--· .

UNITED STATIES Of AMERICA, Plaintiff,
v. JEFFERSON COUNTY, et al.,
Defendants,

) ) ) CIVIL ACFl0N NO.: ) 75..!P-~666-S ) ) ) ) )

Plaifltiff-intervenors Wilks, et al. (hereinafter refelTed to as the "Wilks Class") move the court to enter an order restraiiJilimg the defendant City of Binningham from implementing the appointments of Ivor 1. Brooks and Jerome Roberson to the poSition of Ba1italion Chief of the Birmingham Fire and Rescue Service for a period of two weeks pem:liBg further proceed!ngs, for that:
1. On December 19, 1995, tJ:rics com entered an oraer approving a modification of the City of Hirmmgham Comsent Decree preilfliollsly entered by 1his court in 1991. The Com's 1995 order required that the City develop and implement lawful nom-discriminatory hiring and promotion procedures. Under the modified order, the general injunction ofparagnlph 1 ofthe 1981 Decree also remains in effect. The 1995 Order prohili>its discrimination in assignments and promotion (, 5), requires the "development and implementation of lawful non-discriminatory . . . promotion procedures" (, 7), and requiFes the "consideration of certHied camdidates without regard to their race

 
 UN]TIED STATES OF AMERICA,
P~a!mti~f;
-vs.-
JEFFElt&ON COlTNTY, et al. , De:feiJ1dan:t~ .

"))lsnrftl{~'f CO~T
., '\~T;(j)llj' ~_mA 98 HAY 20 Pr1 3: 55 ,"hij;~¥i!s'i~~ , ", ,
U.S. DIS 1i'\i CI COURi N.D. OF M.I~8M'1A

)

)

)

)

No. CV 75-P-666-S

)

)

)

)

1III'lmr~~l'"~.E.';Ib.

/.M.~ 2 0 1918

After cons~<lleratioIil of the evidie:nc.e and argiUments presemted in open C0li1rt on May

20, 1!~~8, the comt hereby VACA'TES the temporary restraining order entered on May 8, 1998,

regaifciiElg promot~ons to Setgeant, Lieutenant and Captain at tHe City of BirmingBam Police

Department.

Pursuant te the ceurt's 1iilldings, the City of Birmmgbam is hereby DlRJECTED to

promptly comp~ete a written job anaJysis for the position of Police Captain and begin tiheprocess

of revising its selettion procedures for this position in a way that is consiste nt with implementing

selecti0n devices which are job-related and which reduce or eliminate adverse impact, as provided

by paragraph 15 of the 1995 City Mo€lification Order.

A hearing on the Jefferson County Persolllilel Board's compliance witll the 1995

Modlification Order will be heM at 9:00 a.m. on Tuesday, June 30, 1998, in Courtroom 8.

Dated: May 20, 1~98

.~/~ Chief Juige Samc.Pointer, Jr. /7

ServiGe List: Mr. R:~ymolild P. Fitzpatrick, If. Ms. A~e~. Yuem.gert Ms. LaVeecfi M01'1gam Battle Mr. R:6bert [). IODfe Ms. B~bara Thaw[€y
2

 
 UNITEiID STATES DISTRICT COURT NORIlR!IDltIN mSTMCTOF ALABAMA
UN1TED STATES OF AMERICA, Plaintiff;
-vs.-
JEFFERSON COUNTY, et al., Defendants.

c.o
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.,
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'11
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PI
Cl \_~~

ORDER

OCT 0 8 1996

As a result of the status cOEliference held in chambers on September 16, 1998, the court hereby ORDERS as foHows:

1. The City of Birmmgham shall indicate to the parties the job classifications for which it beHeves no adVierse impact exists.

2. The parties shall then determine the jobs in which the existence of adverse impact is disputed. The parties shall submit a list of disputed jobs to Dr. Veres.

3 . Dr. Veres shall review the submitted materials and propose to the parties and to the court a model for analyZJmg adverse impact in the City's jobs. Dr. Ver,es may provide otililer gnidaNce or sllggestion ON the issue of analyzing adverse impact in the City's jobs.

4. The City shall pay Dr. Veres for services performed for the City or in c01lllection with the City's data. The City shall not be responsible for paying Dr. Veres for time spent in conferences with the court unless the time attributable to City matters is significant and easily identifiable.

5. The next status conference is scheduled for November 3, 1998 at 11: 00 am.

Dated: October ~ , 1998

Service List: Mr. Raymond P. Fitzpatrick, Jr. Ms. Anne R. Yuengert Ms. LaVeeda Morgan Battle Mr. Robert D. Joffe Ms. Barbara Thawley
2

 
 UNITED SI'A(rFJs,n~$'FWCT COUR~19 JAN 14 M'l 9: 42

NORrrKl~J,)IJi$m.~'f .oF AllkB~

S(i)ru1ihlel;lil D),ivisioR

u.s. U:~'I . ,,;-;..,.:iJUhT

,- "

,, ,

N.D. Ci~ ':~L.}\t).;\t"1.Q,

ENSLEY BRANCH, N.A.A.C.P., et ai. Plail'ltiffs;
-vs.-
GEORGE G. SEmELS, et aI., Defendants.

)

)

)

) Case No. CV 74-P-12-S

)

)

~

EUIE9~8

JOHN W. MARTIN., et al. Plaintiffs;
-vs.-
JEFFERSON COUNTY PERS. BOARD, Defendant.
-UNITED STATES OF AMERICA., et ai. Plaintiffs; -vs.-
JEFFERSON COUNTY, et aI., Defendants.
JAMES A. BENNETT., et ai. Plaintiffs;
-vs.-
ruCHARD ARruNGTON, et aI., Defendants.

Case No. CV 74-P-17-S

) )
~ Case No. CV 75-P-666-S
) ) ) )

,V-

) ) ) ) Case No. CV 82-P-850 ) ) ) )

~S3

WILLIAM L. GARNER. Plaintiff;
-vs.-
crTY OF BIRMINGHAM, et aI., Defendants.

) ) ) ) Case No. CV 82-P-1461-S ) ) ) )

BIRMINGHAM ASS'N OF CITY EMPLOYEES, )

)

Plaintiffs;

)

)

..

-vs.-

) Case No. CV 82-P-1852-S

)-

)

RICHARD ARRINGTON, JR.., et aI.,

)

Defendants.

)

ROBERT K. WILKS., et al. Plaintiffs;
-vs.-
-- RICHARD ARRllN'GTON, JR.., et aI., Defendants.

) ) ) ) Case No. CV 83-P-2116-S ) ) ) )

JOHNNY HOWARD., et al. Plaintiff;
-vs.-
crTY OF BIRMINGHAM, et aI., Defendants.

) ) ) ) Case No. CV 83-P-301O-S ) ) ) )

RICHARD L. RICE. Plaintiff;
-vs.-
CITY OF BIRMINGHAM, et aI., Defendants.

) ) ) ) Case No. CV 86-P-254-S ) ) ) )

Having heard from the parties, it is ordered as foHows:

1.

All pendins motions in the above-styled causes are hereby deemed moot, and without

prejudice to re-presentation in appmpriate cases as indiJcated in this order.

2.

Each of the above-styled causes is severed from any other case with which it may have

previously been consolidated.

.. 3.

Each of the above-styled causes is acdministratively closed without prejudice and without

taxation of costs. -Any relief granted Qf inj1l!l!1ilctions previ01lls1y eNlIered aNd strl1etifective in these cases (or

in CV84-9(3) l'emaiD in ,effect as thejuEligmeDt oHhis court, and tHe -court I'etams jurisdiction to conaider and

act llpon any pendill'g or subsequendy-filles rnoti0ns or oilier req1llests for eNforcement of, or relief from or

mocli~ftcati.on 0f, such orders or injwrctions. This @lider·soes Not vacate .any pl'eviol!lsly-entered order in any

ofthese cases or in CV84-903 dete:rmiDlingthat claims or defenses sh01:lld be mamtained on beHalfofa class

of plaintiffs, defendants, or intervenors.

4.

Any unresolved previo\!ls~ly-pend,jflg crlaims for individual relief in these cases based on

claims of "reverse discrimination" may be plieserved by filing, witlliN 60 days, an ap},>ropriate dam as an

iNterveNor in CV 84-903.

5.

Recognizing the possibility that the administrative closing of these cases might

unintentiona,uy adversely affect ofthe rights' ofsome p1laintiffor class member, the court reserves tHe power,

on motion filed withiN 6Q days, to set asiae amd vaeate, iN whole or iN part, the closing ofthese cases without

-- any requirement to show"good cause".

6.

Recognizing that documents filed in the above-styled causes might become relevant in

considering further issues in CV84-903 or in considering post-judgment issues in the above-styled causes,

the Court diFects that, until further order, the Clerk's Office retain locally the files in these cases ratlher than

sending them to the court's archive file 10cation.

This the n~ay of January, 1999.

United S1!ates District .Judge

 
 FILED
2006 Mar-31 AM 09:48 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

02 ,JUL -B /Hl 8: 29
" i '-

1 r·

UNITED STATES OF AMERICA,

}

i ~ 1. _,- .

Plaintiff, vs.

} ) )

~ Civil Action No. CV-75-S-666-S

)

JEFFERSON COUNTY, ALABAMA, et al., )

Defendants.

)

ENTERED

JOHN W. MARTIN, et al.,

)

Plaintiffs,

)

)

vs.

)

)

CITY OF BIRMINGHAM, ALABAMA, et al., )

Defendants.

)

JUL &~) 20021
Civil Action No. CV-74-S-17-S

ENSLEY BRANCH OF THE N.A.A.C.P., et al., )

et al.,

)

Plaintiffs,

)

vs.

)

}

GEORGE SEIBELS, et al.,

)

Defendants

)

Civil Action No. CV-74-S-12-S

ORDER

In accordance with the memorandum opinion entered contemporaneously herewith, the

Personnel Board of Jefferson County, Alabama (the "Personnel Board" or "Board") is adjudged to

be in contempt ofthis court for violating the terms ofthe December 19, 1995 order, extending and

modifying the Board's 1981 Consent Decree, and the December 18,2000 order, further extending

the Board's 1981 Consent Decree and 1995 Modification Order. Pursuant to the court's inherent

equitable powers and 28 U.S.C. § 1651, it is ORDERED, ADJUDGED, and DECREED as follows:

1. APPOINTMENT OF RECEIVER-Ronald R. Sims, Ph.D., Floyd Dewey Gottwald

Senior Professor in the Graduate School of Business at the College of William and Mary in

Williamsburg, Virginia, is appointed Receiver of the Personnel Board, effective immediately. The

Receiver shall serve at the pleasure of this court.
2. POWERS OF RECENER The Receiver shall have and exercise all authority
necessary to ensure that the Personnel Board fully, faithfully, and lawfully complies in a timely,
efficient, and cost-effective manner with all functions and obligations required of the Personnel
Board by the terms of the Board's 1981 Consent Decree, as modified by the December 19, 1995
Modification Order, and Act No. 248, 1945 Acts of Alabama, as subsequently amended 1 ("Act No.
248"). To these ends, the powers vested in the Receiver include, but are not limited to, the
following:
(a) full power to direct, control, operate, manage, and administer the property,
funds, and employees of the Board;
(b) all powers vested by Act No. 248 in the three members ofthe Personnel Board
and Personnel Director,2 including the power to hire, promote, demote, transfer, and remove
subordinates as necessary;
(c) the power to employ or appoint a person to serve as Deputy Personnel
Director, without regard to the fifth sentence of section 11 of Act No. 248;3
1 See, e.g., Act No. 17, 1951 Acts of Alabama; Act No. 332, 1953 Acts of Alabama, at 386-87; Act No. 560, 1959 Acts of Alabama, at 1404-05; Act No. 715, 1965 Acts of Alabama, at 1319-21; Act No. 591, 1967 Acts of Alabama, at 1366-78; Act No. 677, 1977 Acts ofAlabama, at 1167-73; Act No. 679, 1977 Acts ofAlabama, at 1176-79; Act No. 680, 1977 Acts ofAlabama, at ll79-80;ActNo. 684, 1977 Acts ofAlabama, at 1183-1200; Act No. 782, 1977 Acts ofAlabama, at 1347-51; Act No. 630, 1978 Acts ofAlabama, at 893; Act No. 819, 1978 Acts ofAlabama, at 119495; Act No. 80-730, 1980 Acts of Alabama, at 1475-76; Act No. 87-815, 1987 Acts of Alabama, at 1626-30; Act No. 89-739, 1989 Acts of Alabama, at 1467-68; Act No. 89-765, 1989 Acts ofAlabama, at 1545-46; Act No. 89-805, 1989 Acts ofAlabama, at 1605-06; and, Act No. 94-564, 1994 Acts ofAlabama, at 1035-38. See also Act No. 284, 1935 Acts of Alabama, at 691-713.
2At some undetermined point, the occupant of this position began to be called "Executive Director" by the members of the three person Personnel Board, but the correct, statutory title remains either "Personnel Director" or "Director of Personnel." See § 1 of Act No. 680 and § 4 of Act No. 684, 1977 Acts of Alabama (both amending § 12 of Act No. 248, 1945 Acts of Alabama, defming the "Duties of personnel director").
3 Section 11 of Act No. 248, 1945 Acts of Alabama, has been twice amended: first by Act No. 17, 1951 Acts of Alabama; and, most recently, by Act No. 1953 Acts of Alabama, 386-87. It currently reads as follows:
-2-

(d) the power to enter into contracts for the employment of outside consultants
to (i) train the Board's employees in the development and implementation of lawful selection
procedures, including, but not limited to, expertise in the disciplines of fudustrial!Organizational
Psychology and information technology, and/or (ii) assist the Board's employees in the development
and implementation oflawful selection procedures for hiring and promotion in the classified services
of the county, municipalities, and appointing authorities served by the Board, and/or (iii) develop
and implement lawful selection procedures for hiring and promotion in the classified services of the
county, municipalities, and appointing authorities served by the Board;
(e) the power to institute suit to recover any fees paid by the Board to outside
consultants for the development and/or implementation oflawful selection procedures ifsuch work
does not, or on the date of its performance did not, conform to generally accepted standards in the
field oflndustrial/Organizational Psychology; and,
(f) the power to retain and employ attorneys to represent himself and the
Personnel Board in connection with any proceedings addressed in paragraphs 2(e), 7, and 13 hereof,
or all further proceedings herein.
Consistent with the powers vested in the Receiver by sub-paragraph 2(b) above, it is
specifically ORDERED that all powers, duties, and responsibilities vested by Act No. 248 in the
Section 11. Director of Personnel. There shall be a director of personnel for each county affected by this Act. The board shall appoint the director who shall hold office at the will of the Board, and his salary shall be an amount as fixed by the personnel board from time to time which shall not be greater than the highest salary paid to any employee holding a position in the classified service of a county or municipality subject to the jurisdiction of this Act. The director ofpersonne1 shall act as secretary at board meetings, and shall be the board's executive officer, but shall not have a vote in determining the board's policy. He shall perform such duties as are assigned to him by the board. The director shall appoint one employee ofthe department to be his deputy. In case of the absence of the director or his inability from any cause to discharge the powers and duties of his office, such powers and duties shall devolve upon his deputy. [Emphasis supplied.]
-3-

various members of the Citizens Supervisory Commission or the three members of the Personnel Board~ with the sole exception ofthose functions addressed in paragraphs 10 and 11 below~ be, and the same hereby are, suspended and, in lieu thereof, vested in the Receiver until further order of this court.
3. DUTIES OF RECEIVER The Receiver shall perform the financial, contractual, legal, administrative, and personnel duties of the Personnel Director and Personnel Board. These duties include, but are not limited to, the following:
(a) preserve, protect, and administer all property, assets, and employees of the Board;
(b) assume responsibility for fulfillment and implementation of all terms of the Board's 1981 Consent Decree, as modified by this court's December 19, 1995 order, and supervise day-to-day compliance with the same by all employees of the Board;
(c) assume responsibility for fulfillment and implementation ofall functions and obligations required of the Personnel Director and Personnel Board by Act No. 248, with the sole exception of those functions addressed in paragraphs 10 and 11 below, and supervise day-to-day compliance with the same by all employees of the Board;
(d) assess the knowledge, skills, abilities, and competencies of all employees of the Board;
(e) conduct an employee training and development needs analysis, and formulate individual development plans for all employees of the Board;
(f) implement employee training and development programs, including instruction designed to institutionalize expertise in the disciplines of Industrial/Organizational
-4-

Psychology and information technology, and, competence in the development and administration of lawful selection procedures for hiring and promotion in the classified services of the county, municipalities, and appointing authorities served by the Board;
(g) assess the present organizational structure ofthe Personnel Board, and design appropriate infrastructures, systems, and procedures that will institutionalize the ability to perform all functions and particularly the functions of developing and administering lawful selection procedures for hiring and promotion in the classified services of the county, municipalities, and appointing authorities served by the Board in an efficient, professional, and cost-effective manner;
(h) develop and implement a fast-track plan for performing the Personnel Director's statutory obligation to grade and classify with respect to salary all job classifications of the county, municipalities, and appointing authorities served by the Board (the so-called "Five Year Survey Project");4
(i) develop and implement a fast-track plan for developing and administering lawful selection procedures that will produce a register ofpersons eligible for promotion to the rank of sergeant within the Jefferson County Sheriffs Department and the various municipal police departments served by the Board;
(j) develop and implement a plan for developing and administering lawful selection procedures that will produce within a reasonable period of time, not to exceed eighteen months, registers ofpersons eligible for appointment or promotion to all classifications still subject
4 Section 12 of Act No. 248, defining the duties of the Personnel Director, provides, in part: "At least once every five years, [the Personnel Director shall] grade and classify or direct the grading and classification ofall positions in the county and in each city in the county and for each appointing authority with respect to salary to the end that each employee shall receive the same compensation as all other employees of the said county or city or appointing authority receive for the same grade and class of service." Act No. 248, 1945 Acts ofAlabama, as amended by Act No. 684, 1977 Acts of Alabama; see also Act No. 680, 1977 Acts of Alabama.
-5-

to the jurisdiction of this court; (k) perform all other acts necessary to transform the Personnel Board into a strong
and competent civil service agency with a clearly defined mission, the infrastructure, systems, and skills to support that mission, and, an agency that discharges all functions in an efficient, professional, and cost-effective manner in substantial compliance with all applicable federal and state laws and regulations; and,
(l) develop and present to the court for approval a plan for returning all powers, duties, and functions vested in the Receiver to the three-person Personnel Board, a Personnel Director to be selected by the three-person Board, and the Citizens Supervisory Commission at the conclusion of this litigation.
4. REPORTS The Receiver shall, not later than ninety days after accepting this appointment, submit to the court and the parties a twelve-month plan detailing the manner in which the Receiver intends to fulfill the duties described above. Such plan shall include a proposed budget. Thereafter, the Receiver shall submit to the court and the parties monthly status reports describing significant actions taken by the Receiver during the month.
5. ACCOMMODATIONS, EQUIPMENT, AND SUPPLIES- Defendant Jefferson County, Alabama is ORDERED to: provide suitable rooms and accommodations for the Receiver, his employees, consultants, and retained contractors, and cause the same to be furnished, heated, airconditioned, and lighted in a manner conducive to the performance of the work of the Receiver hereunder; and, cause to be furnished and paid for by the county, in accordance with the provisions ofparagraph 7 below, all necessary stationery, postage, printing, office supplies, computer hardware and software, and clerical assistance necessary for the performance of the work of the Receiver
-6-

hereunder upon his requisition of same.5 6. SCHEDULE AND COMPENSATION OF RECEIVER- Although the cost of the
Receiver's services shall be charged to the Personnel Board and paid by defendant Jefferson County, Alabama in accordance with the provisions of paragraph 7 below, the Receiver shall have no contractual relationship with either the Board or Jefferson County, but shall instead be responsible solely to this court, and, shall serve at the court's pleasure. The Receiver shall be treated as an employee of the Jefferson County Personnel Board only for the purpose of computing and withholding all applicable federal, state, and local taxes or other deductions from gross pay as are required by l~w.
It is contemplated by the court that the Receiver's duties and obligations will be substantially completed in two years or less, but that the Receiver will continue functioning as a consultant to the Personnel Board and Personnel Director subsequently selected by the Board as needed until December 31, 2004, acting under the control of and reporting to this court. The Receiver shall devote such time as is necessary to accomplish the goals established by this order, but in no event shall he: in the first year, spend less than an average of four days per week in residence at the Jefferson County Personnel Board; in months 13 through 18, spend less than an average ofthree days per week in residence at the Personnel Board; and in months 19 through 24, spend less than an average oftwo days per week in residence at the Board. For purposes ofthe foregoing, the Receiver shall be credited with eight days of service during the first year following assumption of his duties because of prior commitments. Further, during the term of this order, the Receiver shall make himself readily available for consultation with the Board's staff on those days when he is not
5 See § 8 of Act No. 248, 1945 Acts of Alabama, at 387.
-7-

physically present in Birmingham, Alabama. The Receiver shall be compensated for his first year's services in the amount of$184,023.42,
and for his second year's services in the amount of$93,004.50, both payable in biweekly amounts in accordance with the provisions of paragraph 7 below. In the event the Receiver's services are terminated by this court for any reason, he shall be compensated only through the date of such termination.
7. ADMINISTRATIVE EXPENSES OF RECEIVER- The Receiver's compensation, the salaries of all employees of the Personnel Board, and all other administrative expenses of the Receiver arising under the provisions ofthis order, including the fees ofany consultants or attorneys retained by him, shall be paid by warrants drawn by the Receiver, and countersigned by the Chief Magistrate Judge ofthis court, on the general fund ofJefferson County, Alabama. In the event any warrant is not paid within thirty days after submission, the Receiver shall institute an appropriate proceeding in this court. At the end of the county's fiscal year, Jefferson County shall prorate the total sum which the county has expended for the purposes ofthis order between itselfand the various municipalities and appointing authorities served by the Board pursuant to Act No. 248, charging each with such part of the total sum so expended as the total number of employees of such county, city, or appointing authority who were subject to the provisions of Act No. 248 on the last day of the county's fiscal year bears to the total number of employees of all appointing authorities subject to the provisions of Act No. 248 on such last day ofthe county's fiscal year. The sum so arrived at by the county as the proper contribution of each shall be certified to the Receiver and, when approved by him in writing, shall become a liability ofthe respective county, cities, and appointing authorities, and shall be paid immediately to the county. In the event the salaries of a county, city, or an
-8-

appointing authority are paid in part from different treasuries, or different funds in the same treasury, the liability for this contribution shall accrue against such various treasuries or funds in the same proportion as the salaries of the employees of the county, city, or appointing authorities are paid therefrom. In the event any contribution levied hereunder shall not be paid within thirty days after approval by the Receiver, defendant Jefferson County is directed and authorized to bring suit for collection ofsame either in this court or any other court ofcompetent jurisdiction, and any judgment so recovered shall be satisfied from any funds in such treasury or funds against which such contribution levy lies.6
8. DUTIES OF COUNTY OFFICIALS - It shall be the duty of all elected and appointed officials, employees, and attorneys of defendant Jefferson County, Alabama to aid in all proper ways in carrying into effect the provisions of this order, and the rules, regulations, and directives prescribed from time-to-time by the Receiver in the performance ofhis duties hereunder. These duties include, but are not limited to, those described in paragraphs 5 through 7 above, and prompt and reasonable accommodation of the Receiver's request for the use of public buildings (together with necessary heat, air-conditioning, lights, other utilities and services) for the purpose ofconducting examinations7 ofapplicants and investigations8 as required by this order and the terms of Act No. 248.9 In accordance with the discussion contained in Section IV.C of the memorandum opinion entered contemporaneously herewith, it is further ORDERED, ADJUDGED, and DECREED that defendant Jefferson County, Alabama, its elected and appointed officials, employees, agents, servants, employees, attorneys, and any other person acting in concert with the
--------- ------·6 See§ 4 of Act No. 248, 1945 Acts of Alabama, at 380-81. 7See id. § 16, at 391-92, as amended. 8See id. § 13, at 389-90. 9See id. § 7, at 387.
-9-

foregoing, directly or indirectly, and those persons who receive actual notice ofthis order by personal service or otherwise, be, and they hereby are, restrained and enjoined from taking any action, or failing or refusing to take any action, that has the effect of frustrating or delaying the Receiver in the performance of his duties hereunder.
9. DUTIES OF MUNICIPALITIES AND APPOINTING AUTHORITIES- It shall be the duty ofall elected and appointed officials, employees, and attorneys ofthe municipalities and appointing authorities served by the Personnel Board and all others having notice ofthis order to aid in all proper ways in carrying into effect the provisions of this order, and the rules, regulations, and directives prescribed from time-to-time by the Receiver in the performance ofhis duties hereunder. These duties include, but are not limited to: prompt payment of the city's or appointing authority's pro-rata share of the Receiver's compensation and expenses at the end of the county's fiscal year, as specified in paragraph 7 above; and, prompt and reasonable accommodation of the Receiver's request for the use of public buildings (together with necessary heat, air-conditioning, lights, other utilities and services) for the purpose of conducting examinations of applicants and investigations as required by this order and the terms of Act No. 248.
10. FUNCTIONS RETAINED BY CITIZENS SUPERVISORY COMMISSION- The Citizens Supervisory Commission shall appoint a person to fill the Board seat vacated by the resignation of Robin Burrell on June 3, 2002, to serve as the third member of the Personnel Board. This appointment should occur as soon as possible, but not later than ninety days from the date of the entry of this order, unless extended for good cause shown. The Citizens Supervisory Committee should endeavor to appoint a person willing to become knowledgeable of, e.g., generally accepted techniques and procedures for developing lawful selection procedures. In the event any other
-10-

vacancy on the Personnel Board should occur during the pendency of this order, the Citizens Supervisory Commission shall appoint a person to fill the seat within ninety days of vacancy, to enable the Board to fulfill its functions under paragraph 11 below.
11. FUNCTIONS RETAINED BY PERSONNEL BOARD - Until such date as this court orders otherwise, the members of the Jefferson County Personnel Board appointed by the Citizens Supervisory Commission in accordance with the foregoing paragraph and the final judgment in Woods v. Florence, No. CV82-PT-2272-S (N.D. Ala. Apr. 29, 1985) (Propst, J.), shall retain, and continue to perform in accordance with all applicable requirements of federal and state law and regulations, the functions described in: (i) section 22 of Act No. 248 and Rule 6 of the 1995 Rules and Regulations Adopted by the Personnel Board, and Approved by the Citizens Supervisory Commission, relating to hearing employee appeals ofdisciplinary actions; (ii) its role in reviewing denials of applications for "injury leave with pay," as specified in Rule 7.24 of the 1995 Rules and Regulations Adopted by the Personnel Board, and Approved by the Citizens Supervisory Commission; and (iii) its limited role in "Step III" ofthe employee grievance procedure, as set forth in Rule 8.6 of the 1995 Rules and Regulations Adopted by the Personnel Board, and Approved by the Citizens Supervisory Commission.
Consistent with the powers vested in the Receiver by paragraph 2(b) above, however, the members of the Jefferson County Personnel Board shall not perform the foregoing functions with respect to employees ofthe Personnel Board. Instead, for the duration ofthe Receivership imposed by this order, (i) any employee of the Jefferson County Personnel Board holding permanent status, and who is subject to demotion, suspension, discipline, or termination at the instance ofthe Receiver, shall be entitled to a due process hearing before a magistrate judge of this court randomly drawn,
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who shall apply the same standards of review as would otherwise be applied by the Personnel Board in such matters, but for the existence ofthis court's order. See 28 U.S.C. §§ 636(b)(3), 1651. Any employee wishing to avail himself ofthis procedure shall notify the Receiver in writing, and file a copy with the Clerk of this Court, within ten (1 0) calendar days after notification of the contested employment action. Within ten ( 10) calendar days thereafter, the Receiver shall file with the Clerk ofthis Court a copyofthe written notice ofthe contested employment action and a written statement ofthe reasons for the action taken with respect to the employee. The Clerk shall draw at random a magistrate judge ofthe court, who shall conduct a hearing on the matter within ten ( 10) working days after the Receiver's statement of reasons. The hearing may be continued for not more than thirty (30) days on agreement ofthe parties or on motion for good cause shown. Upon completion ofthe hearing, the magistrate judge shall file his written findings of fact and conclusions oflaw, together with a recommendation for disposition of the appeal. Either party may file objections to the magistrate judge's findings and conclusions within ten (1 0) calendar days after they are entered, and this court shall thereafter enter such orders as may be appropriate. (ii) In like manner, any employee of the Board desiring to appeal a decision by the Receiver disallowing in whole or in part an application for injury leave with pay shall notify the Receiver in writing, and file a copy with the Clerk ofthis Court, within ten (10) calendar days after notification ofthe disallowance. Thereafter, the appeal shall be considered by a magistrate judge of this court randomly drawn, who shall apply the same standards ofreview as would otherwise be applied by the Personnel Board under Rule 7.24 of the 1995 Rules and Regulations Adopted by the Personnel Board, and Approved by the Citizens Supervisory Commission, but for the existence ofthis court's order. Either party may file objections to the magistrate judge's report and recommendation within ten (10) calendar days after they are
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entered, and this court shall thereafter enter such orders as may be appropriate. (iii) Finally, with respect to any employee of the Board who files a grievance that proceeds to "Step III" of the employee grievance procedure, his or her right ofappeal ofthe decision rendered by either a hearing officer or a grievance committee shall lie to a magistrate judge of this court, randomly drawn, who shall apply the same standards of review as would otherwise be applied by the Personnel Board under Rule 8.6 of the 1995 Rules and Regulations Adopted by the Personnel Board, and Approved by the Citizens Supervisory Commission, but for the existence ofthis court's order. The aggrieved employee shall file a notice of appeal with the Clerk of this Court within ten (1 0) calendar days of the announced decision. Either party may file objections to the magistrate judge's report and recommendation within ten (1 0) calendar days after they are entered, and this court shall thereafter enter such orders as may be appropriate.
12. IMMUNITY- The Receiver shall have the status of an officer and agent of this court and, as such, shall be vested with such immunities as by law vest with this court. The Personnel Board and defendant Jefferson County, Alabama shall indemnify the Receiver for liabilities, damages, and losses incurred, and shall pay, upon a certification of expenses approved by the court, all expenses reasonably incurred in defending any lawsuit or administrative proceeding in which the Receiver is named as a party, either personally or as the Receiver, or in which liability may otherwise attach to him, if such suit or proceeding is based on or arises out of any action taken within the scope of the Receivership as defined above.
13. LEGAL SERVICES- Ifthis order or its enforcement by the Receiver shall be called into question in any judicial proceeding, or if any person, county, municipality, or appointing authority served by the Personnel Board shall fail or refuse to comply with the lawful rules,
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regulations, or directives of the Receiver, or if defendant Jefferson County should fail or refuse for any reason to comply with its duties and responsibilities under paragraphs 5 through 8 of this order (or any other provision ofAlabama law pertaining to the functions ofthe Personnel Board), or if any elected or appointed official, employee, or attorney of municipality or appointing authority served by the Board should fail or refuse to comply with the duties imposed by paragraph 9 ofthis order (or any other provision ofAlabama law pertaining to the functions ofthe Personnel Board), then, in any of such events, the Receiver may call upon the Jefferson County Attorney, or the attorney for any municipality or appointing authority served by the Personnel Board, or (as empowered by state law 10 and the provisions of paragraph 2(f) above) employ independent counsel to represent him in the performance of his duties and the enforcement of obligations imposed hereunder. In the event independent counsel is retained by the Receiver, the compensation ofsuch independent counsel shall be paid as all other administrative expenses of the Receiver are paid, as provided in paragraph 7 above.
14. RELATIONSHIP BETWEEN RECEIVER AND SPECIAL MASTER-- As both the Receiver and Special Master serve at the pleasure of this court, the Receiver may call upon the Special Master for any information, advice, or counsel required to discharge the Receiver's duties hereunder.
15. MODIFICATION This order maybe modified as necessary to assure the success of the receivership and, eventually, to return operation ofthe Personnel Board to the three member Board and Citizens Supervisory Commission.
16. NOTICE- To ensure that each non-party governmental entity having responsibilities
10 See§ 9 of Act No. 248, 1945 Acts of Alabama, at 387.
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and duties to the Personnel Board under Alabama law receives actual notice ofthe provisions ofthis

order, and particularly paragraphs 7 and 9 hereof, the Clerk of this court is directed to send copies

ofthis order and the accompanying memorandum opinion by certified mail, return receipt requested,

to each appointing authority and to the mayor and president ofthe city council of each municipality

served by the Personnel Board, with the exception of the City of Birmingham, Alabama, which

remains a party to this action.

DONE and ORDERED this

day of July, 2002.
Unit~m~~

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RONALD R. SIMS (Biographical Sketch)
1 July 2002
RONALD R. SIMS is the Floyd Dewey Gottwalld Senior Professor in the Graduate School of Business at the College of William and Mary where he teaches Organization Behavior, Leadership, Business Ethics, Change Management and Human Resource Management. He received his PhD in Organizational Behavior from Case Western Reserve University. Professor Sims is the author or co-author of twenty books and more than seventy-five articles that have appeared in a wide variety of scholarly and practitioner journals. His most recent books are: Organizational Success through Effective Human Resources Management (2002), Changing the Way We Manage Change (2002), Managing Organizational Behavior (2002), Teaching Business Ethics for Effective Learning (2002), The Challenge ofFront-line Management: Flattened Organizations in the New Economy (2000), Keys to Employee Success in the Coming Decades (1999), Administration (1999), Reinventing Training and Development (1998), and Accountability and Radical Change in Public Organizations (1998). His research focuses on a variety of topics to include leadership and change management, human resources management, employee training and management development, learning styles, experiential learning, and business ethics.
Professor Sims recently retired as a Lieutenant Colonel from the U.S. Army Reserves after twenty-four years of active duty and reserve service. Dr. Sims has provided consultation in the areas of change management, human resources management, and employee and leadership development to organizations in the private, public, and not-forprofit sectors over the past twenty-one years.

VITA- RONALD R. SIMS Floyd Dewey Gottwald~ Sr. Professor
July 1, 2002
EDUCATION
Ph.D. 1981, Department of Organizational Behavior, Weatherhead School of Management, Case Western Reserve University, Cleveland, Ohio
M.S.W. 1972, School of Social Work & Community Planning, University ofMaryland, Baltimore, Maryland
B.A. Sociology, 1971, University of Steubenville (Franciscan University), Steubenville, Ohio
ACADEMIC POSITIONS
1992-present- Floyd Dewey Gottwald Sr. Professor (with tenure), School of Business Administration, College of William and Mary.
1994-1995 - Director of Masters in Business Administration (MBA) Program and Floyd Dewey Gottwald Sr. Professor of Business Administration, College ofWilliam and Mary.
1986-1992 - Associate Professor (with tenure), School of Business Administration, College of William and Mary, Williamsburg, VA. 23185.
1981-1986- Assistant Professor ofManagement, School ofBusiness, Auburn University at Montgomery, Montgomery, AL. 36193.
1983-1984- Adjunct Professor, Alabama State University, College of Business Administration, Montgomery, AL. 36195.
NON-ACADEMIC POSITIONS
1981-present - Organization and Management Consultant, Ronald R. Sims & Associates providing organization change and human resource management consultation to private, public and not-for-profit organizations.
1995-present- Associate with TRl Corporation, an organization and change management consulting firm that specializes in designing and implementing leadership and organizational development business simulation programs and interventions.
1998-present- Board of Directors-- BoundlessNetworks and 3Tango, computer technology
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firms in U.S. and Barcelona, Spain.
1972-1997- U.S. Army and Army Reserves, MSC, Social Work Officer, retired LTC-- August 1997.
1978-1980 - Central National Bank, Internal Organization Development Consultant, Cleveland, Ohio.
1977-1980 - Crisis Intervention Center, Social Worker, Cleveland, Ohio
1975-1977- Ohio Department ofMental Retardation, Director of Social Work Services, Cleveland, Ohio.
HONORS. PRIZES AND AWARDS
Editorships, editorial boards, & journal review activities
Editorial review board of Teaching Business Ethics - 1996; editorial review board for Review of Business- 1988 to present; contributing reviewer for Journal of Business Ethics- 1991 to present; reviewer for Internet Encyclopedia- 2003; present; consulting reader for Psychological Reports- 1992 to 1995; contributing reviewer for MIS Quarterly- 1991 to 1993.
Teaching awards
State Council on Higher Education in Virginia 2000 Outstanding Faculty Award; Executive MBA Teaching Excellence Award (1995); MBA Teaching Award (1991).
COURSES TAUGHT
Undergraduate: Organization Behavior, Organization Theory, Leadership, Human Resources Management, Leadership, Business and Society
Graduate: Organization Behavior, Leadership and Planned Change, Human Resources Management, Organization Theory, Business Ethics
FELLOWSHIPS AND GRANTS
Summer and faculty research assignments received from William and Mary Semester Research Grant (1997-98)- A cross-cultural study oflearning styles; Summer
Research Grant (1987)- An exploratory examination ofthe convergence between the
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Learning Style Questionnaire and the Learning Style Inventory; Semester Research Grant (1988) - The relationship between learning styles and adaptive styles
RESEARCH AND OTHER SCHOLARLY WORK
Books written
Sims, R.R. Changing an organization's culture: Restoring reputation after the fall (working title). (Expected February 2003). Praeger Press, Westport, CT.
Sims, R.R. Managing organizational behavior: The ultimate management challenge. (In press- Expected July 2002). Greenwood Publishing Group, Inc., Westport, CT.
Sims, R.R. Organizational success through effective human resource management. (In press- Expected July 2002). Quorum Books, Westport, CT.
Sims, R.R. Teaching business ethics. (2002). Greenwood Publishing Group, Inc., Westport, CT.
Sims, R.R., (Veres, J.G., Jackson, K., and C. Facteau). The challenge of front-line management: Flattened organizations in the new economy. (2001), Quorum Books, Westport, CT.
Sims, R.R. Administration. (1999), BOMI Institute, Arnold, MD.
Sims, R.R. Reinventing training and development. Praeger Press, Westport, CT. ( 1998).
Sims, R.R. and (Sims, S.J.) Changes and challenges for the human resource management professional. Greenwood Press, Westport, CT. (1994).
Sims, R.R. Ethics and organizational decision making: A call for renewal. Quorum Books, Westport, CT. (1994).
Sims, R.R. Training enhancement in government. Quorum Books, Westport, CT. (1993).
Sims, R.R., (Donald D. White and David A. Bednar). Readings in organizational behavior. Allyn & Bacon, Boston, MA. (1992).
Sims, R.R. An experiential learning approach to employee training systems. Quorum Books, Westport, CT. (1990).
Edited volumes
Sims, R.R. Changing the way we manage change in the new economy: Quorum Books (2002).
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Sims, R.R. and (J.G.Veres, III). Keys to employee success in the coming decades. Greenwood Press, Westport, CT. (1999).
Sims, R.R. Accountability and radical change in public organizations. Quorum Books, Westport, CT. (1998).
(Sims, S.J.) and Sims, R.R. Eds. Total quality management in higher education: Is it working? Why or why not? Praeger Press, Westport, CT. (1995).
Sims, R.R. and (Sims, S.J.) Eds. The importance of learning styles: Implications for learning, education, and course design. Greenwood Press, Westport, CT. (1995).
(Spencer, M.) and Sims, R.R. Eds. Corporate misconduct: The legal. societal. and management issues. Quorum Books, Westport, CT. (1995).
(Veres, J.G.) and Sims, R.R. Eds. Human resource management and the Americans with Disabilities Act. Quorum Books, Westport, CT. (1995).
Sims, R.R., and (Robert F. Dennehy) Eds. Diversity and differences in organizations: An agenda for answers and questions. Greenwood Press, Westport, CT. (1993).
Sims, R.R. and (Serbrenia J. Sims) (Eds.). Managing institutions of higher education into the 21st century: Issues and implications. Greenwood Press, Westport, CT. ( 1991 ).
Chapters in books
Sims, S.J., and Sims, R.R. Employee involvement is still the key to successfully managing change. In Sims, R.R. (Ed.). Changing the way we manage change. Quorum Books (2002).
Sims, R.R. The changing roles and responsibilities of change agents. In Sims, R.R.(Ed.). Changing the way we manage change. Quorum Books (2002).
Sims, R.R., and Mea, William J. Change management methods in the exciting world ofB2B. In Sims, R.R. (Ed.). Changing the way we manage change. Quorum Books (2002).
Veres, J.G., III, Sims, R.R., Locklear, Jackson, K.A., O'Leary, R.S. Job analysis: Yesterday, today, and tomorrow. In Ferris, G.R., and Buckley, M.R. (Eds.). Human resources management: Perspectives. context. functions. and outcomes. (4th edition). Prentice-Hall, Englewood, Cliffs, N.J. (2002), pp. 207-230.
Sims, R.R. Understanding training in the public sector. In C. Ban and N. Riccuci (Eds.). Public personnel management: Current concerns, future challenges and issues. Longman Press).
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(3rd ed.) (2002), pp. 194-209.
Sims, R.R., (Erickson, E., and Erickson, J.). European enterprise information portals and global communications. In Krishna-Hensel, S.F. Ed. The new millennium: Challenes and strategies for a globalizing world. Ashgate Publishing, Hampshire, England (2000), pp. 225-239.
Sims, R.R., (John G. Veres, III and Serbrenia J. Sims). Succeeding in the next millennium: Three skills employees must possess. In Sims, R.R. and (John G.Veres, III) (Eds.), Keys to employee success in the coming decades. Greenwood Press, Westport, CT. (1999), pp. 1-14.
(Veres, John G., III) and Sims, R.R. Keys to employee success: What skills are really important for success in the future? In Sims, R.R. and (John G.Veres, III) Eds., Keys to employee success in the coming decades. Greenwood Press, Westport, CT. (1999), pp. 223-242.
Sims, R.R. Accountability and change drivers in the public sector. In R.R. Sims, Ed., Accountability and radical change in public organizations. Quorum Books, Westport, CT. (1998), pp. 1-18.
(Andrea B. Bear) and Sims, R.R.. Reinvention in public housing: The case of the Norfolk Redevelopment and Housing Authority. In R.R. Sims, Ed., Accountability and radical change in public organizations. Quorum Books, Westport, CT. (1998), pp. 19-42.
Sims, R.R. Reinventing training in the public sector. In R.R. Sims, Ed., Accountability and radical change in public organizations. Quorum Books, Westport, CT. (1998), pp. 97122.
(Veres, J.G., III, Locklear, T.S.), Sims, R.R., and (Prewett, A.S.). Job analysis in human resources management practice. In Ferris, G.R., and Buckley, M.R. (Eds.). Human resources management: Perspectives. context, functions, and outcomes. (3rd edition). Prentice-Hall, Englewood, Cliffs, N.J.(1996), pp. 122-154.
Sims, R.R. and (Sims, S.J.) Toward an understanding oftota1 quality management and its contribution and relevance to higher education. In (Sims, S.J.) and Sims, R.R. (Eds.) Total quality management in higher education: Is it working? Why or why not? Praeger Press, (1995), pp. 1-22.
Sims, R.R. and (Sims, S.J.) Learning enhancement in higher education. In Sims, R.R. and (Sims, S.J.) (Eds.) The importance of learning styles: Understanding the implications for learning, course design. and education. Greenwood Press, Westport, Ct. (1995), pp. 1-24.
Geary, W.T. and Sims, R.R. Adapting faculty and student learning styles: Implications for accounting education. In Sims, R.R. and (Sims, S.J.) (Eds.) Understanding the importance oflearning styles: Implications for learning. education, and course design.
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Greenwood Press, Westport, Ct. (1995), pp. 117-128.
(Sims, S.J.) and Sims, R.R. Learning and learning styles: A review and look to the future. In Sims, R.R. and (Sims, S.J.) (Eds.) Understanding the importance oflearning styles: Implications for learning, education. and course design. Greenwood Press, Westport, Ct. (1995), pp. 193-210.
Sims, R.R. and (Spencer, M.). A historical review of corporate misconduct. In (Spencer, M.) and Sims, R.R. Eds. Corporate misconduct: The legal. societal and management issues. Quorum Books, Westport, Ct. (1995), pp. 1-22.
(Kindred, K.) and Sims, R. R. The regulator's perspective on corporate fraud. In (Spencer, M.) and Sims, R.R. Eds. Corporate misconduct: The legal. societal and management issues. Quorum Books, Westport, Ct. (1995), pp. 71-94.
(Sims, S.J.) and Sims, R.R. Countering corporate misconduct: The role ofhuman resource management. In (Spencer, M.) and Sims, R.R. (Eds.) Corporate misconduct: The legal. societal and management issues. Quorum Books, Westport, Ct. (1995), pp. 183-208.
(Reyna, M.) and Sims, R.R. ADA and its implications for job training. In (Veres, J.G.) and Sims, R.R. Eds. Human resource management and the Americans With Disabilities Act. Quorum Books, Westport, Ct. (1995), pp. 127-148.
(Sims, S.J.) and Sims, R.R. ADA and the role ofhuman resource management in managing the diverse workforce of the 1990s. In (Veres, J.G.) and Sims, R.R. Eds. Human resource management and the Americans With Disabilities Act. Quorum Books, Westport, Ct. (1995), pp. 149-170.
Sims, R.R., (Veres, J.G.), and (Igou, F.P.). Improving HRM's responsiveness to the ADA. In (Veres, J.G.) and Sims, R.R. Eds. Human resource management and the Americans With Disabilities Act. Quorum Books, Westport, Ct. (1995), pp. 171-184.
Sims, R.R. Training and development to improve employee performance. In J.J. Hampton (ed.), AMA management handbook. 3rd. ed. New York: American Management Association (1994), pp. 4-28--4-34.
(Sims, Serbrenia J.) and R.R. Sims. Diversity and difference training in the United States. In Sims, R.R., and (Robert F. Dennehy) eds. Diversity and differences in organizations: An agenda for answers and questions. Greenwood Press, Westport, Ct. (1993), pp. 73-92.
(Dennehy, R.F.) and Sims, R.R. A review and discussion of future issues on diversity and differences. In Sims, R.R., and (Robert F. Dennehy) (Eds.) Diversity and differences in organizations: An agenda for answers and questions. Greenwood Press, Westport, Ct. (1993), pp. 165-172.
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Sims, (Serbrenia J.) and R.R. Sims. Student assessment: A proactive response for the 21st century. In Sims, R.R. and (Serbrenia J. Sims) (Eds.). Managing institutions of higher education into the 21st century: Issues and implications. Westport, CT: Greenwood Press, (1991), pp. 79-88.
(Veres, John G., Toni S. Locklear) and R.R. Sims. Job analysis in practice: A brief review of the role ofjob analysis in human resource management. In G. Ferris, K.M. Roland, and M. R. Buckley (Eds.). Human resource management: Perspectives and issues. Boston: Allyn and Bacon, (1990).
Sims, R.R. Higher education and corporate readaptation. In J.T. Kenny (Ed.), New directions in higher education: Trends in university research management. San Francisco: JosseyBass. (1989), pp. 37-48.
(Jonas, Hank, Alan, Plath, David A. Kolb), and Sims, R.R. Grading the personal application assignment, in D.A. Kolb, I. Rubin, & J. Osland (Eds.), Organizational behavior: An experiential learning approach. Englewood Cliffs, N.J.: Prentice-Hall, (1984).
Refereed research publications
Sims, R.R. Business ethics teaching for effective learning. Teaching Business Ethics. (In press).
Sims, R.R., and Brinkmann, J. Business ethics curriculum design: Issues, premises and experiences. Teaching Business Ethics. (In press).
Sims, R.R. Debriefing experiential learning exercises in ethics education. Teaching Business Ethics. 2002, 6(3): 179-197.
Sims, R.R., and Brinkmann, J. Leaders as moral role models: The case of John Gutfreund at Salomon Brothers. Journal ofBusiness Ethics. (2002), 35(1): 327-339.
(Brinkmann, J.) and R.R. Sims. Stakeholder sensitive business ethics teaching I. Teaching Business Ethics. (200 1), 5(2): 171-193.
(Mea, B.), Sims, R.R. and (Veres, J.G.). Efforts in organization transformation: Getting your money's worth. International Review of Administrative Science. (2000), 66(3), 565-584.
Sims, R.R. Changing an organization's culture under new leadership. Journal of Business Ethics. (2000), 25, 65-78.
(Dennehy, R.F.,) Sims, R.R., and (Collins, H.). Debriefing international experiential learning exercises: A theoretical and practical guide for success. Journal of Management Education. (1998), 22{1), 9-25.
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Cheng, H.K., Sims, R.R., and Teegen, H. To purchase or pirate software: An empirical study. Journal of Management Information Systems. (1997), 13(4), 49-60.
(Schor, S.), Sims, R.R., and (Dennehy, R.F.) Power and diversity: Sensitizing yourself and others through self reflection and storytelling. Journal of Management Education (1996), 20(2), 242-257.
Sims, R.R. Lessons learned from the reinvention of training in two Federal agencies. International Journal of Public Administration (1996), 19(5): 639-660.
Sims, R.R., Cheng, H.K., and Teegen, H. Toward a profile of software piraters. Journal of Business Ethics. (1996), 15(8), 839-849.
(Reyna, M.) and Sims, R.R. Management development in the public sector: The individual management development plan. Public Personnel Management. (1995, Spring), 24(1): 53-66.
Sims, R.R. and Sims, S.J. Managing training during times of financial stress. Public Personnel Management. (1994, Winter), 23(4): 611-630.
Sims, R.R. Human resource management's role in clarifying the new psychological contract. Human Resource Management Journal. (1994, Fall), 33(3): 373-382.
Geary, W.T. and Sims, R.R. Can ethics be learned? Accounting Education. (1994), 3(1): 3-18.
Sims, R.R. Evaluating public sector training programs. Public Personnel Management. (1993, Winter), 22(4): 591-615.
Sims, R.R. The enhancement of learning in public sector training programs. Public Personnel Management. (1993, Summer), 22(2): 243-257.
Sims, R.R. and (Jeanne Lindholm). Kolb's experiential learning model: Learning how to learn from experience. Journal of Management Education. (1993), 17(1): 95-98.
Sims, R.R. Linking groupthink to unethical behavior in organizations. Journal of Business Ethics. (1992), 11: 651-662.
Sims, R.R. Developing the climate for training in public agencies. Public Personnel Management. (1992, Fall): 335-346.
Sims, R.R. The challenge to unethical behavior in organizations. Journal of Business Ethics. (1992), 11: 505-513.
(John G. Veres), R.R. Sims, and (Toni S. Locklear). Improving the reliability ofKolb's revised learning style inventory. Educational and Psychological Measurement. 51(1), (1991):
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143-150.
Sims, R.R. The institutionalization of organizational ethics. Journal of Business Ethics. 10, (1991): 493-506.
Sims, R.R. and (Serbrenia J. Sims). Improving training in the public sector. Public Personnel Management. 20(1), (Spring 1991): 71-82.
Sims, R.R. and (Serbrenia J. Sims). Increasing applied business ethics courses in business school curricula. Journal ofBusiness Ethics. 10, (1991): 211-219.
(Kuhnert, Karl), R.R. Sims, and (Mary Ann Lahey). The relationship between job security and employee health. Group & Organization Studies. 14(4), (1989, December): 399-410.
Sims, R.R., (John G. Veres and Leasa Shake). An exploratory examination of the convergence between the learning style questionnaire and the revised learning style inventory. Educational and Psychological Measurement. 49(3), (1989): 227-233.
Sims, R.R., (John G. Veres and Susan Henninger). Training for competence. Public Personnel Management. 18(1), (Spring 1989): 101-106.
Sims, R.R., and (John G. Veres and Susan Henninger). Training the appraisers: An orientation program for improving supervisory performance ratings. Public Personnel Management. 16, (1987): 37-46.
Sims, R.R., (John G. Veres and Leasa Shake). The reliability and classification stability of the Learning Style Inventory II in corporate settings. Educational and Psychological Measurement. 47, (1987): 1127-1133.
Sims, R.R., (John G. Veres, Kathy Buckner and Patricia Watson). The reliability and classification stability of the learning style inventory. Educational and Psychological Measurement. 46, ( 1986): 753-760.
Sims, R.R. and (William L Sauser). Guiding principles for the development of competencybased business curricula. Journal of Management Development. 4(5), (1985): 51-63.
(Noel, James L.) and R.R. Sims. An experiential learning model for continuing education. Journal ofContinuing Higher Education. 32(1), (1984): 24-26.
Sims, R.R. and (John G. Veres). A practical program for training job analysts. Public Personnel Management. 14, (1984): 131-137.
Sims, R.R. Kolb's experiential learning theory: A framework for assessing person-job interaction. Academy of Management Review. 8(2), (1983): 501-508.
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Invited and unrefereed publications
Sims, R.R. The Enron debacle: How did they get themselves into this mess?- Leadership and organizational culture stupid! William and Mary News Online (May 2002).
Sims, R.R. Review of Confessions of an Accidental Businessman by James A. Autry. BerrettKoehler Publishers Inc., Teaching Business Ethics, 1996.
Sims, R.R. Review oflnnovations in Higher Education by Boyatzis, R.E., Cowen, S.S., Kolb, D.A., and Associates. Jossey-Bass, Inc. Human Resource Development Quarterly., 1995.
Sims, R.R. Training methods for increasing managers sensitivity to AIDS. International Journal of Health Care Quality Assurance, 1(1), (1991): 26-29.
Sims, R.R. Ensuring competence in health care managers. International Journal of Health Care Quality Assurance. 3_(2), ( 1990): 11-13.
(Sims, Serbrenia J) and R.R. Sims. Review of Higher education in partnership with industry by Powers, D.R., Powers, M.F., Betz, F., and Aslanian, C.B. Jossey-Bass, Inc. Journal of Higher Education. Ql(2), (March/April, 1990): 236-238.
Sims, R.R., (John G. Veres and Serbrenia J. Sims). Productivity in Business Schools. Are we measuring what we should? International Journal ofManagement.1(2), (1990): 79-88.
Sims, R.R. Building learning climates in trainer development. Industrial and Commercial Training. 22(3), (1990): 26-31.
Sims, R.R. Adapting training methods and trainer' styles to trainee' learning styles in training programs. Journal ofEuropean Industrial Training. 14(2), (1990): 17-22.
Sims, R.R., (John G. Veres and Serbrenia J. Sims). A training method for increasing managers' sensitivity to ethics: Developing a code of ethics. Training and Management Development Methods. 3_(3), (1989): 6.09-6.15.
Sims, R.R. and (Serbrenia J. Sims). American colleges and training for industry. Industrial and Commercial Training. .ll(6), (1989, November/December): 3-8.
Sims, R.R., (Serbrenia J. Sims, John G. Veres, and Toni S. Locklear). A view from my side: Managing AIDS in the workplace. Training and Management Development Methods. 3_(4), (1989): 6.15-6.22.
Sims, R.R and (Serbrenia J. Sims). Business school and corporate partnership in a changing global economy. Management Research News.li(7), (1989): 14-18.
Sims, R.R. and (John G. Veres). Improving employee relations through an organizational
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intervention: A case study. International Journal of Management. .Q 2), (1989): 137-144.
(Veres, John G.,) and R.R. Sims. Introducing technology in the form of office automation in four businesses. Management Research News.l2.(2), ( 1989): 4-7.
Sims, R.R. Enhancing competence: Proposals for improving management education. International Journal ofManagement. ~(1), (1988): 5-14.
Sims, R.R. Training supervisors in employee performance appraisals: Some preliminary findings. Journal of European Industrial Training. 12(8), ( 1988): 26-31.
Sims, R.R. and (John G. Veres). Management development: Improving managers' employee counseling skills. Training and Management Development Methods.1(1), (1988): 43-53.
Sims, R.R. and (John G. Veres). Management development: A case study. Training and Management Development Methods.1(2), (1988): 51-58.
(Bowens, Howard), R.R. Sims and (John G. Veres). Tactical actions: Surviving in today's organizations. International Journal of Management. 4, ( 1987): 457-466.
Sims, R.R. and (John G. Veres). Person-job match (congruence) model: Toward improving organizational effectiveness. International Journal of Management. :1(2), (1987): 156164.
Sims, R.R. and (John G. Veres). Some alternative models to person-job match. International Journal ofManagement. 16(1), (1987): 37-46.
Sims, R.R., (John G. Veres, Raymond B. Wells, and Toni S. Locklear). Training for public managers: The Alabama certified public managers program. The Journal of European Industrial Training.lL (1987): 11-14.
Sims, R.R. A marketing training workshop for industrial trainers: Program planning and evaluation. Journal of Commercial and Industrial Training. 19, ( 1987): 12-16.
Sims, R.R. and (John G. Veres). Competency-based training approach to the management of organizational transitions. The Journal ofEuropean Industrial Training. 19, (1987): 1013.
Sims, R.R. and (John G. Veres). A conceptual framework for developing simulation-based supervisory training programs. International Journal of Management. J(4), (1986): 59-63.
(Veres, John G.) and R.R. Sims). Can QWL interventions pay off in the short term? Management Research News. _8(3), (1985): 27-29.
-ll-

Sims, R.R. and (John G. Veres). Professional education as preparation for changing career and job roles. Business Education. (!(2), (1985): 51-55.
Sims, R.R. and (John G. Veres). Some suggestions on acquiring skills in teaching business. Business Education. 2.(1), (1988): 5-13.
Sims, R.R. The goal of business education: Pivotal skill development. Business Education. 8, (1987): 5-12.
Sims, R.R. and (James L. Noel). Management development. Business Education. ~(1), (1984): 17-23.
Sims, R.R. and (John C. Willis). A framework for educating management for the future. William and Mary Business Review, (Spring 1988): 15-20.
(Bowens, Howard), R.R. Sims and (John G. Veres). September/October). The primary systems affecting selling transactions. Industrial Management and Data Systems. (September/October, 1984): 28-32.
Sims, R.R. A framework for planning organizational change. COBA Vanguard. (Fall, 1983): 39.
Sims, R.R. Business spotlight: Thomas May & Associates. Alabama Business and Economic Review Journal.l( 1), (1983): 23-25.
Sims, R.R. The feasibility of flextime in commercial banking. COBA Vanguard. (Spring, 1982): 11-17.
Papers under review
Sims, R.R. Enron: How a failure ofleadership, culture and unethical behavior brought a giant to Its knees. (Under review Journal ofBusiness Ethics).
Sims, R.R. Who should teach business ethics? An interdisciplinary team focus. (Under review Teaching Business Ethics).
Sims, R.R. Business ethics teaching: Building an effective classroom learning environment. (Under review Teaching Business Ethics).
Sims, R.R. Toward an understanding of why unethical behavior occurs in organizations. (under review Journal of Business Ethics)
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Work in progress
Sims, R.R. Toward a model of outcomes assessment in teaching business ethics efforts. (To be submitted to Teaching Business Ethics).
Research reports from grant or contract work
Sims, R.R. Human resources development of the Saatchi & Saatchi Asia Board, final report, (1995).
Sims, R.R. and Locke, K.D. Training division evaluation: U.S. Agency for International Development (AID), final report Contract no. HNE-0000-C-00-40-44-00, (1994).
Sims, R.R. An evaluation of the Federal Aviation Administration Center for Management Development, final report, (1993).
{Fry, Ron E.), and R.R. Sims. On the need for a congruent model of person-environment interaction to understand effectiveness in organizations. In D. A. Kolb, D. Wolfe, et al. (Eds.), Professional education and career development: A cross-sectional study of adaptive competencies in experiential learning, final report NIE grant no. NIE-G-770053, Eric no. ED 209 493 CE 030 519, (1981).
Sims, R.R. Assessing person-job match and mismatch: Competence as a function ofP-E interaction in engineering and social work. In D. A. Kolb, D. Wolfe, et al. (Eds.), Professional education and career development: A cross-sectional study of adaptive competencies in experiential learning, final report NIE grant no. NIE-G-77-0053, Eric no. ED 209 493 CE 030 519, (1981).
(Kolb, David A.), and R.R. Sims. Professional education as preparation for professional jobs and changing career roles, in D. A. Kolb, D. Wolfe, et al. (Eds.), Professional education and career development: A cross-sectional study of adaptive competencies in experiential learning, final report NIE grant no. NIE-G-77-0053, Eric no. ED 209 493 CE 030 519, (1981).
(Kolb, David A., Don Wolfe, Ron E. Fry, Gervase Bushe, Glen L. Gish, Walter G. Griggs, Jan Gypen, Susan, L. Manring) and R.R. Sims. Professional education and career development: A cross-sectional study of adaptive competencies in experiential learning, final report NIE grant no. NIE-G-77-0053, Eric no. ED 209 493 CE 030 519, 1981.
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Conference proceedings publications
Sims, R.R. and (Robert F. Dennehy). Americans with Disabilities Act and its Implications for Experiential Learning. In P. Thavikulwat and J.D. Overby (eds.). Developments in Business Simulation and Experiential Exercises. Association for Business Simulations and Experiential Learning Conference Proceedings. ( 1994), 21: 100-104.
Sims, R.R. and (Robert F. Dennehy). Debriefing International Experiential Learning Exercises. In J. Gosenpud and S. Gold (eds.). Developments in business simulation and experiential learning exercises. Association for Business Simulations and Experiential Learning Conference Proceedings. (1993), 20: 47-50.
Sims, R.R. and (Robert F. Dennehy). Power and ethnicity: An experiential learning exercise (How to sensitize students to diversity). In J. Gosenpud and S. Gold (eds.). Developments in business simulation and experiential learning exercises. Association for Business Simulations and Experiential Learning Conference Proceedings. (1992), 19: 155-158.
Sims, R.R., (John G. Veres and J. Patrick Gray). Toward a systematic evaluation of training programs. Association ofManagement 1990 Annual Conference Proceedings. (1990): 187-191.
Sims, R.R. and (Serbrenia J. Sims). Training climates: A key to successful training programs. Association ofManagement 1990 Annual Conference Proceedings. (1990): 182-185.
Sims, R.R. (1990). Creating the class climate by introducing Kolb's experiential learning model. Eastern Academy of Management Annual Conference Proceedings. 42.
(Kuhnert, Karl W.), Sims, R.R., and (Dale R. Palmer). Job security and employee health. Southern Management Association 25th Anniversary Conference Proceedings. (1987): 64-66.
Sims, R.R. Teaching counseling skills to management students: A simulation. Association for Business Simulations and Experiential Learning Annual Conference Proceedings. 14, (1987): 188-191.
Other scholarly activity, including papers presented at professional meetings and publications of abstracts
Sims, R.R. "Stakeholder sensitive business ethics teaching." Hawaii Conference on Business, Honolulu, (June 2001).
(Mea, W., Carney, C.) and Sims, R.R. "Changing the way we change in the digital economy." 2nd Annual Conference of the CISS/ISA International Conference, Washington, D.C.
-14-

Sims, RR "Teaching counseling skills to management students" at the National Association for Business Simulations and Experiential Learning Meeting, Hilton Head, S.C. in March 1987.
Sims, RR, (Karl Kuhnert and Dale Palmer). "Job security and employee health" at the Southern Management Association Annual Meeting in Atlanta, GA. in November 1986.
Sims, RR. Discussant on a paper entitled "Labeling stress in instant organizations: A stress reduction intervention" at the Academy of Management National Meeting in Chicago, IL. August 1986.
Sims, RR., (and Karl Kuhnert and Dale Palmer). "Job security, employee health and attitudes: Some preliminary findings" at the Southeastern Psychological Association Annual Meeting in Orlando, FL. in March 1986.
Sims, R.R. Discussant on a paper entitled "Management education: Suggestions for curriculum improvements" at the Southern Management Association Meeting in Atlanta, GA. in November 1983.
COMMUNITY SERVICE
College community service
Board member of Big Brothers Big Sisters of Williamsburg, 2002; Executive Board member and former President of the Black Faculty and Staff Forum at the College ofWilliam and Mary, 1987-present: Equal Opportunity Committee, 2001; Director ofHuman Resources Management Search Committee, 2001; School ofBusiness Administration Faculty Affairs Committee, 1999-present; College-wide Procedural Review Committee, 1999present; College-wide Public Policy Committee, 1999-present; BBA Business Partners Financial Support Committee, 2000; Dean, School of Business Search Committee, 199798; Curriculum Committee, 1993-95 & 1997-1998; Dean of Arts & Science Search Committee, 1996-97; Assistant Director of Career Services Search Committee, 1996-97; Greek Life Task Force, 1996; Salary and Equity Committee, 1995-1996; Environmental Science and Policies Feasibility Study Committee, 1995; Associate Provost Search Committee, 1995; AACSB School ofBusiness Self-Study Committee, 1994-95; William and Mary Self Study -- Institutional Purpose Committee, 1993-94; Director of Personnel Services Evaluation Committee, 1993-94; Professional Resource Committee, 1993; Vice Provost for Multicultural Affairs Evaluation Committee, 1992-93; School ofBusiness Dean's Evaluation Committee, 1992-93; Assistant to the President for Affirmative Action Search Committee, 1992-93; Provost Search Committee, 1992-93; Admissions Office Personnel Search Committee, 1992; Professional Resources, 1986-87; Affirmative Action Committee, 1986-1987, 1989-1990; School of Business Appointments Committee, 1987-92; 93; 94; Undergraduate Curriculum Committee, 1987-1993; Research Committee, 1987-1988, 92; School ofBusiness Dean's Search Committee,
-17-

Sims, R.R. "Toward a systematic evaluation of training" at the Association of Management National Meeting in Lake Buena Vista, FL in August 1990.
Sims, R.R. "Developing training climates" at the Association of Management National Meeting in Lake Buena Vista, FL in August 1990.
Sims, R.R. "Managing change in organizations" at the Academy of Management National Meeting, Washington, D.C. in August 1989.
Sims, R.R. "Developing codes of ethics in organizations" at the National Association for Business Simulations and Experiential Learning Annual Meeting in Orlando, Fl in March 1989.
Sims, R.R. and (Jeanne Lindholm). "Using the performance appraisal to improve managerial competence: A case study" at the International Simulation and Gaming Association Annual Meeting in Utrecht, The Netherlands in August 1988.
Sims, R.R. and (Jeanne Lindholm). "Improving competence in nurses entering practice: An experiential learning approach" at the International Simulation and Gaming Association Annual Meeting in Utrecht, The Netherlands in August 1988.
Sims, R.R. (Jeanne Lindholm). "Developing a course on leadership and planned change" at the National Organizational Behavior Teaching Review Meeting in Los Angeles, CA. in June 1988.
Sims, R.R. "First class ideas: Kolb's experiential learning model" at the Eastern Academy of Management Meeting in Washington, D.C. in May 1988.
Sims, R.R. Chaired a session entitled "Technology and organizations" at the National ORSA/TIMS Conference in Washington, D.C. in April 1988.
Sims, R.R. and (John G. Veres). "The impact of technology on today's employees" at the National ORSA/TIMS Conference in Washington, D.C. in April1988.
Sims, R.R. and (John G. Veres). "Introducing technology in the form of office automation" at the National ORSA/TIMS Conference in Washington, D.C. in Aprill988.
Sims, R.R. "The role of experiential learning in decision making" at the National Association for Business Simulation and Experiential Learning Annual Meeting in San Diego, CA. in March 1988.
Sims, R.R. Discussant on a paper entitled "Diffusing dissatisfaction in organizational change" at the 1988 Academy of Management National Meeting in Long Beach, CA. in August 1988.
-16-

(August 2000).
(Bordas, R., Facteau, J.D., Facteau., C.L., Podsakoff, P.M., MacKenzie, S.M.), and Sims, R.R. "Structured interviews to assess organizational citizenship behaviors: Predicting who will be most likely to demonstrate citizenship in a team based environment" presented at the 15th annual conference of the Society for Industrial and Organizational Psychology, New Orleans, Louisiana (April 2000).
Sims, R.R., (Erickson, E., and Erickson, J.). "Enterprise information portals and global communications"at the CISS/ISA International Conference, Paris, August, 1999.
Sims, R.R. and (Dennehy, R.). "Diversity and difference challenges in organizations" at the 1999 Organization Behavior Teaching Conference in Las Cruces, New Mexico, May.
Sims, R.R. "Role plays as a tool for experiential learning" as part of a session for new PhDs teaching symposium at the 1999 Academy of Management Conference, August.
Sims, R.R. "Accountability and change in public organizations" as part of the Best Books on Change Management session at the 1999 Academy of Management meeting, San Diego, August.
(Gosslein, D.,) and Sims, R.R. "Learning styles and accounting students" presented at the MidAtlantic Accounting Association Meeting, Arlington, VA., March 1996.
Teegen, H., Cheng, H.K., and Sims, R.R. "Software piracy: An international comparison of pricing intentions" presented at the 5th Annual Quality of Life Conference Academy of Marketing Science and the International Society of Quality of Life in Williamsburg, November 1995.
Cheng, H.K., Sims, R.R., and Teegen, H. "To purchase or pirate software: An empirical study" presented at the 1995 TIMS conference in Singapore, August 1995.
Sims, R.R. and (Robert F. Dennehy). "Americans with Disabilities Act and its implications for experiential learning" at the National Association for Business Simulations and Experiential Learning in San Diego, California in March 1994.
Sims, R.R. and (Robert F. Dennehy). "Debriefing international experiential learning exercises" at the National Association for Business Simulations and Experiential Learning in Savannah, Georgia in March 1993.
Sims, R.R. and (Robert F. Dennehy). "Power and ethnicity: An experiential learning exercise (How to sensitize students to diversity)" at the National Association for Business Simulations and Experiential Learning Annual Meeting in Las Vegas, Nevada in March 1992.
-15-

1989-1990; Faculty Advisor for Phi Kappa Tau Fraternity, 1987-1989; Faculty Advisor for Minority Student Outreach Coalition, 1988-1989; Freshmen Advisor, 1987. Other professional service Former member of the executive board of the Organization Development and Change Division ofthe Academy ofManagement, 1999-2001; Member of the Committee of Visitors (COV) evaluation committee for National Science Foundation's "Innovation and Organizational Change" program.
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 FILED
2005 Jul-12 PM 02:04 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

UNITED STATES OF AMERICA,

)

Plaintiff,

)

)

vs.

