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7. Dayton employs approximately 440 police officers of all ranks in its police department, of whom approximately 9.1% are African American. As of April1, 2008, of the 367 employees in the police officer rank, only 33 (or 9%) were African American.
8. Dayton employs approximately 332 firefighters of all ranks in its fire department, of whom approximately 2.4% are African American. The percentage of African Americans in Dayton's fire department has been decreasing for years: from 7.0% in 1984, to 4.3% in 2001, to 2.4% in 2008. As of April1, 2008, of the 234 employees in the firefighter rank, only six (or 2.6%) were African American.
9. Dayton is responsible for establishing the terms, conditions and other practices that bear upon the selection and employment ofthe City's police officers and firefighters.
10. Dayton has maintained and continues to maintain selection procedures by which applicants for appointment to the rank of police officer and firefighter are screened and selected.
11. As part of its selection process for police officer, Dayton has administered and continues to administer a written examination to applicants. Applicants who pass the written examination are placed on an eligibility list in descending rank order of their written examination scores. To fill police officer positions, the City processes applicants from the police officer eligibility list in descending rank order.
12. Dayton set the passing score for its 2006 written police officer examination- the City's most recent written police officer examination- at 70%. The pass rate of whites on that examination was 68.1 %, while the pass rate of African Americans was 28.7%. While African Americans constituted 16.2% of all applicants who took that examination, African Americans
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constituted only 7.6% of the applicants who passed that examination- a result that reduced the proportion of African Americans applicants under consideration by approximately 50%.
13. Those African American applicants who passed the 2006 written police officer examination had, on average, lower scores than white applicants who passed. Of the top 100 ranking applicants on that examination, only one (1) was African American. Because applicants are hired in descending rank order of their written examination scores, African Americans who passed that examination waited longer than their white counterparts to be appointed.
14. Dayton hired two classes of police officers from the eligibility list that resulted from the 2006 written police officer examination: in May 2007, the City hired a class of 33 police officers, none of whom was African American; and in January 2008, the City hired a class of27 police officers, of whom 23 were white and four were African American. In total, Dayton appointed 60 police officers from the eligibility list that resulted from the 2006 written police officer examination, of whom 55 (or 91.7%) were white and four (or 6.7%) were African American.
15. Dayton's use of its 2006 police officer written examination has resulted in disparate impact upon African Americans.
16. Dayton's use of its 2006 police officer written examination is not job related for the position in question and consistent with business necessity, and does not otherwise meet the requirements of Section 703(k) of Title VII, 42 U.S.C. § 2000e-2(k).
17. In 2004, Dayton began filling firefighter positions by hiring applicants into a new classification of "professional firefighter" rather than into the previous classification of
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"firefighter recruit," and Dayton began requiring that all applicants have Emergency Medical Technician-Basic ("EMT-Basic") and Firefighter I and II certifications at the time of application and as a pre-condition to taking the written firefighter examination. Before 2004, applicants for firefighter were not required to have these certifications at either the time of application or the time of hire, but rather obtained them after hire through the City's firefighter training academy.
18. As a result of Dayton's use, beginning in 2004, of the heightened qualifications for firefighter described in Paragraph 17, supra, the number of African American applicants dropped substantially. African Americans constituted at least 20% of all firefighter applicants in 2000, and at least 25% of all firefighter applicants in 2002. Conversely, African Americans · constituted only approximately 6% of firefighter applicants for the City's 2005 written firefighter examination, the City's most recent written firefighter examination.
19. Dayton's use, beginning in 2004, of these heightened qualifications for firefighter has had a .disparate impact upon African Americans.
20. Dayton's use, since 2004, of these heightened qualifications for firefighter is not job related for the position in question and consistent with business necessity, and does not otherwise meet the requirements of Section 703(k) ofTitle VII, 42 U.S.C. § 2000e-2(k).
21. Dayton has pursued and continues to pursue policies and practices that discriminate against African Americans and that deprive or tend to deprive African Americans of employment opportunities because of their race and/or color, in violation of Section 707 of Title VII, 42 U.S.C. § 2000e-6. Dayton has implemented these policies and practices, among other ways, through:
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a. . its use of a written examination in the screening and selection of applicants for appointment to police officer that results in disparate impact upon African Americans, is not job related for the position in question and consistent with business necessity, and does not otherwise meet the requirements of Section 703(k) of Title VII, 42 U.S.C. § 2000e-2(k);
b. its use of heightened qualifications in the screening and selection of applicants for appointment to firefighter that results in disparate impact upon African Americans, is not job related for the position in question and consistent with business necessity, and does not otherwise meet the requirements of Section 703(k) ofTitle VII, 42 U.S.C. § 2000e-2(k); and
c. its failure or refusal to take appropriate action to correct the present effects of its discriminatory policies and practices.
22. The policies and practices ofDayton described in Paragraphs 10 through 21, supra, constitute a pattern or practice ofresistanc.e to the full enjoyment by African Americans of their right to equal employment opportunities without discrimination based on race, in violation of Section 707 of Title VII, 42 U.S.C. § 2000e-6. This pattern or practice is of such a nature and is intended to deny the full exercise of the rights secured by Title VII. Unless restrained by order of this Court, the City will continue to pursue policies and practices that are the same as or similar to those alleged in this Complaint.
23. All conditions precedent to the filing of suit have been performed or have occurred.
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WHEREFORE, the United States prays for an order enjoining Dayton, its officers, agents, employees, successors and all persons in active concert or participation with them, from engaging in discriminatory employment practices against African Americans on the basis of race in violation of Title VII, and specifically from:
a. the use of a written examination in the screening and selection of applicants for appointment to police officer that results in disparate impact upon African Americans, is not job related for the position in question and consistent with business necessity, and does not otherwise meet the requirements of Section 703(k) ofTitle VII, 42 U.S.C. § 2000e-2(k);
b. the use of heightened qualifications in the screening and selection of applicants for appointment to firefighter that results in disparate impact upon African Americans, is not job related for the position in question and consistent with business necessity, and does not otherwise meet the requirements of Section 703(k) of Title VII, 42 U.S.C. § 2000e-2(k);
c. failing or refusing to provide make-whole relief to individual African Americans who have suffered loss and/or will suffer loss as a result of the discriminatory policies and practices alleged in this Complaint;
d. failing or refusing to take appropriate action to correct the present effects of its discriminatory policies and practices; and
e. failing or refusing to take other appropriate non-discriminatory measures to overcome the effects of their discriminatory policies and practices.
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~--
Case: 3:08-cv-00348-TMR Doc #: 1 Filed: 09/26/08 Page: 7 of 8 PAGEID #: 7
Plaintiff United States prays for such additional relief as justice may require, together with its costs and disbursements in this action.
Michael B. Mukasey Attorney General
Grace Chung Becker Acting Assistant Attorney General Civil Rights Division
By: (k/n.~,.jd&J/1
(io]jl.n M. Gadz:lchowski (WI Bar No. 1014294)
l~ting Chief
:E"mployment Litigation Section
;dbf~
Diana Embrey (DC Bar NO. 457470) Acting Deputy Chief Barbara Thawley (DC Bar No. 358944) Senior Trial Attorney U.S. Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, N.W. Patrick Henry Building, Room 4928 Washington, D.C.. 20530 Telephone: (202) 514-3852 Facsimile: (202) 514-1105 Barbara.E.Thawley@usdoj .gov
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r··--·· ·--

- - -·----~~--------~-~---~--~-

--·--·------·------------~---·-·--.

.~~~

Case: 3:08-cv-00348-TMR Doc #: 1 Filed: 09/26/08 Page: 8 of 8 PAGEID #: 8

GREGORY G. LOCKHART United States Attorney
s/Dale Ann Goldberg DALE ANN GOLDBERG (0005054) Chief, Civil Division 602 Federal Building 200 West Second Street Dayton, Ohio 45402 (937) 225-2910 Fax: (937) 225-2564 Dale.Goldberg @usdoj .gov
Attorneys for plaintiff United States

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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

United States of America, Plaintiff,
v.

City of Dayton,

Defendant.

Case No. 3:08-cv-348 Judge Thomas M. Rose

ENTRY AND ORDER GRANTING IN PART MOTION OF FRATERNAL ORDER OF POLICE, CAPTAIN JOHN C. POST LODGE 44 AND INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 136 TO INTERVENE AS DEFENDANTS. DOC. 7
Pending before the Court is a motion to intervene by the Fraternal Order of Police, Captain John C. Post Lodge 44 and International Association of Firefighters Local 136. Doc. 7. The instant case was brought by the United States of America against the City of Dayton, Ohio, alleging that Dayton’s hiring practices for police and firefighters disparately impacted AfricanAmericans in violation of § 707 of Title VII.
The original parties have proposed to the Court a Consent decree that would resolve their dispute, and which envisions a process that would culminate in a fairness hearing by the Court that would determine whether the consent decree was “lawful, fair, adequate, and reasonable.” Doc. 21. Part of this process envisions a relief of remedial retroactive seniority for affected members of the class.

