thus, the department still operates an up
per rank structure in which almost every trooper obtained
his position through procedures that totally excluded
black persons. Moreover, the department is still without
acceptable procedures for advancement of black troopers
into this structure, and it does not appear that any pro
cedures will be in place within the near future. The pre
ceding scenario is intolerable and must not continue. The
time has now arrived for the department to take affirma
tive and substantial steps to open the upper ranks to black
troopers.
In light of the severe racial imbalances in the upper
ranks, the court agrees with the plaintiffs that for a period
of time at least 50% of all those promoted to corporal and
above must be black troopers, as long as there are quali
fied black troopers available.1 The court also agrees with
the plaintiffs that if there is to be within the near future an
orderly path for black troopers to enter the upper ranks,
any relief fashioned by the court must address the depart
ment’s delay in developing acceptable promotion pro
cedures for all ranks. The court will therefore enter an
order requiring that, for each white trooper promoted to a
higher rank, the department shall promote one black
trooper to the same rank, if there is a black trooper objec
tively qualified for the promotion. This requirement shall
remain in effect as to each rank above entry level until
either 25% of the rank is black or the department has de
veloped and implemented for the rank a promotion pro
cedure which meets the requirements of the prior orders
1 In light of the department’s failure after almost twelve years to
eradicate the continuing effects of its own discrimination and to
develop acceptable promotion procedures and in light of the severity
of the existing racial imbalances, a credible argument could be made
that all 15 of the new corporals should be black, followed perhaps by a
one-to-one ratio. However, the plaintiffs are not seeking this relief.
134
and decrees of this court and all other relevant legal re
quirements.2 The court will also require that the depart
ment submit to the court for the court’s approval a
schedule for the development of promotion procedures for
all ranks above the entry-level position. The schedule
should be based upon realistic expectations.
III.
The relief fashioned by the court today is warranted by
law. Where there has been unlawful discrimination, a
district court has not only the power but the responsibility
to fashion a remedy that will as much as possible eliminate
the discriminatory effects of past discrimination as well as
bar like discrimination in the future. Albemarle Paper Co.
v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372 (1972).
As the evidence in the present case dramatically demon
strates, these effects will not wither away of their own ac
cord. Furthermore, in fashioning relief, a court should in
clude race-conscious requirements if they are necessary,
reasonable, and otherwise appropriate under the circum
stances.3 United States v. City o f Miami, 664 F.2d 435 (5th
Cir. Dec. 3, 1981) (en banc) (former Fifth Circuit); United
States v. City o f Alexandria, 614 F.2d 1358 (5th Cir.
1980).
2 According to the 1980 Census o f Population published by the
U.S. Department of Commerce, the State of Alabama is approxi
mately 26% black. In International Brotherhood o f Teamsters v.
United States, 431 U.S. 324, 340 n. 20, 97 S.Ct. 1843, 1857 n.20
(1977), the Supreme Court stated that “absent explanation, it is or
dinarily to be expected that nondiscriminatory hiring practices will in
time result in a work force more or less representative of the racial and
ethnic composition of the population in the community from which
employees are hired.”
3 In an earlier order this court demonstrated dramatically the-ef
ficacy of quotas, over other remedies, in instances where blacks have
historically been completely excluded or almost completely excluded
from employment. NAACPw. Dothard, 373 F. Supp. 504 (M.D.Ala.
1974) (Johnson, C.J.)
135
The promotional quotas imposed by the court today are
clearly necessary. The racial imbalances in the upper ranks
of the Alabama Department of Public Safety remain egre
gious and are now of long duration; and, furthermore, it is
apparent from the history of this lawsuit that without im
mediate, affirmative, race-conscious action these in
tolerable disparities will not dissipate within the near
future.
The promotional quotas are also reasonable. They are
specifically tailored to redress the continuing effects of
past discrimination, but they do “not unnecessarily tram
mel the interest of white employees.” 4 United Steel
workers v. Weber, 443 U.S. 193, 208-09, 99 S.Ct. 2721,
2730 (1979). They do not require the discharge or demo
tion of a white trooper or his replacement with a black
trooper; nor do they create an absolute bar to the advance
ment of white troopers. Moreover, the quotas are but a
temporary measure, designed not to maintain a racial
balance, but simply to eliminate a manifest and chronic
racial imbalance. Finally, only qualified black troopers
will be considered for promotion under the quotas. See,
e.g., United Steelworkers v. Weber, supra; United States
v. City o f Miami, supra; United States v. City o f Alexan
dria, supra.
The quotas imposed by the court are also not without
legal precedent. In United States v. City o f Alexandria,
supra, the former Fifth Circuit approved a consent decree
4 The court has allowed four white troopers to intervene as defend-
ant-intervenors. Their intervention is on a prospective basis only; they
are not allowed to challenge prior orders, judgments, and decrees of
the court. United States v. California Co-operative Canneries, 279
U.S. 553, 556, 49 S.Ct. 423, 424 (1929); Smith v. Missouri Pac. R.
Co., 615 F.2d 683 (5th Cir. 1980). See Thaggard v. City o f Jackson,
687 F.2d 66, 68 (5th Cir. 1982), cert, denied sub nom. Ashley v. City
of Jackson, _ U.S. _ , 104 S.Ct. 255 (1983). See also 3B J. Moore &
J. Kennedy, Moore’s Federal Practice ̂ 24.16 [5]; 7A C. Wright & A.
Miller, Federal Practice and Procedure § 1920.
136
imposing on a municipality promotional quotas ranging
from 25 to 50%. Under the decree, the quotas are to re
main in effect until the municipality achieves the same
percentages of blacks and women as are in the overall
work force in the affected localities. See also, e.g.,
E.E.O.C. v. American Telephone and Telegraph Com
pany, 556 F.2d 167 (3rd Cir. 1977), cert, denied, 439 U.S.
915, 98 S.Ct. 3145 (1978).
Two factors in the present case make the claim for pro
motional quotas even stronger than it was in City o f Alex
andria. In contrast to the earlier case, here the court has
made a specific finding of long-term, open and pervasive
racial discrimination. Moreover, this court has before it a
record demonstrating that without promotional quotas the
continuing effects of this discrimination cannot be
eliminated. Nevertheless, the quotas imposed by this court
are substantially less constraining than those imposed in
City o f Alexandria. Under the order this court will enter
today, the Alabama Department of Public Safety has the
prerogative to end the promotional quotas at any time,
simply by developing acceptable promotion procedures. It
is thus possible for the use of the quotas to be a one-time
occurrence.