)

)

JEFFERSON COUNTY, ALABAMA, et al., )

Defendants.

)

—————————————————————)

JOHN W. MARTIN, et al.,

)

Plaintiffs,

)

)

vs.

)

)

CITY OF BIRMINGHAM, ALABAMA, et al., )

Defendants.

)

—————————————————————)

ENSLEY BRANCH OF THE N.A.A.C.P., et al., )

Plaintiffs,

)

vs.

)

)

GEORGE SEIBELS, et al.,

)

Defendants.

)

Civil Action No. CV-75-S-666-S Civil Action No. CV-74-S-17-S Civil Action No. CV-74-S-12-S

ORDER

This action is before the court on the following motions: (1) the motion of the

City of Birmingham, Alabama (“City”), to terminate its 1981 Consent Decree, as

amended by the 1995 Modification Order, and to dismiss the City as a party to all

actions;1 and, (2) the Wilks Class’s cross-motion seeking to modify the City’s 1981 Consent Decree and 1995 Modification Order.2 In accordance with the memorandum

opinion entered contemporaneously herewith, the City’s motion to terminate its

1Doc. no. 1113. 2Doc. no. 1138.

decree is GRANTED in part and DENIED in part. Judicial supervision is retained for the limited purpose of obtaining the City’s compliance with paragraph 8 of the 1995 Modification Order for the Fire Apparatus Operator classification. The Wilks Class’s motion to modify the City’s decree is DENIED.
DONE this 12th day of July, 2005. ______________________________ United States District Judge
2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

FILED
2004 Dec-03 PM 01:34 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES OF AMERICA, Plaintiffs,
v.
JEFFERSON COUNTY, et al., Defendants.

)

)

)

)

)

CIVIL ACTION NO.

)

CV -75-S-0666-S

)

)

)

)

JOINT STIPULATION REGARDING CITY SELECTIONS IN SEVEN JOB CLASSIFICATIONS
The City of Birmingham ("the City"), the United States, the Martin Plaintiffs together with the Bryant Intervenors (the "Martin-Bryant Plaintiffs"), and the Wilks Class have reviewed the City's appointments to the following seven job classifications: Engineering Aide, Firefighter (post-JTS procedure), Fire Apparatus Operator, Fire Captain, Fire Battalion Chief, Gardener, and Heavy Equipment Operator. For purposes of the City's pending motion to terminate the City Decree and the Wilks Class' cross-motion to extend portions of the City Decree, the parties stipulate to the City's selections as reflected in the attached Exhibits 1-9. The parties have agreed to the applicant pools and numbers of selections for five of the seven classifications (Engineering Aide, Firefighter (post-JTS procedure), Fire Apparatus Operator, Fire Captain, and Heavy Equipment Operator). (Exhibits 1, 2, 3, 6, and 9). The parties agreed on the numbers of selections but could not reach agreement regarding the applicant pools for two classifications (Gardener and Fire Battalion Chief) and have stipulated to two alternatives, depending on resolution of the issue of the inclusion of certain candidates in the applicant pools. Below is a brief explanation of the disagreements for these two classifications.

Fire Battalion Chief. The December 6, 2002 and December 20, 2002 certifications (which were used in conjunction as one selection occasion) contained the names of two candidates who were not in the BFRS rank of Fire Captain. The data for Fire Battalion Chief has been submitted with two alternatives. The United States and the Martin/Bryant parties join the City's proposed Fire Battalion Chief stipulation, alternative one. (Exhibit 4). Fire Battalion Chief alternative one excludes two non-BFRS Fire Captain candidates from the applicant pool, because it is the City's practice to restrict promotion in the uniformed BFRS positions to BFRS employees. The Wilks Class advocates the use of Fire Battalion Chief stipulation alternative two. (Exhibit 5). The Wilks Class contends that all candidates who appear on a certificate of eligibles, including these two non-BFRS candidates, who do not self-select out of the selection process, are eligible for selection and are therefore part of the applicant pool.
Gardener. 1 The April 5, 2002 and May 3, 2002 certifications (which were used in conjunction as one selection occasion) included the names of two candidates the City proposed to exclude from the applicant pool. The 5/3/02 certification has a note that one of the applicants was already a Gardener. The attached explanation states that this candidate was not interviewed because the Directors of Park & Recreation and Street & Sanitation had agreed that there would be no transfers of Gardeners allowed from the Botanical Gardens to Horticulture & Urban Forestry at that time. The 4/5/02 certification has a note that the other candidate was already a Gardener. The attached explanation also said that this candidate was not interviewed because of prior knowledge of substance abuse at a previous employer. The parties could not reach
I The City had proposed the exclusion of another Gardener candidate on the grounds that he was a former employee who was not eligible for rehire. The Martin/Bryant parties agree with this position. However, given the extremely limited affect the inclusion of this candidate was likely to have on the analysis of the Gardener selections, the City agreed to include the candidate for the limited purposes of this stipulation to the Gardener applicant pool.
2

agreement on the treatment of these candidates. The City, along with the United States and the Martin/Bryant parties, propose Gardener stipulation alternative one, which excludes these candidates. (Exhibit 7). The Wilks Class proposes Gardener stipulation alternative two, which includes these two candidates. (Exhibit 8).

OF COUNSEL: U.S. Dept. of Justice Employment Litigation Section Civil Rights Division 601 D. Street N.W., Room 4928 Washington, DC 20004 Phone: (202) 514-3852
OF COUNSEL: Cravath, Swaine & Moore Worldwide Plaza, 825 Eighth Avenue New York, New York 10019-7415 Phone: 212-474-1000

Jay D. Adelstein Attorneys for the United States
__AI. ,&:M ~d
fr Rowan D. Wilson
Mary Beth Vrabel Attorneys for Plaintiffs John W. Martin, eta!.,
and Intervenors Gwendolyn Bryant, et a!.

OF COUNSEL: Fitzpatrick, Cooper & Clark Sixth Floor, Farley Building 1929 Third Avenue North Birmingham, Alabama 35203 Phone: 205-

ond P. Fitzpatrick Michael Cooper Gary L. Brown Attorneys for Wilks Class
3

OF COUNSEL: BRADLEY ARANT ROSE & WHITE LLP One Federal Place 1819 5th Avenue North Birmingham, Alabama 35203 (205) 521-8000
CERTIFICATE OF SERVICE I hereby certify that I have served the foregoing on:
John G. Veres, III Personnel & Organizational Consultation 516 County Downs Road Montgomery, Alabama 36109 Aaron Dettling, Esquire Balch & Bingham LLP P.O. Box 306 Birmingham, Alabama 35201-0306 Charlie Waldrep, Esquire Tammy Woolley, Esquire Emond, Vines, Gorham, & Waldrep, P.C. 2101 6'h Avenue North, Suite 700 Birmingham, Alabama 35203-2761 Charles C. Wagner, Esquire 280 Jefferson County Courthouse 716 Richard Arrington Jr., Blvd. N. Birmingham, Alabama 35263 via email or facsimile on this 2"d day of December, 2004.
4

STIPULATION

City ofBinningham Engineering Aide Selection Procedure Register 2000001XX3411

Certification Date 2/20/2001
5/04/2001
8/09/2002 12/27/2002

Applicants

White Black

4

2

5

4

3

8

4

6

Selections

White Black

3

1

2

0

0

1

1 0

Unique Person Analysis by Register

Engineering Aide Register 2000001XX3411

Applicants Total 18

Applicants White Black
9 9

Selections Total 8

Selections White Black 6 2

11/24/2004

Joint Stipulation Exhibit 1

STIPULATION

City of Birmingham Fire Fighter Selection Procedure Since 2001 Register 99SYB5021 Register 2003001XX5031

Certification Date 2/15/2002

Applicants White Black 20 40

8/22/2002

9

18

9/30/2003 and 11119/2003

131 89

Unique Person Analysis by Register

Fire Fighter Register 99SYB5021

Applicants White Black 26 48

Fire Fighter Register 200300 1XX5031

Applicants White Black 131 89

Selections White Black 13 17

7

12

37 19

Selections White Black 20 29
Selections White Black 37 19

11/24/2004

Joint Stipulation Exhibit 2

STIPULATION

City ofBinningham Fire Apparatus Operator Selection Procedure Register 2000002XX5026

Certification Date 8/11/2000

Applicants White Black 13 2

Selections

White Black

5

I

5/03/2001

19 10

9

8

11/08/2001

13 5

7

3

11/26/2002

9

9

4

6

6/06/2003

5

11

I

6

9/10/2003 and 2/02/2004

7

8

2

3

2/27/2004

6

8

I

4

11124/2004

Unigue Person Analysis by Register

Fire Apparatus Operator Register 2000002XX5026

Applicants Total 73

Applicants White Black 38 35

Selections Total 60

Selections White Black 29 31

Joint Stipulation Exhibit 3

STIPULATION

11124/2004

City of Birmingham Battalion Chief Selection Procedure Register 2000002XX5035 (Aug. 2000 through Dec. 2002) Register 2004002XX5035 (August 2004)

Alternative One: Two Certified Candidates Who Were Not Employed by the Birmingham Fire and Rescue Service and Not Processed Not Included in Applicant Pool

Certification Date 8/23/2000

Applicants

White Black

4

5

Selections

White Black

0

1

3/09/2001

5

5

1

0

12/06/2002 and 12/20/2002

4

4

1

2

8/12/2004

7

6

3

I

Unique Person Analysis by Register

Battalion Chief Register 2000002XX5035

Applicants Total 11

Applicants White Black
5 6

Selections Total 5

Selections

White Black

2

3

Battalion Chief Register 2004002XX5035

Applicants Total 13

Applicants

White Black

7

6

Selections Total 4

Selections

White Black

3

1

Note: Persons on certification lists who withdrew, declined consideration or appointment, did not

show for any part of the selection process, and two candidates on 12/06/2002 and 12/20/02

certifications who were not interviewed by the City because they were not BFRS employees are

not included in applicant pool. Unique person analysis counts each individual once for each

register no matter how many times that individual was certified. Candidates are included in the

unique person analysis if they were eligible applicants for any certification for that register. The

two non BFRS employees were not included in the unique person analysis.

Joint Stipulation

Exhibit 4

STIPULATION
City of Binningharn Battalion Chief Selection Procedure Register 2000002:XX5035 (Aug. 2000 through Dec. 2002) Register 2004002:XX5035 (August 2004)

11/24/2004

Alternative Two: Two Certified Candidates Who Were Not Employed by the Binningharn Fire and Rescue Service and Not Processed Are Included in Applicant Pool

Certification Date 8/23/2000

Applicants

White Black

4

5

Selections

White Black

0

I

3/09/2001

5

5

I

0

12/06/2002 and 12/20/2002

6

4

I

2

8/12/2004

7

6

3

I

Unique Person Analysis by Register

Battalion Chief Register 2000002:XX503 5

Applicants Total 13

Applicants

White Black

7

6

Selections Total 5

Selections

White Black

2

3

Battalion Chief Register 2004002:XX503 5

Applicants Total 13

Applicants

White Black

7

6

Selections Total 4

Selections

White Black

3

I

Note: Persons on certification lists who withdrew, declined consideration or appointment, did not show for any part of the selection process. In this analysis, the two candidates on the 12/06/2002 and 12/20/02 certifications who were not interviewed by the City because they were not BFRS employees, both of whom were white males, are included in applicant pool for both the certification analysis and the unique person analysis. Unique Person analysis counts each individual once for each register no matter how many times that individual was certified. Candidates are included in the unique person analysis if they were eligible applicants for any certification for that register.
Joint Stipulation Exhibit 5

City of Birmingham Fire Captain Selection Procedure Register 2000002XX5034 Nov. 2000 through April2003

Certification Date 11113/2000

Applicants White Black 11 5

7/1112001

9

2

2/13/2002

6

3

7/09/2002 and 8/23/2002

6

6

2/18/2003

4

7

4/04/2003

1 5

STIPULATION

Selections White Black 3 4

3

0

1

1

2

1

2

1

0

1

Unique Person Analysis by Register

Fire Captain Register 2000002XX5034

Applicants Total 27

Applicants White Black 14 13

Selections Total 19

Selections White Black 11 8

11124/2004

Note: Persons on certification lists who withdrew, declined consideration or appointment, or did not show for any pmi of the selection process are not included in applicant pool. Unique person analysis counts each individual once for each register no matter how many times that individual was certified. Candidates are included in the unique person analysis if they were eligible applicants for any certification for that register

Joint Stipulation Exhibit 6

STIPULATION
City of Bimringham Gardener Selection Procedure Register 2000041XX8282 (Oct. 2000 through Feb. 2001) Register 2001001XX8282 (April2002 through May 2002) Register 200300 1XX8282 (April2003 through Sept. 2003)

11124/2004

Alternative One: Two Certified Candidates Who Were Employed As Gardeners In Another City Department Are Not Included in the Applicant Pool

Certification Date 10/25/2000

Applicants

White Black

4

1

Selections

White Black

1

0

1/12/2001

8

2

0

1

2/02/2001

4

1

2

0

4/05/2002 and 5/06/2002

0

2

0

1

4/22/2003 and 9/19/2003

7

6

1

3

Unique Person Analysis by Register

Gardener Register 2000041XX8282

Applicants Total 11

Applicants White Black 9 2

Selections Total 4

Selections

White Black

3

1

Gardener Register 2001001XX8282

Applicants Total 2

Applicants White Black 0 2

Selections Total 1

Selections

White Black

0

1

Gardener Register 2003001:XX8282

Applicants Total 13

Applicants White Black
7 6

Selections Total 4

Selections White Black 1 3

Joint Stipulation Exhibit 7

Note: Persons on certification lists who withdrew, declined consideration or appointment, did not show for any part of the selection process, and two candidates on 4/05/2002 and
5/06/2002 certifications who were not interviewed by the City because they were gardeners in another City Department, were not included in the applicant pool. According to the City, in 2002, the Department heads had decided not to allow gardener transfers from Botanical Gardens to Horticulture and Urban Forestry. Unique person analysis counts each individual once for each register no matter how many times that individual was certified. Candidates are included in the unique person analysis if they were eligible applicants for any certification for that register.

STIPULATION
City of Birmingham Gardener Selection Procedure Register 2000041XX8282 (Oct. 2000 through Feb. 2001) Register 2001001XX8282 (April2002 through May 2002) Register 2003001XX8282 (April2003 through Sept. 2003)

11124/2004

Alternative Two: Two Certified Candidates Who Were Employed As Gardeners In Another City Department Are Included in the Applicant Pool

Certification Date 10/25/2000

Applicants

White Black

4

1

Selections White Black 1 0

1112/2001

8

2

0

1

2/02/2001

4

1

2

0

4/05/2002 and 5/06/2002

2

2

0

1

4/22/2003 and 9/19/2003

7

6

1 3

Unique Person Analysis by Register

Gardener Register 200004!XX8282

Applicants Total 11

Applicants White Black 9 2

Selections Total 4

Selections

White Black

3

1

Gardener Register 2001001XX8282

Applicants Total 4

Applicants White Black 2 2

Selections Total
1

Selections

White Black

0

1

Gardener Register 2003001XX8282

Applicants Total 13

Applicants

White Black

7

6

Selections Total 4

Selections

White Black

I

3

Joint Stipulation Exhibit 8

Note: Persons on certification lists who withdrew, declined consideration or appointment, did not show for any part of the selection process, and two candidates on 4/05/2002 and 5/06/2002 certifications who were not interviewed by the City because they were gardeners in another City Department, were not included in the applicant pool. According to the City, in 2002, the Department heads had decided not to allow gardener transfers from Botanical Gardens to Horticulture and Urban Forestry. Unique person analysis counts each individual once for each register no matter how many times that individual was certified. Candidates are included in the unique person analysis if they were eligible applicants for any certification for that register.

City of Birmingham Heavy Equipment Operator Register 2000012XX8032

STIPULATION

11124/2004

Certification Date 8/3112000

Applicants Male Female 24 1

Selections Male Female 12 1

11113/2000

18 1

4

1

12/27/2000

10 1

2

0

5/0112002

19 2

6

1

8/09/2002

12 1

2

0

1124/2003

9

1

2

0

4/04/2003

8

2

1

0

Unigue Person Analysis by Register

Heavy Equipment Operator Register 2000012XX8032

Applicants Total 54

Applicants Male Female 48 6

Selections Total 32

Selections Male Female 29 3

Joint Stipulation Exhibit 9

 
 FILED
2007 May-24 PM 03:25 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

UNITED STATES OF AMERICA,

)

Plaintiff,

)

)

vs.

)

)

JEFFERSON COUNTY, ALABAMA, et al., )

Defendants.

)

—————————————————————)

JOHN W. MARTIN, et al.,

)

Plaintiffs,

)

)

vs.

)

)

CITY OF BIRMINGHAM, ALABAMA, et al., )

Defendants.

)

—————————————————————)

ENSLEY BRANCH OF THE N.A.A.C.P., et al., )

et al.,

)

Plaintiffs,

)

vs.

)

)

GEORGE SEIBELS, et al.,

)

Defendants

)

Civil Action No. CV-75-S-666-S Civil Action No. CV-74-S-17-S Civil Action No. CV-74-S-12-S

ORDER

At the conclusion of the hearing conducted on May 23, 2007, Jefferson County

Probate Judge Alan King, acting in his capacity as Chairman of the Citizens

Supervisory Commission, acknowledged that the attempted appointment of Ms. L.

Corlene Williams to the position of Chair of the Personnel Board of Jefferson County

(“Board”) is void, and affirmed that he will promptly administer an oath of office to

Mr. Alfred F. Smith, Jr., who was appointed by this court to the position of Board

Chair on April 25, 2007.1 Judge King is directed to promptly take all steps necessary to effect his affirmations. In view of the foregoing, as well as consideration of the record of proceedings conducted on May 23rd, any further proceedings pursuant to the order entered on May 18, 20072 are unnecessary. Finally, the motion to reconsider filed by Judge King,3 and the motion to dismiss filed by Reverend Steve Small,4 are DENIED as moot.
DONE and ORDERED this 24th day of May, 2007. ______________________________ United States District Judge
1See doc. no. 1381 (excerpts of the transcript from the May 23, 2007 hearing), at 3. 2Doc. no. 1361. 3Doc. no. 1377. 4Doc. no. 1376.
2

 
 FILED
2004 Dec-09 AM 09:37 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

UNITED STATES OF AMERICA,

)

Plaintiff,

)

)

vs.

)

)

JEFFERSON COUNTY, ALABAMA, et al., )

Defendants.

)

—————————————————————)

JOHN W. MARTIN, et al.,

)

Plaintiffs,

)

)

vs.

)

)

CITY OF BIRMINGHAM, ALABAMA, et al., )

Defendants.

)

—————————————————————)

ENSLEY BRANCH OF THE N.A.A.C.P., et al., )

Plaintiffs,

)

vs.

)

)

GEORGE SEIBELS, et al.,

)

Defendants.

)

Civil Action No. CV-75-S-666-S Civil Action No. CV-74-S-17-S Civil Action No. CV-74-S-12-S

ORDER EXTENDING CITY OF BIRMINGHAM’S 1981 CONSENT DECREE AND 1995 MODIFICATION ORDER

It is hereby ordered that the City of Birmingham’s 1981 Consent Decree and the

December 19, 1995 Modification Order, as extended by the court’s orders of December 18,

2000, and June 19, 2002, are further extended pending disposition of the City’s Motion to

Terminate its Consent Decree. Otherwise, the decrees and orders remain in full force and

effect.

DONE this 9th day of December, 2004.

______________________________ United States District Judge

 
 FILED
2007 Aug-20 PM 02:05 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

UNITED STATES OF AMERICA,

)

Plaintiff,

)

)

vs.

)

)

JEFFERSON COUNTY, ALABAMA, et al., )

Defendants.

)

—————————————————————)

JOHN W. MARTIN, et al.,

)

Plaintiffs,

)

)

vs.

)

)

CITY OF BIRMINGHAM, ALABAMA, et al., )

Defendants.

)

—————————————————————)

ENSLEY BRANCH OF THE N.A.A.C.P., et al., )

et al.,

)

Plaintiffs,

)

vs.

)

)

GEORGE SEIBELS, et al.,

)

Defendants

)

Civil Action No. CV-75-S-666-S Civil Action No. CV-74-S-17-S Civil Action No. CV-74-S-12-S

MEMORANDUM OPINION AND ORDER

This opinion addresses the motion of the City of Birmingham, Alabama (“the

City”), asking the court to terminate the remaining portion of the City’s consent
decree, and to dismiss the City as a party to this litigation.1
1 See doc. no. 1332. The City’s “consent decree” actually consists of three documents: i.e., (i) the original decree signed by the City, the United States, the Martin class of plaintiffs, and the Ensley Branch of the N.A.A.C.P. in May of 1981, but only conditionally approved by U.S. District Judge Sam C. Pointer, Jr. on June 8, 1981, subject to being withdrawn following notice and a fairness hearing (“1981 Consent Decree”); (ii) a modification order dated Dec. 19, 1995, but itself later modified on Apr. 26, 1996 (“1995 Modification Order”); and (iii) a modification order entered by the present judicial officer on Dec. 18, 2000 (“2000 Modification Order”). Nevertheless, for ease of reference this court — like the parties — will refer to the 1981 Consent Decree, the 1995 Modification Order, and the 2000 Modification Order collectively, and simply, as “the City’s consent decree.”

The present motion is but one of many chapters in the long history of these
controversies. The record is voluminous, and spans more than three decades. This
is not the place to recount that sad story.2 Nevertheless, some back-tracking is
2 Readers interested in doing so can trace the broad outlines of these controversies in the following list of published opinions (listed in chronological, not Bluebook, order): Ensley Branch of the N.A.A.C.P. v. Seibels, 14 Fair Empl. Prac. Cas. (BNA) 670, 1977 WL 806 (N.D. Ala. 1977); Ensley Branch of the N.A.A.C.P. v. Seibels, 616 F.2d 812 (5th Cir. 1980) (“Ensley I”); United States v. Jefferson County, 28 Fair Empl. Prac. Cas. (BNA) 1834, 1981 WL 27018 (N.D. Ala. 1981); United States v. Jefferson County, 720 F.2d 1511 (11th Cir. 1983); In re: Birmingham Reverse Discrimination Employment Litigation, 37 Fair Empl. Prac. Cas. (BNA) 1, 1985 WL 1415 (N.D. Ala. 1985); In re: Birmingham Reverse Discrimination Employment Litigation, 39 Fair Empl. Prac. Cas. (BNA) 1431, 1985 WL 56690 (N.D. Ala. 1985); In re: Birmingham Reverse Discrimination Employment Litigation, 833 F.2d 1492 (11th Cir. 1987), aff’d sub nom. Martin v. Wilks, 490 U.S. 755 (1989); Bennett v. Arrington, 806 F. Supp. 926 (N.D. Ala. 1992); In re: Birmingham Reverse Discrimination Employment Litigation, 20 F.3d 1525 (11th Cir. 1994); Ensley Branch of the N.A.A.C.P. v. Seibels, 31 F.3d 1548 (11th Cir. 1994) (“Ensley II”); Birmingham Firefighters Ass’n 117 v. Jefferson County, 280 F.3d 1289 (11th Cir. 2002); Birmingham Firefighters Ass’n 117 v. Jefferson County, 290 F.3d 1250 (11th Cir. 2002).
As this court noted in its July 12, 2005 memorandum opinion, addressing the City’s initial motion to terminate its consent decree,
The extraordinary longevity of these controversies is due to many variables, including such things as: an enduring local contempt for, and defiance of, national equal employment opportunity requirements, especially when such obligations are mandated by federal court orders (attitudes that mirror, but – in the case of Birmingham – exaggerate historic, regional prejudices against full equality for women and any persons not descended from white, Anglo-Saxon, Scotch, or Irish Protestant ancestors); the burning sands of local politics, which have shifted in consonance with the tides of partisan politics on the national and state levels; transformations in federal statutory and decisional law; and, changes in the demographics of the City’s workforce. With regard to the last variable, the City’s workforce shortly after the 1981 consent decree consisted of 69% white and 31% African American (“black”) employees. Those persons could be further subdivided on the basis of gender into 79.5% male and 20.5% female employees. The gender composition of the City’s current workforce has not changed radically since then: i.e., it presently is comprised of 72% male and 28% female employees. The racial composition of the current workforce, on the other hand, is dramatically different: i.e., 66% of the employees are black, and 34% are white; virtually a complete
2

required in order to place the present motion in its proper perspective.
I. RECENT PROCEDURAL HISTORY
The City’s initial motion to terminate its consent decree was filed on July 6,
2004.3 One year later, on July 12, 2005, and following numerous court proceedings
and an extensive review of evidentiary submissions, this court concluded that the City
had, with the sole exception of one job classification,
substantially achieved the basic purposes of paragraph 5 of its 1995 Modification Order[4] through its compliance with the provisions of the
reversal over the course of twenty-two years. See, e.g., doc. no. 1115 (City’s Brief in Support of Motion to Terminate Decree) at 26-27.
A look at the Police and Fire Departments shows an even more dramatic change. In the first quarter of 1982, none of the Police Captains or Lieutenants were African American or female[,] and of the 138 Police Sergeants, 10 were African American and 6 were female. (At that time, 18.7% of the Police Officers were African American and 11.9% were female.) In 2004, of Birmingham’s 29 Police Lieutenants, 14 are African American and 4 are female, while 7 of the 11 Police Captains are African American and 4 are female. The Fire Department, which had no African American Fire Battalion Chiefs, Captains[,] or Lieutenants in March 1982, currently has African American officers occupying nearly 50% of each of those positions.
Doc. no. 1227 (July 12, 2005 memorandum opinion), at 2 n.2 (quoting doc. no. 1115 (City’s Brief in Support of Motion to Terminate Decree), at 28 (citations omitted)) (emphasis in original).
3 See doc. no. 1113. 4 Paragraph number 5 of the City’s 1995 Modification Order states the long-term objectives of the City’s consent decree, and it reads as follows:
The long term objective of the parties through the City Decree and this Order is to ensure [i] that any and all unlawful barriers to employment, assignment, and promotion that have existed for blacks and women are removed, [ii] that any present effects of past employment discrimination are fully remedied, and [iii] that equal
3

1981 Consent Decree and the 1995 Modification Order detailed above. The City has shown that it has removed unlawful employment barriers for blacks and women, that it has remedied past employment discrimination, and that it has ensured — with the exception of the Fire Apparatus Operator classification discussed above — that its employment selection procedures do not result in an unjustifiable, discriminatory impact on the basis of race or sex. Moreover, with the exception discussed above, the court is satisfied that there has been satisfactory compliance with the City’s remedial orders, and that the City has demonstrated its “good-faith commitment to the whole of the court’s decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance.” United States v. City of Montgomery, 948 F. Supp. 1553, 1563 (M.D. Ala. 1996).
Doc. no. 1227 (memorandum opinion accompanying July 12, 2005 order), at 48-49
(footnote added).
In other words, the City’s motion to terminate was granted with respect to all
job classifications except one — that of “Fire Apparatus Operator” — and judicial
supervision of the City was retained only
for the limited purpose of obtaining the City’s compliance with paragraph 8 of the 1995 Modification Order[5] for the Fire Apparatus
employment opportunities with the City are available to all persons, regardless of race or sex, as required by Title VII of the Civil Rights Act of 1964, as amended.
Doc. no. 598 (Order Modifying City of Birmingham Consent Decree) ¶ 5, at 2 (bracketed alterations added).
5 Paragraph number 8 of the City’s 1995 Modification Order reads as follows:
It shall be the City’s responsibility to ensure that each selection procedure required or used by the City shall either: (1) have no adverse impact on the basis of race or sex as defined by the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607 et seq. (1994), (hereinafter “the Uniform Guidelines”); or (2) be job
4

Operator classification, until such time as the City either shoulders the burdens of production and persuasion necessary to validate (i.e., demonstrate the job-relatedness of) its supplemental application, or revises the selection procedure in a manner that, all parties agree, complies with federal law.
Doc. no. 1227 (memorandum opinion accompanying July 12, 2005 order), at 48
(footnote added). Cf. Freeman v. Pitts, 503 U.S. 467, 471 (1992) (holding, in the
context of a school desegregation class action, that a district court is permitted to
withdraw judicial supervision with respect to discrete categories of institutional
reform measures when a governmental entity demonstrates compliance with a court-
ordered plan). See also, e.g., United States v. City of Miami, 2 F.3d 1497, 1506 (11th
Cir. 1993) (holding that “the principles applicable to requests to modify or terminate
related for the job classification(s) in question and consistent with business necessity, in accordance with Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Uniform Guidelines and other applicable Federal law. If a selection procedure or combination of selection procedures is used by the City to rank candidates, the parties and the Court will consider the candidates’ relative ranking and the actual effect of that ranking in determining whether the procedure has adverse impact for that use. In accordance with the Uniform Guidelines, as part of its consideration of the job relatedness and validity of any selection procedure, the City shall conduct a reasonable investigation of suitable alternative selection procedures and explore suitable alternative methods of using the selection procedures which have less adverse impact. Whenever the City or any party identifies a race and gender-neutral selection procedure that has less adverse impact than a selection procedure required by the City and that alternative procedure is also agreed by the parties to this Order to be job related for the classification in question and consistent with business necessity in accordance with applicable law, such alternative selection procedure shall be used by the City, absent good cause shown.
Doc. no. 598 (Order Modifying City of Birmingham Consent Decree) ¶ 8 (footnotes omitted) (underlines in original).
5

consent decrees in the institutional reform arenas of prisons and schools are also applicable to such requests in employment discrimination class actions”).
In accordance with those rulings, this court subsequently directed the City: (i) to revise its selection procedure for the Fire Apparatus Operator classification; (ii) await a certification of eligible applicants from the Personnel Board of Jefferson County (“Personnel Board”); (iii) administer the revised selection procedure; and (iv) deliver the results of the administration of the revised procedure and a validation study to the parties and Special Master for their consideration and objections, if any.6
The City complied with the court’s deadlines, and delivered the results of its administration of a revised selection procedure and a validity study to the parties on September 20, 2006. The motion now before this court was filed on February 2, 2007.
Neither the United States nor the Martin plaintiffs and Bryant intervenors (“Martin-Bryant parties”) object to the present motion to terminate the remaining aspect of the City’s consent decree, and to dismiss the City as a party to any of these controversies.7 The Wilks Class opposes the motion, however; but not on the basis
6 See doc. nos. 1263 (scheduling order dated Sept. 26, 2005) and 1285 (scheduling order dated Feb. 21, 2006).
7 See doc. no. 1348 (Response of the United States to the City’s Motion to Terminate); doc. no. 1351 (Response of the Martin-Bryant parties to the City’s Motion to Terminate). See also doc. no. 1332 (City’s Motion to Terminate the Remainder of its Consent Decree), at Exhibits A (“[T]he United States does not object to the City’s proposed selection procedures for the FAO position.”)
6

that the City has failed to fulfill the requirements of paragraph 5 of the 1995
Modification Order with regard to the Fire Apparatus Operator job classification.8
Instead, the Wilks Class argues that “the City has failed to meet its burden under
Freeman [supra] to demonstrate that retention of judicial control is unnecessary and
impracticable to achieve compliance, and that it has demonstrated its good faith
commitment to the whole of the Court’s orders and to the Constitutional provisions
at issue in this case.” Doc. no. 1350 (“Wilks Class’ Opposition”), at 9.9
II. DISCUSSION
“A court faced with a motion to terminate . . . a consent decree must begin by
determining the basic purpose of the decree.” City of Miami, 2 F.3d at 1505.
The first purpose stated in the City’s consent decree was the elimination of
and B (“The Martin/Bryant parties do not object to the City’s use of the Fire Apparatus Operator (‘FAO’) selection procedure developed by the Yusko Group.”).
8 See supra note 4 for the text of paragraph 5. 9 But see doc. no. 1331 (Wilks Class’s Response to the City’s Validity Report), at 3 (“[T]he Wilks Class will not object to allowing those appointments to move forward and will not make further efforts to improve the quality of the FAO procedure.”). The Wilks Class also reiterates the objections it lodged in response to the City’s first motion to terminate its consent decree. See doc. no. 1350, at 9 (“The Wilks Class continues to assert all of its objections to termination of the City Decree. In our view, the City of Birmingham has not met its burden of demonstrating that its selection procedures are lawful race-neutral devices. The Court incorrectly placed the burden on the Wilks Class to demonstrate adverse impact to a statistical certainty. All of the objections set forth in our previous filings objecting to termination of the City Decree or in other respects objecting to the adequacy of the City’s compliance efforts are reasserted and not waived . . . As stated in numerous previous filings, the City of Birmingham has done very little to meet the mandate of Ensley Branch v. Seibels, 31 F.3d 1548 (11th Cir. 1994).”). Those issues already have been decided in the court’s July 12, 2005 Memorandum Opinion and Order, and the court will not revisit them here.
7

unlawful barriers to employment, assignment, and promotion for women and persons
with African ancestors. A second purpose was to redress the consequences of past
discriminatory practices. These purposes were encapsulated in the following
paragraphs of the 1995 order modifying the City’s 1981 consent decree:10
5. The long term objective of the parties through the City Decree and this Order is to ensure that any and all unlawful barriers to employment, assignment, and promotion that have existed for blacks and women are removed, that any present effects of past employment discrimination are fully remedied, and that equal employment opportunities with the City are available to all persons, regardless of race or sex, as required by Title VII of the Civil Rights Act of 1964, as amended.
* * * *
7. The City shall use its best efforts to develop and implement lawful non-discriminatory hiring and promotion procedures within the next four years. Applicants certified to the City [by the Personnel Board of Jefferson County] will be considered without regard to their race or sex.
8. It shall be the City’s responsibility to ensure that each selection procedure required or used by the City shall either: (1) have no adverse impact on the basis of race or sex as defined by the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607 et seq. (1994), (hereinafter “the Uniform Guidelines”); or (2) be job related for the job classification(s) in question and consistent with business necessity, in accordance with Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Uniform Guidelines and other applicable Federal law. If a selection procedure or combination of selection
10 See supra note 1 for a summary of the linkages between the City’s 1981 Consent Decree and its 1995 Modification Order.
8

procedures is used by the City to rank candidates, the parties and the Court will consider the candidates’ relative ranking and the actual effect of that ranking in determining whether the procedure has adverse impact for that use. In accordance with the Uniform Guidelines, as part of its consideration of the job relatedness and validity of any selection procedure, the City shall conduct a reasonable investigation of suitable alternative selection procedures and explore suitable alternative methods of using the selection procedures which have less adverse impact. Whenever the City or any party identifies a race and gender-neutral selection procedure that has less adverse impact than a selection procedure required by the City and that alternative procedure is also agreed by the parties to this Order to be job related for the classification in question and consistent with business necessity in accordance with applicable law, such alternative selection procedure shall be used by the City, absent good cause shown.
Doc. no. 598 (Order Modifying City of Birmingham Consent Decree), at 2-3
(footnotes omitted) (underlining in original).
It must not be overlooked, however, that there is yet a third purpose implicit
in the foregoing provisions. That is, when the City agreed that it would “ensure that
any and all unlawful barriers to employment, assignment, and promotion that have
existed for blacks and women are removed, . . . and that equal employment
opportunities with the City are available to all persons, regardless of race or sex,” the
City implicitly promised that all remedial measures instituted pursuant to the terms
of its consent decree, and for the purpose of complying with federal constitutional and
statutory requirements, would carry forward into the future, beyond the date of
terminating judicial supervision. In the opinion of this court, given the extraordinary
9

longevity of this litigation, that is the most important purpose. Indeed, it is not sufficient for the City to demonstrate only that “the purposes
of the litigation as incorporated in the decree . . . have . . . been fully achieved.” Board of Education of Oklahoma Public School v. Dowell, 498 U.S. 237, 247 (1991) (quoting United States v. United Shoe Machinery Corp., 391 U.S. 244, 248 (1968)). In addition, this court must find that it is “unlikely that [the City] would return to its former ways” following the termination of judicial supervision. Id.; see also City of Miami, 2 F.3d at 1505 (same).
Stated differently, this court must be satisfied that the Constitutional and statutory violations that gave rise to the actions filed against the City — now more than thirty-three years ago — “will not be promptly repeated once the decree is lifted.” Wyatt v. Rogers, 985 F. Supp. 1356, 1384 (M.D. Ala. 1997). In view of the facts discussed below, this court does not possess the level of confidence required to make such a finding at this time.
On some date that is not disclosed in the record, State Senator J. T. “Jabo” Waggoner, Minority Leader of the Alabama Senate, asked the Attorney General of the State of Alabama to answer the following question:
Does a municipality whose corporate limits were formerly lying wholly within Jefferson County, but whose corporate limits are later extended beyond Jefferson County, cease to be subject to the
10

jurisdictional authority of the Personnel Board of Jefferson County and to the county’s civil service system upon such municipality’s intercounty extension of its corporate limits?
Doc. no. 1350-2 (Ex. A to the Wilks Class’ brief in opposition to the City’s motion
to terminate), at 1. That question is highly pertinent to the City’s motion to terminate
its consent decree because, on some date after that decree was approved, the City’s
corporate limits were extended beyond the borders of Jefferson County.
The Attorney General answered Senator Waggoner’s question in the negative
on January 30, 2007, saying “[t]he Civil Service System of Jefferson County does not
govern employees of a municipality whose corporate limits extend beyond Jefferson
County.” Id. at 3. That advisory opinion was based upon the following language
contained in a statute enacted during the 1977 Regular Session of the Alabama
Legislature, and amending section 2 of the enabling act that gave rise to the civil
service system at issue in this litigation:11
11 The civil service system for Jefferson County, Alabama was created by an Alabama statute originally enacted in 1935, but reenacted in 1945. See Act No. 248, 1945 Acts of Alabama, at 376400; Act No. 284, 1935 Acts of Alabama, at 691-713; see also 1940 Code of Alabama, Appendix § 645 et seq. (Recomp. 1958). Both the original 1935 Act and 1945 re-enactment are so-called “general acts of local application,” meaning that the legislation applied only to Alabama counties and municipalities that satisfied population requirements specified in the statute. As a result of the population figures of 200,000 residents specified in the 1935 Act, and 400,000 residents in the 1945 Act, the law has applied since its inception only to Jefferson County, the largest county in Alabama, and other municipalities and governmental entities that meet the requisite population and corporate limit criteria specified in the enabling act. See Act No. 248, 1945 Acts of Alabama § 2, at 377. Various sections of the enabling legislation have been amended many times during the intervening years. In any event, the linchpin binding all components of the civil service system is the Personnel Board of Jefferson County.
11

Personnel Board; extent of its authority defined. In and for each separate county of the State of Alabama which has a population of four hundred thousand or more inhabitants according to the last or any future federal census, there shall be a personnel board for the government and control, by rules and regulations and practices hereinafter set out or authorized, of all employees and appointees holding positions in the classified service of such counties, the municipalities therein having a population of five thousand or more inhabitants, according to the last federal census, whose corporate limits lie wholly within the county, the police officers who are employed by any municipality therein having a population of 2500 or more inhabitants, according to the last federal census, whose corporate limits lie wholly within the county, and the County Board of Health, and such personnel board is vested with such powers, authority and jurisdiction . . . .
Act of May 23, 1977, No. 782, § 2, 1977 Ala. Acts 1347-48 (1977) (emphasis
supplied).
Subsequently, and on yet another date not disclosed in the record, State Senator
Waggoner submitted two additional questions to the Attorney General of the State of
Alabama. The first asked:
Does a municipality (whose corporate limits were formerly lying wholly within Jefferson County, but whose corporate limits are later extended beyond Jefferson County) automatically cease to be subject to the jurisdictional authority of the Personnel Board of Jefferson County by operation of law?
Doc. no. 1350-2 (Ex. B to the Wilks Class’ brief in opposition to the City’s motion
to terminate), at 2 (emphasis in original). In an opinion bearing a “draft” date of
February 22, 2007, the Attorney General answered that question affirmatively, saying
12

that:
A municipality is automatically released from the authority of the Personnel Board of Jefferson County when it no longer meets the population and corporate limits criteria set forth in the enabling act. If employees of the municipality have rights that have vested under the Jefferson County civil service system, [however,] those rights cannot be extinguished or taken away.
Id. at 3. That opinion was based upon construction of the same statutory language
previously quoted: i.e., Act No. 782 supra.
The second question raised by Senator Waggoner, and also answered in the
Attorney General’s February 22, 2007 “draft” opinion, asked:
Does the governing body (City Council) of a municipality whose corporate limits were formerly lying wholly within Jefferson County, but whose corporate limits are later extended beyond Jefferson County, have the authority to enact ordinances or resolutions to cause that municipality to be subject to the jurisdictional authority of the Personnel Board of Jefferson County and to the county’s civil service system?
Id. at 4. The Attorney General responded affirmatively, saying that other language
contained in the same statute (Act No. 782)
specifically addresses the situation where the corporate limits of a municipality were wholly within the county, but are later extended beyond the county, and the municipality wishes to remain subject to the jurisdictional authority of the county personnel board. 1977 Ala. Acts No. 782, 1350-51 (1977). The act states, in part, as follows:
In the event the governing body of any municipality whose corporate limits lie partly within said county and partly within any other county and having a population of
13

five thousand or more inhabitants, according to the last federal census, or any succeeding federal census, shall adopt a resolution in favor of such municipality coming under the provisions of this act, and transmit or cause to be transmitted a certified copy of such resolution to the Personnel Board of such civil service system, then, sixty days after effective date of such resolution, the provisions of this Act shall apply to any such municipality having the required number of inhabitants and whose corporate boundaries lie partly within said county and partly without said county. Any municipality which adopts a resolution and comes under the provisions of this Act, as herein provided, shall thereafter remain under this Act, and may not repeal or rescind such action either by the adoption of a resolution or otherwise.
1977 Ala. Acts. No. 782, 1350-51 (1977) (emphasis added).
The language of act 782 allows a municipality whose corporate limits lie partly within one county and partly within another county to come under the authority of the Jefferson county civil service system by adopting a resolution and sending a certified copy to the Personnel board. The act makes it clear that once a municipality adopts a resolution and becomes subject to the authority of the Personnel Board, the resolution is final and cannot be rescinded by the municipality at a later date.
Id. at 4-5 (all emphasis in original).
The foregoing advisory opinions ceased to be simply interesting in an academic
sense when, on February 6, 2007, in an unrelated suit commenced by the present
Mayor of the City of Birmingham in the state court system against the elected
members of the Birmingham City Council and the Personnel Board of Jefferson
14

County,12 the Mayor served the following requests for admissions on the Personnel
Board:
1. Admit that the Jefferson County Personnel Board (“JCPB”) only has authority over cities located wholly within Jefferson County.
2. Admit that the JCPB does not have jurisdiction over municipalities not wholly located in Jefferson County.
3. Admit that once a municipality ceases to exist wholly in Jefferson County, that municipality ceases to be subject to the jurisdiction of the JCPB.
Doc. no. 1350-5 (Ex. E to the Wilks Class’ brief in opposition to the City’s motion
to terminate), at 1. These requests for admissions clearly signaled that the City
contemplated the prospect of freeing itself from the Personnel Board’s jurisdiction
following termination of the City’s consent decree and its release from federal court
supervision. Consequently, the Martin-Bryant parties propounded discovery
addressing the issue.
The Martin-Bryant parties’ requests for admissions, and the City’s responses
thereto, read as follows:
REQUEST NO. 1: Admit that, under the provisions of the Enabling Act, the
Personnel Board has jurisdiction over the classified employees of the
12 The issue in this state court action, as best this court understands it, is whether the Mayor of the City Council of Birmingham has the authority to propose and authorize pay raises for certain classes of municipal employees.
15

City.
RESPONSE: The City can neither admit nor deny Request No. 1. The Enabling
Act provides that the Personnel Board has jurisdiction over “municipalities . . . whose corporate limits lie wholly within the county”. [sic] The City’s corporate limits are not wholly within Jefferson County.
When the Personnel Board was established, the City’s corporate limits were entirely within Jefferson County. However, the City later expanded into Shelby County. The Enabling Act is silent as to whether a municipality that was originally wholly within Jefferson County but which later was not wholly within the county is subject to the Personnel Board’s jurisdiction.
Since the City expanded into Shelby County it has not taken the position that it is not subject to the Personnel Board’s jurisdiction. The City paid for and received services from the Personnel Board both before and after it had corporate limits outside of Jefferson County. The City has no plans to withdraw from the Personnel Board.
REQUEST NO. 2: Admit that the City elected to fall within the jurisdiction of the
Personnel Board, as provided in the Enabling Act.
RESPONSE: The City can neither admit nor deny Request No. 2. The Enabling
Act provides that “In the event the governing body of any municipality whose corporate limits lie partly within said county and partly within any other county . . . shall adopt a resolution in favor of such municipality coming under the provisions of this Act, and shall transmit or cause to be transmitted a certified copy to the Personnel Board . . . the provisions of this Act shall apply to any such municipality . . . whose corporate boundaries lie partly within said county and party [sic] without said county.” If a municipality delivers such a resolution, it may not repeal or rescind that action. Other than this provision, the Enabling
16

Act is silent regarding a municipality’s election to be subject to a Personnel Board.
The City has never passed a resolution or notified the Personnel Board that it was electing to be covered by the Personnel Board’s jurisdiction. The City has paid for and received services from the Personnel Board both before and after it had corporate limits outside of Jefferson County. The City intends to continue paying for and receiving the Personnel Board’s services. However, the City has never elected to be covered by the Personnel Board’s jurisdiction as provided in the Enabling Act.
REQUEST NO. 3: Admit that under existing Alabama laws, the City has no legal
right to withdraw from the Personnel Board’s jurisdiction.
RESPONSE: The City can neither admit nor deny Request No. 3. The Enabling
Act is silent on the withdrawal rights of a municipality that was formerly wholly within Jefferson County and subject to the Act but subsequently expanded beyond Jefferson County. The City is not seeking to withdraw from the Personnel Board.
Doc. no. 1350 (Ex. I to the Wilks Class’ brief in opposition to the City’s motion to
terminate), at 1-3 (italicized emphasis supplied, boldface emphasis in original).
The City’s responses are, at best, equivocal on its intentions following its
release from court supervision. See, e.g., doc. no. 1350 (Wilks Class’ brief in
opposition to the City’s motion to terminate), at 5 (“The City’s responses were less
than a steadfast acknowledgment of its continuing role as a subject jurisdiction of the
Personnel Board of Jefferson County.”); id. at 8 (“[A] statement by elected officials
17

that they ‘have no plans’ to do something is hardly much to rely upon with any confidence.”).
That equivocation raises grave concerns because, since the creation of the Jefferson County civil service system in 1935,13 the City has “relied so heavily upon the [Personnel] Board’s functions in the hiring and promotion of its employees that any suggestion that the City believes it can duplicate the role that it has abdicated to the Board for decades is alarming and cannot be taken lightly.” Id. at 7 (emphasis in original). Stated differently, while the City “has demonstrated that it can comply fully with its decree and the law while relying on the Personnel Board for applicant screening and certification,” the City — thus far — “has not demonstrated that it can do so in the absence of the Personnel Board.” Doc. no. 1351 (Martin/Bryant Parties’ Response), at 7 (emphasis supplied).
Assuming the Attorney General’s interpretation of the statutory language quoted above is correct, if the City had not been subject to the consent decree it now seeks to terminate, the City would have been automatically released from the jurisdiction of the Personnel Board when its corporate limits first extended beyond the physical borders of Jefferson County. Further, if the City were not subject to the consent decree, it would need to enact a resolution in order to be returned to the
13 See supra note 11.
18

Personnel Board’s jurisdiction. It has enacted no such resolution, and has not stated that it plans to do so. Thus, the possibility of the City’s separation from the Personnel Board is disturbingly real, even in light of the City’s responses to the Martin-Bryant parties’ requests for admissions. Finally, and of primary importance, given the lack of any evidence that the City can comply with the obligations of its consent decree in the absence of assistance from the Personnel Board, this court lacks confidence that the City will be able to comply with the requirements of federal law following the termination of its consent decree. See Dowell, 498 U.S. at 247.
Accordingly, the City’s motion to terminate the remaining portion of its consent decree and to be dismissed as a party is DENIED, but without prejudice to the City’s right to refile the motion after an additional period for discovery has expired, and additional briefing has been submitted. The additional discovery must be completed on or before November 16, 2007, and should address at least the following issues: (1) whether the Birmingham City Council will pass a resolution to remain under the jurisdiction of the Personnel Board; and, if not, (2) what the City’s plans will be for establishing a personnel system that can produce hiring and promotional decisions that comply fully with governing law. The scope of discovery shall not extend to any of the issues already decided — i.e., the City’s past compliance with the consent decree, or the validity of any of its existing job positions.
19

If the City intends to refile its motion to terminate the consent decree, it must do so on or before December 16, 2007. The court will establish a revised briefing schedule once the motion is filed.
DONE this 20th day of August, 2007. ______________________________ United States District Judge
20

 
 FILED
2007 May-22 PM 06:10 U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,
v. JEFFERSON COUNTY, et al.,
Defendants. JOHN W. MARTIN, et al.,
Plaintiffs, v. CITY OF BIRMINGHAM, et al.,
Defendants. ENSLEY BRANCH OF THE NAACP, et al.,
Plaintiffs, v. GEORGE SEIBELS, et al,
Defendants.

)

)

) CIVIL ACTION NO.

)

CV-75-S-0666-S

)

)

)

)

)

)

)

)

) CIVIL ACTION NO.

)

CV-74-S-17-S

)

)

)

)

)

)

)

)

)

) CIVIL ACTION NO.

)

CV-74-S-12-S

)

)

)

)

)

)

Joinder by Citizens Supervisory Commission in Judge Alan King’s Motion to Reconsider

The nonparty Jefferson County Citizens Supervisory Commission (“CSC”) and

its counsel hereby appear for the limited purpose of joining in nonparty Judge Alan

King’s motion to reconsider the order of May 18, 2007 (Doc. # 1361). This is a

special and limited appearance, not a general appearance, and the CSC does not waive
any defenses or objections, including challenges to this Court’s jurisdiction. The
CSC adopts and incorporates by reference the requested relief sought and grounds set
forth in Judge King’s motion (Doc.# 1377).
Respectfully submitted on May 22, 2007,
s/ Michael L. Jackson
Michael L. Jackson E-mail: mlj@wallacejordan.com Albert L. Jordan E-mail: alj@wallacejordan.com Of Counsel: Wallace, Jordan, Ratliff & Brandt, L.L.C. Post Office Box 530910 Birmingham, Alabama 35253 Voice: (205) 870-0555 Fax: (205) 871-7534

Certificate of Service
I certify that on May 22, 2007, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to all counsel of record, including the following:

Jay Adelstein, Esq. United States Department of Justice Civil Rights Division 601 D Street, NW, Room 4026 Washington, DC 20004 Attorney for United States of America

Barbara E. Thawley, Esq. United States Department of Justice Employment Litigation Section Civil Rights Division 950 Pennsylvania Avenue, NW Washington, DC 20530 Attorney for United States of America

2

James P. Alexander, Esq. Ronald H. Kent, Jr., Esq. Anne R. Yuengert, Esq. Bradley Arant Rose & White, LLP P. O. Box 830709 Birmingham, AL 35283-0709 Attorneys for City of Birmingham
Scott B. Smith, Esq. Bradley Arant Rose & White, LLP 200 Clinton Avenue, Suite 900 Huntsville, AL 35801 Attorney for City of Birmingham
Alice H. Martin, Esq. U.S. Attorney U.S. Attorney’s Office 1801 4th Avenue North Birmingham, AL 35203-2101 Attorney for United States of America
Leslie M. Allen, Esq. Aaron L. Dettling, Esq. Balch & Bingham, LLP P. O. Box 306 Birmingham, AL 35201-0306 Attorney for Dr. Ronald R. Sims
David R. Boyd, Esq. Balch & Bingham, LLP P. O. Box 78 Montgomery, AL 36101-0078 Attorney for Dr. Ronald R. Sims
Gary L. Brown, Esq. Raymond P. Fitzpatrick, Jr., Esq. Fitzpatrick Cooper & Clark, LLP Farley Building, 6th Floor 1929 Third Avenue North Birmingham, AL 35203 Attorney for Birmingham Fire Fighters Association 117

Augusta S. Dowd, Esq. White Arnold Andrews & Dowd PC 2025 Third Avenue North, Suite 600 Birmingham, AL 35203 Attorney for John Seaman
James R. Esdale, Esq. Brent G. Grainger, Esq. Tammy C. Woolley, Esq. Charlie D. Waldrep, Esq. Waldrep Stewart & Kendrick, LLC 2101 6th Avenue North, Suite 700 Birmingham, AL 35203 Attorneys for Mike Hale
Thomas L. Stewart, Esq. Waldrep Stewart & Kendrick, LLC 2101 6th Avenue North, Suite 700 Birmingham, AL 35203 Attorney for Personnel Board of Jefferson County
Kristy Jean Greenberg, Esq. Mary Beth Vrabel, Esq. Cravath Swaine & Moore LLP 825 Eighth Avenue New York, NY 10019 Attorneys for Plaintiff (Martin)
Rowan D. Wilson, Esq. Cravath Swaine & Moore Worldwide Plaza 825 Eighth Avenue New York, NY 10019-7415 Attorneys for Plaintiff (Martin) and Intervenor Bryant
Brice Martin Johnston, Esq. Kenneth O. Simon, Esq. David Walston, Esq. Christian & Small LLP 1800 Financial Center 505 20th Street North Birmingham, AL 35203-2696 Attorneys for Personnel Board of
Jefferson County
3

Theodore A. Lawson, II, Esq. Edwin A. Strickland, Esq. Charles S. Wagner, Esq. Jefferson County Attorney’s Office 280 Jefferson County Courthouse 716 Richard Arrington Jr. Blvd. North Birmingham, AL 35203 Attorneys for Jefferson County
William I. Sauser, Jr. 182 Asheton Lane Auburn, AL 36830 Movant
John D. Saxon, Esq. John D. Saxon, PC 2119 3rd Avenue North, Suite 100 Birmingham, AL 35203 Attorney for Barbara S. Carmichael
John G. Veres, III Auburn University Montgomery 600 South Court Street, Suite 110 Montgomery, AL 36104 Representing Auburn University Montgomery

J. Mark White, Esq. White Arnold Andrews & Dowd PC 2025 Third Avenue North Birmingham, AL 35203 Attorney for Clare D. Haynes
Gregory H. Hawley, Esq. White Arnold Andrews & Dowd Suite 600 2025 Third Avenue, North Birmingham, AL 35203 Attorney for Probate Judge Alan King
William G. Somerville, Esq. Adams and Reese LLP 2100 Third Avenue North, Suite 1100 Birmingham, AL 35203-3367 Attorney for Russell M. Cunningham III
Walter E. Braswell, Esq. Attorney at Law 2101 Fourth Avenue South, Suite 200 Birmingham, Alabama 35233 Attorney for Rev. Steve Small

Respectfully submitted,
s/ Michael L. Jackson
Michael L. Jackson Wallace, Jordan, Ratliff & Brandt, L.L.C. Post Office Box 530910 Birmingham, Alabama 35253 Voice: (205) 870-0555 Fax: (205) 871-7534 E-mail: mlj@wallacejordan.com

4

 
 Case 2:75-cv-00666-CLS Document 708

Filed 12/18/00

Page 1 of 26

FILED
2009 Feb-06 AM 09:34 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

FIL-ED
fO DEC J8 PH 2= 02

UNITED STATES OF AMERICA,

)

Plaintiff,

)

)

VS.

)

)

JEFFERSON COUNTY, et aL,

)

Defendants.

)

)

JOHN W. MARTIN, et ai.,

)

PlafntltTs,

)

)

vs.

)

)

CITY OF BIRMINGHAM, et aI.,

)

Defendants.

)

)

ENSLEY BRANCH OF THE N.A.A.C.P., et al., )

)

Plaintiffs,

)

VS ..

)

)

GEORGE SEIBELS, et aL,

)

Defendants.

)

Civil Action No. CV-75-S-·666-S
ENTERE~
rECt8.
Civil Action No. CV-74-S-17-S
Civil Action No. CV-74-12-S

ORDER EXTENDING 1981 CONSENT DECREES AND 1995 MODIFICATION ORDERS
Upon consideration ofthe parties' submissions, filed in accordance with orders entered on September 25 and October 31, 2000, the court fmds that good cause has been shown for extension of the terms of the 1981 consent decrees for the City of Binningbam and the Jefferson County Personnel Board, and, the December 1995 orders modifying those consent decrees.
The modification orders provide for tennination of the consent decrees and modification orders five years from the date on which the modification orders were provisionally entered, i.e.,

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Case 2:75-cv-00666-CLS Document 708 Filed 12/18/00 Page 2 of 26

December 19, 1995,· unless extended by this court. The modification orders further provide that, when detennining the appropriateness of dissolving the consent decrees, the court shall take into account whether and to what extent the purposes of the orders have been achieved, and whether there is any continuing unlawful employment discrimination or vestiges of prior unlawful discrimination prohibited by federal law.
The long tenn objectives of the 1981 consent decrees and 1995 modification orders are threefold: that is, "[1] to ensure that any and an alleged unlawful barriers to employment, assignment, and promotion that have existed for blacks and women are removed, [2] that anypresent effects of alleged past employment discrimination by the [City or] Personnel Board are fully remedied, and [3) that equal employment opportunities are available to all persons, regardless of race or sex, as required by Title VII of the Civil Rights Act of 1964, as amended."2 Under the modification orders~ the City and the Personnel Board were to use their best efforts to develop and implement lawful, non-discriminatory selection procedures for hiring and promotion within four years after the date on which the modification orders were provisionally entered.
Following exchanges of infonnation between the Personnel Board and the other parties pursuant to the modification order, the Personnel Board agreed that, as to the nine public safety and

l ChiefJudge Sam C. Pointer. Jr., now retired,. rendered an order in CV7S-P~666~St United States v. Jefferson

County. el at., on December 19, 1995, stating:

-

The two attached orders. the Order ModifYing the Jefferson County Personnel Board Consent
Decree and the Order Modifying the City ofBirmingbam Consent Decree, and the notive provision attached as Appendix A are hereby PROVISIONALLY APPROVED AND PROVISIONALLY
EFFECTIVE as ofmis smY- Pecember 19. 1995. The effective dates contained therein shall beam
running as of the date of this order. -[Emphasis added.]

That order was stamped "filed" on the same date it was .rendered, but not fonnally "entered" until the following day, December 20, 1995. See Bryan A. Gamer, A Dictionary of Modem Legal Usage 755 (2d ed. 1995) (distinguishing rendition ofjudgmenl from enny a/judgment),
1 Order Modifying the Jefferson County Personnel Board Consent Decree 4ft 7~ at 2; see also Order Modifying the City ofBinningham Consent Decree 11 S, at 2.

-2-

Case 2:75-cv-00666-CLS Document 708 Filed 12/18/00 Page 3 of 26
fifty-six non-public safetyjob classifications identified by one or more parties as having an adverse impact against blacks andlorwoment it would conductjob analyses, develop and implement lawful selection procedures, and produce validation studies. Additionally, at least one party has identified selection procedures utilized by the City ofBinningbam for the eleven job classifications listed in paragraph 9 ofthis order as having an adverse impact on"the basis ofrace andlor gender.
The court finds that neither the City of Birmingham nor the Jefferson County Personnel Board have achieved the long term goals of the consent decrees and modification orders. It is undisputed that efforts to develop and implement lawful selection procedures for many job classifications either have not been initiated or are incomplete.
Good cause having been shown, therefore, it is ORDERED as follows: I. GENERAL PROVISIONS I. The 1981 City ofBirmingham Consent Decree and the 1995 order modifying that decree are
extended until June 30, 2002. 2. The 1981 Jefferson County Personnel Board Consent Decree and the 1995 order modifying
that decree are extended until June 30, 2002. 3. This court retains jwisdiction ofthese actions for such further reliefas may be appropriate,
including enforcement ofthe court's orders and resolution ofdisputes that may arise among the parties. 4. The 1981 consent decrees pertaining to the City ofBirmingham and the Jefferson County Personnel Board, togetberwith the 1995 orders modifYing those decrees, shall terminate on June 30, 2002, unless a further extension is ordered for good cause shown. Prior to such tenrunation date, however, any party may move for the teon of the consent decrees and modification orders to be further extended for good cause shown. In that event, this order,
-3-

Case 2:75-cv-00666-CLS Document 708 Filed 12/18/00 Page 4 of 26
as well as the 1981 consent decrees and 1995 modification orders, shall remain in effect until
the court rules on the motion(s) for extension. In considering whether the consent decrees
and modification orders should be dissolved under their extended tenus, the court shall take
into account whether and to what extent the purposes ofthe modification orders have been
achieved, and whether there remains any continuing, unlawful, employment discrimination
or vestiges ofprior unlawful discrimination prohibited by federal law.
5. Beginning in January 2001, the Jefferson County Personnel Board and the City of
Birmingham shall each submit monthly written reports specifying their compliance with the
requirements of this order. Such reports shall be submitted at least one weekprior to th~!
status conferences scheduledby this court. Unless otherwise scheduled bytbe court, status
conferences will be held at 9:30 a.m. for two hours in Binningham during the fOU11h week
of each month. If any party believes additional time is needed for any status conference,
counsel must request additional time in advance of the conference.
6. Each monthly report shall describe the party's efforts to develop selection procedures
meeting the requirements ofparagraph 8 ofthe City ofBirmingbam modification ord~ and
l Paragraph 8 of the 1995 Order Modifying the City ofBinningham Consent Decree provides: 8. It shall be the City's responsibility to ensure that each selection proceduret required or
used by the City shall either: (I) have no adverse impact on the basis ofrace or sex as defined by the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607 et seq. (1994), (hereinaftc~r ''the Uniform Guidelines"); Q!(2) bejob related for thejobclassification(s) in question and consistent with business necessity, in accordance with Title VII oftbe Civil Rights Act of J964, as amende~ 42 U.S.C. § 2000e et seq., the Uniform Guidelines[,] and other applicable Federallaw.l If a selection procedure or combination ofselection procedures is used by the City to rank candidates, the parties and the Court WIll consider the candidates' relative ranking and the actual effect ofthat ranking in detennining whether the procedure has adverse impact for that use. In accordance with the Uniform Guidelines. as part ofits consideration ofthe job relatedness and validity ofany selection procedure, the City shall conduct a reasonable investigation of suitable .alternative selection procedures arid explore suitable alternative methodsofusing theselectionprocedures whichhaveless adverseimpact. Whenever the City or any party identifies a race and gender.neutraJ selection procedure thathas less adverse impact than a selection procedme required by the City and that alternative procedure is also agreed by the parties to this Orderto bejob related for thejob classification inquestion and consistent with business necessity [and] in accordance with applicable law, such alternative selection procedure
-4-

Case 2:75-cv-00666-CLS Document 708 Filed 12/18/00 Page 5 of 26
paragraph 12 of the Personnel Board modification order,4 and, any other efforts to comply
with the modification orders. The reports shall describe the progress made and the tasks
accomplished since the last report, including an updated project time line, any areas of
agreement and disagreement among the parties, any allegations ofnon-cooperation, and the
efforts made to comply with any timetable(s) ordered by this court. In the event that either
shall be used by the City, absent good cause shown. [Emphasis added; emphasis in original.1
Footnote 2 to paragraph 8 defines the term Uselection procedure," and reads as follows:
"Selection procedure" as used in this Order is defmed as any measure, combination of measures, or procedure used as a basis for any employment decision. including the full range of assessment techniques from traditional paper and pencil tests, performance tests, training programs, or probationary periods and physical, educational and work experience requirements through infonnal orcasual interviews and unscored application fonns. See UnifonnGuidelines on Employee Selection Procedures, 29 C.F.R. § 1607.l6(Q).
Footnote 3 to paragraph 8 states; "For all putpOses relevant to this Order, adverse impact shall be defmed as it is [in1the
Uniform Guidelines. However, the fact that the initial detennination ofadverse impact is to be made pursuant to the methodology outlined in the Uniform Guidelines will notpreclude aparty's use ofdifferent methodology in any resulting litigation.
4 Paragraph 12 ofthe 1995 Order Modifying the Jefferson County Personnel Board Consent Decree provides:
12. Itshall be the Personnel Board's responsibility to establish thateach selectionprocedure required orused by the Personnel Board, including each standard (including minimum qualifications used to detennine which applicants are qualified or eligible to apply for ajob or submit to a selection device), procedure, test, or other device, shall either: (1) have no adverse impact on the basis of race or sex, as defmed by the Uniform Guidelines on Employee Selection Procedures, 29 C.P.R. § 1607 et seq. (1994), (hereinafter "the Uniform Guidelines"); .Q! (2) be job related for the job classification(s) in question and consistent with business necessity, in accordance with Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Uniform Guidelines[,] and other applicable Federal law.1 Ifa selection procedure orcombination ofselectionprocedures is used by the Personnel Board to rank candidates, the parties and the Court will consider the candidates· relativeranking andthe actual effectofthattanking in determiningwhether the procedurehas adverse impact for that use. In accordance with the Uniform Guidelines, where there exists adverse impact in a selection procedure, as part orits consideration ofthejob relatedness andvalidityofany selection procedure, the Personnel Board shall conduct a reasonable investigation of suitable alternative selectionprocedures and explore suitable alternative methodsofusingthe selectionprocedureswhich have less adverse impact. Whenever the Personnel Board, a jurisdiction served by the Personnel Board, or any party identifies a race [and genderJ-neutral selection procedure that has less adverse impact than a selection procedure required by the Personnel Board and that alternative procedure is also agreed by the parties to be job related for the job classification in question and consistent with business necessity and in accordance with applicable lawt such alternative selection procedure shall be used by the Personnel Board. absent good cause shown. [Emphasis added; emphasis in original.]
Footnote 2 to paragraph 12 states: "For all purposes relevant to this Order. adverse impact shall be defined as it is in the Uniform Guidelines.
-5-

Case 2:75-cv-00666-CLS Document 708 Filed 12/18/00 Page 6 of 26
the City o/Birmingham or the Personnel Board shouldfail to accomplish one ormore tasks required to be accomplished during a particular month according to the compliance timetables established in paragraphs 8 to 16, and, J8 to 19 ofthis order. the report shall also include an explanation ofwhy the partyfaiJed to timely complete the task(s) and shall include a proposed schedule for compliance. Any party may supplement that report II. CITY OF BIRMINGHAM 7. The tasks remaining to be completed pursuant to the 1981 City of Binningham Consent Decree and the 1995 order modifying that decree shall be completed according to th~~ timetables specified in paragraphs 8 to 16 of this Order. 8. Police Captain: The City shall provide, on or before December 20, 2000, information concerning the adverse impact ontsuse ofits selection procedure for Police Captain, for the period from January 1, 1990 through December 1t 2000, by certification and by eligible register, to this court, to opposing counsel, and to the Special Master, Dr. John Veves. The
City !1m shall submit to this court, to opposing counsel, and to the Special Master on or
before December 20, 2000, a report specifying what the City has done to comply with the court's order of May 20, 1998 - including its written job analysis, its revised procedures and other infonnation demonstrating that the City's selection procedure for Police Captain is job-related and consistent with business necessity, and reduces or eliminates adverse impact. Ifthe court determines that the City has not fully complied with the order of May 20, 1998, it will establish a further compliance schedule for the City's Police Captain selection procedure. 9. Information Concerning Adverse Impact: The City shall provide data to counsel for the United States, the Martin Plaintifi's/Bryant Intervenors, the Wilks Class, and to the Special
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Case 2:75-cv-00666-CLS Document 708 Filed 12/18/00 Page 7 of 26
Master concerning each of the City's selection procedures for the eleven job classifications listed below, to permit the parties to determine whether the Cityts selection procedures havE~ an adverse impact on the basis of race and/or sex. On or before the dates listed below, th(~
City will provide aU information required by paragraph 11 of its 1995 modification order>
for the period January 1, 1996 through the present, as well as: (1) a description of the
candidates and selectees (including race and gender) broken down by certification and by
register; (2) adescription ofthe current selectionprocedure, including each sub-partl' and the
date the procedure went into place; (3) copies ofcertifications and affirmative action forms
for each selection; and (4) a description of any back..up documentation regarding the
selection procedure not previously provided to the parties. The City shall also identify each
selection procedure that it believes meets the standards ofthe modification order, in that the procedure has no adverse impact on the basis of race or sex, and shall provide the
calculations upon which the City relies for its adverse impact determination.
S The pertinent portion ofparagraph 11 ofthe 1995 Order Modifying the City ofBirmingbam Consent Decree provides:
11. Within sixty (60) days of the parties' receipt of the City's submissions pursuant to paragraphs 9 and 10, including any supplemental submission pursuant to a request for additional information, the United Statesy the MartinIBryant Plaintiffs and the Wilks Intervenors shall each submit to the City a list ofup to twenty-five job classifications. Within ninety (90) days ofits receipt ofthose lists, for each ofthosejob classifications, the City shall provide the following infonnation to the United States, the MartinlBryant Plaintiffs and the Wilks Intervenors:
(a) whether or not a race or gender oonscious goal was lISed by the City for any period since January 1, 1990 for that job classification and, if any goal was used, a description of the goal, the time during which it was in effect, and the authority for establishment ofthe goal (e.g., City Oeaee. City Aftinnative Action Plan or other source); and
(b) the extent to which each selection procedure, orpart thereof. that the City uses or bas used for eachjob classificationhas had an adverse impact on the basis ofrace and/or sex (as defmed by the Uniform Guidelines), from January It 1990 to the present, including the basis for its detennination as to each job classification. •••
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Case 2:75-cv-00666-CLS Document 708 Filed 12/18/00 Page 8 of 26

Submission Dates

Job Classifications

December 20t 2000

Police Captain Fire Lieutenant Fire Captain Fire Battalion Chief Fire Apparatus Operator

January 5, 2001

Public Safety Dispatcher II Engineering Aide Gardener Heavy Equipment Operator

January 15, 2001

Police Officer Firefighter

10. The parties' responses to the City's data as to adverse impact shall be made, in writing, with

a copy to the Special Master, no later than thirty (30) days after the parties receive such

information.6 Each response shall list anyjob classification that the party contends employs

a selection procedure that has an adverse impact on the basis of race and/or sex, together

with an explanation of the basis for the partyts contention, including a copy of any

calculations upon which the party relies. The parties may discuss with the Special Master

the method of calculation, any particular calculation, or any other issue related to whether

any such selection procedure has an adverse impact. If there is disagreement anlong the

parties, the Special Master shall review the relevantmaterials andprovide a recommendation

to the parties and the court by March 1, 2001, as to whether he believes the selection

procedure(s) at issue do, or do not, have an adverse impact on the basis ofrace and/or sex.