The United States only partially opposes the Unions’ m otion, allowing that the Unions should be allowed to raise their concerns about the retroactive seniority relie f provided by the consent decree during the fairness hearing that has been proposed. Doc. 19. The City of Dayton fully opposes it. Doc. 20. A. Background
On September 26, 2008, the United States filed itcsomplaint in this suit alleging that the City was engaged in a pattern or practice of discrimination against African Americans on the basis of race with respect to employment opportunities in the City’s police and fire departments in violation of Title VII of the Civil Rights Actof 1964, as amended, 42 U.S.C. § 2000eet seq. More specifically, the United States alleges in its complaint that the City’s use of an internally created written police officer examination and its use of heighteend minimum qualifications for firefighters e(.g., requiring that applicants have EMT-Basic and Firefighter Iand II certifications at the time they apply) had a disparate impact on African Americans, and thatneither practice has been demonstrated by the City to be job-related and consistent with business necsesity, as required by Title VII. The United States’ complaint does not allege that the Unions are liable or responsible in any way for the City’s selection processes that are challenged in the complaint.
After the filing of the United St ates’ complaint, the parties st ayed proceedings to discuss settlement. On February 26, 2009, the United Statesand the City submitted to the Court a proposed Consent Decree (“Decree”), along with a Joint Motion for Provisional Approval of Consent Decree and Scheduling of Fairness Hearing (“Joint Motion”). Docket Nos.16 and 17. Under the terms of the Decree, the City would be enjoined from using any policy or practice in its police officer and firefighter selection procedures that has the purpose or effect of unlawfully discriminating on the
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basis of race against any African Am erican, in vi olation of Title VII. Specifically, the City is enjoined from using the written police officer examination administered in 2006 and the heightened minimum firefighter qualifications adopted in 2004 aspart of its screening and selection processes for entry-level police officers andfirefighters. The Decree further requires that the City develop new selection procedures for hiring entry-level police oficers and firefighters that comply with Title VII.
In addition, the Decree provides remedial relief to African Americans who were harmed by the challenged selection procedures, including backpay, consideration for an offer of priority hire, retroactive seniority, and the opportunity to receiveretroactive pension credit. The Decree requires the City to hire up to five eligible African Americans to the position of police officer and up to nine eligible African Americans to the position offirefighter. See Decree (Docket No. 16, Ex. 3) at ¶ 64.
Under the processes outlined in the Decree, the United States and the City will identif y claimants who are eligible to be considered to receive an offer of priority hire from the City. The City will have an opportunity to screen the claimants eligible for consideration for priority hire to assure that they meet the lawful qualifications for the positions required of all other police officers and firefighters. Id. at ¶ 61. The Decree does not require thatthe City hire any claimant who is not currently qualified for the position of police officer or firefighter. Each claimant hired will, upon completion of his or her probationary period, be credited with a retroactive seniority date that is to be used by the City as the claimant’s date of hire for all purposes except the necessary time-in-grade to be eligible for consideration for promotion. Id. at ¶ 66. In addition, theDecree provides that four incumbent police officers whose hiring was delayed due to the challenged selection process would receive retroactive seniority to the date they should have been hired. Id. at ¶¶ 36-37. Those four
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police officers will be credited with aretroactive seniority date that is to be used as their date ohfire for all purposes except the necessary time-in-grade to be eligible for consideration for promotion.
Under the Decree, it is possible that som e African Am ericans who receive individual remedial relief may eventually be credited with retroactive seniority dates that are earlier than the seniority dates of some current incumbent employees who are members of the Unions.
Two fairness hearings are provided for by the Decree. At the initial fairness hearing, the Court will determine whether the terms of the Decree are lawful, fair, reasonable and adequate, and consistent with the public interest. See id. at ¶¶ 22, 27, 48, 52; 42 U.S.C. § 2000e-2(n)(1). Prior to the initial fairness hearing, individuals whose interests may be affected by the Decree – including incumbent employees of the police and fire departments and the Unions – will be given notice of the Decree and an opportunity to file objections with the Court. At the initial fairness hearing, even without permission to intervene, the Unions woudl have an opportunity, along with other objectors, to raise their concerns about the Decree. Decree (Docket No. 16, Ex. 3) at ¶¶ 23-24.
The Decree also provides that, after the completion of a claims process whereby the parties identify individuals who are eligibleto receive monetary and/or priority hiring relief, the Court will hold a second fairness hearing on individual relief. The purpose of that fairness hearing is for the Court to hear and resolve objections concerning teh individual relief that the United States proposes be awarded to each claimant.
By letter, dated December 31, 2008, to the UnitedStates and the City, the Unions requested that they be perm itted t o participate in th e ongoing settlem ent discussions between the parties. Union Mem., Ex. 8 (12/31/08 Letter fromS. Jansen to B. Thawley andJ. Danish) at 2. In that letter, the U nions identif ied a num ber of issues that they sought to address during those settlem ent
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discussions of the instant case, including: (1) their position that “any consent decree” resolving this case “should address the concerns of all minorities such as females, Hispanics, and all other racial and et hnic groups, not just African Am ericans, in order to elim inate future controversy,” (2) a moratorium on the application of the City’s residency rule, (3) an increase in the num ber of supervisory positions in the police a nd fire departm ents, (4) an increase in “the authorized manpower” for the police and fire departm ents, and (5) Union participation in any discussions regarding the development of new selection devicesfor police officers and firefighters. Union Mot., Ex. 8 at 2.
A few business days later, on January 6, 2009, the Unions filed the instant motion seeking to intervene as of right pursuant to Fed. R. Civ. P. 24(a), or alternatively seeking perm issive intervention pursuant to Fed. R. Civ. P. 24(b). As with their December 31, 2008 letter, the Unions asserted a number of “interests” that they claim are implicated by this suit and, therefore, justify their intervention. Specifically, the Unions identified three categories of interests they contend are implicated by this suit: (1) an interest in assuring “that the seniority of their current members and the seniority-based promotional schemes embodied in their curent collective bargaining agreements are followed,” Union Mem. at 9; (2) a safety interest in assuring that police officers and firefighters hired by the City are com petent, id. at 10; and (3) an intere st i n a ssuring that police and fire department prom otions are “based on records of ‘m erit, efficiency, char acter, conduct, and seniority’” in accordance with the City Charter and the rules of the City’s Civil Service Board and in “maintaining the integrity of the Civil Service Board system.” Id. at 9, 11. B. Analysis
Intervention as of right is governed by Fed. R. Civ. P. 24(a), which states in relevant part:
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Upon timely application anyone shallbe permitted to intervene in an action . . . when the applicant clai ms an interest relating to the property or transaction which is the subject of the action and the applicant is so situat ed that the disposition of the action m ay as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’sinterest is adequately represented by existing parties. Fed. R. Civ. P. 24(a)(2). The Sixth Circuit has established a four-part test for determining whether intervention as of right should be granted: (1) teh motion for intervention is timely; (2) the proposed intervenors have a substantial legal interest in the subject m atter of the pending litigation; (3) the proposed intervenors’ ability to protect their interesmt ay be impaired in the absence of intervention; and (4) the interest is not adequately represented by an existing party to the litigation. Coalition to Defend Affirmative Action v. Granholm, 501 F.3d 775, 779 (6th Cir. 2007), cert. denied sum nom, Michigan Civil Rights Initiative Comm. v. Coalition to Defend Affirmative Action , 129 S.Ct. 35 (2008); Jansen v. City of Cincinnati , 904 F.2d 336, 340 (6th Cir. 1990). The Court will turn its attention to the consideration of these factors. 1. Timeliness By letter, dated December 31, 2008, to the UnitedStates and the City, the Unions requested that they be permitted to participate in the ongoing settlement discussions between the partie.sUnion Mem., Ex. 8 (12/31/08 Letter from S. Jansen to B. Thawley and J. Danish) at 2. In that letter, the Unions identified a number of issues that they sought to addressduring those settlement discussions, several of which are beyond the Unions’ protectable itnerests and the scope of this suit. The instant motion to intervene was filed with the Court January 6, 2009. Doc. 7.
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The Court finds that the motion was timely filed. The complaint in the instant case was ifled September 26, 2008. Doc. 1. As the m atter was stayed to allow for settlem ent negotiations, the motion to intervene was filed prior to any answer being filed. 2. Legal Interest of the Intervenors
While m ovants asse rt that they have a substantial legal interest in the litigation, and Defendant the City of Dayton asserts that Movantshave no such interest, Plaintiff the United States of America supports allowing limited intervention with respect to the narrow issue of the effect that remedial retroactive seniority relief proposed under the submitted Consent Decree might have on the collective bargaining agreements between the Unions and the City. The Court notes that the only provisions of the Decree that im plicate the Unions’ legally prote ctable interests are those that provide retroactive seniority relief to African Americans who are determined to have been harmed by the employment practices challenged by the United States. Id. at ¶ 36, 59- 67.
The scope of intervention should be limited to the scope of an intervenor’s interests. Kirkland v. New York State Dept. Of Corr. Servs., 711 F.2d 1117, 1126 (2d Cir. 1983) (citing Boston Tow Boat Co. v. United States, 321 U.S. 632 (1944));EEOC v. American Telephone and Telegraph Co., et al., 506 F.2d 735, 741 (3d Cir. 1974) (intervention limited to intervenors’ direct interests arising from collective bargaining agreem ents); Grubbs v. Norris, 870 F.2d 343, 346-47 (6th Cir. 1989) (permitting intervention for the purpose of addressing a court-ordered remedy because the intervenor had a discrete interest arising from the remedy).
The Unions’ interest in this case is limited to the scope of the remedy devised. SeeKirkland, 711 F.2d at 1126. See also Howard v. McLucas , 782 F.2d 956, 960-61 ( 11th Ci r. 1986) (recommending limitation that “The only issue intervenors shall be permitted to raise on remand
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is their contention that white and non-black employees will not be considered for promotion to the 240 target positions on an equal basis with nondiscriminatee black employees solely on account of race.” and “the district judge should limit discovery narrowly to the single issue which intervenors are permitted to address and set and enforce strict time limits for its accomplishment.”)
The strongest reason the Unions’ m otion to inte rvene put s forward is its interest in the proposed consent decree in this case. See Doc. 7 at 9-10. Whi le t he Unions argue that the qualifications of new hires affects the interest of its members in their safety, at the liability stage, this interest is adequately represented by the City. SeeUnited States v. City of New York, 2007 U.S. Dist. LEXIS 65668, *11 (E.D.N.Y Sept. 5, 2007). 3. Ability to Protect Their Interest in the Absence of Intervention
At first blush this factor weighs slightly against allowi ng intervention. As the proposed consent decree envisions fairness hearings at wh ich the Unions would be allowed to voi ce i ts opinion concerning the reasonableness and fairnessof any remedy, the Courtwould hear the Unions position even without intervention. The Court recognizes, however, that without perm ission to intervene, t he Unions would not have the right to appeal any decision rendered, inviting the possibility of parallel litigation. Thus, the Court finds that this factor weighs in favor of allowing intervention for the limited purpose of contesting the remedy devised. 4. Whether the Interest is Adequately Represented by Existing Parties
The Court recognizes that the City and the Unions have been engaged in an on-going battle over the propriety of granting preferential treatment to members of minority groups for employment and promotion opportunities. See cases cited in Doc. 7 at 13-14. This factor thus weighs in favor of allowing intervention.
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C. Conclusion Weighing the factors, the Court concludes that intervention limited to the ability to object
to any proposed rem edy at the fairness hearings as a m atter of right is warranted. The Clerk is ordered to add the Unions to the case as an in tervening defendant, with the right only to subm it objections to any settlement and the right to appeal any ruling on the af irness of a settlement. While the Unions will be privy to the docum ents and inf ormation exchanged between the parities in developing a remedy, the Unions will not have the rgiht to demand discovery themselves. Thus, the Court GRANTS IN PARTMotion of Fraternal Order of Police,Captain John C. Post Lodge 44 and International Association of Firefighters Local 136 to Intervene as Defendants. Doc. 7.
DONE and ORDERED in Dayton, Ohio this Tuesday, April 14, 2009.
s/Thomas M. Rose ________________________________
THOMAS M. ROSE UNITED STATES DISTRICT JUDGE
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 Case: 3:08-cv-00348-TMR Doc #: 32 Filed: 11/30/09 Page: 1 of 21 PAGEID #: 786

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

United States of America, Plaintiff,
v.

