Johnson v. City of Albany Order in the Determination of Back Pay
Public Court Documents
June 1, 1976

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Brief Collection, LDF Court Filings. Johnson v. City of Albany Order in the Determination of Back Pay, 1976. b6c96e14-b69a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/a401bb3a-19a0-4d85-ab74-fca537c69f9d/johnson-v-city-of-albany-order-in-the-determination-of-back-pay. Accessed July 30, 2025.
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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 - 2- 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). - 3- 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. - 4 - 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 -5- 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. - 6 - 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 - 7 - 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 - 8 - 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 - 9- 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. - 10- 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 - 11- 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. - 12- 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 - 13-