11. The City will notify the court, in writing, by March 16,1001, as to whetherthe parties agre(~

"NotlliJene: At several junctures in this order, the parties are directed. as in the textual sentence to which this note relates, to submit responsive documents within a specifiednumber ofdays following receipt ofinformation. In th.~ absence ofcompelling evidence to the contrary. this court shallpresume that information is "received" by a party OJ' the .same date it is electronically transmitted by e-mail orfacsimile device. provided such transmission occurs during normal working hours ofa work day, or within three business days q/ter posting via the United Slates Mail.
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Case 2:75-cv-00666-CLS Document 708 Filed 12/18/00 Page 9 of 26
that its selection procedures for each classification listed in paragraph 9 ofthis order have no adverse impact on the basis ofrace and sex. If, in responding, none ofthe parties contend that any selection procedure for a job classification has an adverse impact on the basis of race andlor sex, the City win be deemed to have met the requirements ofparagraph 8 ofthe City's 1995 modification order7with regard to thatjob classification. Any party may submit any disagreement as to the adverse impact of any selection procedure for these eleven job classifications to the court for resolution~ provided such disagreement is presented to the court, in writing, within thirty (30) days after March 16~ 2001. 12. Job-Relatedness and Business Necessity: For each classification listed in paragraph 9
above for which the parties have nm agreed in writing that the City's selection procedures
have no adverse impact based on race andlor sex, unless the court has detennined that the selection procedure at issue does not have an adverse impact based on race andlor sex, the City will, on or before July 16, 2001, provide the parties with all information it has concerning whether its selection procedures are job-related, consistent with business necessity and otherwise meet the requirements of paragraph 8 of the City'S 1995 modification order, including for each job classification a written job analysis and the infonnation required by paragraph 31 ofthe City's 1995 modification order.8 13. The responses from the United States, the Martin Plaintiffs/Bryant Intervenors, and the Wilks Class to the CityJs submission as to the job-relatedness of its selection procedures
1 See supra note 3. . 8 Paragrapb 31 of the 1995 Order ModifYing the City ofBinningbam Consent Decree provides that:
31. The City shall make. all data concerning the development, adverse impact, use and job relatedness ofeach selection procedure used or proposed to be used by the City, including but not limited to, test scores, job analyses, expert reports and validati~ studies, promptly available to counsel for the parties upon written request This data will be provided to the parties to this Order in a machine readable Conn as well as hard copy to the extent that it exists in that form.
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Case 2:75-cv-00666-CLS Document 708 Filed 12/18/00 Page 10 of 26
pursuant to paragraph 12 ofthis Order, shall be made" in writing, with a copy to the Special Master, no later than ninety (90) days after their receipt ofthe City's submission. Each party's response to the City shall include a list ofany specific selection procedures, by job classification" that the party contends do not meet the requirements of paragraph 8 of the City's 1995 modification order and an explanation of the basis orits contention{s). 14. By October 31, 2001, the City shall report to the court, in writing, with copies to counsel and the Special Master, as to the selectionprocedures and the job classifications, ifany, that any party has identified in its response to the City's paragraph 12 submission as failing to meet the requirements of paragraph 8 of the City's 1995 modification order. If, in responding, no party identifies any selection procedure for a particular job classification as not meeting the requirements ofparagraph 8 ofthe City's 1995 modification order, the City shall have no further obligation to demonstrate that its selection procedures for that job classification comply with paragraph 8 of the City's 1995 modification order. 15. Following the parties' responses to the City's paragraph 12 submission, the parties shall, at the request ofany party, meet with the Special Master to discuss the City's submission and the parties' responses. 16. After December 1, 2001t any party may submit to the court for resolution any disagreement as to whether any ofthe City's selection procedures previously identified as having adverse impact on the basis ofrace andlor sex meet the requirements ofparagrapb 8 of the City's 1995 modification order. III. THE JEFFERSON COUNTY PERSONNEL BOARD 17. The tasks remaining to be completed pursuant to the 1981 Jefferson County Personnel Board 9 See supra note 6.
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Case 2:75-cv-00666-CLS Document 708 Filed 12/18/00 Page 11 of 26

consent decree and the 1995 modification order shall be completed according to the

timetables specified in paragraphs 18 to 19 of this Order.

18. Firefighter: On or before December 18,2000, the Personnel Board shall deliver a written

job analysis, a validation report, infonnation concerning the Personnel Board's proposed

selection procedure for frrefighter, a description of the Personnel Board's proposed use of

the selection procedure, and the information described in paragraph 30 of the Personnel Board's 1995 modification order1o to counsel for the parties to that order.

19. On or before the dates set out below. the Personnel Board shall take the following actions:

JOB CLASSIFICATIONS

ACTION

Traffic Maintenance Worker

Job analysis and test plan completed. Selection procedure administered.

Job analysis results, test plan and selection procedure results delivered to counsel and the Special Master by January 5, 2001.
10 Paragraph 30 ofthe 1995 Order Modifying the 1efferson County Personnel Board Consent Decree provides that:
30. The Personnel Board shall make [available to counsel for aU parties] all data concerning the development ofany selection procedures used or proposed to be used by the Personnel Board, includingbut not limited to, the adverse impactofthe selectionprocedurewhenused by the Personnel Board, or if applicable, by other users, the effect ofthe selection procedure on the composition of eligibility registers for thejob classifications at issue,. the effect ofthe use oftbe selection procedure on the composition ofcertification lists for thejob classifications at issuetjob analyses~ expert reports and validation studies.... This infonnation shall be provided to all parties by the Personnel Board on the dates set outinparagraph 19 ofthis Order (N.B.: see below)_ This information shall be provided in machine-readable fonn to the extent it exists in that form.
Further, within fourteen (14) days of its receipt of a written request from any party, the Personnel Board shall provide the requesting party with copies of any additional infonnation concerning the adverse impact orjob reJatedness ofthejobclassification at issue in the possession or control ofthe Personnel Board but not provided by the Personnel Board pursuant to the dates set out in paragraph 19 ofthis Order INA: see below}. However, ifan"examination is in progress for the job classification for which additional information is requested, the Personnel Board may defer providing infonnation about the current examination process for fourteen (14) days after the examination process is completed.
Not« bene; The dates set out in paragraph 19 of the 1995 Order Modifying the Jefferson County Personnel Board Consent Decree have been superceded by the dates specified in paragraphs 18 and 19 ofthe present order.
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Case 2:75-cv-00666-CLS Document 708 Filed 12/18/00 Page 12 of 26

Validation . report and the information described in paragrapb 30 of the 1995 Order
Modifying the Personnel Board Consent Decree (i.e., "paragraph 30 informationn11) delivered to counsel and the Special Master by February 16,2001.

Juvenile Detention Officer

Job analysis and test plan completed.
Job analysis results and test plan delivered to counsel and the Special Master.
Selection procedure administered by December 23, 2000.
Selection procedure results delivered to counsel and the Special Master by February 16,2001.
Validation report and paragraph 30 infonnation delivered to counsel and the Special Master by April 20, 2001.

Guard

lob analysis begun by March 2, 2001.
Job analysis to be completed by April 27, 2001.
Test plan to be completed by June 15, 2001.
Job analysis results and test plan delivered to counsel and the Special Master by June 22, 2001.
Selection procedure administered by August 24, 2001.
Selection procedure results delivered to counsel and the Special Master by September 28,2001.

il See the immediately preceding footnote.
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Case 2:75-cv-00666-CLS Document 708 Filed 12/18/00 Page 13 of 26

Validation report and paragraph 30 infonnation delivered to counsel and the Special Master by November 30, 2001.

Mains Service Worker

Job analysis and test plan completed.
Job analysis results and test plan delivered to counsel and the Special Master by January 15,2001.
Selection procedure administered by September 28, 2001.
Selection Procedure results delivered to counsel and the Special Master by October 31,2001.
Validation report and paragraph 30 information delivered to counsel and the Special Master by November 30, 2001.

Telecommunications Technician

Job analysis begun by February 2, 2001
Job analysis to be completed by April 20, 2001.
Test plan completed by June 15,2001.
Job analysis results and test plan delivered to counsel and the Special Master by June 22, 2001
Selection procedure administered by July 13, 2001
Selection procedure results delivered to counsel and the Special Master by August 3, 2001.
Validation report and paragraph 30
information delivered to counsel and the
Special Master by August 31, 1001.

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Case 2:75-cv-00666-CLS Document 708 Filed 12/18/00 Page 14 of 26

ACCOUNTING JOB FAMILY

•

Accounting Assistant I

•

Accounting Assistant II

•

Accountant/Auditor

•

Senior Accountant

Job analysis begun.

Job analysis to be completed by March 23~

2001

'

Test plan to be completed by April 16, 2001.

Job analysis results and test plan delivered to counsel and the Special Master by April 23, 2001.

Selectionprocedure administered by June 15, 2001.

Selection procedure results delivered to counsel and the Special Master by July 13, 2001.

Validation report and paragrapb 30 information delivered to counsel and the Special Master by August 31, 2001.

GENERAL CLERlCAL JOB FAMILY

• Administrative Assistant I

• Administrative Assistant II

• Administrative Assistant III

•

Administrative Assistant IV

•

Administrative Coordinator

•

Legal Secretary

•

Senior Court Clerk

• Principal Court Clerk

Job analysis begun. Task and KSA ratings completed.
Job analysis to be completed by March 2,
2001.
Test plan completed by March 23, 2001.
Job analysis results and test plan delivered to counsel and the Special Master by March 30,
2001.

Selection procedure administered by May 31,

2001.

'

Selection procedure results delivered to counsel and the Special Master by June 30~ 2001.
Validation report and paragraph 30

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Case 2:75-cv-00666-CLS Document 708 Filed 12/18/00 Page 15 of 26

infonnation delivered to counsel and the Special Master by August 31, 2001

CLERICAL STORES JOB FAMILY

•

Stores Clerk

• Senior Stores Clerk

Job analysis and test plan complete.
Job analysis results and test plan delivered to counsel and the Special Master by January 16,2001.
Selection procedure administered by March 30,2001.
Selection procedure results delivered to counsel and the Special Master by April 30, 2001.
Validation report and paragraph 30 information delivered to counsel and the Special Master by May 31,2001.

CoMMUNICATIONS JOB FAMILY

•

Public Safety Dispatcher I

•

Publie Safety Dispatcher II

Job analysis begun.
Job analysis to be completed by January 29, 2001.

Test plan to be completed by February 16, 2001.

Job analysis results and test plan delivered to
counsel and tbe Special Master by February
23,2001

Selection procedure administered by May 18,
2001.

Selection Procedure results delivered to counsel and the Special Master by June 15, 1001.

Validation report and paragraph 30 infonnation delivered to counsel and the

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Case 2:75-cv-00666-CLS Document 708 Filed 12/18/00 Page 16 of 26

Special Master by July 27" 2001.

COMMUNITY SERVICE JOB FAMILY

•

Community Resource

Representative

•

Housing Rehabilitation

SpeciaUst

Begin Job analysis by February 16, 2001.
Job analysis to be completed by March 30, 2001.
Test plan to be completed by AprB 20, 2001.
Job analysis results and test plan delivered to counsel and the Special Master by April 27" 2001
Selectionprocedure administeredbyJune 29, 2001.
Selection procedure results delivered to counsel and the Special Master by July 31, 2001.
Validation report and paragraph 30 information delivered to counsel and the Special Master by October 31,2001.

HORTICULTURE lOB FAMILY

•

Gardener

•

Semi- Skilled Laborer

Begin job analysis by February 16,2001. Job analysis to be completed by May 4,2001.

Test plan to be completed by June 1, 2001.
Job analysis results and test plan delivered to counsel and the Special Master by June 8, 2001.
Selectionprocedure administered by July 31, 2001.
Selection procedure results delivered to counsel and the Special Master by August 31,
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Case 2:75-cv-00666-CLS Document 708 Filed 12/18/00 Page 17 of 26

2001.
Validation report and paragraph 30 infonnation delivered to counsel and the Special Master by September 28, 2001.

INSPECTIONS JOB FAMILY

• • •

Gas Inspector Zoning Inspector Revenue Examiner

Begin job analysis by March 2, 2001.
Job analysis to be completed by June It 2001.
Test plan to be completed by July 13,2001.
Job analysis results and test plan delivered to counsel and the Special Master by July 20, 2001.
Selection procedure administered by September 28, 2001.
Selection procedure results delivered to counsel and the Special Master by October 31,2001.
Validation report and paragraph 30 infonnation delivered to counsel and the Special Master by November 30, 2001.

MECHANICAL AND AYTO JoB FAMILY

•

Automotive Technician

Job analysis begun.

Job analysis completed by January 26,2001.

Test plan to be completed by February 23, 1001.

Job analysis results and test plan delivered to counsel and the Special Master by March 9, 2001.

Selection procedure administeredby April 27, 2001.

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Case 2:75-cv-00666-CLS Document 708 Filed 12/18/00 Page 18 of 26

•

Shop Helper

Selection procedure results delivered to counsel and the Special Master by May 25, 2001.
Validation report and paragraph 30 information delivered to counsel and the Special Master by July 27, 2001.
Job analysis begun.
Job analysis completed by February 23, 2001.
Test plan to be completed by March 9, 2001.
Job analysis results and test plan delivered to
counsel and the Special Masterby March 16,
2001.
Selection procedure administered by September 28, 2001.
Selection procedure results delivered to counsel and the Special Master by October 31,2001.
Validation report and paragraph 30 information delivered to counsel and the Special Master by November 30,2001.

BUILDING MAINTENANCE JOB FAMILY

•

HVAClRefrlgeratlon Technician

• Maintenance Repair Worker

• Painter

•

Sign Painter

Begin job analysis by March 9, 2001.
Job analysis to be completed by June 8, 2001.

Test plan to be completed by July 6, 1001.
Job analysis results and test plan delivered to counsel and the Special MaSter by July 13, 2001.
Selection procedure-administeredby October
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Case 2:75-cv-00666-CLS Document 708 Filed 12/18/00 Page 19 of 26

31,2001.
Selection procedure results delivered to counsel and the Special Master by November 30,2001.
Validation report and paragraph 30 infonnation delivered to counsel and the Special Master by December 21~ 2001.

PROPERTY ApPRAISAL JOB FAMILY

•

Appraisal Assistant

•

Property Appraiser

Beginjob analysis by March 2,2001.
Job analysis to be completed by April 13, 200t.
Test plan completed by May 11, 2001.
Job analysis results and test plan delivered to
counsel and the Special Master by May 18, 2001.
Selectionprocedure administered byJune 29, 2001.
Selection procedure results delivered to counsel and the Special Master by July 27, 2001.
Validation report and paragraph 30 infonnation delivered to counsel and the Special Master by September 28, 2001.

PuBLIC WORKS - GENERAL JOB FAMILY

SUPERVISORY POSITIONS:

• • •

Construdion Supervisor
Labor Supervisor
PubHc Works Supervisor

NON-SUPERVISORY POSITIONS:

•

Refuse Truck Driver

• Truck Driver

•

Skilled Laborer

Job analysis begun.
Job analysis to be completed by March 2, 2001.
Test plan to be completed by April 13,
2001.

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Case 2:75-cv-00666-CLS Document 708 Filed 12/18/00 Page 20 of 26

Job analysis results and test plan delivered to counsel and the Special Master by April 20, 2001.
Selectionprocedure administered byJune 15, 2001.
Selection procedure results delivered to counsel and the Special Master by July 13, 200t.
Validation report and paragraph 30 infonnation delivered to counsel and the Special Master by September 9, 2001.

PuBLIC WORKS - CONSTRUCTION JOB FAMILY

• Construction Equipment

Job analysis begun.

Operator

• • •

Heavy Equipment Operator Street Paving Supervisor Public Works Coordinator

Job analysis to be completed by February 23,2001.
Test plan to be completed by March 23,.

2001.

Job analysis results and test plan delivered to
counsel and the Special Master by March 30, 2001.

Selection procedure administered by June 29, 1001.

Selection procedure results delivered to

counsel and the Special Master by July 31,

2001.

.

Validation report and paragraph 30 infonnation delivered to counsel and the Special Master by August 31, 2001.

PUBLIC WORKS - UULITms JOB FAMILY

•

Waste Water Treatment

Plant Operator

•

Waste Water Treatment

Job analysis begun Job analysis to be completed by April 6,

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Case 2:75-cv-00666-CLS Document 708 Filed 12/18/00 Page 21 of 26

Maintenance Worker

•

Water Pollution Control

Technician

2001.
Test plan complete by May 11, 2001.
Job analysis results and test plan delivered to counsel and the Special Master by May 18, 2001.
Selection procedure administered by August 31, 2001.
Selection procedure results delivered to counsel and the Special Masterby September 28,2001.
Validation report and paragraph 30 information delivered to counsel and the Special Master by November 9, 2001.

PUBLIC WORKS - ENGINEERING JOB FAMILY

•

Senior Engineering Aide

Job analysis begun

•

Senior Engineering Inspector

Job analysis to be completed by Aprn 27,

2001.

Test plan to be completed by June 1, 2001.

Job analysis results and test plan delivered to counsel and the Special Master by June 8,
2001.

Selection procedure administered by August 31, 2001.

Selection procedure results delivered to counsel andthe Special Masterby September 28, 2001.

Validation report and paragraph 30 information delivered to counsel and the Special Master by October 31,2001.

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Case 2:75-cv-00666-CLS Document 708 Filed 12/18/00 Page 22 of 26

PUBLIC WORKS - TRAFFIC JOB FAMILY

•

Tramc Control Technician

•

Traffic Signs and Marking

Supervisor

•

Traffic Maintenance Worker

Job analysis begun.
Job analysis completed by May 18,2001.
Test plan completed by June 22, 2001.
Job analysis results and test plan delivered to counsel and the Special Master by June 29, 2001.
Selection procedure administered by July 31, 2001.
Selection procedure results delivered to counsel and the Special Master by August 31, 2001.
Validation report and paragraph 30 infonnation delivered to counsel and the Special Master by October 31, 2001.

RECREATION JOB FAMILY

•

Senior Recreation Leader

Job analysis begun by February 9, 1001.
Job analysis to be completed by Aprn 6, 2001.
Test plan to be completed by May 18 ,2001.
Job analysis results and test plan delivered to counsel and the Special Master by May 25, 2001.
Selectionprocedure administered byJune 29, 2001.
Selection procedure results delivered to counsel and the Special Master by July 27, 2001.
Validation report and paragraph 30 information delivered to counsel and the Special Master by August 31, ZOOI.
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Case 2:75-cv-00666-CLS Document 708 Filed 12/18/00 Page 23 of 26

SOCIAL SBRVICE$IOB FAMILY

•

Clinical Counselor

•

Senior Social Worker

Job analysis begun by March 2, 2001.
Job analysis to be completed by May 11, 2001.
Test plan to be completed by June 8,2001.
Job analysis results and test plan delivered to counsel and the Special Master by June 15, 2001.
Selection procedure administered by August 31, 2001.
Selection procedure results delivered to counsel and theSpecial Masterby September 28,2001.
Validation report and paragraph 30 information delivered to counsel and the Special Master by November 30, 2001.

20. On the date the Personnel Board submits the results ofits use ofselection procedures for a particularjob classification to the parties and the Special Master, the Board shall also state in its submission whetherthe Personnel Boardbelieves that each selection procedure for that job classification meets the requirements of paragraph 12 of the 1995 Personnel Board
modification order,12 in that the selection procedure does not have adverse impact on the
basis or race or sex, and provide the calculations upon which it relies. It: in advance of the
date specified in paragraph 19 ofthis order for the Board to submit its validation report and paragraph 30 information for a particular job classification, all parties to the 1995 Board modification order state, in writing, that the Personnel Board's revised selection procedure
1% See supra note 4. -23-

Case 2:75-cv-00666-CLS Document 708 Filed 12/18/00 Page 24 of 26
for a classification listed in paragraph 19 meets the requirements ofparagraph 12 ofthe 1995
Board modification order, the Personnel Board will have no further obligation to
demonstrate that the selection procedure meets the requirements ofparagrapb 12, including
providing a validation report and the other infonnation required by paragraph 30 of the
Personnel Board modification order. As re~uired by paragraph 20 of the 1995 Personnel Board modification order,J3 within
S;y:t'1 LbO) RiRee, ('OJ days after receiving the Personnel Board's validation report and test
development material for each job classification,14 including the information described in
paragraph 30 of that order,IS each party shall advise the Personnel Board, all other parties,
and the Special Master, in writing, of any proposed selection procedure that the objecting
party contends lacks sufficient evidence to demonstrate that it meets the requirements of paragraph 12 ofthe Personnel Board modification order.16 Any such response shall state
with particularity the basis for each such contention.
22. If there is disagreement among the parties, pursuant to paragraph 21 of this order, as to
whether a selection procedure proposed for use by the Personnel Board meets the
Il Paragrapb 20 ofthe 1995 Order ModifYing the Jefferson County Personnel Board Consent Decree provides that:
20. Within ninety (90) days of receiving the Personnel Boardts proposal as to selection procedures for anyjob classificationpursuantto its obligationsunderparagraphs 18 and 19,including all infonnation described in paragraph 30 ofthis Order. each party shall advise the Personnel Board. and all otherparties. in writing, ofany selectionproceduresoproposedfor usebythe Personnel Board that the party contends lacks sufficient evidence to demonstrate that it meets the requirements of paragraph 12 ofthis Order and shall state withparticularity the bases for each such contention that the selection procedure does not meet the requirements ofparagraph 12. If, after an additional sixty(60) days, the parties cannot reacb agreement on whether a selectionprocedure proposed by the Personnel Board for any particularjob classification meets the requirements ofparagraph 12 ofthis Order, any party may submit that matter to the Court for resolution. 14 See supra note 6. IS See supra note 10. 16 See supra note 4.
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Case 2:75-cv-00666-CLS Document 708 Filed 12/18/00 Page 25 of 26

requirements ofparagrapb 12 ofits 1995 modification order. the Special Mastershall review

the relevant materials and provide a written recommendation to the parties and to this court.

23. Ifno party contends in its response pursuant to paragraph 21 ofthis order that any selection

procedure for the job classification does not meet the requirements of paragraph 12 ofthe

1995 modification order, the Personnel Board will have met the requirements ofparagraph

12 with regard to that job classification.

aft1'~ys 24. If

following the date ofan objection by any party, pursuant to paragraph 21

of this Order, the Personnel Board and the objecting party cannot reach agreement on

whether a selection procedure proposed for use by the Personnel Board for any particularjob

classification meets the requirements ofparagrapb 12 of the Board's 1995 modification

order, any party may submit that matter to the court for resolution.

IV. JOINDER OF ADDITIONAL PARTIES

25. Each ofthe non-party public employers served by the Jefferson County Personnel Board is

under a statutory duty to cooperate with the Personnel Board in the accomplishment ofits

duties. (See § 7 ofAct No. 248 ofthe 1945 Regular Session ofthe Alabama Legislature.)

In the event that any non-party public employer fails to comply, fully and timely, with any

request of the Personnel Board, including that it provide personnel and space to assist the

Personnel Board in developing or validating selection procedures for job classifications as

required by the 1995 Personnel Board modification order or other orders ofthis court, the

court may, upon motion of any party and appropriate notice to the non-party public

employer, add such non·party as a defendant under Rule 19 of the Federal Rules of Civil

Procedure. The Jefferson County Personnel Board is DIRECTED to cause copies of this

order to be served on each ofthe non-partyjurisdictions served by the Personnel Board: to

Case 2:75-cv-00666-CLS Document 708 Filed 12/18/00 Page 26 of 26

wit, the Jefferson County Commission, the Jefferson County Department of Health, the

Jefferson County Emergency Management Agency, and the municipalities of Bessemer,

Fairfield, Fultondale, Gardendale, Homewood, Hueytown, Irondale, Leeds, Midfield,

Mountain Brook, Pleasant Grove, Tarrant, Vestavia Hills, Graysville, Trussville, and

Warrior.

lS..-i DONE this

y ofDecember, 2000.

-26-

 
 Case 2:75-cv-00666-CLS Document 758

Filed 05/24/01

Page 1 of 24

FILED
2009 Feb-06 AM 09:38 U.S. DISTRICT COURT
N.D. OF ALABAMA

Fll~EJj

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVlISION

01 f1~Y 24 PM 2: 37

: ." I l~. ,~..

i 'J l~ I, ~I I \

. NJ.}, O....J:' A. LABAMA.. ~

ur-nTED STATES OF AMElRlCA~

)

PJahJtiff,

)

)

)

Civil Action No. CV-75-S...666-8

)

J][!!FF'EJRSON COUNTY9 et aL'I

)

Defen ciants..

)

ENrEREoJf'~

)

.fOHN W.. MARTIN, et al•.,

)

I~\'.~:•~.(•

•') &.

AI tf

tVtfIII I:.mJPI

JPla:i1l tiffs,

)

)

vs.

)

Civil Action No. CV-'74...,s-17-S

)

CITY OF BIRl\'1INGHAM, et m..,

)

DeJendunts.

)

)

ENSLEY BRANCH OF THE N.A.A.C..lP'., et Ill., )

)

Plaintiffst

)

VID.

)

Civil Action No. CV-74-12...S

)

GEORGE SEIBELS, et ai.,

)

Dtefendants.

)

ORDER. MODIFYING CERTAIN PORTIONS OF THIS COURT'S DECEMBER 18, 2000 ()tRDER EXTENDING THE 1981 CONSENT DECREES & 1995 MODIFICA"l'ION
OHIDERS AND., SUA SPONTE, ClERTAIN PORTIONS OF THE 1995 PERSONNEL BOARD MODIFICATION ORDER
This action is before the court on a motion ofthe Jefferson County Personnel Board (doc. no. 748), asking the cow,t to modify certain dates specified in paragraph 19 of the Decetnber 18~ 2000
Order extending the 1981 consent decrees and 1995 modification orders (doc. no. 708), Upon consideration of the Inotio~ supporting brief, and oral arguments of counsel during the April 2001 s.tatus conference, this court concludes the motion is due to be granted, bUl only to the extent
-1-

Case 2:75-cv-00666-CLS Document 758 Filed 05/24/01 Page 2 of 24

specified herein. In additjo~ this court has determined sua sponte that additional modifications are

required to paragrapb 20 ofthe 1995 order modifying the Personnel Board's 1981 consent decree,

.and, paragraphs 21 and 24 ofthis court's December 1St 2000 order. ACCORDINGLY, IT IS ORDERED 'fHAT PARAGRAPH 19 OF TorS COURT'S DECEMBER 18..

2000 OIRDER EXTENDING TilE PARTIES' 1981 CONSENT DECREES AND 1995 MODIFICATION

OBIDERS (DOC. NO. 7(8) IS MODIFIED TO READ AS FOLLOWS:

19. On or before the dates set out below, ~e Personnel Board shaU take the fol1owing actions:

JOB CLASS. FICATIONS

ACTION

Traffic l\1[aiimtenmnce Worker

Job analysis and test plan completed. Selection procedure administered.
Job analysis results, test plan and selection procedure results delivered to counsel a.nd the Special Master by JaJlJ oary 5, 2001.
Validation report and the information described in paragraph 30 of the 1995 Order Modifying the Personnel Board Consent Decree (i.e., "'paragraph 30 information·') delivered to counsel and the Special Master by February 16, 200I.

Job analysis and test plan completed.
Job analysis results and test plan delivered to counsel and the Special Master.
Selection procedure administered by December 23, 2000.
Selection procedure results delivered to counsel and the Special Master by February 16,2001.
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Case 2:75-cv-00666-CLS Document 758 Filed 05/24/01 Page 3 of 24

(:Validation I cl'ort---and paragJ apb 30 infonnatioll deli, era! to cott:rtSei and the ~eetaH~!;te1rtrlrlt.rniHO;,;-26,&t.) IIIDelivery
of a validation report is no longer required because all parties have provided wriUen
confinnation that the selection procedures for
this position meet the requirements of'JL.ll.Q.f the 1995 Order Modifying the Personnel
Board Consent Decree: see also 1 20 of
December 18, 2000 Order,I

GU8n"d

Job analysis begun by Marcb 2, 20tH.
(;rob analysis to be eOlnpieted by ApI it 29;: i8&t.) Job analysis to be completed by May 11.2001.2
Test plan to be completed by Jmne lS~ 2001.
Job analysis results and test plan delivered to counsel, the court, and 1he Special Master by J moe 22, 2001.
If any party has any obiection to either the job analysis results andlor the lest plan for this position. then such objection's) must be

1 Paragraph 20 of the December 18, 2000 Order Extending the 198 Lconsent Decrees and 1995 Modification OIders provides that
On the date the Personnel Board submits the results ofits use ofselection procedures for a particular job classHication to the parties and the Special Master. the Board shall also state in its submission whether th.e Personnel SOald believes that each selection procedure for that job classification meets the requirements of paragraph 12 of the 1995 Personnel Board modification order. in that the selection procedure does not have adverse impact on the basis or race or sex, and provide the calculations upon which it relies. if. in advance ofthe date specified in paragraph 19 of this orderfor the Boardto submit its validation report andparagraph 30informationfor a particular job classification, all parties to the 1995 Board modification order Siale, in writing, that Ihe Per-sonnelBoard's revised selection procedurefor a classYlcation listed in paragraph J9 meets the requirements ofparagraph 12o/,he 1995 Board modification order, the Personnel Board will have no further obligation /0 demonstrate that the selection procedure meets the requiremenls of parag,-aph 12, including providing a validation report and Ihe other information required by paragraph 30a/the Persollnel Boardmodification order. [Emphasis supplied and footnote omitted.]
2This date has already passed; however, this is the date requested by the Personnel Board in its motion.
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Case 2:75-cv-00666-CLS Document 758 Filed 05/24/01 Page 4 of 24

delivered3 to opposing counsel.. the court, and the Special Master no later than Monday, JllIly 23, 2001. In making an objection. a
nmty mllst state precise and authoritative
reasons therefor.
Selection procedure administered by August 24. 2001.
Selection procedure results delivered to counsel, the court, and the Special Master by September 28" 2001.
Va) idation report and paragrapb 30 infonnation delivered to counsel, the couL!,. and the Special Master by November 30, 2001.

Mains Service 'iVorker

Job analysis and test plan completed.
Job analysis results and test plan delivered to counsel and the Special Master by J8111uary 15,2001.
Ifany party has any objection to either the iQh analysis results and/or the test plan for tgis . nosition, then such objection(s) must be delivered" to opposi ng counsel. the court. and the Special Master no later than Tluursday.. ..June 21, 2001. In making an objection, a party must state precise and authoritative reasons therefor.
Selection procedure administered by September 28, 1001.

:I Nota bene: As used herein, the word "delivered" shall mean either(i) band-delivery to the intended recipient before the close ofbusiness on a designated date, Of (ii) paper proofofa successful~ completed facsimile transmission ofall pages of relevant docwnents before 5:00 o·clock p.rn. within the Standard Time Zone ofthe office ofthe intended recipient, together with written certification by the United States Postal Service that hard copies of the same documents originally transmitted by facsimile device were delivered to the office ofthe intended recipient onthe following business day.
4See supra !Ilole 3.
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Case 2:75-cv-00666-CLS Document 758 Filed 05/24/01 Page 5 of 24

Selection Procedure results delivered to counsel, the court. and the Speciai Master by October 31, 2001.
Validation report and paragraph 30 in fonnation de] ivered to counsel, the court. and the Special Master by November 30!!, 2001.

Teiec6mntluticmtioDs Technician

Job analysis begun by February 2, 2001
Job analysis to be completed by April 20, 2001.
Test plan completed by June 15 , 2001.
Job analysis results and test plan delivered to counsel, the court, and the Special Master by June 22, 2001.
Jf any party has any objection to either the job
analysis results andlor the test plan for this position, then such objection(s) must be delivered5 to opposing counsel. the courL and the Special Master no later than July 23" 2001. In makins an objection, a party must state precise and authoritative reasons therefor.
(Selection pmcedm e a<illtin:istacd byJulyi-3; ~) *Selection procedure administered by AUl:ust 24, 2001.

SSec supra note 3.

eotm'Se

st-3r;

~) *Selection procedure resuhs delivered

to counsel~ the court. and the Special Master

by Septenlber 21,2001.

(Validation I epO! t and pm agt aph 30

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Case 2:75-cv-00666-CLS Document 758 Filed 05/24/01 Page 6 of 24