City of Dayton,

Defendant.

Case No. 3:08-cv-348 Judge Thomas M. Rose

ENTRY AND ORDER OVE RRULING OBJECTIONS OF FRATERNAL

ORDER OF POLICE, CAPTAIN JO

HN C. POST LODGE 44,

INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 136, AND

INDIVIDUAL INTERVENORS, AND APPROVING CONSENT DECREE.

On Apr il 14, 2009, the Court provisionally approved a consent decree agreed to by the United States of America and the City of Dayton. That consent decree established a procedure for judicial review that allowed interested parties to object to the provisions of the consent decree and called for a fairness hearing to be held on Octobre14, 2009. Prior to that hearing, the Court granted a motion to correct the consent decree, doc. 21, 21-2, 22, and perm itted the Fraternal Order of Police, Captain John C. Post Lodge 44 and International Association of Firefighters Local 136 to intervene as defendants for the purpose of objecting to the consent decree and the purpose of appealing any ruling on the fairness of a settlement. Doc. 23.
Consequently, FOP Lodge 44 and IAFF Local 136filed a joint objection to the settlement. Similarly, four individuals filed objections. Howe ver, because the settlement is fair, reasonable,

Case: 3:08-cv-00348-TMR Doc #: 32 Filed: 11/30/09 Page: 2 of 21 PAGEID #: 787
adequate, and consistent with the public interest asexpressed in federal statutes, the objections will be overruled and the settlement approved. I. Background
The instant case was brought by the United States of America against the City of Dayton, Ohio, alleging that Dayton’s hiring pr actices fo r police and firefighters disparately im pacted African-Americans in violation of § 707 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6.
Between June 2005 and August 2008, the United Staets conducted an investigation into the City’s employment practices with respect to hiring entry-level police officers and firefighters. During that inves tigation, the United States requested inform ation and docum ents regarding the City’s selection process f or entry-level police officers and fi refighters, i ncluding data for all applicants who took the 2006 written police officer exam ination and sim ilar i nformation for individuals who applied for the position of firefighter throughout this period.
In August 2008, the United States filed a com plaint a lleging that the City’s use of an internally created written police officer exam ination in 2006, along with its use of heightened minimum qualifications for firefighters, includi ng requiring applicants to have EMT-Basic and Firefighter I and II certifications at the time they apply, beginning in 2004, had a disparate impact on African Americans. The complaint further alleged that neither practice had been demonstrated by the City to be job related and consistent w ith business necessity as required by Title VII. 42 U.S.C. § 2000e-2(k)(1)(A)(i).
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The United States and the City agreed upon a decree, which they stipulate will resolve the

allegations set forth in the United States’ Com plaint. The Decree provides relief in five general

ways:

1. Injunctive Relief

- The City will not use the 2006 written examination as part of the City’s entry-level police officer screening and selection process nor will it use the heightened minimum qualifications (EMT-Basic and FirefighterI and II certifications) adopted in 2004 as part of the City’s entry-level firefighter screening and selection process.

- The City will develop new selection procedures for hiring entry-level policeofficers and firefighters that comply with Title VII.

- The Decree establ ishes processes the City m ust follow in advertising f or police officer and firefighter positions and requires the City to develop a recruitment plan for the hiring of entry-level firefighters.

2. Settlement Fund

- The Decree requires the City to pay $450,000 into a settlement fund, which will be used to make monetary awards of backpay to African-American claimants who are determined to be eligible for relief under the Decree.

3. Individual Relief to Police Officers Whose Hiring Was Delayed

- Four African American police officers who took the 2006 police officerexamination and received a score of at least 70, but whose hiring was delayed due to the rank order use of the test results, will each receive m onetary relief from the settlement fund; two of those claimants will also receive retroactive seniority for all purposes except for tim e-in-grade required for prom otion, and the opportunity to recei ve retroactive pension credit.

4. Individual Relief for Claimants Not Hired as Police Officers

-

African Americans who took the 2006 police officer examination, received a score

of less than 70 and were not hired as police officers, may receive a priority offer of

employment from the City, a monetary award of back pay fromthe settlement fund,

retroactive seniority for all purposes except for time-in-grade required for promotion,

and retroactive pension credit.

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- The Decree requires the City to hire up to five eligible claimants as police officers from a priority hire list to be created pursuant to the process set forth in the Decree.
5. Individual Relief to Claimants Not Hired as Firefighters or Deterred from Applying for Hire as Firefighters - African Americans who applied to take a firefighter examination administered in 2004 or later, but who were rejected b ecause the y di d not m eet the heightened minimum qualifications, or who were deterred from applying to take the firefighter examination because of the heightened m inimum qualifications m ay receive a priority offer of employment from the City, a monetary award of back pay from the settlement fund, retroactive seniority for all pur poses except for tim e-in-grade required for promotion, and/or retroactive pension credit. - The Decree requires the City to hire up to nine eligible claiamnts as firefighters from a priority hire list to be created pursuant to the process set forth in the Decree. The United States and the City of Dayton filed the Decree on February 26, 2009a, nd moved
the Court to provisionally enter the Decree, subject to final approval following a fairness hearing. See Decree, ¶¶ 22, 27. On April 14, 2009, the Court granted the parties’ motion and provisionally entered the Decree.
Earlier, on January 6, 2009, the unions representing employees of the City’s police and fire departments, the Fraternal Order of Police, Ca ptain John C. Post Lodge No. 44 (“FOP”) and the International Association of Firefighters, Local 136 (“IAFF”) (collectively “the Unions”), moved to intervene as def endants in this action. On April 14, 2009, the Court permitted the Unions to intervene, limiting the scope of that intervention to the submission of objections to any settlement and the right to appeal any ruling on the fairness of a settlement.
To ensure fairness, the Decree required that individuals whose interests may be affected by the Decree (including all individuals potentially eligible for relief, all current City police officers and firefighters, and the unions representing policeofficers and firefighters) be given notice of the Decree and an opportunity to file objections with the Court, and that the Court hold a fairness
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Case: 3:08-cv-00348-TMR Doc #: 32 Filed: 11/30/09 Page: 5 of 21 PAGEID #: 790
hearing to consider and resolve those objections. Decree, ¶¶ 22-26. This notice having been given, the fairness hearing was held on October 14, 2009.
There were four objections to the Decree from individuals and one from the Unions. The individual objections were from individuals who were either incumbents or applicants to the City’s police and fire departm ents The indi vidual objections generally failed to appreciate the legal significance of the Government’s prima facie case and of Title VII’s job-related study requirement. The Unions objected to the provisions of the Decree that grant retroactive seniority to individuals who have been identified, or will be identified, as having been adversely affected by the practices challenged by the United States in its complaint. Of the objectors, only the Unions appeared at the fairness hearing. II. STANDARD FOR APPROVAL OF THE CONSENT DECREE
A consent decree is essentially a settlement agreement subject to judicial approval as a ifnal judicial order and subject to continued judicial policing. Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir. 1983); United States v. City of Miami , 664 F.2d 435, 439-40 (5th Cir. 1981) (en banc). Because judicial approval of a settlem ent agreement places the power and prestige of the Court behind the com promise struck by the parties, such judicial approval m ay not be obtained for an agreement that is illegal, a product of collusion, or contrary to the public interests. Williams, 720 F.2d at 920; United States v. ITT Continental Baking Co. , 420 U.S. 223, 236 n.10 (1975). Once approved, the respective provisions of the consent decree operate as an injunction. This injunctive quality compels the Court to: (1) retain jurisdiction over the decree during the term of its existence, (2) protect the integrity of the decree with its contempt powers, and (3) modify the decree should changed circumstances subvert its intended purpose. Williams, 720 F.2d at 920.
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The procedure for approving consent decrees involves three steps. “The proposed decree

should be preliminarily approved, interested persons given notice, and a reasonableness

determination made after a hearing is held.” Williams at 921. The reasonableness

hearing is a forum for all interested parties to comment on the proposed decree. Williams at 921.

The ultimate issue the Court m ust decide at the conclusion of the

hearing is whether the decree is fair, adequate and reasonable. The

Court has no occasion to determine the merits of the controversy or

the factual underpinning of the legal authorities advanced by the

parties. (citation omitted) If the Court determines that the decree is

problematic, it should inform the parties of its precise concerns and

give them an opportunity to reach a reasonable accommodation. See

Stotts, 679 F.2d at 554, Miami, 614 F.2d at 1332. The Court should

articulate its ‘principled reasons’ for rej ecting a decree if the

accommodation is n ot s atisfactory. S ee Stotts, 679 F.2d at 554;

Miami, 614 F.2d at 1333. In m

aking the reasona bleness

determination, the Court is unde r the mandatory duties to consider

the fairness of the decree to those affected, the adequacy of the

settlement to the class, and the public interest.

Williams, 720 F.2d at 921.