IV.
Finally, as this lawsuit moves into its twelfth year, it is
clear that the court and the parties should now con
template bringing this litigation to an end. The court
therefore hopes that, in addition to achieving the above
objectives, the remedy imposed today will hasten the day
when the Alabama Department of Public Safety is no
longer under the supervision of this court.
137
An appropriate order will be entered in accordance with
this memorandum opinion.
DONE, This the 15th day of December, 1983.
[SIGNATURE]___________
United States District Judge
138
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CIVIL ACTION NO. 3561-N
P hillip Paradise, Jr., individually and on behalf of
THE CLASS SIMILARLY SITUATED, PLAINTIFFS
U nited States of A merica, plaintiff and amicus curiae
v.
Byron P rescott, as director of the Alabama
DEPARTMENT OF PUBLIC SAFETY, ETC., ET AL., DEFENDANTS
V. E. McClellan, et al., defendant-intervenors
ORDER
The court now has before it several motions seeking
reconsideration or, in the alternative, a stay pending ap
peal of the court’s December 15, 1983, order imposing a
temporary promotional quota on the Alabama Depart
ment of Public Safety. A hearing was held on the motions
on January 5, 1984.*
Since the opinion accompanying the December 15 order
addressed in detail most of the issues raised by the mo
tions, the court will now address only those issues not ad
dressed earlier or in need of further explanation.
Of particular concern to the court is the department’s
new contention that it “is without legal authority and suf
ficiently trained personnel to design any promotional pro
cedures.” The Department of Public Safety now maintains
that this “function is allocated by statute to the Depart
* Although some motions were not filed until January 6, they were
argued on January 5. At the January 5 hearing the court was informed
that the additional motions were forthcoming.
139
ment of Personnel of the State of Alabama.” In 1979 and
1981, the Public Safety Department entered into consent
decrees providing for advancement of black troopers into
the upper ranks of the patrol. The decrees require the
department to fashion acceptable promotion procedures.
The department’s counsel acknowledged at the January 5
hearing that it was anticipated that development of these
procedures would take only a few months. It is now years
later and this court will not entertain the excuse that the
department is now without legal authority to meet its
obligations under the consent decrees. The department
entered into the consent decrees and now has no right to
refute those decrees. Moreover, the Department of Per
sonnel, which is also a party to these proceedings, assured
the court at the January 5 hearing that it would work
closely with the Public Safety Department to develop ac
ceptable promotion procedures. The Public Safety De
partment’s contention that it is without legal authority is
not only meritless, it is frivolous.
Moreover, that the Department of Public Safety would
even advance this argument dramatically demonstrates the
need for the relief imposed by this court. Such frivolous
arguments serve no purpose other than to prolong the dis
criminatory effects of the department’s 37-year history of
racial discrimination. As the court stated in its December
15 opinion,
the department is still without acceptable procedures
for advancement of black troopers into this structure,
and it does not appear that any procedures will be in
place within the near future. The preceding scenario is
intolerable and must not continue. The time has now
arrived for the department to take affirmative and
substantial steps to open the upper ranks to black
troopers.
The Public Safety Department also seeks clarification of
the words “qualified black trooper” in the court’s Decern-
140
ber 15 opinion and order. Counsel for the department
stated at the January 5 hearing that while he thought he
understood what the court meant, he was not certain. The
court sees no need for clarification at this time. The proper
procedure for the department and its counsel is to submit
to opposing counsel their understanding of the words.
Unless the parties differ on the meaning of the words,
there is no need to clarify them.
Furthermore, the court sees no need to stay its Decem
ber 15 order. All parties, except defendant-intervenors,
agree that at least 4 of the 15 new corporals must be black.
The December 15 order requires that 7 or 8 be black.
Thus, the immediate impact of the order is to increase the
number of black corporals by 3 or 4. These promotions
come after almost half a century in which blacks have been
unable to enter the upper ranks of the troopers: For 37
years the department operated under a regime of racism
which totally excluded blacks from all ranks in the patrol;
and for the last 12 years there have been no acceptable
promotion procedures by which blacks could advance in
the patrol. In light of this history, the 7 or 8 black troopers
promoted as a result of the December 15 order are, if any
thing, far from enough; and to decrease this number now
would be nothing less than a “blow upon a wound.”
Moreover, the equities, when balanced, favor keeping in
place the temporary promotional quota imposed by the
court. Black persons waited almost half a century to get
the 7 or 8 promotions required by the December 15 order.
Surely, those dissatisfied with the relief can wait the few
months needed for appellate review. And should the ap
pellate court find the relief imposed by this court is inap
propriate, adjustments can be made in future promotions
to correct the effects of this court’s relief.
Finally and perhaps most significantly, it appears likely
that the temporary promotional quota will not extend be
yond the present 15 promotions. At the January 5 hearing,
141
the Personnel Department pledged that it would now
devote its full resources to assisting the Public Safety De
partment in not only developing acceptable promotion
procedures as required by the consent decrees, but in do
ing so within the near future. If these two departments
hold fast to this promise, the temporary promotional
quota should be, as this court hoped and expressed in the
December 15 opinion, “a one-time occurrence.” It thus ap
pears that the December 15 order will have an effect which
will please all parties: the development of acceptable pro
motion procedures and the mooting of the temporary pro
motional quota. This is not the time to stay the order.
Accordingly, it is ORDERED that the following mo
tions be and they are hereby denied: defendant-inter
veners’ January 6, 1984, motion to stay; the United State’s
January 6, 1984, motion to stay; defendant Prescott, et
al.’s December 27, 1983, motion to alter or amend judg
ment and stay of order; defendant Alabama Personnel
Director’s December 27, 1983, motion for reconsideration;
defendant-intervenors’ December 27 and 30, 1984, mo
tions to alter or amend and to stay enforcement; and the
United State’s December 23, 1983, motion to alter or
amend judgment.
DONE, this the 13th day of January, 1984.
[SIGNATURE]___________
United States District Judge
142
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CIVIL ACTION NO. 3561-N
P hillip Paradise, Jr., etc., plaintiffs
U nited States of A merica, plaintiff and amicus
curiae,
v .
Byron P rescott, etc., et al„ defendants
V. E. McClellan, et al„ defendant-intervenors.
STATEMENT OF COMPLETION OF PROCEDURE
FOR PROMOTION TO RANK OF CORPORAL
Comes now Byron Prescott, Director of the Alabama
Department of Public Safety, by and through his attorney
of record and states to this Honorable Court as follows:
(1) that the procedure designed for use in selecting can
didates for promotion to the rank of Corporal has been
completed;
(2) that the procedure has been implemented;
(3) that a final ranking of candidates eligible for promo
tion has been completed; and
(4) that the selection procedure conforms with the appli
cable statutes and Orders entered in this case.
