Howard v. McLucas Brief for Plaintiffs-Appellees

    t  ' * IN THE UNITED STATES COURT OF APPEAL

FOR THE ELEVENTH CIRCUIT

No. 87- 8817

MICHAEL HOWARD, et al, 
vs.

Plaintiffs-Appellees,

JOHN L. McLUCAS, et al.,
Defendants-Appellees,

ROBERT POSS, et al.,
Intervenors-Appellants.

AMERICAN FEDERATION OF 
GOVERNMENT EMPLOYEES, et al.,

vs.
Plaintiffs-Appellees,

JOHN C. STETSON, etc.,
Defendant-Appellee,

ROBERT POSS, et al.,
Intervenors-Appe11ants.

On Appeal from the United States District Court for the 
Middle District of Georgia

BRIEF FOR PLAINTIFFS-APPELLEES

JULIUS LeVONNE CHAMBERS 
RONALD L. ELLIS 
99 Hudson Street 
New York, NY 10013
THOMAS A. JACKSON 
655 New Street 
Macon, GA 31201
CHARLES A. MATHIS, JR.
BRIAN COMBS
Mathis & Coates
909 Fulton Federal Building
Macon, GA 31202

BILL LANN LEE 
ELIZABETH M. BROWN 
Center for Law in the 

Public Interest 
10951 W. Pico Blvd., 3d Fir. 
Los Angeles, CA 90064 

(213) 470-3000
JOSEPH F. HENDERSON 
American Federation of 

Government Employees 
80 F Street, N.W.
Washington, DC 20001

Attorneys for Plaintiffs-Appellees



IN THE UNITED STATES COURT OF APPEAL 
FOR THE ELEVENTH CIRCUIT

No. 87-8817

MICHAEL HOWARD, et al, 
vs.

JOHN L. McLUCAS, et al., 

ROBERT POSS, et al.,

Plaintiffs-Appellees,

Defendants-Appellees, 

Intervenors-Appellants.

AMERICAN FEDERATION OF 
GOVERNMENT EMPLOYEES, et al.,

vs.
JOHN C. STETSON, etc., 

ROBERT POSS, et al.,

Pla int i f fs-Appellees,

Defendant-Appellee, 

Intervenors-Appellants.

On Appeal from the United States District Court for 
Middle District of Georgia the

BRIEF FOR PLAINTIFFS-APPELLEES

JULIUS LeVONNE CHAMBERS RONALD L. ELLIS 
99 Hudson Street 
New York, NY 10013
THOMAS A. JACKSON 
655 New Street 
Macon, GA 31201
CHARLES A. MATHIS, JR.
BRIAN COMBS
Mathis & Coates
909 Fulton Federal BuildingMacon, GA 31202

BILL LANN LEE 
ELIZABETH M. BROWN 
Center for Law in the 

Public Interest 
10951 W. Pico Blvd., 3d Fir 
Los Angeles, CA 90064 

(213) 470-3000
JOSEPH F. HENDERSON 
American Federation of 

Government Employees 
80 F Street, N.W. 
Washington, DC 20001

Attorneys for Plaintiffs-Appellees



T 7

CERTIFICATE OF INTERESTED PERSONS 
Pursuant to Eleventh Circuit Rule 28-2, the under­

signed counsel of Record for Plaintiffs-Appellees certifies that
the following parties have an interest in the outcome of this 
case:

Trial Judge
Hon. Wilbur D. Owens, Jr.

I .

Attorneys 
Bill Lann Lee 
Julius LeVonne Chambers 
Ronald L. Ellis 
Elizabeth M. Brown 
Thomas M. Jackson 
Charles A. Mathis, Jr. 
Joseph F. Henderson 
Peter R. Maier 
Anne L. Weisman 
Raphael Gomez 
Joe D. Whitley 
John L. Lynch 
Edward T. M. Garland 
Austin E. Catts 
Robin Loeb Kurtzman 
Hunter R. Hughes

LG52#1 i



f )

Organizations Representing Parties 
Center for Law in the Public Interest 
NAACP Legal Defense and Educational Fund, Inc. 
Mathis & Coates

American Federation of Government Employees, 
AFL-CIO

U.S. Department of Justice 
The Garland Firm, p.c.
Warner Robins Constitutional Rights Fund, Inc. 
Rogers & Hardin

Parties
Michael Howard, named plaintiffs and class of

black employees of Warner Robins Air Logistics 
Center

American Federation of Government Employees 
United States Air Force 
Warner Robins Air Logistics Center 
John L. McLucas 
John C. Stetson 
Robert Poss and 

appellants
136 other named intervenors—

Attorney for Plaintiffs- 
Appellees

LG52#1 i i



*

II.

1988.

STATEMENT REGARDING ORAL ARGUMENT 
The Court has scheduled oral argument for February 2,

LG52#1 i i i



TABLE OF CONTENTS

LG 5 2 #1

I . CERTIFICATE OF INTERESTED PERSONS .............
II. STATEMENT REGARDING ORAL ARGUMENT ...............

III. TABLE OF CITATIONS .................
IV. STATEMENT OF JURISDICTION ........................
V. STATEMENT OF THE ISSUE ...................

VI. STATEMENT OF THE CASE
A. Prior Proceedings ........................
B. Facts ..............................

1. The Record of Classwide Discrimination
2. The Basis for the Special Promotional

Provision ...................
C. Statement of the Standard of Review

VII. SUMMARY OF THE ARGUMENT ...............
VIII. ARGUMENT ................

A. THERE IS A SUFFICIENT EVIDENTIARY BASIS TO JUSTIFY
THE SPECIAL PROMOTIONAL PROVISION OF THE CONSENT DECREE ..............................
1. Both Title VII and the Constitution Require

Only a Sufficient Evidentiary Basis for Race- Conscious Relief ...........
2. The District Court's Findings of Discrimina­

tion and the Underlying Record Provide a 
Sufficient Basis for the Special Promotional Provision ............. * • • • • • • •

B. INTERVENORS FAILED TO CARRY THEIR BURDEN OF PROVING
THAT THE PROMOTIONAL RELIEF VIOLATED § 703 fa) OF TITLE V I I ............................
1. The Promotional Provision Grants Relief Only

to Actual Victims of Discrimination ...........
a. The District Court Did Not Err As a 

Matter of Law by Approving Victim--- 
Specific Relief . . . .

- i v -

i
i i i
vii

x
1

1

1

6

6

10
14
15
16

18

19

21

24

24

25

page



c.

b. The District Court Correctly Found That 
the Victim Identification Method Was 
the Best Method of Determining the 
Actual Victims of Discrimination .

The Promotional Provision Is a Valid Affirma­
tive Action Plan Under Title VII Because It 
Acts to Remedy a "Manifest Imbalance" in 
Traditionally Segregated Job Categories" and 

Does Not "Unnecessarily Trammelf] the Rights 
of [White] Employees or Create[] an Absolute 
Bar to Their Advancement" . . . .

page

28

32
a. The Nature of the Promotional Relief
b. The Impact of the Promotional Relief on

White Employees Is Minimal ...............
c. The Promotional Relief Was Not Intended 

to Maintain a Balanced Work Force
THE PROMOTIONAL RELIEF DOES NOT VIOLATE THE FIFTH AMENDMENT OF THE CONSTITUTION * * • • • • • • •
1. Intervenors Are Preempted From Raising Any 

Fifth Amendment Claim Because Title VII 
Provides the Exclusive Remedy for Federal 
Employee Claims of Discrimination

2. Intervenors Failed to Meet Their Burden of
Demonstrating That the Promotional Relief Violates the Fifth Amendment ...........
a. Intervenors Failed to Carry Their Burden

of Proving That the Promotional Relief 
Does Not Serve a Compelling Governmental Interest ...................

b. Intervenors Failed to Carry Their Burden
of Proving That the Affirmative Action 
Promotional Relief Is Not Narrowly 
Tailored ..........................

i. The promotional relief is necessary 
to remedy past discrimination . . . .

ii. The promotional relief is flexible 
and of short duration ...............

iii. The relationship of numerical goals
to the labor market is not a relevant 
factor in this case .

33

35

38

40

40

41

43

43

44 

47

48

LG52#1 V



iv. The promotional relief has a diffuse 
impact on white employees . . . .

Page

IX. CONCLUSION
48
50

LG52#1 vi



Ill.
TABLE OF CITATIONS

Cases
Albermarle Paper Co. y. Moody. 422 U.S. 405 (1975)
American Civil Liberties Union of Georgia v. Rabun 

County, 698 F.2d 1098 (11th Cir. 1983'-- “ —
American Fed'n of Gov't Employees & Irish Smith v. stPtsnn, 

M.D. Ga. Civ. Act. No. 79-66-MAC ! " "
American Nat11 Bank v. Federal Deposit Ins. Corp. 

710 F .2d 1 5 2 8 (11th Cir. 1983) 7 !  ̂ i . [
Anderson v. City of Bessemer City, 470 U.S. 564 (1985) 
Association Against Discrimination v. City of Bridgeport

479 F.Supp 101 (D. Conn. 1979), aff^d, 647 F.2d 256 
(2d Cir. 1981), cert, denied, 455 U.S. 988 (1982)

Baxter v. Savannah Sugar Ref, Corp., 495 F.2d 437
(5th Cir.), cert. denied, 419 U.S. 1033 (1974)

Brown v. General Services Admin.. 425 U.S. 820 (1976)
Castaneda v. Partida. 430 U.S. 482 (1977)
Cotton v. Hinton. 559 F .2d 1326 (5th Cir. 1977)
Davis v. Bd. of School Comm'rs of Mobile Countv 

600 F .2d 470 (5th Cir. 1979), modified.
616 F . 2d 893 (1980)......... 7 ---

Davis v. Passman. 442 U.S. 228 (1979)
Doe v. U.S. Postal Serv.. 37 FEP Cas. 1867 (D.D.C. 1985)
Domingo v. New England Fish Co.. 727 F 2d 1429 

(9th Cir. 1984) ...............
Firefighters Local Union No. 1784 v. Stotts 

467 U.S. 561 (1984).................. '

18

27,

4, 5,
Franks v. Bowman Transportation Co

424 U.S. 747 (1976).........* . .................... 16, 25,
Hammon v. Barry, 813 F.2d 412 (D.C. Cir. 1987)
Hardin v. Stynchcomb. 691 F.2d 1364 (11th Cir. 1982)

page

27

18

1

18 
, 24

■ 28

25
41

8

23

25 
41 
41

27

26

43
41
18

LG52#1 vi x



PageCases (cont'd)
Hazelwood School Dist. v. United States, 

433 U.S. 299 (1977) ...............
Hofer v. Campbell, 581 F.2d 975 (D.C. Cir. 1978) 

cert, denied, 440 U.S. 909 (1979) .........
Holmes v. Continental Can Co..

706 F .2d 1144 (11th Cir. 1983) .........
Howard v. McLucas, M.D. Ga. Civ. Act. No. 75-168-MAC
Howard v. McLucas, 597 F.Supp. 1501 (M.D. Ga. 1984)
Howard V. McLucas, 597 F.Supp. 1504 (M.D. Ga. 1984)
Howard v. McLucas, 671 F.Supp. 756 (M.D. Ga. 1987)
Howard v. McLucas, 782 F.2d 956 (11th Cir. 1986)
In re Birmingham Reverse Discrimination Employment

Litigation, No. 86-7108 (11th Cir. i w  i5> 1987)

8

41

. . 14 

. . 1  

. . 2

. passim 

. passim 
3, 4, 19

17, 19, 23, 33
Int'l Bhd, of Teamsters v. United States,

431 U.S. 324, 361 (1977) ~  ] T T * • • • • • • • «
Johnson v. Transp. Agency, Santa Clara Cty.. Cal..

__ u -s - __/ 107 S.Ct. 1442 (1987) .. .. 7^[
Kirkland v. New York State Pep't of Correctional Services 

^*2d 111"7 (2d Cir. 1983), cert, denied sub nom.Althiser v. New York State Dep't of Correctional--Services, 465 U.S. 1005 n q r a ' .................
Langster v. Schweiker, 36 FEP Cas. 1623 (N.D. 111. 1983)

passim

passim

2 0 , 22

41
Lawrence v. Staats, 665 F.2d 1256 (D.C. Cir. 1981) 41
Local No. 93, Int'l Assn, of Firefighters v. City of 

Cleveland, 106 S.Ct. 3063 (1986^ ...........
Pettway y, American Cast Iron Pipe Co.. 494 F.2d 211

(5th Cir. 1974), cert, denied, 439 U.S. 1115 (1979)
................................................. 26,

25, 28, 35

27, 28, 29
Richardson v. Wiley. 569 F.2d 140 (D.C. Cir. 1977) (per curiam) ........................
Segar v. Smith. 738 F.2d 1249 (D.C. Cir. 1984), 

cert, denied. 471 U.S. 1115 (1985) . . . .