ACCOUNTnlJG JOB FAMILY

..cD

AccOIlllllting Assistant J Accounting Assistant JI

.48

AccoullItanfiJAuditor Seltl ior Accolllntant

itrlOrrrratiott-delhrered to C:OmlSC( a:J ld the Special Mamer lry ~ 31, 289-1.) *Validation report and paragraph 30 infonnation delivered to counsel, the court, and the Special Master by October 19,20101.
Job analysis begun.
~~~~~~~mm~~~~~~~~
1MHH-. *Job analysis for all Accounting Job Fam i1y positions to be conlpleted by June 29, 2001.
(q.'est plmt tq be con1p1eted by-l-~ 2&Gt;) *Test! DIan to be conlpleted by July 13,2001.

f'See supra nOie 3.

Ifany party has any objection to either the job analysis results and/or the test plan for t.his position, then such objection(s) must be delivered6 to opposing counsel, the court, and the Special Master no later than AlIl&lLIst 27<J' lOCH. In making an objection, a party must state precise and authoritative reasons therefor.
(Selection pi ocedtn-e--adlninistered--by-;lJttne .~) ·Selection procedure administered by November 23, 2001.
(Seleetiot".tpI'O~'Ve1-ed-tO'
eO:msel and-the-Speetat-M-~ 269:1-;) *Selection procedure results delivered
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Case 2:75-cv-00666-CLS Document 758 Filed 05/24/01 Page 7 of 24

to counsel. the court. and the Special Master by December 28, 2001.
(¥a:lidation xeport and paragrapit--3e tJ'Ifolmatioll deJi~ered to coulJsel mId the Special Mastel by ~ 31, iDl9i-:) *Validation report and paragraph 30 infonnation delivered to counsel, the court. and the Special Master by DecembeR· 28, 2001.

GENERAL CLERICAL JOB FAM lLY

o Administrative Assistant I

CIt

Administrative Assistant II

Administrative Assistant In

Admimistrative Assistant IV

Adminjstrative Coordillator

Legal Secretary

Senior Court Clerk

Principal Court Clerk

Job analysis begun. Task and KSA ratings completed.
Job analysis to be completed by March 2,*
2601.
Test plan completed by Marcb 23,2001.
Job analysis results and test plan delivered to counsel and the Special Master by Msrelm 30,. 2001.
Ifany party has any objection to either the job analysis results and/or the test plan for this pgsition, then such obiection(s) must be delivered? to opposing counsel" the court and the Special Master no later than Thursday, June 7, lOOt. In making an objection, a party must state ;grecise and authoritati ve reasons therefor.
(S-eiectton procedu:re-adrr.rira cd b~fr; iOOr.) ·SeLection procedure administered by June 29, 2001.
(SeleetiOli pJoeedme results deli~e1ed---to counsel and the Special fvfaster by J1I1le3:6; ~) *Seleclion procedure resu Its delivered

-7-

Case 2:75-cv-00666-CLS Document 758 Filed 05/24/01 Page 8 of 24

to counsel, the court, and the Special Master by: August 3, 2001..

(Validation l"eport and pM"3gI"a'ph 30

nm

~-M.lCH:he

Sp-eeial Master b, A1ugttst---3-~)

"'Validation report and paragraph 30

information delivered to counsel. the court...

and the Special Master by October 5, 2001.

CLElUCAL STORES JOB FAMILY

In

Stores Clerk

tD Senior Stores CJerk

Job analysis and test plan complete.
Job analysis results and test plan delivered to counsel and the Special Master by J 211nnary 16., 2001.
Selection procedure administered by ]Yhnreb 30,2001.
Selection procedure results delivered to counsel and the Special Master by April 3(]t, 2001.
(¥aHdation rcpm t and paxagraph 30 ifl fot"mation deli vel eel to COttllSel-and-1be Sl)eer.ilH~rteJ~r-M~':3"i-;:,2ffiIiItt:-.). *Validation report andparagrapb 30 infonnation delivered to counsel, the court, and the Special Master by June 15.. 2001.

COMMUNICAnONS JOB FAM ILY

•

Public Safety Dispatcher I

lID

PubUc Safety Dispatcher] I

Job analysis begun.
Job analysis to be completed by January 29, 2001.
Test plan to be completed by February 16, 2001.
Job analysis results and test plan delivered to

-8-

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Case 2:75-cv-00666-CLS Document 758 Filed 05/24/01 Page 9 of 24

counsel and the Special Master by February 23,2001.
If any party has any obiection to either the job analysis resli1ts andior the test plan for this l!osition. then such objection(s) must be delivered8 to opposing counsel, the court. and the Special Master no later than Thursday, J one 7t 2001. In making an ob;ectiont a garty must state precise and authoritative reasons therefor.
SeieetioJ l proeedme adlniuimered b, ~ i98t: "'Selection procedure administered by June 18, 2001.
(Seleetion I'locedme I esnlts del i \1 ered to counsel and the Special Masl~ ~) *Selection procedure results delivered to counsel, the court, and the SpeciaJ Master byJuly 20, 2001.
(V"alidation Jeport and paragraph 36 j nfom1ation deli vered to cotm3ef and the Special Mastel by d~OOi-:) "'Validation re,port and paragraph 30 infonnation delivered to counsel. the court, and the Special Master
py September 21, 2001.

COMMUNITY SERVICE JOB FAMJLY
Community Resource Representative
Housing Rehabilitation Specialist

Begin Job analysis by FebJro31"y 16, 2001.
Job analysis to be completed by March 311l, 2001.
Test plan to be completed by April 20, 2001.
Job analysis results and test plan delivered to counsel and the Special Master by April 27,

8See supra note 3. -9-

- - - - - - - - - - - - _ -.... -_._-_._--

Case 2:75-cv-00666-CLS Document 758 Filed 05/24/01 Page 10 of 24

}jO&TICULTURE JOB FAMILY

•

Gardener

..

Semi- Slldllled Laborer

"See supr-a note 3.

200t.
Ifany party has any objection to either the job analysis results and/or the test plan for this position, then such obiection{s) must be deJivered9 to opposing counseL the court, and the Special Master no later than TbutJfsdaY!l
adm_ June 14, 2001. In making an objection" a
party must state precise and authoritative reasons therefor.
(Selection proeedme 29, 296J .) *Selection procedure administered by AUlust 3, 2001.
(SeleetiOil proeedme results deli~eled to eotmsel and the Special Mastel b, J'1ltiy-3T; ~) *Selection procedure results delivered to counsel. the court, and the Special Master
by Aueust 31, 2001 ..
(ValidatiOJ [ [epo. t at''ld paragraph: 36 infollnatioll delivered to CO'lmsel a:nd-the Special Master by Oetobel--3~) "Validation report and paragraph 30 information delivered to counsel.. the court, and the Special Master by October 26.. 2001 ..
Begin job anaJysis by Febrlnary 16,200].
(Job analysis to be completed by-I~~ ~) .. Job analysis to be cOlupJeted b:t: .Junle 15,2001 ..
(Test plmt to be eoftlpleted by.Jftl1Jfrll,SUMtt:) *Test plan to becompleted by June 29, 200I.
(Job anaI,sis I estllts mId test plan del i tI erect to comsel mid til'e Special blasteJ try JFtnte-8;
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Case 2:75-cv-00666-CLS Document 758 Filed 05/24/01 Page 11 of 24

INSPECTIONS JOB FAMILY
Gas Inspector Zonimg Inspector Revenue Examiner
l()See supra note 3.

2-98-:r.) *Job analysis results and test plan
delivered to counsel, the court. and the Special Master by July 13,2001.
1fany party has any objection to either the job analysis results and/or the test plan for this position. then such obiection(s) must be delivered U) to opposing counset the court.. and the Special Master no later than Thursday, August 2, 2001. In making an objectiont 3. party must state precise and authoritative reasons therefor.
(Selection pi oeedm e ad:nlinisf.~ l~) *Selection procedure administered by
Se.ptel'l1bel 14,2OOJ (September 7. 200/1.
(Selection pi oeedttre t estllts del i vCIed---to ~ the Special Mastet by kugmrt-3-l; Hct]-;) *Selection procedure results delivered to counsel, the court, and the Special Master
by 9dobel 12, 2001 rOctoher 5. 1(01).
report and paragraph 30 deli"oted to counsel and the
., 9t:) *Validation report and naragraph 30 infonnation delivered to counsel, the court, .!llld the Special Master by Ntrvembcer-JfJ;
Hit (November 23, 20011..
Begin job analysis by Man~h 1, 2001.
Job analysis to be completed by June 1,
2001.
Test plan to be completed by July 13~ 2001.
Job analysis results and test plan delivered to
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Case 2:75-cv-00666-CLS Document 758 Filed 05/24/01 Page 12 of 24

v: MECHANICAL AND AUTO JOB FAM[L
.. Automotive Technician

counsel, the court, and the Special Maste:r by July 20, 2001 ..
1fany party has any objection to either the job analysis results and/or the test plan for this position, then such obiection(s) must be deli veredII to opposing counsel. .he court, and the Special Master no later than Thursday.. Alleus. 23, 2001. In making an objection. a party must state precise and authoritati ve reasons therefor.
Selection procedure administered by September 28, 2001 ..
Selection procedure resu Its delivered to counsel, the court, alld the Special Master by October 31,2001.
Validation report and paragraph 30 in formation delivered to counsel ~ the court, and the Special Master by November 30, 2001.
Job analysis begun.
Job analysis completed by January 26, 2001.
Test plan to be completed by Febnary 23, 2001.
Job analysis results and test plan delivered to counsel and the Special Master by Marclh 9" 2001.
Ifany party has any obi ection to either the job analysis results and/or the test plan for this position, then such objection(s) must be

I 'See supra note J.

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Case 2:75-cv-00666-CLS Document 758 Filed 05/24/01 Page 13 of 24

SinO}) Helpe."
l2See supra note 3. IlSee supra note 3.

delivered 12 to oplWsing counsel. the court. and the Special Master no later than T,.ursd.a~51
June :U. 2001. In making an objection. a party must state precise and authoritative
reasons therefor.
(Selection pIocedme adrninFstel cd by 2!kpm
27, 2091.) *Selectionprocedureadministered by August 17, 2001.
(Sdec Han ploeedttre tes111ts delivered t.o
~c Special Mastel by Ma~S; 2-99t:) • Selection procedure results delivered
to counsel, the court, and the Special Master
by September 7. 2001.
(Validatioll report and: pmagrapi, 39 iufounation deli f erect to counsel and-the Special Master b, do., 27,2081: *Validation report and paragraph 30 information delivered to coullsel.. the court. and the Special Mastel" by October IS, 2001.
Job analysis begun.
Job anaJysis completed by February 23, 2001.
Test plan to be completed by March 9, 2001.
Job analysis results and test plan deli vel'ed to counsel and the Special Master by March 16. 200t.
Ifany party has any objection to either the job analysis results and/or the test plan for this position. then sllch objection(s) must be delivered13 to opposing counsel, the court. and the Special Master no later tban Thursday, JUDe ll, 2Q01. In making an gbjectiQQ, a
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Case 2:75-cv-00666-CLS Document 758 Filed 05/24/01 Page 14 of 24

p@!1Y must state precise and authoritative reasons therefor.
Selection procedure admin istered by September 2~ 2001.
Selection procedure results delivered to counsel, the court. and the Special Master by October 31., 2001.
Validation report and paragraph 30 infonnation delivered 10 counsel7 the? court, and the Special Master by Novembel' 30., 200t.

~UILD[NG MAINTBNANCE JOB FAMILY

.. HVAC/RefrfigeratioJll TeclnJician

.. Maintenance Repair Worker

4J)

Painter

•

Sign Painter

Begin job anaJysi s by March 9, 200I. Job analysis to becomp1eted by June 8, 200l..

Test plan to be completed by July 6. 2001.

Job analysis results and test plan delivered to counsel7 the court, and the Special Master by July 13,2001.

Ifany party has any objection to either tbe job analysis results and/or the test gIan for this position.. then such objection(s) must be delivered 14 to OnPOsing counsel. the court, apd
the Special Master no later than Th ursday, AU2ust 2J, 200 l. In rusk inS; an objection. a
PartY must state precise and autlJoritative
reasons therefor.

Selection procedure administered by October 31,2001.

14See supra note J.

Selection procedure results del ivered to cOWlsel, the court, and the Special Master by
--14-

Case 2:75-cv-00666-CLS Document 758 Filed 05/24/01 Page 15 of 24

November 30, 2001.
Validation report and paragraph 30 information delivered to counsel, the court, and the Special Master by December 1'], 2001.

PROPERTY APPRAISAL JOB FAMILy'

till

Appraisal Assistant

t& Property Appraiser

Begin job analysis by March 2, 1001.
Job analysis to be completed by April 13" 200t.
Test plan completed by May 11, 2001.
Job analysis results and lest plan delivered to counsel and the Special Master by May 18, 2001.u
If any party has any objection to either the job
analysis results and/or the test ulan for this
position. then such objection(s) must be delivered}' to opposing counsel.. the court. and the Special Master no later than Thursday, JUDe 21, 2001. In making an objection, a party must state precise and authoritative reasons therefor.
(Selection proeedme adntirtUtered by SUJUre i9, 2881.) ·Selection procedure administered by July 20, 2001.
(Selection PI oectiMC resttlts deli'Vercd-tneounsel and tl to Special :Master b, JtJ:Ily-2-7; itM-:) *Selection procedure results delivered to counsel. the court, and the S.l2ecial Master b)t August 10, 20tH.
Validation report and paragraph 30

UJob analysis resuJts and test plan must be delivered to the court within five days o rille issuance of this order. 16See supra Dote 3.
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Case 2:75-cv-00666-CLS Document 758 Filed 05/24/01 Page 16 of 24

infonnation delivered to counselt !he coY,.tl, and the Special Master by September 28't 2001.

PUBLIC WORKS - GENEFtAL JOB FAMILY
SUPERV1SORY POSITIONS:
Construction SlllpervisOl" Labor Supervisor PubIlic Works Supervisor

NON-SUPERVISORY FOSJTIONS:
Refuse Trud, Driver T."uck Driver

ill

Skililed Laborer

Job analysis begun.
Job analysis to be completed by l\'(mrcb 2. 1.001.
(-Test plan to be colllpletecrby-ikpriH3;H&t:) *Test plan to be completed by May~ 2001. 17
(:Job ana:l,sis rc:Jt1its and test pian deii"ered to COtt1omel and tho Special Mastel by ApI;' 291'
iO&t:) *Job analysis results and test plan
delivered to counsel and the Special Masterby May 11,2001.18
Irany p81ty has any objection to either the job
analysis results and/or the test plan for this position, then such objection(s) must be delivered" to opposing counsel. the court. and the Special Master no later than Thursday,
June 21, 2001. In makin g an Qbjection.. a
party must stale precise and authoritative reasons therefor.
(~re'm1~~~~nm~~~~HW
15, 2801.) *Selectionprocedure administered by July 27,2001.
(SeleetiOlt proeedo:re results deli it ered to cottnsel and tbe Special Mastel b, Ju-Iy-tS; i69t;) *Selection procedure results delivered

fiThis date has passed; bowever, this is the date requested by the Persotmel Board in its motion. [8S ee supra note] 7. Job analysis results and test plan must be delivered to the court within five days of the
issuance of this order. 19See supra note 3.
..) 6-

Case 2:75-cv-00666-CLS Document 758 Filed 05/24/01 Page 17 of 24

to counsel. the court. and the SpeciaJ MiSter by August 31,2001.
(Validation J"port and panrgJ'3:ph 36 mfOunahon delivered to cmmsel md-the Special Mastel by September 9, :i!00t-:) ·Validation report and paragraph 30 information delivered to counsel. the court, and the Special Master by Oetob@r 31,2001.

PUBUC WORKS - CONSTRUCTION JOB FAMILY

101 Construction Equipment

Job analysis begun.

Operator

Heavy Equipment Operator

Job analysis to be completed by February

Street Paving Supervisor

23,2001.

Public Works Coordinator

Test plan to be completed by Marcil 23,

2001.

Job analysis results and test pJan delivered to counsel and the Special Master by Marcil 30., 2001.

Ifany party has any objection to either the job analysis results and/or the test nIan for this
position. then such obiection(s} must be delivered20 to olmosing counsel, the court, and
the Special Master no later than Thursday,
June 21, 2001. In making an objection. a party must state precise and authoritative
reasons therefor.

(Selection PI oeedme adn lil listes cd by JIlIU~ ~8+:) *Selection procedure administered
by August 17, 2001.

(Selectioll ploeedme resnits deli ~d-to eOt11tsehtnd the Special lliiaster by JuJ) 3l, ~) ·Selection procedure results delivered to counsel. the court. and the Smfgial Master

20Seesupra note 3.
··17-

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Case 2:75-cv-00666-CLS Document 758 Filed 05/24/01 Page 18 of 24

by September 14,2001.
(Validation leport and paragraph 30
irtfOrmation deliVCIed to counsel and-the
Special lViaster by August 31, :leeI-:) Validation report and naragraph 30 information delivered to counsel, the court. and the Specia1 Master by October 31,200'1.

'pUBLIC ·WORKS - UTILITIES JOB FAMILY

Waste Water Treatment

Piant Opel"ator

•

Waste Water Treatment

Maintenance Worker

Water Pollution Control

Technician

Job analysis begun
Job analysis to be completed by AI)ril 6, 2001.
Test plan completed by May 11,2001.
Job analysis resul ts and test plan delivered to counsel and the Special Master by May 18, 2001.21
Ifany party has any objection to ei ther the jQh analysis results and/or the test plan for this ,P-osition. then such objectioo(s) must be delivered22 to opposing counsel, the court, and the Special Master no later than Tbursday" June 21, 2001. In making an obiection, a party must state precise and authoritative ,reasons therefor.
SelecLion procedure administered by Augnst 31,2001.
Selection procedure results delivered to counsel, the C01U~ and the Special Master by September 28, 2001.
Validation report and paragraph 30
infonnation delivered to counsel, the court.

21Job analysis and teM.J1lan must be delivered to the court within five days of the issuance of this order. nSee supra note 3.
-18-
(

Case 2:75-cv-00666-CLS Document 758 Filed 05/24/01 Page 19 of 24

and the Special Master by November 9.. 2001 .

.PUBLIC WORKS- ENGINEERING JOB FAMILY

.tCD

SeniOi' Engineering Aide Senior Engineering Inspector

Job analysis begun

(:fob-analysis to be colnpJeted b)' A:pr~

iO&t::) *Job analysis 10 be completed by lv.£ay

18,2001.23

(Test pIal i to be eOlnp:ieted b, Jlllle 19 26t»;) *Test plan to be completed by June 15,2001.

(Job m:m::l,sis IesUtlts and test plan deH veIed to counsel and the Special Master b) JU1lt1e 8; ~) *Job analysis results and test plan delivered to counsel, the court, and the Special Master byJune 22.. 2001.

Ifany party has any objection to either the job analysis results and/or the test plan for this position, then such obiection(s) must be delivered24 to onposing counsell' the court, and the Special Master no Jater than July 23, 2001. In making an objection, a party must state precise and authoritative reasons thereror.

(Selection proeedm e am moister cd by Augmrt 31,2891.) *Selection procedure administered by October 5, 20Ql.

(Selection p10eedme :results delnered to cO'tnlsel mid tbe Special fiptastel~ 28, 298:1.-:) *Selection procedure results delivered to counsel. the court, and the Special Master by November 2, 2001.

(¥M·~·~m-~~~m&~~~m-~'6
and the

unis date has already passed; however. this is the date requested by the Personnel Board in its motion. :USee supra note 3.
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Case 2:75-cv-00666-CLS Document 758 Filed 05/24/01 Page 20 of 24

Special Mastel by Oeto~) *Validation report and paragraph 30 information delivered to counsel, the court, and the Special Master by December 14, 2001.

PUBLlC WORKS - TRA FFlC JOB FAMILY

•

Traffic Control Tecbnician

•

Traffic Signs aJlld Marking

Su pell"Visor

It

Traffic MaillJtenance Worker

Job analysis begun.
Job analysis completed by May 18., 2001.
Test plan completed by June 22, 200t.
Job analysis results and test plan delivered to counsel, the court, and the Special Master by June 29, 2001.
Ifany party has any objection to either the job analysis results and/or the test plan for this position, then such objection«s) must be delivered2S to oRPosing counsel, the court....iY.l.d the Special Master no later than Jilly 2Js 2001. In making an objection, a party must state precise and authOlitative reasons therefor.
(Selectiml procedn:re adn IiiliMe! cd b, July :31 ,. iOOt;) *Selection procedure adnlinistered by
Almust 24,2001.
(Selection plocedme resnlts deliveu:d to connsel and the Special Master by Allgnst:3rt~ ~) "'Selection procedure results delivered to counsel, the court, and the Special Master by September 2 J, 2001.
(llaHdatioJ t report and para:gtaplr--3fJ infoutJatioll deli,cred to eotfltsel and the Special Master by Odober-3i, 2001.)

2SSee supra note 3. -20-

- - - - --- - - .. - - - -. . . .HIIJ"_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _~,

Case 2:75-cv-00666-CLS Document 758 Filed 05/24/01 Page 21 of 24

*Validation report and paragraph 30 information delivered to counsel, the courtll and the Special Master by November 9,2001~

RECREAnON JOB FA MILY
Senior Recreation Leader

Job analysis begun by Febnlary 9, 2001 ,
Job analysis to be completed by April 6, 2001.
Test plan to be completed by May 18,2001.
Job analysis results and test plan delivered to counsel, the court, and the Special Master by May 2S, 2001.
Jf any party has any objection to either the iob analysis results and/or the test plan for th.i1i position, then such objection(s) must be deHvered26 to opposi ng counsel, the cQurt. and the Special Master no later than Thursday,. June 21, 2001. In making an objection, a party must state precise and authoritative reasons therefor.
(Seleetioll ptoeedure administ'Cred by JUXI-e" ;l9, l!OO1.) • Selection procedure administered by Allgasl 1Q; lOOt (Julv 27! 10011.
(Seleetioll ploecdm e results deli'vea'ed-to eounsel and the Special Master-trJ dmy-i!:7; ~) *Selection procedure resuIts del ivered ~o counsel, the court, and the Special Master
bySmtembel7 !8M lduust 24,1001).
(Validation report mld paragrapb 36 illtOutlatioll delivered to eomm;el Mid-the Special 1vfastCJ by A:agast 31, 288-1-;) *Validation report and paragmph 30 information delivered to counsel, the court,

2t.gee supra note 3, -21··

- - . . ...............................---.'~--------------------

Case 2:75-cv-00666-CLS Document 758 Filed 05/24/01 Page 22 of 24

SOC) AL SERVICES JOB FAMILY

Clinical COllUlIseRoJr

4D

Seofior Sodal Worker

and lne Special Master by Qetob,~"'89t
[September 211t 2001J.
Job analysis begun by ]\tarcb 2, 2001.
Job analysis to be cOlupleted by lldnty 1 L., 200t.
Test plan to be completed by JUlIIe 8., 2001.
Job analysis results and test plan delivered to counsel, the courl, and the Special Master by June IS, 2001.
Ifany party has any obiection to either the iQQ analysis results and/or the test glan for th is J)Osition, then such objection(s) must be gelivered27 to opposing counsel. the court.. and the Special M aster no later than July 2~ 200 I. In making an objection, a party Dlusl state precise and Authoritative reasons therefor.
Selection procedure administered by August 31, 2001.
Selection procedure results delivered to counsel, the court~ and the SpeciaJ Master by September 28, 2001.
Validation report and paragraph 30 in formation del ivered to counsel, the court, and the Special Master by November 30, 200],

IT IS FURTHER ORDERED SUA SPON1"E THAT PARAGRAPH 20 OF THE 1995 ORDER MODllFYINc..--; TH E 1981 J EJF1FERSON COUNTY PERSONNELBOARD CONSENT DECREE BE MODI FlED
l1See supra note 3. -22-

Case 2:75-cv-00666-CLS Document 758 Filed 05/24/01 Page 23 of 24

TO READ AS FOLLOWS:
20. Within nf.tte1:j1 (90) days m!Y (60) dal!' ofleeei"ing delive.y8 ofth.e Personnel BOal1rS
proposal as to selection procedures for allYjob classification pursuant to its obligations under paragraphs [8 and 19, including aU infonnation described in paragraph 30 ofthis Order, each party shall advise the Personnel Board, and all other parties~ in writing, of any selectioll procedure so proposed for use by the Personnel Board that the party contends lacks su fficient evidence to demonstrate that it meets the requirements of paragraph 12 oflhis Order and shaH state with particularity the bases for each such contention that the selection procedure does not meet the requi rements ofparagraph 12. If, after an additional six~ thiitlY (30) days, the parties cannot reach agreement on whether a selection procedure proposed by the Personnel Board for any particu(ar job classification meets the requirements ofparagraph 12 ofthis Order~ any party may submit that matter to the Court for resolution. IT rs FllJRTlHlERORDEREDSUA SPONTETHAT PARAGRAPH 21 OlFTlIlSCOURT'S DECEMBER 18,,2000 ORDER. EXTENDING THE 1981 CONSENT DECREES AND 1995 MODIFICATION ORDElItS (DOC. NO. 708) IS MODIF. ED TO READ AS FOLLOWS: 21. As required by paragraph. 20 of the ]995 Personnel Board modification order, as such pargrapb was revised sua SJ1.0"''e Illy order enter~d on MaI 24, 200t (dO£. no. 758), within ~)-days sixty (6Q) days after recei~ ing deliveri9 of the Personnel Board'ts validation repoIt and test development materia1 for each job classification, including the Information described in paragraph 30 of thai order., each party shall advise the Personnel

2llSee supra note 3. ..9See supra note 3.

-23-

Case 2:75-cv-00666-CLS Document 758 Filed 05/24/01 Page 24 of 24

Board, all other parties, and the Specjal Master,. in writing, of any proposed selection procedure that the objecting party contends lacks sufficient evidence to demonstrate that it meets the requirements ofparagrapb 12 of the Personnel Board modification order. Any such response shall state with particularity the basis for each such contention.
FINALLY,ITISORDEREDSUASPONTETHATPARAGRAPH240FTHISCOURT'SDECEMBER
18., 2000 ORDER EXTENDING THE 1981 CONSENT DECREES AND 1995 MODIFICATION ORDERS (DOCo NO. 708) IS MODlFIED TO READ AS FOLLOWS: 24. ff after sb:ty da,rs thirty (30) days fol lowing the date ofan objection by any party, pw"Suant
to paragraph 21 of this Order, the Personnel Board and the objecting party cannot reach agreement on whether a selection procedure proposed for use by the Personnel Board for any particular job classification meets the requirements of paragraph 12 of the Board's 1995 modi fication order, any party may submit that matter to (he court for resolution.

2+~ay DONE this

ofMay, 200I.

"---------------------------------

 
 Case 2:75-cv-00666-CLS Document 1458 Filed 03/25/08 Page 1 of 3

FILED
2008 Mar-25 AM 08:29 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

UNITED STATES OF AMERICA,

)

Plaintiff,

)

)

vs.

)

)

JEFFERSON COUNTY, ALABAMA, et al., )

Defendants.

)

—————————————————————)

JOHN W. MARTIN, et al.,

)

Plaintiffs,

)

)

vs.

)

)

CITY OF BIRMINGHAM, ALABAMA, et al., )

Defendants.

)

—————————————————————)

ENSLEY BRANCH OF THE N.A.A.C.P., et al., )

et al.,

)

Plaintiffs,

)

vs.

)

)

GEORGE SEIBELS, et al.,

)

Defendants

)

Civil Action No. CV-75-S-666-S Civil Action No. CV-74-S-17-S Civil Action No. CV-74-S-12-S

ORDER

This action is before the court on the motion by the Martin-Bryant parties to

hold defendant Jefferson County, Alabama (“the County”) in civil contempt for

failure to comply with the requirements of the Consent Decree entered on December 29, 1982 (“the Decree”), and to modify the Decree.1 The County is ORDERED to

show cause why it should not be held in civil contempt for failing to comply with the

Decree, why this court should not modify the Decree in the manner proposed by the

1Doc. no. 1413.

Case 2:75-cv-00666-CLS Document 1458 Filed 03/25/08 Page 2 of 3

Martin-Bryant parties, and why this court should not grant such other equitable relief as is necessary to purge the County of its contempt and secure compliance with the Decree.
The following schedule shall govern both the motion for contempt and the motion for modification of the Decree:

The County shall respond to Martin/Bryant parties' motion, and identify what, if any, allegations in the Martin/Bryant parties' motion it disputes, as well as what, if any, allegations it admits.

April 28, 2008

The parties shall exchange affirmative expert June 6, 2008 reports, if any.

The parties shall exchange rebuttal expert reports, if any.

June 30, 2008

The parties shall conclude expert discovery. July 14, 2008

The parties shall exchange lists identifying all evidence to be introduced at trial, including: (a) lists of live witnesses, with a brief description of the subject(s) about which each witness is expected to testify; (b) designations of deposition testimony to be offered as evidence; (c) lists of intended trial exhibits; and (d) proposed stipulated facts.

July 14, 2008

2

Case 2:75-cv-00666-CLS Document 1458 Filed 03/25/08 Page 3 of 3

The parties shall exchange lists identifying: (a) any objections to deposition designations; (b) any counter-designations to deposition designations; and (c) objections to any intended trial exhibits.

August 4, 2008

Last date by which to file motions in limine, if August 11, 2008 any.

The parties shall submit a joint pre-trial order, which shall include: (a) each side's list of live witnesses, in the order in which counsel intends to call them, with a brief description of the subject(s) about which each witness is expected to testify; (b) deposition designations, counter-designations, and any objections thereto; (c) lists of intended trial exhibits, and any objections thereto; (d) an estimate of the length of trial time.

August 18, 2008

The parties shall submit pre-trial memoranda August 18, 2008 of law.

Last date by which to file responses to motions in limine, if any.

August 28, 2008

Trial

September 8, 2008

The parties shall submit post-trial proposed findings of fact and conclusions of law.
DONE this 25th day of March, 2008.

30 days from conclusion of trial

______________________________ United States District Judge
3

 
 Case 2:75-cv-00666-CLS Document 1541 Filed 09/12/08 Page 1 of 2

FILED
2008 Sep-12 AM 09:53 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

UNITED STATES OF AMERICA,

)

Plaintiff,

)

)

vs.

)

)

JEFFERSON COUNTY, ALABAMA, et al., )

Defendants.

)

—————————————————————)

JOHN W. MARTIN, et al.,

)

Plaintiffs,

)

)

vs.

)

)

CITY OF BIRMINGHAM, ALABAMA, et al., )

Defendants.

)

—————————————————————)

ENSLEY BRANCH OF THE N.A.A.C.P., et al., )

)

Plaintiffs,

)

vs.

)

)

GEORGE SEIBELS, et al.,

)

Defendants

)

Civil Action No. CV-75-S-666-S Civil Action No. CV-74-S-17-S Civil Action No. CV-74-S-12-S

ORDER

These cases are before the court on the motion filed by the Wilks Class, and

joined by the Personnel Board, seeking declaratory and injunctive relief from the race-based provisions of Alabama Act No. 2008-408.1 In accordance with the

memorandum opinion entered contemporaneously herewith, the motion is

GRANTED, insofar as it seeks a declaration that Act No. 408 is null and void, and

it is ORDERED, ADJUDGED, and DECREED that Alabama Act No. 2008-408 is

1See doc. no. 1479 (Wilks Class motion for declaratory and injunctive relief); doc. no. 1516 (“Defendant, Personnel Board of Jefferson County’s Joinder in Motion”).

Case 2:75-cv-00666-CLS Document 1541 Filed 09/12/08 Page 2 of 2
declared void ab initio as violative of the Supremacy Clause of the United States Constitution. U.S. Const., art. VI, cl. 2. The three current members of the board governing the functions of the Personnel Board of Jefferson County shall continue to serve until their respective terms expire, or until they are otherwise relieved of their duties by further order of this court.
DONE this 12th day of September, 2008. ______________________________ United States District Judge
2

 
 Case 2:75-cv-00666-CLS Document 1573 Filed 11/20/08 Page 1 of 4
FILED

FILED
2008 Nov-20 AM 11:49 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT

. .N.V 20 AM" trRTHERN DISTRICT OF ALABAMA

, :; n - ..". .

SOUTHERN DIVISION

IUNmitSU1'£$~F AMERICA,

Plaintiff,

vs.

Civil Action No. CV-75-S-666-S

JEFFERSON COUNTY, ALABAMA, et ai., Defendants.

JOHN W. MARTIN, et ai., Plaintiffs,
vs.
CITY OF BIRMINGHAM, ALABAMA, et ai., Defendants.
ENSLEY BRANCH OF THE N.A.A.C.P., et ai., Plaintiffs,
vs.
GEORGE SEIBELS, et ai., Defendants.

Civil Action No. CV-74-S-17-S Civil Action No. CV-74-S-12-S

ORDER ON JOINT MOTION FOR TERMINATION OF CONSENT DECREE WITH THE
PERSONNEL BOARD OF JEFFERSON COUNTY, APPROVAL OF AGREEMENT, AND TERMINATION OF
RECEIVERSHIP
This action comes before the Court on the"Joint Motion For Termination ofConsent
Decree With the Personnel Board of Jefferson County ("Consent Decree"), Approval of

Case 2:75-cv-00666-CLS Document 1573 Filed 11/20/08 Page 2 of 4
Agreement and Termination of Receivership" (Doc. No. 1561) jointly filed on November 7, 2008, by the Personnel Board of Jefferson County, the Martin Plaintiffs and Bryant Intervenors ("Martin-Bryant Parties"), and the United States. Having reviewed the motion and the Agreement attached thereto, the Court is of the view that the Joint Motion shall be granted: the Consent Decree with the Jefferson County Personnel Board, as amended, shall be terminated, the Agreement shall be approved, and the Receivership shall be terminated.
It is therefore ORDERED, ADJUDGED, AND DECREED as follows: The Consent Decree with the Personnel Board of Jefferson County, entered on June 8, 1981 and amended by Orders of December 19, 1995 and April 23, 1996 (and otherwise), is hereby immediately and unconditionally terminated. and the Personnel Board ofJefferson County is hereby relieved from all obligations imposed by that Decree (except insofar as those obligations are duplicative of the requirements otherwise imposed by state or federal law) and the supervision of the Court. The Court has reviewed the Agreement and has heard from all parties regarding its scope, purposes, and effects. The Court finds the Agreement to be reasonable, and hereby approves it and incorporates it by reference as part of this Order. Consistent with the principles set forth in Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994), this court retains ancillary jurisdiction solely to enforce the terms of the Agreement and to order specific performance thereof. On July 8, 2002, this Court found the Board to be in contempt of its Consent Decree,
2

Case 2:75-cv-00666-CLS Document 1573 Filed 11/20/08 Page 3 of 4
and, as a remedy for that contempt finding, appointed Ronald R. Sims, Ph.D as Receiver. (Doc. No. 934, 935). The Board is now found to be in compliance with its Consent Decree, and is purged ofthis Court's contempt finding. Consequently, Dr. Sims is hereby discharged as Receiver, and the Receivership imposed by this Court's July 8, 2002 Order is hereby terminated, with the following conditions: The Receiver shall continue to enjoy the immunity conferred by paragraph 12, and may continue to employ independent counsel to represent him in legal matters related to the performance of his duties as Receiver. Compensation of independent counsel shall be paid as authorized by Paragraphs l3 and 7 of this Court's July 8, 2002 order.
All parties agree, and the Court finds, that the Personnel Board of Jefferson County1. has complied with its Consent Decree in good faith for a reasonable period of
time; 2. Has demonstrated its good faith commitment to continued compliance with
federal law; and 3. has implemented policies, practices, and procedures which make it unlikely
that the Board will repeat its former violations of any of those laws, making it unnecessary for this Court to provide further judicial supervision. The Agreement is the result of arms-length negotiations following extensive written discovery, investigations, depositions, and vigorously litigated disputes. The two members ofthe Board appointed by this Court - Chairman Alfred F. "Buddy"
3

Case 2:75-cv-00666-CLS Document 1573 Filed 11/20/08 Page 4 of 4 Smith and Ann D. Florie - shall serve the remainders of their unexpired terms as provided by Act 1945-248, as amended, unless either ofthem shall resign, retire, be duly and lawfully removed from office pursuant to state law, or othenvise become unwilling, unfit, or othenvise unable to serve.
Pursuant to Fed.R.Civ.P. 54(b), the court expressly determines that there is no just reason to delay the entry of a final judgment. Therefore, this judgment is hereby made final.
HON BLE C. LYNWOOD SMITH, JR. UNITED STATES DISTRICT JUDGE
IJ. ~ .eo+ft ~ ~ d~,
~OI)S ·
4

 
 Case 2:75-cv-00666-CLS Document 1642 Filed 05/14/09 Page 1 of 3

FILED
2009 May-14 PM 03:37 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

UNITED STATES OF AMERICA,

)

Plaintiff,

)

)

vs.

)

)

JEFFERSON COUNTY, ALABAMA, et al., )

Defendants.

)

—————————————————————)

JOHN W. MARTIN, et al.,

)

Plaintiffs,

)

)

vs.

)

)

CITY OF BIRMINGHAM, ALABAMA, et al., )

Defendants.

)

—————————————————————)

ENSLEY BRANCH OF THE N.A.A.C.P., et al., )

)

Plaintiffs,

)

vs.

)

)

GEORGE SEIBELS, et al.,

)

Defendants

)

Civil Action No. CV-75-S-666-S Civil Action No. CV-74-S-17-S Civil Action No. CV-74-S-12-S

JUDGMENT ON MOTION FOR ATTORNEY’S FEES AND COSTS

These cases are before the court on the Martin-Bryant parties’ motion for an award of attorney’s fees and costs,1 and the “Notice of Settlement and Joint Motion

for Approval of Settlement and Entry of Judgment” filed jointly by the Martin-Bryant parties and the Personnel Board of Jefferson County.2

Having reviewed the parties’ settlement agreement (“the Agreement”), and

based upon the representations made in the parties’ joint motion, and on this court’s

1Doc. no. 1603. 2Doc. no. 1640.

Case 2:75-cv-00666-CLS Document 1642 Filed 05/14/09 Page 2 of 3
familiarity with the work performed by counsel for the Martin-Bryant parties in connection with the Personnel Board’s Consent Decree, the court specifically finds that the proposed Agreement is fair, adequate and reasonable, and is not the product of collusion between the parties. Accordingly, it is ORDERED, ADJUDGED, and DECREED that the parties’ Agreement is APPROVED, and judgment is hereby ENTERED in favor of Cravath, Swaine & Moore, LLP, John W. Martin et al., and Gwendolyn Bryant et al. (collectively, the “Martin-Bryant parties”), jointly and severally, and against the Personnel Board of Jefferson County, in the amount of Two Million Two Hundred Fifty Thousand and no/100ths Dollars ($2,250,000.00), payable as provided in Paragraph 9 of the Agreement.
This judgment fully adjudicates and extinguishes any claim for attorney’s fees and costs which the Martin-Bryant parties or their counsel have or might have made against the Personnel Board of Jefferson County, including but not limited to, any claim under 42 U.S.C. § 1988, the Equal Access to Justice Act, Rules 11, 23, 37 and/or 54 of the Federal Rules of Civil Procedure, and any other rule, law, regulation, or custom by which the Martin-Bryant parties or their counsel have or might have claimed any entitlement to an award of attorney’s fees and/or costs against the Personnel Board of Jefferson County.
This judgment does not adjudicate or in any way impair any other independent 2

Case 2:75-cv-00666-CLS Document 1642 Filed 05/14/09 Page 3 of 3
claim for attorney’s fees and/or costs the Martin-Bryant parties or their counsel might have or make against any other defendant in these consolidated proceedings, for work done in connection with any litigation concerning those entities’ own consent decrees.
DONE this 14th day of May, 2009. ______________________________ United States District Judge
3

 
 Case 2:75-cv-00666-CLS Document 1735 Filed 03/16/12 Page 1 of 3

FILED
2012 Mar-16 PM 03:00 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

UNITED STATES OF AMERICA,

)

Plaintiff,

)

)

vs.

)

)

JEFFERSON COUNTY, ALABAMA, et al., )

Defendants.

)

—————————————————————)

JOHN W. MARTIN, et al.,

)

Plaintiffs,

)

)

vs.

)

)

CITY OF BIRMINGHAM, ALABAMA, et al., )

Defendants.

)

—————————————————————)

ENSLEY BRANCH OF THE N.A.A.C.P., et al., )

Plaintiffs,

)

vs.

)

)

GEORGE SEIBELS, et al.,

)

Defendants.

)

Civil Action No. CV-75-S-666-S Civil Action No. CV-74-S-17-S Civil Action No. CV-74-S-12-S

ORDER

These consolidated actions are before the court on the amended motion of the

Martin plaintiffs and Bryant intervenors (the “Martin-Bryant parties”) for an award of attorney’s fees and costs1 and the “Notice of Settlement and Joint Motion for Approval of Settlement and Entry of Judgment,”2 filed jointly by the Martin-Bryant

parties and defendant, the City of Birmingham, Alabama (“the City”).

Based upon the representations made in the parties’ joint motion, and on this

1 Doc. no. 1727. 2 Doc. no. 1732.

Case 2:75-cv-00666-CLS Document 1735 Filed 03/16/12 Page 2 of 3
court’s familiarity with the work performed by counsel for the Martin-Bryant parties in connection with the City’s consent decree, the court specifically finds the proposed settlement to be fair, adequate, and reasonable, and not the product of collusion between the parties. Accordingly, it is ORDERED, ADJUDGED, and DECREED that the parties’ settlement is APPROVED, and judgment hereby is entered in favor of Cravath, Swaine & Moore, LLP, John W. Martin et al., and Gwendolyn Bryant et al., jointly and severally, and against the City, in the amount of Three Hundred Fifty Thousand and no/100ths Dollars ($350,000.00). In satisfaction of this judgment, the City shall pay Two Hundred Fifty Thousand and no/100ths Dollars ($250,000.00) to the Lawyers’ Committee for Civil Rights Under Law, 1401 New York Avenue, NW, Suite 400, Washington, D.C. 20005, Attn: Dan DuPont, and shall pay One Hundred Thousand and no/100ths Dollars ($100,000.00) to Cravath, Swaine & Moore, LLP, as counsel for the Martin-Bryant parties, for partial reimbursement of costs. These payments shall be made within thirty (30) days from entry of this judgment, and shall represent full and final satisfaction of the Martin-Bryant parties’ claim for attorney’s fees and costs from the City set forth in their motion.
This judgment fully adjudicates and extinguishes any claim for attorney’s fees and costs which the Martin-Bryant parties or their counsel have or might have made against the City, including but not limited to, any claim under 42 U.S.C. § 1988, the
2

Case 2:75-cv-00666-CLS Document 1735 Filed 03/16/12 Page 3 of 3
Equal Access to Justice Act, Rules 11, 23, 37, and/or 54 of the Federal Rules of Civil Procedure, and any other rule, law, regulation, or custom by which the Martin-Bryant parties or their counsel have or might have claimed any entitlement to an award of attorney’s fees and/or costs against the City.
This judgment does not adjudicate or in any way impair any other independent claim for attorney’s fees and/or costs the Martin-Bryant parties or their counsel might have or make against any other defendant in these consolidated proceedings.
DONE this 16th day of March, 2012.
______________________________ United States District Judge
3

 
 Case 2:75-cv-00666-CLS Document 1732 Filed 03/16/12 Page 1 of 8

FILED
2012 Mar-16 AM 11:55 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA

UNITED STATES OF AMERICA, Plaintiff,
v. JEFFERSON COUNTY, et al.,
Defendants. JOHN W. MARTIN, et al.,
Plaintiffs, v. CITY OF BIRMINGHAM, et al.,
Defendants. ENSLEY BRANCH OF THE N.A.A.C.P., et al.,
Plaintiffs, v. GEORGE SEIBELS, et al.,
Defendants.

Civil Action No. CV-75-S-666-S Civil Action No. CV-74-S-17-S Civil Action No. CV-74-S-12-S

NOTICE OF SETTLEMENT AND JOINT MOTION FOR APPROVAL OF SETTLEMENT AND ENTRY OF JUDGMENT
The Martin Plaintiffs and Bryant Intervenors (the “Martin/Bryant Parties”) and the City of Birmingham (the “City”) respectfully inform the Court that they have reached a mutually agreeable resolution of the Martin/Bryant Parties’ motion for attorney’s fees and costs against the City (Doc. No. 1726), as detailed below.

Case 2:75-cv-00666-CLS Document 1732 Filed 03/16/12 Page 2 of 8
As set forth in the Martin/Bryant Parties’ motion (Doc. No. 1726), the fair estimate of the amount of attorney’s fees and nontaxable expenses claimed is approximately $1.7 million in nominal dollars, and approximately $2.7 million, adjusted for interest. In light of the Court’s Order granting the City’s Motion to Dismiss the City of Birmingham, Alabama, as a Party, and to Dissolve the Consent Decree, as Amended, dated January 27, 2012 (Doc. No. 1724), and the parties’ mutual desire to avoid further expense and protracted litigation, the parties have reached this reasonable compromise as the result of arms-length negotiations. The City has accordingly agreed to pay: (1) a charitable contribution of $250,000.00 to the Lawyers’ Committee for Civil Rights Under Law; and (2) a payment of $100,000.00 to Cravath, Swaine & Moore, LLP, as counsel for the Martin/Bryant Parties, for partial reimbursement of costs. The City payments shall be made within 30 days from entry of the Judgment, which payments shall represent full and final satisfaction of the Martin/Bryant Parties’ claims for fees and costs from the City.
The Martin/Bryant Parties and the City therefore jointly move the Court to approve the Agreement and enter a judgment awarding costs and attorney’s fees to the
2

Case 2:75-cv-00666-CLS Document 1732 Filed 03/16/12 Page 3 of 8

Martin/Bryant Parties substantially in the form of the attached Proposed Judgment. Dated: March 16, 2012

Respectfully submitted,

/s/ Michael K. K.Choy (with permission) Michael K. K. Choy
BURR & FORMAN, LLP 420 North 20th St., Suite 3400 Birmingham, AL 35203 (205) 251-3000
Attorney for Defendant City of Birmingham

/s/ Rowan D. Wilson Rowan D. Wilson
CRAVATH, SWAINE & MOORE LLP Worldwide Plaza 825 Eighth Avenue New York, NY 10019 (212) 474-1000
Attorney for Plaintiffs John W. Martin, et al. and Intervenors Gwendolyn Bryant, et al.

3

Case 2:75-cv-00666-CLS Document 1732 Filed 03/16/12 Page 4 of 8

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA

UNITED STATES OF AMERICA, Plaintiff,
-againstJEFFERSON COUNTY, et al.,
Defendants. JOHN W. MARTIN, et al.,
Plaintiffs, -againstCITY OF BIRMINGHAM, et al.,
Defendants. ENSLEY BRANCH OF THE N.A.A.C.P., et al.,
Plaintiffs, -againstGEORGE SEIBELS, et al.,
Defendants.

Civil Action No. CV-75-S-666-S Civil Action No. CV-74-S-17-S Civil Action No. CV-74-S-12-S

[PROPOSED] JUDGMENT ON MOTION FOR ATTORNEY’S FEES AND COSTS This action is before the Court on the Martin/Bryant Parties’ motion for an
award of attorney’s fees and costs (Doc. No. 1726), and the “Notice Of Settlement And Joint Motion For Approval Of Settlement And Entry Of Judgment” (Doc. No. __) filed by the Martin/Bryant Parties and the City of Birmingham.

Case 2:75-cv-00666-CLS Document 1732 Filed 03/16/12 Page 5 of 8
Based on the representations made in the parties’ joint motion (Doc. No. __), and on this Court’s familiarity with the work performed by counsel for the Martin/Bryant Parties in connection with the City of Birmingham’s Consent Decree, the Court specifically finds the proposed settlement fair, adequate, and reasonable, and not the product of collusion between the parties. Accordingly, it is ORDERED, ADJUDGED, AND DECREED that the parties’ settlement is APPROVED, and judgment is hereby ENTERED in favor of Cravath, Swaine & Moore, LLP, John W. Martin et al., and Gwendolyn Bryant et al. (collectively, the Martin/Bryant Parties”), jointly and severally, and against the City of Birmingham, in the amount of $350,000.00. In satisfaction of this judgment, the City of Birmingham shall pay $250,000.00 to the Lawyers’ Committee for Civil Rights Under Law, 1401 New York Avenue, NW, Suite 400, Washington, D.C. 20005, Attn: Dan DuPont, and pay $100,000.00 to Cravath, Swaine & Moore, LLP, as counsel for the Martin/Bryant Parties, for partial reimbursement of costs. These payments shall be made within 30 days from entry of this Judgment, and shall represent full and final satisfaction of the Martin/Bryant Parties’ claim for attorney’s fees and costs from the City set forth in their motion (Doc. No. 1726).
This judgment fully adjudicates and extinguishes any claim for attorney’s fees and costs which the Martin/Bryant Parties or their counsel have or might have made against the City of Birmingham, including but not limited to, any claim under 42. U.S.C. § 1988, the Equal Access to Justice Act, Rules 11, 23, 37, and/or 54 of the Federal Rules of Civil Procedure, and any other rule, law, regulation, or custom by which the Martin/Bryant Parties or their counsel have or might have claimed any entitlement to an award of attorney’s fees and/or costs against the City of Birmingham.
2

Case 2:75-cv-00666-CLS Document 1732 Filed 03/16/12 Page 6 of 8 This judgment does not adjudicate or in any way impair any other
independent claim for attorney’s fees and/or costs the Martin/Bryant Parties or their counsel might have or make against any other defendant in these consolidated proceedings.
DONE this ____ day of ____________, 2012. UNITED STATES DISTRICT JUDGE
3

Case 2:75-cv-00666-CLS Document 1732 Filed 03/16/12 Page 7 of 8
CERTIFICATE OF SERVICE
I hereby certify that, on the 16th day of March, 2012, I electronically filed the foregoing “Notice Of Settlement And Joint Motion For Approval Of Settlement And Entry Of Judgment” using the CM/ECF system, which will send notification of such filing to the following counsel of record, the Court-appointed expert (listed below), and the Monitor (listed below).
Jay D. Adelstein, Esq. Employment Litigation Section, Attn: 4500 PHB Civil Rights Division United States Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530
T.A. Lawson, II, Esq. Edwin A. Strickland, Esq.
Assistant County Attorney 280 Jefferson County Courthouse 716 Richard Arrington Jr. Blvd. North Birmingham, AL 35203
Dr. John G. Veres, III Office of the Chancellor Auburn University at Montgomery P.O. Box 244023 Montgomery, AL 36124-4023
Edward A. Hosp, Esq. Janell M. Ahnert, Esq. Grace R. Murphy, Esq.
Maynard, Cooper, and Gale, P.C. 1901 6th Avenue North 2400 Regions/Harbert Plaza Birmingham, AL 35203
James E. Murrill, Jr., Esq. Robert R. Riley, Jr., Esq. Keith Jackson, Esq. Kallie C. Lunsford, Esq.
Riley & Jackson, P.C. 1744 Oxmoor Road Birmingham, AL 35209

Case 2:75-cv-00666-CLS Document 1732 Filed 03/16/12 Page 8 of 8
Raymond P. Fitzpatrick, Jr., Esq. Fitzpatrick, Cooper & Clark, LLP Farley Building, Suite 600 1929 Third Avenue North Birmingham, AL 35203
Michael K. K. Choy, Esq. Burr & Forman, LLP 420 North 20th St., Suite 3400 Birmingham, AL 35203
Leslie A. Coyne, Esq. Aaron L. Dettling, Esq.
Balch & Bingham, LLP 1901 6th Avenue North, Suite 1500 Birmingham, AL 35203
Byron R. Perkins, Esq. Perkins Law 2170 Highland Ave. South, Suite 100 Birmingham, AL 35253
Dr. William Sauser, Jr. Professor & Associate Dean for Outreach Lowder Business Building 415 West Magnolia Avenue Birminghal, AL 36849
/s/ Rowan D. Wilson Rowan D. Wilson
CRAVATH, SWAINE & MOORE LLP Worldwide Plaza 825 Eighth Avenue New York, NY 10019 Phone: (212) 474-1000 Fax: (212) 474-3700 E-mail: rwilson@cravath.com
2

 
 2013 WL 4482970 United States District Court,
N.D. Alabama, Southern Division.
UNITED STATES of America, Plaintiff, v.
JEFFERSON COUNTY, ALABAMA, et al., Defendants.
John W. Martin, et al., Plaintiffs, v.
City of Birmingham, Alabama, et al., Defendants.
Civil Action Nos. CV–75–S–666–S, CV–74–S–17–S. | Aug. 20, 2013.
Attorneys and Law Firms
Raymond P. Fitzpatrick, Jr., Fitzpatrick & Brown LLP, Birmingham, AL, for Plaintiffs and Defendants.
Joyce White Vance, U.S. Attorney’s Office, Birmingham, AL, Joseph John Sperber, IV, Jay Adelstein, U.S. Department of Justice, Washington, DC, John G. Veres, III, Auburn University Montgomery, Montgomery, AL, Lauren Rosenberg, Rachel M. Fritzler, Thomas G. Rafferty, Rowan D. Wilson, Cravath Swaine & Moore LLP, New York, NY, for Plaintiffs.
Leslie Allen Coyne, Aaron L. Dettling, Balch & Bingham LLP, Edward A. Hosp, Janell M. Ahnert, Grace Robinson Murphy, Stephanie H. Mays, Thomas J. Butler, Maynard Cooper & Gale PC, Byron R. Perkins, Perkins Law, Theodore A. Lawson, II, Charles S. Wagner, Edwin A. Strickland, James E. Murrill, Jr., Riley & Jackson PC, Birmingham, AL, for Defendants.
Opinion
MEMORANDUM OPINION AND ORDER
C. LYNWOOD SMITH, JR., District Judge.
*1 This opinion addresses the motion filed by the Martin class of plaintiffs and the Bryant class of plaintiffintervenors (“the Martin–Bryant parties”), petitioning the court to hold defendant Jefferson County, Alabama, in civil contempt for failing to comply with the requirements of the consent decree entered on December 29, 1982, and seeking a modification of some provisions of that decree.1 Jefferson County was ordered to respond to the motion, and to show cause why it should not be held in contempt,

and why its decree should not be modified.2
A bench trial on those issues commenced on March 30, 2009, but was recessed on April 1, 2009, for reasons related to the health of the undersigned. Those same, and subsequent, health issues delayed the resumption of trial until December 3, 2012, when the court heard seven additional days of live testimony, and received 1,144 documentary exhibits,3 including the designated deposition testimony of several witnesses.
I. A SHORT HISTORY OF THIS LITIGATION
Those who cannot remember the past are condemned to repeat it.
George Santayana, The Life of Reason, vol. 1, ch. 12 (1905).4
*2 The incumbent members of the Jefferson County Commission are George Bowman (District 1), Sandra Little–Brown (District 2), Jimmie Stephens (District 3), Joe Knight (District 4), and David Carrington (District 5). Mr. Carrington currently serves as “President” of the Commission: i.e., the statutory title of the presiding officer, and a position filled by majority vote of the five District Commissioners. See Ala. Act No. 97–147. None of those persons exhibited adequate knowledge of the County’s obligations under its consent decree when testifying. All demonstrated even less awareness of this litigation’s long and tortuous history. Consequently, their affirmations of commitment to federal law and fulfillment of the County’s responsibilities under its decree rang hollow.
The incumbent members of the Jefferson County Commission are serving their inaugural term of office, however, and their individual failures to fully grasp the significance of this suit and the County’s requirements under its consent decree may, perhaps, be forgiven for that reason. Nevertheless, the urgency with which Jefferson County must bring itself into compliance with federal law is a lesson that must be brought home to each member of the Commission.
Part I of this opinion, therefore, is a summary of the history of this litigation, provided for the edification of the present Commissioners, because knowledge of the
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place from whence the County has come is necessary for understanding why this court must “give teeth” to the decree’s “provisions requiring valid selection procedures.” Ensley Branch, N.A.A. C.P. v. Siebels, 31 F.3d 1548, 1572 (11th Cir.1994) (Carnes, J.) (alteration and emphasis supplied) (“Ensley II ”).
A. The Beginning: 1974—1975 The parties who commenced the original suit on January 4, 1974 included the Ensley Branch of the National Association for the Advancement of Colored People (“N.A.A.C.P.”) and several African–American (“black”) individuals who sued for themselves, and on behalf of a class of similarly-situated persons.5 The defendants to that action were: George Seibels, then Mayor of Birmingham, Alabama; the City of Birmingham; the individual members of the Personnel Board of Jefferson County, Alabama (“Personnel Board” or “Board”); and the Board’s Personnel Director. The complaint alleged that those defendants had engaged in discriminatory hiring practices against blacks in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
That action was followed just three days later by another suit raising the same constitutional and statutory allegations, and filed by John W. Martin and six other black individuals (the “Martin class of plaintiffs”) against the same defendants and Jefferson County and its individual Commissioners.
The following year, on May 27, 1975, the United States brought suit against Jefferson County, the Personnel Board, and the various municipalities and other governmental entities serviced by the Board. The government alleged, among other things, a pattern or practice of discriminatory employment practices against blacks and females in violation of the Fourteenth Amendment, Title VII, and 42 U.S.C. § 1981, a part of the Civil Rights Act of 1866.6
B. The First Twenty–Four Years of Litigation: 1976— 2000 *3 All of the cases were consolidated for trial and, on December 20–22, 1976, Judge Sam C. Pointer, Jr., conducted a bench trial on the limited issue of whether the entry-level tests used by the Personnel Board to screen and rank applicants for firefighting and police officer positions violated the constitutional or statutory rights of black applicants.7 All other issues under the consolidated

complaints were reserved until a later date.8 Judge Pointer concluded that the tests violated Title VII because both
had a significant adverse impact on black applicants, a phenomenon defined as a passing rate “less than fourfifths ... of the rate for [whites].” Ensley Branch, 13 Empl. Prac. Dec. (CCH) ¶ 11,504, at 6796–97 (internal quotation marks omitted). The court ruled that the tests could be used only if, despite their adverse impact, they were sufficiently “job related” to predict effectively test takers’ future job performance. Id. at 6796 nn. 10–11, 6806. After reviewing testing data, the court concluded that the tests failed to meet this standard. Id. at 6798– 6808. Ensley II, 31 F.3d at 1554 (alterations in original).9 Judge Pointer entered a final judgment on the limited issues addressed in the first trial on January 10, 1977,10 and ordered remedial actions by the Board and City.
Specifically, [Judge Pointer] ordered that blacks be referred for openings on the police and firefighter forces at the rate at which they took the tests when most recently administered. To accomplish this, [he] ordered that the names of a sufficient number of blacks be added to the current police and firefighter eligibility lists so that the lists [would] be representative of the racial composition of the test-takers, i.e., 28 and 14 percent black for police and firefighter lists, respectively; that, one-third of future certifications, i.e., referrals from the lists for actual employment, [were] to be black until, considering all certifications since the relevant 1975 and 1976 dates, the numbers of certifications become representative of the racial composition of the test-takers. Thereafter, blacks [were] to be certified in accordance with their representation on the lists, i.e., 28 and 14 percent of certifications for policemen and firefighters, respectively, [were to] be black. Similarly, referrals from future lists [were to] be a function of the rate at which blacks [took] the examinations on which the lists [were] based, until or unless defendants develop[ed] valid tests. Ensley Branch of the N.A.A.C.P. v. Seibels, 616 F.2d 812, 815 n. 6 (5th Cir.1980) (alterations supplied) (“Ensley I ”). The Personnel Board appealed, and the United States and Martin class of plaintiffs cross-appealed.11 While that appeal was pending, Judge Pointer conducted a second bench trial during August of 1979. “That trial involved challenges to other Board practices, including: written tests for eighteen more positions; various rules affecting promotional opportunities; the imposition of height, weight, and educational requirements for certain jobs; and the restriction of some job announcements and
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certifications to persons of a particular sex.” Ensley II, 31 F.3d at 1556. Notably, the plaintiffs’ independent claims against the City of Birmingham and Jefferson County were not tried.
*4 While awaiting Judge Pointer’s decision on the issues raised in the August 1979 trial, and following the former Fifth Circuit’s affirmance of his January 1977 finding of Title VII violations, see Ensley I, 616 F.2d at 822,12 the parties entered into settlement negotiations that resulted in the execution of two proposed consent decrees between all plaintiffs and the City of Birmingham (“the City decree”) and the Personnel Board (“the Board decree”). The proposed decrees were signed by counsel for the affected parties on May 19, 1981. Judge Pointer provisionally approved the proposed consent decrees the following month, but reserved final approval until a fairness hearing could be convened for the purpose of considering objections that might be filed by interested parties.
The “keystone” of the consent decrees tendered to Judge Pointer was “an extensive regime of affirmative action for blacks and women .” Ensley II, 31 F.3d at 1556. That fact prompted several interested non-parties to appear at the fairness hearing conducted during August of 1981, for the purpose of challenging the proposed decrees. Chief among the objectors was the Birmingham Firefighters’ Association No. 117 (“BFA”), a labor association representing a majority of the City’s firefighters, almost all of whom were white males. The day after the fairness hearing, the BFA and two of its members moved to intervene in the pending cases, based upon their contention that the proposed consent decrees would have a substantial adverse impact upon the firefighters. Judge Pointer denied the motion as untimely, and approved the consent decrees. See United States v. Jefferson County, 720 F.2d 1511, 1515 (11th Cir.1983).
Shortly after Judge Pointer approved the City and Personnel Board consent decrees, seven white male firefighters filed a complaint in the district court seeking an injunction against the enforcement of the decrees. They alleged that the operation of the decrees would discriminate against them in violation of Title VII of the Civil Rights Act of 1964. After a hearing, Judge Pointer denied relief, and the Eleventh Circuit affirmed. Id. at 1520.
Judge Pointer’s approval of the consent decrees, and the Eleventh Circuit’s approval of his refusal to allow the BFA to intervene and denial of injunctive relief in the suit brought by the seven white male firefighters, brought forth a collection of cases that came to be known as the “Birmingham Reverse Discrimination Employment

Litigation.” In those cases, a number of white male City employees collaterally attacked the City and Personnel Board consent decrees and the affirmative action programs adopted under them. See In re Birmingham Reverse Discrimination Employment Litigation, 833 F.2d 1492, 1495 (11th Cir.1987), aff’d sub nom. Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989).
Judge Pointer rejected the reverse-discrimination plaintiffs’ collateral challenge to the legality of the consent decrees and, at trial, restricted their claims to the questions of whether the City or Personnel Board had violated the decrees, or had granted illegal preferences that were not required by the decrees. See In re Birmingham Reverse Discrimination Employment Litigation, 37 Fair Empl. Prac. Cas. (BNA) 1, 3–4 & n. 6, 1985 WL 1415 (N.D.Ala.1985). At the close of the reverse-discrimination plaintiffs’ case, Judge Pointer further limited their action by dismissing for lack of evidence all claims against the Personnel Board. See Martin v. Wilks, 490 U.S. 755, 779 n. 16, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989) (Stevens, J., dissenting).
*5 The Eleventh Circuit reversed, saying that Judge Pointer’s treatment of the reverse-discrimination plaintiffs “as if they were bound by the consent decrees,” as well as his limitation of their collateral attack to a claim that the City had granted racial preferences beyond those mandated by its decree, was unfair, because the white male firefighters had not participated in the negotiation or signing of the consent decrees. In re Birmingham Reverse, 833 F.2d at 1498–99. The Eleventh Circuit ruled that the reverse-discrimination plaintiffs had to be allowed to bring an action challenging the validity of the City and Personnel Board decrees, and directed Judge Pointer to re-examine the legality of the decrees under the heightened scrutiny applicable to voluntary governmental affirmative action plans. Id. at 1499–1501; see also City of Richmond v. J.A. Croson Co., 488 U.S. 469, 498–508, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (holding that raceconscious, affirmative-action programs that were voluntarily adopted by local governments are subject to strict scrutiny, and must be “narrowly tailored” to the compelling governmental interest of ending racial discrimination). The Eleventh Circuit’s decision was upheld by the Supreme Court in Martin v. Wilks, 490 U.S. 755, 769, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989).
Judge Pointer subsequently held a new trial on the reverse-discrimination plaintiffs’ challenge, but again ruled in favor of the City. Bennett v. Arrington, 806 F.Supp. 926, 931 (N.D.Ala.1992). Applying strict scrutiny, Judge Pointer found that the City had “significant evidence” of past discrimination that was
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more than sufficient to support the affirmative action program incorporated into the City’s consent decree, and that the affirmative action provisions were “narrowly tailored” to the compelling governmental interest of ending racial discrimination, because the alternative measures previously attempted by the City had failed to ameliorate the discrimination against blacks and females, and also because the affirmative action provisions incorporated into the City’s consent decree were both flexible and temporary. Id. at 928–30. The latter part of that ruling was reversed by an Eleventh Circuit panel. See In re Birmingham Reverse Discrimination Employment Litigation, 20 F.3d 1525 (11th Cir.1994).
A separate Circuit panel addressed the Personnel Board’s consent decree, and held that the Board had not satisfied the requirement to develop and enforce “valid, nondiscriminatory selection procedures”—a term that was defined as
selection procedures that either had no disparate impact on blacks and women or that, despite having disparate impact, were “job related” as that term is used in Title VII. Moreover, if the Board chose the second approach, adopting procedures that were job-related despite having some disparate impact, then the Board was required to search for selection procedures that were equally jobrelated but with less adverse impact. These decree provisions roughly parallel the requirements of Title VII, which mandates that an employer use either a selection procedure with no adverse impact or a job-related selection procedure that has no more adverse impact than other, equally job-related selection procedures. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975). Although the decree ordered the Board to comply with Title VII by developing valid tests, it provided no deadlines or formal review mechanism to ensure that the Board actually did so. That omission turned out to be a serious flaw.
*6 Ensley II, 31 F.3d at 1571 (emphasis supplied). The Ensley II panel noted that, while it might prove to be

“administratively burdensome to design and validate” nondiscriminatory selection procedures, “minimizing inconvenience is not a constitutional value,” and administrative burdens “certainly” did not “outweigh the importance of ending racial [or gender] discrimination.” Id. at 1574 (alteration supplied, citation omitted). The Ensley II panel also held that, “[i]f the process of approving selection procedures places undue strain on the district court’s resources, it may appoint a special master to assist with the task.” Id. (alteration supplied).
In sum, the Ensley II panel observed that nearly thirteen years of experience (i.e., the time elapsing between December of 1981, when Judge Pointer ratified the proposed consent decrees, and the panel’s decision in August 1994) had taught only that “the decrees as written are simply too weak to make the City and the Board develop non-discriminatory selection procedures. The district court should remedy this defect. The provisions requiring valid selection procedures must be given teeth ....“ Id. at 1572 (emphasis supplied). The Ensley II panel ordered that, following remand, Judge Pointer should aggressively compel the City and Personnel Board to develop “valid, non-discriminatory selection procedures” in accordance with a schedule of specific, “reasonably prompt deadlines.” Id. at 1583, 1584.
In 1995, following remand, Judge Pointer modified the Personnel Board’s consent decree to require a series of interim deadlines, or “timetables,” for the production of information necessary for the development of valid selection procedures.13 When the Personnel Board missed all of its interim deadlines, Judge Pointer entered an order on July 20, 1995, appointing Dr. John G. Veres, III (who then served as Executive Director for University Outreach at Auburn University in Montgomery, but who currently is Chancellor of that institution) to serve as Special Master for the purpose of “assist[ing] the parties in the development of a realistic schedule governing the transmission of data among the parties and the completion of job analysis and validation procedures.”14 Even then, no meaningful progress toward compliance was made during the remaining years of the Second Millennium.
C. Transitions: 2000—2002 Chief Judge Sam C. Pointer, Jr., retired on April 3, 2000, after thirty years of distinguished judicial service to the United States.15 Supervision of these cases then was reassigned to the undersigned.16 From that time until January 27, 2012, the focus of these consolidated proceedings was on modification, enforcement, and implementation of the consent decrees of, primarily, the Personnel Board of Jefferson County17 and, secondarily,
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that of the City of Birmingham.18 This court’s scrutiny concentrated upon the Personnel Board’s consent decree because that entity is the principal civil service agency for persons employed by, or seeking employment with, the twenty-three county and municipal governmental employers in Alabama’s largest metropolitan area.19 The Board is charged by Alabama law20 with the function of administering written tests and other job selection procedures that produce “registers” and “certificates” of persons considered eligible for employment or promotion21 to classified positions22 with the governmental entities served by the Personnel Board. Consequently, until such time as the Personnel Board could be compelled to comply with the requirements of its consent decree, no meaningful progress could be made in the development of lawful selection procedures for persons employed by, or seeking employment with, the two largest governmental employers serviced by the Board: the City of Birmingham, and Jefferson County, Alabama.
*7 For such reasons, this court entered a revised schedule on December 18, 2000, requiring the Personnel Board to develop lawful selection procedures in accordance with a detailed timetable, specifying position-by-position, stepby-step, deadlines for each task.23 Nevertheless, the Board missed deadline after deadline. Even when the Board managed to develop selection procedures for some job classifications, those procedures did not meet the requirements of federal law, or of the decree itself.24
D. The Personnel Board in Receivership: 2002—2008
Now, this is not the end. It is not even the beginning of the end.
But it is, perhaps, the end of the beginning.
Prime Minister Winston S. Churchill25
For the reasons discussed in the previous Section—as well as the repeated failures of the Personnel Board’s professional staff and attorneys to provide the parties with requested information, the Board members’ ignorance of and disregard for the requirements of the Board’s consent decree, and the Board’s lack of an effective infrastructure—this court held the Personnel Board in civil contempt on July 8, 2002. Dr. Ronald R. Sims, Ph.D., and Floyd Dewey Gottwald Professor in the Graduate School of Business at the College of William

and Mary in Williamsburg, Virginia, was appointed Receiver of the Board.26
This court initially contemplated that the Receiver’s overhaul of the Personnel Board could be completed within a year to eighteen months.27 In hindsight, that goal was comically optimistic. The return of authority from the Receiver to the Personnel Board was not completed until July 11, 2005,28 fully three years after the Receiver assumed his supervisory responsibilities at the Board, and he remained involved in the case in an advisory role long after that.
The lifting of the Receiver’s day-to-day control over the Personnel Board did not end this court’s supervision. The Board was advised that it should move for termination of its consent decree only when it had, independently of the Receiver, “developed sufficient evidence of its compliance with the Consent Decree and federal law and its likely future compliance with federal law.”29 In a fashion that has been typical of this litigation, issue after issue cropped up to prevent the Board from making such a showing.
After several months of watching the Board struggle, this court entered an order on November 15, 2005, appointing Dr. William I. Sauser, Jr., Professor of Management at Auburn University, to serve as a Monitor, and “to oversee the efforts of the Personnel Board to comply with its obligations under its [consent decree] and, to assist this court and the parties in determining the Board’s ability and commitment to function in compliance with Federal law absent judicial supervision.”30 The Monitor tendered monthly reports to the court and parties on the Board’s progress (or lack thereof). And the court continued its long-standing practice of holding monthly status conferences.
*8 More than three additional years elapsed before there was sufficient evidence of the Board’s commitment to comply with federal law absent judicial supervision. Plaintiffs and the Board submitted a joint motion to terminate the Board’s decree on November 7, 2008,31 and this court entered an order on November 20, 2008, approving the parties’ agreement, terminating the consent decree and judicial supervision, and formally ending the Receivership.32
E. The Shift to Birmingham: 2008—2012 The City of Birmingham first moved to terminate its consent decree on July 6, 2004, during the second year of the Receiver’s control of the Personnel Board.33 Following a period of discovery and briefing, the court entered an
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order on July 12, 2005 that granted the motion, but only in part.34 The court found that the City had complied with almost all of the requirements of its consent decree, and that the City had demonstrated its good faith commitment to continued compliance with the decree in the future, but with one significant exception that touched the heart of the claims asserted by the reverse-discrimination plaintiffs: that is, the City’s selection procedure for the “Fire Apparatus Operator” job classification resulted in a statistically significant adverse impact against whites, and it had not been shown to be job-related.35 Therefore, this court retained judicial supervision
for the limited purpose of obtaining the City’s compliance with paragraph 8 of the 1995 Modification Order for the Fire Apparatus Operator classification, until such time as the City either shoulders the burdens of production and persuasion necessary to validate (i.e., demonstrate the job relatedness of) its supplemental application, or revises the selection procedure in a manner that, all parties agree, complies with federal law.36 The City initially was ordered to develop and administer a revised testing procedure for the Fire Apparatus Operator position by February 14, 2006, with any results of the procedure, and any objections thereto, to be submitted to the court after March 28, 2006.37 The deadline for administering the revised test subsequently was extended to sometime in June of 2006, with any objections to be submitted to the court approximately eight weeks later.38 The City completed its revision of the Fire Apparatus Operator selection procedure, and filed a motion to terminate the remainder of its decree on February 2, 2007.39 There was no dispute that the City had adequately revised the testing procedure for that job classification, but the court, nevertheless, entered an order on August 20, 2007, denying the City’s motion to terminate the decree.40
The reason for the court’s denial was based upon shifting political winds and demagoguery on the part of some members of the Birmingham City Council—rants that had generated uncertainty over the question of whether the City would seek to withdraw from the jurisdiction of the Personnel Board after the City was released from federal supervision. Such an action by the largest governmental employer served by the Personnel Board since its creation in 1935 would have drained most of the Board’s financial lifeblood, nullified 38 years of work by this court, and wasted millions of taxpayer dollars expended for attorneys’ fees, the services of expert witnesses and paralegals, and court costs. The statements of some members of the Council signaled that the City was not fully committed to complying with federal law in the absence of court supervision.41 See Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237,

247, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991) (holding that judicial supervision may be terminated only when the court determines that the public entity “was being operated in compliance with the commands of the Equal Protection Clause of the Fourteenth Amendment,” and, “that it was unlikely that the [entity] would return to its former ways”) (alteration supplied).
*9 For such reasons, this court ordered that discovery be conducted on two issues: “(1) whether the Birmingham City Council will pass a resolution to remain under the jurisdiction of the Personnel Board; and, if not, (2) what the City’s plans will be for establishing a personnel system that can produce hiring and promotional decisions that comply fully with governing law.”42 The court also set a deadline of December 16, 2007, for the City to file a renewed motion to terminate its consent decree.43
1. The Langford interregnum The deadline for the City to file a renewed motion to terminate its consent decree subsequently was extended to April 14, 2008, to allow time to determine the impact of a transition of leadership in City governance. Larry Langford—a former four-term Mayor of Fairfield, Alabama (1988–2002), member of the Jefferson County Commission (2002–2007), and future convicted felon— was elected Mayor of Birmingham during the October 9, 2007 municipal elections, and was sworn into office on November 13, 2007.44 The transition to the Langford administration marked the beginning of significant and costly setbacks for the City. Many of the issues that subsequently arose were the result of Mayor Langford’s lamentably unenlightened decision to fire the law firm that had represented the City in these cases since their inception more than three decades before,45 and to replace it with attorneys from three firms,46 none of whom possessed sufficient knowledge of the multifaceted history of this extraordinarily old and complex institutional reform litigation to effectively represent the City in ongoing proceedings.
The Monitor reported on January 17, 2008, that the City was refusing to act cooperatively to report personnel actions to the Personnel Board, resulting in substantial discrepancies between the City’s records and those of the Board.47 Those problems were intensified by the technical inability of the software programs running on the computer systems operated by the City and Personnel Board, respectively, to communicate data (“interface”) with each other. The Monitor’s March 24, 2008 Special Report stated that:
It is clear to the Monitor that this issue cannot be
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resolved without the commitment of significant resources in the form of programming expertise and persons dedicated to data entry corrections. Even with the provision of sufficient skilled human resources, it may not be possible to resolve this issue within the 2008 calendar year. Immediate action is necessary to bring this problem under control and the Monitor urges the City and the Board to direct sufficient resources to resolving this issue. This may require the use of external contractors.48 Accordingly, the court entered an order on March 31, 2008, extending the City’s deadline to refile a motion to terminate its consent decree to June 13, 2008.49 The court emphasized that any such motion would need to be “supported by clear and convincing evidence of the City’s commitment to work with the Personnel Board to resolve the issues raised in the Monitor’s reports to the court.”50
*10 The City filed its renewed motion to terminate the remainder of its consent decree, and to have itself dismissed as a party to the litigation, on the June 13, 2008 deadline.51 Despite this court’s prior admonition that the City would need to demonstrate by clear and convincing evidence that progress had been made toward resolution of all of the communication problems and data discrepancies between the City and Personnel Board, the Monitor reported on November 17, 2008 that the data interface problems and resulting backlog in processing personnel actions had reached “crisis proportions.”52 As a result, the court extended the Monitor’s duties to include reporting on the City of Birmingham,53 and entered an order on November 25, 2008, setting a series of deadlines for the City to resolve the technical difficulties and reduce the backlog of personnel actions. The court cautioned the City that, if it missed any of its deadlines, the court would act immediately to appoint a receiver or outside services firm to assist with the City’s compliance.54
The City failed to meet its deadline for resolving certain personnel actions by January 31, 2010.55 Accordingly, the City was ordered to show cause why it and its Personnel Director should not be held in contempt of court, and why a receiver or outside services firm should not be appointed to secure the City’s compliance.56 In the meantime, Larry Langford had been arrested on a 101– count federal indictment charging him—along with investment banker William B. Blount and former Alabama Democratic Pary Chairman Al LaPierre—with conspiracy, bribery, fraud, money laundering, and filing false income-tax returns in connection with a longrunning bribery scheme. His public corruption trial ended on October 28, 2009, with convictions on 60 counts, and resulted in his automatic removal from office. William A. Bell, Sr., was elected to serve the balance of Langford’s term, and was sworn in on January 26, 2010.57

2. Mayor Bell and the restoration of focus Mayor Bell’s election marked a positive turn in direction.58 The attorneys who had been retained by Larry Langford withdrew, and attorneys from the law firm of Burr & Forman, L.L.P., took their place.59 Even so, it still required more than an additional year of court supervision, and the retention of an outside technical consultant to serve as “Executive Project Manager,” supervising teams of employees from the City and Personnel Board, in order to resolve the software interface discrepancies between the City’s computerized employee data and the records maintained by the Personnel Board.60 Ultimately, however, after the City filed its fourth motion to terminate its consent decree on March 1, 2011,61 and following a hearing at which no party objected, federal supervision of the City of Birmingham ceased on January 27, 2012:62 seven and a half years after the City first moved to terminate its decree.
F. Finally, Jefferson County! *11 During all of the years of litigation addressing the provisions of the consent decrees of the Personnel Board and City of Birmingham, defendant Jefferson County, Alabama managed to avoid intensive court scrutiny. The County’s proposed consent decree was not presented to Judge Pointer until more than a year after the City and Board decrees. It was signed on December 28 and 29, 1982 by representatives of the United States and the Martin class of plaintiffs, on one side, and the Jefferson County Commission and Jefferson County Sheriff on the other.63 Judge Pointer entered the decree on December 29, 1982.64 No party actively pursued enforcement of the County’s decree until sometime during the year 2006, when the Martin–Bryant parties began to gather evidence addressing the County’s compliance with its consent decree. The motion that precipitated this opinion was filed in the following year.65
