Johnson v. City of Albany Order in the Determination of Back Pay

    IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF GEORGIA 

ALBANY DIVISION

■X
JOHNNIE JOHNSON, et al.,

Plaintiffs,
-vs-

THE CITY OF ALBANY, et al.,
Defendants.

CIVIL ACTION 
NO. 1200

X

ORDER ESTABLISHING THE STANDARDS AND 
PROCEDURES TO BE FOLLOWED IN THE 
DETERMINATION OF BACK PAY

This case comes before the Court for decision as to the 
standards and procedures to be used for handling the back pay 
determinations herein. Plaintiffs and the defendants have pre­
sented their proposals and supporting materials to the Court, 
and they have been fully considered.

The Court shall by subsequent Order appoint a Special 
Master to supervise the making of these determinations, to 
adjudicate such questions as must be adjudicated, and to make 
such modifications in this Order as seem necessary or desirable 
to accomplish its purposes.

The testimony and documentary evidence already admitted 
shall not be duplicated except as may be necessary to make it 
available in computer readable form to aid in the calculation 
of individual awards. Any defenses appropriate to the liability



stage of the case are now precluded and shall not be litigated 
in the back pay determination. English v. Seaboard Coast Line 
R.R. Co.. 12 F.E.P. Cases 90 (S.D. Ga. 1975).

It is clear that needless protraction of back pay 
proceedings may discourage most claimants and it is to be 
avoided. The Court has, therefore, structured this Order so 
as to establish as much as possible of the necessary facts with­
out extensive hearings. Requiring the employer to identify and 
list employees it believes to have been unqualified for pro­
motion or assignment to higher-paid jobs, for example, enables 
litigation to be concentrated on the small proportion of persons 
over whom there is a genuine dispute. Pettway v. American Cast 
Iron Pipe Co.. 494 F.2d 211, 259-260 (5th Cir. 1974) clearly 
approved such an approach when it discussed the maximum burden 
that could be placed on an individual class member, and stated: 
"The employer's records, as well as the employer's aid, would 
be made available to the plaintiffs for this purpose."

Since the Court found that blacks could not apply for, 
were not considered for and were not promoted into more skilled, 
better paying jobs and that promotions were made from within 
departments thus perpetuating the conditions of the past, black 
employees could hardly be expected to be aware of much less 
apply for higher paying jobs as vacancies occurred. See Sagers 
v. Yellow Freight Systems, Inc.. 529 F.2d 721 (5th Cir. 1976),* 
Sabala v. Western Gillette, 516 F.2d 1251 (5th Cir. 1975); 
Hairston v. McLean Trucking Co., 520 F.2d 226 (4th Cir. 1975). 
Thus, failure to apply for a higher paying job will not in it­
self be a defense to a particular individual's back pay claim.
The defendant shall have the burden of proving, as an affirmative 
defense, that a class member failed to mitigate damages, or was

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J

not qualified for the position or positions which are part of 
the claim's basis, or was not interested in or willing to accept 
such positions, or for any other reason was not financially 
injured by the defendant's discriminatory practices. English 
supra, 12 F.E.P. Cases at 93, 17. These matters are discussed 
more fully at pp. 9 - 10 , below.

Some cases have held that class members should be re­
quired to file a form with the Court in order to be eligible 
for back pay. The Court has no objection to requiring class 
members to perform any action which serves a necessary purpose 
or provides necessary information, but is opposed to the im­
position of such a requirement in cases where it serves no use­
ful purpose. Fruitless procedural hurdles are antagonistic to 
the meaning and spirit of Title VII and of the class action 
rules.