As a result of this procedure, thirteen (13) persons have
been certified as “best qualified” for promotion to Cor
poral. From this number, the Director will select the per
143
sons to be promoted as the need for Corporals arises, if
the procedure is approved for use by this Court.
Respectfully submitted,
HARDIN & HOLLIS
/s / Edward L. Hardin, Jr.
Edward L. Hardin, Jr.,
Of Counsel for Defendants
OF COUNSEL:
Edward L. Hardin, Jr.
Hardin & Hollis
Post Office Box 11328
Birmingham, Alabama 35202-1328
Telephone: (205) 328-2675
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing
Motion has been served upon all counsel of record, as
below listed, by placing a copy of same in the United
States mail, postage prepaid and properly addressed on
this the 18th day of June, 1984:
Dennis N. Balske
1001 South Hull Street
Post Office Box 2087
Montgomery, Alabama 36103-2087
Louise A. Lerner, Esquire
Department of Justice
Post Office Box 23991
L’Enfant Plaza
Washington, D.C. 20026-3991
James S. Ward, Esquire
Ward & McKnight
2100 16th Avenue South
Suite 302
Birmingham, Alabama. 35205
Edward L. H ardin, Jr .
Of Counsel
144
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CIVIL ACTION NO. 3561-N
P hillip Paradise, Jr., etc., plaintiffs
U nited States of A merica, plaintiff and amicus
CURIAE,
V.
Byron P rescott, etc., et al., defendants
V. E. McClellan, et al., defendant-intervenors.
MOTION TO APPROVE SELECTION
PROCEDURE FOR PROMOTION TO CORPORAL
Comes now Byron Prescott, as Director, Alabama
Department of Public Safety, and moves this Honorable
Court for an Order approving the procedure designed for
use in selecting persons best qualified for promotion from
the rank of State Trooper to Corporal and to authorize the
Director of the Department to promote persons from the
list of persons ranked “best qualified” to the rank of Cor
poral as the need arises.
Counsel for this Defendant has kept counsel for the
Plaintiffs generally informed of the procedure used and
will furnish counsel any additional information requested
upon receipt of an Order from this Court that all con
fidential information not be disclosed to any other person
unless specifically approved by the Court.
Counsel for this Defendant requests that the Court
order all hearings held in connection with this motion be
confidential in order to protect the validity of the selection
procedure utilized. If confidentiality is not maintained,
145
certain aspects of the procedure could not be used in the
future.
Respectfully submitted,
HARDIN & HOLLIS
/s / Edward L. Hardin, Jr.
Edward L. Hardin, Jr.,
Of Counsel for Defendants
OF COUNSEL:
Edward L. Hardin, Jr.
Hardin & Hollis
Post Office Box 11328
Birmingham, Alabama 35202-1328
Telephone: (205) 328-2675
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing
Motion has been served upon all counsel of record, as
below listed, by placing a copy of same in the United
States mail, postage prepaid and properly addressed on
this the 18th day of June, 1984:
Dennis N. Balske
1001 South Hull Street
Post Office Box 2087
Montgomery, Alabama 36103-2087
Louise A. Lerner, Esquire
Department of Justice
Post Office Box 23991
L’Enfant Plaza
Washington, D.C. 20026-3991
James S. Ward, Esquire
Ward & McKnight
2100 16th Avenue South
Suite 302
Birmingham, Alabama 35205
/s / Edward L. H ardin, Jr.
Of Counsel
146
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CIVIL ACTION NO. 3561-N
P hillip Paradise, Jr., etc., plaintiffs
U nited States of A merica, plaintiff and amicus
CURIAE,
V.
Byron P rescott, etc., et al., defendants
V. E. McClellan, et al., defendant-intervenors.
RESPONSE TO DEFENDANT PRESCOTT’S
MOTION TO APPROVE SELECTION
PROCEDURE FOR PROMOTION TO CORPORAL
Come now the defendant-intervenors in the above styled
cause, by and through their attorney of record, and pur
suant to this Court’s Order of June 21, 1984, submit the
following as their response to defendant Prescott’s Motion
to Approve Selection Procedure for Promotion to Cor
poral:
1. While defendant Prescott may have kept counsel for
the plaintiffs generally informed of the procedure used for
promotion for corporal, the intervenors have been told
nothing, they have been informed of nothing and have not
in any way been privy to the procedure used. Consequent
ly, without being allowed to conduct some discovery or to
be fully informed of the procedure utilized, the inter
venors are not in a position to assert whether they approve
of the promotion system to be utilized.
2. Without being informed of or having the knowledge
147
of the procedure utilized for promotion to corporal, the
intervenors would object to any promotions which are
based on any factor other than merit and would object to
any promotion system which in any way violates the rights
guaranteed to them by state or federal law or by the
United States Constitution. Further, intervenors would
object to any selection procedure for promotion to cor
poral which benefits, to the detriment of the intervenors,
persons who have not shown to be actual victims of dis
crimination in promotion. Defendant-intervenors further
object to the utilization of any selection procedure for pro
motion to corporal or for an Order approving the same
which goes beyond the remedial authority and policy of
§ 706(g) of Title VII as recently expressed by the United
States Supreme Court in Memphis Fire Department, et al,
v. Stotts, 52 U.S.L.W. 4767, 4771-4773 (June 12, 1984).
3. The consent decrees previously entered in this cause
were done so when the defendant-intervenors were not
parties to this litigation, yet those decrees substantially af
fect their rights to employment and career aspirations. The
consent decrees previously entered in this cause also im
pose a racial quota or preference in any promotional
scheme to corporal. This is so because no matter how con
tent valid, scrupulously fair or otherwise valid the cor
poral examination may be, rank order promotion will not
be allowed if a finding of adverse impact against blacks is
made, that finding to be determined by the utilization of
the four-fifths rule. As a result, promotions will then be
made by “awarding” to blacks, at the expense and to the
detriment of the intervenors, who are either equally or bet
ter qualified, guaranteed promotions. This system of
racial quota or preference in promotion, by the utilization
of the four-fifths rule, ignores not only the content validi
ty of any examination, but more importantly the now im
perative requirement that any black afforded preferential
treatment in promotion, be an actual victim or discrimina
148
tion in promotion. See Memphis Fire Department, et al.,
v. Stotts, 52 U.S.L.A. 4767 (June 12, 1984).