The County’s consent decree differs from those of the City and Personnel Board in at least two respects. First, the County decree does not contain the race and gender preferences found in the original City and Board decrees. Instead, its “major purposes” are characterized as ensuring that blacks and women are “considered for employment by the County on an equal basis with whites and males,” and correcting for “the effects of any alleged prior discriminatory employment practices by the County against blacks and women.”66 To those ends, the decree enjoins the County from “engaging in any act or practice which has the purpose or effect of unlawfully
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discriminating against any employee of, or any applicant or prospective applicant [for employment] with, Jefferson County because of such individual’s race, color or sex.”67 The County also agreed in its decree “that all hiring, promotion, upgrading, training, job assignments, discharge or other disciplinary measures, compensation, or other terms and conditions or privileges of employment shall be maintained and conducted in a manner which does not unlawfully discriminate on the basis of race, color or sex.”68 Further, the County’s decree requires that it
seek in good faith to achieve the employment of qualified blacks and females in job vacancies in the classified service of the County in numbers approximating their percentage representation among persons on the eligibility lists for such jobs as determined by the Jefferson County Personnel Board under nondiscriminatory recruitment and selection procedures set forth in its Consent Decree ... and in job vacancies in laborer positions in the unclassified service in numbers approximating their percentage representation among qualified applicants for such jobs as determined by the County under the provisions of this Consent Decree.69 The second major respect in which the County’s consent decree differs from those of the City and Personnel Board is that it has not been modified.
Now that the historical and procedural framework of the County’s decree has been laid, the court moves on to discuss, in Part II, the standards that must be met by the Martin–Bryant parties in order to hold the County in civil contempt; and, in Part III, the standards that pertain to modification of a contempt decree.
II. CIVIL CONTEMPT STANDARDS
*12 A consent decree “is an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees.” Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992). Civil contempt sanctions are the primary means of compelling a party’s compliance with the provisions of such a decree. The procedures for invoking such sanctions were outlined by the Eleventh Circuit in Reynolds v. Roberts, 207 F.3d 1288 (11th Cir.2000) (“Reynolds II ”), holding that
consent decrees, like all injunctions, are to be enforced

through the district court’s civil contempt power—exercised after (1) the plaintiff moves the court to order the defendant to show cause why he should not be held in contempt for refusing to obey the decree’s mandate, (2) the court grants the motion, and (3) the defendant fails to present a lawful excuse for his alleged disobedience....
Id. at 1297. See also, e.g., Reynolds v. Roberts, 251 F.3d 1350, 1358 (11th Cir.2001) (“Reynolds III ”) (reiterating a proposition first stated in Thomason v. Russell Corp., 132 F.3d 632 (11th Cir.1998), and Reynolds II: i.e., “there are proper procedures to be followed for the enforcement and litigation of issues related to consent decrees”); Florida Association for Retarded Citizens, Inc. v. Bush, 246 F.3d 1296, 1298 (11th Cir.2001) (per curiam ) (same); Thomason, 132 F.3d at 634 n. 4 (observing that “the proper method of enforcing a consent decree is not a ‘motion to enforce’ or similar plea for the court to ‘do something’ about a violation of the decree,” but a motion asking “the court to issue an order to show cause why [the defendant] should not be held in contempt and sanctioned for failing to abide by the Decree’s mandate”) (emphasis in original) (alteration supplied); Wyatt v. Rogers, 92 F.3d 1074, 1078 n. 8 (11th Cir.1996) (“Precedent dictates that a plaintiff seeking to obtain the defendant’s compliance with the provisions of an injunctive order move the court to issue an order requiring the defendant to show cause why he should not be held in contempt and sanctioned for his noncompliance.”) (citation omitted); Mercer v. Mitchell, 908 F.2d 763, 768 (11th Cir.1990) (“Every civil contempt proceeding is brought to enforce a court order that requires the defendant to act in some manner.”); Newman v. Alabama, 683 F.2d 1312, 1318 (11th Cir.1982) (“The plaintiffs, if they think [a defendant] is failing to take the action required by the consent decree and wish the court to intervene, have available a traditional equitable remedy. They can initiate contempt proceedings by moving the court to issue an order to show cause why the [defendant] should not be held in civil contempt.”) (alterations supplied).
Civil contempt proceedings are both coercive and remedial in nature. To prevail on a motion for civil contempt, a plaintiff must demonstrate by clear and convincing evidence that a defendant violated a prior court order that was lawful, clear, and unambiguous, and that the alleged violator possessed the ability to comply with the order. McGregor v. Chierico, 206 F.3d 1378, 1383 (11th Cir.2000). “Once this prima facie showing of a violation is made, the burden then shifts to the alleged
8

contemnor ‘to produce evidence explaining his noncompliance’ at a ‘show cause’ hearing.” Chairs v. Burgess, 143 F.3d 1432, 1436 (11th Cir.1998) (quoting Citronelle–Mobile Gathering, Inc. v. Watkins, 943 F.2d 1297, 1301 (11th Cir.1991)). The contemnor must show “either that he did not violate the court order or that he was excused from complying.” Mercer, 908 F.2d at 768.
*13 This burden of production is not satisfied by “a mere assertion of inability.” United States v. Hayes, 722 F.2d 723, 725 (11th Cir.1984). Rather, in this circuit, a party subject to a court’s order demonstrates inability to comply only by showing that he has made “in good faith all reasonable efforts to comply.” United States v. Rizzo, 539 F.2d 458, 465 (5th Cir.1976) (citing United States v. Ryan, 402 U.S. 530, 534, 91 S.Ct. 1580, 1583, 29 L.Ed.2d 85 (1971)).
United States v. Roberts, 858 F.2d 698, 701 (11th Cir.1988). Despite that standard’s use of the subjective term “good faith,” the inquiry is an objective one: that is,
the focus of the court’s inquiry in civil contempt proceedings is not on the subjective beliefs or intent of the alleged contemnors in complying with the order, but whether in fact their conduct complied with the order at issue. Jim Walter Resources, Inc. v. Int’l. Union, United Mine Workers of America, 609 F.2d 165, 168 (5th Cir.1980). Conduct that evinces substantial, but not complete, compliance with the court order may be excused if it was made as part of a good faith effort at compliance. Newman [v. Graddick], 740 F.2d [1513,] 1524 [ (11th Cir.1984) ].
Howard Johnson Co., Inc. v. Khimani, 892 F.2d 1512, 1516 (11th Cir.1990) (alterations supplied).
Even so, the Eleventh Circuit has made it clear that a party’s recent (i.e., hurried, eleventh-hour) compliance with the requirements of a consent decree in advance of a contempt hearing does not excuse its past noncompliance. A party has no “license to flout or wilfully to disobey a court order by violating the order and then complying with the order before the contempt proceeding begins.” Mercer, 908 F.2d at 769 n. 10. If that occurs,
the court still will have two means of coercing compliance or

punishing the defendant. First, the court may conclude that, even though the defendant is in technical compliance at the time of the proceeding, the defendant’s prior conduct indicates that he will not continue to comply with the court’s injunction. In such a case, it may be appropriate to hold the defendant in civil contempt and sanction him until he satisfies the court that he will indeed obey the injunction. Second, if the court finds the defendant acted wilfully or maliciously in disregarding the injunction, then the court may cite the defendant for criminal contempt. See United States v. Hilburn, 625 F.2d 1177, 1179 (5th Cir.1980). In such a case, the court may fully vindicate its authority with a fine, imprisonment, or both. Thus, in no situation is the court left without authority to act when the defendant appears to be flouting judicial authority.
Id. (emphasis supplied). See also Chairs v. Burgess, 25 F.Supp.2d 1333, 1338 (N.D.Ala.1998) (holding that the defendant in a consent decree case could not “moot the issue [of contempt] by simply bringing itself into compliance by the time of the Show Cause Hearing”) (alteration supplied).
*14 “The district court has wide discretion to fashion an equitable remedy for contempt that is appropriate to the circumstances,” bearing in mind that “[t]he purposes of civil contempt sanctions are ‘to coerce the defendant into compliance with the court’s order, and to compensate the complainant for losses sustained.’ “ EEOC v. Guardian Pools, Inc., 828 F.2d 1507, 1515 (11th Cir.1987) (quoting Local 28 of Sheet Metal Workers’ International Association v. EEOC, 478 U.S. 481, 443 (1986), and also citing Norman Bridge Drug Co. v. Banner, 529 F.2d 822, 827 (5th Cir.1976)) (alteration supplied).70
Thus, “ ‘[t]he measure of the court’s power in civil contempt proceedings is determined by the requirements of full remedial relief. This may entail the doing of a variety of acts....’ “ Guardian Pools, 828 F.2d at 1515 (quoting McComb v. Jacksonville Paper Co., 336 U.S. 187, 193, 69 S.Ct. 497, 93 L.Ed. 599 (1949)) (alteration supplied). One such act is the appointment of a receiver. Dixon v. Barry, 967 F.Supp. 535, 550 (D.D.C.1997) (holding that the court’s “equitable power includes the
9

power to appoint a receiver”) (citing Morgan v. McDonough, 540 F.2d 527, 533 (1st Cir.1976). See also, e.g., Bracco v. Lackner, 462 F.Supp. 436, 455 (N.D.Cal.1978); Petitpren v. Taylor School District, 104 Mich.App. 283, 304 N.W.2d 553, 557 (Mich.Ct.App.1981)).
“The appointment of a person to carry out functions the court deems necessary to provide full and complete relief is not a novelty in American jurisprudence.” Wayne County Jail Inmates v. Lucas, 391 Mich. 359, 216 N.W.2d 910, 913 (Mich.1974) (en banc ) (footnoted citations omitted) (“Wayne I ”); see also, e.g., Wayne County Jail Inmates v. Wayne County Chief Executive Officer, 178 Mich.App. 634, 444 N.W.2d 549, 556 & n. 2 (Mich.Ct.App.1989) (“Wayne II ”) (same); Morgan, 540 F.2d at 533 (“A district court’s power to fashion and effectuate desegregation decrees is broad and flexible, and the remedies may be ‘administratively awkward, inconvenient, and even bizarre.’ ”) (quoting Swann v. Charlotte–Mecklenburg Board of Education, 402 U.S. 1, 28, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971)); District of Columbia v. Jerry M., 738 A.2d 1206, 1213 (D.C.1999) (“The court has the power, pursuant to its equity jurisdiction, to take broad remedial action to secure compliance with its orders, including the power to appoint a receiver.”) (citing Dixon, 967 F.Supp. at 500); Judge Rotenberg Educational Center, Inc. v. Commissioner of the Department of Mental Retardation, 424 Mass. 430, 677 N.E.2d 127, 148 (Mass.1997) (“Public officials who fail to abide by legal standards are not immune to these remedies.... A court with equity jurisdiction has the discretion to appoint a receiver to take over the main functions of public officials.”) (citations omitted), abrogated on other grounds by In re Birchall, 454 Mass. 837, 913 N.E.2d 799, 813 (Mass.2009).
Receivers have been appointed “to coerce public officials to comply with legal mandates in a number of factual settings, including public schools, housing, highways, nursing homes, and prisons.” Dixon, 967 F.Supp. at 550.
*15 The mechanisms at work in the creation of ... a receivership of a public institution, are fairly clear. The political process has failed to produce an institution conforming to law and those subjected to the illegality, who are usually politically powerless (cf. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 783, 82 L.Ed. 1234 (1938)), turn to the courts for the vindication of their rights. Injunctive remedies are

called for, but the judge lacks expertness in the particular field, and lacks time even when he chances to have the knowledge. Hence the appointment of adjunct officers who supply expert knowledge and sometimes implicitly encourage acceptance by the parties and the general public of the results of the judicial intervention.
Perez v. Boston Housing Authority, 379 Mass. 703, 400 N.E.2d 1231, 1250 n. 29 (Mass.1980).
Even so, the appointment of a receiver to act in the place of “elected and appointed officials is an extraordinary step warranted only by the most compelling circumstances.” Morgan, 540 F.2d at 535. “Essentially it is the remedy of last resort, and therefore, should be undertaken only when absolutely necessary.” Jerry M., 738 A.2d at 1213 (citing LaShawn A., by Moore v. Kelly, 144 F.3d 847, 854 (D.C.Cir.1998)). See also Canada Life Assurance Co. v. LaPeter, 563 F.3d 837, 844 (9th Cir.2009) (“Under federal law, appointing a ‘receiver is an extraordinary equitable remedy,’ which should be applied with caution.”) (quoting Aviation Supply Corp. v. R.S.B.I. Aerospace, Inc., 999 F.2d 314, 316 (8th Cir.1993)).
Because the imposition of a receivership is an equitable remedy, it is available only when there is no adequate legal remedy. United States v. Bradley, 644 F.3d 1213, 1310 (11th Cir.2011). Thus, the primary consideration is “whether any other remedy is likely to be successful.” Dixon, 967 F.Supp. at 550 (citing Shaw v. Allen, 771 F.Supp. 760, 762 (S.D.W.Va.1990) (“Where more traditional remedies, such as contempt proceedings or injunctions, are inadequate under the circumstances a court acting within its equitable powers is justified, particularly in aid of an outstanding injunction, in implementing less common remedies, such as a receivership, so as to achieve compliance with a constitutional mandate.”); Newman v. Alabama, 466 F.Supp. 628, 635 (M.D.Ala.1979) (“When the usual remedies are inadequate, a court is justified in resorting to a receivership, particularly when it acts in aid of an outstanding injunction.”); Bracco, 462 F.Supp. at 456 (noting that a receiver is a “remedy of last resort; a receiver should not be appointed if a less drastic remedy exists”); Petitpren, 304 N.W.2d at 557 (finding a receiver appropriate only when “other approaches have failed to bring compliance with a court’s orders, whether through intransigence or incompetence”)).
Courts in the District of Columbia—the jurisdiction in
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which most of the reported receiverships have been imposed on public institutions—have identified six, nonexhaustive factors to consider when determining whether other remedies are inadequate, and whether the imposition of a receivership remains the only viable option for coercing compliance with court orders. These include:
*16 (1) “whether there were repeated failures to comply with the Court’s orders”; (2) whether further efforts to secure compliance would only lead to “confrontation and delay”; (3) whether leadership is available which can “turn the tide within a reasonable time period”; (4) “whether there was bad faith”; (5) “whether resources are being wasted”; and, (6) “whether a receiver can provide a quick and efficient remedy.”
Jerry M., 738 A.2d at 1213 (quoting Dixon, 967 F.Supp. at 550–51 (citing, in turn, Judge Rotenberg Educational Center, 677 N.E.2d at 148–49, and Morgan, 540 F.2d at 533 (“Remedial devices should be effective and relief prompt.”))).
III. STANDARDS FOR MODIFICATION OF A CONSENT DECREE
The Martin–Bryant parties also have asked this court to modify some provisions of the County’s consent decree. The Supreme Court promulgated a two-pronged standard for determining when (and to what extent) an institutional-reform consent decree that “arguably relates to the vindication of a constitutional right” should be modified in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 383 n. 7, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992). The first prong requires the party seeking modification to “establish that a significant change in facts or law warrants revision of the decree.” Id. at 383. If the moving party satisfies that prerequisite, then the second prong requires the court to make modifications that are “suitably tailored” to address the new factual or legal environment. Id. See also Ensley II, 31 F.3d at 1563.
A. Significant Change in Facts or Law The prerequisite for proof of a significant change in either the facts or legal circumstances upon which the consent decree was based “is interpreted flexibly, and different sorts of factual changes may qualify as changed circumstances permitting modification.” Reynolds v. McInnes, 338 F.3d 1221, 1226 (11th Cir.2003) (citing Ensley II, 31 F.3d at 1563). According to the Supreme Court, modification based on factual change may be

warranted “when changed factual conditions make compliance with the decree substantially more onerous,” or “when a decree proves to be unworkable because of unforeseen obstacles,” or “when enforcement of the decree without modification would be detrimental to the public interest.” Rufo, 502 U.S. at 384–85.
The Eleventh Circuit has also held that modification is warranted “when ‘significant time has passed and the objectives of the original agreement have not been met’ despite the defendants’ efforts, or when a continuation of the decree would be inequitable.” Reynolds, 338 F.3d at 1227 (citations omitted).
B. “Suitably Tailored” Modifications If significant factual or legal changes are established, the court must then “determine the appropriate scope of the changes, accepting only proposals that are ‘suitably tailored’ to address significant factual developments or conflicts between new legal standards and the requirements of the decree.” Ensley II, 31 F.3d at 1563– 64 (quoting Rufo, 502 U.S. at 393). The court has broad discretion in making that determination, but it “may not modify a decree in a way that would ‘violate the basic purpose of the decree,’ and must under no circumstances ‘create or perpetuate a constitutional violation.’ “ Id. at 1564 (quoting Rufo, 502 U.S. at 391).
IV. THE COUNTY’S ADMISSIONS OF NONCOMPLIANCE
*17 The County admitted that it has not complied with significant portions of its consent decree. The admissions are set out in the following paragraphs of the County’s post-trial brief:
56. The County has not evaluated supervisory personnel, in part, on the basis of their compliance with their responsibilities as well as their cooperation with the Affirmative Action Officer as required by paragraph 31 of the Consent Decree.[71] ...
57. Prior to June 29, 2004, the County did not institute a formal affirmative recruitment program designed to inform African Americans and females of job opportunities with the County, as required by paragraph 16 of the Consent Decree.[72] ...
58. Prior to June 29, 2004, the County did not consistently inform its employees of all opportunities
11

for promotion or transfer, nor did it insure that all written announcements received from the Personnel Board for hiring, promotion and training opportunities with the County were made available to all of its employees reasonably in advance of any scheduled examinations or training for such positions and posted in conspicuous places, as required by paragraph 18 of the Consent Decree.[73] ...
59. Prior to February 1, 2005, the County did not consistently instruct supervisory personnel regarding their responsibilities as they relate to carrying out the provisions of the Consent Decree, as required by paragraph 31 of the Consent Decree.[74] ...
60. Prior to February 1, 2005, the County did not maintain a complete record of all actions taken in pursuit of the duties in the Consent Decree, including correspondence relating to any complaints or investigations undertaken pursuant to the decree and any investigatory files, as required by paragraph 33(e) of the Consent Decree.[75] ...
61. Prior to June 29, 2004, the County did not maintain a list of all organizations and schools which are contacted for recruitment purposes for classified positions, showing the date that any notice of job opportunity was mailed to them, the title of the job to be filled from that notice, and the date through which applications would be received for the job, as required by paragraph 51(a) of the Consent Decree.[76] ...
62. Prior to June 29, 2004, the County failed to meet its own independent recruiting obligations under paragraphs [77] and 51(a) [78] of the Consent Decree, which are not delegable to the Personnel Board....
63. Prior to June 29, 2004, the County did not consistently maintain all written applications and related records for all persons seeking employment with the County, including applications for transfer or promotions within or among departments for a period of at least five years, as required by paragraph 51(b) of the Consent Decree.[79] ...
64. Prior to February 1, 2005, the County did not consistently maintain records containing a statement by the appropriate County official, setting forth the reasons why any applicant was found not to be qualified for the position(s) applied for, as required by paragraph 51(b) of the Consent Decree.[[[80] ...
*18 65. Prior to October 2008, the County did not consistently produce semi-annual reports containing a summary showing the total number of current employees by race and sex in each job classification for

each department of the County in both the classified and unclassified service, as required by paragraph 52(a) of the Consent Decree.[81] ...
66. Prior to October 2008, the County did not consistently produce semi-annual reports containing a list of all probational appointments for permanent fulltime positions, by job classification and department, during the six month reporting period, indicating the race and sex of the persons hired or promoted, as required by paragraph 52(b) of the Consent Decree.[82] ...
67. Prior to October 2008, the County did not consistently produce annual reports listing all persons, by job classification, department, race and sex, to whom positions had been offered with an indication thereon of whether or not the person was accepted, as required by paragraph 53(a) of the Consent Decree.[[[83] ...
68. Prior to October 2008, the County did not consistently produce annual reports listing all promotions to permanent full-time positions in the classified service, by job classification and department, during the twelve month reporting period indicating the race, sex, date of initial hire in the classified service and date of the promotion, as required by paragraph 53(b) of the Consent Decree.[84] ...
69. Prior to October 2008, the County did not consistently produce annual reports with a breakdown of the applicant flow for employment with the County which indicates by race and sex the number of applicants for each department and job classification in the classified and unclassified service, and the number of applicants hired, rejected and pending for each job classification and department, as required by paragraph 53(c) of the Consent Decree .[[[85] ...
70. Prior to February 1, 2005, with respect to all applicants who were certified for hire or promotion and who were not selected for the vacancy for which the applicant was certified, the County did not record in writing, signed by the appropriate County official, the reasons for the applicant not being selected for the vacancy, as required by paragraph 53(c) of the Consent Decree.[[[86] ...
71. Prior to October 2008, the County did not consistently produce annual summary reports of the recruiting activities conducted by the County for classified positions and the results of those activities, as required by paragraph 53(d) of the Consent Decree.[87] ... Doc. no. 1772 (County’s Post–Trial Brief) ¶¶ 56–71, at
12

14–19 (emphasis and alterations supplied).

V. THE COUNTY’S STIPULATIONS AS TO MODIFICATIONS

The County has stipulated to certain modifications of its consent decree.88 With regard to employee selection procedures, the County believes that there are 177 job classifications that the plaintiffs have identified as “problematic.”89 The County has offered to hire by random selection in 165 of those 177 job classifications.

*19 Addressing the remaining twelve jobs—i.e., Chief

Accountant, Chief Security Officer, Environmental

Biologist, Environmental Lab Compliance Administrator,

HVAC/Refrigeration

Technician,

Sewer

Construction/Maintenance Supervisor, Sewer Video

Supervisor, Senior Maintenance Repair Worker, Waste

Water Treatment Plant Shift Supervisor, Waste Water

Treatment Plant Supervisor, and GIS Manager—the

County proposes that those job classifications should be

further analyzed by the parties “for adverse impact”; and,

to the extent that any adverse impact is detected, the

County agrees to retain an “Industrial–Organizational

psychologist”90 to develop and validate selection

procedures for these positions.91

Furthermore, to the extent additional job classifications are shown to have adverse impact because of the County’s selection procedures, the County will either choose to hire via random selection or will agree to a schedule in the modified Decree for the hiring of an I/O psychologist to validate the selection procedures for those positions.92 In addition to consenting to the foregoing modifications of the consent decree provisions that pertain to the 177 socalled “Included Jobs,” the County has stipulated as follows:

• The County will agree to the appointment of a Monitor who will work with a County hired I/O psychologist to ensure the County satisfies its selection procedure development obligations as they are determined by the Court and the Special Master.

• The County agrees to have all provisional, temporary or emergency appointments for the 177 jobs to be submitted, reviewed and approved by the Monitor, as requested by the Plaintiffs.

• The County agrees to have the use of independent contractors submitted, reviewed and approved by the Monitor, as requested by the Plaintiffs.

• The County agrees to have all requests to terminate or recertify certification lists for the 177 jobs to be submitted, reviewed and approved by the Monitor, as requested by Plaintiffs.

• The County agrees to retool the Affirmative Action Officer position and have the Monitor review and approve improvements to the Affirmative Action Officer position, as requested by Plaintiffs.

• The County agrees to work with the Monitor to improve its recruitment plan, anti-harassment policy, and discrimination complaint process as requested by Plaintiffs.

• The County agrees not to terminate or request to recertify a certification list without having used an objective, job-related selection procedure to evaluate each certified applicant on that list as requested by Plaintiffs.

• As to the remaining paragraphs in Plaintiffs’ Prayer

for

Relief

regarding

provisional

appointments/independent contractors, anti-nepotism

policy, employees working outside of classification,

anti-harassment policy, posting of vacancies,

document retention, mandatory Consent Decree

training, anti-nepotism policy training,

harassment/discrimination policy training, diversity

training, recruitment of females and African[-

]Americans, and recordkeeping, [sic] and reporting

obligations, the County will review its current

policies and procedures with the Monitor to

determine ways to improve the same. The County is

willing to discuss with Plaintiffs and the Court

further modifications to the Consent Decree

regarding these areas.

*20 Doc. no. 1772 (County’s Post–Trial Brief), at 61–62 (alteration supplied).

VI. DISCUSSION
The present posture of this case, if not unique, surely is unusual, in that Jefferson County has admitted that it willfully disobeyed significant requirements of its consent decree. The questions that remain to be resolved, then, are the extent of that contumacious conduct, and, the appropriate remedy.93
The Martin–Bryant parties assert that a Receiver should be appointed to control all of the County’s personnel functions. In response, the County argues that the drastic
13

remedy of a receivership is unwarranted, based upon the facts presented at trial and, particularly, the County’s recent efforts at compliance.
A. The County’s Irrelevant Arguments The County repeatedly asserts three arguments in its posttrial briefing that have little bearing on this court’s decision of what remedy to impose for the County’s admitted contempt, and that confuse the actual issues before the court. First, the County repeatedly compares itself to the Personnel Board of Jefferson County, over which this court imposed a receivership in 2002.94 The County seems to believe that, by arguing that its behavior is not “as bad” as was that of the Personnel Board, it can be saved from the same fate that befell the Board.95 That is not necessarily the case. While the court will apply the same factors in the present controversy as it applied when deciding whether to impose a receivership over the Personnel Board, those factors will be independently applied to the County’s actions. The Board’s past misfeasance and nonfeasance has no bearing on the receivership analysis for the County. Indeed, it is possible for the court to find the County’s conduct to not be as “bad” as was the Board’s in 2002, but still conclude that a receivership should be imposed.
Second, the County repeatedly references its poor financial situation.96 According to the County:
When the current Commission came into office, the County was faced with a number of problems such as four billion dollars of debt that the County could not service financially, economic development issues due to stymied population growth, a consent decree with the Environmental Protection Agency and this Federal consent decree related to employment practices.97 It also is widely known that the County filed for Chapter 9 Bankruptcy protection on November 9, 2011.98 That proceeding still is pending. Even so, the bankruptcy case did not prevent the hearing on the present motion of the Martin–Bryant parties from going forward,99 and neither the County’s bankruptcy nor its general financial condition will prevent this court from imposing whatever remedy it determines appropriate for the purpose of correcting the County’s contempt.100 As Judge Frank M. Johnson, Jr., once observed, “[t]he Constitution does not put a price on constitutional rights, in terms either of time or money. The rights guaranteed by the Constitution are to be made effective in the present.”101 Those observations hold true when one considers that the County has been under the obligations of its decree since 1982, decades before it began to suffer the financial problems that ultimately led to its 2011 bankruptcy filing. If the County

and its legal advisors had not squandered numerous opportunities to profit from observance of the errors of the Personnel Board’s ways, and to voluntarily bring County government into compliance with the requirements of its decree during times of plenty, it would not have been necessary to plead for leniency during a time of depleted resources.102
*21 Finally, the County offers evidence of the overall racial composition of its workforce in an effort to demonstrate its alleged recent progress toward decree compliance. Specifically, the County points out that the number of African–Americans working for the County has grown in all but four job classifications since the decree was entered in 1982, and that the number of females has grown in all but two jobs. It also points out that the percentage of African–Americans in the County workforce as a whole has grown from 17 percent in 1982 to 38 percent today, and the percentage of females in the County workforce as a whole has grown from 32 to 40 percent. Those statistics are even greater for positions in the higher pay grades of 21 through 30.103
Even assuming that the statistics presented by the County are correct, the relative increase in the number and percentage of blacks and females in the County workforce does not demonstrate either the County’s good faith, or its compliance with the requirements of its consent decree. While increasing the overall numbers of blacks and females employed by the County certainly is not a bad thing, the decree does not merely require the County to hire more blacks and females. Instead, the decree prohibits discrimination of any kind on the basis of race or gender,104 and it requires that blacks and females be considered for employment with the County on the same basis as whites and males.105 Achieving the goals set forth in the decree requires that every hiring decision for every job at the County be made without regard to race or sex. The decree sets its own benchmarks for evaluating whether those goals have been met. Specifically, paragraph 5 states that:
The objectives of this Decree will be considered to be attained in entry level jobs when the percentage of qualified blacks and women employed by the County in each of the jobs identified in paragraphs 7, 8, and 11 and in Appendices A and B of this Decree approximates their respective percentages in the civilian labor force of Jefferson County.... For jobs that require a professional degree, license or certificate, and where it can be shown that blacks and/or women hold such degrees, licenses or certificates in percentage terms which are lower than their respective percentage representations in the civilian labor force of Jefferson County, the parties agree that the attainment of the
14

objectives of this Decree for such jobs shall be based upon the best available information as to the availability of qualified blacks and women for such jobs.... If the County fails to meet these objectives in a particular job or jobs, it shall have the burden of demonstrating that it made a good faith effort to achieve such objectives, and that it otherwise complied with the affirmative recruitment and nondiscriminatory selection requirements for such positions as set forth in Part II of this Decree.106 Thus, the County’s data about the overall composition of its workforce says nothing about whether it has attained the decree’s stated goals with regard to specific positions, and that data has little relevance to the analysis of whether the County has complied with the decree. If anything, the County’s repeated focus on the overall employment numbers as an indication of its compliance with the decree demonstrates a fundamental misunderstanding of the requirements of its decree.
B. Receivership Factors *22 The court will begin its discussion of whether to appoint a receiver by addressing six questions. First, have there been repeated failures to comply with court orders? Second, will further efforts to secure compliance only lead to confrontation and delay? Third, is leadership available to turn the tide within a reasonable time? Fourth, has there been “bad faith” on the part of the County? Fifth, are resources being wasted? Finally, can a Receiver provide a quick and efficient remedy? See, e.g., Morgan v. McDonough, 540 F.2d 527, 533 (1st Cir.1976); Dixon v. Barry, 967 F.Supp. 535, 550–51 (D.D.C.1997); District of Columbia v. Jerry M., 738 A.2d 1206, 1213 (D.C.1999); Judge Rotenberg Educational Center, Inc. v. Commissioner of the Department of Mental Retardation, 424 Mass. 430, 677 N.E.2d 127, 148–49 (Mass.1997).
The foregoing factors are non-exhaustive, and serve only as a starting point for the equitable analysis.
1. Have there been repeated failures to comply with court orders? The County’s consent decree was entered on December 29, 1982, and the County openly admits that today, more than thirty years later, it still is not complying with all of the requirements of its decree. If thirty years of failing to comply does not constitute “repeated failures,” nothing does.
The County makes much of the assertion that it has not been under any “interim deadlines” similar to the

“schedule of deliverables” this court imposed upon the Personnel Board in 2000, requiring certain actions to be completed by specified dates.107 That is of no consequence. Regardless of whether additional interim deadlines were imposed after the decree was entered, regardless of whatever else might be said by way of excuse, this glaring fact remains: the County has repeatedly failed to comply with significant portions of its decree.108
Indeed, the number and breadth of the admitted violations set out in Part IV of this opinion, supra, speak loudly, as they represent between 22 and 26 years of stipulated failures to comply with provisions of the County’s decree. Despite acknowledging decades of contumacious conduct, the County asserts that it has more recently—i.e., within the past seven years, or since the date on which the Martin–Bryant parties began to investigate the County’s contempt and take steps to enforce its decree—“made efforts” and “taken steps” to bring itself into compliance with the decree.
These efforts include (1) creating a Human Resources (“HR”) Department and discussing Decree compliance with the Director when she was hired; (2) retaining two Affirmative Action Officers charged with investigating employee complaints and training; (3) adopting formal antiharassment and anti-nepotism policies; (4) conducting training on these policies and having over 2500 employees complete Employment of Relatives Forms; (5) training over 1600 employees specifically on the provisions of the Decree; (6) recruiting for positions at historically black colleges and universities; (7) consistently producing semi-annual and annual reports to Plaintiffs since October 2008; (8) producing monthly reports to the Commission President and now to the County Manager regarding Decree compliance and (9) distributing quarterly newsletters to employees instructing how to obtain a copy of the Decree and contact information for the Affirmative Action Officers.109
*23 While the court does not question that the County has recently made some progress toward decree compliance,
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the Martin–Bryant parties have demonstrated that even the County’s Johnny-come-lately efforts to atone for past sins have fallen short in many areas.110
a. Human Resources Department It is undisputed: that the County created a centralized Human Resources Department in 2004; that Demetrius Taylor, an African–American female, serves as Director of that Department; and that the County’s consent decree was discussed with Ms. Taylor when she was selected for the position.111 It also is undisputed that many of the subdepartment heads and other employees of the Department are African–American and/or female.112
This court does not question that centralization of all human resource functions under a single department was a responsible decision, or that, in theory, such centralization should have caused the County’s human resource functions to operate more smoothly, and should have reduced the potential for improper outside influence. Despite the appeal of the concept of a centralized Human Resources Department, the Martin–Bryant parties have pointed out several ways in which the Department has failed to realize its theoretical potential. For example, the Department has failed to generate all of the reports, and to make all of the comparisons, required by paragraphs 5, 13, 14, and 16 of the decree (or, if it has generated such reports and comparisons, Ms. Taylor was not aware of their existence).113
During Ms. Taylor’s deposition in 2007, it became apparent that she did not understand certain concepts that are fundamental to consent decree compliance, including the distinction between a job description and a job analysis, and the concept of validating a structured interview. She also erroneously testified that the County had an affirmative action program.114
Mercy Ireri, who was placed in charge of administering the County’s structured interview program, did not have any prior experience with test validation or structured interviews; and, during her deposition, her testimony revealed that she was not familiar with all provisions of the consent decree.115
The Martin–Bryant parties also provided several examples of the Human Resources Department either approving, or overlooking, the hiring of less qualified male or white applicants for certain positions over more qualified female or African–American applicants, including one egregious example of a Human Resources employee directing a supervisor to change an applicant’s interview score so there would be justification for hiring a

different applicant.116
These facts demonstrate that the Human Resources Department has not been as effective as it should have been in assisting the County in its compliance with the consent decree.
b. Affirmative Action Officers Paragraph 33 of the County’s consent decree requires the appointment of an Affirmative Action Officer, who is to be assigned the following, far-reaching responsibilities:
*24 (a) Advise black and female employees of the terms of this decree;
(b) Post his or her office hours and location and copies of this Decree in conspicuous places within each department or operational unit of the County;
(c) Receive and investigate oral or written complaints of race and sex discrimination and conciliate such complaints when appropriate, and notwithstanding any other provisions of law, establish a written procedure which shall govern such complaints;
(d) Meet periodically with department heads to assess their progress in meeting the objectives of this Decree;
(e) Maintain a complete record of all actions taken in pursuit of the duties prescribed herein, including all correspondence directed to or from the County with respect to any complaints or investigations undertaken pursuant to this Consent Decree and any investigatory files.
(f) If within any six month reporting period prescribed by paragraphs 37 and 39 below, the County determines that it is failing to meet any of the objectives contained in Part II, subpart A of this Decree, the County shall require the Affirmative Action Officer to review the future selection decisions of the appointing authority in the job(s) and Department(s) in which such objectives were not met in order to insure [sic] compliance with this Decree. As part of this review the Affirmative Action Officer shall review the appointing authority’s written justification for failure to select certified black or female applicants in the jobs for which the objectives of the Decree were not met, and shall submit his or her written comments together with the appointing authority’s written justification to the County Attorney. Appointments may be made in the job(s) and Department(s) under review while such review is pending before the Affirmative Action Officer or the County Attorney, provided, however,
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that blacks or women who are found to have been improperly denied employment or consideration for employment during the period covered by the review shall be eligible for recertification and employment in a future vacancy in the jobs to which they were originally certified, with all rights, benefits and compensation that they would otherwise be entitled to under the provisions of paragraphs 1 and 2 of this Decree.
(g) The Affirmative Action Officer shall report at least semiannually to the County Commissioners his findings with respect to any investigations undertaken pursuant to his above described responsibilities.
(h) The Affirmative Action Officer referred to herein shall be appointed by the County within thirty (30) days after final approval of this Decree. The County shall inform the plaintiffs of any changes in the identity of the Affirmative Action Officer.
Plaintiff’s Exhibit 13 (Jefferson County Consent Decree) ¶ 33.
The County asserts that Kimberly Oden–Webster and Ben Sullen serve as the “Affirmative Action Officers” required by paragraph 33. Mr. Sullen did not testify at trial, but Ms. Oden–Webster testified that her job duties include investigating employee complaints, conducting training on employment policies, and mediating disputes.117 An African–American female County employee named Malinda Parker testified that, when she had an employment-related complaint, she knew she should address it to Ms. Oden–Webster, although she thought Oden–Webster was a “compliance officer,” and not an “affirmative action officer.” She knew the location of Ms. Oden–Webster’s office, and she had no trouble reaching her for the purpose of lodging a complaint. She also believed that Ms. Oden–Webster seriously considered her complaint, and treated her in a respectful manner.118
*25 Those facts demonstrate that the County has two employees who perform some of the duties required by paragraph 33 of its decree. Even so, it is questionable whether either Mr. Sullen or Ms. Oden–Webster should be considered “Affirmative Action Officers.” And, it is clear that Mr. Sullen and Ms. Oden–Webster do not, either individually or jointly, perform all of the functions required by paragraph 33. Moreover, the decree does not authorize the appointment of two Affirmative Action Officers. Instead, it clearly contemplates a single Affirmative Action Officer.
Furthermore, neither Mr. Sullen nor Ms. Oden–Webster has the job title of “Affirmative Action Officer.” Instead,

Mr. Sullen’s official title is “Personnel Analyst II,” and Ms. Oden–Webster is classified as an “Employee Relations Officer.” The County issued an Administrative Order on June 29, 2004, stating that the Employee Relations Officer would be designated as the County’s Affirmative Action Officer; and it amended that order on March 25, 2008, to also designate the Personnel Analyst II position as an Affirmative Action Officer.119 Even so, there is no indication that anyone was officially deemed the County’s Affirmative Action Officer prior to 2004, although the County appears to claim that Ms. Oden– Webster has performed the duties of the Affirmative Action Officer since she was hired in 1993.120
Regardless of the official job title, and even assuming that Ms. Oden–Webster had the same duties in 1993 as she had in 2004, her position still did not fulfill all the requirements of paragraph 33 of the consent decree, and there is no indication that anyone else fulfilled those requirements.
Furthermore, it is undisputed that an Affirmative Action Officer was not appointed within thirty days of Judge Pointer’s approval of the County’s decree, as required by paragraph 33(h). Instead, the County did not make any effort to appoint such an official until 2004 at the earliest, more than two decades after the decree was approved.
As of March 2009, when the first installment of the contempt trial began, neither Ms. Oden–Webster nor any other County employee was advising African–American and female employees of the terms of the consent decree, as required by paragraph 33(a).121 Sometime in 2009, the County began providing all new employees with one to two hours of consent decree training. The County also began conducting similar training with existing employees, but it only reached about half of the existing workforce before employee shortages in the Human Resources Department caused it to stop.122 The training consisted of a “Power Point®” presentation and an accompanying handout explaining certain portions of the decree.123 Although the training materials contained a link to a full copy of the decree on the County’s intranet site and other information about where to find full copies of the decree, the materials themselves omitted any mention of several of the key provisions of the decree, including paragraph 1, which enjoins the County from engaging in discriminatory acts, and paragraph 5, which states that a “major purpose” of the decree is that of hiring qualified African–American and female applicants according to their percentage representation on certification lists prepared by the Personnel Board or in applicant pools.124
*26 Moreover, testimony from managers of some County departments revealed that they lacked a basic
17

understanding of many of the consent decree’s provisions, despite having attended the consent decree training. For example, Jon Fancher, the Painter Superintendent, knew that the decree prevented discrimination, but he had never seen the full decree, he did not know that the position of Painter was subject to special requirements under the decree,125 and he had hired a lower-ranking white male candidate over higher-ranking African–American and female candidates.126 Robby Bennett, a Wastewater Treatment Plant Manager, also attended consent decree training, but he had never seen or read the decree, and he did not know that the Waste Water Treatment Plant Operator position was subject to special requirements under the decree, even though he was in charge of hiring for that position.127 Similarly, William Corley, the Highway District Superintendent for the Roads and Transportation Department, testified that, despite attending consent decree training, he had never read the decree, never been instructed that the County had any obligation to increase the number of African–Americans and women in the workplace, and did not know that the Truck Driver position was subject to special requirements under the decree, even though he was in charge of hiring for that position.128
The County did adopt an Anti–Harassment Policy on March 25, 2008, but the policy was not drafted by either Ms. Oden–Webster or Mr. Sullen.129 The County has not presented evidence of any other written procedures governing discrimination complaints “established” by the Affirmative Action Officer, as required by paragraph 33(c).
Ms. Oden–Webster testified during her 2007 deposition that she had met with some, but not all, department heads regarding their progress in meeting the objectives of the decree, as required by paragraph 33(d).130 However, she clarified during her 2009 trial testimony that she did not discuss with the department heads their progress toward satisfying provisions of the decree that require comparisons of employees hired to certification lists or applicant pools.131 All of the department heads and division managers in the General Services, Roads and Transportation, Information Technology, and Environmental Services departments testified during their depositions that they had never met with Ms. Oden– Webster regarding their respective departments’ progress toward decree compliance.132 The parties have pointed the court to no evidence establishing that, after March of 2009, Ms. OdenWebster, or any other county employee, satisfied the requirements of paragraph 33(d).
As discussed, the County has conceded that, prior to 2005, it did not satisfy paragraph 33(e), which requires the Affirmative Action Officer to maintain a complete

record of all actions taken to comply with the decree. The evidence shows that paragraph 33(e) also was not fully satisfied after 2005. Ms. Oden–Webster testified in 2009 that she kept records of all employee complaints and training efforts, but she did not have any records regarding efforts to comply with other requirements of the decree.133 The parties have not pointed the court to any evidence establishing that, after March of 2009, Ms. Oden–Webster, or any other County employee, satisfied the requirements of paragraph 33(e).
*27 Ms. Oden–Webster testified during the abbreviated trial in March of 2009 that she was not aware of any of the requirements of paragraph 33(f) of the decree, and that she had never performed any of the tasks set forth in that paragraph. She also was not aware of anyone else performing those tasks.134 The parties have not pointed the court to any evidence establishing that, after March of 2009, Ms. Oden–Webster, or any other County employee, satisfied the requirements of paragraph 33(f).
Finally, there is no evidence that Ms. Oden–Webster, or anyone else purporting to act as the Affirmative Action Officer, has ever made semi-annual reports to the County Commissioners, as required by paragraph 33(g). Ms. Oden–Webster testified during her 2007 deposition that she had never made any such reports, and there is no evidence that she started making those reports at any later date.
c. Anti-harassment and anti-nepotism policies and training It is undisputed that the County adopted Anti–Nepotism and Anti–Harassment Policies on March 25, 2008, the same day this court ordered the County to show cause why it should not be held in contempt for failing to comply with the consent decree.135 The Anti–Nepotism Policy restricts the ability of “related persons” to work together, but it does not restrict the employment or work of friends or other people in non-romantic, non-familial relationships. The policy has only prospective application; it does not affect the employment relationships of “related persons” who already were working together on the date the policy was adopted.136
Prior to the institution of the Anti–Nepotism Policy, hires based on nepotism and “cronyism” were common at the County.137 The record also contains evidence of at least one egregious example of cronyism after the adoption of the Anti–Nepotism Policy. Specifically, the position of “Director of Tax Collections” became vacant in the Spring of 2007 due to the retirement of the previous Director.138 The Personnel Board’s job description for that
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position defined its “Essential Functions” as follows:

Directs the collection of current and/or delinquent ad

valorem real and personal property taxes in Jefferson

County; directs the collection and distribution of land

redemption revenues, personal property taxes and the

sale of property for non-payment of taxes. Plans,

organizes, directs, coordinates, and evaluates the work

of 15 to 25 employees engaged in billing, collection,

posting, and distribution of real and personal property

taxes through supervising staff. Designs and

implements an activity schedule to coordinate the

annual billing and collection of 300,000 tax accounts.

Plans and prepares the annual departmental operating

budget of $1,000,000 to $1,500,000; monitors and

controls expenditures. Reviews and analyzes bank

services, investment activities and land redemption

process to ensure compliance with the Alabama Code;

negotiates and executes bank contracts affecting the

Tax Collector’s Office including collateral or ledges to

secure funds deposited; resolves tax problems with

taxpayers. Conducts feasibility studies and analyze[s]

results to ensure efficiency or reduce expenditures.

Develops, revises, and implements office policies and

procedures. Assembles and prepares seasonal and

management reports. Acts as Tax Collector in his/her

absence or as required. Stays current on pertinent laws,

regulations and generally accepted governmental

accounting practices.139

*28 The Personnel Board described the knowledge and

skill sets necessary to perform the duties of the position as

follows:

Knowledge of the principles,

practices and procedures of tax

collection. Knowledge of all

federal, state and local regulatory

requirements applicable to Tax

Collection. Knowledge of the

funding process in a municipal

environment as related to

budgeting, cost accounting,

financial

planning

and

management. Knowledge of the

laws concerning state and federal

appeals

and

bankruptcy.

Knowledge of generally accepted

accounting procedures. Ability to

plan, assign, and supervise assigned

professional and nonprofessional

personnel. Ability to communicate

clearly and effectively, both orally

and in writing. Ability to establish

and maintain effective working

relationships with employees and

the general public. Ability to use

modern office methods, techniques and equipment. Skill in using a computer.140
The “Compensable Qualifications” for the position were “[p]ossession of a Bachelor’s Degree in Accounting, Business Administration, Management, Public Administration or closely related field and five years experience in finance, treasury operations, banking and investments, or taxes, including three years of related supervisory experience; or any equivalent combination of training and experience.”141
The hiring decision for the Director of Tax Collection position was made by J.T. Smallwood, the Tax Collector, an elected official.
Malinda Parker, a black female, applied for the position when it came open during the Spring of 2007. Ms. Parker has a Bachelor’s degree in Business Administration, a Master’s degree in Public Administration, and 33 additional hours of advanced accounting courses. She had worked in the Birmingham division of the Jefferson County Tax Collector’s Office for sixteen years. In her most recent position, “Tax Agent,” she was responsible for collecting delinquent personal property taxes in Jefferson County.142 Ms. Parker had worked closely with the previous Director of Tax Collection, and she was familiar with the day-to-day operations of the office.143 She also had additional managerial experience at Compass Bank and as a military officer prior to coming to work for the County.144 Ms. Parker was placed on the Personnel Board’s certification list for the position, but she was not scheduled for an interview until June of 2008, after she contacted Mr. Smallwood’s office to ask why she had not yet been scheduled. Ms. Parker testified that the position remained vacant for an unusually long time before interviews were scheduled, compared to other positions she had observed during her employment with the County.145
In the meantime, John Michael DeLucia, a white male, had been provisionally appointed to the position by Mr. Smallwood. Before that provisional appointment, Mr. DeLucia had served, since 2003, as Mr. Smallwood’s Chief Deputy Tax Collector. The chief deputy is not a merit system position; thus, the selection for that position was solely at Mr. Smallwood’s discretion.146 Mr. DeLucia held a law degree from the Birmingham School of Law, and had been admitted to the Alabama State Bar on September 2, 2003.147 Ms. Parker testified that Mr. DeLucia did not have an accounting or business degree, but Mr. DeLucia’s application for the Director of Tax Collection position stated that he received a Bachelor of Arts degree from the University of Alabama in
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Birmingham, and his major and minor areas of study were listed as “Sociology/Accounting major (still attending); History minor.”148 It is unclear from the application in which field of study Mr. DeLucia actually obtained a degree, and in which field he was a “still attending” student. He did list the following on his application as “training, licenses, special skills or qualifications”: “Law License, Alabama State Bar; Served as Chief Deputy Tax Collector for 4+ years. Property tax administration classes: Auburn University; Fed. Income Tax, Income Tax, Estate and Gift Tax, Statutory Rights of Redemption and Property Law.”149 Mr. DeLucia’s last employment position, before being appointed as Chief Deputy Tax Collector, was as a law clerk for Mr. Smallwood’s father, the late Jefferson County Circuit Judge T.M. Smallwood.150 After the interview process, Mr. DeLucia was permanently selected as the Director of Tax Collection.151
*29 Some of the rating factors designed by Mr. Smallwood to apply during the interview process for the Director of Tax Collection position appear to be designed to give preference to an applicant with a law license and/or legal background. An applicant would receive a minus or negative notation (−) (meaning that the applicant “does not meet job requirements”) if she had a Bachelors degree in a business-related area; a check mark (x) (meaning “meets job requirements”) if she had a Masters degree in a business-related area; and a plus notation (+) (meaning the applicant “exceeds job requirements”) if she had a Doctorate degree in a business-related area.152 Ms. Parker received an (x) for her Masters Degree in Public Administration,153 but Mr. DeLucia received a(+) for his law degree.154 For the rating factor “List any licenses or certifications that would relate to a government tax setting,” an applicant would receive a(−) for none, an (x) for a Certified Public Accountant (“CPA”) designation, and a(+) for a law license.155 Ms. Parker received a(−) because she did not have a CPA or other certification,156 but Mr. DeLucia received a(+) for his law license.157 Significantly, however, the Personnel Board’s job description for the position does not require any licenses, and it only requires a Bachelors degree and five years of experience, not any advanced degrees.158
Applicants also were asked to name the protected classes in employment law. They received a(−) if they did not know the answers, and a(+) if they identified race, age, religion, gender, and “creed” (notably omitting color, national origin, pregnancy, and disabilities).159 Ms. Parker received a (−) for that category because she only listed gender, age, disability, and “minorities” (thereby omitting religion and Mr. Smallwood’s uninformed designation of “creed” as a protected category).160 Mr. DeLucia received a(+) because—surprise !—he identified the identical

categories designated by the man for whom he had worked since 2003.161 Again, however, the Personnel Board’s job description for the position does not make any reference to knowledge of employment law,162 and there has been no explanation for why that rating factor might be relevant to the position of “Director of Tax Collections.” When questioned about that rating factor during her trial testimony, Human Resources Director Demetrius Taylor acknowledged that she did not know why that rating factor had been included.163
Applicants for the position also were asked to identify the elements of a valid contract. They received a(−) if they did not know the elements, and a (+) if they identified offer, acceptance, consideration, and “standing.”164 Ms. Parker received a (−) for that factor because she did not identify any of those elements,165 but Mr. DeLucia received a(+) for identifying all of the elements, even though Mr. Smallwood’s interview notes indicate that Mr. DeLucia identified only standing, offer, and acceptance, but not consideration: the sine qua non of a binding agreement!166 Again, the Personnel Board’s job description for the position of “Director of Tax Collections” does not make any reference to knowledge of contract law,167 and there has been no explanation for why that rating factor might be relevant to the position.
*30 The Human Resources Department approved Mr. Smallwood’s hiring of Mr. DeLucia as Director of Tax Collections after reviewing the entire structured interview packet.168 Even so, during her 2012 trial testimony, Ms. Taylor acknowledged the obvious: the interview process appeared to be a “setup,” designed to create questions that would elicit favorable responses from Mr. DeLucia and lead to his selection for the position.169
The County has provided training on both the Anti– Nepotism and AntiHarassment Policies to all new hires since the adoption of those policies in 2008.170 The training also is available to all existing County employees,171 but there is no indication that it is mandatory, and no data about how many employees have received the training.
d. Consent decree training The court has already discussed the County’s consent decree training in Part VI(B)(1)(b), supra.
e. Recruiting at historically black colleges and universities Ms. Taylor testified that the County has, at least since
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2009, conducted general recruiting at historically black colleges and universities like Alabama A & M University, Miles College, and Lawson State Community College. Those recruitment efforts include encouraging students to apply for both “classified positions” available through the merit-selection system administered by the Personnel Board and Jefferson County,172 and “unclassified positions.”173
f. Production of semi-annual and annual reports It is undisputed that, since October of 2008, the County has produced the semiannual reports required by its consent decree.174 Even so, it also is undisputed that the County’s reports are “not perfect.”175 For example, the same individual might be identified as African–American on one report, but Hispanic, white, or unknown on another. Or, one individual might be listed as both male and female on the same report, or as male on one report, but female on another.176
Landon Dowe, the individual hired by the County in 2008 to generate the semiannual and annual reports required by the decree, was not aware of any of those inconsistencies when he gave trial testimony in 2012.177 For the most part, Mr. Dowe simply relied upon the information applicants provided in their application packets to create his reports. He did check for “transpositions,” or situations where an applicant might have erroneously identified his race in the blank reserved for identifying gender, or vice versa. However, he did not check for situations where an applicant might have mistakenly been identified as being of two different genders or races, or as being of one race or gender on one report, but of a different race or gender on another report.178 At the request of plaintiffs’ counsel, the County did at some point begin to provide the data used to compile these reports in electronic form, and to provide Social Security numbers for all applicants.179 Even so, the County did not use Social Security numbers to check the accuracy of its reports.180 The Martin–Bryant parties’ expert witness, Dr. Kathleen Lundquist, testified that, when such inconsistencies appeared on the reports, the data had to be excluded from the calculations of how many persons of each race and gender were hired for particular jobs. In Dr. Lundquist’s opinion, that reduced the sample size for each job analysis, and made the statistical analysis less likely to detect differences among race- or gender-based subgroups.181
*31 Additionally, Dr. Lundquist identified approximately 200 situations in which individuals were listed on the “Persons Offered Positions Report” required by decree paragraph 53(a),182 but not on the “Applicant Flow Report” required by paragraph 53(c).183 Mr. Dowe

explained that those inconsistencies could occur because the Applicant Flow Report reflects the persons who were selected by individual departments to fill a position, but the Persons Offered Positions Report reflects which individuals actually were extended a formal offer of employment by Human Resources. Even after being selected by a department, an applicant could fail a preemployment screening evaluation conducted by Human Resources and, consequently, not be extended a formal offer. Mr. Dowe knew that the reports had been “out of sync,” but he did not perform a consistency check on any of the reports until 2012.184 Dr. Lundquist testified that if individuals appeared as having received offers on the Persons Offered Positions Report, but did not also appear on the Applicant Flow Report, she excluded those persons from her adverse impact analysis, because she did not want to base the analysis on inconsistent or unreliable data.185
At some point, plaintiffs’ counsel also informed Mr. Dowe that previous semi-annual reports had included certified applicants with a status of “Pending,” or “Included on Certification List,” but that more recent semi-annual reports never updated those applicants’ statuses. Mr. Dowe provided updated information for many of those individuals in October of 2012. He was not sure of the exact number of people for whom he had to update the information, but he was not surprised at plaintiffs’ counsel’s statement that it was approximately 10,000 individuals! Even after the updated information had been produced, there were numerous entries where an applicant’s status still was listed as “Pending,” although the County attempted to explain those entries wherever possible. Moreover, when he provided this updated information to plaintiffs’ counsel, Mr. Dowe did not verify whether the information provided on the Applicant Flow Report was consistent with the information on the Persons Offered Positions Report.186
g. Monthly reports and quarterly newsletters Until the County’s 2012 reduction-in-force, the Human Resources Department sent out a quarterly newsletter to every County employee with an e-mail address, and also posted copies of the newsletters in various locations.187 A copy of one of these newsletters was submitted as an attachment to Plaintiffs’ Exhibit 3196. It contains the following statement:
ATTENTION COUNTY EMPLOYEES
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Please remember that the Jefferson County Commission is under a Consent Decree. The decree prohibits discrimination against blacks and females which is also contrary to the County’s anti-harassment policy. Please contact your affirmative action officer, Kimberly R. Oden Webster [188] or Ben Sullen (325– 5249), if you have concerns or issues regarding discrimination. You may also review the Consent Decree at your affirmative action officer’s office located in the Main Courthouse Rm. A630. *32 Jefferson County Commission follows all applicable local, state, and federal laws concerning equal employment opportunity without regard to race, color, creed, sex, religious beliefs, national origin, age, or disability. Further, Jefferson County Commission will not discriminate based on genetic or family medical history.189 Demetrius Taylor also testified during the 2012 trial that the Human Resources Department had been generating a monthly report for a few years. At first, the monthly report was sent to the President of the County Commission, but since Tony Petelos was hired as County Manager in November of 2011, the reports have been sent to Mr. Petelos.190 The monthly reports are approximately two to four pages long, and they “run the gamut” of all of the Human Resources Department’s activities, including information about hires, terminations, employee complaints, benefits, and customer service calls.191 Notably, Mr. Petelos testified that he was “so busy” with other matters that he did not read the monthly reports until the Spring of 2012, at the earliest.192
It is unclear which provisions of the decree the County thinks have been satisfied by the dissemination of quarterly newsletters and monthly reports. It cannot seriously be contended that the newsletters satisfy the County’s obligation to “inform supervisory personnel that the County shall not discriminate against or harass any employee or potential employee on the basis of race or sex” as required by paragraph 31, or the Affirmative Action Officer’s obligation to “[a]dvise black and female employees of the terms of this decree” as required by paragraph 33(a). Moreover, it cannot seriously be contended that the two-to-four-page monthly reports could satisfy the semi-annual or annual reporting requirements set forth in paragraphs 52 and 53, or any of the requirements of paragraph 33, because the monthly reports are not issued by the Affirmative Action Officer. Thus, while there may be nothing wrong with the Human Resources Department’s act of sending County employees a quarterly newsletter, or sending the County Manager a monthly report, the consent decree does not require either of those actions. Therefore, those actions do not reflect any progress on the County’s part toward compliance with its decree.

h. Structured interview process The County also asserts that its implementation of a structured interview process is evidence of its recent efforts to comply with the decree. But, even in making this argument, the County acknowledges that the process it devised was not adequate. Despite conceding that its structured interview process “had flaws,” and that it “has not been validated as lawful under the Uniform Guidelines and/or controlling Federal law,”193 the County weakly asserts that the process “attempted to add a layer of review and accountability to the County’s hiring process.”194 As discussed more fully below, however, those attempts were not successful.
*33 Indeed, perhaps the best that can be said about the County’s structured interview process—and this is all the County does say—is that it “improved the County’s recordkeeping practices from 2005 forward by centralizing hiring documentation and requiring maintenance of documents required by paragraph 51(b)(d) of the Decree.”195
The most significant deficiency of the County’s discussion of its structured interview process is that it overlooks just how woefully inferior the County’s hiring system was before implementation of structured interviews in 2005. The Martin–Bryant parties have set forth extensive evidence, most of it uncontested, demonstrating that, prior to 2005, “County managers had complete discretion over the interview and hiring procedure, which was not validated, resulting in inconsistent, arbitrary and biased selections that adversely impacted African–Americans and women,” and that interviewers did not have any formal training.196 The County may have attempted to remedy those problems by implementing the structured interview process in 2005, but, while the process may have brought about some improvement in the County’s recordkeeping procedures, and some centralization of the hiring process, the evidence as a whole overwhelmingly demonstrates that the process falls far short of satisfying the County’s obligations under its consent decree.
The County’s decision to implement a structured interview process in the first place was questionable. Shortly after Ms. Taylor was hired as Director of Human Resources in 2004, Charles S. Wagner, a former Assistant County Attorney, instructed her to learn about the City of Birmingham’s structured interview program, and to adopt a similar procedure for the County. It is significant to note that Mr. Wagner gave such an instruction to Ms. Taylor despite his act of transmitting a twelve-page
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memorandum entitled “Critique of PMG’s Structured Interview Test Development Procedure” to the other parties in these consolidated cases and the Special Master on November 21, 2002. That memorandum criticized the use of structured interviews as a selection device for the City of Birmingham.197 Mr. Wagner stated that, in his opinion, structured interviews would be the “preferred methodology” only in “very limited cases,” and that they had “extremely limited usefulness as a selection instrument.”198 Mr. Wagner further opined that structured interviews “have a high degree of subjectivity, are prone to rating errors and bias and have poorer reliability and validity than comparable written or job performance (work sample) tests.”199 According to Mr. Wagner, a major flaw in the structured interview process is that “[t]wo different test developers may well come up with totally different decisions in the exact same situation.”200 Thus, structured interviews would have “greater subjectivity, errors, and bias with lower reliability and poorer validity than the written test at a far higher cost for development and administration.”201 Mr. Wagner’s overall opinion was that such selection devices
*34 would only be appropriate in relatively rare cases, those in which objective measures of KSAO’s [202] and tasks are sparse or non-existent. Such cases might be in assessing decision making, team affiliation behaviors, interpersonal skills or management styles. [Structured interviews] might be more useful as a minor adjunct selection process to more robust and valid selection processes. Job performance (work sample) tests and written test [s] carefully written and analyzed have far better reliability and validity than [structured interviews]. [Structured interviews ] should not be considered as the primary selection instrument for the majority of positions at the [Jefferson County Personnel Board ].203 No rational explanation has been provided for why Mr. Wagner severely criticized the option of a structured interview process for the City of Birmingham in 2002, but then instructed Ms. Taylor to implement just such a process at the County only two years later.
When the structured interview process first was implemented, and for an unspecified time thereafter, the County used a procedure called “short-listing”: a process that allowed hiring managers to narrow certification lists received from the Personnel Board by developing their own list of selection criteria. The managers who developed “short list” criteria were not provided any training or guidance about how to properly do so. Consequently, their criteria were ad hoc, arbitrarily developed, and not validated. Sometimes the short list selection criteria included considerations that were not required by the job description, and sometimes the criteria

would vary among divisions or on different certification lists. The scoring system for short lists also failed to give particular weight to factors that represented an applicant’s knowledge, skills, and abilities (“KSA’s”) over other factors.204 In practice, the managers developing short list criteria often did so only after reviewing the applications for a particular position, and subjectively evaluating the candidates’ respective qualifications.205 That practice resulted in the obvious problem of short-list criteria being developed to justify the hire of a pre-selected candidate: not because the criteria were related to, much less essential to, the performance of the duties of the job. The County apparently eventually recognized the problems with the short-listing process, because it repeatedly emphasized in its briefs that the process is no longer employed.206 It is unclear, however, exactly when the County ceased the practice.
Even without the obvious shortcomings of the irrational short-listing process, the structured interview process still is too problematic to satisfy the County’s decree obligations. There is no evidence that the County ever hired any professional job analysts or outside consultants to conduct defensible job analyses for any positions. Demetrius Taylor testified that a “thorough job analysis” is not conducted before developing the questions for any interview, although the Human Resources Department does review each question and answer, and each structured interview packet.207 In lieu of the job analysis, the interviewers simply review the job description provided by the Personnel Board and rely upon their own experience and the needs they perceive in developing the questions and rating factors.208 In Dr. Lundquist’s opinion, the failure to conduct thorough job analyses is a major reason why the County’s structured interview process cannot be validated.209
*35 Moreover, some of the scales by which interviewers rated an applicant’s responses to interview questions were vague and ambiguous, even though they had been approved by the Human Resources Department.210 Department managers conducting the interviews did not always understand what KSA’s a particular interview question was designed to evaluate.211 Some interview questions called for a subjective, unquantifiable, or unverifiable response from the applicant.212 Some structured interview packets did not contain numerical values for each rating category, and the managers conducting interviews could not always explain how they arrived at the overall rating score assigned to each applicant.213 For some positions, the managers conducting the interviews could not even answer all the interview questions they were posing to applicants, and they could not always explain the ratings they had assigned to particular applicants.214 The numerical rating scales for
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some positions left gaps that did not encompass all possible candidate responses. For example, an applicant might receive a(−) if he or she answered 69% of the answers “correctly,” an (x) for 70–80% correct answers, and a(+) if 88–90% of the questions were answered correctly. In such instances, there is no explanation of what score to give an applicant whose correct responses fell into the interstitial space between 80% and 88%, or were above 90%.215 Some of the rating scales contained outright errors, even though they had been approved by the Human Resources Department. For example, the rating factors for one position sometimes were used for another position, and the “meets expectations” and “plus” ratings were switched on some of the forms.216
Because the structured interview questions were not based on a proper job analysis, the questions and rating factors were not always related to the knowledge, skills, and abilities that were necessary for performance of the duties of the job.217 The interview questions for a position sometimes conflicted with the Personnel Board’s job description for that position.218 The interviewers sometimes could not explain how they determined the weight assigned to particular questions, or what benchmarks they used to evaluate each applicant’s responses.219 The questions and rating factors sometimes were based more on a particular applicant’s years of experience than on the KSA’s necessary for the job.220 The interview questions did not always match up to the rating factors that were supposedly being used to rate responses to those questions. Some interview packets did not have any rating factors, and some interview questions were not designed to produce sufficient information to apply the rating factors.221 Different candidates for the same position were sometimes asked different questions by different interviewers, and different interviewers sometimes assigned different ratings to two candidates who gave the same response to the same question.222 Finally, the Martin–Bryant parties produced evidence showing that the County (and particularly the Human Resources Department) failed to provide effective training or oversight for the development of structured interview materials, or for the implementation or execution of the interviews themselves.223
*36 The County currently offers hiring managers the option to either conduct structured interviews, or to hire by random selection from the list of eligible candidates provided by the Personnel Board.224 The County also has begun considering whether to convert the structured interview process into an entirely computer-based one, with no live interviewer actually in the room, and to videotape the computer-based interviews.225

i. Other decree violations It is disturbing to state, but nevertheless true, that the evidence of noncompliance discussed in the preceding sections barely scratches the surface of the County’s failures over the course of the past thirty years. Indeed, those matters represent only a small portion of the evidence presented during trial depicting the County’s failure to comply with various provisions of its consent decree. The Martin–Bryant parties’ post-trial brief contains additional, extensive discussion of the County’s failure to comply with paragraphs 1, 5, 9, 13, 14, 15, 16, 18, 31, 33, 51, 52, and 53 of the decree.226 The Martin– Bryant parties also have presented abundant evidence that the County’s stipulations of non-compliance with the decree do not tell the entire story, and that the County’s actual non-compliance is far more extensive—and more recent—than the County has stipulated.227 Some of that evidence is disputed,228 but there is no need for the court to resolve all of the disputes, or to discuss the additional evidence in more detail, because the County’s stipulations, along with the evidence of the County’s noncompliance discussed in the preceding sections, are sufficient to demonstrate that the County has repeatedly failed to comply with its consent decree.
2. Will further efforts to secure compliance only lead to confrontation and delay? The County asserts that future efforts to secure its compliance with its consent decree will not lead to confrontation and delay because it has attempted to reach a settlement with plaintiffs, because the testimony of the County Commissioners and County Manager indicates that achieving decree compliance is important to them, and because it has stipulated to some violations of the decree and agreed to some of plaintiffs’ proposed remedies.
The County’s efforts to reach a settlement on the Martin– Bryant parties’ motion for contempt do not have much relevancy to the question of whether the County is likely to cooperate with future efforts to secure compliance with its decree. Those settlement negotiations indicate more of a desire to avoid the expenses of litigation and the dangers of a contempt finding, than the County’s desire, or willingness, to comply with its decree.