Moreover, such a procedure in effect inserts an "opt-in"
requirement in Rule 23(b) (2), (b) (3) merely for the sake of the

1/requirement. This is far afield from current legal thinking.
This is a Rule 23(b)(2), (b)(3) class action, Robinson v .
Lorillard Corn., 444 F.2d 791, 801-02 (4th Cir. 1971), and the 
cohesive nature of the claims presented makes even an opt-out 
provision inappropriate. Hammond v. Powell, 462 F.2d 1053, 1055 
(4th Cir. 1972); Wetzel v. Liberty Mutual Insurance Co., 508 
F.2d 239, 252-53 (3rd Cir. 1975); La Chappelle v. Owens-Illinois,

1/ See, e.g.. B. Kaplan, "Continuing Work of the Civil
Committee: 1966 Amendments of the Federal Rules of Civil 
Procedure," 81 Harv. L. Rev. 356, 397-98 (1967).

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513 F .2d 286, 288 note 7 (5th Cir. 1975)'; United States v.
United States Steel Corp., 520 F.2d 1043, 1057, reaffirmed on 
petition for rehearing, 525 F.2d 1214 (5th Cir. 1975). Rule 
23(b) (3) itself was amended ten years ago to eliminate require­
ments that class members take some affirmative action as a con­
dition of inclusion in a recovery. Establishing such a pro­
cedure in situations where resort to claim forms is not a 
functional necessity in effect requires the Court to usurp the 
powers conferred elsewhere by the Rules Enabling Act, 28 U.S.C. 
§2071.

In accordance with the principles of the above three 
paragraphs, it shall not be necessary for any class member to 
appear and testify at any hearing as a condition of receiving 

pay, except as set forth below or as necessary to provide 
indispensable facts. Subject to the normal constraints as to 
the issuance, enforcement and quashing of subpoenas, however, 
the parties may avail themselves of the subpoena power for 
depositions and for hearings. Each class member who is sub­
poenaed shall, however, be subpoenaed no less than seven days 
before the date of his appearance, and shall at the time
of service be given a written statement of the names, addresses 
and telephone numbers of counsel for plaintiffs and of the fact 
that the class member may retain his own counsel to re­
present him or her in these proceedings and, failing such a 
ret3inder of independent counsel, shall be represented by counsel 
for plaintiffs without charge to the class member. The defendants 
shall notify counsel for plaintiffs in writing of the name and 
address of each class member to be subpoenaed and shall do so 
immediately upon its counsel’s endorsement of the subpoena.
* The masculine gender is used for simplicity and signifies class members whether male or female.

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Interest on all back pay claims shall run at 7%, com­
pounded annually- Amounts owing to class members who are 
deceased shall be- paid to the beneficiaries they have designated 
on the defendant's insurance or payroll records. Failing such 
a designation, their shares shall be payable to their families.

Except as stated below, plaintiffs shall perform the 
necessary calculations of back pay and of class-wide forward 
pay for each subclass claim. The defendant shall be given 
access to any computer programs used for these calculations and 
shall have the right to verify the calculations. All disputes 
as to the calculations shall be resolved by the Special Master.

A. Costs and Fees. The defendants shall pay, on a current 
basis, the fees, expenses and costs of the Special Master for 
the back pay proceedings herein. The defendants shall reimburse 
plaintiffs for their costs and expenses in these proceedings, 
and these reimbursements shall be made on a current basis.
The defendants shall also pay, on a current basis, an hourly 
fee to be fixed later by the Court and representing only partial 
compensation for the services of counsel for plaintiffs in the 
determination of back pay. The Court shall by subsequent Order 
fix the amounts of these hourly fees. See Bradley v. School 
Board of the City of Richmond, 416 U.S. 696, 723 (1974); Hairston 
v. McLean Trucking Co., 520 F.2d 226, 233 (4th Cir. 1975).
Payment to the Special Master or plaintiffs of such fees, costs 
or expenses shall be made within 30 days of receipt of a state­
ment. Disputes regarding hours or the amount of costs and 
expenses shall be presented to the Court for resolution. Where 
the defendants dispute any statement, they shall within 15 days 
of its receipt notify the person submitting the statement and 
specifying the items disputed and the extent to which such items 
are disputed. Either party may apply to the Court for an order

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resolving the dispute. The existence of a dispute with respect 
to a particular statement or certain items therein notwith­
standing, the defendants shall pay all items or portions of 
items not in dispute without awaiting a resolution of the dis­
puted matters. None of these payments or reimbursements shall 
be subject to reduction, regardless of the outcome of the back 
pay proceedings, but the Court will take the outcome into 
account when fixing the total fees to be awarded to plaintiffs.