LG52#1 vi i i



Cases (cont'd) g age

Stewart v General Motors Corp.. 542 F.2d 445 (7 th Cir. 
1976), cert. denied, 433 U.S. 919 (1977)

Torre v. Barry, 661 F.2d 1371 (D.C. Cir. 1981) . . . .

~niteduf|tateS V ! Clty °f Miami- 664 F . 2d 435 (5th Cir. 1981) (en banc)
United States v. Jefferson Countv.

720 F.2d 1511 (11th Cir. 1983)
United States v. N. L. Industries Tno

(8 th Cir. 19 7 3 ) ...........[ ' 479 F .2d 354

United States v. Paradise. U.S. 107 S.Ct. 1053 (1987)

United Steelworkers of America v. Weber 
443 U.S. 193 (1979)  ̂ ........... '

Williams v. DeKalb County.
577 F.2d 248 (5th Cir. 1978) . . . .

Wygant v. Jackson Bd. of Educ..
476 U.S. __, 106 S.Ct. 1842 (1986)

Young v. Katz. 447 F.2d 431 (5th Cir. 1971)

27
41

14

17

40

passim

passim

45, 50

passim
23

United States Constitution 
U.S. Const., amend. V .............

Statutes
42 U.S.C. $§ 2000e et seq. ("Title VII"}§ 703 . . .  . ~ .  . . ' * * * *

§ 703 (a) ..................................
§ 706 (g) ...............  ’ ■ [ * * * * *

Rules
Eleventh Circuit Rule 28-2 . . . .

15, 16, 40, 41

. passim 

. 15, 34 

. 5, 24 
• . 4, 5

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f . *

IV.

pursuant

STATEMENT OF JURISDICTION 
The Court has jurisdiction to hear this appeal 
to 28 U.S.C. § 1291.

LG 5 2 #1 x



V.

STATEMENT OF THE ISSUE
Whether the district court erred in approving the special 

promotional provision of a consent decree submitted by plaintiffs 
and the United States to resolve a 13-year old employment discrimi­
nation class action?

VI.
STATEMENT OF THE CASE-^

A . Prior Proceedings .
This Title VII action was originally filed on October 31, 

1975 by black employees of the Warner Robins Air Logistics Center 
("Warner Robins") who alleged that management systemically denied 
promotions to black employees. Howard v. McLucas, M.D. Ga. Civ. 
Act. No. 75-168-MAC. A related overlapping case brought by the 
union for all represented Warner Robins employees was consolidated 
for trial. American Fed1n of Gov't Employees & Irish Smith v. 
Stetson, M.D. Ga. Civ. Act. No. 79-66-MAC. The Hon. Wilbur D. 
Owens, Jr., Chief Judge of the Middle District of Georgia, has 
presided over the entire course of the proceedings.

Warner Robins is a large industrial facility in middle 
Georgia that maintains and supplies United States Air Force 
aircraft. Warner Robins, with about 15,000 civilian employees in 
numerous departments, is the largest single employer in the Macon 
area and one of the largest employers in the State of Georgia. See

Reported decisions are referred to by official reporter 
citation. The record is referred to by district court docket sheet document number, i,e., "(R. )."

LG52#1 1



t

Howard v. McLucas. 597 F.Supp. 1504, 1508 (M.D. Ga. 1984).
The Howard lawsuit was certified as a class action on 

behalf of approximately 3200 black employees in 1976. See id. at 
1510. Numerous proceedings were conducted over the following nine 
years. Faced with the prospect of a massive trial, the parties 
negotiated a consent decree. See id. at 1511. The proposed consent 
decree was submitted on June 15, 1984, and a fairness hearing was 
held in August 1984. The court received extensive evidence of dis­
crimination, and found that the parties*had submitted statistical 
evidence demonstrating an unrebutted prima facie case of classwide 
employment discrimination. See id. at 1508-10, 1513. The court 
also heard detailed evidence regarding the nature and effect of the 
relief provided by the consent decree. See id. at 1511-14. Several 
class members objected. See id. at 1514. Robert Poss and 136 other 
white employees (hereinafter "intervenors") also objected. Id.
They sought to intervene as parties shortly before the fairness 
hearing, and were allowed to participate as objectors through their 
counsel. The court, however, denied their motion to intervene as 
parties with the right to veto the settlement. Howard v. McLucas,
597 F.Supp. 1501 (M.D. Ga. 1984). Rejecting the objections of both 
black and white objectors, the district court then approved the con­
sent decree, as modified by the parties in response to the sugges­
tions of the court, in a comprehensive opinion. Howard v. McLucas. 
597 F.Supp. 1504 (M.D. Ga. 1984); (see R.256, 284 (consent decree)).

The consent decree approved by the court provided that 
Warner Robins would fill 240 specific jobs by promoting qualified 
class members to every other next available vacancy, a commitment 
that represented "the parties' best efforts to settle and compromise

LG52#1 2



been victimsthe claims of specific class members alleging to have 
of discrimination." (r .256 at 6 .) The positions had been identi­
fied by statistical methods as those lost by blacks due to discrim­
ination in the period from 1971 to 1979. 597 F.Supp. at 1511 n.2;
(R. 285 at H1f 36-41 (Parties' Joint Motion for Entry of Order Grant­
ing Final Approval to the Consent Decree)). Only class members 
present in the workforce during the relevant period were considered 
for the promotions. 597 F.Supp. at 1511. Eligible class members 
qualified for specific jobs were then ranked on special promotion 
registers. According to the lower court, the class members thus 
identified were those most likely to have been denied promotions in 
the past. Id. at 1514; see Howard v. McLucas. 671 F.Supp. 756, 
763-65 (M.D. Ga. 1987).

The consent decree also provided for the establishment and 
distribution of a $3.75 million class back pay fund, other injunc­
tive relief, and reporting by defendant on the implementation of the 
consent decree. 597 F.Supp. at 1511. While the consent decree 
expressly states that the government did not concede liability, the 
government stipulated to the statistics demonstrating a prima facie 
case and declined to present any rebuttal. See 597 F.Supp. at 
1511 n.l, 1513; (see R.285 at 8-11, 40-41).

Robert Poss, et al., appealed the denial of interven­
tion.^ This Court reversed the district court's order denying 
intervention, and vacated that portion of the consent decree that 
mandated the promotional relief in order to permit white employees

2/
.. .. Black objectors also appealed, and this Court found that
the district court did not abuse its discretion in ruling aaainst them. 782 F.2d 956, 961 (11th Cir. 1986). 9 againSt

LG52#1 3



to challenge the promotional provision before the district court.
Howard v. McLucas, 782 F.2d 956, 960-61 (11th Cir. 1986). The
district court's approval of the decree was otherwise affirmed, and
all other remedial provisions were left intact. Id. at 961. Also
left undisturbed were the district court's underlying findings of
discrimination. This Court's ruling explicitly limited the role of
the intervenors on remand:

Intervenors are limited to challenging the portion 
of the remedy that reserves 240 target position 
promotional opportunities to class members. They 
have no standing to contest the existence of past 
discrimination or any other issue concerning the 
merits of the dispute and no standing to contest 
the backpay award or veto remedial measures in 
general. The only issue intervenors shall be per­
mitted to raise on remand is their contention that 
white and non-black employees will not be consid­
ered for promotion to the 240 target positions on 
an equal basis with nondiscriminatee black 
employees solely on account of race.

Id. at 960-61.
On remand, intervenors conducted extensive discovery and 

were given a plenary opportunity to challenge the promotional 
provision. After considering supplemental information and the 
entire record in light of the Supreme Court's recent affirmative 
action rulings, the district court rejected intervenors' challenge. 
Howard v. McLucas, 671 F.Supp. 756 (M.D. Ga. 1 9 8 7 ) The district

The Court was careful to point out that: "Merely because 
we are remanding the case does not imply that we believe the pro­
posed intervenors should prevail. We hold merely that before the 
district court orders implementation of the consent decree, the pro­
posed intervenors should be allowed to intervene." 782 F.2d at 
961 n.5.

4/ Until the remand, intervenors' legal position was based 
principally on an expansive interpretation of Firefighters Local 
Union No. 1784 v. Stotts, 467 Q.S. 561 (1984), that under § 706(g) 
of Title VII, 42 U.S.C. § 2000e-5(g), a consent decree'with race-

[cont* d ]

LG52#1 4



court concluded that:
After a full review of the evidence in this 

case and the objections of Intervenors, the court 
finds that the special promotional relief pro­
vided for in the consent decree does not violate 
either the Fifth Amendment to the Constitution or 
section 703(a) of Title VII, 42 U.S.C. § 
2000e-2(a) (1981), because it is based upon a
predicate finding of discrimination by defendants 
and is victim specific. Further, to the extent 
the relief is not victim specific, it is still 
lawful since it is necessary to provide full 
relief to class members, it is flexible, waiv­
able, and of limited duration; the number of 
positions offered is limited to the specific num­
ber of jobs statistically proven to have been 
lost to class members; and, finally, it does not 
unnecessarily trammel the rights of third parties 
or create an absolute bar to their advancement 
since the impact of the relief is relatively 
diffuse in nature and many promotional opportuni­
ties continue to exist for these third parties.

Id. at 767-68.
Intervenors appealed, 

by both the lower court and this 
expedited the appeal.

Their
Court

motion for a 
This Court

stay was denied 
sua sponte

— [cont1 d]
conscious remedies reauired a judicial determination that an 
individual was an "actual" victim of discrimination. See 597 
F.Supp. at 1512 ("[intervenors] relied primarily upon the Supreme 
Court's recent decision in Firefighters Local Union No. 1784 v. 
Stotts"); Brief of Proposed Intervenor-Appellants, 11th Cir.
No. 84-8999 at 27 ("Appellant's position, in a nutshell, is that 
Stotts bears directly on this case, that this decree violated the 
law as interpreted in Stotts, and that the District Court therefore 
erred in approving this consent decree."). After the previous 
appeal but during the remand, the Supreme Court rejected this con­
struction of Stotts in Local No. 9 3 , Int'1 Assn, of Firefighters v.
City of Cleveland, __ U.S. __, 106 S.Ct. 3063 (1986), holding that
§ 706(g) did not apply to consent decrees. Intervenors have now abandoned their § 706(g) claim.

As a result of the pendency of intervenors'^ .challenge, 
Warner Robins has distributed none of the $3.75 million backpay fund.

LG5 2#1 5



Facts.

^• The Record of Classwide Discrimination.
The district court found that "plaintiffs have made out a 

E£ima fac:*-e case of employment discrimination through the use of 
statistical evidence of disproportionate racial impact," ic). at 760 , 
by "present [ ing] numerous statistical studies of work force, grade 
levels, occupational segregation, promotions, training, supervisory 
appraisals, test scores, and awards that demonstrate pervasive 
Patterns of discrimination in the internal promotion system at 
Warner Robins." j[d. at 766. These studies, which are brieflv 
summarized below, were based on either admitted facts, discovery 
documents or Warner Robins' computer files. Id. at 766 n.l.

For many years Warner Robins has filled upper level jobs 
by promoting qualified employees in lower level jobs through an 
internal promotion system. See 597 F.Supp. at 1508-09. Vacancies, 
however > are not posted, and employees do not apply for promotions. 
Ij3. at 1508 . Candidates have been nominated and considered for 
promotions by means of computer programs which automatically rank 
all eligible Warner Robins employees for a particular vacancy by 
using experience, written examination scores, supervisory 
appraisals, awards, seniority and other factors. Id. at 1509. The 
computer program produces a "promotional register," consisting of a 
rank order list of all lower level employees Qualified to fill a 
vacancy. Id. Managers then make selections from the promotion 
register. Id.

Plaintiffs presented statistical evidence documenting the 
overall severe adverse effect of the promotion system on black 
employees: Black employees were concentrated at the bottom rungs.

B .

LG5 2#1 6



See 6 7 1 F.Supp. at 760; 597 F.Supp. at 1509-10. In 1973, when 
plaintiffs administrative charges were filed, fully three-quarters 
of black WG employees were in WG grades 1-8 compared to less than a 
third of white WG employees. Id. In 1975, when the lawsuit was 
filed, the average grade for black WG employees was 6 .8 , while the 
average grade for white WG employees was 9.3. 671 F.Supp. at 760;
597 F.Supp. at 1510. Minority employees were promoted to upper 
level jobs in proportions far less than their representation in the 
workforce. 1̂ 3.; (R.156 at 28 (Plaintiffs' Proposed Findings of Fact
and Conclusions of Law)). While blacks constituted approximately 
one-sixth of the total workforce, the highest level of minority 
representation among supervisors was 3.6%. See 671 F.Supp. at 760; 
597 F.Supp. at 1510. Blacks were concentrated in blue collar 
occupations requiring menial work and having little advancement 
potential. (R.156 at 19-22.) The district court properly found 
that "blacks were concentrated in low level jobs and certain occu­
pations, 597 F.Supp. at 1513, and that "black employees were 
promoted to upper level jobs in proportions less than their 
representation in the workforce or in lower grades." Id. at 1510.