It then follows, based on Stotts, supra., that any cor
poral promotional scheme pursuant to the previously
entered consent decrees which allows a black to be pro
moted over an equally or better qualified white, simply be
cause he is black, without a showing that he was an actual
victim of discrimination in promotion, violates the de-
fendant-intervenors rights as guaranteed by state and
federal law and the United States Constitution and goes
beyond the remedial authority granted unto District
Courts by § 706(g) of Title VII.
Consequenly, any corporal promotion or Orders allow
ing corporal promotion pursuant to the previously entered
consent decrees which set aside guaranteed places for
blacks or which allow blacks to be promoted over equally
or better qualified whites, simply because that person was
black, without any showing that that person was an actual
victim of discrimination in promotion, is invalid. See
M e m p h is Fire Department, et al., v. Stotts, 52 U.S.L.W.
4767 (June 12, 1984).
Moreover, and as a result of Stotts, supra., the consent
decrees must now be modified to allow promotions to cor
poral only in a manner that does not violate the rights of
the defendant-intervenors and in a way which does not ex
ceed the remedial authority granted unto District Courts
by § 706(g) of Title VII or the policy behind the same as
expressed in Stotts, supra.
4. Defendant-intervenors would object to any promo
tion until it can be determined that any promotional
schemes would be in accordance with the principals set
forth by the United States Supreme Court in Memphis Fire
Department, et al., v. Stotts, 52 U.S.L.W. 4767 (June 12,
1984) and request that the consent decrees previously
entered, after discovery and hearing, be modified in ac
cordance with that opinion.
149
5. For that defendant Prescott states that the selection
procedure conforms with applicable statutes and Orders
entered in this case. If by this it is meant that the pro
cedure conforms with the previously entered consent
decrees, defendant-intervenors object on the grounds
heretofore stated.
Respectfully submitted,
Ward & McKnight
/ s / James S. Ward_________
James S. Ward
Attorney for
defendant-intervenors
2100 16th Avenue South
Birmingham, Alabama 35205
(205) 933-7000
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing
Response has been served upon all counsel of record, as
below listed, by placing a copy of same in the United
States mail, postage prepaid and properly addressed on
this the 27th day of June, 1984:
John Bell
U.S. Attorney
P.O. Box 711
Montgomery, AL
36101
Richard Meadows
Assistant Attorney General
Office of Attorney General
Montgomery, Alabama
36101
Dennis N. Balske
1001 South Hull Street
Post Office Box 2087
Montgomery, Alabama
36103-2087
Edward L. Hardin, Jr.
Hardin & Hollis
Post Office Box 11328
Birmingham, Alabama
35202-1328
150
Louise A. Lerner
Department of Justice
Post Office Box 23991
L’Enfant Plaza
Washington, D.C. 20026-3991
/ s / James S. Ward
James S. Ward
151
IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CIVIL ACTION NO. 3561-N
Phillip Paradise, Jr., individually and on behalf of
THE CLASS SIMILARLY SITUATED, PLAINTIFFS
United States of A merica, plaintiff and amicus
curiae,
v.
Byron P rescott, as director of the Alabama
DEPARTMENT OF PUBLIC SAFETY, ETC., ET AL„ DEFENDANTS
V. E. McClellan, et al., defendant-intervenors.
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION
TO APPROVE SELECTION PROCEDURE
FOR PROMOTION TO CORPORAL
On June 18, 1984, defendants filed a Statement of Com
pletion of Procedure for Promotion to Rank of Corporal,
along with a Motion to Approve Selection Procedure for
Promotion to Corporal. These pleadings were filed in
compliance with a February, 1984 schedule for the devel
opment of promotion procedures, in which defendants
agreed to develop a promotion procedure for the position
of corporal within five months that would have little or no
adverse impact on black promotion applicants.
Due to the confidential nature of the data involved here,
defendants have requested an order from this court insur
ing confidentiality of any data they provide to plaintiffs,
before they will release any of it to plaintiffs. Accordingly,
plaintiffs hereby request any and all data in the possession
of defendants that will enable plaintiffs to evaluate this
new procedure, including but not limited to:
152
1. The rankings of promotional candidates, including
appropriate racial designations;
2. A copy of the written examination that was admin
istered, along with any relevant validation data;
3. A written description of the entire procedure;
4. The names, races and qualifications of the three per
sons who served as interviewer/panelists.
5. A list of the questions asked by the panelists during
interviews, including all relevant validation data for each
question;
6. Copies of any and all forms/records kept by panelists
during interview sessions, or any other relevant documents
reflecting written accounts of the individual evaluations
given by the panel and individual panelists.
7. The name, address, and qualifications of the
person(s) responsible for the development of this pro
cedure, as well as copies of all written documents/reports
authored by this person with respect to the procedure
under review.
8. All documents, reports, etc. prepared by officials
and/or agents of the defendants respecting this procedure,
including but not limited to writings and data supplied to
defendants’ expert(s) and interview panelists and docu
ments exchanged between Department officials/agents.
9. Copies of all written instructions given to defendants’
expert(s) and interview panelists, as well as descriptions of
any oral instructions.
10. A written description of how selections will be made
from the list of 13 “best qualified” candidates, including a
statement of any affirmative action commitment defend
ants will undertake in order to comply with the “little or no
adverse impact on blacks” provisions of the 1979 and 1981
decrees.
11. Copies of any and all evaluations of the new
test/procedure that were procured from applicants by de
fendants, including designations of the race of those mak
153
ing such evaluations and a statement of the purpose for
which these evaluations were procured.
12. Copies of any and all documents exchanged between
the Department of Public Safety and the Department of
Personnel regarding any and all of the matters listed
above, as well as any documents exchanged between the
Department of Personnel and defendants’ expert(s) and in
terview panelists.
13. A statement of whether and, if so, how the rule of
three will be followed in the selections of promotion can
didates.
14. Any and all other written documents relevant to the
implementation of defendants’ new promotion procedure
not specifically requested above, that are in the possession
of the Alabama Department of Public Safety, the Depart
ment of Personnel, and/or any and all officials/agents of
those Departments, or that were retained/commissioned
by those Departments, with respect to this promotion pro
cedure.
15. A projection of the life of this promotion list, as well
as a description of the relevant factors which will deter
mine its life.
16. A description of any and all supervisory training
programs developed, and/or implemented by defendants
to train troopers for entry into supervisory positions, in
cluding but not limited to the affirmative action goals
which are involved and future plans for this or any other
supervisory training programs.