The County’s willingness to stipulate to a limited number of decree violations and proposed remedies also does not weigh heavily in its favor. Those stipulations indicate the County’s willingness to cooperate up to a certain point, but they do not speak to whether the County is willing to cooperate past that point; and, thus, they do not indicate that the County is likely to cooperate with future efforts to
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secure compliance with the decree. Instead, the evidence has demonstrated that the County’s contempt of its decree is much broader, and has been occurring for far longer, than the County’s stipulations reflect. That evidence begs the question of why, if the County is so willing to cooperate, it did not stipulate to more extensive violations. That leaves the testimony of the County Commissioners, all of whom began serving four-year terms on November 10, 2010, and the County Manger, who was hired in November of 2011. County Manager Tony Petelos testified during trial that he is “committed” to resolving the issue of the County’s non-compliance with the decree, and he believes the County Commissioners and Human Resources staff are as well.229 He stated that his goal is to work with the court, and with a Monitor and Industrial/Organizational Psychologist, if those persons are appointed by the court.230 He also testified to his understanding that, if any directives from the court conflict with any directives from the Personnel Board, the court’s directives would control.231 County Commission President David Carrington testified that Mr. Petelos and the entire Commission are “absolutely committed” to complying with the consent decree.232 He also testified that it is important for the County to “clean up the entire mess” it is in, including the County’s noncompliance with the consent decree.233 Commissioner George Bowman testified that he is committed to complying with the consent decree, ensuring the County complies with the decree, and allowing Mr. Petelos to take the steps necessary to bring the County into compliance with the decree.234 He also testified to his understanding that an order of this court “trumps all other laws, all other state laws, local laws, any county resolutions. If it conflicts with an order of this Court, this Court’s authority prevails.”235 He also understood that this court’s authority is superior to all rules and regulations of the Personnel Board.236 Commissioner Sandra Little– Brown testified that her level of commitment to the County’s compliance with the decree is “very wide,”237 and that she wants to be a “wheel” to facilitate the County’s compliance.238 She “would embrace a monitor or anything that this Court puts in place to make sure” the County comes into compliance with the decree.239 Commissioner Joe Knight testified that he also is committed to complying with the decree,240 and understands that the orders of this court supercede conflicting state or local laws.241 Finally, Commissioner Jimmie Stephens testified that he and the other Commissioners will work with either a Monitor or a Receiver, if one should be appointed, “to fix this situation that’s gone on way too long.”242 He is “100 percent” committed to ensuring that the County comes into compliance with the decree, and to allowing County Manager Tony Petelos to take whatever steps are necessary to bring the County into compliance.243

Commissioner Stephens also understands that this court’s orders would override any state law, local law, or Personnel Board Rule.244
*37 The uniform testimony of the Commissioners is of limited value, because they only recently passed the halfway point of their initial four-year terms. There is no way of knowing whether the individuals currently serving on the Commission will seek re-election, or if they do, whether they will be successful in attaining a majority of the votes cast within their respective Districts. If different Commissioners are elected for the next term, there is no way of knowing whether those individuals will share their predecessors’ professed commitment to comply with all requirements of the County’s consent decree. The next group of Commissioners could have more in common with those of the past—some of whom still are serving federal prison sentences on various corruption charges— than those of the present.
That said, there is no reason to question current, subjective desire of the Commissioners and Mr. Petelos to comply with the County’s decree. There also is no reason to question their understanding, at the time of trial, of the consent decree’s supremacy over state or local law— although the record clearly reflects that the Commissioners did not have such an understanding when they implemented the 2011 Administrative Leave Without Pay process (“ALWOP”), and the 2012 Reduction–in– Force (“RIF”) .245 Even so, the court does not see any evidence that future efforts to achieve compliance with the consent decree will result in confrontation with the current Commissioners or the present County Manager.
Nevertheless, and despite the subjective good intentions of the Commissioners and County Manager, there is substantial evidence that future efforts to secure compliance with the decree in the absence of a receivership will only lead to delay. As discussed in Part VI(B)(1), supra, the County’s recent efforts to comply with the decree have failed to produce the required results. Moreover, as discussed more fully in the following section, the evidence indicates that, despite the professed eagerness of the present Commissioners and County Manager, there will not be any more substantial progress toward compliance with the decree in the coming decade than there has been in the last, unless the court intervenes.
3. Is leadership available to turn the tide within a reasonable time? The County asserts that its current Commissioners are able to provide sufficient leadership to “turn the tide”
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toward decree compliance.
a. The current County Commissioners In addition to the current Commissioners’ expressions of their desire and intent to bring the County into compliance with its consent decree, the County offers some evidence of more concrete actions taken by the Commissioners that allegedly reflect their commitment to compliance. For example, Commissioner Sandra Little– Brown met with the County’s attorneys, the County Manager, the other Commissioners, and the Department Heads under her supervision to discuss compliance with the decree. When employees complained to her about unfair treatment, she made herself available to them, and told them to document the problems and report to the Human Resources Department.246
*38 David Carrington has read the decree several times, and has discussed it with the other Commissioners and Demetrius Taylor.247 When Mr. Carrington was elected, he asked to be assigned to the Human Resources Department, Environmental Services, and the County Attorney’s office, because he viewed those departments as being of “crucial importance” to the County.248
That evidence is minimal, however, when compared to the other evidence that the current Commissioners have failed to fully appreciate the requirements of the decree, and the extent of the County’s non-compliance. The Commissioners approved the County’s stipulation to certain items of non-compliance with the decree, but the evidence indicates that the extent of the County’s noncompliance actually is much broader and more recent than the County has admitted.249 During her December 2012 trial testimony, Commissioner Little–Brown did not have any understanding of the decree’s provisions beyond a general requirement to be fair in employment decisions, and she could not explain why the County was not in compliance with the decree.250 Commissioner Little– Brown also fully supported the Structured Interview Process when it first was instituted, and she thought that any flaws in the process could be remedied by videotaping the interviews until she learned that the County had stipulated that the process was not validated under the Uniform Guidelines.251 Commissioner Carrington’s trial testimony revealed that he did not fully understand all of the reporting requirements of the decree, and he did not have a complete basis for determining whether the County was complying with those requirements.252
The most striking evidence of the Commissioners’ failure to fully appreciate the requirements of the decree relates

to the implementation of the ALWOP process in 2011, and the RIF during the following year. In June or July of 2011, faced with revenue shortfalls, and concerned that the County would violate a state law requiring it to pass a balanced budget, the Commissioners decided that the most efficacious way to quickly bring the County’s budgeted expenditures into line with projected revenues was by slashing its payroll.253 The County considered several methods for achieving those reductions, including: the elimination of some personal service contracts; reduction of salaries, wages, and hours worked each week; and, reduction of workweeks.254 The option to make an across-the-board reduction of the number of hours in each employee’s workweek was rejected because the Commissioners believed it would cause more employees to resign their employment positions.255 Instead, the Commissioners decided to place certain employees on administrative leave without pay for a period of up to one year, hoping that, by the end of that year, new legislation would have been enacted by the Alabama Legislature that would permit the County to generate more tax revenues for its General Fund and, thereby, to cover payroll costs.256
*39 Commissioners Knight, Stephens, and Carrington uniformly testified that they did not recall any discussion of the consent decree during the process of deciding to implement the ALWOP.257 That process was supposed to be conducted according to seniority within job classifications at the County, with employees having the least seniority within a classification being the first to be placed on administrative leave without pay: in accounting terms, the last in should have been the first out.258 The Commission identified a dollar amount that each County department head had to cut from his or her budget. Each department head then had to identify those job classifications within their department that were necessary for the department to function. Once those “necessary” job classifications had been identified, the Human Resources Department identified, by reverse seniority, the employees in the “non-necessary” classifications who would be placed on administrative leave without pay.259 Thus, ostensibly, the ALWOP process was designed to identify positions, not individuals, and to thereby ensure that all decisions regarding the persons to be placed on leave would be made without regard to race or gender. In practice, however, as long as a department head knew all of the employees in his department, he still could select those individuals he desired to protect from being placed on leave without pay by simply identifying the positions occupied by those favored employees as “necessary.”260 On at least one occasion, Commissioner Knight intervened in the ALWOP process to bring back some employees in the Storm Water Management division who had been placed on administrative leave without pay. Commissioner Knight acknowledged that his intervention
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was not in accordance with the rules for conducting the ALWOP.261 After Tony Petelos was hired as County Manager, and following a conference by him with the Human Resources Department and counsel, he made the decision to reinstate some employees in the Purchasing Department who had been placed on administrative leave without pay. Although Mr. Petelos did not testify in detail about the basis of that decision, he did state that it was because of a problem with the way the individuals had been placed on ALWOP.262
It is undisputed that the 2011 ALWOP resulted in adverse impact against African–Americans and women in some positions.263 After learning of that adverse impact, however, Commission President Carrington did not take any steps, or even discuss taking any steps, to mitigate the effect of the ALWOP on African–Americans and women. He also did not consider whether the adverse impact of the ALWOP had any effect on the County’s obligations under its consent decree.264 None of the other Commissioners raised any concerns that the ALWOP may have violated the consent decree.265
The one-year period for the ALWOP expired in June of 2012, and the Commissioners had to consider a more permanent solution to the County’s budget shortfalls, because the state legislature failed to enact legislation that would enable the County to increase the tax revenues flowing into its General Fund.266 The Commissioners ultimately decided to implement a permanent reductionin-force. In contrast to the ALWOP, seniority for the RIF was determined based upon an employee’s time in service within a certain job classification throughout the entire merit system, not just the period of time the person had been employed by the County.267 RIF decisions were supposed to be made only with regard to a person’s seniority within their position, not on an individual basis .268
*40 Despite the fact that the ALWOP had resulted in adverse impact based on race and gender, Commissioner Carrington could not recall anyone raising a concern over whether the RIF also would result in adverse impact.269 He did, however, remember considering whether the RIF would comply with paragraph 2 of the consent decree.270 Commissioners Knight, Bowman, and Carrington all testified that they did not recall any separate discussions, prior to implementing the RIF, regarding the question of whether the County should require, as an alternative solution, that all employees uniformly work a reduced number of hours each week.271 After the RIF was completed, the County did not request an analysis of whether it had an adverse impact on African–Americans or women.272 Even without the benefit of such an analysis, the County has stipulated that the RIF resulted in adverse

impact in certain departments. Mr. Petelos testified that there was no way to know beforehand whether the RIF would result in adverse impact,273 but Commissioner Carrington testified that he should have known that the RIF would result in adverse impact because the ALWOP had resulted in adverse impact.274
b. County Manager The County also points to the hiring of Tony Petelos as County Manager in November of 2011 as evidence that the County has leadership in place to turn the tide toward decree compliance within a reasonable period of time.
Legislation authorizing Jefferson County to employ a County Manager was first enacted by the Alabama Legislature during the 2009 Regular Session, but the language of that enabling Act was precatory, providing only that “[t]he Jefferson County Commission, by a fourfifths vote, may employ a county manager to serve as the chief executive officer of the county....” Ala. Act 2009– 662, § 2 (alteration and emphasis supplied). The former County Commission did not exercise that authority. When the County was forced into the largest governmental bankruptcy up to that point in history, however, the Alabama Legislature amended Act 2009–662 to make the employment of a County Manager mandatory: i.e., “The Jefferson County Commission, by a four-fifths vote, shall employ an at-will county manager to serve as the chief executive officer of the county....” Ala. Act 2011–69, § 2 (emphasis supplied). The statute stated that the person thus selected
shall be the chief executive officer of Jefferson County and, as such, shall carry out the following duties and responsibilities established by the county commission, including the following:
(1) To act as the primary administrative advisor to the county commission on all matters relating to the efficient and economical administration of county government.
(2) To act as the executive agent of the county commission in overseeing the implementation of authorized projects and programs, assuring appropriate coordination of departmental operations, and resolving interdepartmental problems and disputes.
*41 (3) To serve as the appointing authority for and exercise direct oversight of all department heads and their agencies and departments including all county employees thereof, except for (i ) elected officials, (ii ) non-merit system employees, and (iii ) the county attorneys and their staff. The county manager shall
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have the full authority to select, appoint, evaluate, terminate, and retain department heads, agency heads, and county employees for which the county manager is the appointing authority, in consultation with the whole commission, except that the selection or termination of a department head made by the county manager may be vetoed by four members of the commission at a meeting of the county commission, provided that the veto is made within 30 business days following the county manager’s selection or termination decision, otherwise the county manager’s decision shall become final. Notwithstanding the foregoing, the county commission by a vote of four commissioners, may terminate the employment of a department head.
(4) To directly manage all county functions and operations except those that are assigned to the county attorneys or committed by general law to elected officers of the county.
(5) Conduct research and make studies and investigation which could result in greater economy and efficiency in county government; approve, on the basis of management principles, such organizational changes as proposed by departments; recommend to the county commission the creation, dissolution, merger, or modification of organization elements or work programs as deemed necessary for the efficient and economical operation of county government; and recommend to the county commission policies and adopt procedures for the orderly conduct of the county’s administrative affairs.
(6) Cause the planning process for both the operating and capital budgets to be compatible with approved county policies and long range plans; review and evaluate the budget estimates of all departments and submit a recommended annual budget to the county commission in a timely manner; exercise continuous review of revenues and expenditures throughout the year to insure budgetary control and implement any necessary fiscal controls; keep the county commission fully advised as to the financial condition and needs of the county; and review and give a recommendation as to all supplemental appropriations and budget transfers which require county commission approval.
(7) Conduct comprehensive management reviews and analyses of programs, projects, and departments, and report his or her findings and recommendations to the county commission.
(8) Subject to budget approval, organize, staff, and administer and carry out the responsibilities of the office of county manager. The county manager may hire a non-merit system confidential secretary to assist

the county manager with administrative duties and responsibilities. In addition, with the approval of a majority of the county commission, the county manager may hire a maximum of two at-will, non-merit system deputy county managers to assist the county manager in the performance of his or her duties and responsibilities under this act and an at-will non-merit system chief financial officer to assist the county manager with the financial management of the county, all of whom shall report to the county manager, who shall be their respective appointing authority. The commission may, by resolution, set forth additional duties and responsibilities for either the deputy county managers or the chief financial officer. Any position created by this subsection is authorized to participate in any benefit plan offered to full-time county employees.
*42 (9) Attend meetings of the county commission other than when he or she is absent due to illness, scheduled vacation, or another legally permissible reason and discuss any matter before the commission, but shall not vote. During the temporary absence of the county manager, a deputy county manager, should one be appointed, shall attend all commission meetings in lieu of the county manager.
(10) Supervise the performance of all contracts made by any person for work done for the county and supervise and regulate all purchases of materials and supplies for the county within the limitations and under the rules as may be imposed by the county commission, and to make purchases and contracts for the county in amounts not exceeding the formal sealed bid limit set by Alabama law or resolution of the county commission.
(11) Perform such other duties as the county commission may direct and keep the county commission advised of any and all matters which may be pertinent to the discharge of its responsibilities.
Ala. Act No. 2011–69, § 7 (emphasis supplied).
As required by the foregoing statute, the County Commission formally established the position of County Manager on September 27, 2011, appointed Tony Petelos to fill the position, set his salary at $224,000 a year, and stated that he would be required to “perform the duties and responsibilities set forth in section 7, Alabama Act 2011–69[, supra ], and such other duties and responsibilities as may be assigned by majority vote of the Jefferson County Commission.” Defendant’s Ex. 146 (Resolution recorded in County Minute Book 162, at 216), at Bates # HR 217118 (alteration supplied).
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The hiring of a County Manager represented a shift in the form of County government, from one in which the Commissioners serve as an executive body to one in which they sit more in a legislative capacity, formulating policies for execution by the County Manager. Prior to the enactment of Alabama Act No. 2011–69, the individual Commissioners were responsible for actually supervising the day-to-day functions of the various Departments of County government, including each Commissioner serving as the appointing authority for the departments under his or her supervision. Now, Mr. Petelos, as County Manager, acts as the Chief Executive Officer of the County and, according to his job description, “directly manage[s] all County functions and operations except those that are assigned to the County attorneys or committed by general law to elected officers of the County.”275 The County Manager’s executive functions include serving as the sole appointing authority for all County employees in all departments, other than elected officials, non-merit system employees, and the County Attorney’s office.276 Removing the ultimate authority over employment decisions from the hands of five elected officials and placing it in the hands of one appointed executive who, theoretically, will be more free from political influences and the pressures exerted by interest groups was a significant step in the direction of improving the County’s ability to make consistent, unbiased, employment decisions based upon merit, as opposed to cronyism (e.g., partiality to friends and family, regardless of qualifications).277
*43 Moreover, the record of Mr. Petelos’ professional background supports the conclusion that the Commissioners reasonably could have believed that choosing him for the position of County Manager would be a positive step toward bringing the County into compliance with its decree. Mr. Petelos previously had served in the Alabama legislature, as the Mayor of Hoover, Alabama (a large municipality within Jefferson County), and as the Commissioner of the Alabama Department of Human Resources (“DHR”) from 1997 to 2004.278 During Mr. Petelos’ tenure as DHR Commissioner, the Department was under a federal consent decree, and was facing charges of contempt in the United States District Court for the Middle District of Alabama for violation of that decree. A court-appointed Monitor was in place in the DHR case, and Mr. Petelos worked closely and cooperatively with the Monitor. Three or four years after Mr. Petelos resigned the position of DHR Commissioner, the Department’s consent decree was lifted.279
Despite Mr. Petelos’ qualifications and his professed commitment to compliance with the County’s federal decree, plaintiffs assert that his leadership does not

indicate that the County will be able to turn the tide toward decree compliance within a reasonable period of time. The record supports that assertion.
During the December 2012 trial, Mr. Petelos testified that he had never instructed his staff to cease violating the consent decree, or to fulfill the County’s obligations under the decree.280 Mr. Petelos read the decree shortly after taking office in November of 2011,281 but it was nearly a year (August of 2012 at the earliest) before he learned which provisions the Martin–Bryant parties contended the County had violated.282 Mr. Petelos attempted to rationalize his omission of any meaningful attention to the County’s responsibilities under its federal decree by testifying that he was “overwhelmed” during his first months in office, given his new position and the County’s bankruptcy filing shortly after he arrived.283 He acknowledged that he did not focus on the consent decree during his first year in office because he was “too busy” with other issues.284 Mr. Petelos was not in office when the ALWOP process was implemented, but he was there for the RIF. He told his staff that the RIF should be implemented “correctly,” and “according to the rules.” While, in his mind, those amorphous, imprecise instructions allegedly implied compliance with the County’s decree, he could not recall whether he had specifically instructed anyone that the RIF should be conducted in accordance with the consent decree.285 He also did not recall any conversations, prior to implementation of the RIF, about whether it might violate the consent decree.286 As already discussed, it is undisputed that the RIF resulted in adverse impact against African–Americans and females in certain departments.
On the whole, therefore, the evidence reflects that the current Commissioners and the present County Manager espouse a generalized, subjective desire to move the County forward, toward compliance with the decree, but there is no evidentiary basis for concluding that such a goal occupies a high place on any of their personal agendas, or that any of those persons have the requisite knowledge, skills, abilities, determination, or perseverance necessary to accomplish that end within a reasonable period of time. Correcting thirty years of contumacious conduct, and bringing the County into compliance with all the requirements of a lengthy and complex consent decree, will take a significant investment of time and resources, and overseeing the County’s compliance will likely require the devoted, full-time attention of one or more persons for many more years. There is no quick fix for systemic problems that have perversely persisted for decades.
*44 Moreover, Jefferson County is riddled with other problems—not the least of which is the largest
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governmental bankruptcy in national history—that demand the attention of its legislative and executive leaders. While Mr. Petelos now may be, as he says, able to pay more attention to decree compliance, there is no reason to expect that he, or any other members of his staff, will be able to devote full attention to its requirements. As well-intentioned and qualified as Mr. Petelos may be, rectifying the depth and breadth of the County’s contempt will require more time and ability than he can devote to the task. Furthermore, it bears repeating that the current Commissioners are elected officials in the middle of their first terms, and there is no guarantee that all, much less a stable majority, will remain in place for the amount of time that will be necessary to bring the County into belated compliance.
4. Has there been “bad faith” on the part of the County? A distinct line must be drawn between the current Commissioners and their predecessors. During the period from 1998 to 2008, five members or former members of the Jefferson County Commission committed crimes involving their “service” in office for which they were later convicted in federal court.287 Four of the gang of five were sentenced to lengthy terms of imprisonment: i.e., Jeff Germany to 43 months; Jewel C. “Chris” McNair to 60 months;288 Gary White to 120 months;289 and Larry Langford to 180 months.290 Only Mary Buckelew escaped incarceration, but she was sentenced to 36 months of probationary supervision by a United States Probation Officer.291 For such reasons, the Eleventh Circuit suggested that the Commissioners who served Alabama’s most populous county prior to the present officeholders provided an example of the definition of “kleptocracy”: a term describing a “government characterized by rampant greed and corruption.” United States v. White, 663 F.3d 1207, 1209 (11th Cir.2011) (Carnes, J.) (citations omitted). For such reasons, this court is naturally suspicious of whether those previous Commissioners attempted, in good faith, to advance the purposes of the consent decree within those Departments of County government over which each exercised control.292
On the other hand, the current Commissioners and present County Manager do not appear to have intentionally directed any actions for the purpose of subverting the consent decree, and the weight of the evidence indicates that they possess a generalized, subjective intent to bring the County into compliance with its decree. The County’s outside, retained attorneys also assert that the following actions constitute evidence of the incumbents’ good faith:
(1) the implementation of the

County Manager and hiring of Mr. Petelos; (2) the creation of a HR Department that has centralized County record-keeping and reporting functions and added a layer of accountability to hiring decisions; (3) the creation and implementation in good faith of the Structured Interview Process that, while admittedly flawed, was an improvement over unfettered hiring by department heads; [and] (4) performing Consent Decreespecific training and providing additional mechanisms to inform all employees of the Decree.293
*45 Several points must be made in response. First, even good faith efforts to achieve compliance will not be sufficient to avoid the imposition of a receivership if, as has been the case with Jefferson County, those efforts have consistently fallen short of attaining the objectives required by the decree.
Second, the County’s focus on the recent good faith efforts of its current officials ignores certain actions and inactions on the part of past County officials and the County Attorney’s office that cannot be characterized so favorably. More than two decades passed, and a motion for contempt had to be filed, before the County began to take any of the actions that it now relies upon as evidence of its good faith efforts. During those decades, the County virtually ignored the decree. In October of 2000, the County even stated to this court, through the voice of Assistant County Attorney Charles S. Wagner, that the County’s goal in the litigation had “always been to more or less keep a low profile, almost a stealthy profile, if you will.”294
Third, from 2000 through 2004, the County consistently evaded its reporting requirements under the decree by asserting, through the County Attorney’s office, that those requirements had been satisfied by reports submitted by the Personnel Board.295
Finally, this court entered an order on August 1, 2008, excoriating the County Attorney’s “egregious abuse of the discovery requirements of the Federal Rules of Civil Procedure,” and requiring the County to pay the Martin– Bryant parties’ fees and expenses incurred in pursuing discovery from the County,296 as well as ordering County Attorney Edwin A. Strickland and Assistant County Attorneys Charles S. Wagner and Theodore A. Lawson to show cause why sanctions should not be imposed upon them individually.297 The County moved to reconsider the
30

sanctions order on August 15, 2008,298 but this court has not ruled upon that motion, and the sanctions order remains under advisement, pending the outcome of the present contempt proceedings.299
In summary, even though there is little evidence of recent bad faith on the part of the current Commissioners or the present County Manager, there have been bad faith efforts to avoid enforcement of the decree in the past. And, of course, the County’s admitted failure to comply with the requirements of its decree for more than three decades certainly does not provide a strong basis for believing that its assertions of a present good faith intent to comply with the decree will continue into an indefinite future.
5. Are resources being wasted? The County asserts “[t]here is no evidence that the County’s conduct with respect to the Decree has been a huge waste of the taxpayer’s [sic ] resources.”300 After more than thirty years of admitted failures to comply with the decree, that is a ludicrous assertion. It must be remembered that Edwin A. (“Andy”) Strickland, who served as Jefferson County’s Attorney from 1975 through October of 2008, was the highest paid public official in the State of Alabama. Toward the end of his tenure, his annual salary approached $400,000.301 Yet, Mr. Strickland never bothered to personally appear on behalf of his client at any of the monthly status conferences held in this case during the years after supervision of these consolidated cases was transferred to the undersigned. Further, the evidence is crystal clear that neither he, nor the Assistant County Attorneys he assigned to this case, took any effective steps to bring the County into compliance with the requirements of its consent decree. Given those facts, together with the incredible, staggering breadth of official corruption perpetrated on Mr. Strickland’s watch— criminal conduct that resulted in the largest governmental bankruptcy in national history, and the imprisonment of five members or former members of the County Commission, six County Department heads or supervisors,302 and thirteen contractors connected with the sewer repair and renovation projects,303 and the farcical financial arrangements for that program304—it is clear that Jefferson County did not receive adequate value as consideration for the aggregate amounts paid to its former County Attorney and his subordinates as salaries.305
*46 Have County resources been wasted since 1982, when the consent decree was entered? The question is rhetorical. Clearly, “resources” have been wasted, even when that term is limited to money. The word is larger than that, however. It also encompasses human resources, and there is no way to quantify the “value” of the adverse

impact of the County’s perverse and persistent failure to comply with federal employment standards upon the lives and employment opportunities of untold numbers of African–American and female employees and applicants for employment with the County.
Even the monetary costs associated with many of the County’s more recent efforts at achieving compliance with its decree have been a waste of taxpayer resources, insofar as those efforts have been incomplete, ineffective, or both. The County weakly asserts that its efforts to develop a structured interview process have not been a waste, because the process “was done in good faith and has, in fact, brought some benefit to the County.”306 The fact, if it be a fact, that the structured interview process was developed “in good faith” is not relevant to a determination of whether it was a waste of taxpayers’ resources.
Further, it cannot reasonably be stated that “some benefit” to the County (presumably, the contention that the structured interview process is better than the managerdriven hiring system that was in place before, and that the process has somewhat improved the County’s recordkeeping) is worth the cost of developing a grossly flawed process. There is no evidence of the precise amount of money the County spent when developing that process, but the financial costs must have been high, not to mention the human resources that have been devoted to the effort. For all that time and money, the County created a process that has not been, and cannot be, validated under federal guidelines. If the process cannot be validated, the court sees no way that the County can continue to adhere to it and hope to be released from its decree. There also is no indication that the County’s only idea for improving the process—videotaping the interviews—would positively effect validity, and the cost of videotaping likely would far exceed the $75,000 amount the County has budgeted to purchase video equipment, because Ms. Taylor acknowledged during trial that she had not considered the need for Human Resources employees to review each video.307 In short, the structured interview process is a paradigmatic example of waste.
In addition, the County has paid the salaries of Human Resources personnel who have failed to effectively carry out their responsibilities under the decree. It also paid the salary of Charles S. Wagner, the Assistant County Attorney who advised Ms. Taylor to implement the County’s structured interview process, despite his scathing criticism of the use of such a procedure in the City of Birmingham.
Finally, the County points to its efforts to reach a
31

settlement of the contempt issue prior to trial as evidence that it has not wasted taxpayer resources. According to the County, “for the greater part of the past year, [it] has attempted to take significant measures—requesting mediation and status conferences, seeking in-person meetings with Plaintiffs’ counsel and voluntarily making concessions and stipulations—in an attempt to save resources.”308 The implication of those statements, of course, is that the trial itself was a waste.309 The court does not agree with that assessment. While the trial no doubt resulted in costs to the County in terms of time and legal fees, those costs were not wasteful. As a result of the testimony and other evidence presented at trial, the court learned that the extent of the County’s noncompliance with the requirements of its decree was far greater than reflected in the County’s pre-trial stipulations. The court also had the opportunity to ask questions and observe the demeanor and credibility of the witnesses for both sides.
6. Can a Receiver provide a quick and efficient remedy? *47 The County asserts that “[s]tripping the authority from the relevant decision-makers who want to bring the County into compliance with the Decree and placing it with a receiver is not a reasonable solution under the incredibly unique circumstances facing all aspects of the County, not just those in the HR Department.”310 Stated differently, the County contends that a receiver over the HR Department would have to understand not just the consent decree, but also the County’s bankruptcy, its budget issues, and the influence of the Alabama Legislature over the powers and prerogatives of County government. According to the County, it “could take months—if not years—to fully understand and appreciate” those issues, resulting in “a delay in the development and implementation of nondiscriminatory selection procedures and [an] increase [in] the risk of even greater inefficiencies.”311 The County argues that the “disruption caused by the appointment of a receiver could be devastating,” and it pleads that “[t]he elected officials and other County employees who understand and recognize the actual, realistic complexities facing the County should be given the opportunity to do what they have stipulated to in writing and stated in open court with respect to the decree.”312
The court does not dispute the County’s characterization of the situation at hand as a complex one, and recognizes that bringing the County into compliance with its consent decree will require diverse skill sets and a substantial investment of time and resources, both human and monetary. There can be no “quick” or “efficient” remedy for thirty years of contempt, especially when the process

of remedying the contempt is complicated by other problems of the County’s own making. That does not mean, however, that an outside receiver cannot provide a more efficient or expeditious remedy than maintenance of the status quo or implementation of any of the remedies suggested by the County.
The overwhelming weight of the evidence of record indicates that the County cannot be expected to quickly begin complying with the decree, if left to its own devices. The County has had thirty years to achieve compliance, but it still has fallen far short. It has known of the plaintiffs’ intent to enforce the decree since at least 2006, and even though it increased its efforts to comply with the decree since that time, the actual results of those efforts have been minimal. The Human Resources Department has not proven itself capable of developing and implementing procedures that will satisfy the decree, and the current Commissioners and County Manager also have not produced convincing evidence of progress. Thus, even if it did take an outside receiver months, or even years, to fully grasp all of the intertwining issues facing the County, there is every indication that the receivership still would provide a quicker and more efficient remedy than trusting the County to come into compliance on its own.
*48 Moreover, most of the specific remedies proposed by the County are likely to never bring about complete decree compliance, even if the County did diligently implement them. The most profound example is the County’s proposal to hire by lottery in 165 of 177 job classifications. The County touts that proposal as an “agreed” remedy, as though plaintiffs have agreed to it. But plaintiffs never asked for a remedy similar to the County’s proposal, and they have not agreed to the County’s proposal. Instead, the Prayer for Relief in plaintiffs’ motion to hold the County in contempt and to modify the decree reads as follows:
To redress the County’s violations of its Decree, the Martin–Bryant parties respectfully request that this Court enter such further orders as are necessary to compel the County to comply with the purposes of its Decree and to bring its employment practices in line with Federal law. That relief may include, but is not limited to, the following:
A. The County must develop lawful selection procedures for included jobs according to a detailed schedule. Each of the Included Jobs shall be placed on a schedule, pursuant to which the County will be required to develop and implement a selection procedure that either (i) lacks adverse impact, or (ii) has been validated in accordance with the Uniform
32

Guidelines. The schedule will provide for interim deliverables to the parties to the Decree, and periods for comment and objection. As to any particular job, satisfaction of the test development obligations shall occur either when the parties to the Decree agree that the obligations may be terminated or the County proves that the device either (i) lacks adverse impact or (ii) meets the Uniform Guidelines and cannot be replaced with an equally valid selection procedure that produces less adverse impact.
B. Until the County demonstrates that it has the technical skills and resources to develop lawful selection procedures, the County will be required to retain outside experts to enable it to comply with its selection procedure development obligations.
C. For each Included Job, until lawful selection procedures are in place, the County will fill appointments by lottery from those certified as eligible (for the classified service) or meeting bona fide minimum qualifications (for the unclassified service).
D. The Court shall enjoin the County from using any job selection procedure other than random selection from the relevant certification list for each Included Job unless either: (a) the parties to the Decree agree that a method may be used; or (b) the County proves that the method (i) lacks adverse impact, or (ii) is job-related, consistent with business necessity, and produces less adverse impact than any equally job-related alternative method.
....
H. The Court shall enjoin the County from using independent contractors for positions equivalent to those constituting Included Jobs.
....
*49 N. The Court shall appoint a Monitor. For each Included Job, until the County satisfies its selection procedure development obligations, each proposed employment or promotional decision, including a full record of the basis for that decision, will be submitted to the Monitor and the parties to the Decree, with a period during which those parties may object, after which the Monitor shall either approve or deny the proposed appointment. In the event of any objection, it shall be the County’s burden to justify the appointment.
O. All provisional, temporary or emergency appointments for Included Jobs must also be submitted, along with a complete justification, for review by the parties to the Decree and approval by the Monitor.

....
Q. All requests to terminate or recertify certification lists for Included Jobs must also be submitted, along with a complete justification, for review by the parties to the Decree and approval by the Monitor.
....
AA. In addition to the recordkeeping requirements contained in the County’s decree, the County will be required to do the following:
(1) Maintain detailed written records pertaining to every Included Job, completely documenting the selection procedure used to fill the vacancy and the steps taken to contact and evaluate every person eligible for appointment to that position;
(2) Maintain detailed written records of its reasons for hiring or promoting persons to Included Jobs, including a written explanation as to why others were not hired or promoted. The County shall be required to maintain any documentation considered in making those determinations; (3) For each provisional, temporary or emergency appointment made by the County to Included Jobs, maintain a written record of the complete selection procedure used to make any such appointment, including identification of all persons eligible for such appointment, contacted for such appointment, and the reasons for selecting the particular person given such appointment and for rejecting others. Also, the County shall maintain a written record to explain the circumstances under which a provisional appointment has been requested....313
Doc. no. 1413 (Martin/Bryant Parties’ Motion to Hold Defendant Jefferson County in Civil Contempt and Modify Jefferson County Consent Decree), at 12–19 (emphasis supplied).
Thus, it is clear that the Martin–Bryant parties only asked that hiring be conducted by lottery until lawful selection procedures could be developed for “Included Jobs.” They did not suggest random hiring as a permanent solution.314
Moreover, the County’s understanding of what is meant by the term “Included Jobs” appears to be different from that of the Martin–Bryant parties. In their motion, the Martin–Bryant parties defined “Included Jobs” as
those for which there is a need for development of lawful selection procedures. Unless agreed upon by the parties, the list would be determined on the basis of evidence concerning incumbency data, selection procedure results, qualified labor pool data, and
33

whether the County violated its Decree obligations in a way that may have affected appointments to those jobs.315
*50 In their response to the County’s post-trial brief, the Martin–Bryant parties state that they intentionally did not provide a specific list of “Included Jobs” when they filed the contempt motion, “because the parties did not [then] possess evidence sufficient to identify the classifications where relief would be required, and because the determination of the scope of relief could not fully be assessed until after the receipt of all the evidence at trial.”316 At some point during the course of pre-trial settlement negotiations, however, the Martin–Bryant parties generated a list of 177 jobs and presented them to the County as jobs that were viewed as “problematic” in some sense that has not been fully explained in the record.317 The County first referenced that list of 177 jobs in its pre-trial brief, stating that it was “the County’s understanding that the ‘Included Jobs’ referenced by Plaintiffs are the 177 job classifications found in Exhibit A to this brief.”318 The County offered the following explanation for how it came to that understanding:
Plaintiffs assert in the Contempt Motion that the “Included Jobs” are “those for which there is a need for development of lawful selection procedures. Unless agreed upon by the parties, the list would be determined on the basis of evidence concerning incumbency data, selection procedure results, qualified labor pool data, and whether the County violated its Decree obligations in a way that may have affected appointments to those jobs.” (Doc. no. 1413, n. 2). However, when asked by the County how the Plaintiffs made a determination with regard to which jobs to include on the list of 177, Plaintiffs could offer no statistical or empirical basis for including any of the jobs, and offered only that the 177 jobs were the ones that plaintiffs determined were problematic. Based on the utter lack of empirical justification for certain positions to be included on this list, the County maintains that adverse impact must be established for the 12 positions at issue before the County is required to validate its selections procedures with regard to those jobs.319 The Martin–Bryant parties refuted the County’s understanding in their response to the County’s post-trial brief, stating that “[a]t no time have the Martin–Bryant parties suggested that the list of 177 job classifications was intended to represent or replace the Included Jobs as defined in the Contempt Motion.”320 Based upon the foregoing, it cannot be said that the County’s proposal to hire at random in 165 of 177 job positions is an “agreed” remedy; instead, it is merely a proposal by the County, and it is flawed for the reasons discussed below.

First, the list of 177 jobs represents only a fraction of the approximately 800 job classifications at the County.321 Without more of an explanation of how the list of 177 positions was compiled, and without any evidence about the validity of the selection procedures for the remaining hundreds of job classifications, a remedy that only addresses 177 jobs appears incomplete. It would be better, as the Martin–Bryant parties have suggested, to fashion a remedy that addressed all job classifications for which there was a need for the development of lawful selection procedures (i.e., the “Included Jobs”).
*51 Further, the County has never explained how it selected the twelve positions for which it has offered to evaluate adverse impact, and to develop validated selection procedures if adverse impact is found.322 Mr. Petelos testified that the County Attorney’s Office worked with the department heads to identify those twelve positions, but he did not explain what criteria were used.323 Commissioner Carrington also testified that the twelve positions were selected based on the advice of counsel. He stated that those positions had been deemed “questionable,” an adjective that might, or might not, be synonymous with “adverse impact.”324 Commissioner Bowman testified that the twelve positions were ones for which the County did not have validated selection procedures, but he did not know whether the other 165 positions had validated selection procedures.325 Commissioner Knight testified that the twelve positions were selected after a survey was conducted among department heads to determine the positions in which hiring was most likely to occur in the near future.326 Curiously, the twelve positions do not include those which were previously identified by the County’s own expert as having adverse impact on the basis of race or gender. Instead, for those positions identified by the County’s expert as having adverse impact on the basis of either race or gender, the County has proposed to hire by random selection.327
Hiring by random selection from the Personnel Board’s certification lists is not an effective permanent solution in the large number of jobs for which the County proposes to use that technique. Dr. Lundquist, the Martin–Bryant parties’ expert, testified that random selection is not a viable selection tool for all positions. If any job required additional criteria beyond those covered by the Personnel Board’s certification process, random hiring would not account for those criteria. Dr. Lundquist also testified that it would take years for one person to determine which jobs had additional requirements beyond what was covered by the Personnel Board’s analysis, and to develop valid selection procedures for those positions.328 That is not a feasible solution, and certainly not a “quick” or
34

“efficient” one.
The court can speculate why the idea of random selection might be appealing to the County. It is the easiest method, and presumably the least costly, because it requires only a drawing of names from a hat.329 It also has the appearance of being a race- and gender-neutral process, unless one of the people involved in the drawing finds a way to manipulate the results. But the County cannot get by with the easy way after thirty years of contempt. The requirements of the decree demand a more complete remedy. The County has offered no evidence—and the court sees none—that random selection, even if it is a race- and gender-blind process, would help “correct for the effects of any alleged prior discriminatory employment practices by the County against blacks and women,” which is one of the “major purposes” of the decree.330 There also is no indication that random selection will help the County meet any of the more specific benchmarks in the decree, such as employing blacks and women in numbers approximating their representation on certification lists or among qualified applicants,331 or securing a number of black and female applicants in certain departments that is equivalent to the degree of representation of blacks and women in the civilian labor force of Jefferson County.332 White applicants could be randomly selected for every available position within the County and, even though those selections might not be the result of discrimination, the benchmarks in the decree still would never be met. Furthermore, the development of lawful, validated procedures for the selection of candidates from the certification lists received from the Personnel Board will help ensure that the County will be able to operate in the future in a nondiscriminatory manner. That is an important consideration if the County ever hopes to have its decree lifted. See Board of Education of Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 247, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991) (holding that a consent decree can be terminated when “the purposes of the litigation as incorporated in the decree ... have ... been fully achieved,” and when the evidence shows that it is “unlikely that [the defendant] would return to its former ways” following the termination of judicial supervision) (quoting United States v. United Shoe Machinery Corp., 391 U.S. 244, 248, 88 S.Ct. 1496, 20 L.Ed.2d 562 (1968)) (alteration supplied).
*52 Finally, even if the County’s proposal to develop valid selection procedures for only twelve or fewer jobs (depending on the number of jobs for which adverse impact was demonstrated) were an acceptable remedy, it would not produce a “quick” or “efficient” result. Commissioner Carrington acknowledged that the process of having an Industrial and Organizational Psychologist validate selection procedures for even just the twelve

positions identified by the County would be a long-term project, lasting months.333 The court’s assessment is that the process would take even longer than predicted by Commissioner Carrington—more like years than months.
In short, the County’s proposal to hire at random in 177 jobs is not likely to effect the goal of causing the County to come into compliance with its decree, and the appointment of a Monitor to oversee the County’s proposed procedures will not likely improve their effectiveness. An ineffective remedy cannot be an efficient one, and any time and resources invested in implementing the County’s proposals would be a waste of the taxpayers’ resources. Similarly, it would be inefficient to allow the current County leaders more time to attempt to comply with the decree on their own when they have proven themselves incapable of doing so during the two years they have held the reins of power.
The court is not deluded that an outside receiver will have an easy time immersing himself or herself in the County’s problems, or that the appointment of a receiver will cause the County to comply with its decree within weeks, months, or just a year or so. Even so, any extra time an outside receiver will have to spend familiarizing himself or herself with the County’s unique situation will be worth it, in light of the vast amount of time the County already has spent in contempt of its decree. Receivership will not be a “quick” remedy, but the court expects that it will, nonetheless, be the most expeditious, most effective, and, in the end, the least expensive way to cause the County to come into compliance with its decree.
VII. CONCLUSIONS AND ORDERS
HURRY UP PLEASE ITS TIME
If you don’t like it you can get on with it, I said.
Others can pick and choose if you can’t. T.S. Eliot, The Waste Land, § II, lines 152–54 (1922).334
This litigation should not have lasted so long. “Federal court supervision of local government has always been intended as a temporary measure and should not extend beyond the time required to remedy the effects of past intentional discrimination.” Ensley II, 31 F.3d at 1574–75 (citations and internal quotation marks omitted).335
Over the course of the past thirty-nine years this litigation has become the American equivalent of the case of Jarndyce v. Jarndyce that Charles Dickens depicted in his
35

novel, Bleak House, as having long-ago “passed into a joke” within the English legal profession, because innumerable children had been born into it; innumerable young people had married into it; innumerable old people had died out of it; and, in the course of time, the case had become so complicated that no man alive knew what it meant. It just droned on and on. This litigation is not fictional, however, and its longevity is no joking matter. Instead, the age of these cases has become—as Judge Edward E. Carnes observed in Ensley II, addressing the consent decree of the Personnel Board of Jefferson County—“a badge of shame—a monument to [the various defendants’] past and present failure to treat all [employees and applicants for employment] in a fair and non-discriminatory manner.” Id. at 1577–78 (alterations and emphasis supplied).336
*53 Jefferson County’s admitted violations of express and unambiguous provisions of its December 29, 1982 consent decree—standing alone, and without even taking into account the numerous, additional violations detailed in the Martin–Bryant parties’ proposed findings of fact and conclusions of law—establish a thirty-year pattern of intentional, willful disobedience of this court’s orders. Clearly, the Martin–Bryant parties’ motion to hold Jefferson County in civil contempt, and to modify some provisions of its decree, is due to be, and it hereby is, GRANTED.
Accordingly, it is ORDERED, ADJUDGED, and DECREED that defendant Jefferson County, Alabama is adjudged to be in contempt for failing to comply with the requirements of the consent decree entered on December 29, 1982.
While the imposition of a receivership is, under normal circumstances, a remedy of last resort, it is fully justified in the present circumstances. This court finds that no other remedy would be adequate to correct the effects of three decades of blatantly contumacious conduct, and that the extraordinary remedy of appointing a Receiver over the County’s Department of Human Resources—who will be answerable to no one but this court—is warranted in light of all of the factors addressed in this opinion. Therefore, the parties are ORDERED to confer regarding, among other topics, but not limited to, the following subjects: prospective candidates for the position of Receiver; the extent of the Receiver’s duties; the powers

to be conferred upon the Receiver to select, hire, promote, demote, discipline, or fire employees; the Receiver’s compensation; the Receiver’s support staff and personnel; office space for the Receiver and his or her support personnel; the authority of the Receiver to select, retain, and compensate outside consultants to assisting in devising valid, nondiscriminatory, selection procedures that either have no adverse impact on the basis of race or gender, or that—despite having disparate impact on the basis of race or gender—are “job related” as the term is used in Title VII jurisprudence.337
The parties are further directed to file a joint report of their conference, supported by the resumes of any prospective candidates for the position of Receiver, on or before Friday, September 20, 2013.338 The parties also are requested to send a proposed order to be entered when a Receiver is formally appointed, in Word Perfect format, to the chambers of the undersigned at smith_chambers@alnd.uscourts.gov, on or before Wednesday, September 25, 2013.
The parties are further ORDERED to confer regarding what modifications should be made to the County’s consent decree in light of the evidence presented at trial and the findings made in this opinion. The parties must file a joint report of their conference on or before Friday, September 20, 2013. The parties also must submit a Word Perfect copy of all proposed modifications to the consent decree to the chambers of the undersigned, at smith_chambers @alnd.uscourts.gov, on or before Wednesday, September 25, 2013.
*54 Finally, counsel for all parties are directed to appear for a status conference commencing at 9:30 o’clock a.m. on Thursday, September 26, 2013, in Courtroom 5B of the Hugo L. Black United States Courthouse in Birmingham, Alabama. Counsel are further advised that, with the exception of the months of November and December of each year, this court presently contemplates that status conferences will be conducted on the final Thursday of each month thereafter.
DONE and ORDERED.
	  

Footnotes

1

See doc. no. 1413 (Martin/Bryant Parties’ Motion to Hold Defendant Jefferson County in Civil Contempt and Modify Jefferson

County Consent Decree).

2

See doc. no. 1458.

36

3

Of this number, 999 exhibits were offered by the Martin–Bryant parties, and 145 by Jefferson County.

TABLE OF CONTENTS

I.

SHORT HISTORY OF THIS LITIGATION

4

A.

The Beginning: 1974–1975

5

B.

The First Twenty–Four Years of Litigation: 1976–2000

7

C.

Transitions: 2000–2002

15

D.

The Personnel Board in Receivership: 2002–2008

18

E.

The Shift to Birmingham: 2008–2012

20

1.

The Langford interregnum

24

2.

Mayor Bell and the restoration of focus

2 8

F.

Finally, Jefferson County!

29

II.

CIVIL CONTEMPT STANDARDS

31

III.

STANDARDS FOR MODIFICATION OF A CONSENT DECREE

40

A.

Significant Change in Facts or Law

40

B.

”Suitably Tailored” Modifications

41

IV.

THE COUNTY’S ADMISSIONS OF NONCOMPLIANCE

42

V.

THE COUNTY’S STIPULATIONS AS TO MODIFICATIONS

48

VI.

DISCUSSION

50

A.

The County’s Irrelevant Arguments

51

B.

Receivership Factors

57

1.

Have there been repeated failures to comply with court orders?

57

a.

Human Resources Department .................................................................................................................................................................................. 59

b.

Affirmative Action Officers .......................................................................................................................................................................................... 62

c.

Anti-harassment and anti-nepotism policies and training ................................................................................................................... 70

d.

Consent decree training ................................................................................................................................................................................................... 79

e.

Recruiting at historically black colleges and universities ..................................................................................................................... 79

f.

Production of semi-annual and annual reports ............................................................................................................................................ 80

g.

Monthly reports and quarterly newsletters ..................................................................................................................................................... 83

h.

Structured interview process ....................................................................................................................................................................................... 86

i.

Other decree violations ..................................................................................................................................................................................................... 95

2.

Will further efforts to secure compliance only lead to confrontation and delay?

96

3.

Is leadership available to turn the tide within a reasonable time?

101

a.

County Commissioners..................................................................................................................................................................................................... 101

b.

County Manager .................................................................................................................................................................................................................... 108

4.

Has there been “bad faith” on the part of the County?

117

5.

Are resources being wasted?

121

6.

Can a Receiver provide a quick and efficient remedy?

129

VII.

CONCLUSIONS

143

4

Cf., e.g., New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 65 L.Ed. 963 (1921) (Holmes, J.) (observing that “a page

of history is worth a volume of logic”).

5

See, e.g., United States v. Jefferson County, 720 F.2d 1511, 1514 n. 1 (11th Cir.1983) (“The Ensley Branch of the NAACP is a

37

membership organization of black citizens of Birmingham, Alabama. It, along with three black males who had applied for positions with the City of Birmingham, Alabama, and taken tests administered by the Jefferson County, Alabama, Personnel Board, filed a class action complaint against the City, George Seibels, Jr., then Mayor of Birmingham, the Board, the three members of the Board and the director of the Board.”).

6

Yet a fourth action was filed on February 20, 1976 by Lucy Walker, who challenged the employment practices of the Jefferson

County Nursing Home under Title VII and 42 U.S.C. § 1981. That suit was settled and dismissed long before the three, principal

actions described in text. See, e.g., Walker v. Jefferson County Home, 726 F.2d 1554 (11th Cir.1984); Ensley Branch of N.A.A.C.P.

v. Seibels, 616 F.2d 812, 815 (11th Cir.1980) (“Ensley I ”).

7

The City of Birmingham and Jefferson County—the two largest governmental employers serviced by the Personnel Board of

Jefferson County, an independent governmental entity—and the Personnel Board share responsibility for hiring and promoting

employees of the City or County. The Board, pursuant to state law, administers written tests and other job selection procedures that

produce a pool of qualified candidates for a particular position (a “register” of persons considered eligible for the particular

position). The Board ranks the passing applicants and, when a vacancy occurs, forwards a list of candidates to the City or County

for final selection (a “certificate of eligibles”). The original complaints alleged, among other things, that the Board used

discriminatory tests to determine eligibility for hiring and promotion, and that the City, County, and other governmental employers

engaged in still further discrimination when selecting individuals from the Board’s already tainted certificates of persons eligible

for hire or promotion. See, e.g., Ensley Branch, N.A.A. C.P. v. Siebels, 31 F.3d 1548, 1552 (11th Cir.1994) (“Ensley II ”).

8

For example, the United States did not press at this trial its coordinate claim that the tests also were discriminatory against female

applicants.

9

For a succinct discussion of Judge Pointer’s specific findings on the issue of liability, read the opinion in Ensley II, 31 F.3d at

1554–55.

10

See Ensley Branch of the N.A.A. C.P. v. Seibels, No. CA 74–2–12–S, 1977 WL 806 (N.D.Ala. Jan.10, 1977).

11

The Personnel Board contended that its test devices did not violate Title VII, while the United States and the Martin plaintiffs

contested Judge Pointer’s determination as to the date on which Title VII liability commenced. See id. at 815.

12

While the former Fifth Circuit affirmed Judge Pointer’s determination of Title VII liability, it reversed and remanded for additional

proceedings on the question of when the City’s liability under Title VII commenced. See id. at 822–25.

13

See 1995 Modification Order for Personnel Board’s Consent Decree.

14

See doc. no. 643 (July 20, 1998 Order Appointing Special Master) (alteration supplied).

15

Sam Clyde Pointer, Jr., was born Nov. 15, 1934, in Birmingham. He was awarded degrees by Vanderbilt University (A.B.1955),

the University of Alabama School of Law (J.D.1957, graduating first in his class, just ahead of two other, future judges of the

Northern District of Alabama: Robert Propst (second) and James H. Hancock (third)), and the New York University School of Law

(LL.M.1958, graduating first in his class). He was nominated by Richard M. Nixon on Sept. 22, 1970, and confirmed by the Senate

on Oct. 8, 1970. He received his commission on Oct. 14, 1970. He served as Chief Judge from 1982–1999, assumed senior status

on Nov. 19, 1999, and retired on Apr. 3, 2000. He departed his life on Mar. 15, 2008.

16

See doc. no. 677 (Notice of Reassignment).

17

See doc. no. 1573 (Order on Joint Motion for Termination of Consent Decree With the Personnel Board of Jefferson County,

Approval of Agreement, and Termination of Receivership), entered on Nov. 20, 2008.

18

See doc. no. 1724 (Order Terminating City of Birmingham’s Consent Decree), entered on Jan. 27, 2012.

19

The governmental employers served by the Personnel Board include: Jefferson County; the Jefferson County Personnel Board as

an entity; the Jefferson County Department of Health; the Jefferson County Nursing Home; the Jefferson County Emergency

Management Agency; the Jefferson County Storm Water and Sewer Administration; and the cities of Birmingham, Bessemer,

Fairfield, Fultondale, Gardendale, Graysville, Homewood, Hueytown, Irondale, Leeds, Midfield, Mountain Brook, Pleasant Grove,

Tarrant, Trussville, Vestavia Hills, and Warrior.

38

20

The Jefferson County Personnel Board was created by an Alabama statute originally enacted in 1935, and reenacted in 1945. See

Act No. 248, 1945 Acts of Alabama, at 376–400; Act No. 284, 1935 Acts of Alabama, at 691–713; see also 1940 Code of

Alabama, Appendix § 645 et seq. (Recomp.1958).

21

Successful applicants for employment or promotion are placed by the Personnel Board on “registers of eligibles.” Once a register

for a particular job classification has been established, a governmental entity served by the Board may request a “certificate of

eligibles” when vacancies occur. The certificate contains the names of the highest ranked candidates on the register who have

indicated a desire to work for that particular employer. The number of persons appearing on the certificate is a function of the

number of vacancies to be filled. State law provides that the number of candidates to be certified to the selecting authority is equal

to the number of vacancies to be filled plus nine. Ala.Code § 36–26–17 (1975). Thus, if there is one vacancy, ten candidates are

certified (the so-called “Rule of Ten”).

22

The Board’s enabling legislation excludes such positions as elected officials, certain appointed officials and professionals, and

“common laborers” from merit positions in the classified service. See Acts No. 677 and 782, 1977 Acts of Alabama.

23

See doc. no. 708 (December 18, 2000 Order Extending 1981 Consent Decrees and 1995 Modification Orders).

24

See doc. no. 934 (Memorandum Opinion Imposing Receivership on the Personnel Board), at 38–57 (outlining the Board’s failures

from 2000 forward).

25

Remarks delivered during a Nov. 10, 1942 speech at the Mansion House in London, referring to the defeat of German General

Erwin Rommel’s Afrika Korps by British General Harold Alexander and Lt. Gen. Bernard Law Montgomery at the Second Battle

of El Alamein.

26

See doc. no. 934 (Memorandum Opinion) and 935 (Order Imposing Receivership).

27

See doc. no. 935 ¶ 4 (requiring the Receiver to submit “a twelve-month plan” for the fulfillment of his duties).

28

See doc. no. 1213 (Second Revised Transition Plan) ¶¶ 6–13.

29

Id. ¶ 16.

30

Doc. no. 1270 (Order Appointing Monitor), at 1 (alteration supplied).

31

Doc. no. 1562.

32

Doc. no. 1573.

33

Doc. no. 1113.

34

Doc. no. 1228.

35

Doc. no. 1227 (Memorandum Opinion on City’s Motion to Terminate Consent Decree), at 43–49.

36

Id. at 48.

37

See doc. no. 1263 (Order Setting Deadlines for the Fire Apparatus Operator position).

38

Doc. no. 1285. See also doc. no. 1271 (City’s Proposed Revision of Fire Apparatus Operator Deadlines); doc. no. 1274 (Transcript

of December 1, 2005 Status Conference), at 30–31 (stating that all deadlines for the Fire Apparatus Operator position would be

continued indefinitely until new deadlines were entered).

39

39

Doc. no. 1332.

40

Doc. no. 1399 (Memorandum Opinion and Order denying the City’s Motion to Terminate the Remainder of its Decree).

41

Id. at 10–20.

42

Id. at 19. The discovery on this subject was less than conclusive. The least equivocal response received by the City was that it had

no present intent to withdraw from the Board’s jurisdiction. See doc. no. 1350 (Wilks Class’s Opposition to the City of

Birmingham Motions to Terminate Consent Decree and to be Dismissed as a Party), Exhibit 8 (City’s Responses to Martin–Bryant

Parties’ First Set of Requests for Admission), at Response No. 2 (“The City intends to continue paying for and receiving the

Personnel Board’s services.”), Response No. 3 (“The City is not seeking to withdraw from the Personnel Board.”) See also doc. no.

1506–1 (Declaration of Elizabeth Lewis), Exhibit 46 (March 20, 2008 Deposition of Barbara White), at 46–47 (City’s Personnel

Director stating that she was not aware of any plans for the City to remove itself from the jurisdiction of the Personnel Board).

Despite the lack of an unequivocal commitment from the City, the court became less concerned that the City would separate from

the Board’s jurisdiction following the election of Larry Langford as Mayor (discussed in the following section), and the focus of

this litigation then shifted to the “data interface problems” that are discussed in the following pages.

43

Id. at 20.

44

Doc. no. 1422. Langford received 26,230 of 52,510 votes cast in the election: 171 votes more than needed to avoid a run-off with

his nearest challenger, Birmingham attorney Patrick Cooper. After the votes were certified, Cooper filed suit, claiming that

Langford, a former four-term Mayor of Fairfield who had signed only a six-month lease for a loft apartment in downtown

Birmingham on June 4th, and who had only registered to vote in Birmingham on June 7, 2007, had failed to establish residency in

the City as required by state law. A State judge subsequently dismissed the suit, holding that residency was “a matter of intent.”

See, e.g., Larry Langford, http://www.bhamwiki.com; Larry Langford, http:// en.wikipedia.org; Jay Reeves, Suit Seeks to

Disqualify Mayor of Birmingham, The Decatur Daily, Nov. 15, 2007.

45

See doc. no. 1431 (Dec. 28, 2007 Motion to Withdraw by Anne Yuengert of the Birmingham law firm then known as Bradley,

Arant, Rose & White).

46

Only two of the three firms were located in the City of Birmingham. See doc. no. 1428 (Dec. 10, 2007 Notice of Appearance of

Brandy Murphy Lee, Lee Law Firm LLC, Birmingham); doc. no. 1433 (Notice of Appearance of Hycall Brooks, III, The Brooks

Law Firm, Birmingham); doc. no. 1434 (Notice of Appearance of Charles I. Brooks, The Brooks Law Firm P.C., Birmingham);

doc. no. 1435 (Notice of Appearance of Tiffany N. Johnson, Law Offices of Robert Simms Thompson P.C., Tuskegee, Ala.).

47

See doc. no. 1438 (Monitor’s Report November–December 2007).

48

Doc. no. 1457 (Mar. 24, 2008 Special Report of the Monitor), at 4 (emphasis in original).

49

Doc. no. 1461.

50

Id. at 2.

51

Doc. no. 1486.

52

Doc. no. 1569 (Monitor’s Report October 2008), at 4.

53

Doc. no. 1574.

54

Doc. no. 1575.

55

See doc. no. 1672 (Monitor’s Report January 2010), at 4.

40

56

Doc. no. 1673 (Order for Show Cause Hearing).

57

See doc. no. 1672, at 6.

58

See generally doc. no. 1691 (Monitor’s Report April and May 2010); doc. no. 1692 (Monitor’s Report June 2010); doc. no. 1693

(Monitor’s Report July 2010); doc. no. 1694 (Monitor’s Report August 2010); doc. no. 1703 (Monitor’s Report September–

December 2010); doc. no. 1723 (Monitor’s Report January 2012).

59

See doc. no. 1679 (Notice of Appearance by Howard Walthall, Jr.); doc. no. 1680 (Notice of Appearance by Michael K.K. Choy);

doc. no. 1690 (Motion to Withdraw by Brandy Murphy Lee), granted by text order on May 27, 2010.

60

See doc. no. 1684 (order directing Steve Goldsby to preside over a meeting between the City and the Board as a representative of

the Special Master); doc. no. 1723, at 3 (reporting that the interface problem was resolved on February 24, 2011).

61

Doc. no. 1707.

62

Doc. no. 1724 (Order Terminating City’s Consent Decree and Terminating the City as a Party).

63

See Plaintiff’s Exhibit 13 (Jefferson County Consent Decree) (hereafter, “County decree”), at 1–2, and 31. The plaintiffs to the

original action commenced by the Ensley Branch of the N.A.A.C.P. and several individual class representatives did not allege

claims against Jefferson County.

64

Id. at 31.

65

See supra note 1.

66

County decree ¶ 5.

67

Id. ¶ 1 (alteration supplied).

68

Id.

69

Id. ¶ 5.

70

It should be noted that there is a distinction between coercion and punishment, as the Eleventh Circuit observed in Citronelle–

Mobile Gathering, Inc. v. Watkins, 943 F.2d 1297 (11th Cir.1991), holding that the sanctions imposed upon a showing of civil

contempt should be sufficient “to coerce the contemnor to comply with the court’s order, but may not be so excessive as to be

punitive in nature.” Id. at 1304 (citing Matter of Trinity Industries, Inc. 876 F.2d 1485, 1493 (11th Cir.1989)). See also Mercer,

908 F.2d at 768 n. 9 (“Of course, the sanctions may not be any greater or more onerous than is necessary to ensure compliance.”).

71

Paragraph 31 states (Nota bene: All quotations from Jefferson County’s Dec. 29, 1982 Consent Decree have been copied from

Plaintiff’s Exhibit 13):

The County shall inform supervisory personnel that the County shall not discriminate against or harass any employee or

potential employee on the basis of race or sex. In addition, the County will instruct such personnel about their responsibilities

as they relate to carrying out the provisions of this Decree. Supervisory personnel will be evaluated, in part, on the basis of

their compliance with these instructions as well as their cooperation with the Affirmative Action Officer identified in

paragraph 33 below.

72

Paragraph 16 states:

Except for unclassified laborer positions over which the County has sole recruitment responsibility under this Decree, if the

recruitment efforts of the Personnel Board pursuant to its Consent Decree fail to supply sufficient applicants for the County to

meet the objectives of this Decree, the County shall institute an affirmative recruitment program designed to inform blacks

and women of job opportunities with the County. This recruitment obligation is intended to supplement but not duplicate the

41

recruitment efforts of the Personnel Board, as required by the Consent Decree between plaintiffs and the Board. The County’s recruitment activities shall be directed specifically at attracting qualified black and female applicants for the jobs identified in paragraphs 7, 8, and 11, and in Appendices A and B of this Decree. The recruitment program may include but shall not be limited to maintaining contacts with area high schools, technical and vocational schools, colleges, and organizations which have traditionally expressed an interest in providing minority and female applicants, or which indicate such interest in the future, and informing them of employment opportunities with the County. In addition, where appropriate, advertising of employment opportunities may be placed with or in advertising media primarily directed to black and female audiences for the purpose of emphasizing to blacks and women the availability of employment opportunities with the County. Utilization of the above described recruitment sources in accordance with this paragraph shall constitute compliance by the County with the affirmative recruitment obligations required by this paragraph.

73

Paragraph 18 states:

The County shall inform its employees of all opportunities for promotion or transfer. The County shall insure that all written

announcements received from the Personnel Board for hiring, promotion and training opportunities with the County are made

available to all of its employees reasonably in advance of any scheduled examinations or training for such positions. Such

announcements shall be posted in conspicuous places so that reasonable notice is given to the County’s employees of such

employment opportunities. Notices of job announcements within a department in either permanent, part-time or temporary

positions shall be posted separately and in conspicuous places from notices of job announcements in other departments.

74

Paragraph 31 states:

The County shall inform supervisory personnel that the County shall not discriminate against or harass any employee or

potential employee on the basis of race or sex. In addition, the County will instruct such personnel about their responsibilities

as they relate to carrying out the provisions of this Decree. Supervisory personnel will be evaluated, in part, on the basis of

their compliance with these instructions as well as their cooperation with the Affirmative Action Officer identified in

paragraph 33 below.

75

Paragraph 33(e) requires the County to appoint an Affirmative Action Officer who is required, among other responsibilities, to

“Maintain a complete record of all actions taken in pursuit of the duties prescribed herein, including all correspondence directed to

or from the County with respect to any complaints or investigations undertaken pursuant to this Consent Decree and any

investigatory files.”

76

Paragraph 51(a) states that the County’s records shall include:

A list of all organizations and schools which are contacted for recruitment purposes, showing the date that any notice of job

opportunity was mailed to them, the title of the job and number of positions within that job to be filled from that notice, and

the date through which applications would be received for the job. A summary or compilation of all other recruitment efforts

aimed at minorities and women shall also be maintained, together with the date and nature of the efforts and the names and

job title of the County employees involved.

77

Paragraph 13 states:

In [those departments and divisions identified in “Appendix A” to the County’s decree, in which blacks and females have not

been hired consistent with their expressed or potential interest in such employment], Jefferson County agrees that it will make

a good faith recruitment effort, in accordance with its affirmative recruitment obligations under this Decree, to secure the

number of black and female applicants in entry level (open competitive) jobs in those departments and divisions that is at least

equivalent to the degrees of representation of blacks and women in the civilian labor force of Jefferson County. The parties