Plaintiffs also presented evidence of significant dis­
parities in the scores of black and white employees on the criteria, 
other than seniority, used to assess qualifications for promotion,
I •e •f written examination scores, experience gained through relief 
assignments and training, supervisory appraisals, and awards.
(R.156 at 28-37; R.269 at 1|1( 3d-h, & k (Drogin declaration); R.268 
(fairness hearing exhibits) at Plaintiffs' Exhibit 1, pp. 41-73, 
100—07); 671 F.Supp. at 766. For instance, while fluctuations of 
more than two or three standard deviations are sufficient to

LG52#1 7



undercut the hypothesis that a selection device has a racially 
random effect, see Castaneda v. Partida, 430 U.S. 482, 496 n.17 
(1977); Hazelwood School Dist. v. United States, 43 3 U.S. 299,
311 n. 17 (1977), the scores of black employees on written 
examinations varied by as much as 50 standard deviations from the 
scores of white employees. (R.268 at Plaintiffs' Exhibit 1 at 100; 
—  — * * 100-07).—/ This evidence not only demonstrated the
adverse impact of a broad spectrum of Warner Robins' employment 
practices, but also established the adverse effect of the very 
criteria used to consider employees for promotion.

The parties' joint submission constituting factual 
stipulations, see 597 F.Supp. at 1508 n.l, states, in pertinent part,

Plaintiffs' unrebutted statistics, which show disparities 
especiaHy in WG grade groupings 1-4, 5-8, and 9-12, are a 
sufficient basis from which to infer that blacks were con­
centrated in low level jobs and certain occupations.

*  *  ★

Plaintiffs' unrebutted analysis of defendants' promotion 
patterns is sufficient from which to infer that there was 
a disparity in promotions between blacks and whites at Warner Robins. . . .

*  *  *

Plaintiffs here have offered unrebutted analyses of dis­
parities in the E246 and PPRS ranking factors, experience 
supervisory appraisals, written examinations, and awards/ 
as evidence of the adverse impact of such selection devices. . . .

Once plaintiffs have met their evidentiary burden of 
establishing a prima facie case of discrimination, the 
burden shifts to defendants to contradict or rebut the 
credibility of plaintiffs' evidence. But while defendants 
are free under Title VII to demonstrate the validity of 
the promotion criteria used and to submit their own sta­
tistical evidence to rebut the inference of discrimina­
tion, nothing requires that they do so. Rather, defend­
ants consent to the proposed settlement warrants entry of that decree by the Court.

(R.285 at 40-41.)

LG52#1 8



In addition to this evidence of a pattern and practice of 
racial discrimination, plaintiffs submitted conservative computer 
studies of specific promotions lost by black employees from 1971-79.

18. Plaintiffs' statistical analysis of the 
computer files for the period 1971 through 1978 
showed statistical disparities in promotion rates 
out of grade in WG grade groupings 1-4, 5-8, and 
9-12, and GS grade groupings 1-4, that plain­
tiffs' expert found to be statistically signif­
icant. From these statistics plaintiffs con­
cluded that a total of 553 jobs had been lost to blacks.

Expected
No. of Standard Promotions

Grade Group Deviations Lost to Blacks
WG 1-4 
WG 5-8 
WG 9-12 
GS 1-4

6.01
16.03
4.80
3.56

67.98
362.00
50.06
72.67

19. Plaintiffs' more conservative analysis, 
controlling for occupational series, showed sta­
tistical disparities in the same WG grade group­
ings that plaintiffs found to be statistically 
significant, but no statistically significant 
disparities in any GS grade grouping. From this 
analysis, plaintiffs concluded that a total of 
234 jobs had been lost to blacks.

No. of Standard 
Grade Group Deviations

Expected 
Promotions 

Lost to Blacks
WG 1-4 
WG 5-8 
WG 9-12

3.53
8.19
3.75

36.68
162.84
34.74

671 F.Supp. at 760-61; 597 F.Supp. at 1510.
The record, therefore, amply supports the district court's 

finding that there was a sufficient basis from which the court could

- Not only were these studies 
dants' trial statistical study, which 
greater statistical significance and h 
plaintiffs' more conservative study.

uncontradicted, but defen- 
plaintiffs summarized, showed 
igher losses to blacks than

[cont'd ]

LG52#1 9



c

infer that plaintiffs had made out an unrebutted prima facie case of 
classwide discrimination. See 597 F.Supp. at 1513.-/

2 • The Basis for the Special Promotional Provision.
The record also supports the district court's further 

finding that "[p]laintiffs' computer-based promotional analysis for 
occupational series was actual evidence that approximately 240 
promotions [to 38 separate positions] were lost to black WG 
employees," _id., and that "the positions to be filled by blacks 
should have been filled by blacks years ago." Id. at 1514. The 240 
positions set aside for class members were found to "represent, to 
the best extent possible, the most likely jobs lost to blacks from 
1970 through 1979 as a result of the discrimination at Warner

7/ [cont'd]
No. of Standard 

Grade Group Deviations
Expected 

Promotions 
Lost to Blacks

WG 1-4 4.60 
WG 5-8 9.50 
WG 9-12 4.29

70.98
209.72
46.53

(R.268 at Plaintiffs' Exhibit 1, p. 85). According to defendants' 
study, a total of 328 jobs —  88 more than plaintiffs' more conser­
vative 240 statistic —  was lost to black employees.

g /
- Intervenors claim that the lower court did not find that 

unrebutted prima facie discrimination had been established, but only 
that the court "could infer" prima facie discrimination. To the 
extent any clarification was needed, the lower court expressly 
stated on remand that "[t]his court has previously found that plain­
tiffs have made out a prima facie case of employment discrimina­
tion. . . . "  671 F.Supp. at 760; see id. at 761. The court, in any
event, reconsidered the entire record of discrimination on remand —  
at the instance of intervenors —  and came to the same conclusion 
anew. Id. at 761. Moreover, any finding of unrebutted prima facie 
discrimination is necessarily an inference. See, e.q., int'1 Bhd. 
of Teamsters v. United States, 431 U.S. 324, 361 (1977) ("if an * 
employer fails to rebut the inference that arises from [plaintiff's] 
prima facie case, a trial court may then conclude that a violation 
occurred and determine the appropriate remedy.").

LG 5 2 # 1 10



4

Robins." 671 F.Supp. at 762; (see R.156 at 1M( 36-41)
The court first determined that "it is impossible to 

identify with surgical precision the specific blacks affected" 
because of the nature of the promotion system and the fact that 
"sufficient records were not maintained to identify class members 
that were excluded from consideration unfairly." 671 F.Supp. at 
763. First, no lists of applicants for positions were maintained. 
The Warner Robins' promotional system did not require individuals 
formally to apply for a position since all employees were automati­
cally considered for each promotion. Id. at 763; 597 F.Supp. at 
1508-09. Second, because promotion registers listed only candidates 
considered and determined to be qualified, no records exist of all 
the eligible employees considered for a specific job vacancy. See 
jLd. Third, it was impossible to determine the truly best qualified 
employees under then-existing criteria because all the major cri­
teria used for determining qualification, except seniority, were 
shown to be discriminatory. See 671 F.Supp. at 766; (supra at 6-8 ).

The lower court then turned its attention to the means by 
which the consent decree identified class members eligible for the 
special promotions. Only class members employed during the relevant

9/ The district court has twice rejected intervenors' unsup­
ported claim that the 240 statistic is too high because attrition^of 
black employees was not accounted for. (Intervenors' Brief at 42- 
43 n.18.) The average black WG employee had 14 years of seniority 
when the decree was approved in 1984, demonstrating that any attri­
tion had a minimal effect, if any, in reducing from the workforce 
the number of black employees subject to discrimination in the 
relevant period. (R.275 at Tab B, p. 1 (Work Force Statistics).) 
Intervenors' attrition claim, in any event, was completely specu­
lative since they relied on a basewide attrition statistic and 
failed to present any specific evidence. Moreover, intervenors 
assumed that promotions were discriminatorily denied to blacks only 
up to 1975, when they were actually denied up to 1979.

LG52#1 11



4

pre-1980 period of "pervasive" discrimination were eligible to be
included on a promotion register for the special promotions. See
671 F.Supp. at 764. Eligible class members were placed on registers
only if they met normal eligibility requirements for the position in
question,— ^ and were then ranked according to seniority and
supervisory appraisal score, ^d. Assessing this procedure, the
district court found that:

By using these factors, the most presently Quali­
fied class member is thus eligible for one of the 
special promotions, and, assuming that this same 
person has performed similarly in the past, he/she 
is more than likely an actual victim of defend­
ants' discriminatory conduct. A more specific way 
of identifying these actual victims does not exist in this case.

Id. at 763. The court's finding that "the best method of determin­
ing the actual victims of defendant's discrimination has been uti­
lized in the consent decree" is fully supported by the record. Id.

The district court properly found that "given the unavail­
ability of any government documents that show which class members 
were passed over for promotion during the relevant time period, the 
method of identification utilized in the consent decree is the best 
alternative identification system available" and a "reliable and 
narrowly tailored process designed to assure that only victims of 
discrimination be afforded relief." ^d. at 764 (emphasis added).

One hundred and sixty-nine of the total 240 special

!£/ Intervenors seek to denigrate class members as "minimally 
qualified" because they are required ab initio to meet basic eligi­
bility requirements, failing to mention that to be selected they 
must also have high seniority and supervisory appraisal scores. 
Seniority and appraisals are used to determine the best qualified of 
the large group of qualified employees. The term "minimally quali­
fied" is a term of art from federal civil service manuals that does not mean an employee is barely qualified.

LG52#1 12



positions have been filled to date. All the class members who 
received special promotions were qualified black employees employed 
by Warner Robins during the pre-1980 period covered by plaintiffs' 
showing of pervasive and continuing discrimination, and determined 
to be likely victims of discrimination. Id. at 764. The court 
specifically ruled that "[i]ntervenors have failed to show that any 
of these class members were not victims of defendants' discrimina­
tion." Id.

With respect to white employees generally, the district 
court found that: Employees have "no vested right or entitlement to
a promotion under the Warner Robins promotion process." Id. at 
766 n.3; 597 F.Supp. at 1503. The short duration of the relief —  
169 positions were filled in 22 months and the remaining 71 posi­
tions will probably be filled in less than a year —  imposed only a 
"minimal intrusion" on generalized promotional expectations. 671 
F.Supp. at 766. The relief was found not to require the layoff or 
discharge of any white employee, and its impact to be "relatively 
diffuse." W .  at 767.

[The provision] merely postpones the promotions of 
a relatively few qualified whites to a limited 
number of specific positions. These same white 
employees may continue to seek a promotion in one 
of the target positions on an every other basis, 
as well as a promotion in any one of the other 
non-target positions at Warner Robins. For 
example, during the 22 months that the special 
registers were in use . . . , there were 3,909 
competitive promotions at Warner Robins. The 169 
special promotions made during that period, 
therefore, comprised a mere 4.3% of the total 
number of promotions made at Warner Robins.

^d. (citation omitted). Last, the court found that there was no
"less intrusive approach that might provide full relief to class

LG52#1 13



\

members within a reasonable period of time" under the circumstances 
of this case. Id.— ^

^ • ^tetement of the Standard of Review.
In general, the district court's approval of the proposed 

consent decree is to be reviewed under an abuse of discretion 
standard. Holmes v. Continental Can Co.. 706 F.2d 1144, 1147 (11th 
Cir. 1983); United States v. City of Miami. 664 F.2d 435, 442 (5th 
Cir. 1981) (en banc). More specifically, the findings of fact 
establishing a basis for relief and those underlying the court's 
rejection of intervenors' Fifth Amendment claim are subject to 
review under the clearly erroneous standard. The court's inter­
pretation of Title VII's requirements as set forth in Johnson v. 
Transportation Agency is subject to de novo review.

Although intervenors were given a full opportunity to 
marshaH evidence, they failed to present any evidence that even one
c L  ^-naT? P ?  lntervenors was specifically denied a promotion or pecifically delayed in obtaining a promotion as a result of the 
consent decree's affirmative action promotional provision. Indeed 
a majority of the Intervenors claiming eligibility for target posi­
tions have actually received promotions." 671 F.Supp. at 767 The 
uncontradicted record shows that of the 137 intervenors, fully 56 
were ineligible or otherwise unable to be promoted to any of the
target positions. Id. at 767 n.4. Of the 81 remaining intervenors, 43 have been promoted. '

Intervenors a fortiori failed to prove that any intervenor -- 
or any other white employee —  with better qualifications than the 
c ass members was passed over for the special promotions. Nor did 
they show that any class member who was given a special promotion 
was unqualified or not a victim of discrimination. See id. at 764.
_ac! Intervenors were reduced to spending most of the remand unsuc­
cessfully trying to show that the several black employees who 
received special promotions were less qualified for promotion than 
other class members. The district court correctly found otherwise
a2d-7?^°?erly questioned the relevance of the attempted showing. Id. St 764-65•

LG52#1 14



SUMMARY OF THE ARGUMENT
The issue before this Court is whether intervenors suc­

cessfully discharged their burden of proving in the court below that 
the consent decree's special promotion provision violates either 
Title VII or the Constitution. There are three basic reasons that 
the district court correctly held that intervenors failed to do so.