“In enacting Title VII, Congress expressed a strong preference for encouraging voluntary

settlement of employment discrimination claims.” Carson v. American Brands, Inc., 450 U.S. 79,

88 n.14 (1981); see also Williams v. Vukovich, 720 F.2d 909, 923 (6th Cir. 1983). Accordingly, it

has long been recognized that cooperation and voluntary com pliance are the preferred m eans of

achieving Title VII’s goals of ensuring equal employment opportunities and eliminating unlawful

employment practices. See Local 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501,

515-16 (1986) (citing Alexander v. Gardner-Denver Co. , 415 U.S. 36, 44 (1974)) . M oreover, a

negotiated settlement in a lawsuit in which the pl aintiff is a n agency of the federal governm ent

“carries with it [a] presumption of validity that is overcome only if the decree contains provisions

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which are unreasonable, illegal, unconstitutional, or against public policy.”United States v. City of Alexandria, 614 F.2d 1358, 1362 (5th Cir. 1980).
The standard for approval of a consent decree resolving a pattern or practice case brought under Title VII is whether the proposed decree is lawful, fair, reasonable, adequate and consistent with the public interest. See Bailey v. Great Lakes Canning, Inc., 908 F.2d 38, 42 (6th Cir. 1990); Williams, 720 F.2d at 921. In applying that standard, a court should “weigh[] the pl aintiff’s likelihood of success on the m erits against the am ount and form of the relief of fered in the settlement,” Williams, 720 F.2d at 921 (quoting Carson, 450 U.S. at 88 n.14), while r emaining mindful that a consent decree “normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up smo ething they might have won had they proceeded with the litigation.” Carson, 450 U.S. at 87; see also Williams, 720 F.2d at 922 (recognizing t hat consent decree “is a com promise which has been reached after the risks, expense, and delay of further litigation have been assessed”). Thus, a court should not “decide the merits of the case or resolve unsettled legal questions.” Carson, 450 U.S. at 88 n.14. Instead, the Sixth Circuit has directed that, in assessing the strength of the plaintiff’s case, the court should give deference to “the judgment of experienced counsel who [have] completely evaluated” the strength ofthe case, and that a court’s deference should “correspond to the amount of discovery completed and the character of the evidence uncovered.” Williams, 720 F.2d at 922-23.
Finally, in considering whether a consent decree icsonsistent with the public interest, a court should consider whether a “decree which seeks to enforce a statute [is] consistent with the public objectives sought to be obtained by Congress.” Williams, 720 F.2d at 923. In accordance with the Supreme Court precedent discussed above, the Si xth Circuit has recognized that “voluntary
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compliance [with Title VII] will frequently cont ribute to the achievem ent of public objectives” because voluntary compliance is encouraged by Congress.Id. The Sixth Circuit also has stated that “minimiz[ing] the delay and expense” of protracted litigation by entering into a consent decree is consistent with the public interest. Id. III. DISCUSSION A. Authority of Court to Enforce Decree
The Court will consider its authority to enforce the Consent Decree before considering the Unions’ objections to that authority. 1. Substantial Likelihood to Prevail on the Merits
The United States’ investigation ofthe City’shiring processes for entry-level police officers and firefighters r evealed fact s suf ficient to establish a prima facie case of disparate im pact discrimination in violation of Title VII. There was a disparate impact in the pass rate of whites on the written examination of 68.1% (295/433), com pared to the pass rate of African Am ericans of 28.7% (25/87). Similarly, the overall percentage of African-American applicants to the firefighter position declined dramatically – from 30% of applicants in 2002 to 5.8% of applicants in 2005 – after the City’s im plementation of the height ened minim um qualifications challenged in the Complaint. See Joint Mem. at 6 (¶19).
Moreover, although the Ci ty denies that its selection processes violated Title VII, it stipulated for purposes of entryof the Decree that it cannot satisfy its burden of rebutting the United States’ prima facie case by proving that the challenged selection processes are “job related for the position in question and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(I). Such a showing typically requires an employer to demonstrate “by professionally acceptable methods”
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that its selection devices are “predictive of or significantly correlated with important elements of work behavior which com prise or are relevant to the job or jobs for which candidates are being evaluated,” Albemarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975) (inetrnal quotations omitted), and that those devices are “dem onstrably a reasonable m easure of successful job perform ance.” Griggs v. Duke Power Co., 401 U.S. 424, 436 (1971). In this caset,he City has stipulated that it has no job analysis or validation study demonstrating that the challenged practices accurately measure knowledge or skills that are essential f or the positi ons or that they are otherw ise related in any meaningful way to successful job perform ance. See Joint Mem. at 5, 27 (¶¶ 16, 27). Thus , the likelihood that the United States will succeed on the merits of its claims is substantial. 2. Fairness, Reasonableness, Adequacy and Consistency with the Public Interest
District courts have “not merely the power but the duty to render a decree that will so far as possible eliminate the discriminatory effects of th e past as well as bar like discrim ination in the future.” Albemarle Paper Co. , 422 U.S. at 418 (citation om itted). The decree in the instant case ensures that the City will not use the challenged employment practices in the future and, to the extent possible and discounted for early settlement, makes whole African Americans who have been harmed by the employment practices the United States has alleged to be unlawful. Thus, the relief provided in the Consent Decree is afir, reasonable andadequate in light ofthe purposes ofTitle VII. a. Prospective Injunctive Relief
The Decree prohibits the City fromusing the selection procedures challenged in the United States’ Complaint and requires the City to develop new selection procedures for hiring entry-level police officers and firefighters. Additionally, to remedy the deterrent effect of the City’s use of the challenged practices, the Decree r equires the City to take certain steps in advertising f or police
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officer and firefighter applicants and to develop a recruitment plan for the entry-level fi refighter position. See Decree, ¶¶ 9-21; Joint Mem. at 8-9. When an employer has engaged in a pattern or practice violation of Title VII, an award of pros pective injunctive relief is justified without any further showing. Int’l Brotherhood of Teamsters v. United States, 431 U.S.324, 361 (1977). In this case, particularly in light of the City’s stipulations, the injunctive relief provided by the Decree is adequate, fair, reasonable, and consistent with the public interest. Bailey, 908 F.2d at 42. b. Individual Remedial Relief
In enacting Title VII, “Congress took care to arm the courts with full equitable powers” so that the courts m ay fashion relief for identifiable individuals harm ed by unlawful em ployment practices. Albemarle, 422 U.S. at 418. In exercising theseqeuitable powers, a court may “order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without backpay . . . or any other equitable relief as the court deems appropriate.” Franks v. Bowman Transp. Co., 424 U.S. 747, 763 (1976) (quoting Section 706(g) of Title VII, 42 U.S.C.§ 2000e-5(g)). In Title VII pattern or practice cases such as this, “[t]he injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed.” Albemarle, 422 U.S. at 418-19 (citation omitted).
The Court finds the individual relief of backpay, retroactive seniority, retroactive pension credit, and consideration for priority hire to beappropriate. Individual remedial relief is limited to those individuals who were affected by the practices alleged by the United States to be unlawful. The Court also finds that the remedial relief will have a minimal impact on incumbent police officers and firefighters. i. Priority Hires
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The Decree provides for priority hiring of upto five qualified African-American applicants as entry-level police officers and up to nine Africa-nAmerican applicants as entry-level firefighters. Decree, ¶ 64. The num ber of pr iority hires is ba sed on the “hiring shortfall” resulting from the City’s use of the challenged practices. The hiringshortfall is a statistical estimate of how many of the African-American applicants who were eliminated from the selection process solely because of the City’s use of the challenged practices.
The hiring shortfall was calculated by comparing the percentage of African Americans in the overall applicant pool that sat for the written exam to t he percentage of test passers who were African Am erican. For firefighters, the shortf all was calculated based on an estim ate of t he percentage of African Americans that would have been expected to apply absent the City’s use of heightened minimum qualifications compared to the actual number of African Am ericans hired. Based on applicant and hiring data maintained by theCity, the parties estimated that the City would have hired five more African-American police officers and nine more African-American firefighters if the City had not use d the challenged practices. See Joint Mem. at 4-5 (¶¶ 11-13), 7 (¶¶ 23-24). Under the Decree, only the individuals who are determined to be actual victims of the challenged practices will be eligible for priority hiring relief.
In a ddition, the City will have an opportunity to screen the claim ants eligible for consideration for priority hire to assure that they m eet the lawful qualifications for the positions required of all other police officersand firefighters. Only individualswho demonstrate that they are currently qualified for a police officeror firefighter position will be eliigble to receive priority hiring relief, a nd those individuals will be required to pass the sam e background, m edical and other screenings required of other candidates before be ing hired as a priority hire. Decree, ¶61. The
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Decree does not require t hat t he City hire as a priority hire any claim ant who is not currently qualified for the position of police officer or firegfihter, and the priority hriing relief does not require any employees to be removed from their jobs and does not bar the employment of other persons. ii. Monetary Awards
The dollar amount of the settlement fund ($450,000) was also calculated based on the hiring shortfall, discussed above, and discounted f or early settlement. Specifically, the settlem ent fund amount was based on estimates of the income and benefits lost by the delayed hire claimants (i.e., the income and benefits they would have received if hired by the City in May 2007, rather than in January 2008), and the value of income and benefits lost by the claimants eligible for priority hire (i.e., the income and benefits the five police officer applicants and nine firefighter applicants would have earned had they been hired between the time the challenged practices were used by the City and the date of the Decree), less an e stimate of the amount these claimants would have earned in mitigation. Of the $450,000, a totalof $51,965 will be distributed tothe four police officers whose hiring was delayed. Decree at ¶38. The remainder of the settlement fund represents approximately $28,431 per shortfall position. The total amount of monetary relief available for African-American applicants will be divided among all eligible claimants.
Each claimant’s share of the total amount will be determined after the Decree is entered and the potential claimants have been given an opportunity to make a claim for relief. Decree, ¶¶ 41.
Because there may be more eligible claimants than the estimated hiring shortfall of 14 (five police officers and nine firefighters) and because itis not possible now – several years after the fact – to determine which claimants would have been hired by the City absent the challenged selection practices, each eligible claimant likely will receivesubstantially less than the full value of the police
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officer or firefighter salary and benefits the claimant might have obtained but for the challenged practices. Accordingly, dividing the amount of monetary relief available under the Decree among all eligible claimants is fair and is the “best that can be done under the circum stances.” Chicago Miniature, 640 F. Supp. at 1298-1300 (pro ratsahares appropriate); see alsoEEOC v. Andrew Corp,. 1990 WL 92820 at *2 (N.D. Ill. 1990) (because of diffci ulty or impossibility of determining which applicants would have been hired, claimants ay be required to accept a pro-rata share). In sum, the Court finds that the monetary relief proposed is fair, reasonable and adequate, and no meritorious objections have been made to that relief. iii. Retroactive Seniority
The Decree also provides for retroactive senioirty and an opportunity for retroactive pension credit to make whole both individuals hired as priority hires under the Decree and the two African American police officers whose hiring was delayed as a result of the City’s rank order use of the written police officer examination. The award of retroactive seniority puts qualified individuals who would have been hired (or hired earlier) but for the challenged practices in the position they would have occupied but for those practices. Such retroactive seniority relief achieves the “make whole” purpose of Title VII. Franks, 424 U.S. at 764-65.
The Supreme Court has recognized that seniority affects pay, job assignments, the order of layoff and recall, length of vacation a nd pension benefits. Franks, 424 U.S. at 767. It also m ay affect promotions and eligibility for other benefits. Thus, the Court stated, “rightful place” seniority, which includes both benefits and competitive seniority,“cuts to the very heart ofTitle VII’s primary objective of eradicating present and future discrimination in a way that backpay, for example, can never do.” Id. at 767-68 n.28. “[S]eniority, after all, is a right which a worker exercises in each job