preserve the right to adjust these recruitment goals through agreement and subject to the approval of the Court, where it can be

shown that a professional degree, license or certificate is required to perform the duties of any particular job or jobs and that

blacks and/or women hold such degrees, licenses or certificates in percentage terms in the relevant labor market which are

inconsistent with these goals. The relevant labor market for the jobs identified on Appendices A and B will be Jefferson

County, unless the parties agree or the Court requires that for a particular job or jobs some other labor market be used that will

better serve the purposes of this Decree. For purposes of this paragraph, entry level jobs are those listed in Appendices A and

B. [alteration supplied]

78

See supra note 77 for the text of Paragraph 51(a).

79

Paragraph 51(b) states that the County’s records shall include:

All written applications and related records for all persons seeking employment with the County, including applications for

transfer or promotion within or among departments, for a period of at least five (5) years, which applications shall include

identification by the County of the applicant by race and sex. Such records shall also contain a statement signed by the

appropriate County official, setting forth the reasons why any applicant was found not to be qualified for the position(s)

applied for.

42

80

See id.

81

Paragraph 52(a) requires the County to make a semi-annual report containing, among other items, “[a] summary showing the total

number of current employees by race and sex in each job classification for each department of the County in both the classified and

unclassified service” (alteration supplied).

82

Paragraph 52(b) requires the County to make a semi-annual report containing, among other items, “[a] list of all probational

appointments for permanent full-time positions, by job classification and department, during the six month reporting period

indicating the race and sex of the persons hired or promoted” (alteration supplied).

83

Paragraph 53(a) requires the County to make an annual report containing, among other items, “[a] list of persons, by job

classification, department, race and sex, to whom positions have been offered with an indication thereon of whether or not the

position was accepted” (alteration supplied).

84

Paragraph 53(b) requires the County to make an annual report containing, among other items, “[a] list of all promotions to

permanent full-time positions in the classified service, by job classification and department, during the twelve month reporting

period indicating the race, sex, date of initial hire in the classified service and date of the promotion” (alteration supplied).

85

Paragraph 53(c) requires the County to make an annual report containing, among other items:

A breakdown of the applicant flow for employment with the County which indicates by race and sex the number of applicants

for each department and job classification in the classified and unclassified service, and the number of applicants hired,

rejected and pending for each job classification and department. Applicant hires shall be separately identified as to

Comprehensive Employment Training Act (CETA) positions.

86

See id.

87

Paragraph 53(d) requires the County to make an annual report containing, among other items, “[a] summary of the recruiting

activities conducted by the County and the results of those activities” (alteration supplied).

88

See doc. no. 1772 (County’s Post–Trial Brief), at 56 (“The County does not dispute the Decree should be modified.”).

89

Id. at 58. See Part VI(B)(6), infra, for further discussion of the 177 jobs.

90

“Industrial and organizational psychology” (also known as “I–O psychology” or “work psychology”) is the scientific study of

employees, workplaces, and organizations. I–O psychologists contribute to an organization’s success by improving the

performance, satisfaction, and well-being of its employees. Such psychologists conduct research on employee behaviors and

attitudes, and how these can be improved through hiring practices, training programs, feedback, and management systems. See,

e.g., Gerald R. Ferris & M. Ronald Buckley, Human Resources Management 156–60, 162–64, 166–69, 173–76 (Englewood Cliffs,

N.J.: Prentice–Hall 3d ed.1996).

91

Doc. no. 1772 (County’s Post–Trial Brief), at 58–59.

92

Id. at 59.

93

See doc. no. 1772 (County’s Post–Trial Brief), at 2 (“[T]he County is willing to stipulate to specific violations of the decree alleged

by Plaintiffs and to most of the relief sought by Plaintiffs in their Contempt Motion. Thus, the question before the Court is what

remedy it is going to impose for the County’s non-compliance.”) (alteration supplied); id. at 14–19 (detailing the County’s

stipulations as to violations of the decree); id. at 61–62 (setting forth the County’s stipulations as to appropriate remedies for its

contempt); id. at 62 (“While the County maintains it has made good faith efforts at compliance, particularly in the last four years, it

concedes it has not consistently abided by all aspects of the Decree.”) (emphasis supplied). See also doc. no. 1798 (County’s

Response to Martin–Bryant Parties’ Post–Trial Brief), at 1 (“The County does not dispute that Plaintiffs exercised the proper

procedural vehicle in bringing the County’s non-compliance with the Decree before this Court. More importantly, the County also

does not dispute that it has not complied fully with the Decree. Indeed, as stated in multiple pleadings ... and as reaffirmed by the

Commissioners and County Manager during trial, the County is willing to stipulate to specific violations of the Decree alleged by

Plaintiffs and to most of the relief sought by Plaintiffs in their Contempt motion. Thus, the pertinent question before the Court is

what remedy to impose for the County’s non-compliance.”) (emphasis supplied); id. at 4 (“The County accepts that it has not lived

43

up to the bargain it agreed to in 1982 and accepts it will be faced with a finding of contempt and modifications of the Decree.”).

94

See doc. nos. 934 & 935 (Memorandum Opinion and Order imposing receivership).

95

See doc. no. 1772 (County’s Post–Trial Brief), at 2 (“The County maintains that it is not the Personnel Board circa 2002 and this

Court should not impose the severe and drastic remedy of a receiver ....”) (emphasis in original); id. at 3 (“Since none of the factors

previously relied on by the Court in placing a receiver over the Personnel Board weigh in favor of a similar finding for the County,

this Court should not impose such a harsh and extreme remedy here.”) (emphasis in original); id. at 66 (“In grave contrast to what

this Court was facing in 2002 with the Personnel Board (including the threat of criminal sanctions), the application of these factors

to the County and its current leadership demonstrates a the [sic] extraordinary remedy of a receiver is not necessary.”) (alteration

supplied); id. at 67 (“[T]he County has not repeatedly or cavalierly disregarded Court-imposed deadlines in contrast to previous

incarnations of the Personnel Board.”) (alteration supplied); id. at 71 (contrasting the County’s production of documents during

these proceedings to the Board’s “repeated failures to provide required data and information to the parties”); id. at 73 n. 8 (“The

current situation is drastically different from what this Court was facing with the Personnel Board.”); id. at 75 (“The contrast

between this Commission and County Manager and the Personnel Board’s leadership at the time it was placed under receivership

is glaring.”); id. at 76 (“Here, the evidence presented by the County, including its pre-trial stipulations and suggested relief, the

change in government structure and the Commissioners and County Manager’s testimony paint an entirely different picture than

this Court faced with the Personnel Board.”) (emphasis in original); id. at 80 (contrasting the Board’s wasteful patterns to the

County’s own, allegedly, more conservative use of resources). See also doc. no. 1772 (County’s Response to Martin–Bryant

Parties’ Post–Trial Brief), at 219 (“Jefferson County in 2013, no matter its wayward history, is not the Personnel Board in 2002.”);

id. at 220 (“Since none of the factors previously relied on by the Court in placing a receiver over the Personnel Board weigh in

favor of a similar finding for the County, this Court should not impose the remedy of last resort.”) (emphasis in original).

96

See, e.g., doc. no. 1772 (County’s Post–Trial Brief), at 2 (asserting that the court should not impose a receivership, in part, because

of “the County’s precarious financial situation”).

97

County’s Proposed Fact No. 201 (alteration supplied).

98

See County’s Proposed Fact Nos. 222 (“On November 9, 2011, in the eleventh month of the new Commissioners’ tenure and the

second month of Mr. Petelos’ service, the County filed Chapter 9 bankruptcy.”) & 224 (“The County remains in bankruptcy with

no general fund revenue sources.”).

99

See doc. no. 1725 (order holding that the automatic stay provisions of Title 11 of the United States Code do not apply to the portion

of this litigation that concerns Jefferson County, including the Martin–Bryant parties’ motion to hold the County in contempt of

court for failure to comply with the terms of its consent decree).

100 The only relevance that evidence about the County’s financial problems might have to these proceedings is as background information to explain why the County implemented the 2011 Administrative Leave Without Pay (“ALWOP”) and the 2012 Reduction–In–Force (“RIF”), or as an indication that the current County leadership is faced with too many other problems to devote an appropriate amount of time and resources to consent decree compliance.

101 Jack Bass, Taming the Storm 398 (1993) (quoting a written statement made by Judge Johnson during confirmation proceedings regarding his nomination to a position on the United States Court of Appeals for the Eleventh Circuit) (alteration supplied).

102 Cf. Proverbs 6:6 (“Go to the ant, thou sluggard; consider her ways, and be wise....”) (King James).

103 See County’s Proposed Fact Nos. 72–77.

104 Consent Decree ¶ 1.

105 Id. ¶ 5 (reciting the “major purposes” of the decree).

106 Id. (emphasis supplied).

107 See, e.g., doc. no. 708 (Order Extending 1981 Consent Decrees and 1995 Modification Orders of the City of Birmingham and Personnel Board of Jefferson County), at 6 et seq.
44

108 The court notes that two of the provisions with regard to which the County has stipulated its non-compliance are paragraphs 52 and 53, which require the County to submit semi-annual and annual reports to the plaintiffs. The County has acknowledged its failure to “consistently” satisfy those interim reporting requirements between 1982 and 2008. Thus, the County has admitted to at least this “repeated” failure.
109 Doc. no. 1772 (County’s Post–Trial Brief), at 68–69.
110 Moreover, the fact that the County only recently began to make these efforts at compliance, and only under the threat of contempt sanctions, is relevant to other factors in the receivership analysis, particularly those that have to do with the inadequacy of other remedies.
111 See County’s Proposed Fact Nos. 109–110.
112 See County’s Proposed Fact Nos. 114–22.
113 See Martin–Bryant parties’ Proposed Fact Nos. 2.1.3 & 2.2 .2 (regarding the comparisons required by paragraph 5 of the decree), 4.1.3 (regarding the comparisons required by paragraph 13 of the decree), 5.1.2 (regarding the comparisons required by paragraph 14 of the decree), 7.2.2 (regarding the comparisons required by paragraph 16 of the decree).
114 See Martin–Bryant parties’ Proposed Fact Nos. 32.1.3.1.1, 32.1.3.2, and 32.1.5.
115 See Martin–Bryant parties’ Proposed Fact Nos. 32.1.3.3 & 32.1.4.
116 See Martin–Bryant parties’ Proposed Fact No. 32.2. The Martin–Bryant parties also offer several examples of the Human Resources Department inappropriately or inadequately handling complaints of discrimination by County employees. See Martin– Bryant parties’ Proposed Fact No. 33 and all subparts. The court does not feel it necessary to fully explore the details of each individual employee’s complaint and determine whether the County’s response to each was appropriate. There is no need for these contempt proceedings to be transformed into a series of mini-trials on employee discrimination claims, as ample other evidence exists demonstrating the County’s contempt of its decree and the need for an effective remedy.
117 County’s Proposed Fact No. 19.
118 County’s Proposed Fact Nos. 20–22.
119 Martin–Bryant parties’ Proposed Fact Nos. 10.1.3, 10.1.5.
120 If Ms. Oden–Webster had been performing the duties of the Affirmative Action Officer since 1993, she was unaware of it. During her 2007 deposition, she testified that the County did not have an Affirmative Action Officer, and had not had one at any time since 1993. Plaintiffs’ Exhibit 1028 (Deposition of Kimberly Oden–Webster), at 110. She reaffirmed that testimony during the first session of the trial. March 2009 Trial Transcript, Vol. 1, at 78–79, 87.
121 See Martin–Bryant parties’ Proposed Fact No. 10.2 and all subparts.
122 December 2012 Trial Transcript, Vol. 6, at 82–85.
123 See Defendant’s Exhibit 152 (Power Point® Presentation); Defendant’s Exhibit 153 (handout).
124 See Martin–Bryant parties’ Proposed Fact No. 10.3.2 and all subparts.
125 See Consent Decree ¶¶ 12–16 and Exhibit A.
45

126 See Martin–Bryant parties’ Proposed Fact No. 9.2.3.1 and all subparts 127 See Martin–Bryant parties’ Proposed Fact No. 9.2.3.2 and all subparts. See also Consent Decree ¶¶ 12–16 and Exhibit A. 128 See Martin–Bryant parties’ Proposed Fact No. 9.2.3.3 and all subparts. See also Consent Decree ¶¶ 12–16 and Exhibit A. 129 See Martin–Bryant parties’ Proposed Fact Nos. 10.5.3–10.5 .4. 130 Oden–Webster Deposition, at 125–26. 131 March 2009 Trial Transcript, Vol. 1, at 112. 132 See Martin–Bryant parties’ Proposed Fact No. 10.6.4 and all subparts. 133 March 2009 Trial Transcript, Vol. 1, at 112–13. 134 Id. at 113–16. 135 See Martin–Bryant parties’ Proposed Fact Nos. 30.4.3 & 30 .4.4. See also doc. no. 1458 (show cause order). 136 See Defendant’s Exhibit 113 (Anti–Nepotism Policy). 137 See Martin–Bryant parties’ Proposed Fact No. 26 and all subparts. 138 Martin–Bryant parties’ Proposed Fact No. 25.1.1.7. 139 Plaintiffs’ Exhibit 758, at 1 (alteration supplied). 140 Id. 141 Id. (alteration and emphasis supplied). 142 December 2012 Trial Transcript, Vol. 4, at 153–54. 143 Id. at 163–64. 144 Id. at 157–59. 145 Id. at 155–57. 146 Id. at 159–62. 147 See http://www.alabar.org/directory. 148 Plaintiff’s Exhibit 898, at HR 274839.
46

149 Id. at HR 274840.
150 December 2012 Trial Transcript, Vol. 4, at 168–70.
151 Id. at 159.
152 Plaintiffs’ Exhibit 898, at HR 274861–62.
153 Id. at HR 274863.
154 Id. at HR 274835.
155 Id. at HR 274861–62.
156 Id. at HR 274863.
157 Id. at HR 274835.
158 See Plaintiffs’ Exhibit 758.
159 Plaintiffs’ Exhibit 898, at HR 274861–62.
160 Id. at HR 274863. The court can discern no reasonable difference, for purposes of protection under anti-discrimination laws, between religion and creed. The court also must note that Mr. Smallwood’s list of acceptable answers is incomplete, as it omits the prohibition of discrimination on the basis of national origin.
161 Id. at HR 274835–36.
162 See Plaintiffs’ Exhibit 758.
163 December 2012 Trial Transcript, Vol. 7, at 65–66.
164 Plaintiffs’ Exhibit 898, at HR 274861–62. The court does not understand why “standing” was listed by Mr. Smallwood as one of the requisite elements of a valid contract. An agent, principal, third-party beneficiary, or stranger to a contract might have to demonstrate “standing” in order to bring an action for either breach or to enforce the agreement, see, e.g., Williston on Contracts §§ 35:41, 35:46, 37:28, 37:1, but “standing” in the sense that term normally is used in the law generally is not listed as an essential element of a valid contract.
165 Plaintiffs’ Exhibit 898, at HR 274863.
166 Id. at HR 274835–36.
167 See Plaintiffs’ Exhibit 758.
168 Martin–Bryant parties’ Proposed Fact Nos. 25.1.1.19 and 25.1.1.20.
169 December 2012 Trial Transcript, Vol. 7, at 67–68. In addition to asserting that the interview process for Director of Tax Collection was designed to guarantee the position to Mr. Smallwood’s pre-selected candidate, the Martin–Bryant parties also argue that Ms. Parker’s failure to receive the position was the result of race and gender discrimination. See Martin–Bryant parties’ Proposed Fact 47

No. 1.3.1.1 (“Ms. Parker, an African American woman, was denied a promotion to Director of Tax Collection because of her race and gender.”). They also assert that Ms. Parker’s job duties later were diminished after her return from a pre-approved military leave of absence, that she was retaliated against for filing a discrimination complaint about the situation with her military leave, and that she was adversely affected by the Administrative Leave Without Pay program and the Reduction–in–Force because of the other discrimination she had already suffered. See Martin–Bryant parties’ Proposed Fact Nos. 1.3.1.4–1.3.1.7, 25.1.1.18. There is no need to discuss those allegations of discrimination in this opinion, however. As observed in note 117, supra, there is no need for these contempt proceedings to be transformed into a series of mini-trials on employee discrimination claims, as ample other evidence exists demonstrating the County’s contempt of its decree and the need for an effective remedy.
170 See County’s Proposed Fact No. 41.
171 See County’s Proposed Fact No. 43.
172 December 2012 Trial Transcript, Vol. 6, at 196–97. The Martin–Bryant parties assert that the County has not conducted any recruiting for classified positions. See Martin–Bryant parties’ Proposed Fact No. 7.3.3 and all subparts. Most of the evidence they cite, however, relates to the County’s activities before 2009. Ms. Taylor’s testimony concerned the County’s activities at the time of trial in 2012, and there is nothing to dispute that testimony. As discussed in the text accompanying notes 19–22, supra, the Personnel Board is charged by Alabama law with the function of administering written tests and other job selection procedures that produce “registers” and “certificates” of persons considered eligible for employment or promotion to classified positions with the twenty-two governmental entities served by the Personnel Board.
173 The Board’s enabling legislation excludes such positions as elected officials, certain appointed officials and professionals, and—in the sense relevant to the statement in text—“common laborers” from merit positions in the classified service. See Acts No. 677 and 782, 1977 Acts of Alabama.
174 See County’s Proposed Fact No. 48. It also is undisputed that, before October of 2008, the County did not consistently produce the semi-annual and annual reports required by the decree. See doc. no. 1772 (County’s Post–Trial Brief) ¶¶ 65–71.
175 See County’s Proposed Fact No. 49.
176 See Martin–Bryant parties’ Proposed Fact No. 15.2.2.1 and all subparts.
177 See Martin–Bryant parties’ Proposed Fact Nos. 15.2.3.2.1, 15.2.3.2.2, and 15.2.3.2.3.
178 December 2012 Trial Transcript, Vol. 6, at 124–27.
179 See County’s Proposed Fact No. 50.
180 December 2012 Trial Transcript, Vol. 6, at 126–28.
181 December 2012 Trial Transcript, Vol. 8, at 63–68.
182 Paragraph 53(a) requires the County to make an annual report of “all persons, by job classification, department, race and sex, to whom positions have been offered with an indication thereon of whether or not the position was accepted.”
183 December 2012 Trial Transcript, Vol. 8, at 69–74. Paragraph 53(c) requires the County to annually provide [a] breakdown of the applicant flow for employment with the County which indicates by race and sex the number of applicants for each department and job classification in the classified and unclassified service, and the number of applicants hired, rejected and pending for each job classification and department. Applicant hires shall be separately identified as to Comprehensive Employment Training Act (CETA) positions. [Emphasis and alteration supplied.]
184 December 2012 Trial Transcript, Vol. 6, at 135–37.
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185 December 2012 Trial Transcript, Vol. 8, at 72–74.
186 See Martin–Bryant parties’ Proposed Fact Nos. 15.2.6 and 15.2.7 and all subparts.
187 December 2012 Trial Transcript, Vol. 6, at 193–94.
188 Nota bene: Ms. Oden–Webster’s preferred spelling of her last name includes a hyphen.
189 Plaintiffs’ Exhibit 3196, at HR 308959 (emphasis in original).
190 December 2012 Trial Transcript, Vol. 6, at 197–98; Vol. 7, at 29–30.
191 Id., Vol. 6, at 198.
192 Id., Vol. 7, at 139–41.
193 County’s Proposed Fact No. 158.
194 Doc. no. 1172, at 69 (emphasis supplied).
195 Id. Paragraphs 51(b)-(d) of the consent decree require the County to maintain the following records: (b) All written applications and related records for all persons seeking employment with the County, including applications for transfer or promotion within or among departments, for a period of at least five (5) years, which applications shall include identification by the County of the applicant by race and sex. Such record shall also contain a statement signed by the appropriate County official, setting forth the reasons why any applicant was found not to be qualified for the position(s) applied for. (c) With respect to any applicant who is certified for hire or promotion and who is not selected for the vacancy for which that applicant is certified, the County shall record in writing, signed by the appropriate County official, the reasons for the applicant’s not being selected for that vacancy. Also, the County shall record and maintain any other written records or comments on an applicant for certification in accordance with paragraph 32(e) above. (d) All written communications between the County and applicants for employment, transfer and promotion.
196 Doc. no. 1773 (Martin–Bryant parties’ Post–Trial Brief), at 102. See also Martin–Bryant parties’ Proposed Fact Nos. 19–20 and all subparts. The County even states, as one of its own proposed facts, that, prior to implementation of the Structured Interview Process, “the County utilized non-validated selection procedures that were manager-driven.” County’s Proposed Fact No. 125.
197 December 2012 Trial Transcript, Vol. 7, at 30–32.
198 Plaintiffs’ Exhibit 3150, at 1.
199 Id.
200 Id. (alteration supplied).
201 Id. at 3.
202 “KSAO” is an acronym standing for “knowledge, skills, abilities, and other characteristics.”
203 Id. at 11 (alterations and emphasis supplied).
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204 See Martin–Bryant parties’ Proposed Fact No. 21.1.1 and all subparts. 205 Martin–Bryant parties’ Proposed Fact No. 21.1.6.5. 206 See, e.g., County’s Proposed Fact No. 165. 207 December 2012 Trial Transcript, Vol. 7, at 41. 208 See Martin–Bryant parties’ Proposed Fact No. 22.1 and all subparts. 209 December 2012 Trial Transcript, Vol. 8, at 16. 210 Martin–Bryant parties’ Proposed Fact No. 22.2.1.1. 211 Martin–Bryant parties’ Proposed Fact No. 22.2.3 and all subparts. 212 Martin–Bryant parties’ Proposed Fact No. 22.2.4 and all subparts. 213 Martin–Bryant parties’ Proposed Fact No. 22.2.5 and all subparts. 214 Martin–Bryant parties’ Proposed Fact No. 22.2.7 and all subparts. 215 Martin–Bryant parties’ Proposed Fact No. 22.2.8 and all subparts. 216 Martin–Bryant parties’ Proposed Fact No. 22.2.9 and all subparts. 217 One egregious example of the potential for abuse in the Structured Interview Process is the 2008 selection of John DeLucia for
Director of Tax Collection in 2008, discussed in Part VI(B)(1)(c), supra. 218 Martin Bryant parties’ Proposed Fact No. 22.3.2 and all subparts. 219 Martin–Bryant parties’ Proposed Fact Nos. 22.3.3 and 22.3.4 and all subparts. 220 Martin–Bryant parties’ Proposed Fact No. 22.3.5 and all subparts. 221 Martin–Bryant parties’ Proposed Fact No. 22.4 and all subparts. 222 Martin–Bryant parties’ Proposed Fact Nos. 23.1.1–23.1.6 and all subparts. 223 See Martin–Bryant parties’ Proposed Fact No. 24 and all subparts. 224 County’s Proposed Fact No. 178. The County also asserts that its hiring of Tony Petelos as County Manager and sole appointing
authority represents an effort to comply with the decree. The court will discuss the impact of Mr. Petelos’ position on the receivership analysis in Part VI(B)(3)(b), infra. 225 December 2012 Trial Transcript, Vol. 7, at 48–49.
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226 Doc. no. 1773, at 14–249.
227 See doc. no. 1797 (Martin–Bryant parties’ Response to County’s Post–Trial Brief), at 37–52.
228 See doc. no. 1772 (County’s Response to Martin–Bryant Parties’ Post–Trial Brief).
229 December 2012 Trial Transcript, Vol. 7, at 129–30.
230 Id. at 130.
231 Id. at 114.
232 December 2012 Trial Transcript, Vol. 5, at 229.
233 Id. at 235.
234 December 2012 Trial Transcript, Vol. 8, at 248–49.
235 Id. at 248.
236 Id.
237 December 2012 Trial Transcript, Vol. 5, at 133.
238 Id. at 135.
239 Id. at 136.
240 December 2012 Trial Transcript, Vol. 9, at 47.
241 Id. at 54–55.
242 Id. at 19–20.
243 Id. at 20–21.
244 Id. at 18.
245 Commissioner Carrington testified that the ALWOP was implemented, in part, to comply with a state law requiring the County to maintain a balanced budget and a federal law requiring the County to have enough money to pay its workers before requiring them to work. December 2012 Trial Transcript, Vol. 5, at 212–13. He did not recall having any discussions with anyone about whether the County’s consent decree obligations overrode its obligations under state and local law when deciding to implement the ALWOP and the RIF. It was his understanding that as long as the ALWOP and RIF were conducted in accordance with Personnel Board rules, they also would satisfy the requirements of the consent decree. Id. at 246–48. Commissioner Little–Brown did not recall giving any consideration to the supremacy of the consent decree when deciding to implement the ALWOP and the RIF. Id. at 177–78.
246 December 2012 Trial Transcript, Vol. 5, at 130–31. 51

247 Id. at 199–200. 248 Id. at 205. 249 See Part VI(B)(1), supra. 250 December 2012 Trial Transcript, Vol. 5, at 145–50. 251 Id. at 160–66. 252 December 2012 Trial Transcript, Vol. 6, at 24–30. 253 December 2012 Trial Transcript, Vol. 5, at 210–213. 254 December 2012 Trial Transcript, Vol. 9, at 8. 255 See County’s Proposed Fact No. 209; Martin–Bryant parties’ Proposed Fact No. 31.7.3 and all subparts. 256 See County’s Proposed Fact Nos. 208, 210. 257 Martin–Bryant parties’ Proposed Fact No. 31.7.1 and all subparts. 258 December 2012 Trial Transcript, Vol. 6, at 213–14. 259 Martin–Bryant parties’ Proposed Fact No. 25.3.1 and all subparts. 260 See Martin–Bryant parties’ Proposed Fact No. 25.3.2 and all subparts. 261 December 2012 Trial Transcript, Vol. 9, at 51–52. 262 Id. at 118–20. The Martin–Bryant parties rely upon a newspaper article to assert that the problem with how those individuals were
placed on ALWOP was that Commissioner Stephens had improperly intervened in the ALWOP decision. See Martin–Bryant parties’ Proposed Fact No. 25.4.1 and all subparts. However, there is no actual testimony or other evidence to establish that Commissioner Stephens had any such involvement. During his trial testimony, Commissioner Stephens could not explain what was meant by the article. See December 2012 Trial Transcript, Vol. 9, at 33–37. 263 See Martin–Bryant parties’ Proposed Fact Nos. 1.2.4, 25.3 .4 and all subparts; County’s Proposed Fact No. 220. 264 Martin–Bryant parties’ Proposed Fact No. 31.8.4. 265 Martin–Bryant parties’ Proposed Fact No. 31.8.4.1. 266 See County’s Proposed Fact Nos. 225–26. 267 County’s Proposed Fact No. 229.
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268 County’s Proposed Fact No. 234.
269 December 2012 Trial Transcript, Vol. 5, at 283.
270 Id. at 284. Paragraph 2 provides that: Nothing herein shall be interpreted as requiring the County to hire unnecessary personnel, or to hire, transfer, or promote a person who is not qualified, or to hire, transfer or promote a less qualified person, in preference to a person who is better qualified based upon the results of a job related selection procedure. Nothing herein shall prohibit the County from discharging, disciplining or demoting employees for just cause in accordance with applicable law, nor shall it preclude the County from engaging in layoffs or rollbacks of employees pursuant to State law, provided however that any such actions are taken and executed without regard to race or sex.
271 December 2012 Trial Transcript, Vol. 8, at 269–71 (Bowman); Vol. 9, at 64 (Knight); Vol. 5, at 278 (Carrington).
272 County’s Proposed Fact No. 228.
273 County’s Proposed Fact No. 239.
274 Trial Transcript, Vol. 5, at 290.
275 County’s Proposed Fact Nos. 87, 92 (alteration supplied).
276 County’s Proposed Fact Nos. 88–90.
277 Cf., e.g., V.O. Key, Jr., Southern Politics in State and Nation 51 (1949) (describing former Alabama Governor Bibb Graves as a man who “impressed local politicians over the state as a practical man who could and would do business with them to meet the immediate practical problems of governing with mutually beneficial results. With the friends produced by favors and the expectation of favors, he bound to himself an essentially personal following.”).
278 County’s Proposed Fact Nos. 82–84, 93.
279 County’s Proposed Fact Nos. 94–106.
280 December 2012 Trial Transcript, Vol. 7, at 169–70.
281 Id. at 132.
282 Id. at 134–37, 166–69.
283 Id. at 139–40.
284 Id. at 140–41.
285 Id. at 147–51.
286 December 2012 Trial Transcript, Vol. 7, at 138.
287 In addition to the five persons named in the two sentences following this marginal note, Gregory John Katopodis, a former member of the Jefferson County Commission, was convicted in federal court for stealing money that the County, among others, donated to a charity he organized and managed, ostensibly for the purpose of assisting underprivileged children. See United States v. 53

Katopodis, 428 F. App’x 902 (11th Cir.2011) (convictions for mail and wire fraud). Even though Mr. Katopodis committed those crimes between 2001 and 2008, he was not counted in the tally of convicted former Commissioners because he left office in 1990.
288 See United States v. McNair, CR–05–PT–61–S and CR–05–S–543–S (N.D.Ala.) (convictions for conspiracy and for having accepted bribes while in office from contractors in exchange for steering county sewer reclamation work to them); United States v. McNair, 605 F.3d 1152 (11th Cir.2010).
289 See United States v. White, CR–07–CO–448–W (N.D.Ala.) (convictions for having accepted bribes while in office from contractors in exchange for steering county business to them); United States v. White, 663 F.3d 1207, 1209 (11th Cir.2011).
290 See United States v. Langford, CR–08–CO–245–W (N.D.Ala.) (convictions for bribery, conspiracy, money laundering, mail fraud, wire fraud, and tax fraud); United States v. Langford, 647 F.3d 1309 (11th Cir.2011).
291 See United States v. Buckelew, CR–08–J–357–S (N.D.Ala.) (conviction for obstructing an official proceeding).
292 See, e.g., United States v. White, 663 F.3d 1207, 1210 (11th Cir.2011) (“Jefferson County consists of five districts, each represented by an elected commissioner who serves as the head of a county department.”).
293 Doc. no. 1772 (County’s Post–Trial Brief), at 79 (alteration supplied).
294 Martin–Bryant parties’ Proposed Fact No. 30.1.3 (emphasis supplied). The adjective “stealthy,” and its root noun, “stealth,” are pejorative terms that generally connote furtive, surreptitious, and hidden acts or movements. See, e.g., Webster’s Third New International Dictionary 2232 (defining stealth as, e.g., “the act or action of going or passing furtively, secretly, or imperceptibly”) (2002).
295 See Martin–Bryant parties’ Proposed Fact No. 30.1 and all subparts.
296 See doc. no. 1514 (Order entered Aug. 1, 2008, and requiring Jefferson County to pay the fees and expenses of counsel for the Martin–Bryant parties as a sanction for discovery abuses). For more detail about the extent of the County’s discovery abuses, see the Martin–Bryant parties’ motion for sanctions (doc. no. 1494) and the Martin–Bryant parties’ Proposed Fact No. 31.5.3 and all subparts.
297 See doc. no. 1514 (Order entered Aug. 1, 2008), at 2–3 (“Further, the in-house attorneys from the Jefferson County Attorney’s Office who represented Jefferson County during the period in which counsel repeatedly failed to comply with the Martin–Bryant parties’ discovery requests—i.e., Charles S. Wagner, Theodore A. Lawson, II, and the aforesaid attorneys’ ultimate supervisor, Jefferson County Attorney Edwin A. Strickland—each are ORDERED to show cause, in writing, on or before August 15, 2008, why the fees and expenses incurred by the Martin–Bryant parties in pursuing discovery from Jefferson County should not be imposed upon them individually, not to be satisfied out of County funds.”) (emphasis in original).
298 See doc. no. 1528 (Jefferson County Motion for Reconsideration of August 1, 2008 Sanction Order [Doc. 1514] ), filed Aug. 15, 2008.
299 See, e.g., doc. no. 1561 (Order entered Nov. 7, 2008, and providing in pertinent part that the motion of Edwin A. Strickland to withdraw as counsel of record due to his retirement from employment as the Attorney for Jefferson County “will be held in abeyance until such time as the court decides whether sanctions should be imposed upon Mr. Strickland in his individual capacity for contributing to Jefferson County’s repeated failure to respond to discovery requests submitted by the Martin–Bryant parties”).
300 Doc. no. 1772 (County’s Post–Trial Brief), at 80 (alterations supplied).
301 Mr. Strickland’s successor, Jeff Sewell, whose services were involuntarily terminated by the Jefferson County Commission earlier this year, was drawing an annual salary of $393,000.
302 The County Department heads and supervisors convicted of criminal acts in connection with the sewer repair and renovation projects were: 1. Jack Swann, Director of the Jefferson County Environmental Services Department, was convicted of one count of Conspiracy to Commit Bribery, six counts of Bribery, and eleven counts of Honest Services Mail Fraud, and sentenced to 102 months, concurrent. See CR 05–CO–544–S (N.D.Ala.). 2. Harry Chandler, Assistant Director of the Jefferson County Environmental Services Department, was convicted of one
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count of Conspiracy to Commit Bribery, and sentenced to 24 months of probationary supervision. See CR 05–PT–61–S (N.D.Ala.). 3. Ronald Wilson, Chief Civil Engineer of the Jefferson County Environmental Services Department, was convicted of one count of Conspiracy to Commit Bribery, one count of Bribery, and one count of Mail Fraud, and sentenced to 13 months, concurrent. See CR 05–CO–545–S (N.D.Ala.) and CR 06–CO–84–S (N.D.Ala.). 4. Clarence Barber, Construction and Maintenance Supervisor for the Jefferson County Environmental Services Department, was convicted of one court of Conspiracy to Commit Bribery and sentenced to 5 months of imprisonment. See CR 05–P–542– S (N.D.Ala.). 5. Larry Creel, Maintenance Supervisor for the Jefferson County Environmental Services Department, was convicted of one count of Bribery and sentenced to 12 months probation. See CR 05–PT–61–S (N.D.Ala.). 6. Donald R. Ellis, Engineer for the Jefferson County Environmental Services Department and Chairman of the Product Review Board, was convicted of one count of Bribery and sentenced to 36 months probation. See CR 05–B–203–S (N.D.Ala.). 7. Civil Engineering and Design Services, Inc., a corporation formed by Ronald Wilson while he was employed by Jefferson County as Chief Civil Engineer of the Environmental Services Department, was convicted of one count of Mail Fraud and sentenced to 12 months probation and fined $80,000.00. See CR 06–C0–84–S (N.D.Ala.).
303 The contractors convicted of criminal conduct in connection with the sewer repair and renovation projects included: 1. Grady R. (Roland) Pugh, Chairman of the Board and 70 percent owner of Roland Pugh Construction Co., Inc., was convicted of one count of Conspiracy to Commit Bribery and sentenced to 45 months. See CR 05–PT–61–S (N.D.Ala.). 2. Grady R. Pugh, Jr., CEO and 10 percent owner of Roland Pugh Construction Co., Inc., was convicted of two counts of Conspiracy to Commit Bribery, and sentenced to 5 months. See CR 05–PT–61–S (N.D.Ala.). 3. Joseph E. (Eddie) Yessick, President and 10 percent owner of Roland Pugh Construction Co., Inc., was convicted of three counts of Conspiracy to Commit Bribery, four counts of Bribery, and eleven counts of Honest Services Mail Fraud, and sentenced to 24 months, concurrent. See CR 05–PT–61–S, CR 05–P–542–S and CR 05–CO–544–S (N.D.Ala.). 4. Roland Pugh Construction Co., Inc., was convicted of three counts of Conspiracy to Commit Bribery, nine counts of Bribery, and eleven counts of Mail Fraud, and sentenced to 60 months probation and fined $19,400,000. See CR 05–PT–61–S, CR 05–P–542–S, CR 05–CO–544–S and CR 05–CO–545–S (N.D.Ala.). 5. Bobby J. Rast, President and 41.5 percent owner of Rast Construction, Inc., was convicted of two counts of Conspiracy to Commit Bribery and eight counts of Bribery, and sentenced to 51 months, concurrent. See CR 05–PT–61–S and CR 05–CO– 544–S (N.D.Ala.). 6. Daniel B. (Danny) Rast, Executive Vice President and 41.5 percent owner of Rast Construction, Inc., was convicted of one count of Conspiracy to Commit Bribery and three counts of Bribery, and sentenced to 41 months, concurrent. See CR 05–PT– 61–S (N.D.Ala). 7. Rast Construction, Inc., was convicted of two counts of Conspiracy to Commit Bribery and ten counts of Bribery, and sentenced to 60 months probation, concurrent, and fined $1,702,500. See CR 05–PT–61–S and CR 05–CO–544–S (N.D.Ala). 8. Sohan P. Singh, President of U.S. Infrastructure, Inc., was convicted of two counts of Conspiracy to Commit Bribery, thirteen counts of Bribery, and one count of Obstruction of Justice, and sentenced to 78 months, concurrent. See CR 05–S– 543–S (N.D.Ala.). 9. Edward T. Key, Jr., Vice President of U.S. Infrastructure, Inc., was convicted of two counts of Conspiracy to Commit Bribery, fourteen counts of Bribery, and one count of Obstruction of Justice, and sentenced to 60 months, concurrent. See CR 05–S–543–S (N.D.Ala.). 10. US Infrastructure, Inc., was convicted of two counts of Conspiracy to Commit Bribery, thirteen counts of Bribery, and one count of Obstruction of Justice, and sentenced to 60 months probation and fined $6,750,000. See CR 05–S–543–S (N.D.Ala.). 11. Floyd W. (Pat) Dougherty, President and fifty percent owner of F.W. Engineering & Associates, Inc., was convicted of two counts of Conspiracy to Commit Bribery and two counts of Bribery, and sentenced to 51 months, concurrent. See CR 05– PT–61–S and CR 05–CO–544–S (N.D.Ala.). 12. F.W. Engineering & Associates, Inc., was convicted of two counts of Conspiracy to Commit Bribery and two counts of Bribery, and sentenced to 60 months probation and fined $3,830,760. See CR 05–PT61–S and CR 05–CO–544–2 (N.D.Ala.). 13. William H. Dawson, Owner of Dawson Engineering, was convicted of one count of Conspiracy to Commit Bribery and sentenced to 4 months. See CR 05–PT–61–S (N.D.Ala.).
304 The persons indicted with former Jefferson County Commissioner and Birmingham Mayor Larry Langford for the sewer bond issues included: 1. William Blount, Chairman and Owner of Blount Parrish & Co ., Inc., an investment banking firm, was convicted of one count of Conspiracy to Commit Bribery, Mail Fraud, and Wire Fraud, and one Count of Aiding and Abetting, and sentenced to 52 months, concurrent. See CR 08–CO–245–W (N.D.Ala.); and, 2. Albert LaPierre, the former Executive Director of the Alabama Democratic party and a lobbyist registered in the State of Alabama, was convicted of one count of Conspiracy to Commit Bribery, Mail Fraud, and Wire Fraud, and one count of Tax Fraud, and sentenced to 48 months, concurrent. See CR 08–CO–245–W (N.D.Ala.).
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305 A minute portion of the massive corruption was described in the Eleventh Circuit’s opinion affirming the conviction of County Commissioner Gary White, United States v. White, 663 F.3d 1207 (11th Cir.2011): In 1996 Jefferson County and the United States Environmental Protection Agency entered into a consent decree, settling a Clean Water Act lawsuit over untreated waste being released into the county’s rivers and streams. The consent decree required the county to fix its sewer system, which was a mess. The cost of doing so was approximately $3 billion. The county hired engineering firms to design the necessary repair-and-renovation projects. The Environmental Services Department supervised the process of hiring those engineering firms. The design contracts were let on a no-bid basis, so typically either a commissioner or staff member selected the firm that would receive the contract. The staff then determined the scope of the work under the contract and negotiated pricing with the contractor. After the staff and the engineering firm agreed on the contract’s terms, it would go to the director of the Environmental Services Department for approval and then to the county commissioner in charge of the department. If the commissioner approved the contract, it then went to the environmental services committee, which consisted of that commissioner and two others. They would decide whether to send the contract to the full commission, consisting of the three of them and the two other commissioners, for final approval. The sewer system reconstruction project was lucrative for U.S. Infrastructure, an engineering firm owned by Sohan Singh. From 1996 to 2005, Singh’s company and Jefferson County entered into approximately $50 million worth of contracts involving the sewer system work. Each contract required the county to pay U.S. Infrastructure for its expenses in performing the work plus a professional fee. In getting contracts with Jefferson County, U.S. Infrastructure had a competitive advantage—bribes that Singh and others paid. Singh and Edward Key, who was a U.S. Infrastructure vice president, began bribing the county’s officials in 1999 in exchange for contracts. See United States v. U.S. Infrastructre, Inc., 576 F.3d 1195, 1202–03 (11th Cir.2009). One of the officials who was bribed was Chris McNair, a former commissioner in charge of the Environmental Services Department. Id. at 1203–06. White, 663 F.3d at 1210–11 (emphasis supplied, footnote omitted).
306 Doc. no. 1772 (County’s Post–Trial Brief), at 81 (emphasis supplied).
307 See Martin–Bryant parties’ Proposed Fact No. 31.4 and all subparts.
308 Doc. no. 1772 (County’s Post–Trial Brief), at 81 (alteration supplied, emphasis in original).
309 See id. (“This included making concessions and stipulations in hopes of using the time allocated for the hearing to resolve outstanding issues instead of having ‘mini-trials’ of individual complaints and hearing testimony about particular jobs and practices that were no longer relevant given the concessions and stipulations.”).
310 Id. at 82 (alteration supplied).
311 Id. (alterations supplied).
312 Id. at 82–83 (alteration supplied).
313 The Martin–Bryant parties originally asked for the appointment of a Monitor, not a Receiver. They explain that change in their response to the County’s post-trial brief: The relief necessary to compel the County to comply with the Consent Decree after 30 years of noncompliance is more extensive and considerably more complicated than what was outlined in the Martin–Bryant parties’ Contempt Motion, largely because discovery and trial have demonstrated a far wider pattern of violations and contempt than were apparent in 2007. Doc. no. 1797 (Martin–Bryant parties’ Response to County’s Post–Trial Brief), at 10 (MBR 12.3) (alteration supplied).
314 Id. at 162 (MBR 286.2.2).
315 Doc. no. 1413, at 13 n. 2 (emphasis supplied).
316 Doc. no. 1797 (Martin–Bryant parties’ Response to County’s Post–Trial Brief), at 161 (MBR 286.2. 1) (alteration supplied).
317 See id. at 162 (MBR 286.3.1) (“The list of 177 job classifications identified by the County was developed in the process of
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settlement negotiations, which were explicitly identified as subject to Federal Rule of Civil Procedure 408.”).
318 Doc. no. 1750 (County’s Pre–Trial Brief), at 25. The brief actually does not contain an “Exhibit A.” Even so, the list of 177 jobs was submitted at trial as Defendant’s Exhibit 162.
319 Doc. no. 1750 (County’s Pre–Trial Brief) at 25 n. 11.
320 Doc. no. 1797 (Martin–Bryant parties’ Response to County’s Post–Trial Brief), at 162 (MBR 286.3) (alteration and emphasis supplied).
321 See December 2012 Trial Transcript, Vol. 6, at 228 (testimony of HR Director Demetrius Taylor that there are “over 800, maybe” job classifications at Jefferson County); December 2012 Trial Transcript, Vol. 8, at 257 (Commissioner Bowman) (“It is my understanding that we have more than 177 different jobs at the County....”).
322 The Martin–Bryant parties point out that the trial testimony of Ms. Taylor and some of the Commissioners indicated that the County was agreeing to develop validated selection procedures for all of the twelve positions, not just ones for which adverse impact is found. See doc. no. 1797 (Martin–Bryant parties’ Response to County’s Post–Trial Brief), at 163 (MBR 286.4.3). However, a review of the County’s pre-trial and post-trial briefs reveals that the County intends to develop validated selection procedures only for those positions in which adverse impact is found.
323 December 2012 Trial Transcript, Vol. 7, at 115.
324 December 2012 Trial Transcript, Vol. 6, at 9–10, 33–42.
325 December 2012 Trial Transcript, Vol. 8, at 255–59.
326 December 2012 Trial Transcript, Vol. 9, at 45–46, 56–57. It is worth noting that seven of the twelve positions have never had an African–American incumbent or hire since the decree was entered, and six of the twelve have never had a female. See Martin– Bryant parties’ Proposed Fact No. 31.3.4 and all subparts.
327 See December 2012 Trial Transcript, Vol. 7, at 115–17; doc. no. 1750 (County’s pre-trial brief), at 4.
328 December 2012 Trial Transcript, Vol. 8, at 47–50.
329 Ms. Taylor described the random selection process as follows: [W]e would assign a number starting with maybe double zero’s and go down the list. And then we would put numbers in a hat, a container, and allow maybe the department head or a department representative who’s requesting the position and an H.R. person and maybe a third person to witness the pull. They would pull the first number. And whatever number that is, that corresponding name on the cert list would be the first person called for the position.
December 2012 Trial Transcript, Vol. 6, at 169–70 (alteration supplied).
330 Consent Decree ¶ 5 (emphasis supplied).
331 Id. ¶¶ 5, 9.
332 Id. ¶ 13.
333 December 2012 Trial Transcript, Vol. 6, at 13–14.
334 There are several layers of meaning to Eliot’s use of the exhortation “HURRY UP PLEASE ITS [sic ] TIME,” the traditional call of an English pub-keeper when it is time to close and for patrons to leave. The phrase hints at the transitory nature of modern life. It suggests the traditional call to judgment. Eliot also may have been admonishing readers to change the way in which society works. It is the latter two senses in which the quotation is used here. Of course, the lines also possess rather obvious allusions to the present posture of this case.
57

335 See also, e.g., Bd. of Educ. of Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 248, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991); Milliken v. Bradley, 433 U.S. 267, 280–82, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977); Spangler v. Pasadena City Bd. of Educ., 611 F.2d 424, 1245 n. 5 (1976) (Kennedy, J., concurring).
336 It should be noted that Judge Carnes’ scathing condemnation was published on August 25, 1994, nearly nineteen years ago; and, at a point in time when the parties’ consent decrees had been pending only about twelve years. Judge Carnes also remarked sarcastically that this litigation “already [is] older than the average college student,” and January of each year marks yet another “birthday, if such a thing were cause for celebration.” Birmingham Fire Fighters Association 117 v. Jefferson County, 280 F.3d 1289, 1295, 1290 (11th Cir.2002) (Carnes, J.) (alteration supplied).
337 Of course, if the selection procedure is to be justified on the basis of its “job relatedness,” despite having some adverse impact on the basis of race or gender, the County’s Receiver and/or outside consultant will be required to demonstrate that he or she searched for selection procedures that were equally job related, and which produced less adverse impact.
338 Ultimately, the parties will be ordered to confer regarding the creation of a detailed plan for revision of the County’s selection procedures, as well as any other actions that must be taken in order to correct the County’s contempt, and to submit a joint report in a format similar to that employed in the December 18, 2000 “Order Extending 1981 Consent Decrees and 1995 Modification Orders for the City of Birmingham and the Jefferson County Personnel Board.” See doc. no. 708. Even so, the specific line-items and deadlines specified in such a document will be dependent upon and largely influenced by the person appointed to serve as Receiver. For that reason, the present Order contains no specific requirements for the preparation of such a report. Even so, this marginal note is provided to alert counsel to the court’s intentions, and to inform their ongoing discussions.
	  
58

 
 Case 2:75-cv-00666-CLS Document 1642 Filed 05/14/09 Page 1 of 3

FILED
2009 May-14 PM 03:37 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

UNITED STATES OF AMERICA,

)

Plaintiff,

)

)

vs.

)

)

JEFFERSON COUNTY, ALABAMA, et al., )

Defendants.

)

—————————————————————)

JOHN W. MARTIN, et al.,

)

Plaintiffs,

)

)

vs.

)

)

CITY OF BIRMINGHAM, ALABAMA, et al., )

Defendants.

)

—————————————————————)

ENSLEY BRANCH OF THE N.A.A.C.P., et al., )

)

Plaintiffs,

)

vs.

)

)

GEORGE SEIBELS, et al.,

)

Defendants

)

Civil Action No. CV-75-S-666-S Civil Action No. CV-74-S-17-S Civil Action No. CV-74-S-12-S

JUDGMENT ON MOTION FOR ATTORNEY’S FEES AND COSTS

These cases are before the court on the Martin-Bryant parties’ motion for an award of attorney’s fees and costs,1 and the “Notice of Settlement and Joint Motion

for Approval of Settlement and Entry of Judgment” filed jointly by the Martin-Bryant parties and the Personnel Board of Jefferson County.2

Having reviewed the parties’ settlement agreement (“the Agreement”), and

based upon the representations made in the parties’ joint motion, and on this court’s

1Doc. no. 1603. 2Doc. no. 1640.

Case 2:75-cv-00666-CLS Document 1642 Filed 05/14/09 Page 2 of 3
familiarity with the work performed by counsel for the Martin-Bryant parties in connection with the Personnel Board’s Consent Decree, the court specifically finds that the proposed Agreement is fair, adequate and reasonable, and is not the product of collusion between the parties. Accordingly, it is ORDERED, ADJUDGED, and DECREED that the parties’ Agreement is APPROVED, and judgment is hereby ENTERED in favor of Cravath, Swaine & Moore, LLP, John W. Martin et al., and Gwendolyn Bryant et al. (collectively, the “Martin-Bryant parties”), jointly and severally, and against the Personnel Board of Jefferson County, in the amount of Two Million Two Hundred Fifty Thousand and no/100ths Dollars ($2,250,000.00), payable as provided in Paragraph 9 of the Agreement.
This judgment fully adjudicates and extinguishes any claim for attorney’s fees and costs which the Martin-Bryant parties or their counsel have or might have made against the Personnel Board of Jefferson County, including but not limited to, any claim under 42 U.S.C. § 1988, the Equal Access to Justice Act, Rules 11, 23, 37 and/or 54 of the Federal Rules of Civil Procedure, and any other rule, law, regulation, or custom by which the Martin-Bryant parties or their counsel have or might have claimed any entitlement to an award of attorney’s fees and/or costs against the Personnel Board of Jefferson County.
This judgment does not adjudicate or in any way impair any other independent 2

Case 2:75-cv-00666-CLS Document 1642 Filed 05/14/09 Page 3 of 3
claim for attorney’s fees and/or costs the Martin-Bryant parties or their counsel might have or make against any other defendant in these consolidated proceedings, for work done in connection with any litigation concerning those entities’ own consent decrees.
DONE this 14th day of May, 2009. ______________________________ United States District Judge
3

 
 Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 1 of 77
.-'.

FILED
2013 Oct-15 PM 01:42 U.S. DISTRICT COURT
N.D. OF ALABAMA

'r' ,Vn .If IN THE UNITED STA'l'ES DIS'1'lUCT COI1RT

'II,f)'t···· .~ IE:.....

FOR "1'BE 'NOR"1'BERN DISTRICT OJ!' AU.SAHA DEC 2919&Z

S01J"1'BERN DIVISION

tlHITED STATES OF AMERICA, plaintiff,
v.

»

I

I

CIVIL A,C'1'lOH NO.

I 75-P-Olllii'''''s

)

)

JEl!'FEllSOH COUNTY I at al.,

)

)

Defendants.

I

»

JOHN W. MARTIN, e· al.~

)

)

Plaintiffs,

) CIVIL ACTION NO.

I

74-P-0017-8

v.

)

)

CITY OF BIRMINGHAM, et al., )

)

Defendants.

I

DEC 2 9 1982

The

in theae

consolidated actions aqainst Jeffe·raon County and others t.o

enforce t.he provisions of Title VII of the Civil RightB Act of

1964, as amended by the Equi!ll EJnployment opportunity Act of

J.972, the State and Local Fiscal Assistance Act of 1972, as

a.s., amended. 31 U.S.C. ~=221, ! !

the cantbus Cxima Control

and Safe Streets Act of 1968, as amended, 42 U.S.C. S1981, 42

U•S •C• 1983, and the Fourteen th Amendment to the COni!1 i tut ion

o~ the Un1ted State.. In their complaints, the plaintiffs

alleged that Jefferson County and the other namec1 defendants had engaged in a pattern or practice of discrimination based on

race and sel( with respect to recruitment, hiring, 4ssiqnment,

promotion, dAscipline, and other terms and condi~_ons of

employment. Jefferson c.ounty has denied the allegations in the

plaintiffs' complaints.

'!he parties to this Consent Decree are the plaintiffs in

the consoU.clated actions captioned Above and defendants

Jefferson County and Ben L. Erdreich, Ray Moore, and Chriss H.

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 2 of 77
Doss, Gcting in their official capacities as the Commissioners of Jefferson ~ounty, and Melvin L. BaUey actinq in his official capacity as Sheriff. By entering into this Consent Decree the parties express their desire to avoid the burdens and expense of any further litigation in these actions and to insure that any disadvantages to blacks and woman that may have resultea from. any past discrimination against them are r . .,Ued 110 that equal employment opportunities will be provi@d to all. The parties waive any finding_ of fact and conclusions of law on all outstanding issu.. solely pertaining to Jefferson County except for costs and attorney.' f •••• The parties will seek to reach agreement on the amount of attorneys' fe•• and costs for the private plaintiffs in these consolidated Actions. If agreement cannot be reached on the amount of such fees and costs, this matter ahall be submitted to the court for determination. The United States waives any entitlement it may have to recovery of cost.. This Decree shall not constitute an adjudication or adlni••ion by Jefferson County or others 1119natory to this Decree of any Violation of law, executive order or regulation£:. The parties accept this &qreement &8 final and binding among the parties signatory hereto as to the issues resolved herein.
Now therefore, on the basis of the foregoing representations of the plaintiffs, Jefferson County and its Commissioners, and &11 trial proceed1nqa and discovery filed herein to dAte. it is hereby ORDERED, ADJUDGED And DECREED as follows:
I. GENERAL INJUNCTIVE PROVISIONS 1. The defp'"ldant Jefferson County, and the Jefferson County Sheriff, their officials, agents, employees, and any other persons who partiCipate in the hirinq, firin9. promotion or discharge of employees or applicants for employment with the County (he~ei~~f:ter collectively referred to as -the County· or
-2-

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 3 of 77
-the defendant Jefferaon County·) are pe~n.ntly enjoined and restrained trom engaging in any act or practice which haa the purpose or effect of unlawfully discriminating aqainst any employee of, or any applicant or; prospective applicant with, Jefterson County because of such individual's race, color or sax. 'lbe defendants have agr.ed that all hiring, promotion, upgrading, training, job assignments, disoharge or other disciplinary measures, cOIIIpenaation, or other tenia and conditions or privil.ge& of emplovment shall be maintained and conducted in a manner which does not unlawfully discriminate on the basis of race, color or a.x. FUrther, the County shall not retaliate against or in any way take action aqainst any person because that person opposes or haa oppoaed alleqed diac:riminatory policies or practices in Jefferaon County, or because of that person's participation in or cooperation with the investigation and trial of theae actions, or in any proceedings therein.
2. Nothing herein ahall be interpreted as requiring the County to hire unnecessary personnel, or to hire, transfer, or promote a person who is not qualified, or to hire, transfer or prolllCte 8 less qualified person, in preference to a person who is better qualified based upon the results of a jotl related selection procedure. Nothing herein shall prohibit the County from discharging, disciplining or demoting employees for just cause in accordance with applicable law, nor shall it preclude the County from engaging in layvffs or rollbacks of employees pursuant to State law, provided however that any such actions are taken and e~ecuted without regard to race or sex.
3. Remedial. actions and practice,S" requ,ired by the terms, or permitted to effectuate and carry out the purposes, of this Consent Decree shall not be deemed discriminatory within the meaning of paragraph 1 above or the provisiollS of 42 U.S.C. lOnOe-2Ih), ·(jh .and the parties hereto agree that they shall
-3-

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 4 of 77
individually and jointly defend the lawfulness of such remedial .aasures in the event of challenge by any other party to this litiqation or by any other person or party who may seek to cha~lenqe Buch remedial msasures through intervention or collateral attack. If any collate.ral lawauit invol:vin; this Con••nt Decree ari ••• in state court, then the County .h&11 notify counsel for the plaintiffs and remove such action to the United States District Court.
4. In the event plaintiffs seek to enforce any provision of this Decree they shall provide notice of their intentions to: County Attorney, Jefferson County, 213 Jefferson County Courthouse, 8irminqham.. Alabama 35263. Such notice shall aUte, with reasonable particularity, the nature of the alleqed violation and the relief sou;ht. The parties shall have a period of thirty (3D) days within whiCh to resolve the matter informally. If the parties fail to resolve the matter plaintiffs may, upon expiration of the thirty-day period, apply to the Court for an appropriate enforcement order.
II. SPECIFIC INJUNCTIVE PI\OVISIONS A. Accelerated Recrui'tlllent and certification Procedsrfls
5. One of the llIajor purposes of this Decree is ~ insure that bla.cks and women are considered for employtllent by the County on an equal basis with whites and male. and to correct tor the effects of any alleqed prior discriminatory employment practices by the County against blacks and wOl\len. In particular, the County shall seek in qood faith to achieve the employment of qualified blacks and females in job vacancies in the classified SI rvice of the County in numbers approximatinq their perce taqe representat'- m alllQnq peJ:sons on the eliq1biiity lists for such jobs as determined by the Jefferson County Personnel B02l:cd under nondiscriminatory recrui'tlllent and selection procedures set forth in its Consent Decree (see Pllraqraph 6I.. and. in job vacancies in. laborer post tions in the
-4-

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 5 of 77
r-.
unclassified service in numbers approximatinq their ~rcentaqe representation amonq qualified applicants for such jobs as determined by the county under the provisions of this consent Decre.. It is recoqnized that the process of increasing the n'Wllber of qualified black and female applicants for tbese job.• is facilitated by II process free of unlawful barriers to their entry. by a substantial increase in recruitment efforts directed toward blacks and women. and by the use of fair and nondiscriminatory selection criteria. '!'he objectl.ves of this Decree will be considered to be attaina(! in entry level jobs when the percentaqe of qualified blacks and women employed by the County in each of the jobs identified in paragraphs 7. 8, and 11 and in Appendices A and B of this Decree approxil'llAtes their respectiv& percentages in the civilian labor force of Jefferson county as qenerally reflected by the 1970 Federal Census. 'l'he parties aqree to recoqnize changes, if any, in those percentaqes which may come about all a result of final publication of the 1980 Cenllull. For jobs that require II professional degree, license or certificate, and where it can be shown that blacks and/or woman hold such degrees, licenses or certificates in percental1e terma which are lO\«!r than their respective percentage representationa in the civilian labor force of Jefferson County, the parties aqree that the attainment of the objectives of this Decree for such jobs shall be based upon the beat: available inforr.1lAtion a8 to the availability of qualified blacks and women for such jobs. If the parti.. are unable to 1l9ree upon the data to be us.d for this purpose, the parties reserve the right to petition the Court to resolve such d.isaqre~nt. If the county fails to meet these objectives in iii. particular job or jobs, it shall have the burden of demonstrating- that it made a good faith effort to achieve such objectives, and that it otherwise complied with the affi.rm.a.tiv.e.. recruitment and nondiscriminatory selection
-5-

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 6 of 77 J
requir~nts for such po.it~on. as set forth in Part II of this Decree.
6. The defendant Jefferson county alao recognizes that the Jefferson County Personnel Board has antered into a .eparate Consent Decree with the plaintiffs in th.,. actions. That Consent Decree vas approved and entered by tJiis C:ouJrt on
August 18. 1981. That Decree requires, inter .!!!!., that 'the
Personnel Board .eele to achieve certain IIl1nillium certification rates of black. and vODlen from among the Board', pool of qualified applicants for various jobs within aach of the jurisdictions served by the Board, including Jefferson County.
7. The jobs within Jefferson County to which minimWl'! rates of certifications by the Personnel Board apply for blacks are: Accountant, Account Clerk, Auditor, Automotive Mechanic, Construction Equipment Operator. Engineering Aide, Heavy Equipment Operator, Labor Supervisor, Public Works Supervisor, Revenue Examiner, Secretary, Intermediate Clerk, Senior Clerk, Stenographer, Truck Driver, and Waste Water Treatment Plant Operator.
B. The jobs within Jefferson County to which minimum rates of certification by the Personnel Board apply for females are; Drafter, Engineering Aide, Bnqineering Drafter, Engineering Technic~an, Graduate Engineer, Deputy Sheriff, Revenue Examiner, Security Officer, Sr. Civil Engineer, Stores Clerk, Traffic Planninq Technician.
9. The defendant Jefferson County will' insure that blacks and women are selected for appointment in .the jobs identified in parllgraphs 7 ant' 8 above in a nondiscriminatory manne.r, as p~ovic:1ed 1.0 par ,graphs l, and 2 abo"~ I from the gr.oup. of applicants certified by the Personnel Board. It 1s the expectation of the defendant Jefferson County and the plaintl.ffs, that such nondiscriminatory hiring pursuant to this Decree will, r~$~lt in the selection of qualified blacks and
-6-

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 7 of 77

women for t.hese job. in numbers approximating their overall represen.tat~ons on the certification lists received frolU the Personnel Board for such positions. Absent unusual circrum.tances, compliance with the prOVisions of this paragraph will be ....e . . .d on a semiannual basis in aecor4ance with the reporting provisions lI,t forth in paragraph 52 below.
10. Defendant Jefferson County also recognizes and agrees to support the remedial Oraer entered by this Court in these proceedings on January 10, 1977. That Or~r w... entered aft_r a trial of limited issues involving' the Personnel Board. In an opinion filed on January 10. 1977, this Court found, inter
!.lli, that the written tests administered by the Personnel
Board for police officers, deputy sheriffs and firefig'hters had an adverse impact on black applicants and were not shown to be validated in accordance with the federal agency testing guidelines in effect during the times those teats were
administered. !.1 The Court I s Order, a. it now applies to the
Personnel Board. requires, in pertinent part, that the number of blacks certified for appointment. in police officer" cleputy sheriff and firefighter positions be rep;r:esentative of the number of black: applicants for those jobs, This provision yf the Court's Order is to remain in effect unless and until the Personnel Board inst~tuteB aelection procedures for these jobs whicb it can demonstrate either bave no adverse impact on blacks or are job related in accordance witb applicable federal quideline s,

17 At the tIiiie of the Court' s January 10, 1977 Order, the

raderal agency testinq quidehnes referred to in that Order

cons,isted of the ,Guidelines. on Employee Sel,ection Procedures

Sid' issued by the Equal Employment Opportunity CQI'IIlIlission; 29

C.F.R. 51697 et

IEEOC Guidelines), and the Federal

Executive AgenCY Gu elines on Employee Selection Procedure.

issued by the U. S. Civil Service Commission and the

Departments of Justice and Labor, 28 C.F.R. 550.14 (PEA

Guidelines). Effective September 2S, 1978, t.he EEOC Guideline.

and the FEA Guideline. were superceded by the Uniform

Guidelines ~n J~JIIploye. Selection Procedures adopted' by the
EEOC, the U. S. Civil Service Ca.mission (now the U. s. Oftice

of Personnel Management) and the Departments of Justice and

Labor, 43 F.R. 38290.

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Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 8 of 77
11. In order to carry out the purpoles and intent of the January 10, 1977 Order, the defendant Jefferson County will inaure that blacks are appointed to deputy sheriff positions 1n a nondiscriminatory manner as provided in paragraph 2 above from
the qroup of applicants certified by the Personnel aqud. 2:/ It
is the expectation of the defendant Jefferson County and the plaintifta, that auch nondiscriminatory hiring pursuant to this Deere. will result in the ••lection of qualified black deputy sheriffs in numbers approximatinq the1r overall representation on the certification lists received from the Personnel Board. Compliance with this paragraph ahall be a ••essed on a semiannual basis in accordance with paraqraphs S2 and 53 below.
12. Jefferson County alao recogni:es that blacks and women have not been hired into certain divisions and departments in the County in numbers reflective of their interest or potential interest in such .mplo~nt. Those departments and divisions in which blacks have not been hired consistent with their expre•••d or potential inter.at in such employment are identified in Appendix A of this Decree. Those departments and divisions in which females bave not been hired consiater:t with their expres.ed or potential interest in such employment are identified in Appendix B of this Decree.
13. In these departments and divisions, Jefferson County aqrees that it will maKe a good faith recruitment. effort, in accordance with its affirmative recruitment- obligations under this Decree, to secure the number of black and female appl.icants in entry level (open competitive) jobs in those departments and divisions that is at least equivaJ~nt to the degrees of representation of.. bla.ck.s . and 'Wome~ :.n 'the civilian l;.·....or force of Jefferson County. The parties preserve the ri9ht to
2/ Jeflerson county does not employ police officers or
tuefiqhters.
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Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 9 of 77
adju.t these recruitment qoals through agreemant and subject to the approval of the court, where it can be shown that a professional deqree, licens. or certificate is required to perf"rm the duti.s of any particular job or jobs and that blacks and/or
woman bola such deqr••• , licenses or certificates in percentage
teX1llS in the relevant labor market which are inconaia1:ent with these goals. The relevant labor market tor the jobs identified on Appendices A and B will be Jefferson County, unless the parties agree or the Court requires that tor a particular job
or jobs some other labor market be used that will better serve
the purpose. of this Decree. For purposes 0:1: this paragraph, entry level johs are those listed in Appendices A and B.
14. With respect to positions in the departme.nts and divisions identified in Appendices A and B which in the past have been traditionally' filled by promotion from lower clas.Uieations, and except for the jobs identified in paraqraphs 7 and 8 above for Which the Personnel Board has affirmative certification obligations under its Consent Decree, the County shall seek to secure the number of qualified black and female applicants for promotion to those jobs that is at least equivalent to their percentaqe representation in the applicant pool from Which such promotions are made. The County shall request that the Personnel Board issue open competitive job announcements for positions in the Public Works Department if the parties to this Decree agree that such a request is necessary to increase the applicant pool of qualified blacks and females in this DepartMent. In the event of any disagreement between the parties to this Oecree on this matter, any. sl"-:h party· llIay petition. the .court to resolve such disagreement.
15. Wi.th respect to appointments to future vacancies in the departments and divisions identified in Appendices A and B, the County. will. insure that such appointments are made in a
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Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 10 of 77
.-.
nondiscriminatory manner, as provided in paragraphs I and 2 above. It is the expectation of the defendant Jefferson County and the plaintiffs, that such nondiscriminatory hiring pursuant to this Decree will resUlt in the selection of qualified ~laek. and women in accordance with their overall representations in the relevant applicant pools as eet forth in paragraphs 9, 11, 13 and 14 above.
16. z.capt for unclasBified laborer positions over which the County haa sole recruitment responsibility under this Decree, if the recruitment efforts of the Personnel Board pursuant to its Consent Decree fail to supply sufficient applicants for the County to meet the objectives. of this Decree, the County shall institute an affirmative recruitment program designed to inforlll hlacks and women of job opportunities with the County. This recruitment obligation is intended to supplement but not duplicate the recrui~ent efforts of the Personnel Board, as required by the Consent Decree between plaintifts and the Board. ~he county's recruitment activities sball be directed specifically at attracting qualified black and female applicants for the jobs 1dentified in paragraphs " 8, and 11, and 1n Appendices A and B of this Decree. ~he recruitment program may include but shall not be limited to ~intaining contacts with area hiqh .ch~~ls, technical and vocational schools, college5, and or9an~%atiQns which have traditionally expressed an intereat inprovidinq minority and female a~plicants, or which indicate such interest lon the future, and informinq them of employment opportunities with the County. In addition, where appropriate, adverti$in~ of . employment . opportunities lIlay be placed with or in adv"'rtisinq media primarily directed to black and female audiences for the purpose of emphasizing to blacks a.nd women tbe availability of employment opportunities with the County. Utilization of the above desclfibed. recruitment sources in accordance with this
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Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 11 of 77
I~
paraqraph shall constitute compliance by the County with the affirmative recruitment obligations required by this paragraph.
17. Subject ta paraqraph 2 and all other prOVisions of this Consent Decree, the County agrees ta take appropriate and SUfficient action to IlI88t the employment expectations ot the parties as set forth in paragraphs 9, 11, 13, 14, and 15 of this Dearee. D. Job Posting
18. The County shall inform its employees of all opportunities for promot10n Or transter. 'l'h.e County shall insure that all written announcements received fram the Personnel Board tor hiring', promotion and traininq opportunities with the County are made available to all of its employees reaaonably in advance of any scheduled examinations or training for such positions. SUCh announcement.s shall b,e posted in conspicuous places so that reasonable notice is given to the County' a employees of such employment opportunities. Notices of job announcements w1thin a depart:ment in either permanent, part-time or temporary positions ahall be posted separately and in consp1cuous places from noticeS of job announcements in other departments. C. Sex Restrictions in Job Announc!ments and C.:rtlfication~
19. Except for the position of Juvenile D.tentio~ Officer at the Jefferson county Fa.m.11y Court. the county aha.ll not requ.·t that the Peraonnel Board restrict any job announcements or certifica.tions on the basis of sex except where, pursuant to a proper validation study. qender is determined to constitute iii. bona ':ide occupational qualification within the l1188.nin9 of S••..:tion 703 (e) of T' 1:1e VII for the job (s) listed in such announcements or certifications, ana such determination is approved in wrlting by the United States. If such approval is not granted, the County reserves the right upon proper lIIOt~on to petition. th& .Court for approval of the determination. The
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Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 12 of 77
County Day establish in consultation with the Personnel Board a apecial medical .:!CaDdnation to. bs qiven to applicant. for nura.. aide and laundry worker positions. Such eXamination shall be u.ed .olely to determine whether applicants for such positions are phy.ical~y qua~ifi.d to perfO:l:lll the duties 0'£ those job., and it .hall not be used to discriminate in purpose or aftect aqainst femala applicants. D. Beight-Me1qbt Requ1remants
20. The County shall not use or follow any minimum heiqht or weiqht requirements that have an adverse impact aqa1nst blacks or women 11& selection criteria for any position, nor shall it abide by any such requirements lfthey are instituted and administered by the Personnel Board. E. Eligibility to ApplY for PrOlllO;t:lon to Cert,u J.obs
21. 'lhe County shall not require deputy sheriffs to serve more than three years uninterrupted service 1n rank (or two years uninterrupted service in rank for candidates wh~ have two years of colleqe credits' in order to be eliqlble to take the promotional examination for liheriff serqeant, nor shall it require sheriff aerqeants to serve IhOre than two years uninterrupted service in rank in or.!er to be eligible to take the promotional examination for sheriff lieutenant. Employees who have obtained permanent status al sheriff lieutenant shall not be deemed ineligible for promotion to the next higher rank based upon any minimum length of sarvice or time in rank. The term ·uninterrupted service- shall include any time spent ..s a probationary employee.
22. In order to be eligible to apply to take the promotiol,al examinations for tho positions of public works. supervisor or construction supervisor t an em.ployee must have permanent status as a truck driver. labor supervisor, heavy equipment operator or construction equipment operator.
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Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 13 of 77
23. Any employee who haa workelS full-time in an unclassified labor position for twelve consecutive months shall b. eligible to apply to take the promotional examinations for the following classifications: s.mi-skilled laborer, truck driver, equipment .ervice worker, automotive mechanic helper, shop hIIlper and sarvica station attendant.
24. Any eiaployee who has Obtained permanent Itatus .s a semi-skilled laborer or truck driver shall .be eliqible to apply to take the promotional examinations for the following classifications: truck driver t labor supervisor, heavy equipment operator, equipment service worker, automotive mechanic helper.
25. Any UlPloyee who haa obtained permanent status as a truck driver, heavy equipmant operator, or labor supervisor shall be eligible to apply to take the promotional examination for the classification of construction eqUipment operator. F. Promotional Potential Rating.
26. The County may continue to u•• the Personnel Board's current promotional potential rating system in departments whe:!:'. it is shown to hilve no adve:!:'.e impact. The County shall cl.isc:ontinue the use of the Personnel Board's current promotional potential rating system in the following departments in which such ratings hAve been demon.trated to haVe had an adve:!:'se impact on blacks: Cooper .Green Bospital, Gene~al Services.
27. The County further agrees to discontinue the use of the Personnel Board's current promotional potential rating system to determin,. eliqibility for prol1lOtion in !lny other department .wher..:.; based upon· any "-'0' successive ratinq cycles (one cycle consisting of 6 months), there is adverise impact against blacks. In determining adverse impact under this subpart the parties agree to rely upon section 4D of the
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Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 14 of 77
",0,
On1form Guidelines on §miloya. Selection Procedures. 29 C.P.R.
1607, .!! .eg.
G. Backg;ound Investigations 28. Back~rourul investiqations shall be utilized' in such a
manner 110 all not unlawfully to diacriminate on the basis of race or .ex.
29. The Sheriff ,shall e.tablish a written policy cone.minq background inve.tiqations within the Shariff's Department within 90 days after this Decree is entered. As part of that policy, the Sheriff'. Department ahall provide applicants who have been rejected on the basis of the backqround 1nvestiqation written notice of the specific reasonCs) for their rejection. Such notice shall not require the Sheriff to aisclose the identity of any person or employer who supplies information to the Sheriff'. Department in confidence durinq an applicant's backqround inv.lltigation and who requests in writing that such information be kept confidential. An applicant who has received such notice shall be allowed ten (10) days to respond in writinq and to provide relevant information concerninq the basis of rejection. The Sheriff shall insure that such written response and relevant informati."m is reviewed by an individual(s) who did not participate in the applicant's initial backqround investiqation, and that this review sball occur before the rejection beeo.es final. rf the Sheriff needs to fill a vacancy in a deputy sheriff's position prior to the completion of IS. review of the applicant's background investigation as set forth in this paraqraph, or as may occur pursuant to the provisions of paraqraph 33(f) below, the Sheriff may fill such" vacancy with another applicant. If upon completion of such review the applicant is found, otherwise qualified for a deputy sheriff position he or she will be placed and appropriately ranked on the certification list for the first depu~y, sheriff vacancy that arises subsequent to the
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-.
completion of th.t review. :If the Sheriff determines that blacks or women are not being employed in deputy aheriff positions in accordance with the Objective. of paragraphs 9 and 11 above, and that the background investigation for this job is a factor that is precluding the Sheriff from M.ting such objectives, the Sheriff shall require that the Sheriff Department review its baclcqround investigation policy to insure that it is adlllinistered in a nondiscr:l.minatory manner. In this regard, the Sheriff shall seek to insure that, if as a result of auch review it is d.te~ned·that any component, aspect or element of the background inv.atigation process results in a disproportionate disqualification ot blacks or women, that such component, aspect or element will either be eliminated or shown
to be job related in accordance with the requirements of Title
VII. H. Dismissals of Deputy Sheriffs During prgbationarY Periods
30. The Sheriff agrees that prior to the dismissal of any deputy sheriff during his or her initial twelve month probation period, it will notify any such person in writing of the specific reasonrsl for such dismissal, and he or she shall be qlven an opport.unity to respond in writing to the specific reasonts) for such dismissal. Such response shall be made within five (5) Clays of the issuance of the notice of dismissal, provided however that such period shall be extended upon reasonable request to responsible officials of the Sheriff's Department with respect to any matter pertaininq to sucb dill1lli8841. The Sheriff shall insure that such person is fairly advised of his or her riqhts under. this paraqraph. Copies of any correspondencr 1 notes,memorll.nda .,r recordinqs concerning any matters covered by this paraqraph shall be retained by the Sheriff and shall be available for inspect.ion by attorneys for the plaintiffs upon request.
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I. SupervisO£! Inar.ruction

31. 'E'he County ahall infol:1ll supervisory paz.onnel that

the County ahall not discriminate against or harass any

employee or potential employe. on the basis of race or'sex. In

addition, the County will instruct such parsonnel about th.ir

responsibilities as they relate to carrying out the provisions

of this Deere.. SUpervisory personnel w:l.ll be evaluatli!a, in

.s part,on the basi. of their compliance with thea. 1natructiona

as well

their cooperation with the Affirmative Action

Ofticer identified in paragraph 33 below.

J. FacUities

32. Jefferson County hereby agrees to insure that all

ba.throom, locker, and ailllilar facilities are available for use by County employeeI s without regard to race.

K. Affirmative Act:Lon Officer 33. 'the County shall appoint an Affirlllative Action

Off:Lcar who shall have the following respona:Lbilities:

(a) Advise black and female employeea of the

terms of this decreeJ

(b) Post his or her office hours and location

and copies of this Decree in conspicuous places

within each depart1llent or operational unit of the

countyr

(c) Receive and lnv.atiqate oral or written

complaints of race and aex discrimination and

conciliate such complaints when appropriate, and

notwithstandin9 any other provisions of law,

establish a written procedUre which shall 9~ern such

complaintst

(d) Meet periodically with department heads to

assess their proqrass ill meetinq the objectives of

this Decreet

(~, ...~intain a complete record of all actions

taken in pursuit of the duties prescribed herein,

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including all correspondence directed to or from the county with reapect to any complaints or investigationa undertalcen pursuant to this Consent Decree and any investigatory fil•••