F_ir_st, both Title VII and the Constitution require only 
that a race-conscious remedy have a sufficient record basis; neither 
the statute nor the Fifth Amendment requires a predicate judicial 
finding of actual discrimination. Intervenors do not dispute these 
principles: they merely take issue with the district court's
findings. The district court, however, found an unrebutted prima 
facie case of classwide discrimination, i.e. , findings much more 
substantial than those required by law. These correct findings are 
not clearly erroneous; the prima facie case is fully supported by 
subsidiary findings and an extensive record.

Second, intervenors failed to demonstrate that § 703 of 
Title VII has been violated. The district court ruled that the 
special promotional provision is victim specific relief under Int' 1  

Bhd. of Teamsters v. United States. 431 U.S. 324 (1977), and, alter­
natively, a justifiable form of affirmative action under Johnson y.
Transportation Agency, Santa Clara Cty., Cal., __ U.S. __, 107 S.Ct.
1442 (1987). Intervenors erroneously argue that the district court 
committed an error of law in ruling that the manner in which class 
members are selected for the special promotions is an improper 
method of identifying victims of discrimination, ignoring the set­
tled principle that class members affected by a demonstration of

VII .

LG5 2#1 15



classwide discrimination, such as the black employees designated to 
receive special promotions, are presumptively entitled to individual 
relief, Teamsters, 431 U.S. at 359 & n.45; Franks v. Bowman 
Transportation Co., 424 U.S. 747, 772 (1976), and a clear record 
that the special promotions will go only to the most likely victims 
of discrimination. With respect to the application of Johnson, the 
district court faithfully applied the correct standards and made 
appropriate findings that the promotional provision remedies a 
manifest imbalance in traditionally segregated job categories and 
neither unnecessarily trammels the rights of white employees nor 
creates an absolute bar to their advancement. These fully supported
findings are not clearly erroneous.

Third, the Fifth Amendment was not violated. The Fifth 
Amendment does not apply to federal employees, such as interveners, 
who have an adequate remedy under Title VII. in any event, the 
lower court conscientiously applied the teachings of United States 
— — — rad*se' —  U.S. — , 107 S.Ct. 1053 (1987) , and Wyqant v.
Jackson Bd. of Educ., 476 U.S. _ ,  106 S.Ct. 1842 (1986), making the 
requisite finding that the promotional relief is narrowly tailored 
to the achievement of the compelling interest in remedying past 
discrimination. The district court's finding is plainly correct and 
therefore not clearly erroneous.

VIII.
ARGUMENT

The Supreme Court has made it clear that, under either the 
Fifth Amendment of the Constitution, U.S. Const, amend V, or Title 
VII, 42 U.S.C. § 2000e et seq., opponents, such as intervenors in

LG52#1 16



the instant case, bear the burden of establishing the invalidity of 
race-conscious relief. Johnson v. Transportation Agency, Santa
Clara Cty. , Cal._, __ U.S. __, 107 S.Ct. 1442, 1449 (1987) (Title
VII) ("Only last term in Wygant v. Jackson Board of Education, we 
held that '(t]he ultimate burden remains with the employees to 
demonstrate the unconstitutionality of an affirmative-action 
program,' and we see no basis for a different rule regarding a 
plan's alleged violation of Title VII."); Wygant v. Jackson Bd, of 
Educ. , 476 U.S. — , 106 S.Ct. 1842, 1856 (O'Connor, J., concurring 
in part and concurring in the judgment) (Constitution) ("[the 
nonminority employees] bear the ultimate burden of persuading the 
court"). Intervenors failed to satisfy their burden of proving, and 
in fact cannot prove, the invalidity of the consent decree.— /

This is not a hard case. The legal standards governing 
the issues in this case are now clear in light of the Supreme 
Court's recent affirmative action rulings. The district court 
correctly applied these standards, making the requisite findings. 
Intervenors have completely failed to discharge their burden of 
proving that the district court's findings are clearly erroneous and

12/— The Court need not reach the issue of mootness (Inter- 
venors Brief at 12-14) because the promotional relief at issue is 
valid. If the Court does reach the issue, however, the district 
court correctly concluded that the issue of the propriety of the 
relief was moot as to the 169 promotions already given. There is 
mootness in the sense that the promotions have been given and can no 
longer be challenged on a prospective basis. Intervenors, however, 
may still challenge the promotions by separate collateral attack.

e proper way in this circuit to challenge the special promotions 
already awarded was to file an independent Title VII lawsuit assert- 
ing the violations of their rights and requesting corrective relief 
such as back pay along with compelled future promotion. See In re 
Birmingham Reverse Discrimination Employment Litigation. N^T 86^7108
( -.h.Clr* Dec* 15, 1987); United States v. Jefferson County, 720 F.2d 1511, 1520 (11th Cir. 1983) .--------- -L

LG52#1 17



that the promotional provision is invalid. Notwithstanding the 
remand this Court granted intervenors to conduct discovery and to 
present evidence in the district court, intervenors' appeal is based 
on hypothetical facts due to their complete failure to prove their 
case. Indeed, not only have intervenors been unable to satisfy 
their burdens under Johnson and Paradise, they have failed to 
establish even a colorable claim of discrimination: not one of the
^-37 intervenors has demonstrated that he or she was more qualified 
than a black employee chosen for promotion, and therefore that he or 
she would have been promoted in the absence of the consent decree's 
promotional provision. (See supra at 14 n.ll.)

A. THERE IS A SUFFICIENT EVIDENTIARY BASIS TO JUSTIFY THE SPECIAL 
PROMOTIONAL PROVISION OF THE CONSENT DECREE.

The showing required to justify a race-conscious remedy is 
clear, and intervenors challenge only the district court's findings 
of fact. The findings, however, are not clearly erroneous.— ^
/
/
/

13/ A district court's findings of fact, including findings of 
discrimination, are reviewed under the clearly erroneous standard 
and thus must be allowed to stand unless the reviewing court is left 
with the definite and firm impression that a mistake has been made 
Anderson v. City of Bessemer City. 470 U.S. 564 (1985); American 
Nat 1 Bank v. Federal Deposit Ins. Corp., 710 F.2d 1528, 1533-34 
(11th C i r . 1983); American Civil Liberties Union of Georgia v. Rabun 
County, 698 F.2d 1098, 1110 (11th Cir. 1983); Hardin v. Stynchcomb. 
691 F.2d 1364, 1372 (11th Cir. 1982). "Where there are two permis­
sible views of the evidence, the factfinder's choice between them 
cannot be clearly erroneous." Anderson. 470 U.S. at 574.

LG52#1 18



1 . Bpth Title VII and the Constitution Require Only a 
Sufficient Evidentiary Basis for Race-Conscious Relief. 
Intervenors challenge the clear evidence of discrimination 

despite this Court's explicit instructions on the limited remand 
that they "have no standing to contest the existence of past 
discrimination or any other issue concerning the merits of the 
dispute." 782 F.2d at 960-61.— / Although acknowledging that they 
are "not permitted to contest . . .  the lower court’s findings 
regarding whether there had been a finding of discrimination by the 
Government," (Intervenors* Brief at 2-3), underlying almost every 
single argument is their contention that plaintiffs have made no 
showing of discrimination. Recognizing this, the district court 
specifically demonstrated why intervenors' contention is meritless 
and a finding of discrimination in this case is warranted. See 671 
F.Supp. at 759. These factual findings are not clearly erroneous.

Under either Title VII or the Constitution, a voluntary
race-conscious plan, whether embodied in a consent decree or a
purely private agreement, must be justified by evidence of discrimi- 

15/nation. Under Title VII, an employer must merely demonstrate the
14/ This Court remanded for an evaluation of the special pro­

motional provisions contained in the consent decree. It vacated 
only that portion of the district court's opinion dealing with the 
promotional relief. Although intervenors had argued that there was 
insufficient evidence of discrimination to justify remedial action 

is Court did not find that their argument warranted a remand of 
r*SUe' Furthermore, the $3.75 million backpay award, which tnis court affirmed, was based on the same factual showing of discrimination. ^

, . This Court recently held that a race-conscious remedy con­
tained m  a consent decree should be treated no differently than a 
voluntary affirmative action plan, with its statutory and constitu- 

vaildl^y bein? evaluated under Johnson and Wygant respec- tively. See In re Birmingham Reverse Discrimination Employment 
Litigation, NoT 86-7108 (11th Cir. DecT 15, 1987). ^ ^ ----

LG52#1 19



existence of a "manifest imbalance" in "traditionally segregated job 
categories." Johnson, 107 S.Ct. at 1452; United Steelworkers of 
America v. Weber, 443 U.S. 193, 197 (1979). However, "[a] manifest 
imbalance need not be such that it would support a prima facie case 
against the employer." Johnson, 107 S.Ct. at 1452. Similarly, 
under the Constitution, "the trial court must make a factual 
determination that the employer had a strong basis in evidence for 
its conclusion that remedial action was necessary," and a public 
employer "must have sufficient evidence to justify the conclusion 
that there has been prior discrimination." Wygant, 106 S.Ct. at 
1848. In determining whether the requisite level of evidence 
exists, appellate courts look to the trial court's findings and the 
underlying record. See United States v. Paradise. 107 S.Ct. 1053, 
1065-66 (1987); Wygant, 106 S.Ct. at 1847-49 (opinion of Powell,
J.), 106 S.Ct. at 1853-54 (O'Connor, J., concurring in part and 
concurring in the judgment).

Neither Title VII nor the Constitution require a judicial 
determination or finding of actual discrimination, or an admission 
of discrimination, before an employer may implement a plan involving 
affirmative relief. See Johnson. 107 S.Ct. at 1451 & n.8 , 1457 
n* ^ ; ^ Wygant, 106 S.Ct. at 1848 (opinion of Powell, J.), 1853
(O'Connor, J., concurring in part and concurring in the judgment).
The reason is clear: "[t]he imposition of a requirement that public

. , . Under Title VII, a statistical showing of manifest
imbalance in traditionally segregated job categories is alone a suf-
Tihifnt f°r the ad°Ption of an affirmative action program.Johnson, 107 S.Ct. at 1452; Kirkland v. New York State Dep't of
gorrectional Services. 711 F~2d 1117, 1130-31 (2dCir. 1983), cert
denied sub nom Althiser v. New York State Dep't of Correctional---’Services. 465 UTS. 1005 (1984). ----- K

LG52#1 20



employers make findings that they have engaged in illegal discrimi­
nation before they engage in affirmative action programs would 
severely undermine public employers' incentive to meet voluntarily 
their civil rights obligations." Wygant, 106 S.Ct. at 1855 
(O'Connor, J., concurring in part and concurring in the judgment).
T^e * * • suggestion that an affirmative action program may be 

adopted only to redress an employer's past discrimination was 
rejected in Steelworkers v. Weber because the prospect of liability 
created by such an admission would create a significant disincentive 
for voluntary action." Johnson, 107 S.Ct. at 1451 n . 8 (citations 
omitted).

2• The District Court's Findings of Discrimination and the 
Underlying Record Provide a Sufficient Basis for the 
Special Promotional Provision.
The court's findings of fact, findings which are not 

clearly erroneous, plainly exceed that demanded by either Title VII 
or the Constitution. First of all, the district court found that 
"plaintiffs have made out a prima facie case of employment 
discrimination." 671 F.Supp. at 760. This finding has compelling 
and extensive record support. The court’s findings referred to 
numerous statistical disparities evidencing classwide discrimination 
which were largely stipulated to by defendants, and, in any event, 
unrebutted. (See supra at 6-10.) The record contains evidence not 
only of pr ima f_acie promotional discrimination, but also of the 
concentration of black employees in lower levels of job categories, 
their virtual exclusion from supervisory and other upper level 
positions, pervasive and continuing patterns of discrimination and 
the use of discriminatory promotional critiera. The district court

LG52#1 21



correctly found that "[g]iven this factual background, the court can 
but only conclude that the requisite 'manifest imbalance' has been 
amply shown by plaintiffs." 671 F.Supp. at 766. "Of course, when 
there is sufficient evidence to meet the . . . 'prima facie' 
standard, be it statistical, non-statistical, or a combination of 
the two, the employer is free to adopt an affirmative action plan." 
Johnson, 107 S.Ct. at 1453 n.ll; see also, _id. at 1463 (O'Connor,
J., concurring); Kirkland v. New York State Pep't of Correctional 
Services, 711 F.2d 1117, 1130-31 (2d Cir. 1983), cert, denied sub 
—  ^ thiser v. New York State Pep't of Correctional Services. 465 
D.S. 1005 (1984). Even without the finding that an unrebutted prima 
facie case had been made out, the court's elaborate findings of fact 
and the parties' stipulation of admitted facts demonstrate the 
requisite manifest imbalance.