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movement in the future, rather than a simple one-time payment for the past.” Id. (citation omitted). Therefore:
[w]ithout an award of seniority dating from the tim e when he was discriminatorily refused an em ployment, a n i ndividual who . . . obtains employment . . . pursuant to the District Court’s order will never obtain his rightful place in the hierarchy of seniority according to which these various employment benefits are distributed. He will perpetually remain subordinate to persons who, but for the illegal discrimination, would have been in respect to e ntitlement to these benefits his inferiors. Id. at 767-68. Accordingly, the Cour t “take[s] as [ its] starting point the presum ption in favor of rightful-place seniority relief.” Id. at 779 n.41. Moreover, the lim itations on the retroactive seniority relief in the Decree assure that implementation of the relief will not “unnecessarilytrammel” the legitimate interests of incumbent employees. See Local 28 of the Sheet Metal Workers Intn’l Assoc. v. EEOC , 478 U.S. 421, 479 (1986) (citing Teamsters, 431 U.S. at 352-53). First, eligibility for r etroactive seniority relief is limited to those individuals who have been or w ill be identified as victims of the discrim inatory employment practices challenged by the United States. See Decree, ¶ 32; Joint Mem. at 23. Second, the num ber of priority hires is lim ited to the est imated hi ring shortfall, and represents a small portion of the City’s large police officer and firefighter workforce. The Decree provides for a maximum of five priority hires intopolice officer positions – less than 2% of the omre than 400 members of the City’s current sworn police force; and a maximum of nine priority hires into firefighter positions – approxim ately 3% of the m ore than 300 members of the City’s sworn firefighting force. Third, the retroactive seniority m ay not be used to satisf y applicable tim e-in-grade requirements for eligibility for promotion. Decree, ¶66. Thus, the award of rteroactive seniority will
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not result in the prom otion or assignment of claimants hired under the Decree into positions for which they do not have the necessary on-the-job experience, and will not render those claim ants eligible for promotion before incumbent police officers or firefighters whohave met those time-ingrade requirements.
Fourth, individuals hired as priority hires willnot be credited with retroactive seniority until they complete their probationary period. Under theDecree, when a priority hire completes his/her probationary period, the City will award the claimant retroactive seniority to a “constructive hire date.” Decree, ¶¶ 7, 67. Specific constructive hiredates for individuals employed under the priority hire provisions of the Decree, but will be determined during the United States’ evaluation ofclaims submitted following the Court’s approval of the Decree. Additionally, the delayed hire claimants identified in Paragraph 36 ofthe Decree will be givne retroactive seniority to a constructive hire date of May 14, 2007. This is the date on which the City began the first academy class that was held based on the results of the 2006 written examination, and it is the date the United States alleges that the delayed hire claimants should have been hi red if the City’s use 2006 written exam ination in descending rank order did not have a disparate im pact on African American applicants. See Joint Mem. at 3.
Fifth, because the constructive hire dates assigned to priorithyires under the Decree are dates on or after the City’s use of the challenged practices, the award of retroactive seniority to priority hires will have no impact on the majority of incumbent police officers and firefighters. Specifically, the award ofretroactive seniority to the police priroity hires will not afect any incumbent hired prior the administration of the 2006 written examination. Similarly, the award of retroactive seniority to firefighter priority hires will not affect anyone hi red prior to the City’s institution of heightened
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minimum qua lifications in 2004. This is because no priority hire claim ant would receive a constructive hire date that is earlier than the date on which the City used the challenged practices.
Sixth, any claim ant awarded retroactive seniority under the Decree will rank behind all incumbent employees who were hired on the sam e date as a claim ant’s constr uctive hire date. Decree, ¶¶ 43, 66. For exam ple, the constructive hire date for the police officer de layed hire claimants – May 14, 2007 – is the date of hire for the first academ y class that was held following the adm inistration of the 2006 written police officer exam ination. The relative seni ority of incumbent police officers hired into this acad emy class on May 14, 2007 will not be af fected by implementation of an award of retoractive seniority to the delayedhire claimants because the Decree provides that the two delayed hire claim ants “will rank behind all other individuals appoi nted as police officers” in the first academy class. See Decree, ¶ 43. Therefore, the delayed hire claimants will not, as a practical matter, have greater seniority than any police officer who was actually hired before them . The sam e lim itation will apply to the priority hire claim ants’ rank relative to incumbents hired on their constructive hire date. See Decree, ¶ 66.
For these reasons the Court finds that the relfieprovided by the Decree is remedial in nature, and is lawful, fair, reasonable, adequate, and in the public interest. 3. Public Interest
If the Court declined to enter the Decree and tihs case proceeds to trial, the costs for both the United States and the City will be substantial. The resources saved through a voluntary resolution that furthers the objectives of Title VII is consistent with the public interest. B. The Unions’ Objection to Retroactive Seniority Relief
The Unions object to the retroactive seniority relief provided by the Decree on the ground
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that it violates their collective bargaining agreements with the City and interferes with the seniority rights of incumbent police officers and firefighter s, and, as a result, they claim the Court cannot award such relief without either the Unions’ consent or a full trial on the merits. See Union Obj. at 6, 9-10.
The Unions asser t t hat t he retroactive se niority provided under the Decree violates the applicable CBAs and interferes with the seniority rights of incum bent police of ficers and firefighters. See Union Obj. at 7-9. The Unions assert that the Decree will affect benefits that are accrued using seniority “in a com petitive sense,” such as prom otions, shift preference, overtim e assignments, vacation scheduling and lay offs, as well as bene fits that are accrued based on “longevity,” such as salary levels and accrual of vacation, sick and other types of leave.Id. at 7-9. As an initial matter, the “longevity”-based benefitsof incumbent police officers and firefighters are not im pacted in any way by the Decree. For instance, providing a priority hire claim ant wi th accrued vacation leave as part of his/her relief does not affect the leave balances or leave accrual rates of incumbent employees.
More importantly, the “competitive” retroactive seniority benefits provided by the Decree are essential to make-whole the African Americans harmed by the City’s discriminatory selection practices. Truskoski v. ESPN, Inc. , 60 F.3d 74, 77 (2d Cir. 1995) (“both ‘com petitive status’ seniority and ‘benefit’ seniority . . . are important components of ‘make whole’ relief under Title VII.”). “[S]uch relief may not be denied on the abstract basis of adverse impact upon the interests of other em ployees but rather on the basis of unusual adverse im pact a rising from facts and circumstances that would not generally be found in Title VII cases.”Franks, 424 U.S. at 779 n.41. Thus, retroactive seniority – including competitive seniority – should be awarded even though, as
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the Suprem e Court acknowledged in Franks, i t may affect incum bent em ployees. “Denial of [competitive] seniority relief to identifiable victim s of racial discrimination” because such relief would “dim inish[] the expectations of other, arguably innocent, em ployees would if applied generally frustrate the central ‘make whole’ objective ofTitle VII.”Id. “If relief under Title VII can be denied merely because the majority group of employees, who have not suffered discrimination, will be unhappy about it, there will be little hope of correcting the wrongs to which the [statute] is directed.” Id. at 775 (quoting United States v. Bethlehem Steel Corp., 446 F.2d 652, 663 (2d Cir. 1971)). Such relief is particularly appropriate where, as here, eligibility for the relief is limited to those individuals who have been or will be identified as victims of the discriminatory employment practices challenged by the United States, see Decree, ¶ 32, and the Unions have not asserted that any of the categories of individuals eligible for relief are not victims of the challenged practices.
The Court has already noted that the retroactive seniority relief in the Decree will have a minimal impact on incumbent police officers and firefighters. Moreover, the lim ited burdens the retroactive seniority relief imposes on incumbent police officers and firefighters is typical of the relief awarded in Title VII cases, and well within that permitted under Title VII. As the Supreme Court noted in Franks:
[D]enial of seniority relief to identif iable victim s of racial discrimination on the sole ground that s uch relief dim inishes the expectations of other, arguably ninocent, employees would, if applied generally, frustrate the central “make whole” objective of Title VII. These conflicting interests of other employees will, of course, always be present in instances where som e scarce em ployment benefit i s distributed am ong em ployees on the basis of t heir status in the seniority hierarchy.
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Franks, 424 U.S. at 774 (footnotes omitted); see also Williams, 720 F.2d at 922 (“simple reduction in non-minority ‘expectations’” does not render consent decree unfair or unreasonable);State of New Jersey, 1995 WL 1943013 at *20.
In the instant case, the retroactive seniorityrelief provided by the Decree impacts incumbent employees in two ways: eligibility f or promotion for police of ficers and f irefighters, and shif t preferences vacation schedule and unrequested tr ansfers for police officers. W ith r espect t o eligibility for promotion, the impact of the Decree is – as a practical matter – minimal. Under the CBAs for FOP and IAFF members, competitive seniority has an impact on eligibility for promotions because both CBAs require the addition of “service points” awar ded based on seniority to the written examination score of applicants for promotion. Specifically, the IAFF CBA states that an applicant for promotion will receive 0.625 points foreach year of service beyond the first five years added to his or her written promotional examination score, up to a maximum of five service points. See Union Mot. to Intervene, Ex. 1B at 54. TheFOP CBA is similar, except that service points are calculated beginning in the third year of service and applicants can receive a m aximum of eight service points. Id., Ex. 1A at 43.
The practical impact on Union members’ promotional opportunities is limited because the Decree does not permit claimants who are hired to use their constructive hire dates to satisfy any time-in-grade requirements for promotion. Therefore, the earliest any police officer or firefighter priority hire would be eligible to compete for promotion is five years after his or her actual date of hire by the City. As a result, incum bents who were hired as a result of the 2006 police officer selection process, or the 2004 and 2005 firefighter selection processes, are either already eligible or nearly eligible to be considered for promotion, and they will likely have at least two opportunities
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to compete for promotion before any priority hire would be competing in any promotional selection process. See Union Mot. to Intervene, Ex. 1A at 42 (eligibility lists from promotional examinations expire after two years); Ex. 1B at 53 (same). Under these circumstances, where numerous factors independent of service points will determ ine wh ether any current incum bent is outranked f or promotion by a priority hire, the incum bents’ interests are not strong enough to justify departure from the established precedent forthe award of make-whole relief inthis case, including retroactive seniority.
The retroactive seniority relief also im pacts s hift preferences, vacation scheduling and unrequested transfers for police officers, which are determined by competitive seniority, see Union Mot. to Intervene, Ex. 1A at 15, 17, because pr iority hires may ultimately outrank some recently hired current incumbents once the constructive hire dates are implemented under the Decree. The practical impact on incum bents is, however, m inimal in light of the relatively sm all number of priority hires com pared to the City’s sworn police and firefighter forces. Moreover, shift preferences and transfer rights are thetype of rights the Supreme Court inFranks understood would be affected by awarding retroactive seniority to victims of discrimination. See Franks, 424 U.S. at 767.
For all of these reasons, the actual burden on any particular incumbent from the award of retroactive seniority provided in the Decree isminimal and not atypicalof burdens normally found to be acceptable in Title VII cases, and the Court will overrule the Unions’ objection. IV. CONCLUSION
For the foregoing reasons, the Court finds the term s of the Consent De cree are fair, reasonable, adequate, and consistent with the publicinterest, and that none of the objections raised
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Case: 3:08-cv-00348-TMR Doc #: 32 Filed: 11/30/09 Page: 21 of 21 PAGEID #: 806 has merit. Accordingly, the Court APPROVES the Consent Decree as a final resolution of all claims asserted by the United States against the City of Dayton.
DONE and ORDERED in Dayton, Ohio this Monday, November 30, 2009. s/Thomas M. Rose
________________________________ THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE
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 Case: 3:08-cv-00348-TMR Doc #: 41 Filed: 05/10/13 Page: 1 of 7 PAGEID #: 1067

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v. CITY OF DAYTON, OHIO,
Defendant.

