not but i have two questions for both of you does it make sense for mr sullivan i mean i understand their appeals and cross appeals but it doesn't make sense for m be the in the pellets cheer when he when you're really mr sullivan on the go when you're really the prevailing party on the it whatever perhaps but my colleagues have ideas whatever you are thinking everybody track to it can we can we get back with and i'm not asking to you get back and i in a sense that i'm trying to penalize anybody an argument but can everybody address all their issues with getting too formal about going back and likely that a fair amount of the attention would be directed toward the title seven case and not the third i mean there are a lot of other issues in the ad so it's it's whatever you  think i want to take away your chance to talk twice on the other hand it might be advantageous to you to respond to what mr brit as to say on that issue as opposed to otherwise so whatever if ya need to take a minute to confer with each other and tell us what you want to do a million a ball just trying to get us in a position so that we can best hear the case and i represent the plaintiffs and with permission i would like to reserve five minutes for this is a employment case involving eighty five memphis police officers there are  multiple challenges there are fifty eight african americans in there are twenty seven whites there are the plaintiffs have raised four issues on appeal  in this rather complicated case that's been going on since two thousand so we're in our fourteenth year now and we've only recently received a final judgment which brings us to to this court the  four issues that the plaintiffs of peel on are the negligence finding in the johnson one case and secondly the denial of lieutenant backpay and retroactive seniority  the title seven cases and then of course there are two issues related to the award of attorney's fees and the district court declined to award the fees for the writ of mandamus to this court and also the plaintiffs had asked for a fee of handsome so turning now first to the the negligence issue the under tennessee's governmental tort liability act governments  governmental in a in a t's are immune from liability for discretionary acts however the tennessee supreme court says that the that discretion does not that immunity does not apply to operational decisions in as it relates to this case the operational decision is guided by preexisting city laws that require a certain type of promotion test is not that the civil service laws require the promotion test the methods civil service laws require a particular quality in type of promotions that they must be competitive job related and they shelby of a practical nature now the district court found that the city enjoyed some degree of discretion in how to administer the test which we take no speed with there is just pressure in ministering certain types of test however we do think the district court error when it found that that discretion extended to eliminating the practical test as the city did in two thousand simply put the elimination of the test constituted an act of negligence the city had no choice it had to use a practical test and in fact the district court at that time judgment call found in favor of the plaintiffs and granted partial summary judgment finding that the elimination of the practical test made the entire two thousand promotion process invalid so we have that ruling that shows that this was not a discretionary discretionary function but it was simply an operational decision so you're correct it was in a different context let it be fair and based on what the that the elimination of the practical t the promotion process not valid nor did it comply with the requirement of the city law that requires competitive job related to that shelby of a practical nature now when i say shelby what the court has met in its prior decisions interest in determining whether an act is discretionary or whether it is operational and the court noted that every single operational act carries with it a certain degree of discretion but just because there is some degree of discretion doesn't render the governmental entity immune under discretionary function because otherwise the that sort of analysis would swallow up the rule and there would be no operational there would be no operational decisions that would subject the governmental  to liability interest paid in one of the arguments that the city has made is that the economic loss doctrine would preclude the plaintiffs from recovery economic that doctrine applies in products liability cases where the product itself fails but doesn't cause any sort of personal injury or economic laws so that doctor just doesn't apply  what the players are asking for the johnson claims or asking that the summary judgment in favor of the city on the negligence claim be reversed in that the summary judgment motion that the  plaintiffs had filed be granted next the plaintiffs that african american plaintiffs were denied lieutenant backpay twenty eight african american players were promoted to lieutenant pursuant to an injunction that promotion has now been made permanent by a motion that was granted by the district court now the district court said that they feel that the district court felt like the in the lieutenant's should not receive back pay because they had not served two years as a sergeant well the whole reason they could not serve two years as a sergeant was because of the city's act of discrimination in the memorandum opinion issued by the court in two thousand and six the district courts that she must assume that the two year requirement was more than just a mere formality well in the history of this case in this setting it was just a mere formality because when the promotions were made in two thousand and three this city for the first time in its long history promoted two hundred sixty four patrol officers to sergeant at one time even though there was no  those officers in the evidence establish the city did this because they were afraid that the court would issue an injunction and disrupt the promotions to the main one hundred officers that were promoted to sergeant actually remained doing sergeants jobs they did that they had sergeant stripes but they had no sergeant responsibilities and when they took the lieutenants test in two thousand and five those individuals were in the same situation that the plaintiffs were in in that the players had not served two years as a sergeant only because of the city's prior discriminatory history let me and they were promoted at that and that's one contest that was evidence in the case the other thing is one of the plaintiffs verdes