Howard v. McLucas Brief for Plaintiffs-Appellees
Public Court Documents
January 23, 1988

Cite this item
-
Brief Collection, LDF Court Filings. Howard v. McLucas Brief for Plaintiffs-Appellees, 1988. c6b0918b-b89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/a826be17-dc42-4037-9360-ee95ea936f7a/howard-v-mclucas-brief-for-plaintiffs-appellees. Accessed April 27, 2025.
Copied!
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 LG52#1 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.