The defendants shall bear the cost of preparing and 
mailing all notices.

B . Limitations Period.
In its decision of May 6, 1976, the Court ruled that 

the City of Albany is liable under Title VII of the Civil Rights 
Act of 1964 (as amended), 42 U.S.C. §2000e for the period of 
time commencing March 24, 1972 —  the date Title VII's coverage 
was extended to reach municipal employment. Upon further re­
flection and subsequent developments in the law, it appears 
that the 1972 amendments to the Act are to be given retroactive 
application insofar as they affect municipal corporations.
See Brown v. General Services Administration, ____ U.S. ___,
44 USLW 4704 (June 1, 1972); Kroger v. Ball. 497 F.2d 707 (4th
Cir. 1974); Weise v. Syracuse University, 522 F.2d 397 (2nd
Cir. 1975); and Palmer v. Rogers, ___ F.Supp. ___ , 10 EPD 510,265
(D.D.C. 1975) . Where as here the plaintiffs have previously

2/had an enforceable right to be free of racial discrimination

2/ That right exists under the Thirteenth and Fourteenth
Amendments to the Constitution and the Federal courts have 
jurisdiction to enforce the t right in suits brought pursuant 
to 28 U.S.C. §1331.

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in employment and a new procedural statute is enacted for en­
forcement of that preexisting right, the law favors giving re­
trospective application of the procedural statute. See Koger 
v. Ball, supra, 497 F.2d at 707. Accordingly the plaintiffs 
and the class are entitled to have their claims for back pay 
under Title VII commence on April 24, 1972 —  two years prior 
to the filing of the charge with the Equal Employment Oppor­
tunity Commission. 42 U.S.C. §2000e-5(g), Johnson v. Goodyear 
Tire and Rubber Co., 491 F.2d 1364, 1378 (5th Cir. 1974).

For each class member who is entitled to an award of 
back pay, the back pay period shall commence on April 24, 1970 
or the date on which he would have been hired absent discrimina­
tion, whichever is later and shall terminate on 1) the date he 
reached his rightful place and no longer sustained economic 
loss as a result of the discriminatory practices proscribed in 
the Order of June 15, 1976, 2) was terminated, 3) the date
the Special Master finds the class member declined an offer to 
promote to his "rightful place, or 4) the date of the report 
of the Special Master to the Court, whichever is earliest. 
"Opportunity" as used in this paragraph shall mean the point 
in the employment history of the class member when the terms, 
conditions and priviletes of his employment were not affected 
by the unlawful employment practices established in this case.

C. Future Pay. Those class members whose awards terminate 
on the date of the report of the Special Master to the Court 
and who have not received an opportunity to promote to their 
"rightful place" shall be entitled to an additional award com­
mencing on the date of the Special Master's report and continuing 
until he is offered a promotion to his "rightful place" or is 
terminated whichever occurs first. See Patterson v. American

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Tobacco Co.. ___ F.2d ____ , 11 EPD 510,728 (4th Cir. 1976).
Payment shall be made within a reasonable period of time after 
promotion or termination as the case may be.

D . Procedure
1. Within forty-five (45) days after the entry of 

this Order, defendants shall compile a list of each person 
employed during the limitations period showing the name, Social 
Security number, telephone number, race, sex, years of education,
dates of application, hire and of termination, department, job 
and step code and rate of pay of initial assignment, and date, 
department, job and step code and rate of pay of each subsequent 
change in department, job or step. This list shall be subject 
to verification by plaintiffs. The defendant shall keypunch 
or keytape the information on this list, and shall provide 
plaintiffs with a copy of the list and of the date processing 
punchcards or tapes containing this information. In compiling 
this list, defendants shall use all means at its disposal to 
assure the accuracy of the information contained therein.