The district court's findings also demonstrate that there 
was sufficient evidence to justify the conclusion that there had 
been prior discrimination, thus satisfying the constitutional demand 
for a basis justifying remedial action. By summarizing the evidence 
establishing a prima facie case of classwide discrimination, the 
trial court made the requisite particularized findings demonstrating 
that the employer had a strong basis in evidence for its conclusion 
that remedial action was necessary. See Wygant, 106 S.Ct. at 1848.

Intervenors focus on Warner Robins' denial of liability in 
the consent decree as if this somehow undermines the court's 
findings. (Interveners' Brief at 5-6, 15.) Yet the Supreme Court 
has ruled that an employer need not concede liability in order to 
adopt a voluntary affirmative action plan. See Johnson. 107 S.Ct. 
at 1451 & n.8 . All that is required is evidence establishing a

LG52#1 22



basis for the remedial action. Such evidence was presented.^/
Intervenors also inexplicably attack the statistical basis 

for the decree on the ground that it was "unrebutted." (Inter­
venors' Brief at 5-6.) That the promotional analyses are indisput­
ably accurate is a factor supporting, rather than undermining, the 
evidence. In addition, the court did not simply accept uncritically 
the statistical studies; it has twice analyzed the methodology used 
and made specific findings as to its conservative nature. 671 
F.Supp. at 760; 597 F.Supp. at 1513. Furthermore, defendants' own 
promotional study showed even higher levels of significance and 
greater losses of jobs to blacks than the study, the most conserva­
tive in the record, upon which the 240 promotions were based.

17/ Statements in the consent decree do not foreclose the 
court from, as it did here, independently finding evidence of dis­crimination. Indeed, the law of the circuit dlS
district court make an independent assessment of 
and law underlying the proposed consent decree,

on the merits, support entry'of the
____________ 559 F .2d 1326, 1330-31 (5th CirKatz, 447 F.2d 431, 433-35 (5th Cir. 1971)

lihood
Cotton of success 

v. Hinton,

requires that a
whether the facts 
including the like- 

decree .
1977); Young v ,

(citing other authorities) ; see 671 F.Supp. at 759

. . • Inte5 venors are simply wrong that "[tlhe law in this c i r ­
cuit is that when a consent decree has as its predicate a orima 
facie statistical showing and also contains a denial of'lfahTTT?,, s 
the defendant, there is not and logically cannot be a Y Y
determination of discrimination." (Interveners' Brief F t f  The
2?)L?aSe ^  S 11? for this proposition, In re BlrminohamL L r l Fdiscrimination Employment Litigation. No. 86-7108 (11th Cir-------
uec. lb, 1987 , has nothing whatsoever to do with the p o s i t i o n
Itl si isf?ited' .The being addressed was ?heP°pprop?i-ate legal significance to accord a consent decree in a Title VII 
reverse d.scnmination suit when an employer seeks to in^erpole it 
as a defense against employees who were neither parties no/orivi- 
ties to it. Contrary to intervenors' contention, the case said 
nothing about whether a consent decree should be treated as a find­
ing of discrimination. Intervenors fail to understand that it iq 
thf n?t.simply the terms of the cSnsent decree
establishes discrimination. Moreover, unlike the instant case

“ n d l n 9 °f d-btimination in^l^re

LG52#1 23



B. INTERVENORS FAILED TO CARRY THEIR BURDEN OF PROVING THAT THE 
PROMOTIONAL RELIEF VIOLATED § 703(a) OF TITLE VII.

The district court correctly found that the special 
promotional provision did not violate the prohibition of § 703(a), 
42 U.S.C. § 2000e-2(a), which bars discrimination against an 
individual "because of such individual's race," on two alternative 
grounds. F irst, the court found that the promotional relief is 
victim specific," rejecting intervenors' claims that the relief is 

either unreasonable or unlawful. 671 F.Supp. at 767-68; see id. at 
762-66. Second, the court ruled that even assuming that the promo­
tional relief in this case is a purely race-conscious affirmative 
action program designed to benefit victim and non-victim class
members alike, the relief so provided still passes statutory muster. 
Id. at 766-68.

1* The Promotional Provision Grants Relief Only to Actual 
Victims of Discrimination.
The district court considered at length —  and properly 

rejected -  intervenors' challenges to the method utilized by the 
consent decree to identify class members for placement in the 240
special promotions. Id. at 761-66. These findings are not clearly 
erroneous.ig/

/

/

At best, intervenor 
evidence. The district court 
cleariy erroneous. Anderson 
573-74; see authorities cited

s present an alternative view of 
s rejection of their view is not 

v. City of Bessemer. 470 U.S. at 
supra at 18 n.13.

the

LG52#1 24



a. The District Court Did Not Err As a Matter of Law by 
Approving Victim-Specific Relief.

Although the parties were not required to devise a victim- 
specific remedy, see Local No. 93, Int'l Assn, of Firefighters v. 
City of Cleveland, 106 S.Ct. 3063 (1986) , the lower court found that 
the special promotional provision in fact established "the best 
method of determining the actual victims of defendants' discrimina­
tion." 671 F.Supp. at 763. Intervenors' argument that the 
procedure for identifying class members to fill special promotions
was so flawed as to discriminate against intervenors therefore has 
no legal basis.

The law is settled that "[b]y 'demonstrating the existence 
of a discriminatory . . . pattern and practice' the plaintiffs 
hafve] made out a prima facie case of discrimination against the 
individual class members; the burden therefore shift[s] to the 
employer 'to prove that individuals . . . were not in fact victims 
of previous . . . discrimination.'" Int'l Bhd. of Teamsters v. 
United States, 431 U.S. 324, 359 (1977) (quoting Franks v. Bowman 
Transportation Co., 424 U.S. 747, 772 (1976)); see Baxter v.
Savannah Sugar Ref. Corp., 495 F.2d 437, 443-45 (5th Cir.), cert, 
denied, 419 U.S. 1033 (1974). "[P]roof of a discriminatory pattern
and practice creates a rebuttable presumption in favor of individual 
relief. Teamsters, 431 U.S. at 359 n.45; see id. at 362. Unless 
the employer demonstrates that an individual class member affected 
by the pattern or practice of discrimination was denied a job for a 
nondiscriminatory reason, the individual is entitled to relief. Id. 
at 362. The principles of Teamsters and Franks have been widely 
followed. See, e.g., Davis v. Bd. of School Comm'rs of Mobile

LG52#1 25



count*, 600 F.2d 470, 474 (5th Cir. 1979), modified on other 
grounds, 616 F.2d 893 (1980); Williams v. DeKalb County. 5 7 7 F.2d 
248 , 256 (5th Cir. 19 78).— /

Courts have recognized that the process of recreating the 
past in order to identify victims of discrimination "will necessar­
ily involve a degree of approximation and imprecision." Teamsters, 
431 U.S. at 372; Segar v. Smith, 738 F.2d 1249, 1289 & n.36, 1290 
(D.C. Cir. 1984), cert, denied, 471 U.S. 1115 (1985); Pettway v. 
American Cast Iron Pipe Co., 494 F.2d 211, 260 (5th Cir. 1974), 
cert, denied, 439 U.S. 1115 (1979). While individualized hearings 
are "usually" required, Teamsters, 431 U.S. at 361, they have not 
been required "when the class size or the ambiguity of promotion or 
hiring practices or the multiple effects of discriminatory practices 
or the illegal practices continued over an extended period of time 
calls forth [a] quagmire of hypothetical judgment[s]." Pettway, 494

19/
, ,A ^ ass ™fmber' however, may not have been directly affected by the pattern or practice of discrimination Whil^ fhoro 

is no inexorable bar to individual relief fo^sSch c L ,  L  
they must affirmatively demonstrate that they were affected bv f ' broad pattern of discrimination. Teamsters s t?
s h S r ^ H ^  U n  3 PerSOnnel system~~calling for application] U s t
S  t X r ? , a PS,t e ?,t l a l J ) C,t im  OE u" l a " f u l  d i s c r i m i n a t i n ' ?
ccicerhs this Z ^ l t T c s d  ['Fn f t S t ^ III'

or* M  s i r s ; ? - . : ; ? ; ;
employees who were not clearly affected by patterns of classwide 
discrimination, but were nevertheless members of the class id The Court, citing portions of Teamsters, 431 u S at 3fi7-7 l •
t i v e i r r aPP^ Ca?tS' St3!:ed th3t SUCh Class must Jffirma- 1 " 9tively demonstrate entitlement to relief. Stotts, 467 U S at S7 Q
ranhrS member?hiP in the disadvantaged class is insufficient to war- rant a seniority award; each individual must prove that the discrim­
inatory practice had an impact on him"). No such proof havino h ™  
presented Stotts, consistent with T e a m s t e r s . n ,  L  3 L  6 6 0

plaintiffs^prove^thaf66" 0^ ered gone toTial and theexisted" ?a a.?att!rn °r.Practi«  °t discriminationxisted. Id. Stotts, therefore, is not germane to this appeal.
LG52#1 26



F •2d at 261; see Domingo v. New England Fish Co., 727 F.2d 1429, 
1444 (9th Cir. 1984); Segar, 738 F.2d at 1290; Stewart v. General 
Motors Corp., 542 F.2d 445, 452-53 (7th Cir. 1976), cert, denied, 
433 U.S. 919 (1977); Association Against Discrimination in 
Employment t Inc., v. City of Bridgeport. 479 F.Supp. 101, 115 (D. 
Conn. 1979), aff1 d , 647 F.2d 256 (2d Cir. 1981), cert. denied, 455  

U.S. 988 (1982). In such circumstances, courts have sanctioned 
numerical victim identification orders, see, e.g., Association 
Against Discrimination, 479 F.Supp. at 115 (". . . 102 positions 
should go to those minority individuals who would have been hired 
had there been no discrimination. Recognizing that, at this point 
in time, it is impossible to identify these individuals with any 
certainty, the Court must exercise its discretion to fashion an 
equitable means of selecting the individuals to be hired"), or 
classwide relief, see, e.g., Pettway, 494 F.2d at 261-63 (distribu­
tion of individual backpay to the whole class).

The victim specific special promotion provision at issue 
in the instant case neither conflicts with nor violates Title VII as 
a matter of law. The provision of relief for specific victims of 
discrimination comports with "the purpose of Congress in vesting 
broad equitable powers in Title VII courts . . . ' to make possible 
the fashionfing] [of] the most complete relief possible"' and 
district courts have '"not merely the power but the duty to render a 
decree which will so far as possible eliminate the discriminatory 
effects of the past as well as bar like discrimination in the 
future.""' Teamsters, 431 U.S. 364 (quoting Albermarle Paper Co. v. 
Moody, 422 U.S. 405, 421, 418 (1975)). The particular remedy in 
this case, a victim identification provision, has been ordered by

LG52#1 27



courts in similar circumstances, see Association Against Discrimi­
nation, 479 F.Supp. at 115, thus assuring that the provision is 
neither unreasonable nor proscribed. While a consent decree is not 
limited to what a federal court could have awarded after trial of a 
Title VII case, Firefighters. 106 S.Ct. at 3077, the fact that 
courts have previously mandated the relief in question is a 
substantial guarantee that the provision is consistent with the 
statute. Indeed, courts have ordered relief that goes much further 
than this provision. Where, as here, courts have determined that 
the actual victims are difficult to identify, victim specific relief 
has been distributed on a classwide basis to nonvictims as well as 
victims of discrimination. See, e.g., Pettway. 494 F.2d at 260-62.

The District Court Correctly Found That the Victim 
Identification Method Was the Best Method of 
Determining the Actual Victims of Discrimination, 

lower court reviewed the special promotional provi- 
of victim identification, and found that, in the cir- 
the case, "the best method of determining the actual 

victims of defendants' discrimination has been utilized." 671
F.Supp. at 763. This finding is not clearly erroneous and in fact 
is fully supported.

On its face, the task of identifying actual victims of 
discrimination was daunting because of the nature of the internal 
promotion system, the size of the facility, the large number and 
variety of promotional openings and the complex organization of 
Warner Robins. "When a court is faced with the employment situation 
like this case, where employees start at entry level jobs in a 
department and progress into a myriad of other positions and depart­

b.