mcneil actually served two years as a sergeant and was denied lieutenant backpay even though she qualified for promotion to sergeant the players after trial and after they were allowed to take the test the lieutenant's test put on proof that two other individuals that took the the make up test with them were allowed to take the test were promoted to luton it and both of those individuals were given lieutenant back paid retroactive seniority and in this setting of the tooth yes those were the the individuals the court said were extenuating circumstances whereas we the players were only exceptional circumstances and  we humbly submit that there's really no meaningful distinction between the two in terms of determining backpay the overarching purpose of title servant is to make a victim discrimination hole  in this setting these points were not made whole see that my time is up spend most of my time on the city's appeal i think the issues on the plaintiff's appeal on the negligence and the relief granted by the court and the attorney fees are covered in our brief unless the court has in particular concerns with those i but this is a situation your honor is that the city found itself in a very difficult position a dilemma in two thousand and one and that's where i'd like to start in two thousand and one found itself in a situation where i had a pending lawsuit over the two thousand test sardines test came to light that that test had been compromised some individuals had had been a pain part of the test before it was administered and therefore it was a compromise the city at that time had three choices should it stand by the test should try to do some patchwork to substitute a video assessment that was the one that was compromised the portion of the test or should it he went through the process we had we had dr generate their own multiple occasions dr generate gave his opinion that the test needed to be redone the city accepted that as a judgment call up to go ahead void the two thousand test because if you can void it then we would not have any due process or property interests claims that would result of the two thousand tests and the judgment call agreed with that at that  the test i recommend here's what we the city we think we should do that was presented to judge mccollough judge mccauley in fact have both experts at planet had an expert as well as dr john rut attend a hearing in june of two thousand and one in which this report was reviewed and judge mccullough had and bided in the issues the only issue the plaintiffs expert brought up was the question of does the well the scoring or the test scoring indicate whether or people were picked to retest correct your honor and we had some stable court litigation on gone going whether or not they had a property actress and could be then demoted they in fact tried to intervene in this case and judge mccall held at that to th demoted in fact but the test format was discussed here is the test what we're going to do and the the test issue about the video assessment was in the plan is that in the plan the two thousand and one plan plus the plan discussed alternatives and dr general ret decided these were the proper ways to test although that was before judgement call and on july second judgment call issues an order following the status conference which approved the city's motion to go forward with testing as proposed with the modifications of the experts no other alternatives before the city the city did not refuse to do any other alternative terms of testing that was a plan the court approved that we went through the test and unfortunately in december of two thousand and two when all the results two thousand and two the city after getting the results before promotions as judged judged on now had the case judgement call was it was not on the case at that time we as a as a court want to devise a quarter of the findings and had a december two thousand and two status conference in which dr general rep was there again and testified again of the results and said we have adverse impact he's looked at the test there was because i don't think the city could have done anything else since the court had approved this process the only if the core at the city then attempted to change the process after the fact to try to minimise adverse impact i think complete the client the argument you make concerning judge donal's fan requiring proof that the alternatives were equally valid in less discriminatory it is that yes yes you are there is there's two points to our argument and one is that made that there were other alternatives that that would have met the employer's legitimate interests without any analysis whatsoever and one of the key issues that the standard is there must the court's decision is wrong on both counts well let's looking at the let's assume you're you you're right about the the the inadequacy of the district court's analysis there was a a link the record in this case presumably the evidence has been presented that could be presented when you had a trial so if this court were to stand a legal error in the articulation of the reasoning would the correct result be remain and to the district court for findings on this point or is the record it is your position that the record is that as a matter of law the court could determine whether or not the   evidence before the court went to the test itself and not to alternatives but the record is devoid of any proof of any alternative this equally valid and less discriminatory  the only one that that the plane could arguably say would be the ninety six test and it is this what to what what is to be done with the use of the results that mere suggestions and these are these proposals that are been put out there are not sufficient to carry the plaintiff's bar in the plaintiff has to show and they did not show anything on that except referring to the nice six test and how that would be so incorporated and we agree with your the point that the analysis is faulty now if this is inadequate then we would have to go back through the record to see emmy which i mean we we do you know obviously but we'd be going back to the record to see whether it would it would be appropriate for us to get down in the record start making fact findings that now know you are and that is correct but the record is either or both in the consultations in front of judgment before ok the new test discussed the benefits of the ninety six tests that showed little at vers impact  the in the city said that because of the security issues that we had because this is a test on those try to say it had to be done very quickly with high security security issue of help you short cut your time is up and it was the