17. A statement of reasons why the proposed procedure
will have little or no adverse impact on black applicants
for promotion, both under the present and future promo
tion lists.
Plaintiffs do not object to, and specifically agree to
comply with, an appropriate order from the court protect
ing the confidentiality of the information described in
paragraphs one through seventeen. Upon receipt of this
information, plaintiffs will evaluate it with due speed and
154
file a supplemental written response to defendants’ mo
tion, addressing the issue of whether the new procedure
meets the specific requirements of the 1979 and 1981
decrees and relevant legal requirements.
Respectfully submitted,
/s / Dennis N. Balske_______
Dennis N. Balske
P.O. Box 2087
Montgomery, AL 36102-2087
205/264-0286
Attorney for Plaintiffs
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing have been
served upon Ed Hardin, Rick Meadows, Cynthia Drabek,
James S. Ward and John Bell, by U.S. First Class Mail,
this 29th day of June, 1984.
/ s / D e n n i s N. B a l s k e ___________
Attorney for Plaintiffs
155
IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CIVIL ACTION NO. 3561-N
P hillip Paradise, Jr., individually and on behalf of
THE CLASS SIMILARLY SITUATED, PLAINTIFFS
U nited States of A merica, plaintiff and amicus
curiae,
v.
Byron P rescott, as director of the Alabama
DEPARTMENT OF PUBLIC SAFETY, ETC., ET AL., DEFENDANTS
V. E. McClellan, et al., defendant-intervenors.
PLAINTIFFS’ RESPONSE TO INTERVENORS’
OBJECTION TO IMPLEMENTATION OF
NEW PROMOTION PROCEDURE
On June 27, 1984, intervenors filed a Response to De
fendants Motion to Approve Selection Procedure for Pro
motion to Corporal, in which they asserted, inter alia, that
the 1979 and 1981 consent decrees would have to be modi
fied in order to comply with the Supreme Court’s recent
decision respecting bona fide seniority systems. Plaintiffs
submit that intervenors’ assertion is meritless and should
be rejected.
Plaintiffs this data have filed their brief in the Eleventh
Circuit Court of Appeals supporting this Court’s Order of
December 15, 1984. Section IV of the brief addresses the
limited effect of the Supreme Court’s recent decision on
the case sub judice. It conclusively demonstrates the in
validity of intervenors’ instant contention.
Rather than repeat the discussion of the limited effect of
the Court’s recent seniority decision here, plaintiffs have
156
attached a copy of the brief hereto and specifically incor
porate it herein as its response to intervenors contention.
For the reasons stated therein, intervenors assertions
should be rejected.
Respectfully submitted,
/s / Dennis N. Balske_______
Dennis N. Balske
P.O. Box 2087
Montgomery, AL 36102-2087
Attorney for Plaintiffs
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing have been
served upon Ed Hardin, Rick Meadows, Cynthia Drabek,
James S. Ward and John Bell, by U.S. First Class Mail,
this 29th day of June, 1984.
/ s / D e n n i s N. B a l s k e ___________
Attorney for Plaintiffs
157
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CIVIL ACTION NO. 3561-N
P hillip Paradise, Jr., etc., et al., plaintiffs
U nited States of A merica, plaintiff and amicus curiae
v.
Byron P rescott, etc., et al ., defendants
V. E. McClellan, et al ., defendant-intervenors
RESPONSE TO ORDER
Comes now the defendant Personnel Board of the State
of Alabama and does hereby respond to this Court’s order
of June 21, 1984.
The above-styled defendant has no objection to the use
of the promotional procedure and believes that the pro
cedure does not discriminate against any persons eligible
for promotion to the rank of corporal within the Depart
ment of Public Safety.
Respectfully submitted,
Charles A. Graddick
Attorney General
By / s / Richard N. Meadows
Assistant Attorney General
Address of Counsel:
Office of the Attorney General
250 Administrative Building
64 North Union Street
Montgomery, Alabama 36130
(205) 834-5150
158
CERTIFICATE OF SERVICE
I hereby certify that I have served a copy of the forego
ing on the following:
Hon. Dennis N. Balske
1001 South Hull Street
Post Office Box 2087
Montgomery, Alabama 36103
Hon. Cynthia Drabek
Department of Justice
Post Office Box 23991
L’Enfant Plaza
Washington, D.C. 20026
Hon. James S. Ward
Ward & McKnight
2100 16th Avenue, South
Suite 302
Birmingham, Alabama 35205
by placing said copies in the United States Mail, postage
prepaid.
DONE this the 27th day of June, 1984.
/s / Richard N. Meadows
Richard N. Meadows
Assistant Attorney General
Address of Counsel:
Office of the Attorney General
250 Administrative Building
64 North Union Street
Montgomery, Alabama 36130
(205) 834-5150
159
IN THE DISTRICT COURT FOR THE UNITED
STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CIVIL ACTION NO. 3561-N
P hillip Paradise, Jr., etc., et al., plaintiffs
U nited States of A merica, plaintiff
v.
Byron P rescott, etc., et al., defendants
RESPONSE OF THE UNITED STATES
TO DEFENDANTS’ MOTION TO
APPROVE SELECTION PROCEDURE
By its order of June 21, 1984, this Court directed the
United States to respond to the defendants’ motion seek
ing approval of their selection procedure for promotions
to State Trooper Corporal positions. The United States
response as follows:
1. Counsel for the United States first learned of defend
ants’ selection procedure for corporal promotions on June
22, 1983, when she learned of the scheduled hearing on
defendants’ motion.
2. In a telephone conversation with defendants’ counsel,
Mr. Hardin, the undersigned counsel for the United States
was advised generally of the selection procedure and its
results, including the following facts:
a. The selection procedure included a written exam
that, together with trooper performance ratings, was
used as a screening device;
b. Troopers who passed the screening device were inter
viewed by a 3-member panel;
160
c. On the basis of the oral interviews, candidates were
ranked in the following categories: best qualified,
highly qualified, qualified, and unqualified;
d. Of the 256 troopers who applied and took the written
test for State Trooper Corporal, 77 (30.1%) were
black;
e. Of the thirteen troopers who were rated “best
qualified”, three (23.1%) are black;
f. All of the troopers rated “best qualified” are deemed
equally qualified;
g. The Department of Public Safety believes it is unlike
ly that it will make promotions from this list beyond
the “best qualified” group.