The
sion’s method 
cumstances of

LG52#1 28



'  V

ments on the basis of seniority and ability over an extended period 
of time, exact reconstruction of each individual claimant's work 
history, as if discrimination had not occurred, is not only impre­
cise but impractical." Pettway, 494 F.2d at 261-62. The district 
court, moreover, cited special circumstances unique to Warner Robins 
that made precise identification of actual victims impossible: 
employees did not formally apply for promotions; there was no record 
of class members excluded from consideration for promotion; and it 
was impossible to truly establish who was best qualified for promo­
tion. 671 F.Supp. at 763; (see supra at 11). The district court, 
therefore, correctly found that the alternative identification 
procedure used was appropriate because "[a] more specific way of 
identifying these actual victims does not exist in this case." 671 
F.Supp. at 763.

Nor was the district court clearly erroneous in its find­
ing that the consent decree utilized the "best method of determining 
the actual victims" in the circumstances of the case. 1̂ 3. Only 
individuals who endured pervasive classwide discrimination that 
deprived black employees of 240 specific positions were considered 
for the special promotions. They are, therefore, precisely the 
individuals for whom "a rebuttable presumption in favor of individ­
ual relief," Teamsters, 431 U.S. at 359 n.45, was established.
Warner Robins, of course, did not attempt any rebuttal. Instead, 
the parties agreed to consider only those class members meeting the 
normal eligibility requirements for the specific special promotions, 
and to rank such individuals by seniority (the only qualification 
criterion that had no adverse impact on black employees) and by 
supervisory appraisal score, thereby eliminating all the other

LG 5 2 #1 29



qualification criteria having a discriminatory impact. With respect 
to this procedure, the district court found that:

"[B]y presently meeting the basic eligibility 
requirements for one of the special promotions, 
and by requiring the most senior and best rated 
class member be promoted first, as determined by 
the supervisory and [service computation date] 
ratings, it becomes likely that this same employee 
has been eligible for that same promotion for a 
considerable period of time; that this period of 
time likely extends back into the period during 
which discrimination has been demonstrated; and 
that, therefore, he/she is a likely victim of 
iscrimination entitled to relief. Accordingly, 

the court finds that given the unavailability of 
any government documents that show which class 
members were passed over for promotion during the 
relevant time period, the method of identification 
utilized in the consent decree is the best 
alternative identification system available.

671 F.Supp. at 764. This finding is not clearly 
the district court's rejection of intervenors' pi 
to the decree's victim identification method. (I 
at 21-23.)— /

erroneous. Nor is 
cayune objections 
ntervenors' Brief

20/ _.First, intervenors objected that the 
date used to determine seniority does not alway 
ee s length of service at Warner Robins because 
federal service. The court correctly rejected 
service computation date is a reliable and read 
approved and used by the Air Force as the best

f°r Proraotio?a:i- purposes, and a measure with length of service at Warner Robins. 671 F 
Intervenors presented no evidence of a reliable 
able alternative. The finding that the service 
a proper measure of seniority is not clearly er

service computation 
s measure an employ- 
it may include other 

the claim because the 
ily available measure indicator of sen- 
highly correlated 
.Supp. at 763. 
and readily avail- 
computation date is roneous.

Second, intervenors objected that the victim identifica­
tion procedure failed to require that class members serve in

the relevant time period. The court cor­rectly found that the procedure is the best alternative identifica- 
tion method in light of the unavailability of relevant documents.
—  • . 763~64- In ar}Y event, employees who meet the eligibilityrequirements for a given gob are highly likely to have been in 

urce level positions because work experience gained at source 
level positions is a requirement for current eligibility. There- 
tore, a source level requirement is unnecessary. Moreover, a source

[cont'd]
LG52#1 30



y

The record fully supports the court's determination that 
[wjhile the identification process is not flawless, it is, in the 

court's best judgment, a reasonable and fair identification 
procedure designed to choose the most likely victims of discrim­
ination." Id. at 765. Not only was the identification method fair 
and reasonable, but also the court found that the use of the 
numerical victim identification provision "actually minimized" the 
potential impact on non-discriminatees "since it appears from all of 
the evidence that there were potentially more than 240 class members 
that were not promoted on the basis of of race." Id.
/
/
/
/

— ^ [cont'd]
position requirement is inappropriate in light of the pervasive dis­
crimination demonstrated throughout Warner Robins, the multiplicity 
of source positions for a given position in the same or related 
occupations, and the option employees have of transferring between occupations.

Third, intervenors objected that the seniority ranking did 
not take into account special circumstances such as leaves of 
absence. The court's finding that this factor does not make the 
seniority measure "unfair or unduly inaccurate," id. at 764 is not 
clearly erroneous. Neither is its finding that "[t]o the extent 
that a lesser qualified victim was promoted before a more qualified 
victim, Intervenors simply do not have standing to object since
. . . all victims of discrimination are entitled to full relief "Id. at 765.

Fourth, the district court correctly rejected the "frivol­
ous argument" that Warner Robins destroyed records that might have 
aided in identifying actual victims. Id. at 765. It was not 
clearly erroneous for the court to find that "[t]he record is devoid 
of any evidence of such destruction and, in fact, the evidence 
clearly indicates that the lack of evidence stems solely from the 
institutional procedures set up by Warner Robins prior-to the initi­ation of this lawsuit." Id.

LG52#1 31



2 . The Promotional Provision Is a Valid Affirmative Action
-lan Under Title VII Because It Acts to Remedy a "Manifest
Imbalance"_in "Traditionally Segregated Job Categories"
and Does Not "Unnecessarily Trammel[] the Rights of 
[White] Employees or Create[1 an Absolute Bar to Their 
Advancement."
The district court correctly found that "even assuming 

that the promotional relief in this case is a purely race-conscious 
affirmative action program designed to benefit victim and non-victim 
class members alike, the relief so provided would still pass 
statutory and constitutional muster." id. at 766. Although the 
district court addressed statutory and constitutional issues 
together and did not separately discuss the standards of Title VII 
and those of the Constitution, in the course of its analysis it made 
all of the specific findings demanded by both. See id. at 766-67. 
Interveners have failed to satisfy their burden of establishing that 
these factual findings are clearly erroneous. For analytical 
purposes, this brief will distinguish between the requirements of 
Title VII and those of the Constitution, addressing in turn the 
findings that each demand.

Both the district court and intervenors recognize that 
Johnson, 107 S.Ct. 1442, sets forth the controlling principles for 
assessing the validity of affirmative action plans under Title VII. 
^ nson held that, to withstand Title VII scrutiny, a voluntary 
affirmative action plan must satisfy a two-part test emanating from 
Weber, 443 U.S. 193: (1) the race-conscious relief must be
"justified by the existence of a 'manifest imbalance' that 
reflect[s] underrepresentation of women [or minorities] in

LG52#1 32



I If Johnson, 107 S.Ct. at'traditionally segregated job categories,
1452 (quoting Weber, 443 U.S. at 197), and (2) the plan must not 
unnecessarily trammel[] the rights of . . . [non-minority] employ­

ees or create[] an absolute bar to their advancement." Id. at 1455; 
lLee also In re Birmingham Reverse Discrimination Employment Litiga­
tion* No. 86-7108 (11th Cir. Dec. 15, 1987). That the district 
court did not err in finding that plaintiffs amply demonstrated the 
requisite "manifest imbalance" in "traditionally segregated job 
categories" has been established above. (See supra at 6-10, 21-23.)

In applying the second prong of the Johnson analysis, the 
Supreme Court considered several factors: (1) the nature of the
affirmative action plan; (2 ) the impact on legitimate expectations 
of affected non-discriminatee employees; and (3 ) whether the remedy 
was intended "to attain a balanced workforce, not to maintain one." 
See Johnson, 107 S.Ct. at 1454-56. As demonstrated below, the 
findings that intervenors failed to carry their burden of proving 
that the promotional relief "does not unnecessarily trammel the 
rights of third parties or create an absolute bar to their advance­
ment," 671 F.Supp. at 768, are not clearly erroneous.

a. The Nature of the Promotional Relief.
It was not clearly erroneous for the district court to 

find that the promotional provision was a temporary set-aside 
program designed to minimally intrude upon white employees' legiti­
mate expectations. The promotional relief at issue here is similar 
to, but even less intrusive than, the affirmative relief approved in 
Weber, 443 U.S. at 208-09, and cited favorably in Johnson, 107 S.Ct. 
at 1450-51. In Weber, the Supreme Court upheld under Title VII a

LG52#1 33



voluntary affirmative action plan reserving for black employees 50% 
of the openings in an in-plant craft training program until the 
percentage of black craft-workers in the plant became commensurate 
with the percentage of blacks in the local labor force.— /

The promotional relief in this case merely requires Warner 
Robins to promote qualified members of the class to 240 positions 
identified as those actually lost by blacks. As the facts demon­
strate, the vast majority of promotions at Warner Robins are unaf­
fected by the consent decree and there is no ultimate percentage 
goal to be achieved. Even with regard to the affected positions, 
defendants are not required to make any unnecessary promotions. Nor 
are they obligated to give black employees absolute preference: the
jobs are filled on an every other basis and only qualified class 
members are eligible for special promotion. The consent decree does 
not require the type of "blind hiring by the numbers" condemned by 
the Court in Johnson: the plan does not require Warner Robins to
promote solely by reference to statistics, rather an employee must be 
qualified for the position. See Johnson, 107 S.Ct. at 1454-55.11/

21/ _ 4.. . Intervenors seek to distinguish Weber because the craft 
training program was a new, rather than preexisting, employment 
opportunity. (Intervenors* Brief at 30 n.12.) This feature of the 
program was not cited as a salient factor in either Weber or 
Johnson Section 703 of Title VII, the governing statute, does not 
separately treat new and preexisting employment opportunities 
differently: denial of either is prohibited to the same extent.

22/~  Intervenors misinterpret Johnson's use of the phrase 
blind hiring by the numbers." Blind hiring or promoting means 
selection by the numbers without regard to qualification or the 
relevant labor pool —  not the type of promoting mandated by the 
consent decree See Johnson, 107 S.Ct. at 1454. The Court did not 
equate hiring by the numbers with set-asides as stated by interven- 
ors. (ilntervenors' Brief at 31, 35.) Johnson, 107 S.Ct. at 1456, 
specifically sanctions the use of set-aside programs as long as

[cont'd]

LG52#1 34



Furthermore, because the promotional relief is temporary, 
it is limited in precisely the manner suggested by Johnson as 
appropriate for set aside programs.

Express assurance that a program is only temporary 
may be necessary if the program actually sets 
aside positions according to specific numbers 
See e. g . , Firefighters, supra, 478 U.S., at
106 S.Ct., at ___ (four year duration for consent
decree providing for promotion of particular num­
ber of minorities); Weber, 443 U.S., at 199, 99 
S.Ct., at 2725 (plan reauiring that blacks consti­
tute 50% of new trainees in effect until percent­
age of employer work force equal to percentage in local labor force).

Johnson, 107 S.Ct. at 1456. Once the 240 promotions set aside for 
class members are made, no other special promotions are required: 
[t]he plan is, therefore, of relatively short duration." 671 

F.Supp. at 766. During the 22 months that the decree was in effect, 
169 of the 240 special promotions were made and it is estimated that 
the process of filling the remaining 71 positions will probably take 
less than a year. id. Indeed, the special promotional provision is 
far more temporary than that upheld in either Weber or Firefighters.

b. The Impact of the Promotional Relief on White 
Employees Is Minimal.

Both Johnson and Weber focused on the limited impact of 
the plans at issue on nonminority employees. The district court in 
the instant case similarly focused on the diffuse impact of the 
special promotions on intervenors, setting forth extensive findings

— 7 [cont'd]
they are only temporary. Weber, with 
cited by Johnson as exemplary. id. its set-aside provision, was

LG52#1 35



regarding lack of harm to intervenors. These findings are not 
clearly erroneous.

In ruling that the affirmative action promotions in
— hnson were acceptable, the Supreme Court found:

[Petitioner had no absolute entitlement to the 
. . .position. Seven of the applicants were 
classified as qualified and eligible, and the 
Agency Director was authorized to promote any of 
the seven. Thus, denial of the promotion unset- 
tled no legitimate firmly rooted expectation on 
the part of the petitioner. Furthermore, while 
the petitioner in this case was denied a promo­
te0?' he retained his employment with the Agency, 
at the same salary and with the same seniority, 
and remained eligible for other promotions.

Johnson, 107 S.Ct. at 1455-56. The Court approved the plan in Weber
because " [t]he plan does not require the discharge of white workers
and their replacement with new black hirees" and "half of those
trained in the program will be white." Weber, 443 U.S. at 208

In the instant case, the district court likewise found 
that " [i]ntervenors have no vested right or entitlement to a 
promotion under the Warner Robins promotion process." 671 F.Supp. 
at 766 n .3; 597 F.Supp. at 1503.