Civil Action No. 3:08-cv-348 (TMR) Hon. THOMAS M. ROSE

JOINT MOTION FOR A PARTIAL EXTENSION OF THE CONSENT DECREE

The United States of America (“United States”) and the City of Dayton (“Dayton”)

hereby jointly move for a partial extension of the Consent Decree (“Decree”) between the parties

for a period of six months. The parties have fulfilled their obligations under the Decree

regarding individual relief and the development of a firefighter selection procedure, and ask that

the Court terminate those provisions in accordance with the timeline set forth in the Decree. The

purpose of the requested extension is to allow for the completion of the parties’ obligations

regarding the development of a police officer selection procedure that complies with the

requirements of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended

(“Title VII”). The parties respectfully request that the Court set a new expiration date of

November 23, 2013 for the provisions of the Consent Decree pertaining to the police officer

selection procedure development. A proposed Order is attached for the Court’s consideration.

I.

BACKGROUND

On September 26, 2008, the United States filed the complaint in this action alleging that

Dayton was engaged in a pattern or practice of discrimination against African Americans on the

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basis of race in its selection procedures for police officers and firefighters in violation of Section 707 of Title VII. Dkt. No. 1. The parties entered into a Consent Decree to resolve the matter and the Decree was filed with the Court on February 26, 2009 and amended on March 16, 2009. Dkt. Nos. 16, 21. The Court entered the Decree on November 30, 2009, following a Fairness Hearing, and approved the parties’ determinations regarding the distribution of individual relief on August 5, 2010, following a second Fairness Hearing. Dkt. Nos. 32, 37.
As an initial matter, the United States and Dayton have worked collaboratively in effectuating the terms of the Consent Decree since it was entered by the Court. The United States shares Dayton’s objective in selecting the best qualified applicants to serve in the Dayton Police Department so that it can satisfy its public safety responsibilities. The parties submit that the requested extension of the Consent Decree previously entered in this case is consistent with this objective as it permits the City’s development of a lawful written examination for police officer candidates. For the reasons that follow, the parties agree that not all of the original purposes of the Decree can be fulfilled prior to the date that the Decree is set to expire without the extension being requested here. See Decree, Dkt. No. 21.3, para. 8.
The first purpose is to ensure that Dayton does not violate Title VII with regard to African American applicants and its selection procedures for police officers and firefighters going forward. Id. at para. 8(a). This purpose is addressed by enjoining Dayton from using its previous selection procedures and requiring Dayton to develop new procedures that comply with Title VII. Id. at paras. 9-13. The second purpose of the Decree is to provide remedial relief to individuals who were denied employment with Dayton due to the challenged employment practices. Id. at para 8(b). This purpose was accomplished by establishing a $450,000 settlement fund that was paid out to claimants and the hiring of police officer and firefighter
2

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claimants on a priority basis with retroactive seniority. Id. at paras. 28-29, 64, 66; Exh. 1, Evans Declaration, paras. 2-3.
Pursuant to Paragraph 73, the Decree expires upon the later of two dates: thirty-six months after the entry of the Decree or the fulfillment of the parties’ obligations regarding individual relief. Id. Thirty-six months after final entry of the Decree was November 30, 2012. The final individual relief obligations are expected to be fulfilled on May 23, 2013, with the crediting of retroactive seniority to the final priority hire claimants. See Ex. 2, Letter from E. Banaszak to the Court dated May 2, 2012; Exh. 1, Evans Declaration, para. 3. Therefore, the Decree is currently set to expire on May 23, 2013. Paragraph 75 of the Decree affirms that the Court retains jurisdiction to enter additional orders as may be necessary to effectuate the purposes of the Decree. II. PURPOSE OF REQUESTED EXTENSION
Paragraphs 12 through 15 of the Consent Decree set out a process through which Dayton must develop new selection procedures for police officers and firefighters that comply with Title VII and enable Dayton to select qualified officers for these critical public safety positions. See Dkt. No. 21.3. The Decree requires that Dayton provide information regarding its development process to the United States, so that the United States may review the information, provide advice, and seek Court intervention if it believes that Dayton’s proposed new procedures do not comply with the law. Id.
The parties have been engaged in a cooperative dialogue regarding the development of new selection procedures for police officers and firefighters since the entry of the Decree. Dayton developed and administered a selection procedure for firefighters in 2012 that Dayton intends to continue to utilize for future firefighter hiring. See Exh. 1, Evans Declaration, para. 4.
3

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Therefore, the parties’ obligations regarding the development of a selection procedure for firefighters have been completed. While Dayton successfully administered a police officer exam in 2011, future use of this exam was impractical, and both Dayton and the United States agreed at that time that a different selection process would be developed and used. Id. at para. 5. However, this second round of development for the police officer selection process is not yet finished. Id.
Dayton has proposed a written examination for police officers that it intends to administer in June 2013, which is after the current expiration date of the Decree. Id. A crucial step in exam development is analyzing the data from the exam administration to determine whether the exam functioned as its developers intended it to. See Exh. 3, Jones Declaration, para. 4. Therefore, several important aspects of the exam development process cannot be completed until after the exam is given to candidates. Id. at paras. 3, 5. Following the administration of the examination, Dayton will need to collect the data from the exam administration, assess whether the exam functioned as intended, determine the most appropriate method of use, and establish an eligible list. Id. at para. 4; Exh. 1, Evans Declaration, para. 5. This process is expected to take several months. Exh. 1, Evans Declaration, para. 5.
The United States, with the assistance of its expert Dr. David Jones, has provided extensive feedback during the police officer exam development process. The parties are concerned that the expiration of the Decree prior to the completion of the exam development process will have a negative effect on the remainder of that process. Therefore, the parties are requesting a six month extension of the police officer selection procedure development provisions of the Decree.
4

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III. CONCLUSION
For the reasons discussed above, the parties respectfully request that the Court set a new
expiration date of November 23, 2013 for the provisions of the Consent Decree pertaining to the
development of a lawful police officer selection procedure and that the Court terminate the
Consent Decree provisions relating to individual relief and the firefighter selection procedure.
Respectfully submitted,
THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
Delora Kennebrew Chief Employment Litigation Section
By: /s/ Elizabeth B. Banaszak Esther G. Lander (DC Bar No. 461316) Deputy Chief Elizabeth B. Banaszak (IL Bar No. 6299035) Trial Attorney Attorneys for United States of America U.S. Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, N.W. Patrick Henry Building, Room 4236 Washington, D.C. 20530 Telephone: (202) 305-4071 Facsimile: (202) 514-1005 Elizabeth.Banaszak@usdoj.gov
Attorneys for Plaintiff United States
JOHN J. DANISH #0046639 CITY ATTORNEY
5

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John Assistan 101
Dayton, (937) (937)

By: /s/ John C. Musto C. Musto #0071512 t City Attorney West Third Street
P.O. Box 22 Ohio 45401
333-4100 333-3628 FAX
Attorneys for Defendant City of Dayton

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Certificate of Service I certify that today, May 10, 2013, a copy of the forgoing Joint Motion for a Partial Extension of the Consent Decree will be served upon counsel for the City of Dayton and counsel for intervenors, Fraternal Order of Police, Lodge 44 and International Association of Fire Fighters, Local 136 via the ECF system.
/s/ Elizabeth Banaszak Elizabeth B. Banaszak (IL Bar No. 6299035) Trial Attorney Attorney for United States of America U.S. Department of Justice Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue, N.W. Patrick Henry Building, Room 4236 Washington, D.C. 20530 Telephone: (202) 305-4071 Facsimile: (202) 514-1005 Elizabeth.Banaszak@usdoj.gov
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Case: 3:08-cv-00348-TMR Doc #: 41-4 Filed: 05/10/13 Page: 1 of 1 PAGEID #: 1084

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v. CITY OF DAYTON, OHIO,
Defendant.

Civil Action No. 3:08-cv-348 (TMR) Hon. THOMAS M. ROSE

[PROPOSED] ORDER Upon consideration of the Joint Motion of Plaintiff United States and Defendant City of Dayton, it is hereby ORDERED this ________ day of _______________, 2013, that the provisions of the Consent Decree between the parties related to the development of a selection procedure for police officers are EXTENDED and shall now expire on November 23, 2013 and that the remainder of the Consent Decree is TERMINATED.

____________________________________
THOMAS M. ROSE UNITED STATES DISTRICT JUDGE

 
 Case: 3:08-cv-00348-TMR Doc #: 16 Filed: 02/26/09 Page: 1 of 2 PAGEID #: 365

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v. CITY OF DAYTON, OHIO,
Defendant.

Civil Action No. 3:08-cv-348 (TMR) Hon. THOMAS M. ROSE

JOINT MOTION FOR PROVISIONAL ENTRY OF CONSENT DECREE AND SCHEDULING OF FAIRNESS HEARING

Plaintiff United States of America (“United States”) and defendant City of Dayton (“City”) (collectively “the parties”) hereby move the Court to provisionally enter the attached Consent Decree (the “Decree”) agreed to by the parties to resolve this action, subject to final approval and entry by the Court after a fairness hearing, and to schedule an initial fairness hearing.
As set forth in the supporting Memorandum, the Decree resolves all allegations made by the United States in its complaint, and provides that individuals whose interests may be affected by the Decree will be given notice of the Decree and an opportunity to file objections with the Court. The Decree also establishes a process for the consideration and resolution of any such objections at an initial fairness hearing and/or a later fairness hearing on individual relief.
A proposed Order is attached.