security issue that caused that part of the test not to be included no the security issue your honor was to make sure that the test could be done very quickly and secure and the only way to do that would plaintiffs knew this to absolutely i mean i want to make i want to make sure i understand real quickly the ninety six test was considered as an alternative in connection with the approval of the later test or was really only a matter of proof at trial the tested not come up and until trial but but the high fidelity is what they call in the letting go that in general methodology did that did come up and that was considered and everybody was on board that would be a low fidelity testing the video assessment would be the the form is there you i'd like to direct the court to the third degree for the plaintiffs and in particular on page one because it has the quote from the g e in the june twenty seventh two thousand and one status conference in front of judge mccall it at that time the city council to clear this is not a collaborative effort to come up with a new test that everyone can agree to the limited purpose is to share information about how the city was going to proceed the city's council told the court i don't think the city has ever requested that it be approved by the court this is the city's process in the city understands the risk of going forward in the december two thousand and two hearing in front of judge donald the city said that it intended to proceed with promotions despite the adverse impact and at that point the city presented its expert who said he had thought long and hard about this test and couldn't come up with any reason to explain the outcome he was then asked if he'd consider a practical test even aware of the city had given such a test in one nine hundred ninety six just death mr britt about this about whether this was discussed in the development of the new test i thought the answer was ye was it discussed in the development of the new test with with the with with this with the parties in front of judge mccullough well in the first off there was a discussion about what the city intended to do but the city made it very clear they were not open to suggestions but we did we also heard from mr britt the reason for that that it was a three week process of acting  and then it was so easily compromised that that was rejected by the city i'm not sure what what the your plaintiffs objection did they object that the plaintiffs  the the city to use a practical tips but the city made it clear they didn't want him put in at that point there was only one group of plaintiffs in that was the johnson to your expert was considered i mean in terms of him put in front of the by the court are explorer was able to confer with the city's expert who had already set out on a plan he was not allowed to say i want to detain you you have as many think the with respect to the whether or not there's evidence in the record the that the judge's findings of fact stablish that the nine hundred ninety six test was not available alternative in fact the the city's expert told her that there were no alternatives in that december two thousand and two hearing in fact there were three alternatives there was the one nine hundred ninety six test there were test of integrity in conscientious and there was also a test that he had developed himself in used in the city of chicago he didn't mention any one of those three alternatives in judge donald's findings this that the fact that these alternatives exist belied his contention that they're working on now the nine hundred ninety six test was certainly a very viable alternative that was discussed the evidence consisted of the your argument is that it was very viable and in view of the compromise compromising that took place that caused the invalidation of the two thousand test the maintain its still maintain that it was very dr jones testified that he was aware of the develop the errors in the administration of the test in one thousand nine hundred six but he specifically said those errors were controlled it did not affect the outcome of the test now in contrast the two thousand test was compromised the video test was compromised so seriously that the city agreed in response to our motion for partial summary judgment that it was  dr jones the city's expert in developer of the one thousand nine hundred six tests that he was aware of it in they would take precautions in the next test to prevent that from happening the next test with the two thousand tests in the two thousand test was a video test and it was compromised now the nine hundred ninety six test evidence was in the record the validation report from the one thousand nine hundred sixty is in the record that validation reports  that it was valid in met all legal requirements including the city's law it had less adverse impact our expert showed that in comparison of the one nine hundred ninety six tests to the two thousand and two test that the adverse impact was substantially less so we have carried our burden of proof to show that there was no available alternative that there was a alternative that actually had been demonstrated to prove to produce less adverse impact in further we proved that the city defended the case in an arbitration proceeding brought by the union saying that the  was essential to reduce adverse impact in to establish validity the job related illness of the test because the sergeant's job in memphis was was so broad that it could not be measure six of the dr general's report that was approved by judge mccollough eighty one thirty five he goes through and says several alternatives such as oral interviews individual assessment techniques personality measures samples involving role play were not feasible because of constraints that was not an ala ball alternative even if that were to consider which i do not believe is the correct standard the time of the promotions therefore it's not an alternative it's not available alternative and that's the case here there was no analysis that even the ninety six test was available alternative under the constraints we had in this case that not over and over again about the test security so it judge donal's the standard that she has in her memorandum opinion is allowed to stand what that would say is is we welcome second and second guessing monday morning quarterbacking wait until after the test is done come in and throw a broad suggestion oh yes you could have used this that's not sufficient that doesn't meet the burden that the pla the statutory scheme provides that they have a burden to to show an alternative and they did not do thank you very much we appreciate the arguments but i do consider the a case or cases