Cummings v. City of Charleston Brief and Appendix for Appellants
Public Court Documents
January 1, 1960
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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 May 09, 2025.
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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.