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Respectfully submitted,
FOR PLAINTIFF UNITED STATES:
Loretta King Acting Assistant Attorney General Civil Rights Division
/s/ Barbara E. Thawley John M. Gadzichowski Chief Diana Embrey Deputy Chief Barbara Thawley (DC 358944) Meredith L. Burrell Trial Attorneys U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Civil Rights Division Employment Litigation Section Patrick Henry Building, Room 4908 Washington, D.C. 20530 Telephone: (202) 514-3852 Facsimile: (202) 514-1105 Barbara.E.Thawley@usdoj.gov
February 26, 2009

FOR DEFENDANT CITY OF DAYTON:
/s/ John Danish (by consent to U.S.) John J. Danish (0046639) City Attorney John C. Musto (0071512) Assistant City Attorney Dayton City Hall 101 West Third Street Post Office Box 22 Dayton, OH 45401 Telephone: (937) 333-4100 Facsimile: (937) 333-3628 John.Danish@cityofdayton.org

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 Case: 3:08-cv-348 As of: 10/21/2014 12:18 PM EDT 1 of 7
U.S. District Court Southern District of Ohio (Dayton) CIVIL DOCKET FOR CASE #: 3:08−cv−00348−TMR

CLOSED,LC2

United States of America v. Dayton, City of Assigned to: Judge Thomas M Rose Demand: $0 Cause: 42:1981 Civil Rights
Plaintiff
United States of America

Date Filed: 09/26/2008 Date Terminated: 11/26/2013 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff
represented by Dale Ann Goldberg United States Attorney's Office − 3 200 W Second Street Room 602 Dayton, OH 45402 937−225−2910 Email: dale.goldberg@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Banaszak U.S. Department of Justice 950 Pennsylvania Ave, NW PHB 4236 Washington, DC 20530 202−305−4071 Fax: 202−514−1005 Email: elizabeth.banaszak@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barbara E Thawley US Dept of Justice − Civil Rights Division 950 Pennsylvania Ave. N.W. Att: 4928 PHB Washington, DC 20530 202−514−3852 Fax: 202−514−1105 Email: Barbara.E.Thawley@usdoj.gov TERMINATED: 02/03/2012
Esther Gwen Lander U.S. Department of Justice 950 Pennsylvania Ave, NW Patrick Henry Building, Room 4902 Washington, DC 20530 202−616−1578 Fax: 202−514−1105 Email: esther.tamburo@usdoj.gov ATTORNEY TO BE NOTICED
Meredith L Burrell U.S. Department of Justice 950 Pennsylvania Ave. N.W. PHB Rm. 4924 Washington, DC 20004 202−305−9053 Fax: 202−514−1105 Email: meredith.burrell@usdoj.gov ATTORNEY TO BE NOTICED

Case: 3:08-cv-348 As of: 10/21/2014 12:18 PM EDT 2 of 7

V. Defendant Dayton, City of

represented by John J Danish City of Dayton Law Department − 3 PO Box 22 101 W Third Street Dayton, OH 45402 937−333−4100 Email: john.danish@daytonohio.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick Joseph Bonfield City of Dayton Law Department 101 W Third Street Dayton, OH 45402 937−333−4100 Fax: 937−333−3628 Email: pat.bonfield@cityofdayton.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
John C Musto City Attorney's Office − 3 PO Box 22 101 W Third Street Dayton, OH 45401 937−333−4116 Fax: 937−333−3628 Email: john.musto@daytonohio.gov ATTORNEY TO BE NOTICED

V. Intervenor Defendant FOP Lodge 44
Intervenor Defendant IAFF Local 136

represented by John Robert Doll Doll, Jansen &Ford 111 West First Street Suite 1100 Dayton, OH 45402−1156 937−461−5310 Fax: 937−461−7219 Email: jdoll@djflawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan D Jansen Doll, Jansen &Ford 111 West First Street Suite 1100 Dayton, OH 45402−1156 937−461−5310 Fax: 937−461−7219 Email: sjansen@djflawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John Robert Doll (See above for address) LEAD ATTORNEY

Case: 3:08-cv-348 As of: 10/21/2014 12:18 PM EDT 3 of 7
ATTORNEY TO BE NOTICED
Susan D Jansen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/26/2008 09/26/2008 09/30/2008 09/30/2008 10/03/2008 10/06/2008 10/07/2008 10/07/2008 01/06/2009 01/15/2009
01/20/2009 01/22/2009
01/22/2009 01/23/2009 01/29/2009 02/18/2009

# Docket Text
1 COMPLAINT against Dayton, City of, filed by United States of America. (Attachments: # 1 Civil Cover Sheet) (Goldberg, Dale) (Entered: 09/26/2008)
...Notice, If case is to be referred, it will be Magistrate Judge Sharon L. Ovington (phil1, ) (Entered: 09/26/2008)
2 Summons Issued as to Dayton, City of. (phil1, ) (Entered: 09/30/2008)
3 SUMMONS Returned Executed by Plaintiff United States of America, Defendant Dayton, City of. Dayton, City of served on 9/30/2008, answer due 10/20/2008. (Goldberg, Dale) (Entered: 09/30/2008)
4 NOTICE of Appearance by Barbara E Thawley Plaintiff United States of America (Thawley, Barbara) (Entered: 10/03/2008)
5 Joint MOTION to Stay Proceedings by Plaintiff United States of America, Defendant Dayton, City of. (Thawley, Barbara) (Entered: 10/06/2008)
6 NOTICE of Appearance by John C Musto Defendant Dayton, City of (Musto, John) (Entered: 10/07/2008)
NOTATION ORDER granting 5 Motion to Stay. Joint motion to stay proceedings is granted. Defendant has until January 19, 2009 to respond to Plaintiff's complaint. Signed by Judge Thomas M Rose on 10−7−2008. (de, ) (Entered: 10/07/2008)
7 MOTION to Intervene and Memorandum in Support. (Attachments: # 1 Exhibit FOP Lodge 44 CBA, # 2 Exhibit IAFF Local 136 CBA, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit) (Doll, John) (Entered: 01/06/2009)
8 Joint MOTION for Extension of Time New date requested 2/19/2009. by Plaintiff United States of America, Defendant Dayton, City of. (Attachments: # 1 Text of Proposed Order Stipulated Order to Extend Stay of Proceedings) (Thawley, Barbara) (Entered: 01/15/2009)
9 STIPULATED ORDER TO EXTEND STAY OF PROCEEDINGS granting 8 Motion for Extension of Time. Signed by Judge Thomas M Rose on 01/20/09. (phil1, ) (Entered: 01/20/2009)
10 Unopposed MOTION for Extension of Time to File Response/Reply as to 7 MOTION to Intervene and Memorandum in Support New date requested 2/26/2009. by Plaintiff United States of America. (Attachments: # 1 Text of Proposed Order) (Thawley, Barbara) (Entered: 01/22/2009)
11 Unopposed MOTION for Extension of Time to File Response/Reply as to 7 MOTION to Intervene and Memorandum in Support New date requested 2/26/2009. by Defendant Dayton, City of. (Musto, John) (Entered: 01/22/2009)
12 ORDER GRANTING EXTENSIONS OF TIME TO RESPOND TO MOTION TO INTERVENE, 10 , 11 . Signed by Judge Thomas M Rose on 01/23/09. (phil1, ) (Entered: 01/23/2009)
13 NOTICE of Appearance by Susan D Jansen Intervenor Defendants FOP Lodge 44, IAFF Local 136 (Jansen, Susan) (Entered: 01/29/2009)
14 Joint MOTION for Extension of Time New date requested 3/12/2009. by Plaintiff United States of America, Defendant Dayton, City of. (Attachments: # 1 Text of Proposed Order Proposed Stipulated Order to Extend Stay) (Thawley, Barbara) (Entered: 02/18/2009)

Case: 3:08-cv-348 As of: 10/21/2014 12:18 PM EDT 4 of 7

02/19/2009 02/26/2009 02/26/2009
02/26/2009 02/26/2009 02/26/2009 02/26/2009 02/27/2009 03/16/2009 04/14/2009
04/14/2009
04/14/2009
07/01/2009 07/30/2009

NOTATION ORDER granting 14 Motion for Extension of Time. Signed by Judge Thomas M Rose on 2−19−2009. (de, ) (Entered: 02/19/2009)
15 Joint MOTION for Leave to File Excess Pages by Plaintiff United States of America, Defendant Dayton, City of. (Thawley, Barbara) (Entered: 02/26/2009)
16 Joint MOTION to Approve Consent Judgment by Plaintiff United States of America, Defendant Dayton, City of. (Attachments: # 1 Text of Proposed Order Order For Provisional Entry of Consent Decree, # 2 Text of Proposed Order Consent Decree, # 3 certificate of service) (Thawley, Barbara) (Additional attachment(s) added on 4/14/2009: # 4 Corrected Exhibit) (phil1, ). (Entered: 02/26/2009)
17 Memorandum In Support 16 MOTION to Approve Consent Judgment by Plaintiff United States of America, Defendant Dayton, City of. (Thawley, Barbara) Modified on 3/3/2009 to edit text (sc1, ). (Entered: 02/26/2009)
18 NOTICE of Appearance by Meredith L Burrell Plaintiff United States of America (Burrell, Meredith) (Entered: 02/26/2009)
19 RESPONSE in Opposition re 7 MOTION to Intervene and Memorandum in Support filed by Plaintiff United States of America. (Burrell, Meredith) (Entered: 02/26/2009)
20 RESPONSE in Opposition re 7 MOTION to Intervene and Memorandum in Support filed by Defendant Dayton, City of. (Attachments: # 1 Exhibit 1) (Musto, John) (Entered: 02/26/2009)
NOTATION ORDER granting 15 Motion for Leave to File Excess Pages. Signed by Judge Thomas M Rose on 2−27−09. (de, ) (Entered: 02/27/2009)
21 Joint MOTION to Amend/Correct 16 Joint MOTION to Approve Consent Judgment by Plaintiff United States of America, Defendant Dayton, City of. (Attachments: # 1 Text of Proposed Order, # 2 Corrected Consent Decree) (Thawley, Barbara) (Entered: 03/16/2009)
22 ORDER granting 21 Upon consideration of the Joint Motion of plaintiff United States and defendant City of Dayton, Ohio (collectively, the parties), it is hereby ORDERED this Tuesday, April 14, 2009, that the Consent Decree agreed to and executed by the parties is provisionally approved and entered by this Court. The Court will set a date for a Fairness hearing. Signed by Judge Thomas M Rose on 04/14/09. (phil1, ) Modified on 4/15/2009 to edit text (sc1, ). (Entered: 04/14/2009)
23 ENTRY AND ORDER GRANTING IN PART MOTION OF FRATERNAL ORDER OF POLICE, CAPTAIN JOHN C. POST LODGE 44 AND INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 136 TO INTERVENE AS DEFENDANTS. DOC. 7 . Signed by Judge Thomas M Rose on 04/14/09. (phil1, ) (Entered: 04/14/2009)
24 ORDER granting 16 Upon consideration of the Joint Motion of plaintiff United States and defendant City of Dayton, Ohio (collectively, the parties) to substitute a corrected Exhibit to the Joint Motion for Provisional Entry of Consent Decree and Scheduling of Fairness Hearing, filed with the Court onFebruary 26, 2009 [Docket Entry # 16], it is hereby ORDERED this Tuesday, April 14, 2009, that the corrected Exhibit (filed March 16, 2009) shall be substituted for the Decree filed with the Court on February 26, 2009 [Docket Entry # 16 −3]. Signed by Judge Thomas M Rose on 04/14/09. (phil1, ) (Entered: 04/14/2009)
NOTICE of Hearing: Fairness Hearing set for 10/14/2009 09:00 AM in Courtroom 2 − Dayton before Judge Thomas M Rose. (jg, ) (Entered: 07/01/2009)
25 Joint MOTION to Amend Notice Provisions of Paragraphs 23 and 33 of the Consent Decree by Plaintiff United States of America, Defendant Dayton, City of. (Attachments: # 1 Appendix A −Affidavit of Giselle S. Johnson, # 2 Text of Proposed Order Proposed Order Regarding Notices Provided Pursuant to Paragraphs 23 and 33 of the Consent Decree) (Thawley, Barbara) (Entered: 07/30/2009)