3. Based upon the above representations of counsel, it
appears that the selection procedure, up to the point of
identifying the thirteen “best qualified” candidates does
not have an unlawful adverse impact. See, Uniform
Guidelines on Employee Selection Procedures, 43 Fed.
Reg. 38290, 28 C.F.R. 50.14 (1978), § 4D; Questions and
Answers to Clarify and Provide a Common Interpretation
o f the Uniform Guidelines on Employee Selection Pro
cedures, 44 Fed. Reg. 11996, March 2, 1979, Q & A #21.
Accordingly, the United States does not oppose the de
fendants’ motion to allow corporals to be promoted from
their list of “best qualified” candidates.
4. The racial impact of the total selection process cannot
be known until actual promotions are made from among
the thirteen “best qualified” candidates. According to de
fendants’ representations, the Director of the Department
of Public Safety, under this procedure, has discretion to
appoint any of the “best qualified” troopers for corporal
vacancies that arise. The United States does not believe it
is necessary to circumscribe the Director’s discretion at this
time. However, the actual selections of troopers to be pro
moted should be monitored closely to prevent any promo
tions that would result in unlawful adverse impact which
would violate federal law or the orders of this Court.
161
Accordingly, the United States proposes that the de
fendants be required to identify to plaintiffs, including
plaintiff United States, and the Court each trooper who is
to be promoted to corporal no less than one week before
the promotion is to take effect. If plaintiffs object to the
proposed promotion, or if the Court so orders, the promo
tion should not take effect until the matter is resolved by
the Court.
5. The United-States has no information about the com
position of the group of candidates rated “highly
qualified” or • “qualified.” Therefore, it has no opinion
whether promotions from those groups would comply
with this Court’s orders.
CONCLUSION
Based upon the representations of counsel, the United
States believes that the procedure for identifying the thir
teen “best qualified” candidates for State Trooper Cor
poral positions does not have an adverse impact and com
plies with the orders of this Court. The United States does
not oppose the defendants’ proposal to select corporals
from the list of “best qualified” candidates. The United
States submits that actual promotions of individuals
selected from that list should not become of effective
unless or until (1) one week has elapsed after notification
to the Court and to plaintiffs of the individuals to be pro
moted and no objection has been filed, or (2) any objec
tion having been raised, the Court has resolved the matter
pursuant to such proceedings as it deems proper.
John C. Bell
United States Attorney
By: ________________
Kenneth E. Vines
Assistant United States
Attorney
Respectfully submitted,
/ s / Cynthia D rabek
Cynthia Drabek
A ttorney
Post Office Box 23991
L’Enfant Plaza
Wash., D.C. 20026-3991
(202) 633-3415
162
CERTIFICATE OF SERVICE
I hereby certify that I have served the foregoing
Response of the United States to Defendants’ Motion to
Approve Selection Procedure by mailing a copy, postage
, prepaid, to counsel listed below:
Mr. Dennis N. Balske
P.O. Box 2087
Montgomery, Alabama 36102-2087
Mr. Edward L. Hardin, Jr.
Post Office Box 1214
Birmingham, Alabama 35201
Mr. Richard N. Meadows
Ms. Rosa H. Davis
Assistant Attorneys General
250 Administrative Building
Montgomery, Alabama 36130
Mr. James S. Ward
1933 Montgomery Highway
Birmingham, Alabama 35209
This the 26th day of June, 1984.
/s / Cynthia D rabek________
Cynthia Drabek
Attorney
Post Office Box 23991
L’Enfant Plaza
Washington, D.C.
20026-3991
(202) 633-3415
163
IN THE DISTRICT COURT FOR THE UNITED
STATES FOR THE MIDDLE DISTRICT OF
ALABAMA NORTHERN DIVISION
CIVIL ACTION NO. 3561-N
P hillip Paradise, Jr ., etc., et al., plaintiffs
U nited States of A merica, plaintiff
v.
Byron P rescott, etc., et al., defendants
ORDER
This matter is before the Court on defendants’ June 19,
1984 Motion to Approve Selection Procedure for Promo
tion to Corporal. The Court has received written responses
of counsel, it received documentary evidence presented by
the Department of Public Safety and heard the arguments
of counsel for all parties at a hearing on July 3, 1984. The
Court having considered the evidence and arguments pre
sented, it is now hereby ORDERED:
1. Subject to the limitations set forth in this Order, de
fendants Prescott, et al., are permitted to make promo
tions to State Trooper Corporal from the group of persons
designated “best qualified” pursuant to the selection pro
cedure described in defendants’ June 19, 1984 motion.
2. Defendants Prescott, et al., shall select corporals
from the “best qualified” group in a non-discriminatory
manner. Defendants shall provide actual notice of such
promotions to counsel for the parties not less than five
working days prior to the effective date of such promo
tions. Such notice shall include the name and race of each
person to be promoted and may include any other infor
mation defendants deem relevant. If no party files a timely
164
objection, the promotions designated by defendants shall
take effect without further order of this Court. If a party
files an objection at least two days prior to the proposed
promotions, the promotions in question shall not become
effective until the Court so orders, before or after resolu
tion of the objection.
3. The one-for-one quota for corporal promotions,
ordered December 15, 1983, shall not apply to the use of
this selection procedure as described in paragraphs 1 and 2
of this Order.
4. The parties may proceed with discovery on the issue
whether the selection procedure described in the defend
ants’ June 19 motion can be validated as job-related pur
suant to The Uniform Guidelines on Employee Selection
Procedures, 28 C.F.R. 50.14, 29 C.F.R. 51.53, and thus
shown to be in compliance with the 1979 and 1981 consent
decrees, other orders in this case, and federal law.
5. The Court shall conduct further proceedings to deter
mine whether the results of future administrations of the
selection procedure presented by defendants Prescott, et
al., or a similar procedure, may be used to select State
Trooper Corporals without further review. Until further
order of this Court, defendants shall make no promotions
to State Trooper Corporal positions other than from the
group they have identified as the 13 “best qualified” can
didates.
DONE this 27th day of July, 1984.
[SIGNATURE]________
United States District Judge
165
IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CASE NUMBER 3561-N
P hillip P aradise, Jr., et al., plaintiffs
U nited States of A merica, plaintiff and amicus curiae
v .
Byron P rescott, et al., defendants
V. E. McClellan, et al., intervenors-defendants
NOTICE OF APPEAL
Notice is hereby given that Defendants-Intervenors, V.