Warner Robins does not operate under a seniority 
system. A complicated computer ranking process 
screens all employees for potential promotions.
No ]ob announcements are posted. Employees do not 
apply for promotions, and no employee has an 
enforceable basis for considering himself as "next

llnf ~for any future opening. Clearly, the nsent Decree does not impair any vested rights of movants. ^
Id. Moreover, the fact that hundreds and sometimes thousands of 
white employees are usually qualified for each special promotion is 
inconsistent with any intervener's claim of individual entitlement

LG52#1 36



to any of the 240 promotions to target p o s i t i o n s /
As to whether intervenors have lost any employment

benefit, the record shows not only that the special promotions are
made on an alternating basis with regular promotions for which all
employees are eligible, but also that a majority of all eligible
intervenors actually received promotions. Like the plan approved in
Weber, 443 U.S. at 208, the plan here does not require the layoff or
discharge of any white employees. 671 F.Supp. at 767.

[I]t merely postpones the promotions of a rela­
tively few qualified whites to a limited number of 
specified positions. These same white employees 
may continue to seek a promotion in one of the 
target positions on an every other basis, as well 
as a promotion in any one of the other non-target 
positions at Warner Robins. For example, during 
the 22 months that the special registers were in 
use (from December 20, 1984, until the issuance of 
the Eleventh Circuit's mandate on October 23,
1986), there were 3,909 competitive promotions at 
Warner Robins. See Supp. Wooley Aff., 1| 3. The 
169 special promotions made during that period, 
therefore, comprised a mere 4 .3 % of the total 
number of promotions made at Warner Robins.

_Id. Intervenors failed to produce the name of even one intervenor 
who was actually denied a promotion or delayed in obtaining a promo­
tion by operation of the affirmative action provision. In fact, 
there is a complete dearth of evidence of any harm to intervenors.

This fact sharply distinguishes this case from even 
J°.!?Pson in which the plaintiff established that because he was 
objectively more qualified than the woman who received the

23/ The promotion registers for each of the 38 particular 
kinds of special promotion jobs were made part of the record.
(R.275 at Tab E.) Each promotion register, which lists the employ­
ees eligible for regular promotion to particular jobs, typically 
includes hundreds of white employees. (Id.) Eight of the promotion 
registers had over a thousand white candidates each. lid.) Only 
three registers, covering six proposed promotions, had fewer than one hundred white candidates. (id.)

LG 5 2 #1 37



%

promotion, he would have been promoted in the absence of the 
affirmative action plan. Here, not one of the 137 intervenors has 
demonstrated that he was more qualified than any black employee 
chosen for a special promotion. it is obvious, therefore, that the 
finding that the impact of the special promotions on white employees 
is "relatively diffuse" _id.; see Paradise, 107 S.Ct. at 1073; 
ffygant, 106 S.Ct. at 1851, is correct.

c. The Promotional Relief Was Not Intended to Maintain 
a Balanced Work Force.

The district court found that the entire purpose of the 
promotion provision is to overcome the effects of discrimination. 
This finding is not clearly erroneous. Johnson distinguished 
between affirmative action relief which seeks "to attain a balanced 
work force" and impermissible efforts to maintain a permanently 
racially or sexually balanced work force. Johnson, 107 S.Ct. at 
1456. In the instant case, because the promotional relief is 
intended to overcome a condition of prima facie promotion 
discrimination and designed to compensate for discrimination, it is 
not even intended to attain a balanced workforce, much less maintain 
one. Like the defendants in Johnson, Warner Robins has "sought to
take a moderate, gradual approach to eliminating the imbalance in 
its work force." Id.

* * * *

Intervenors seek to impose several additional requirements 
regarding trammelling, none of which have any support. In Johnson, 
the Court set forth standards for evaluating an affirmative action 
plan and then proceeded to evaluate the plan before it. Although

LG52#1 38



the plan survived scrutiny under these standards, nowhere did the 
Court say that all plans subseauently before a court must be meas­
ured against this plan, but only that they must be evaluated under 
Johnson's standards. Intervenors, however, erroneously seek to 
transform the Court's statements about the plan before it into 
requirements that must be met by any affirmative action plan. (See 
Intervenors' Brief at 26-35.) Johnson, of course, expressly 
approved temporary set-asides such as that at issue in Weber and 
h e r e ^

24/—  Moreover, the instant promotional relief —  as found by 
the court below —  measures up even when evaluated pursuant to the 
additional factors -- a "moderate, gradual" approach and an 
appropriate (or "realistic" as intervenors put it) and "flexible" 
guide for "case-by-case" employment decisions —  highlighted by 
intervenors. (Intervenors' Brief at 32-34.) These findings are not clearly erroneous.

First, the promotional relief is a moderate and gradual 
approach to eliminating the imbalance in the workforce. That it may 
be implemented within two years does not negate this: only those
positions best identified as having been lost to blacks due to dis­
crimination are involved and even they are affected by the decree 
only on an every-other basis; defendants are not required to make 
any promotions at all, but only to abide by the terms of the consent 
decree with regard to the promotions they do make. See 671 F.Supp. at 764-67.

Second, the decree provides appropriate guidance to Warner 
Robins in determining who to promote: "the consent decree, to the
best extent possible, has attempted to identify and promote only 
those class members who were most likely passed over for promotion 
into one of these source positions during the relevant period." id. 
at 764. The relief is limited to blacks employed during the period 
of pervasive discrimination and who are qualified senior employees 
with high supervisory appraisals. Moreover, other qualification 
criteria such as test scores and appraisals were demonstrated by 
plaintiffs to be tainted by discrimination and "sufficient records 
were not maintained to identify class members that were excluded 
from consideration for promotion unfairly." Id. at 763; (see supra 
at 6-8 , 1 1 ).

"The promotional relief is also flexible, and waivable in 
nature given the fact that promotions will be made to every other 
next available vacancy in the specified positions until the 240

[cont'd]

LG52#1 39



C. THE PROMOTIONAL RELIEF DOES NOT VIOLATE THE FIFTH AMENDMENT OF 
THE CONSTITUTION.

The Court should reject intervenors' Fifth Amendment claim 
on two independent bases: one, that such a claim is preempted by
the exclusive remedy of Title VII for federal employees claiming 
employment discrimination and, two, that such a claim is without 
merit under United States v. Paradise.

Intervenors Are Preempted From Raising Any Fifth Amendment 
Claim Because Title VII Provides the Exclusive Remedy for 
Federal Employee Claims of Discrimination.
Intervenors, who are federal employees covered by Title

— '̂ [cont'd]
positions have been filled." 671 F.Supp. at 767. Contrary to 
intervenors' suggestions, there is no precedent, and intervenors 
cite none, for the proposition that the decree should ameliorate the 
effect of the affirmative relief by increasing the gross number of 
target position promotions, granting waivers, red-circling pay rates 
or seniority of persons who would have been promoted but for the set 
asides, or grandfathering rights. (Intervenors' Brief at 34.) in 
addition, it would be impossible given the nature of Warner Robins' 
promotion system to identify specific persons who would have been 
promoted but for the consent decree and intervenors have identified 
no such person. Finally, this decree does ameliorate the impact on 
whites by providing that promotional relief is to operate on an 
every-other basis. See, e.g., United States v. N. L. Industries 
Inc- r 479 F . 2d 354, 377 (8th Cir . 1973) . --------------- -

Intervenors are simply wrong that a "case-by-case approach" is 
required by Johnson. (Intervenors' Brief at 34.) The plan approved 
by the Supreme Court in Weber is certainly not the type of "Harvard 
Plan" that intervenors want to require as the basis of any affirma­
tive relief. Certainly, such a plan is not required where the court 
specifically found that it "does not believe that a mere racial 
preference similar to the 'Harvard Plan' would provide the full 
relief necessary to remove promptly the remaining vestiges of dis­
crimination at Warner Robins." 671 F.Supp. at 767 (emphasis added) 
Furthermore, the promotional mechanism in fact does mandate the 
analysis of every individual claiming eligibility for a special pro­
motion: the individual to be promoted must satisfy the qualifica­
tion, supervisory appraisal and seniority requirements of the
O 6 C IT 6 6 •

LG52#1 40



well asVII, err in asserting that the Fifth Amendment, as 
Title VII, applies to the affirmative action promotional relief.-^/ 
The Supreme Court has unequivocally held that Title VII provides the 
"exclusive, pre-emptive administrative and judicial scheme for the 
redress of federal employment discrimination." Brown v. General 
Services Admin. . 425 U.S. 820, 829 (1976).-^/

2‘ j_ptervenor_s Failed to Meet Their Burden of Demonstrating 
That the Promotional Relief Violates the Fifth Amendment. 
Even assuming that Title VII does not preempt their Fifth 

Amendment claim, the findings of fact underlying the district
25/

found thatT? L dlStriCt CO"rt did not decide this issue because it found that the requirements of the Fifth Amendment were met
26/ .

nature of ^  c°nsistently held that the exclusive
statutory r 1 6 5 bars constitutional as well as othercif L a w rence v. Staats, 665 F.2d 1256, 1259 (D.C Cir. 1981); Torre v. Barry. 661 F.2d 1371, 1374 (D C Cir 1981}-
4l » eu s '  90PP a 9 7 9 | 58R F | ;2dH9 7 5 ,  978 <D- C - C i r - 19781 ' c e “ ’ de n L d ,  
Ci?. i977) !pir curlalf-? °n V~ Wll6V< 569 F‘2d ‘" ' T 51
RroT.,n?2 terVen°r? have heretofore cited no authority that challenqes ■ • Preemption of independent constitutional claims. The cases
t^oni?U^lY Clted.by intervenors either did not reach the constitu­tional issue or involved situations in which Title VII was unaiail-
1 9 S 7 W ™ .  rhmRdR* —  »ainnion v - Barry. 813 F.2d 412, 420 (D.C. Cir. t-innii C did not reach issue of whether a separate constitu- 
q h . .remedy existed beyond the rubric of Title VII); Langster v
ffbned !n' d ^ / EP/ ^ -  1623' 1 6 3 1 ' 3 2  <N -D - 711- M83> (SsSfrfsili^ ta whether Brown "by its terms" excludes constitutional 

bUS ne^ rtheless held that the plaintiff had no ?igJt to 
remedies)1? ^ 1" 6 Flfth Amendnient because he had effective Title VII

Title VII, of course, does not preclude claims of discrimina­
t e s  2?8Sr247 ^ 9 - *  at 1627* ^  Davis v. Passman.1867 1870 m  n r  ' L  ? Z: U>S- Postal SerTT: 37 FEP C ^ ~ln those cases, plaintiffs had no Title 
. .cJaims' ^nd for.that reason they were permitted to pursue other statutory and constitutional remedies. In this case, however 

intervenors- claims are covered by Title VII. TitleVi?” therefore 
their exclusive remedy, and the analysis in Part B supra of the

Fi£th »«“  P - v i d F ^ '
LG52#1 41



court s rejection of intervenors' Fifth Amendment claim are not 
clearly erroneous and intervenors have completely failed to meet 
their burden of demonstrating that the affirmative action 
promotional relief is unconstitutional. While the Supreme Court has 
not reached a consensus on the appropriate level of scrutiny 
required when remedies make distinctions based on race or ethnicity, 
see Paradise, 107 S.Ct. at 1064; Wyqant, 106 S.Ct. at 1849, it is 
clear that "some elevated level of scrutiny is required," Paradise, 
107 S.Ct. at 1064, and that the standard, although slightly higher, 
is similar to that under Title VII, id. at 1075 n.l (Powell, J., 
concurring); see 671 F.Supp. at 766.

In Wygant, the plurality applied strict scrutiny in 
evaluating preferential protection against layoffs accorded some 
minority employees. Strict scrutiny analysis has two prongs:
"First, any racial classification must be justified by a compelling 
governmental interest. Second, the means chosen by the State to 
effectuate its purpose must be 'narrowly tailored to the achievement 
of that goal.'" Wygant, 106 S.Ct. at 1846 (citations omitted). 
Reserving the question of whether this is in fact the appropriate 
standard, the Court used this analysis in Paradise because the 
affirmative action relief survived even under strict scrutiny. 
Paradise, 107 S.Ct. at 1064. Similarly, this Court need not decide 
the appropriate level of scrutiny because the promotional relief set
out in the consent decree plainly survives even strict scrutiny 
analysis.
/
/
/

LG52#1



a. Intervenors Failed to Carry Their Burden of Proving 
That the Promotional Relief Does Not Serve a 
Compelling Governmental Interest.

The lower court found that the provision served the 
compelling governmental interest of eliminating past discrimination. 
This finding is not clearly erroneous. As the Supreme Court held in 
Paradise, " [t]he government unquestionably has a compelling interest 
m  remedying past and present discrimination by a state actor." Id. 
at 1065; see also Wygant, 106 S.Ct. at 1847; Franks, 424 U.S. at 763 
(prevention and remedying of racial discrimination and its effects 
is a national policy of "highest priority"). Either the district 
court s finding of a prima facie case of discrimination or its 
particularized findings of racial disparities in Warner Robins' 
workforce establish past discrimination which the government has a 
compelling interest in remedying. (See supra at 6-10.)— / The 
lower court, therefore, correctly found that intervenors failed to 
discharge their burden of proving that the promotional relief does 
not serve a compelling governmental interest.

b. Intervenors Failed to Carry Their Burden of Proving
That the Affirmative Action Promotional Relief Is Not 
Narrowly Tailored.