Case: 3:08-cv-348 As of: 10/21/2014 12:18 PM EDT 5 of 7

08/06/2009
08/31/2009 09/02/2009 09/09/2009 10/05/2009 10/05/2009
10/07/2009 10/19/2009
11/30/2009
12/29/2009 04/02/2010
04/11/2010 04/14/2010 07/12/2010 07/14/2010 07/19/2010

26 ORDER granting 25 ORDERED that, in light of the fact that the City is not in possession of the last known addresses or other contact information for the individuals identified in Paragraphs 23(b) and (c) of the Decree, the City is not required to comply with the specific notice requirements set forth in Paragraphs 23(b) and (c), and the corresponding requirement in Paragraph 33, regarding those individual. Signed by Judge Thomas M Rose on 08/06/09. (phil1, ) (Entered: 08/06/2009)
27 MOTION for Extension of Time New date requested 9/9/2009. by Intervenor Defendants FOP Lodge 44, IAFF Local 136. (Attachments: # 1 proposed Order) (Jansen, Susan) (Entered: 08/31/2009)
NOTATION ORDER granting 27 Motion for Extension of Time. Signed by Judge Thomas M Rose on 9−2−2009. (de, ) (Entered: 09/02/2009)
28 Objection by Intervenor Defendants FOP Lodge 44, IAFF Local 136. (Attachments: # 1 Hialeah Case) (Jansen, Susan) (Entered: 09/09/2009)
29 MOTION for Leave to File Excess Pages by Plaintiff United States of America. (Thawley, Barbara) (Entered: 10/05/2009)
30 BRIEF by Plaintiff United States of America. (Attachments: # 1 Exhibit Description of Notice, # 2 Exhibit Sample Notice to Applicant, # 3 Exhibit Sample Notice to Incumbent, # 4 Exhibit Notice Letters to Unions, # 5 Exhibit Newspaper Notice, # 6 Exhibit Morlan Objection, # 7 Exhibit Montgomery−Choice Objection, # 8 Exhibit Dalinghaus Objection, # 9 Exhibit Shiverdecker Objection, # 10 Exhibit Document Request Letters) (Burrell, Meredith) (Entered: 10/05/2009)
NOTATION ORDER granting 29 Motion for Leave to File Excess Pages. Signed by Judge Thomas M Rose on 10−7−2009. (de) (Entered: 10/07/2009)
31 Minute Entry for proceedings held before Judge Thomas M Rose: Fairness Hearing held on 10/14/2009. Court heard argument from counsel and witness testimony. Exhibits offered. Court took the matter under advisement. (Court Reporter Leslie Foley.) (jg) (Entered: 10/19/2009)
32 ENTRY AND ORDER OVERRULING OBJECTIONS OF FRATERNAL ORDER OF POLICE, CAPTAIN JOHN C. POST LODGE 44, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 136, AND INDIVIDUAL INTERVENORS, AND APPROVING CONSENT DECREE. Signed by Judge Thomas M Rose on 11/30/09. (pb1) (Entered: 11/30/2009)
NOTICE: exhibits from fairness hearing conducted on 10/14/09 now housed on shelf 7 bin 1. (jg) (Entered: 12/29/2009)
33 STATUS REPORT On Individual Relief Claims by Plaintiff United States of America. (Attachments: # 1 Appendix Appendix 1, # 2 Appendix Appendix 2 Redacted Relief Forms, # 3 Appendix Appendix 3 City letter 3−18−2010) (Thawley, Barbara) (Entered: 04/02/2010)
NOTICE of Hearing: Fairness Hearing set for 6/22/2010 09:30 AM in Courtroom 2 − Dayton before Judge Thomas M Rose. (jg1) (Entered: 04/11/2010)
NOTICE of Hearing: Fairness hearing reset for 7/29/2010 01:30 PM in Courtroom 2 − Dayton before Judge Thomas M Rose. (NOTE: hearing was previously set for 6/22/10). (jg) (Entered: 04/14/2010)
34 NOTICE of Appearance by Esther Gwen Lander for Plaintiff United States of America (Lander, Esther) (Entered: 07/12/2010)
35 NOTICE of Appearance by Elizabeth Banaszak for Plaintiff United States of America (Banaszak, Elizabeth) (Entered: 07/14/2010)
36 BRIEF by Plaintiff United States of America. (Attachments: # 1 Exhibit Exhibit A, Norvell Objection, # 2 Exhibit Exhibit B, Tanner Objection, # 3 Exhibit Exhibit C, Henderson Objection, # 4 Exhibit Exhibit D, Banaszak Declaration, # 5 Exhibit Exhibit E, Norvell Interest in Relief form, # 6 Exhibit Exhibit F, 2010 Police Exam Announcement, # 7 Exhibit Exhibit G, 2006 Police Exam Annoucement, # 8 Exhibit Exhibit H, Crawford Declaration, # 9 Exhibit Exhibit H(1), Interest in

Case: 3:08-cv-348 As of: 10/21/2014 12:18 PM EDT 6 of 7

07/29/2010 07/29/2010 08/03/2010 08/05/2010
08/24/2010
12/01/2010 02/01/2012 05/10/2013 05/14/2013
11/26/2013 11/26/2013

Relief Log, # 10 Exhibit Exhibit H(2), Incoming Call Log) (Banaszak, Elizabeth) (Entered: 07/19/2010)
Minute Entry for proceedings held before Judge Thomas M Rose: In Chambers Conference held on 7/29/2010. (jg1) (Entered: 07/29/2010)
Minute Entry for proceedings held before Judge Thomas M Rose: Fairness Hearing held on 7/29/2010. Court conducted fairness hearing and offered individuals an opportunity to place objections to the consent decree on the record. Court heard objections from two individuals as well as argument from Governments Counsel. Court took the matter under advisement. (Court Reporter Leslie Foley.) (jg1) (Entered: 07/29/2010)
NOTICE: Plaintiffs exhibit #1 from fairness hearing conducted on 7/29/10 now housed on shelf 7 bin 1. (jg1) (Entered: 08/03/2010)
37 ENTRY AND ORDER OVERRULING DALE NORVELL'S OBJECTION;SUSTAINING DONESIA TANNERS OBJECTION AS TO THE MAXIMUM AGE REQUIREMENT BUT OVERRULING HER OBJECTION AS TO THE AMOUNT OF THE SETTLEMENT FUND; OVERRULING ANTHONY HENDERSONS OBJECTION; AND APPROVING THE REPORT ON INDIVIDUAL RELIEF FILED BY THE UNITED STATES ON APRIL 2, 2010. Signed by Judge Thomas M Rose on 08/05/10. (pb1) (Entered: 08/05/2010)
38 Transcript of Proceedings (Fairness Hearing) held on 07/29/2010, before Judge Thomas M. Rose. Court Reporter/Transcriber Leslie Foley, Telephone number 512−1604. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.
NOTICE RE: REDACTION OF TRANSCRIPTS: Within 5 business days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ohsd.uscourts.gov (Forms − Electronic Availability of Transcripts). Please read this policy carefully.
For a complete copy of a transcript, please contact the Court Reporter or the Clerk's Office. Redaction Request due 9/14/2010. Redacted Transcript Deadline set for 9/24/2010. Release of Transcript Restriction set for 11/22/2010. (pb1) (Entered: 08/24/2010)
39 STATUS REPORT Establishing Priority Hire List by Plaintiff United States of America. (Thawley, Barbara) (Entered: 12/01/2010)
40 NOTICE by Plaintiff United States of America of Withdrawal of Appearance of Counsel (Thawley, Barbara) (Entered: 02/01/2012)
41 Joint MOTION for Order to Partially Extend Consent Decree by Plaintiff United States of America. (Attachments: # 1 Exhibit Exhibit 1 Evans Declaration, # 2 Exhibit Exhibit 2 Banaszak Letter, # 3 Exhibit Exhibit 3 Jones Declaration, # 4 Text of Proposed Order) (Banaszak, Elizabeth) (Entered: 05/10/2013)
42 ORDER granting 41 Motion for Order to Partially Extend Consent Decree. Upon consideration of the Joint Motion of Plaintiff United States and Defendant City of Dayton, it is hereby ORDERED this 13th day of May, 2013, that the provisions of the Consent Decree between the parties related to the development of a selection procedure for police officers are EXTENDED and shall now expire on November 23, 2013 and that the remainder of the Consent Decree is TERMINATED.Signed by Judge Thomas M Rose on 5/13/2013. (kf) (Entered: 05/14/2013)
43 Joint MOTION for Order to Terminate Consent Decree by Plaintiff United States of America. (Attachments: # 1 Text of Proposed Order Proposed Final Order) (Banaszak, Elizabeth) (Entered: 11/26/2013)
44 FINAL ORDER − Consent Decree between the parties is TERMINATED and this action is DISMISSED. Signed by Judge Thomas M Rose on 11/26/13. (ep) (Entered: 11/26/2013)

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11/26/2013

45 CLERK'S JUDGMENT WITH NOTICE OF DISPOSAL ATTACHED. Signed on 11/26/13. (ep) (Entered: 11/26/2013)