E. McClellan, William M. Bailey, D. B. Mansell and Dan
Davenport hereby appeal to the United States Court of
Appeals for the Eleventh Circuit, from the Order entered
in this cause on the 27th day of July, 1984, ordering de
fendant, Byron Prescott to make promotions to State
Trooper Corporal. Defendant-intervenors further give
Notice of Appeal of that portion of the Order which
designates promotional procedures as set forth in the
Paragraphs 1 and 2 of the Order.
Respectfully submitted,
Corley, Moncus, Bynum, &
D eBuys, P.C.
/s / James S. W ard_________
James S. Ward
Attorney for Defendants-
Intervenors
2100 16th Avenue, South
Birmingham, Alabama
35205
166
CERTIFICATE OF FILING
I hereby certify that I have this date filed with the Clerk
of the District Court of the United States for the Middle
District of Alabama, Northern Division the original and
seven copies of the foregoing Notice of Appeal, together
with Seventy dollars ($70.00) for the filing and docket
fees, and such other instruments as have been completed
and included herein for service by the Clerk of a true copy
thereof on each of the following:
1. Clerk of the United States Court of Appeals for the
Eleventh Circuit together with the appropriate docket fee,
2. Counsel of record:
Ms. Cynthia Drabek
Attorney At Law
Room 5515 Main Building
Civil Rights Division
Department of Justice
Washington, D.C. 20530
Mr. Richard N. Meadows
Assistant Attorney General
250 Administrative Building
Montgomery, Alabama 36130
Mr. Dennis N. Balske
Attorney At Law
1001 South Hull Street
Montgomery, Alabama 36101
Mr. Edward L. Hardin, Jr.
Attorney At Law
Post Office Box 1214
Birmingham, Alabama 35201
Mr. Kenneth E. Vines
United States Attorney
Post Office Box 197
Montgomery, Alabama 36101
167
Dated this the 24th day of August, 1984.
/s / James S. Ward_________
Of Counsel
Corley, Moncus, Bynum, &
DeBuys, P.C.
Ash Place, Suite 300
2100 16th Avenue, South
Birmingham, Alabama
35205
(205) 939-0811
168
IN THE DISTRICT COURT FOR THE UNITED
STATES FOR THE MIDDLE DISTRICT OF
ALABAMA NORTHERN DIVISION
CIVIL ACTION NUMBER 3561-N
P hillip P aradise, Jr., et al., plaintiffs
U nited States of A merica, plaintiff and amicus curiae
v .
Byron P rescott, et al., defendants
V. E. McClellan, et al., defendants-intervenors
INTERVENORS OBJECTION TO
OPPOSED CORPORAL PROMOTIONS
Come now the Intervenors in the above styled cause and
hereby object to the proposed corporal promotions as
outlined in the September 5, 1984 letter sent to counsel and
the Court by the attorney for the Department of Public
Safety. The Intervenors’ objections are as follows:
(1) Intervenors adopt and incorporate herein by
reference their Response to Defendant Prescott’s Motion
to Approve Selection Procedure for Promotion to Cor
poral heretofore filed in this cause on June 28, 1984.
(2) For that Intervenors herein adopt and incorporate by
reference the grounds asserted in their Motion to Stay
heretofore filed in this cause on or about January 6, 1984
and -their Motion to Alter or Amend the Judgment of
December 15, 1983 and to Stay its Reinforcement as
Amended.
(3) For that Intervenors have filed a Notice of Appeal
with the 11th Circuit Court of Appeals challenging this
Court’s Order of July 27, 1984. Under the circumstances
this Court should abstain from approving any promotions
169
to Corporal until this Appeal can be heard. This Appeal
will involve important and substantial questions of con
stitutional law and statutory construction concerning the
recent U.S. Supreme Court case of Memphis Fire Depart
ment, et al. v. Stotts 52 U.S.L.W. 4767 (June 12, 1984).
The importance of this case has not escaped the other par
ties to this litigation as there is presently pending before
the 11th Circuit a request for the filing of an Amici Curiae
brief concerning the applicability of the Stotts issue to the
appeal by the parties of this Court’s December 15, 1983
Order.
Respectfully submitted,
Corley, Moncus, Bynum, &
D eBuys, P.C.
/s / James S. Ward_________
James S. Ward
Attorney for Intervenors
Suite 300, Ash Place
2100 16th Avenue, South
Birmingham, Alabama
35205
170
CERTIFICATE OF SERVICE
I hereby certify this the 10th day of September, 1984, I
served a copy of the foregoin Intervenors Objection to Op
posed Corporal Promotions upon the following attorneys
by placing a copy of the same in the United States Mail,
postage prepaid and properly addressed:
Dennis N. Balske, Esquire
Post Office Box 2087
Montgomery, Alabama 36102
Richard N. Meadows, Esquire
Rosa H. Davis, Esquire
Assistant Attorney General
64 North Union Street
Montgomery, Alabama 36130
Mr. Edward L. Hardin, Jr.
Post Office Box 11328
Birmingham, Alabama 35202
Cynthia Drabek, Esquire
Department of Justice
Post Office Box 23991
L’Enfant Plaza
Washington, D.C. 20026-3991
/s / James S. Ward
Of Counsel
171
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CIVIL ACTION NUMBER 3561-N
P hillip Paradise, Jr., et al., plaintiffs
U nited States of A merica, plaintiff and amicus curiae
v .
Byron P rescott, et al., defendants
V. E. McClellan, et al, defendant-intervenors
MOTION FOR STAY
Come now the Defendants-Intervenors in the above-
styled cause, by and through their attorney of record, and
respectfully move this Court to enter an Order staying the
application of its Order of July 27, 1984 wherein Defend
ant Prescott is entitled to make promotions to State
Trooper Corporal from the group of persons determined
“best qualified” pursuant to the selection procedure
described in Defendants’ June 19, 1984 motion. As
grounds for this motion, the Defendants-Intervenors set
down and assign the following, separately and severally:
1. To allow promotions would effectively deny and in
fringe upon the Defendants-Intervenors’ right of appeal in
that other persons would be promoted and would be
receiving the benefits of that promotion and not the
Defendants-Intervenors.
2. The recent United States Supreme Court case of
Memphis Fire Department, et al. v. Stotts prohibits quota
promotion and expressly disallows schemes of promotion
whereby blacks are promoted ahead of whites without any
showing that the black was a victim of unlawful discrimi
172
nation in employment. Since the previously entered Con
sent Decrees provide for quota promotion and blacks to be
promoted ahead of whites without a showing that the
black is or was a victim of unlawful discrimination in
employment, any promotional scheme pursuant to those
Consent Decrees is unconstitutional, in violation of Title
VII, and the Stotts decision.