2. From this list the defendants shall prepare a list
by department, job code and date of hire of all members of 
class E, as defined in the Decree dated June , 1976. This
list shall include name, education, date of application, date
of hire, initial department and job and current department and 
job (if terminated, date of termination, and last department 
and job shall be listed.)

3. For each higher paying job category, the 
defendants shall prepare three lists, each of which shall be 
subject to verification by plaintiffs. The first list shall 
include the name, Social Security number, and dates of incum­
bency of each white who was employed in that job category within

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the limitations period, and the qualifications possessed by 
each such white worker which are job related shall be set forth. 
The second list shall contain the names and dates of employment 
of each class E member whom the defendants concede to have had 
those qualifications and the earliest date, following his date 
of employment which the defendants concede the class member 
was so qualified. The third list shall contain the names of 
each class E member who the defendants contend, based on a 
search of their records and the knowledge of their officials, 
do not possess the above described qualifications. In each 
such case the defendants shall state valid job related reasons 
for that contention. The parties shall confer and seek to agree 
on the jobs or class members for which lists need not be com­
piled so as to avoid preparation of statements where there is 
no genuine dispute. These lists shall be filed in the Court, 
with copies to the plaintiffs within sixty (60) days of the date 
of this Order.

4. Within ninety (90) days, or such later time as 
the Court may order, after service of the lists referred to in 
paragraph 3 above the plaintiffs may file a motion in the nature 
of a motion for summary judgment challenging the reasons alleged 
that are the basis for the claim that a particular class member 
is not qualified. Adequate grounds for such a motion may in­
clude a) that the reasons assigned are not justified by business 
necessity; b) that the defendants' records show them to be 
inaccurate or c) that such reasons did not bar whites from
such jobs. Such disputes shall be resolved by the Special 
Master. In each case where a class member prevails the lists 
shall be modified to reflect the ruling.

5. The defendants shall prepare and mail to each 
member of class E who is a present or former City employee a

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notice in the form set forth in Appendix A. A similar notice
shall be sent to each member of class E who is a present or
former Water, Gas and Light Commission employee. No notice
returned more than forty-five (45) days after the date of
mailing shall be considered unless good cause is shown for the
delay. Plaintiffs shall provide defendants with a copy of the
notices that are returned.

6. Within ninety (90) days after mailing of the
notices plaintiffs shall file, with copies to the defendants
a list of the names of each member of class E whose claims
require individual hearings. Each person may show, but does
not have the burden of showing either that the reasons assigned
are not true or that he had the necessary particular qualifica-

2/tions notwithstanding them. The defendants have the burden of 
showing, by clear and convincing evidence, (1) that the reasons 
assigned are true, (2) that the reasons are justified by 
business necessity and (3) that the identical standards have

.4/consistently been applied to white employees. The Special Master

3/ Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437
445 (5th Cir. 1974) held that a class member has the burden of 
showing that he or she possessed the necessary "general 
characteristics and qualifications" but that the employer has 
the burden of showing any "particular lack of qualifications." 
This principle has been adopted by the Fourth Circuit, Hairston 
v. McLean Trucking Co., 520 F.2d 226, 232 (4th Cir. 1975), and 
adopted by the Supreme Court, Franks v. Bowman Transportation Co., 
___U.S.____ , 44 USLW 4356, 4363, slip opinion at 23-24 (1976).
4/ Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364
1380 (5th Cir. 1974) established that the employer had the 
burden, that it must be met by "clear and convincing" evidence, 
and that all doubts "should be resolved in favor of the dis- 
criminatee," Baxter established the job relatedness requirement 
and the requirement that the standards had been applied to white 
employees. 494 F.2d at 444-45. And see Hairston v. McLean 
Trucking Co., supra, 520 F.2d at 232.

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shall hear and determine such disputes. The lists referred to 
in paragraph 3 above shall be further modified to reflect the 
outcome of these hearings.