The district court's finding that the promotion provision 
is narrowly tailored," 671 F.Supp. 756, is not clearly erroneous. 
Under strict scrutiny analysis, the means chosen to remedy

27/ Contrary to intervenors' suggestion, the parties have 
never argued that the "cost, trouble, or potential exposure to loss 
of a lawsuit is a compelling governmental interest." /Intervenors' Brief at 38.)

LG52#1 43



past discrimination must be narrowly tailored to serve the govern­
ment's purpose. Despite some disagreement over the proper formula­
tion of this standard, the Supreme Court has "forged a degree of 
unanimity" on its content. Wygant, 106 S.Ct. at 1853 (O'Connor, J., 
concurring in part and concurring in the judgment). in Paradise,
107 S.Ct. at 1067, the Court articulated four specific factors to 
consider when deciding whether the means chosen are narrowly 
tailored: "the necessity for the relief and the efficacy of
alternative remedies; the flexibility and duration of the relief, 
including the availability of waiver provisions; the relationship of 
the numerical goals to the relevant labor market; and the impact of 
the relief on the rights of third parties." The district court 
addressed each of these factors to the extent that they were 
relevant and found that the promotional provision survived scrutiny 
under every one. Its findings are not clearly erroneous. When 
considered in light of these factors, therefore, the promotional 
relief clearly withstands constitutional scrutiny. Intervenors' 
arguments that the relief is not narrowly tailored are wholly 
unsubstantiated and were properly rejected below.

i♦ The promotional relief is necessary to remedy 
past discrimination.

"To evaluate the District Court’s determination that it 
was necessary to order the [affirmative action] promotionfs] 
we must examine the purposes the order was intended to serve." id.
In Paradise, the Supreme Court approved the promotional relief at 
issue because it served three purposes comparable to those in the 
instant case: eliminating "long-term, open and pervasive"

LG52#1 44



1

discrimination, insuring expeditious implementation of a nondiscrim- 
inatory promotion procedure, and eliminating the effects of delay in 
implementing such a procedure. See id.— ^

In the instant case, the district court's finding that 
intervenors failed to prove that the special promotional relief was 
unnecessary is not clearly erroneous. The district court found that 
the 240 positions set aside for class members represented, to the 
best extent possible, the most likely jobs lost to blacks as a 
result of the discrimination at Warner Robins. 671 F.Supp. at 762. 
The alternatives posited by intervenors, i.e., increased monetary 
relief or extended stage II proceedings, either do not put class 
members in their "rightful place" or do not do so as expeditous- 
ly.—  As in Paradise, 107 S.Ct. at 1067-68, they do nothing to

28/ _ .Intervenors again make the mistake of evaluating the pro­
motional relief at issue in this case not under the factors enumer- 
ated in Paradise, but rather against the actual plan upheld in Para- 

(§ee mtervenors' Brief at 39-44 .) They thus seem to deiHTd~ 
Jlhi C fPl°ye' b? f? recalcitrant as the Alabama Department off lafe*y ' 1 ?cl^dfng having a judicial judgment of discrimina- against it, before it can implement a race-conscious 
remedial plan —  exactly the result the Court has tried to avoid by

adoption of voluntary affirmative action plans when there is clear evidence of past discrimination. In addition, the 
mere existence of affirmative action and upward mobility programs at 
Warner Robins is irrelevant: good faith dSes not excuse a showing
of manifest imbalance m  traditionally segregated job categories 9 
under Johnson. Williams v. DeKalb County. 577 F.?d at r"* onK
sequently adopted-[ittirmative action) pliqram . 7 . Is wholly 
irrelevant to the issue of discrimination vel non at an earlier date
. . . it does nothing to rebut the prima facie case of discrimina­tion as of [the earlier date].").

29/—  Although intervenors claim that double fillinq red-circl- 
i n 2 °f Pay rates or seniority of persons who would have been pro- 
moted but for the set-asides are also bona fide remedial a!?e?na- 
tives, neither Title VII nor the Constitution requires the use of
sarv°and ^  disc“ssed ab°ve, they are both unneces­sary and impossible to implement in the instant case because white
employees have no legitimate expectation of being promoted to any of

[cont* d]
LG52#1 45



«

compensate plaintiffs for the effects, set forth in detail in the 
district court's findings of fact and the record, of years of 
discrimination and delays in implementing acceptable promotion 
procedures. The district court specifically held that it had not 
been presented with "any other less intrusive approach that might 
provide full relief to class members within a reasonable period of 
time. 671 F.Supp. at 767. As in Par ad ise, the affirmative 
promotional relief is necessary to remedy past and present 
discrimination ^

29/ [cont'd]
the special promotion positions and it cannot be established that 
any given intervenor would have received the promotion but for the 
set asides. (See supra at 6 , 11, 14.)

—  In this case,
"th[e] court having had the parties before it over a 
period of time, was in the best position to judge whether 
an alternative remedy . . . would have been effective in 
ending (the] discriminatory practices." The District 
Judge determined that the record demonstrated that 
"without promotional quotas the continuing effects of [the 
employer's] discrimination cannot be eliminated." His 
proximate position and broad equitable powers mandate 
substantial respect for this judgment.

Paradise, 107 S.Ct. at 1074 (citations omitted). As evidenced by 
this quote, which comes from Justice Brennan's opinion which was 
joined in by Justices Marshall, Blackmun and Stevens, intervenors 
are simply wrong that "(o]nly Justice Stevens . . . voted to permit 
broad equitable discretion by district judges in tailoring race­
conscious remedies." (Intervenors' Brief at 44.) Intervenors 
ignore the Surpeme Court's express acknowledgment of the respect 
owed a district court's judgment of what relief is necessary to 
redress violations of equal protection. Paradise, 107 S.Ct. at 1073 
("Nor have we in all situations 'required remedial plans to be 
limited to the least restrictive means of implementation. We have 
recognized that the choice of remedies to redress racial discrimi­
nation is "a balancing process left, within appropriate constitu­
tional or statutory limits, to the sound discretion of the trial court."'").

LG52#1 46



* d

ii. The promotional relief is flexible and of short 
duration.

In Paradise, 107 S.Ct. at 1071, the Court concluded that 
the one-for-one promotion requirement was sufficiently flexible 
because it could be waived if no qualified black candidates were 
available and of sufficiently short duration because it would 
probably be a "one-time occurrence" since it was contingent on the 
employer's own conduct. The Court emphasized that the affirmative 
promotional relief was legitimate because it was being used to 
eliminate discrimination but was not an inflexible, and thus 
impermissible, "disguised means to achieve racial balance." Id.

The district court's finding that "[t]he promotional 
relief is also flexible, and waivable in nature given the fact that 
the promotions will be made to every other next available vacancy in 
the specified positions until the 240 specified positions have been 
filled," 671 F.Supp. at 767, is not clearly erroneous. The one-for- 
one promotion provision in this case, like that in Paradise, is 
limited to qualified black candidates and is inoperative if no such 
candidates are available. The provision "evaporates" when 240 
promotions occur. Moreover, as discussed above, it is overtly 
designed to redress discrimination and not to maintain any 
predetermined racial "balance." (See supra at 38.) The promotional 
provision here is much more modest than that in Paradise because no 
workforce percentage goals or racial balance objectives are set.
The number of promotions accorded class members is based on actual 
evidence that at least 234 promotions were lost to class members 
through discriminatory practices, and only class members employed 
during the period covered by plaintiffs' showing of pervasive and

LG52#1 47



continuing statistical disparities are eligible for this relief.

i:Li • The relationship of numerical goals to the labor 
market is not a relevant factor in this case.

As Paradise, 107 S.Ct. at 1071, the promotional relief 
in this case is to be achieved at a 50% rate. There, the Court 
reviewed an order to promote black candidates to 50% of the 
vacancies until the proportion of blacks in the ranks in question 
reflected the proportion of blacks in the labor market, and rejected 
the employer's argument that the 50% rate was arbitrary because it 
bore no relationship to the 25% representation of minorities in the 
relevant labor pool. No such issue of proportionality is involved 
in this case. Here, the 240 special promotions do not represent or 
achieve any aggregate proportionality. Once the 240 promotions are 
made, the one-to-one requirement becomes a dead letter. Thus this 
factor has no relevance to the instant case.

(iv) The promotional relief has a diffuse impact on 
white employees.

It was not clearly erroneous for the court below to have 
found that the special promotions have a diffuse impact on white 
employees. In analyzing the impact of the affirmative promotional 
relief on affected employees, the Court in Paradise, 107 S.Ct. at 
1073, focused on whether the relief imposed an '"absolute bar' to 
white advancement" and whether the burdens of the relief were 
"diffuse." The Court found that the relief did not impose an 
absolute bar to white advancement because "[i]n the one instance in 
which the quota was employed, 50% of those elevated were white."
Id; gee id. at 1076 (Powell, J., concurring).

t  *

LG52#1 48



As explained above, in the instant case, as in Paradise, 
the promotional relief does not absolutely bar advancement. (See 
su^ra at 35-38.) Rather, until the very limited black promotion 
goal is reached, white employees are free to compete for 50% of all 
promotions in the 38 affected positions, and the special promotions 
are only 6-1/2% of all expected promotions during the period of 
implementation. See 597 F.Supp. at 1503. The effects of the relief 
on what is at most a generalized expectation of promotion are 
sufficiently diffuse as to be de minimus. Intervenors' claims that 
' [e]very Appellant who has been promoted since the Decree went into 
effect was delayed in promotion by the Decree" and that "[ojther 
[sic] who would have been promoted are still waiting" (Intervenors' 
Brief at 44) are unsupported and were properly rejected by the lower 
court. Because of Warner Robins' promotion procedure, it is 
actually impossible to determine who would have been promoted to any 
given position in the absence of the decree. No individual employee 
ever has a legitimate firmly rooted expectation of or right to any 
specific promotion.

Furthermore, intervenors erroneously assert that the 
consent decree "concentrated the burden of these 240 promotions on a 
very narrow segment of the workforce," (Intervenors' Brief at 43), 
ignoring the record which shows that hundreds and sometimes 
thousands of white employees qualified for each special promotion.
(R.275 at Tab E; see supra at 37 n.23.) Even assuming that any of 
the intervenors has been denied a promotion, that individual, as in 
Paradise, retained his employment at the same salary and with the 
same seniority and remained eligible for other promotions. "[T]he 
one-for-one requirement . . . 'impose[s] a diffuse burden, . . .

LG 5 2 # 1 49



foreclosing only one of several opportunities.' 'Denial of a future 
employment opportunity is not as intrusive as loss of an existing 
job,' and plainly postponement imposes a lesser burden still." 
Paradise, 107 S.Ct. at 1073 (quoting Wygant. 106 S.Ct. at 1851) 
(citation omitted). The district court, in short, correctly found
that intervenors failed to prove that the promotional provision had 
an improper impact on third parties.

IX.
CONCLUSION

The district court's final approval of the special 
promotional provision should be affirmed.

DATED: January 23, 1988

Respectfully submitted,
BILL LANN LEE 
ELIZABETH M. BROWN
Center for Law in the Public Interest
JULIUS LeVONNE CHAMBERS 
RONALD L. ELLIS
THOMAS A. JACKSON
CHARLES A. MATHIS, JR.
BRIAN COMBS 
Mathis & Coates
JOSEPH F. HENDERSON

By -±\g_
W

zabeth M. Brown
Attorneys for Plaintiffs-Appellees

LG 5 2 #1 50



CERTIFICATE OF SERVICE

This will certify that I have this date served the 
following counsel in this action with true and correct copies of 
the foregoing BRIEF FOR PLAINTIFFS-APPELLEES by placing said 
copies in the U.S. Mails at Los Angeles, California, postage 
thereon fully prepaid, addressed as follows:

Edward T.M. Garland 
Robin L. Kurtzman 
The Garland Firm, P.C. 
92 Luckie Street, N.W. 
Atlanta, Georgia 30303
Hunter R. Hughes 
Rogers & Hardin 

32nd Floor 
101 Marietta Tower 
Atlanta, GA 30335
Peter R. Maier 
Appellate Staff,

Civil Division, Rm. 
U.S. Dept, of Justice 
10th & Constitution 
Washington, D.C. 20530

(by Federal Express 
for overnight delivery)

(by Federal Express 
for overnight delivery)

(by Federal Express 
for overnight delivery)3129

John Lynch
Assistant United States Attorney Post Office Box U 
Macon, Georgia 31202
Anne L. Weismann 
Attorney, Civil Division 
Federal Programs Branch, Rm. 3513 
10th & Pennsylvania Ave., N.W. 
Washington, D.C. 20530
Executed this 23rd day of January, 1988, at Los 

Angeles, California.