3. For that there is presently pending in the Eleventh
Circuit Court of Appeals an appeal from this Court’s
Order of December 15, 1983 and from this Court’s Order
of July 27, 1984, that Order being the subject of this mo
tion for stay. (The Eleventh Circuit Court of Appeals re
quested the parties to address the issue of whether this
Court’s Order of July 27, 1984 was final and therefore ap
pealable. The parties have responded and as of this date
the Eleventh Circuit has not indicated whether they will
accept the appeal.) Both appeals will involve the interpre
tation, affect and applicability of the Stotts decision
generally and to the facts of this case specifically. This
Court should await direction and guidance from the
Eleventh Circuit on these issues before allowing promo
tions to Corporal.
4. Presently at issue is whether the Corporal examina
tion had content validity. If it is determined that the ex
amination had content validity the allowing of promotions
would mean that a quota based promotional scheme
would be allowed when under any other circumstances an
employer could promote on rank order rating based upon
a content valid examination.
5. To allow quota promotion pursuant to an examina
tion which has content validity, without any showing that
blacks who would be preferentially treated by those quotas
were victims of an unlawful discrimination, is in violation
of the Constitution of the United States, Title VII and the
Stotts decision.
6. To allow promotion based upon a promotional
scheme accomplished pursuant to Consent Decrees en
173
tered when the Defendants-Intervenors were not parties to
this litigation, yet where those Decrees subsequently affect
their rights to employment and career advancement, is un
just and severely encroaches upon their rights. Memphis
Fire Department, et al. v. Stotts.
7. To allow promotion pursuant to a promotional
scheme based upon the previously entered Consent
Decrees in this case would be illegal, unreasonable, un
constitutional and contrary to public policy.
8. For that the Department promoted sixteen troopers
to the position of corporal approximately six months ago
and the Department has not promoted any other troopers
to the position of corporal since the Order of July 27,
1984, that being almost three months. Under the circum
stances, it would seem that further delay so that the
Eleventh Circuit can decide the important and substantial
issues raised on appeal would not unduly affect the ad
ministration of the Department of Public Safety.
WHEREFORE, PREMISES CONSIDERED, the De-
fendant-Intervenors pray that this Court enter an Order
staying the operation of its July 27, 1984 Order.
Respectfully submitted,
Corley, Moncus, Bynum, &
DeBuys, P.C.
/ s / James S. Ward_________
James S. Ward
Attorney for Intervenors
Suite 300, Ash Place
2100 16th Avenue, South
Birmingham, Alabama 35205
174
CERTIFICATE OF SERVICE
I hereby certify this the 25th day of October, 1984, I
served a copy of the foregoing Motion for Stay upon the
following attorneys by placing a copy of the same in the
United States Mail, postage prepaid and properly ad
dressed:
Dennis N. Balske
Post Office Box 2087
Montgomery, Alabama 36102
Richard N. Meadows
Rosa H. Davis,
Assistant Attorneys General
64 North Union Street
Montgomery, Alabama 36130
John C. Bell
U.S. Attorney
U.S. Courthouse
Montgomery, Alabama 36104
Edward L. Hardin, Jr.
Post Office Box 11328
Birmingham, Alabama 35202
Cynthia Drabek
Department of Justice
Post Office Box 23991
L’Enfant Plaza
Washington, D.C. 20026-3991
/s / James S. Ward
Of Counsel
175
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA,
NORTHERN DIVISION
CIVIL ACTION NO. 3561-N
Phillip Paradise, Jr., individually and on behalf of
THE CLASS SIMILARLY SITUATED, PLAINTIFFS
U nited States of A merica, plaintiff and amicus curiae
v.
Byron P rescott, as director of the Alabama
DEPARTMENT OF PUBLIC SAFETY, ETC., ET AL„ DEFENDANTS
V. E. McClellan, et al., defendant-intervenors
ORDER
For good cause, it is ORDERED that the defendant-
intervenors’ October 25, 1984, motion to stay this court’s
July 27, 1984, order be and it is hereby denied.
DONE, this the 25th day of October, 1984.
[SIGNATURE]___________
United States District Judge
176
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA,
NORTHERN DIVISION
CIVIL ACTION NO. 3561-N
P hillip P aradise, Jr., et al., plaintiffs
U nited States of A merica, plaintiff
v.
Byron P rescott, et al., defendants
ORDER
This matter is before the Court on defendants’ August
16, 1984 Motion to Approve Selection Procedure for Pro
motion to Sergeant. The Court has received written
responses of counsel, it received documentary evidence
presented by the Department of Public Safety and heard
the arguments of counsel for all parties at a hearing on Oc
tober 25, 1984. The Court having considered the evidence
and arguments presented, it is now hereby ORDERED:
1. Subject to the limitations set forth in this Order, de
fendants Prescott, et al., are permitted to make promo
tions to State Trooper Sergeant from the group of 13 per
sons designated “most qualified” pursuant to the selection
procedure described in defendants’ September 10, 1984,
submission.
2. Defendants Prescott, et al., shall select sergeants
from the “most qualified” group in a non-discriminatory
manner. Defendants shall provide actual notice of such
promotions to counsel for the parties not less than five
working days prior to the effective date of such promo
tions. Such notice shall include the name and race of each
person to be promoted and may include any other infor
177
mation defendants deem relevant. If no party files a timely
objection, the promotions designated by defendants shall
take effect without further order of this Court. If a party
files an objection at least two days prior to the proposed
promotions, the promotions in question shall not become
effective until the Court so orders, before or after resolu
tion of the objection.
3. The one-for-one quota for sergeant promotions,
ordered December 15, 1983, shall not apply to the use of
this selection procedure as described in paragraphs 1 and 2
of this Order.
4. The Court shall conduct further proceedings upon
motion of a party to determine whether the results of
future administrations of the selection procedure present
ed by defendants Prescott, et al., or a similar procedure,
may be used to select State Trooper Sergeants without fur
ther review. Until further order of this Court, defendants
shall make no promotions to State Trooper Sergeant posi
tions other than from the group they have identified as the
13 “most qualified” candidates.
DONE, this 25th day of October, 1984.
[SIGNATURE]___________
United States District Judge
178
SUPREME COURT OF THE UNITED STATES
No. 85-999
U nited States, petitioner
v.
P hillip P aradise, Jr., et al.
ORDER ALLOWING CERTIORARI. Filed July 7,
1986.
The petition herein for a writ of certiorari to the United
States Court of Appeals for the Eleventh Circuit is
granted, limited to Question 3 presented by the petition.