7. Within sixty (60) days after receipt of the list
of claims requiring individual hearings the defendants shall 
serve plaintiffs with a list of the jobs for which they content 
there was a lack of vacancies. These lists shall include a 
statement of each and every vacancy occurring in each such 
job category since July 2, 1965 or the date of application of 
the first class member who may be entitled to that job whichever 
is later. These lists shall be subject to verification by the 
plaintiffs. Disputes as to the existence or non-existence of 
vacancies shall be heard and determined by the Special Master.

E. Calculation of Individual Back Pay Awards
1. Those members of Class E who applied after

April 24, 1970 and whose application antedates that of a white
person hired into the same position before him shall constitute
the subclass of Black Applicants. Plaintiffs shall prepare
and file, with copies to the defendants a list of all such
class members. This subclass shall be entitled to an additional
award which shall be the earnings he would have received between
the time the white employee was hired and the time such sub-

# .class member was hired. The defendants may by deposition, sub­
poena or interrogatory limited to discovery of interim earnings 
establish facts necessary to prove mitigation. The Special 
Master shall hear and determine disputed facts.

2. The plaintiffs shall calculate the amount of 
the claim of each member of class E. This amount shall be 
determined by taking the difference between each class member's 
actual rate of pay and the rate of pay of the highest job

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for which he is found to be qualified. The defendants shall 
supply plaintiffs with pay scales for all relevant years not 
previously provided. Where a class member's actual rate of pay 
is compared with a higher paying job in the Water, Gas & Light 
Commission, his rate of pay shall be compared with that of the 
highest paid white employee in that job. Where for a particular 
job classification the Special Master finds that there are more 
eligible class members than available vacancies, the back pay 
entitlements of those class members shall be determined on the 
basis of pro rata shares as suggested in U.S. v. United States 
Steel Corp., supra, 520 F.2d at 1055-56. If calculation of pro 
rata shares proves to be impractical the parties may agree on 
some other method of calculation or the Special Master may fix 
some other averaging method.

3. Where a member of class E is found not to be
qualified for any higher paying job his actual rate of pay shall 
be compared with that of other employees to determine if he was 
paid less than other employees in the same job classification 
or doing substantially the same work. In each such case the 
class member shall be entitled to an award of black pay repre­
senting the difference between his actual rate of pay and the 
highest rate paid any other employee in the same job classification 
or performing substantially the same work. Differences in pay

1/

5/ It is impossible to compare class members' pay with that
of the Water, Gas and Light Commission pay schedule since this 
is a new innovation for the Commission and employees rates of 
pay are often unrelated to the rates of pay fixed on the pay 
scale introduced at trial.

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which are the result of longevity increases shall be taken into 
account. Factual disputes shall be heard and determined by the 
Special Master.

4. Individual awards shall be subject to adjustments 
for interest, etc., as set forth elsewhere in this Order.

F. Discovery
The parties may conduct discovery to establish necessary 

facts. The parties shall cooperate for the purpose of resolving 
all factual matters not genuinely in dispute. The defendants' 
records shall be made available to the plaintiffs upon request 
and reasonable notice. Where the deposition of any current 
employee is sought, he shall be made available by defendants upon 
reasonable notice.

Discovery shall be conducted as expeditiously as possible 
and on as informal a basis as possible.

G. Report of the Special Master
The Special Master shall prepare and certify to the Court 

a report making an advisory determination of the awards to be 
made to each class member. The advisory determination shall 
become effective only upon entry of an appropriate order thereon. 
Prior to entry of that order, the Court will afford the parties 
an opportunity to object to or comment on the determinations.
The Court will consider such objections or comments prior to 
adopting, modifying, or rejecting the determinations and prior 
to entering any order thereon. In formulating its order, the 
Court will not review the substance of the Special Master's deter­
minations, but will limit its inquiry to whether the determinations 
were made in accordance with the terms and intent of this Order 
and the applicable law.

Entered this day of June, 1976.

Wilbur D. Owens, Jr.
United States District Judge

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