ff) If within any six lIlOnth reporting period prescribed by para9raphs 37 and 39 below, the County detenUne. that it is tailing to mast any of the objectiv.. contained in Part II, subpart A of th!. Decree, the county shall require the Affirmative Action Officer to review the future ••lection decisions of the appointinq authority in the jobes) anc! Departlllentf •• in which 8Uch objectives wttr. not DIet in order to insure compliance with this Decree. Aa part of this raview the Affirmative Action Officer shall review the appointing authority's written justification for failure to select certified black or female applicants 1n the jobs for which the objectives of the Decree were not met, and shall submit his or her written comments toqether with the appointing authority' s written justification to the County A;.t.ornQY. Appointments may be made in the job(s) and Department(s) under rev1ew while such review is pendinq before the Affirmat~·..e Action ofricer or the County Attorney, provided, however, that blacks Qr women WhO are found to have been improperly denied employment or consideration for employment Clurinq the period covered by the review shall be eligible for recertification and ~loyment
in a. future .vacancy in the jobs to wb -.leh they were
oriqine.lly certified, with all r:i.qhts. benefits and compensation that they would otherwise be entitled to under the provisions of paraqraphs 1 and 2 of this Decree.
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,.. '.
(9) The Affirmative Action Officer shall report at least semiannually to the County Commissioners his f1nd:1.ngs w:1.tb respect to Ilny inve.tigations undez:talc:.an pursuant to bis ahove described r.aponsib:1.lities.
(h) 'J.'he AUixmative Action Officer rafax:;:.d to herein sball be appointed by the County within thirty (30) days after final approval of this Decree. The County shall info~ the plaintiffa of any changes in the identity of the Affirmative Action Officer.
III. INDIVIDUAL RELIEF 34. The County agrees to pay tbe sum of $298,000 in full and complete settlement of the claims against the County for monetary relief in these consolidated actions. Any back pay awards to be made from sucb sam sball be subject to income tax withholding and tbe eznployee'. abare of aocial security. No individual monetary awards shall be made under this Decree until at leaat thirty (30) days after the date the Court grants final approval to tbe Consent Decree. Within seven (7) days after provisional approval of the ConSent Decree by the Court, or final approval of the Decree by tbe Court, wbichever occurs first, . tbe County agree. to pay the awn of $298,000 to be deposited in separate trust accounts bearing interest at commercial rates a. follows:
a. A fund in the total amount of $10,000 shall
be set aside for the individual private plaintiffs in the Martin action. Within ten (10) days aftar the date this cleeree is given final approval by the Court the Clerk shall pay the following amounts to the following named plaintiffs, together with the
interest accrued thereon. These IUIIOUnts shall be in
full satisfaction of all claims of the named
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plaintiffs against the County in thes. consolidated

ac:t~ons.
Euqene 'l'hamas

$ 2,500

Wanda 'l'homas Ida McGruder

4,000 3,500

b. A fund in the total 8DIOIlDt of $69,696 for

those WOJIIaD identified in Appendix C who. were certified and not hired alleqedly because of their

sex in the jobs listed next to their names in that
appendix •...!'
c. A fund in the total amount of $15,840 for those blacks identified in Appendix E as subclass 1

who took the written test for the job of Deputy

Sheriff that resulted in eliqibility lists for that job in effect between April 25, 1975, and January 10, 1977, (the date of this Court's Remedial Order

referred to in paragraph 10 above), who have not been hired as Deputy Sheriffs, or who, subsequent to the

entry of the Court '8 January 10, 1977 Order, were hired by the County as Deputy Sheriffs, but who may

have been hired ear.' ier but for their rank on such

eligibility lists. d. A fund in the total amount of $202,464 for
those blaclts 1dentified in Appendi.x F a. Bubclaas 2

'who were certified by the Jefferson County Personnel Board and not hirt:d by the County to the jobs and departments during the time periods set forth in that appendix. This fund shall also be used to compe~sate

those blacks identified. in Appendix 0 who hav' individual claims of race discrimination in hiring

3/ 'l'he united States i9 the only party in these consoLidated
actions that has alleqed discrimination on the basis of sex by the defendant Jefferson County.

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but who are not INtmbers of subclass 2 as defined in Appendix !'.

35. Bxc:ep.t for those individuals d••cdbed below, the

amount of back pay reIief, if any, to be awarded to the

individuals id.ntified in Appendices C, D, E and F whose claias

have yet to b. revi. .e" by the plaintiffs .hall be dete~ned

based upon t:.he llUbmiaaion proof of claim foXDUI in accoll'd.moe

with the pravidons of paragraph 37 belOW. 'rhose blaoka

:i.dentified in Appendix B (the Deputy Sheriff t ••t cla..) who

have previously submitted proof of claim fOBS under the

Consent Decr•• with the Jeffer.on County Personnel Board shall

not be required to autlm.1.t another proof of claim form to be

eligible for back pay relief under this Decree.

36. The amounts allocated to each of tbe back pay

tunds described in paraqraph 34 above have been determined

by IS calculation of the relative economic injury suffered by each group or SUbclass described therein. The

determinations of individual back pay awards for the

meml:lera of the IiJroupa or subclasses described in Paragraph

34 tb) (c) and tdl will be made under the following- qeneral quidelines:

a. 34tb)) •

Sex. discrimination claims (Paragraph Back pay will be determined tor thes.

claimants by counsel for the United State. bast:d on

an evaluation of the merlta o~ each lnalviau.l cla~.

Fa~+.ors that may be considered in making these

determinations are the date the clairaant was certified for the position, the number of claimants cer ~i.fied for a particular position, the pay rate tar

that . j~b, and the :::laimant' iii willingness or ability

to have accepted an offer of employment in that job

at the time(s) of certification.

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Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 21 of 77
b. Race discr~nation claims ,t••ting) (paragraeh 34(cll. All aubcl••• members eligible for relief will ahare equally in the back pay allocated to this subclass.
c. RAce dbc:d_in.tion claims (hirinSI !puaqraph 34 Id) ). Back pay will be determined for ~~. claimants by counael for the United State. and the Martin plaintitfs ba••d on an evaluation of the IIIIlrita of the individual claim. The amount of back pay for a claimant may vary depandinq upon the date the cla1mant was certified for the pOSition, the number of claimants certified for a particular poSition, the pay rate for the job, the claimant'l!I willingnesa or ability t.o have accepted an offer of employment in that job at the time(s) of certification, and the number of additional vacancies in that job that plaintiffs allage would have been filled by blacks during the relevant time perioCls, absent alleqed discrimination. 37. Within ten (10 I days after the Court gives final approval to the Consent necree. writter. b.:>tice will be given by the County by certified mail. return receipt requested, to each ~f the indiViduals identified in Appendices C, Dr E and F who are requi.red to 8utllll.it proof of claim form. in order to be eliqible for individual, relief under thi.s Decree. Notice to such indivi4uala will be sent to their last known address. The form of the notice 1s attacheCl aa Appendix G. Proof of claim
torms (Attached as Appendices a and II will be included with
the. notice to these individuals, and they shall have sixty (60) days from the date of mailing to respond to their notice and to file their proof of claim fo~s with the Clerk of the Court.
38. Within ninety (90) days after receipt of all tim~ly proof of clailll"IQrlUS by the Clerk Of the Caurt, counsel for the

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 22 of 77
plaintiffs will submit to the Court and counsel for the County a report identifying each person who, in their'view, is entitled to participate in the indiVidual relief provisions of this Consent Decree. In preparing this report, coun••l for the plaintiffs shall be allowed acce.s to the County'. records and file8 after reasonahle not.ice of no less than three (3) days, and any review of such recorda and file. ahall occur during normal working bours. Plaintiffs shall include a description of the job offer and remedial seniority, if any, to be offered by tbe County to such individual and the back pay relief, if any, to be afforded by the County to such person. In no event will the SUIII of the individual monetary awards to be paid by the County under this Dacree exceed the sum of $298,000, plus any interest accrued thereon.
39. Set forth in Appendix J:. is a l1stinq of' the jobs, Departments and number of job vacancies for Which the individuals identified in Appendices C, D and r will be eligible to present a claim for priority employment under the procedures set forth in paraqraph 46 below. In no event will the number of remedial job offers to be made under part III of this Decree exceed the number of vacancies identified in Appendix L.
40. The County .!'·lall hav!! twenty (20) days from receipt of the plaintiffs' report on individual relief to notify. in writing. counad for the plaintiffs ot any objections it may have to the job offer and/or .eniority date. for the individuals identified in .uch report, except that such period may be extended for a reasor•...;,le period of time not to exceed thirty (30) days for good cause shown. If there are any such objections, the parties shall first attempt to 'reach a voluntary resolution of the objections. In the event the parties are unable to resolve such Objections, they may petition the court to resolve them. The County agrees not to
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cballeDge any of the indivi4ual back pay awar4. to ba made

under this Consent Decree.

41. Remedial CoWlty seniority date, as that t • .rm is used

in this Decree, shall mean the employee's seniority for

purpos.s of prOlllOtion, vacation .s accmed, sick leave, and

.s longevity pay, but such date ahall not be utilized for pension

purposes. Adjuata4 cl....ification seniority,

that ter'lll is

used in this Deer•• , ah..ll mean the ,employee's seniority for

l.yoff and recall in the jobs to be offered to individua18

under Part III of this Decree. In no eVent shall a reme4ial

county seniority date or adjusted cla••ification seniority date

be earlier than March 24, 1972, the date Title VII was amended

to include State, County and local governments.

42. Upon final determination by the parties of the awards

of individual relief to be mad. under th1s Deer•• , the County

shall within five (5) days thereafter notify such persens by

certified mail of their proposed awards of relief. if any, as

set forth 1n the plaintHfa' report submitted to the Court.

This notice shall also inform each of the.. individuals of

their riqht to object to the relief, if any. as contained in

the report, and that they lI'Iust file their objections i .. writin9

with the Clerk of the Court within fifteen (15) 4ays of their

receipt of this notice.

43. If any such objections are filed, the Court shall

thereafter, and as soon a8 practicable, schedule 4 bearing at

which it will rule upon any objections to the report which have

been timely filed. At the conclusion of such hearing the Court

shall determine wbether to give final approval or disapproval

to the awards of. individual relief.

a. Implell'l8ntation of Individual Relief

·U. Immediately upon final approval by the Court of the

awards of individual relief to be made under this oecree, the

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County will begin to implement. Part III of thb Decree aa described herein.
45. Any person entit~.d to individual relief (inc:ludinq the named private plaintiffs), in order to obtain such relief, aust sign • notarized re~ea.e which will be prov:l:aed that person by t.he county (Appendix Jt and return such notarized releaae to the County within thirty (30) day. of that peJ:'son's J:'eceipt. thereof. Any such individual who either doe. not 8i9n such a not.arized releaae or, alternatively, and abaent. good cause. does not return Buch signed notarized rele.... to the Count.y wit.hin thirty (30) days of that person's receipt t.hereof, shall be deemed to have waived his or her entitlement. to such relief. Such release shall provide that the relief to which that person is ent.itled under Part III of this Decree, if accepted, ahall be in full and final settlement of any and all claims against the County baaed upon allegations of race or aex discriminat.ion occurring prior to the date such releaae is 8i9ned.
46. The County sball send a notice to each of the persons entit.led t.o individual relief inforJaing th~ t.hat the Court has given final approval of t.heir right to such relief under this Decree. This notification shall be in writinq, be made' by certified mail, return receipt requested, and shall be approved cUi to substance anC! form by the plaintiffs prior to mailing. With respect to those individuals who are eligible' for consideration to fill a future vacancy in II ciassified .service position, the notice shall clearly and specifically inform such persons of the qualification requj '('ements they will have to JIleet i.n order to be appointed to that. posi,tion. Such notification also shall atate that if the recipient has any questions about the notice, he or she may contact the Affirmative Action Officer, or COl.lnsel for the plaintiffs whose names t
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· ,
addresses and phone numbers shall be listed in the notice, or their own counsel.
&7. As the County receives releas.s from the named private plaintitts and incUviduals entit.led to & back pay award under this Dearee. it .ball apply to the Court for Orders directing the Clerk of the Court to i.sue cbeclts to sucb persons in the ..aunt of bis or her back pay award.
48. Each of the persons who are det.eau.ned. to be entitled to an offer of employment with tbe County pursuant to the plaintiffs' report .s .et forth in paragraph 38, sball be entitled to priority appointments to future vacancies in such positions in the order provided in plaintiffs' report. Such persons shall be required satisfactorily to demonstrate his or her qualifications for the job to be offered in accordance with the current qualification raquireaents for the job AS established by the County and t.he Jefferson Count.y Personnel Board, provided that suoh requirements are administered in IS nondillcriminatory manner, do not unlawfully discriminate either in purpose or effect against blacks or wOIIIen, and do not otherwise conflict with the provisions of paragraph 1 of this Decree. The Count.y agrees to waive any age requiraments which may currently bar any such individUAl from obtaining employment with the County if such individual met sucb age requirements at the time of oriqinal application as identified in the plaintiffs' report. Theae individuals sball also not be required to take any test administered by the Personnel Board for the job to be offered under this Decree if such individual took and passed such test at the time of oriqinal application as identified in the plaintiffs' r.por~.
IV. NOTICE AND FAIRNESS HEARING 49. Within ten nO) days after provisional approval of this Consent Decree by the Court, notice, in the fOrM'attached as Appendix It.. , will be iliIliued by publication in the Sunday
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edition of the Birmingham Hewa for two consecutive weeks, and in the Birmingham ~ime8 on one weekday directed to all interested persons informing them of the general provisions of this Deere. and of their right to review a copy of the Decree which will be on file with the Clerk of the Court. Within this same tan (10) day period, individual not.i.::. in the form attached a. Appendi2c K· will alao be mailed by the County t;o each of the peraona identified in Appendices C through F. ~he eoat of mailing and publication of any notic.. to be made under this decree shall b. paid by the County. Both the notices by publication and the individual notices shall inform persons to whOJll such notices are directed of their riqht to be heard and to file objections, 1f any, to this necree. Such objections must be filed with the Clerk of the Court by a date to be aet by the court in its Order grantinq provisional approval to this Decree. The Court shall thereafter, and on a date(s) to be fixed by the Court in its Order granting provisional approval to the Decree, schedule a fairness hearing at which those persons who file timely objections to the Decree will be heard. At the close of such hearinq I or as soon as practicable thereafter, the Court shall rule upon such objections and grant tinal approval or disapproval to this Consent Decree. ~he Court shall, however, withhold final approval of 1::'8 awards of individual ralief to be IlIAd. under this Decree until those incUviCluals who are identified in the plaintUfs report on iruUvidual relief are notified of their in4ividual awarCla, if any, and are a.fforded an opportunity to be heard and to file any objections they may have to those awards.
V. RECORDKEEPING 50. To the extent that records referred to herein are not retained by the Personnel Board pursuant to its Consent Decree, the County shall retain durinq the period of this Decree necessary records concerninq the implementation of this Decree.

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'rhese recorda shall be maCle available to the plaintiffs for inspection and copying upon written request.
51. Tbe County's recorda shall include the following; (at A list of all organizat.ions and s~hoola
wbich are contact.ed for racrcitlllent purpo•••·, abowinq t.he date that any notice of job opportunity was mailed to tbem, the title of the job and nWlber of positions within that job to be filled from that notice, and the date through which applications would be received for the job. A summary or compilation of all other recruitment efforts aimed at ainoriti88 and women shall also be maintained, together with the date and nature of the efforts and the names and job title of the County employees involved.
(b) All written applications and related records for all peraons seekinq employment with the County. including applications for transfer or promotion within or amonq departments, for a period of at least five (S) years, which applications shall include identification by the county of the applicant by race and sex.. Such record ahall also contain a statement signed by the apPropriate County official, setting forth the reasons why any applicant was found not to be qualified for the pOBition(a) applied tor.
Ie) With re.pect to any applicant who is certified tor hire or promotion and who 1s not selected for the vacancy for which that applicant is certified, the County shall record in writinq, siqned by the 1 .Ip::opriate Coul)ty official, the reasons .for the applicant's not being selected for that vacan<!y. Also, the County shall record and maintain any other written records or comments on an applicant for
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certification in accordance with paraqraph 32(el above.
(d) All written communications between the County and applicants for employment, transfer and promotion.
(e) All written communications between the County and 8IIIploy... concerninq discipline and discharqe, as well as all written reports concerning these matters.
VI. JlBP01\'tIlfG
52. On or before ~ 1983 and thereafter
semi-annually, the County shall insure that report.s are made to the plaintiffs, containing the following information:
(al A summary showing the total number of current employees by race and sex in each job classification for each department of the County in both the classified and unclassified service.
(b) A list of all probational appointments for permanent full-time positions, by job classification and department, durinq t:ue six month reporting period indicating the race and sex of the persons hired or promoted. S3. On or before t2juii~/, 1983 and thereafter annually, the County shall report to the plaintiffs the following infortl'Ultion:
(al A list of all persons, by job classification, departlllent, race and sex, to whom positions have been offered with 'an indication' thereon of whether or not the position was accepted.
(b) A list of all promotions to permanent full-time pOsitions in the classified service, by job classi.ficat:ion and department, during the twelve
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,,.. .....,
month reporting period indicating the race, sex, date of initial hire in the classified service and date of the promotion.
tc) A breakdown of the applicant flow for employaant with the County which indicates by race and sex the number of applicants for each department and job cla••ification in the cla..ii:ted and unclaasified .ervice. and the number of applicants hired, rajeClted and pending for each job claSSification and department. Applicant hir.es ahdl be separately identified aa to Comprehensive Employment Training Act (CE~A) positions.
(d) A sUIIlIary report of the recruiting activities conducted by the County and the results of those activities.
(e) A report of the County's tmplementation of the individual relief provisions of this Decree. ~hi. report shall includl! .. statement of the monetary payments, if any, that have been made to individuals entitled to such relief. ~hia report shall further identify each individual who has b.en offered a job with remedial seniority under this Decr•• , and whether the job offer was accepted or rejected. For any individual who was disqualified from an ofter of employment under Part III of this dea~.e, a specific statement of the reasons for disqualification shall be included in .this report.
(f) A list of the sworn personnel terminated fro n the Sheriff's ~.partment and of employees terminated from the Publ1.c Works and 8uilding Services Department.s ident.ifying each indiv1.dua.l by race, sex, date of hire, date of termination, probat~(Jn~)., or permanent status, and ranI<. In
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,.... ".
addition, the report shall explain the reason or reasons for each individual why his or ber emPloyment wa. terminated.
(g) Withi~ thirty (30) days of ••tablishment or revi.ion, .. copy of t:h. written policy concerning bAckground investigations requ1:ad by paragraph 29.
VI:t. EI"J'2C.r OF CONPL!,MCB
54. CCIIIlpliance with the terms and conditions of this Consent Decree shall const:itute compliance by the County with All obligations arising under Title VII of the Civil Kights Act of 1964, a. amended, the State and Local Fiscal Assistance Act of 1972, .s amended, the omnibus CriJlle Control and sate Streets Act of 1968, as amended, the Civil Rights Act ot 1866 and 187l, 42 U.S.C. 51981 and 51983, and the Fourteenth Amendment to the Constitution of the United States as raised by the plaintiffs' complaints. Insofar as any of the provisions of this Consent Decree or any actions taken pursuant to such provisions may be inconsistent with any atate or local civil service statute. law or regulation, the provisions of this Consent Decr.. shall prevail in accordance with the constitutional suprelllAcy of federal substantive a.nd remedial law.
VIII. RETEwtION OF JURISDICTION
5S. The Court retains jurisdiction of this action for such further relief or other orders a. may be appropriate. At any time after six (6) years sub.equent to the date of the entry of the Consent Decree, any party h~y move the Court upon forty-five (45) days notice to the others, to dissol.ve this Consent Decree. In considering whether the Consent Decree shall
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be dissolved, the Court will take into AcCOunt whether the purposes of this Consent Decree have been aub.tantially
achievEendt. ere~~;r1red this..2'f~day of j).-u-., 1982.

AGREED AND CONSEN'l'ED TO; Por Plaintiff United States
C?~ For the Plaintiff. in ~Ii!' e~ d. v. <::i ty of Bil'lll}Jt . , et aI.
1\
Fo"bi the Oef dan Je.Ueraon County and aen L. Erdreich, Ray Moore and Chriss H. Doss in their official ~.pacitia. a8 Commissioners of Jefferson
?~}.'fA;

DATED:
~~..:ba; /fjg..u
~+. e1t't L f"t l.

For the Defendant Jefferson County Sheriff

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Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 32 of 77

APPENDIXA+

Group 1- Administration and Planning

Departments:

(1) County Commission (2) Budget Management (3) Planning (4) Risk Management (5) Data Processing (6) Printing (7) Purchasing

Entry Level Jobs
Stenographer Computer Operator Programmer Senior Programmer Systems Analyst Data Processing Supervisor Data Operations Supervisor Phototype Setter Microphotographer Assistant Print Shop Supervisor Public Information Officer Administrative Analyst Statistician Housing Rehabilitation Specialist Architect Planner Accountant Personnel Officer Principal Personnel Officer Buyer Purchasing Agent

Group II - Finance Departments:

(1) Comptroller (Accounting) (2) Comptroller (Sewer Billing) (3) Revenue (4) Board of Equalization (5) Tax Assessor (6) Tax Collector (7) Treasurer

Entry Level Jobs
Clerical Assistant Stenographer Property Appraisal Assistant Accountant Principal Accountant Comptroller Auditor Principal Auditor Revenue Examiner Tax Agent

+ Except for the jobs identified in paragraphs 7 and 8 of the accompanying text, jobs in the departments identified in this Appendix or Appendix B that are not specifically identified as entry level jobs may be considered promotional jobs for purposes of this Consent Decree.

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 33 of 77

Group III - Courts

Departments:

(1) Board of Registrars (2) District Attorney -Binningham (3) District Attorney -Bessemer (4) Probate Court

Entry Level Jobs

Legal Secretary Stenographer Court Reporter Programmer Mapper Photo Camera Operator Microphotographer Accountant

Group IV - General Services
Departments: (l) General Services
Entry Level Jobs
Telephone Operator Stores Clerk Voting Machine Mechanic Locksmith Carpenter Plumber Refrigeration/Heating Mechanic Electrician Maintenance Repair Worker Truck Driver*

Group V - Law Enforcement

Departments:

(1) Sheriff (2) Jails (3) Coroner

Entry Level Jobs Deputy Sheriff Stenographer Medical Secretary Medical Transcriber Public Safety Dispatcher Truck Weight Inspector Communications Service Clerk

Group VI - Public Works - Administration and Design

Divisions:

(1) General Administration (2) Design (3) Inspection Services (4) Land Development (5) Right of Way

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 34 of 77

Entry Level Jobs

Graduate Engineer Sr. Civil Engineer Drafter Engineer Drafter Mapper Zoning Inspector Computer Operator Electrical Inspector Plumbing Inspector Gas Inspector Building Inspector Plans Examiner

Group VII - Public Works - Highway Maintenance

Divisions:

(1) Highway Maintenance and Construction (2) Bessemer (3) Ketona (4) Shops (5) Traffic (6) Landfill

Entry Level Jobs

Clerk Typist Intermediate Clerk Stores Clerk Senior Stores Clerk Administrative Intern Maintenance Mechanic Auto Body Worker* Automotive Mechanic Carpenter Engineering Aide Truck Driver* Semi-skilled Laborer* Service Station Attendant* Equipment Service Worker* Guard* Shop Helper* Auto Mechanic Helper* Disposal Site Attendant* Graduate Engineer Senior Civil Engineer Engineering Technician Drafter Traffic Planning Technician Traffic Control Technician County Traffic Engineer Traffic Signal Maintenance Worker* Traffic Striping Machine Operator* Unclassified Laborer Positions

*Jobs listed in this Appendix by an asterisk have in the past been filled by promotions of employees in lower rated jobs. If the County is unable to fulfill the affirmative recruitment objectives in these jobs as set forth in paragraph 13 of this Consent Decree, future vacancies in such positions will be announced on an open competitive basis as provided by paragraph 14 of the Consent Decree.

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 35 of 77

Group VIII - Public Works - Sanitation and Sewerage

Divisions:

(I) 8410 (2) 8420 (3) Sanitation/Sewer Plants (4) Barton Laboratory

Entry Level Jobs

Clerk Typist InterrnediateClerk Graduate Engineer Sewer Service Representative Tap Machine Operator Sewer Line - T.V. Equipment Technician Waste Water Treatment Plant Operator Painter Electrician Engineering Aide Truck Driver* WWTP Maintenance Worker*

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 36 of 77

APPENDIXB+

Group I Administration and Finance

Departments:

(1) County Commission (2) Revenue (3) Board of Equali:zation (4) Tax Collector (5) Printing

Entry Level Jobs

Senior Administrative Intern Public Information Officer Auditor Principal Auditor Accountant Revenue Examiner Property Appraiser Senior Property Appraiser Senior Accountant Tax Agent Offset Printing Operator Assistant Print Shop Supervisor

Group II - General Services Department
Entry Level Jobs
Voting Machine Mechanic Locksmith Carpenter Plumber RefrigerationlHeating Mechanic Electrician Painter Maintenance Repair Worker

Group III Sheriff Department
Deputy Sheriff Sheriff Sergeant
Entry Level Jobs
Deputy Sheriff
+ Except for the jobs identified in paragraphs 7 and 8 of the accompanying text, jobs in the departments identified in this Appendix or Appendix A that are not specifically identified as entry level jobs may be considered promotional jobs for purposes of this Consent Decree.

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 37 of 77

Group IV - Public Works - Administration and Design

Divisions:

(1) General Administration (2) Design (3) Inspection Services (4) Land Development (5) Right of Way

Ent!)' Level Jobs

Graduate Engineer Engineering Technician Drafter Traffic Planning Technician Traffic Control Technician County Traffic Engineer Maintenance Mechanic Automotive Mechanic Carpenter Engineering Aide Unclassified Laborer Positions

Group V - Public Works - Highway Maintenance

Divisions:

(1) Highway Maintenance and Construction (2) Bessemer (3) Ketona (4) Shops (5) Traffic (6) Landfill

Ent!)' Level Jobs

Graduate Engineer Engineering Technician Drafter Traffic Planning Technician Traffic Control Technician County Traffic Engineer Maintenance Mechanic Automotive Mechanic Carpenter Engineering Aide Semi-skilled Laborer* Unclassified Laborer Positions

* The job of semi-skilled laborer has in the past been filled by promotion of employees in the unclassified service. If the County is unable to fulfill the affirmative recruitment objectives in this job as set forth in paragraph 13, future vacancies in such positions will be announced on an open competitive basis as provided by paragraph 14.

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 38 of 77

Group V - Public Works - Sanitation and Sewerage

Divisions:

(1) 8410 (2) 8420 (3) Sanitation/Sewer Plants (4) Barton Laboratory

Entry Level Jobs

Graduate Engineer Sewer Service Representative Tap Machine Operator Sewer Grout Specialist Sewer Line - T.V. Equipment Technician Waste Water Treatment Plant Operator Painter Electrician Engineering Aide Semi-skilled Laborer* Unclassified Laborer Positions

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 39 of 77

FEDERAL ENFORCEMENT SECTION APPENDIXC

Department

Job

BS

SR STORES CLK

CC

BAILIFF

CG

Sr Stores elk

CH

STORES CLERK

CH

STORES CLERK

CM

BAILIFF

CT

ACCOUNTANT

DR

AUDITOR

DR

REV EXAM

DR

REV EXAM

DR

REV EXAM

DR

REV EXAM

PW

ENG AIDE

PW

ENG AIDE

PW

ENG AIDE

PW

ENG AIDE

PW

ENG AIDE

PW

ENG AIDE

Name SAREMI, REBECCA (HIGHT)
SMITH, LONA
Pilato, Virginia
ANDERSON, PATRICIA (BRAND) MAHAFFEY, SHIRLEY
ROBINSON, ELLEN
WHISENANT, LYNN
EDWARDS, JEANNE D
COYLE, MARY ANGELA SMITH, MARSHA WHITE, JANICE WILSON, HILDA
HAGLER, CAROLYN (SABE) RIKARD, KARIAN SULLIVAN, AUDREY THOMAS, HELEN TRAVIS, ANGELA (KIDD) WHITSON, JEAN

25-FEB-83 PAGE 1
Date of
Certification 751112
741227
]977
741220 741220
750130
730724
740417
740717 760702 730801 740717
750807 730618 731004 740830 740819 730503

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 40 of 77

FEDERAL ENFORCEMENT SECTION APPENDIX

Department

Job

PW

SEW PLT OPER

PW

SR. STORES CLK

PW

STORES CLERK

PW

STORES CLERK

PW

STORES CLERK

PW

STORES CLERK

PW

TRUCK DRIVER

PW

WTRPOL INSP

PW

WTRPOLINSP

PW

WTRPOL INSP

PW

WTRPOL INSP

PW

WTRPOLINSP

SO

DEP SHERIFF

SO

DEP SHERIFF

SO

DEP SHERIFF

SO

DEP SHERIFF

SO

DEP SHERIFF

SO

DEP SHERIFF

SO

DEP SHERIFF

SO

DEP SHERIFF

SO

DEP SHERIFF

SO

DEP SHERIFF

SO

DEP SHERIFF

SD

DEP SHERIFF

SO

DEP SHERIFF

SO

DEP SHERIFF

SO

DEP SHERIFF

SD

DEP SHERIFF

SO

DEP SHERIFF

TC

TAX AGENT

Name
MCCULLERS, DORIS
SAREMI, REBECCA (HIGHT)
LOCKHART, MARIE MAHAFFEY, SHIRLEY PILATO, VIRGINIA SMITH, JOHNNIE MAE
DONALDSON, MARY
HARDY, JUANITA JOHNSON, JULIA PRESCOTT, ANN (WOODWARD) RIETVELD, LESLIE SPEED, THELMA
ALLEN, SHERRY AMICK, SHERRY BASWELL, LYNN BILLS, SANDRA BODEN, LINDA CANTRELL, VICKIE COUCH, CAROLE ELAM, BRENDA HIBBLER, MARY HILL, KATHY IRVIN, MELBA JAYNE, CHARLIE LASSITER, SANDRA MANN, JANICE MCLAUGHLIN, CATHY NORMAN,LINDA TOMPKINS, BRENDA
JENNINGS, LORETTA

25-FEB-83 PAGE 2
Date of
Certification
730905
760420
730207 760726 750103 730213
730728
730618 740108 730618 730510 730726
751215 760120 750306 751017 751017 760220 750918 750918 760220 760330 760220 751002 760220 751017 750306 760622 760622
750117

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 41 of 77

FEDERAL ENFORCEMENT SECTION APPENDIX

Department

Job

TC

TAX AGENT

[END OF REPORT]

Name TAYLOR, MAILYE

25-FEB-83 PAGE 3
Date of
Certification 750130

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 42 of 77

APPENDIXD

Name
Alicia P. Andrews Willie Austin Mamie Bickerstaff
(Stove) Josh Chappell Naomi Davis Amy DeLoach Gordon Fears Cleophus Evans

Department
Tax Collector Tax Collector
Print Public Works County Home County Home Public Works Public Works

Viola Fritz Vendetta Humphrey Mary LaVert Jane Moore Catherine Owens Walter Pickett Willie Sargent Moses Suggs

Criminal Court Tax Assessor County Home Tax Assessor County Home Public Works Inspection Services Building Services

Deborah Terry

Sheriff

Tyrone Tolbert Mary F. Wilson

Public Works County Home

Job
Int Clerk Int Clerk
Int Clerk Civil Eng Head Cook Head Cook Water Pollution Insp. Sewage Plant Operator lnt Clerk Int Clerk Head Cook Intermediate Clerk Head Cook Watchman Building Inspector Maintenance Repair Worker Communications Servo Watchman Head Cook

Claim
race race
race race race race race race
race race race race race race race race
race
race race

Date of Application or Certification
119176 6/22173
1974 10/22176 11173 11/73 8/3/73 1975
5/7/75 4/1/76 11/73 1128175 11173 2/28/72
3/28/72
9/16176
812173 11173

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 43 of 77
Appendix E
Subclass No.1
This subclass consists of all black persons who took the written test for the job of Deputy Sheriff that resulted in eligibility lists for that job which were in effect between April 25, 1975 and January 10, 1977, who have not been hired as Deputy Sheriffs by the County, or who, subsequent to January 10, 1977, were hired as Deputy Sheriffs by the County but who may have been hired earlier in that job but for their rank on such eligibility lists.
The individuals identified below are members of this subclass who previously filed proof of claim forms under the Consent Decree with the Jefferson County Personnel Board and who indicated in their proof of claim forms that they were interested in employment with the County as Deputy Sheriffs. These individuals will not be required to submit another proof of claim form under this Decree in order to be eligible for back pay relief.
Addie, Harry Allen, III, Lewis Archie, Ruby E. Austin, Frederick L. Baldwin, Eugene Bell, Joyce A. Belle, Sr., Frank Bennett, Clifford 1. Bettis, Berman Louis Biffle, Crystal A. Bolden, Catherine Bonner, Jr., Lester
Bradford, James E.
Brewster, Joe Ann Briggins, Anthony Brownlee, Jr., Eddie F. Cannon, Charles Edwin Carlton, Laura Carroll, Douglas Cathey, Larry Clark, James Edward Coleman, Arthur William Coleman, Cynthia D. Coleman, Jesse 1.

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 44 of 77
Coleman, Larry Cotton, Mary A. Courthers, Jr., Willie B. Curtis, Kenneth R. Davis, Kenneth A. Davis, Michael E. Desmond, Pearlie Donald, James R. Drish, Charles Andrew Dukes, James Dunning, Bosnaza Lee Echols, Sammy L. English, Dedrick C. Escott, John C. Eskridge, Dorothy Evans, B. G. Felder, Dan Winn Fields, Anthony E. Fields, Leon William Ford, Vertie Lee Forrest, Michael R. Forte, Eldrick Foster, Jr., Sammie Lee Frazier, Johnny N. Frazier, Robert Freeman, Sallie E. Fritz, Veola Parker Gardner, Eddie Leroy Gay, Jr., Chappell Giles, Sherman 1. Gillespie, Jr., Horner Graham, Joycelyn D. Grayson, James Bernard Green, Alma Elaine Grider, Jessie K. Grider, Willie Frank Guest, Ernestine Hall, Mrs. Carol A. Hall, Tyrone Lee Halloway, Delphine Hampton, Mildred Hardin, Bennie W. Harper, Carl Joe Harris, Gregory Peck Hawkins, Curtis J. Head, Rufus Fred

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 45 of 77
Hendrix, Clarice Henley, Wardell Henry, Rhonda Jean Hicks, Frederick D. Hill, Aaron Hogan, Annie Mae Holder, Michael James Holmes, Gloria Jean Holmes, Joslyn Home, Jr., Ira Hoskin, Jr., Esaw Houston, Ethel B. Hudson, Benjamin F. Hunter, Robert Ikner, Anna Green Jackson, Dwight Jackson, Jr., Ira Jackson, Jr., Thomas J. Jefferson, Leon Jefferson, Sylvester Jenkins, Jr., Benjamin Johnson, Berneeda Johnson, Carl L. Johnson, James L. Jones, Calvin Jones, III, Cleveland Jones, Donald R. Jones, Geraldine Kelly, Jr., Thomas Kendricks, AngeJia B. Kennon, Larry J. Lambert, Daniel Kyle, Thomas C. Lanier, Walter Edwin Leonard, Alfreddie Lewis, Johnny Anthony Lewis, Jerry Lewis, Ludie D. Lillie, James Darnell Lockett, Charles E. Martin, Matthew Maze, Alfonzo McBride, James I. McCall, Charles E. McClure, Rickey Lane McDaniel, Brenda Joyce J. McElroy, Linda Joyce

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 46 of 77
McGammon, Alberta G. McLemore, Sandra F. McMillian, Lucette Jackson Merriweather, Ill, William Miles, Randy Lynn Mitchell, Darrin Lee O. Mixon, Rose L. Montgomery, Isaac L. Moody, Gloria A. Moore, Jr., Cliff Moore, Jimmy Moorer, Jerome Murray, Rosa R. Neuburn, David Edwards Nichols, Freddie Oliver, Harriet M. Oliver, Milton Parham, Terrace Pasley, Curtis L. Patton, Langford Pearson, Gemetra Perdue, Willie Hugh Perkins, Joe L. Perry, Latricia Ann Pollard, Mary Alice (Kimbrough) (Spann) Pritchett, Deloris Best Rathliffe, Samuel J. Reddock, Cornelius Rogers, III, William Roper, Pamelin G. Russell, Jerome E. Sanders, Cosby D. Sanders, DeWayne E. Scott, Jr., David W. Sherrod, Otha R. N. Duffie Simmons, Jr., Claude Henry Smith, Jr., Douglas Smith, Larry Jerome Stephenson, Eugene Stewart, Joseph R. Stone, Jr., Richard Stoudimire, Joe A. Suttle (Hatcher), Eloise Sutton, Eddie Taylor, Larry Thomas, Jimmie L.

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 47 of 77
Thomas, Jr., Nathan Thomas, Robert L. Thomas, Wanda Gayle Thompson, Jr., Earlie Tolbert, Wonzie Denise Toney, Deborah A. Townes, Bernice Tyus, Jimmy Vance, Lawrence Vasser, Patricia Ann Wallace, Oscar D. Ward, Bob W. Washington, Carl Jeffrey Washington, Cornelius Webb, Charles E. Wedgeworth, Otis Welch, Joe Nathan Whitehead, II, Ned Wilburn, Jr., Joseph Lee Williams (Nation), Cynthia Ann Williams, Deborah Joyce Williams, Frankie M. Williams, Gwendolyn Williams, Hennan James Williams, James A. Williams, James Frederick Williams, Jr., Marshall Williams, Sylvester James Williams, Patricia A. Wilson, Jr., Robert Wilson, Willie Young, Doris Jean Youngblood, Gwendolyn

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 48 of 77

Appendix F

Subclass No.2

This subclass consists of all black persons who were

certified by the Personnel Board and not hired by the County from

certifications to the following jobs and departments, during

the following periods of time:

Department

Job

Time Period

a. Board of Equalization (BE) Clerk Typist Intermediate Clerk

March 24, 1972-December 31,1976 March 24, 1972-December 31, 1976

b. Building Services (BU)

Electrician Voting Machine Mechanic Watchman/Guard

March 24, 1972-December 31, 1976 March 24, 1972-December 31, 1976 March 24, 1972-December 31, 1976

c. Circuit Court (CC)

Clerk Typist

March 24, 1972-December 31, 1976

d. Criminal Court (CM)

Clerk Typist

March 24, 1972-December 31, 1976

e. Data Processing (DP)

Keypunch Operator

March 24, 1972-December 31, 1976

f. Public Works (PW)

Engineering Aide Clerk Typist Intermediate Clerk Intermediate Stenographer Stores Clerk Truck Driver Sewage Plant Operator Public Service Aide

March 24, 1972-December 31, 1976 March 24, 1972-December 31, 1976 March 24, 1972-December 31, 1976 March 24, 1972-December 31,1976 March 24, 1972-December 31, 1976 March 24, 1972-December 31, 1976 March 24, 1972-December 31, 1976 March 24, 1972-December 31, 1976

g. Revenue (DR)

Clerk Typist Intermediate Clerk Computer Operator Keypunch Operator

March 24, 1972-December 31, 1976 March 24, I972-December 31, 1976 March 24, 1972-December 31, 1976 March 24, 1972-December 31, 1976

h. Sheriff (SD)

Deputy Sheriff

March 24, 1972-December 31, 1976

Intermediate Clerk

March 24, 1972-December 31, 1976

Watchman

March 24, 1972-December 31, 1976

Food Service Supervisor March 24, 1972-December 31,1976

Stenographer

January 1, 1977-December 31, 1978

Attached hereto is a listing of the subclass members cur-

rently known to the plaintiffs.

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 49 of 77

FEDERAL ENFORCEMENT SECTION APPENDIX F

DEPARTMENT

JOB

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

CLERK TYPIST

BE

INTERMCLK

BE

INTERMCLK

BE

INTERMCLK

BE

INTERMCLK

BE

INTERMCLK

BE

INTERMCLK

BU

ELECTRICIAN

NAME
ARRINGTON MARY BENSON BETTY JEAN BLACKMON, DARLENE BROWN IRA J. CLARK DELOIS COATS BARBARA COLEMAN LINDA DENSMORE MILDRED DURR, CORDELlA EASTE HENRIETTA S. GEORGE MARY ANN HILL EFFIE M. HOLIFIELD, BEVERLY JENKINS LINDA FAYE JONES BRENDA LAWSON DEBRA LAWSON, DELORES LEONARD, MAE D. LOVE DAVEESA MALLORY, CLARICE MCCLAIN, ELAINE PATTERSON JANET PERDUE ANNIE PICKETT, VELMA SHORT ANNETTE SILMON BETrY JEAN SIMPSON EVELYN WELCH HILDA WHITE VERONICA A. WILLIAMS GERALDINE WILLIAMS, JO ANN WILSON FLORENCE WILSON, HELEN (MATTHEWS)
CARTER GWEN FRITZVEOLA HENDERSON KATRINA HIGGINS GWENDOLYN HUMPHREY VENDETTA MCCLURE DEBRA
JUDKINS, JAMES

25-FEB-83
PAGE 1
DATE OF
CERTIFICATION
730726 740129 720927 740415 730530 730830 720927 750801 730521 741002 720627 740426 740415 740131 750508 750807 720925 740510 741002 730810 760617 750508 730726 750508 730525 740209 740418 730517 740510 740617 740129 740205 730720
750516 750516 760616 750228 760616 760611
730824

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 50 of 77

FEDERAL ENFORCEMENT SECTION APPENDIX

DEPARTMENT

JOB

BU

ELECTRICIAN

BU

VOT MACH MECH

BU

VOT MACH MECH

BU

VOT MACH MECH

BU

VOT MACH MECH

BU

WATCHMIGUARD

BU

WATCHMIGUARD

BU

W ATCHMIGUARD

BU

WATCHMIGUARD

BU

WATCHMIGUARD

BU

WATCHMIGUARD

BU

WATCHM/GUARD

BU

WATCHM/GUARD

BU

WATCHMIGUARD

BU

WATCHM/GUARD

CC

CLERK TYPIST

CC

CLERK TYPIST

CC

CLERK TYPIST

CC

CLERK TYPIST

CC

CLERK TYPIST

CC

CLERK TYPIST

CC

CLERK TYPIST

CC

CLERK TYPIST

CC

CLERK TYPIST

CC

CLERK TYPIST

CC

CLERK TYPIST

CC

CLERK TYPIST

CC

CLERK TYPIST

CC

CLERK TYPIST

CC

CLERK TYPIST

CC

CLERK TYPIST

CC

CLERK TYPIST

CC

CLERK TYPIST

CC

CLERK TYPIST

CC

CLERK TYPIST

CC

CLERK TYPIST

CC

CLERK TYPIST

CC

CLERK TYPIST

NAME
SMITH, PAUL
JENNINGS, PERCY SHOWVER. EUGENE SMITH, PAUL WARREN, CECIL
CRUMP, JR FRANK DAVIS, WILLIE DOWTHARD, DWIGHT HARDAWAY, JRAMOS HARRIS, DOUGLAS HOUSTON, JR. TOM HUDSON, LOCHELLE JONES, WILLIAM T. TERRY, THOMAS TOLBERT, TYRONE
AGEE DEBRA GAIL ARRINGTON, MARY BENSON, BETTY JEAN BERRY SONYA YVETTE
BLAC~ON,DARLENE
CADDELL, CYNTHIA COOK, PAMELA DRAKE, ELOISE ESCOTT JO ANN GEORGE, MARY ANN HAMILTON,MALENDA HARRIS, ANNIE HOPSON, PHYLLIS JONES, BRENDA JONES, DOROTHY MADELYN KENNEDY, BRENDA LAWSON, DELORES LEONARD, MAE D. MACON THELMA MAE MCALPINE, DIANE ODEN, CHARLIE M. PARNELL, WILLIE PATTERSON, JANET

25-FEB-83 PAGE 2
DATE OF
CERTIFICATION
740410
740702 740626 730601 740702
750110 740411 750508 750508 740329 730801 750124 750226 750110 730730
751020 730720 740129 751029 720919 730720 730108 730716 751020 720616 750415 720915 730726 750519 720907 740401 720912 750107 751029 720912 740322 730726 750519

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 51 of 77

FEDERAL ENFORCEMENT SECTION APPENDIX

DEPARTMENT

JOB

CC

CLERK TYPIST

CC

CLERK TYPIST

CC

CLERK TYPIST

CC

CLERK TYPIST

CC

CLERK TYPIST

CM

CLERK TYPIST

CM

CLERK TYPIST

CM

CLERK TYPIST

CM

CLERK TYPIST

CM

CLERK TYPIST

CM

CLERK TYPIST

CM

CLERK TYPIST

CM

CLERK TYPIST

CM

CLERK TYPIST

CM

CLERK TYPIST

CM

CLERK TYPIST

CM

CLERK TYPIST

CM

CLERK TYPIST

CM

CLERK TYPIST

CM

CLERK TYPIST

DP

KEYPOPER

DP

KEYPOPER

DP

KEYPOPER

DP

KEYPOPER

DP

KEYPOPER

DP

KEYPOPER

DP

KEYPOPER

DP

KEYPOPER

DP

KEYPOPER

DR

AUDITOR

DR

AUDITOR

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

NAME
PICKETT, VELMA WATSON, YVONNE WILLIAMS, JO ANN WILSON, GERTRUDE YELDELL, DOROTIIY
AGEE DEBRA G. ALLEN ANNIE GRACE GLORIA CORRINE HAMILTON MALENDA HUDSON, GERALDINE HUSTON BARBARA JONES, EDWANITA LAWSON, DELORES LEONARD, MAE D. PEAVY, JUNE PICKETT VELMA PRICE BARBARA ANN SOLOMON LINDA J. WARD PATRICIA WHITE, VERONICA
COWAN THELMA EDWARDS ANGELA GARDNER, DORIS HARTLEY ROASLIND HIGHTOWER, CHERYL HOYDEN HENRIETTA PATTERSON, SANDRA PATTON MARY J. TOYER, ONIDA
EDWARDS. JEANNE B. EDWARDS, JEANNE B.
AGEE,DEBRA ALLEN,ANNIE BELLE, SHIRLEY

2S-FEB-83 PAGE 3
DATE OF
CERTIFICATION
751020 751107 740129 740322 740213
751006 730403 751006 750415 730123 730228 741009 721012 740503 721012 750425 760302 730226 741009 740503
760507 750807 750807 750819 750828 750326 760507 760630 760202
740417 740417
750818 730329 730122

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 52 of 77

FEDERAL ENFORCEMENT SECTION APPENDIX

DEPARTMENT

JOB

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

CLERK TYPIST

DR

COMPOPER

DR

COMPOPER

NAME
BROWN,IRA BROWN, WILMA CARTER, SARAH CARTER, SHIRLEY CHRISTIAN, BARBARA COATS, BARBARA COLEMAN, LINDA COOK, PAMELA COX,JOYCE DAWSON, RONALD GAINES, LINDA GEORGE, MARY GLOVER, SHARON GRACE, GLORIA HAMILTON, MALENDA HARRIS, ANNIE HARRIS, ROSE HILL,EFFIE HOUSTON, BARBARA JENKINS, ANNIE JENKINS, LINDA JONES, BRENDA JONES, GWENDOLYN KENNEDY, BRENDA KIMBROUGH, VIRGINIA LAWSON, DEBORAH LEONARD, MAE MCALPINE, DIANE MCCLAIN, ELAINE MEANS, SYLVIA ODEN, CHARLIE PATTERSON, JANET PORTER, DEBORAH RODGERS, DOROTHY TERRY, PATRICIA THOMAS, VALERIE WASHINGTON, CLAIREE WHITE, VERONICA WILLIAMS, GERALDINE WILSON, GERTRUDE WILSON, HELEN (MATTHEWS)
COX, LEWIS WILLIAMS, RUFUS

2S-FEB-83
PAGE 4
DATE OF
CERTIFICATION
740409 750919 720906 721221 720727 730914 720912 730109 750701 750821 730104 720627 721017 750814 750315 720912 721003 740417 730227 741101 731220 750508 730122 740417 750605 750730 740514 720912 760304 750929 740329 750508 730111 731228 730122 740117 720410 740510 760315 740329 730809
721127 740607

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 53 of 77

FEDERAL ENFORCEMENT SECTION APPENDIX

DEPARTMENT

JOB

DR

INTERMCLK

DR

INTERMCLK

DR

INTERMCLK

DR

INTERMCLK

DR

INTERMCLK

DR

INTERMCLK

DR

INTERMCLK

DR

INTERMCLK

DR

INTERMCLK

DR

INTERMCLK

DR

INTERMCLK

DR

INTERMCLK

DR

INTERMCLK

DR

INTERMCLK

DR

INTERMCLK

DR

INTERMCLK

DR

INTERMCLK

DR

1NTERMCLK

DR

INTERMCLK

DR

INTERMCLK

DR

INTERMCLK

DR

INTERMCLK

DR

INTERMCLK

DR

INTERMCLK

DR

INTERMCLK

DR

INTERMCLK

DR

INTERMCLK

DR

1NTERMCLK

DR

INTERMCLK

DR

INTERMCLK

DR

INTERMCLK

DR

KEYPOPER

DR

KEYPOPER

DR

KEYPOPER

DR

KEYPOPER

DR

KEYPOPER

DR

KEYPOPER

DR

KEYPOPER

DR

KEYPOPER

DR

KEYPOPER

DR

KEYPOPER

DR

KEYPOPER

DR

KEYPOPER

DR

KEYPOPER

NAME
ANDREWS, ALICIA ASHFORD, BRENDA BELL, CASSIE BICKERSTAFF, MAMIE BLACK, DORLESTA CAMEL, DEBRA CARTER, GWENDOLYN CHRISTIAN, BARBARA CORBIN, CORRINE ESCOTT, JOANN FORD, VIRTIE FOWLES, AUDREYE GASTON, BEVERLY GRAYSON, CATHY GRAYSON, SANDRA HIGGINS, GWENDOLYN HILL,JOYCE HUBBARD, SANDRA HUMPHREY,VENDETTA MCCLURG, DEBRA MOORE,JANE W. PARKER, DORIS PERTEET, PATRICIA PINKARD, WILLIE RAMSEY, MYRTLE RUSHON, BELINDA SEAY, PATRICIA THOMAS, WILLIE TOWLES, AUDREYE WASHINGTON,AURELLA ZEIGLER, EDWARD
AVERHART, ERA MAE BOYD,JAMES BRYANT, MARY BURTON, ROSA GADSON, GLORIA GLOVER, ALTHEA GOODWIN, LORETTA HARTLEY, ROSALIND HEAD, BERTHA HEARD,EMMA JEFFERSON, ANGELA JOHNSON, JOANN JOHNSON, JOYCE

25-FEB-83 PAGE 5
DATE OF
CERTIFICATION
760128 760511 740819 750218 740430 751014 750604 740328 760316 760702 760511 741213 751125 740828 750416 750226 751020 760511 760316 760316 750109 730709 741218 760107 740517 730319 751223 751208 741213 760726 751223
731004 730503 720914 721011 731011 741023 731019 740829 741021 730503 740829 741023 720829

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 54 of 77

FEDERAL ENFORCEMENT SECTION APPENDIX

DEPARTMENT

JOB

DR

KEYPOPER

DR

KEYPOPER

DR

KEYPOPER

DR

KEYPOPER

DR

KEYPOPER

DR

KEYPOPER

DR

KEYPOPER

DR

KEYPOPER

PW

CLERK TYPIST

PW

CLERK TYPIST

PW

CLERK TYPIST

PW

CLERK TYPIST

PW

CLERK TYPIST

PW

CLERK TYPIST

PW

CLERK TYPIST

PW

CLERK TYPIST

PW

CLERK TYPIST

PW

CLERK TYPIST

PW

CLERK TYPIST

PW

CLERK TYPIST

PW

CLERK TYPIST

PW

CLERK TYPIST

PW

CLERK TYPIST

PW

CLERK TYPIST

PW

CLERK TYPIST

PW

CLERK TYPIST

PW

CLERK TYPIST

PW

CLERK TYPIST

PW

CLERK TYPIST

PW

CLERK TYPIST

PW

ENGAJDE

PW

ENGAJDE

PW

ENGAJDE

PW

ENGAJDE

PW

ENGAJDE

PW

ENGAJDE

PW

ENGAJDE

PW

ENG AIDE

PW

ENG AIDE

PW

ENGAJDE

NAME
JOHNSON, MARY LAMARR, LULA MEANS, SYLVIA ROBY,SARAH SKIPWITH, JOYCE STRODE, BEVERLY WHITSON, WANDA WOODS, SHARON
ALLEN, ANNIE COX, JOYCE D. CURRENTON, LINDA DENSMORE, MILDRED DURR, CORDELIA HARRIS, ANNIE HOPSON, PHYLLIS HOUSER, CAROLYN JENKINS, ANNIE M. JENKINS, LINDA JONES, DOROTHY MCALPINE, DIANE MCCONNICO, NORRlNE MOORE, JUANITA ODEN, CHARLIE PARNELL, WILLIE PARSONS, CAROLYN PEAVY, JUN1E REESE, JR. THEODORE SMITH, KENNETH THOMAS, VALERIE TONEY, DEBRA
ABERNATHY, DONALD P. ALLEN, DONALD BARNETT, DEBORAH J. CLARK, JEROME DUNLAP, BERNARD FRANKLIN, JAMES GILMOR, JR. HAROLD GRACE, WARREN HAGER, CAROLYN HAMILTON, LEE

25-FEB-83
PAGE 6
DATE OF
CERTIFICATION
720829 721003 740829 720914 720907 741021 720531 740829
730327 750806 730615 750806 730612 720912 730625 731018 741205 740405 720928 720907 730821 730924 740405 730801 730829 721013 740405 720928 730829 741205
770928 750807 771018 780810 750807 730523 721005 731212 750807 780413

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 55 of 77

FEDERAL ENFORCEMENT SECTION APPENDIX

DEPARTMENT

JOB

PW

ENG AIDE

PW

ENG AIDE

PW

ENG AIDE

PW

ENG AIDE

PW

ENG AIDE

PW

ENG AIDE

PW

ENG AIDE

PW

ENG AIDE

PW

ENG AIDE

PW

ENG AIDE

PW

ENG AIDE

PW

ENG AIDE

PW

ENG AIDE

PW

ENG AIDE

PW

ENG AIDE

PW

INTSTENO

PW

INTSTENO

PW

INTERMCLK

PW

INTERMCLK

PW

INTERMCLK

PW

lNTERMCLK

PW

INTERMCLK

PW

INTERMCLK

PW

INTERMCLK

PW

INTERMCLK

PW

INTERMCLK

PW

INTERMCLK

PW

INTERMCLK

PW

INTERMCLK

PW

INTERMCLK

PW

lNTERMCLK

PW

INTERMCLK

PW

INTERMCLK

PW

PSA (EAT)

PW

PSA (EAT)

PW

SEWPLTOPER

PW

SEWPLTOPER

PW

SEW PLTOPER

NAME
HARDY, DEBORAH M. HOSKIN, JR. ESAW IRONES, ARMON KING, WILLIAM MCCASLIN, FRANK MOTEM, JR. ROBERT NORWOOD, PERCY SIMON, JR. JESSE M. SMITH, CHARLES TRAVIS, ANGELA TURNER, AMOS WESLEY, JR. HENRY WHITSON, JEAN WILKERSON, ELLIOT WRIGHT, JR. CLAUDE
GILMORE, PATRICIA HALL, SAUNDRA B.
' ANDREWS, ALICIA ASHFORD, BRENDA L. AVERY, CYNTHIA L. CAMEL, DEBORAH GATSON,BEVERLY HALL,EVAN. HILL, JOICE ANN PRICE, BARBARA A. RAMSEY, MYRTLE ROBINSON, CHARLOTTE SKINNER, ARTIE THOMAS, VALERIE THOMAS, WILLIE F. TOWLES, AUDREYE B. VANN, SHIRLEY WALLER, VELMA
BUTLER,DON JONES, WILLIE
BURKS, CHARLES BURKS,JOHN BUTLER,DON

25-FEB-83 PAGE 7
DATE OF
CERTIFICATION
781109 721114 760311 780810 731004 721009 760210 781127 760210 740919 770613 740307 730503 721005 730524
750820 730316
760219 760224 770317 751013 751210 771207 751023 751105 740717
730309 751120 751210 741205 730316 720912
720503 720503
720427 721113 720501

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 56 of 77

FEDERAL ENFORCEMENT SECTION APPENDIX

DEPARTMENT

JOB

PW

SEWPLTOPER

PW

SEWPLTOPER

PW

SEW PLT OPER

PW

SEWPLTOPER

PW

SEWPLTOPER

PW

SEWPLTOPER

PW

SEW PLT OPER

PW

SEW PLT OPER

PW

SEW PLT OPER

PW

SEWPLTOPER

PW

SEWPLTOPER

PW

SEW PLT OPER

PW

STORES CLERK

PW

STORES CLERK

PW

STORES CLERK

PW

STORES CLERK

PW

STORES CLERK

PW

STORES CLERK

PW

STORES CLERK

PW

STORES CLERK

PW

STORES CLERK

PW

STORES CLERK

PW

STORES CLERK

PW

TRUCK DRIVER

PW

TRUCK DRIVER

PW

TRUCK DRIVER

PW

TRUCK DRIVER

PW

TRUCK DRIVER

PW

TRUCK DRIVER

PW

TRUCK DRIVER

PW

TRUCK DRIVER

PW

TRUCK DRIVER

PW

TRUCK DRIVER

PW

TRUCK DRIVER

SD

CLERK TYPIST

SD

CLERK TYPIST

SD

CLERK TYPIST

SD

CLERK TYPIST

NAME
FRANKLIN, JAMES GRANT, HOWARD HOGAN, LESTER HUNT, ROBERT JACKSON, NEAL JONES, LONNIE LEE,JAMES MACK, LEO PIERCE, MELVIN WATIS, RONALD WILLIS, FRANK WORKS, JON
AUSTIN, WILLIE BOONE, ALEXANDER CLYDE, DEBORAH HAWKINS, ALVIN JOHNSON, BERNEEDA LOCKHART, MARIE SAMPLE, OLIVIA SMITH, JOHNNIE TARRANT, EDWARD UPSHAW, WINNIE WILSON, JR. WILLIE
BURKS, VESTER CAMP, RUBEN W. DAVIS, RALPH GRAVES, ROBERT GRIER, ANTHONY HURST, DONEL A. MENIFIELD, ALFRED ROBERSON, JEROME SKIPPER, DON R. SPEIGHTS, JOHN WILLIAMS, EARL
EDWARDS, GLENDA ORAYSON, JO ANN HUNTER, EFFRIS JARVIS, PATRICIA

25-FEB-S3 PAGES
DATE OF
CERTIFICATION
730719 720515 741203 741210 721113 741121 720901 731012 730214 720619 730104 720901
730109 731023 730213 730131 730215 730207 760519 730131 741101 730213 730129
720728 730814 730425 720628 731101 720323 740108 730806 750423 731101 731015
770309 771209 780519 780310

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 57 of 77

FEDERAL ENFORCEMENT SECTION APPENDIX

DEPARTMENT

JOB

SD

CLERK TYPIST

SD

CLERK TYPIST

SD

CLERK TYPIST

SD

DEPSHERIFF

SD

DEP SHERIFF

SD

DEP SHERIFF

SO

DEPSHERIFF

SD

DEP SHERIFF

SD

DEP SHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEP SHERIFF

SD

DEP SHERIFF

SD

DEP SHERIFF

SD

DEP SHERIFF

SD

DEP SHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEP SHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEP SHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEP SHERIFF

SD

DEP SHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEP SHERIFF

SD

DEPSHERIFF

SD

DEP SHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

NAME
JOHNSON, JACQUELINE MEALING, BRENDA WILSON, MARILYN
ALLEN, III LEWIS ALLEN, SHERRY AMICK, SHERRY ANDERSON, JESSICA AUSTIN, FREDERICK BAKER, SARA BAYLOR, JESIE BEACHEM, BRENDA BELL, THOMAS BELLARD, CONRAD BERMAN, BETTIS BESTER, SONJA BONNER, LESTER BOYKIN, ROBERT BRASSEALE, LARRY BROOKS, JAMES BROWN, ANTHONY BROWN, BARBARA BROWN, DEBORAH BROWN, DELORES BROWN, RONALD CLARK, JAMES CLARK, LARRY COGMAN, JR. WILLIS COLLINS, MOZELLE COOK, YVONNE CULPEPPER, LESLIE CURRY, LEON CURTIS, KENNETH DAVIS,INEZ DAVIS, QUINCY DAVIS, RALPH DONALD, JAMES ECHOLS, SAMMY EDWARDS, DONALD EMBRY,LEON EVAN, JR ELLIOT EVANS, RICHARD FAIR,ALPHA FELDER, DAN FOSTER, WELDON

25-FEB-83
PAGE 9
DATE OF
CERTIFICA nON
770519 780519 780510
760220 751215 760120 780419 750729 780419 781023 771121 780516 740313 750407 780201 780516 750703 750306 770513 770906 751017 781023 780516 781128 750508 770112 781023 770525 771004 741119 770713 750407 761007 781023 740227
771006
771121 751215 771216 780419 780419 780629 751017 781128

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 58 of 77

FEDERAL ENFORCEMENT SECTION APPENDIX

DEPARTMENT

JOB

SD

DEP SHERIFF

SD

DEPSHERIFF

SD

DEP SHERIFF

SD

DEP SHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEP SHERIFF

SD

DEP SHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEP SHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

PEP SHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEP SHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEP SHERIFF

SD

DEPSHERIFF

SD

DEP SHERIFF

SD

DEP SHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEP SHERIFF

SD

DEPSHERIFF

NAME
FRANKLIN, JAMES FRANKLIN, ROBERT FRITZ, VEOLA GARDNER, EDDIE GARY, JEANNETTE GIRDER, WILLIE GRAY, CHARLES HAMPTON, MILDRED HARRIS, CARL HATIFlELD, ROGER HAWKINS, ALVIN HAWTHORN, THEOPHILUS HEAD,RUFUS HENDRIX, CLARICE HIBBLER, MARY E. HICKS, FREDERICK HICKS, SAXTON HOGAN, ANNIE HOSAN, LESTER HOLDER, MICHAEL HOLIFIELD, ROGER HOLLINS, RODERICK HOLMES, GLORIA HOWARD, DORIS JACKSON, NORRIS JARMAN, ARTHUR JENKINS, JR. BENJAMIN JENKINS, SAMUEL JOHNSON, EDWARD JOHNSON, RECTOR JONES, BRUCE E JONES, CLEVELAND KNOX, RICHARD LEE,DAVID LEWIS,JOHN LEMIS, LUDIE LITTLETON, WILLIAM LOCKETT, CHARLES MARTIN, MATTHEW MASSENGALE, GEORGE MAZE, LOLITA MCCALL, CHARLES MCCAMMON,ALBERTA MCCLURE, RICKEY MCCRAY, GABRIEL MCGHEE, JOHN

25-FEB-83
PAGE 10
DATE
OF CERTIFICATION
780419 760220 771216 780201 771006 771216 750306 770520 771004 751215 740220 740227 720613 770630 760220 770630 780516 760220 781023 770603 751215 770713 770906 781128 770906 740620 760120 751215 740227 781023 741024 771025 781128 770922 770818 770418
760120
770922 771121 761116 770520 771121 771121 771121 780419 750508

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 59 of 77

FEDERAL ENFORCEMENT SECTION APPENDIX

DEPARTMENT

JOB

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEP SHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEP SHERIFF

SD

DEPSHERIFF

SD

DEP SHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEP SHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEP SHERIFF

SD

DEPSHERIFF

SD

DEP SHERIFF

SD

DEP SHERIFF

SD

DEP SHERIFF

SD

DEPSHERIFF

SD

DEP SHERIFF

SD

DEP SHERIFF

SD

DEP SHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

SD

DEPSHERIFF

NAME
MCSWAIN, HENRY MERCHANT, MICHAEL MERRIWEATHER, WILLIAM MILES, RANDY MILLER. DORIS MIMS, RANDALL MOORE, JR JIMMY MOORE, LEROY NALLS, CLIFFORD NICHOLS, GEORGE OLIVER, MILTON PATTON, LANGFORD PEARSON, HARRY PERRY, LAWSON PITTS, WILLIAM PRATHER, LEE REDDOCK, CORNELIUS REED,IKE REYNOLDS, EDWARD RICHARDSON,ANTHONY ROBERSON, MARY LOU ROBINSON, TRUMAN RUSSELL, ALBERT RUSSELL, JEROME SANDERS, COSBY SCOTT, GREGORY SIMS, THEOPHILUS SLAUGHTER. HENRY SMITH, JR DOUGLAS SMITH, RONALD STANLEY, JOHN STEWART, HERMAN STEWART, JAMES STRACENER. DONALD SUTTON, EDDIE SWEETING, STANLEY TERCENI, SIMPLICIA THOMAS, RONALD THOMPSON, JR. EARLIE TODD,JAMES TURNER, BILLY TURNER, REGINALD VAIL,JAMES WARD,BOB WHITE, JR. JUDGE WILLIAMS, FREDERICK

2S-FEB-83
PAGE 11
DATE
OF CERTIFICATION
770603 781128 771216 780201 780629 780419 750510 770525 781023 780201 780201 760120 780201 740620 770329 740124 750103 760220 780516 780516 770519 740313 781023 770329 780201 780516 740617 780419 770906 731213 780516 780419 780419 730510 780201 780419 780516 770818 770216 770329 780419 781128 770727 750703 780419 740227

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 60 of 77

FEDERAL ENFORCEMENT SECTION APPENDIX

DEPARTMENT

JOB

SO

DEP SHERIFF

SD

DEP SHERIFF

SD

DEPSHERIFF

SD

DEP SHERIFF

SD

DEP SHERIFF

SD

FOOD SERV SUPV

SD

FOOD SERV SUPV

SD

FOOD SERV SUPV

SD

FOOD SERV SUPV

SD

INTERMCLK

SD

INTERMCLK

SD

INTERMCLK

SD

INTERMCLK

SD

INTERMCLK

SD

INTERMCLK

SD

INTERMCLK

SD

INTERMCLK

SD

INTERMCLK

SD

INTERMCLK

SD

INTERMCLK

SD

INTERMCLK

SD

INTERMCLK

SD

INTERMCLK

SD

INTERMCLK

SD

INTERMCLK

SD

INTERMCLK

SD

STENOGRAPHER

SD

STENOGRAPHER

SD

STENOGRAPHER

SD

STENOGRAPHER

SD

STENOGRAPHER

[END OF REPORT]

NAME
Wll..LIAMS, GWEN WILLIAMS, HATTIE WILSON, LEND WOODS, SARAH WOODS, STEPHEN
COLLINS, MOZELE DAVIS, INEZ MASSENGALE, GEORGE MOORE, LEROY
AVERY, CYNTHIA BELL, CASSIE CAMEL, DEBRA CHRISTIAN, BARBARA DUNN, OLIVETTE C. GATSON, BEVERLY HAYDEN, JACQUELYN HOWARD, DEBORAH MCCRAY, LINDA OWENS, NAOMI PEEPLES, SHERYL PICKETT, VELMA SILMAN, BETTY THOMAS, VALERIE THOMAS, WILLIE TONEY,DEBRA WADE, PATRICIA
FORD, VIRTIE HOLLOWAY, LINDA MOSS, SERGAVA SMITH, ELAINE STUCKEY, RENITA

25-FEB-83 PAGE 12
DATE OF
CERTIFICATION
1978 770302 761023 770525 740227
761007 761116
770425 761116 751022 740411 771010 751120 771202 770722 78032] 771024 771024 780503 750120 750818 750120 780308 770425
770606 7808]8 780106 770404 780106

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 61 of 77

APPENDIX G-l Notice To [Individuals on Appendix E] Dear Mr. (Ms.) _ _ _ _ _ _ _ _ _ _ _ _ __

This notice is to inform you of your right to present a claim for back pay relief

under a Consent Decree between the plaintiffs and Jefferson County in the consolidated

actions of: John W. Martin, et al. v. City of Birmingham, C.A. No. 74-P-OOI7-S, and

United States of America v. Jefferson County, et aI., C.A. No. 75-P-0666-S.

If you wish to present a claim for back pay relief in these cases, please fill out the

enclosed proof of claim form and mail it to the Clerk of the Court for the Northern

District of Alabama. Enclosed for your use is an unstamped envelope containing the

mailing address of the Clerk of the Court.

Your proof of claim form must be received by the Clerk of the Court no later than

p.m. on

, 1982. If you do not file this proof of claim form with the

Clerk of the Court by that date then, absent good cause shown, you will be deemed to

have waived your right to present a claim for back pay relief under the Consent Decree.

After your proof of claim form is filed, it will be reviewed by attorneys for the

plaintiffs who will make a recommendation to the Court whether your claim merits an

award of back pay under the Consent Decree. The County has agreed not to contest any

of the individual back pay determinations.

After final determinations have been made of the back pay awards to be made

under this Consent Decree, you will be notified of your individual award, if any. If you

are not offered a back pay award under the Consent Decree, or if you are not

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 62 of 77
satisfied with the amount of back pay provided to you, you will have the right to file an
objection to the resolution of your claim with the Clerk of the Court. That objection will
be subsequently ruled upon by the District Court. The procedures for filing any such
objections will be explained to you in the notice you will receive informing you of your
award of relief, if any.
If you have any questions with respect to this notice, the Consent Decree, or the
procedures for filing your proof of claim form, you may call or write any of the attorneys
listed below:
Attorneys for the United States:
Richard J. Ritter United States Department of Justice Civil Rights Division Washington, D. C. 20530 (202) 633-3895
CaryI Privett Assistant United States Attorney Northern District ofAlabama 200 Federal Courthouse Birmingham, Alabama 35203 (205) 254-1785
Attorneys for the Plaintiffs in Martin, et at v. the City of Birmingham:
Stephen L. Spitz Lawyers Committee for Civil Rights Under Law Suite 520 733 Fifteenth Street, N.W. Washington, D. C. 20005 (202) 628-6700
Susan Reeves Reeves & Still 2027 First Avenue North Suite 400 Birmingham, Alabama 35203 (205) 322-7479

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 63 of 77

APPENDIX G-2

Notice To [Individuals on Appendix F] Dear Mr. (Ms.) _ _ __

This notice is to inform you of your right to present a claim for individual relief

under a Consent Decree between the plaintiffs and Jefferson County in the consolidated

actions of: John W. Martin, et al. v. City of Birmingham, C.A. No. 74-P-OO 17-S; and

United States of America v. Jefferson County, et aI., C.A. No. 75-P-0666-S.

If you wish to present a claim for individual relief, please fill out the enclosed

proof of claim form and mail it to the Clerk of the Court for Northern District of

Alabama. Enclosed for your use is an unstamped envelope containing the mailing

address of the Clerk of the Court.

Your proof of claim form must be received by the Clerk of the Court no later

than

p.m. on

, 1982. If you do not file this proof of claim form

with the Clerk of the Court by that date then, absent good cause shown, you will be

deemed to have waived your right to present a claim for individual relief under the

Consent Decree.

After your proof of claim form is filed, it will be reviewed by attorneys for the

plaintiffs who will make a recommendation to the Court whether your claim merits an

award of individual relief under the Consent Decree based on various factors including

the date of certification by the Personnel Board, the pay rate for the job, and the reasons

asserted for your not being selected for the job. Such an award may include a job offer or

promotion with the County, remedial seniority and/or back pay. The County has reserved

the right to

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 64 of 77
review and to object to any individual job offers and/or remedial seniority dates proposed by counsel for the plaintiffs on your behalf which have not been previously agreed upon by the parties under the Consent Decree. The County has agreed not to contest any of the individual back pay determinations. If any objections are raised by the County to any proposed job offers and/or remedial seniority for you, and if the parties are unable to resolve such objections, then the Court will determine the appropriate relief, if any, for you under this Consent Decree.
After final determinations have been made of the individual awards ofreliefto be made under this Consent Decree, you will be notified of your individual award, if any. If you do not receive an award of individual relief under the Consent Decree, or if you are not satisfied with the amount of relief provided to you, you will have the right to file an objection to the resolution of your claim with the Clerk ofthe Court. That objection will be subsequently ruled upon by the District Court. The procedures for filing any such objections will be explained to you in the notice you will receive informing you of your award of relief, if any.
If you have any questions with respect to this notice, the Consent Decree, or the procedures for filing your proof of claim form, you may call or write any of the attorneys listed below:
Attorneys for the United States: Richard J. Ritter United States Department of Justice Civil Rights Division Washington, DC 20530 (202) 633-3895
Caryl Privett Assistant United States Attorney Northern District of Alabama 200 Federal Courthouse Birmingham, Alabama 35203 (205) 254-1785

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 65 of 77
Attorneys for the Plaintiffs in Martin, et al. v. the City of Birmingham
Stephen L. Spitz Lawyers Committee for
Civil Rights Under Law Suite 520 733 Fifteenth Street, N.W. Washington, DC 20005 (202) 628-6700
Susan Reeves Reeves & Still 2027 First Avenue North Suite 400 Birmingham, Alabama 35203 (205) 322-7479

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 66 of 77
APPENDIXH Proof of Claim Form Please list your: Name:___________________________________________________________ Race: _____________________________________________________________ Current Address:__________________________________________________ Current Telephone Number:______________________________________
Please check the box below if the statement listed next to the box applies to you and you wish to present a claim for relief under the Consent Decree with Jefferson County.
_ _ I am a black person who took a written test administered by the Personnel Board of Jefferson County for a job as a Deputy Sheriff with Jefferson County. I wish to present a claim for relief under the Consent Decree with Jefferson County.
Please sign and date this proof of claim form and return it to the Clerk of the Court in the enclosed self-addressed envelope.
Signature
Social Security Number

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 67 of 77

APPENDIX 1 Proof of Claim Form

If you wish to present a claim for individual relief under the Consent Decree with Jefferson County

please sign and date this proof of claim form and furnish the information requested below. This

information will be reviewed by counsel for Jefferson County for the purpose of determining the

relief to be provided to you, if any, under the Consent Decree.

I.

Please list your:

Name: _________________________________________________________

Race:__________________________________________________________

Current Address:______________________________

Current Telephone

2.

Records obtained from the Jefferson County Personnel Board indicate that you

were certified and not hired for the job(s) of

in the Department(s) of

_______________ of Jefferson County on or about _________

daMs). Please indicate in the space provided below in as much detail as possible and to the best of your recollection the following information. If you need more space to supply this information you may attach additional sheets of paper to this proof of claim form.
(i) Please list your mailing address and telephone number at or around the time you were certified for the job(s) listed above, and indicate whether you were living at that address at that time.

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 68 of 77
(ii) Please indicate whether you were ever contacted by anyone at Jefferson County for an interview for the job(s) in the department(s) listed above at or around the date(s) listed above, and, if so, please indicate whether you appeared for that interview and describe what happened during that interview.
(iii) Please indicate whether you would have accepted an offer of employment in the job(s) and at the department(s) listed above had such offer(s) been made to you at or about the time you were certified for such position(s).

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 69 of 77

3.

Please indicate whether at any time subsequent to your being certified for the

job(s) in the department(s) listed in paragraph 2 above, you were ever offered employment by

Jefferson County in another job. If so, please identify: (1) the job(s) you were offered, (2) the

departments (if known) in which that job existed, (3) the approximate date(s) of the offer, (4)

whether you accepted such offer, and your approximate dates of employment in thatjob(s).

4.

Please indicate whether at any time subsequent to your being certified for the

job(s) in the department(s) listed in paragraph 2 above, you were ever offered employment by the

City of Birmingham, or the Jefferson County Health Department, or any of the following

municipalities: Bessemer, Fairfield, Fultondale, Gardendale, Homewood, Hueytown, Midfield,

Mountain Brook, Pleasant Grove, Tarrant, or Vestavia Hills. If so, please identify: (1) which of the

above cities, departments or municipalities offered you employment, (2) the job that you were

offered, (3) whether you accepted such offer and your approximate date(s) of employment in that

job(s).

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 70 of 77

Please sign and date this proof of claim form and return it to the Clerk of the Court in the enclosed self-addressed envelope.

Date:

Signature

Social Security Number

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 71 of 77
APPENDIXJ RELEASE
For and in consideration of the sum of[sum spelled outl Dollars ($ ____ ) and all other relief to be provided me by Jefferson County pursuant to the provisions of the Consent Decree with Jefferson
County entered by the Honorable Sam C. Pointer, Jr., United States District Judge, on [ date 1in the
consolidated actions of United States v. Jefferson County, et ai., C.A. No. 75-P-0666-5, and John W. Martin, et ai., v. City of Birmingham, et ai., C.A. No.74-8-0017-S, I [full name of claimantl, for self and for my heirs, executors, administrators and assigns hereby release and discharge Jefferson County, its officials, agents, and employees of and from all legal and equitable claims arising out of the subject matter of these consolidated actions or any other legal, equitable or administrative claims or causes of action arising out of alleged discrimination on the basis of either race or sex by Jefferson County, in violation of any Federal, state or local equal employment opportunity laws, statutes, regulations or ordinances occurring prior to the date of the execution of this release.
I understand and agree that none of the parties hereby released, nor any other party, admits that I have any just claim against them or anyone else in respect to my said employment with Jefferson County, or application thereof, and that none of the parties hereby released, nor any other party, admits or has admitted liability to me or anyone else on account of any payment herein recited to have been made to me, or otherwise.

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 72 of 77

I carefully have read this Release as well as the accompanying Consent Decree entered

date

1. I fully comprehend and understand that by signing this Release I am releasing my

claim for back pay, and that I am entitled to no other payment of monies for any claim of employment

discrimination prior to the date this Release is executed from Jefferson County except as recited herein.

I further certify and warrant that I have had the opportunity to consult an attorney prior to

execution of this Release; that I am of lawful age; and, that I am signing this Release of my own free act

and deed.

Signed this _ _ day of _ _ _ _, 1982.

Subscribed and sworn to before me

this undersigned authority on this

_day of

, 1982, to

certify which witness my hand and

seal ofoffice.

NOTARY PUBLIC

Signature Social Security Number_ _ _ _ _ _ _ _ __

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 73 of 77
APPENDIXK NOTICE OF PROPOSED SETTLEMENT AGREEMENTS
AND CONDITIONAL CLASS CERTIFICATION
There is currently before the United States District Court for the Northern District of Alabama a proposed settlement agreement with Jefferson County in the following consolidated employment discrimination actions: John W. Martin. et aL v. City of Birmingham. et aL (C.A. No.74-E-17-S), and United States of America v. Jefferson County, et al. (C.A. No.75-P-0666-S).
The proposed settlement agreement is in the form of a Consent Decree. The Consent Decree will resolve all of the plaintiffs' claims of employment discrimination against blacks and women by Jefferson County.
On _ _ _ _--', 1982 the District Court entered an Order granting provisional approval to the Consent Decree, subject to further hearings. In that Order the Court withheld final approval of the Consent Decree until after hearing any objections which may be filed to it, as further explained in Part II of this Notice.
I. Class Certification Ruling On __, 1982 the District Court entered an Order pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure in the Martin action. In that Order the Court conditionally certified for purposes of this settlement agreement the following classes of black individuals who may be eligible to present a claim for back pay and other relief under the Consent Decree.

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 74 of 77

I.

All black persons who took the written test for the job of Deputy Sheriff

that resulted in eligibility lists for that job which were in effect between April 25, 1975 and

January 10, 1977, who have not been hired as Deputy Sheriffs by the County, or who,

subsequent to January 10, ]977, were hired as Deputy Sheriffs by the County but who may

have been hired earlier in that job but for their rank on such eligibility lists.

2.

All black persons who were certified by the Personnel Board and not hired by

the County from certification to the following jobs and departments, during the following periods

of time:

Department

Time Period

a. Board of Equalization

Clerk Typist Intermediate Clerk

March 24, I 972-December 31, 1976 March 24, 1972-December 31, 1976

b. Building Services

Electrician Voting Machine Mechanic Watchman/Guard

March 24, 1972-December 3],1976 March 24, ]972-December 31,1976 March 24, 1972-December31, 1976

c. Circuit Court

Clerk Typist

March 24, 1972-December 31, 1976

d. Criminal Court

Clerk Typist

March 24, 1972-December 31,1976

e. Data Processing

Keypunch Operator

March 24, 1972-December 31, 1976

f. Public Works

Engineering Aide Clerk Typist Intermediate Clerk Intermediate
Stenographer Stores Clerk Truck Driver Sewage Plant Operator Public Service Aide

March 24, 1972-December 31, ] 978 March 24, 1972-December 31, 1976 March 24, 1972-December 31,1976
March 24, ] 972-December 3], 1976 March 24, 1972-December 31, 1976 March 24, 1972-December 31, 1976 March 24, 1972-December 31, 1976 March 24, 1972-December 31,1976

g. Revenue

Clerk Typist Intermediate Clerk Computer Operator Keypunch Operator

March 24, ]972-December 31, 1976 March 24, 1972-December 31,1976 March 24, 1972-December 31,1976 March 24, 1972-December 31,1976

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 75 of 77

h. Sheriff

Deputy Sheriff Intennediate Clerk Watchman Food Service Supervisor Stenographer

March 24, 1972-December 31,1978 March 24, 1972-December 31,1978 March 24, 1972-December 31,1976 March 24, 1972-December 31, 1976 January 1, 1977-December 31,1978

The Consent Decree also provides relief to certain black individuals identified in Appendix D to the Consent Decree who were certified and not hired by the County in certain other jobs and departments who the plaintiffs believe have claims that merit relief under the Consent Decree. Finally, the Consent Decree provides relief for certain women identified in Appendix C to the Consent Decree who were certified and not hired, allegedly because of their sex, in the jobs and departments listed next to their flames in that Appendix.

II. Notice of Right to File Objections to the Consent Decrees and Fairness Hearing
This notice is directed to all persons who have an interest which may be affected by the Consent Decree with Jefferson County. Copies of the Consent Decree and the entire file in this proceeding are on file in the office of the Clerk of the Court for the Northern District of Alabama. They may be examined in the Clerk's office during nonnal working hours (Mon.-Fri. 8 a.m.-4:30 p.m.). The address of the Clerk's office is 1800 Fifth Avenue North, Binningham, Alabama 35203. Any person who wishes to register an objection(s) to the Consent Decree must file such objection(s) in writing with the Clerk of the Court by
p.m., , 1982. Objections filed after that date will not be considered by the Court in detennining whether to grant final approval to the Consent Decree.

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 76 of 77
On _______, 1982, at _ _ _ _ o'clock the District Court will hold a fairness hearing at which it will consider any timely filed objections to the Consent Decree. Individual objectors may appear at that hearing with or without the assistance of legal counsel.
III. General Summary of the Consent Decree With Jefferson County The Consent Decree contains a number of general injunctive provisions, including affirmative recruitment goals for blacks and women, each of which are designed to correct for the effects of any alleged past discrimination and to insure equal employment opportunities for all applicants and employees with the county. The Consent Decree also provides for back pay relief for the various classes and individuals described above. Details of the general injunctive provisions and the back pay relief are set out in the Consent Decree that is on file in the office of the Clerk of the Court.

Case 2:75-cv-00666-CLS Document 1832 Filed 10/15/13 Page 77 of 77

Department Public works
Board of Equalization Building Services
Revenue Data Processing Sheriff
County Home Inspection Services Tax Collector ComptroUer Printing Tax Assessor

APPENDIXL

Job
Clerk Typist Intermediate Clerk Intermediate Stenographer Stores Clerk Stores Clerk Sr. Stores Clerk Engineering Aide Engineering Aide Truck Driver Truck Driver Sewage Plant Opr. Sewage Plant Opr. Water Pollution Inspector
Civil Engineer Watchman

Race/Sex
black black black black female female black female black female black female female black black black

Clerk Typist Intermediate Clerk

black black

Electrician Maintenance Repair Worker Voting Machine Mechanic WatchmanlGuard Sr Stores Clerk
Clerk Typist Intermediate Clerk Revenue Examiner

black black black black female
black black female

Keypunch Operator
Deputy Sheriff Deputy Sheriff Food Servo Supv. Watchman Communication Scrv. Clerk Intermediate Clerk
Stores Clerk Head Cook

black
black female black black black black
female black

Building Inspector Tax Agent Intermediate Clerk Accountant Intermediate Clerk Intermediate Clerk Total Number ofJob Vacancies

black female black female black black

Number ofJob Vacancies
1 4 I I 2 I 8 4 3 I 5 1 2 1 1 2
7
5
6 3
2 14 3
1 2 1 2
2 1
2 2
2
102

 
 Case 2:75-cv-00666-CLS Document 1542 Filed 09/12/08 Page 1 of 34

FILED
2008 Sep-12 AM 09:56 U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

UNITED STATES OF AMERICA,

)

Plaintiff,

)

)

vs.

)

)

JEFFERSON COUNTY, ALABAMA, et al., )

Defendants.

)

—————————————————————)

JOHN W. MARTIN, et al.,

)

Plaintiffs,

)

)

vs.

)

)

CITY OF BIRMINGHAM, ALABAMA, et al., )

Defendants.

)

—————————————————————)

ENSLEY BRANCH OF THE N.A.A.C.P., et al., )

)

Plaintiffs,

)

vs.

)

)

GEORGE SEIBELS, et al.,

)

Defendants

)

Civil Action No. CV-75-S-666-S Civil Action No. CV-74-S-17-S Civil Action No. CV-74-S-12-S

MEMORANDUM OPINION

For more than seventy-three years, the professional staff and employees of the

public institution known as the Personnel Board of Jefferson County, Alabama

(“Personnel Board” or “Board”) have been governed by a three-person board, the members of which are vested by the terms of a state enabling act1 with the primary

1 The enabling act was originally enacted in 1935, see Act No. 284, 1935 Acts of Alabama, at 691-713, and reenacted in 1945. See Act No. 248, 1945 Acts of Alabama, at 376-400. See also 1940 Code of Alabama, Appendix § 645 et seq. (Recomp. 1958). Both the original enabling act and the 1945 re-enactment were so-called “general acts of local application,” meaning that the legislation applied only to Alabama counties and municipalities that satisfy population requirements specified in the statute. As a result of the population figures of 200,000 residents specified in the 1935 Act, and 400,000 residents in the 1945 Act, the law has applied since its inception only to Jefferson

Case 2:75-cv-00666-CLS Document 1542 Filed 09/12/08 Page 2 of 34
responsibility of promulgating rules regulating the employment and promotion of
persons in the classified public service of twenty-two county and municipal
governmental entities.2
The screening, testing, certification, and other professional practices of the
Personnel Board’s staff are managed by a “Personnel Director,”3 an official who is
appointed by, serves at the pleasure of, and is supervised by the three-person
governance board — the members of which are, in turn, appointed for six-year terms
by a group of private citizens known as the “Citizens’ Supervisory Commission.”4
County, the largest county in Alabama. 2 See infra Appendix I (§ 2 of the enabling act). The governmental entities (“appointing
authorities”) served by the Personnel Board include the Jefferson County Commission, the Jefferson County Department of Health, the Jefferson County Emergency Management Agency, the Jefferson County Storm Water and Sewer Administration, the Jefferson County Personnel Board as an entity, and the following cities: Birmingham; Bessemer; Fairfield; Fultondale; Gardendale; Graysville; Homewood; Hueytown; Irondale; Leeds; Midfield; Mountain Brook; Pleasant Grove; Tarrant; Trussville; Vestavia Hills; and Warrior.
The Personnel Board and appointing authorities share responsibility for hiring and promoting employees. The professional staff of the Personnel Board administers tests, tracks employee seniority points, and develops lists of candidates qualified for employment or promotion by the appointing authorities (“registers of eligibles”). When a job opening occurs within one of the appointing authorities, the Board submits a list of candidates eligible for employment or promotion, and the appropriate county, municipal, or other governmental official selects a candidate from the Board list (“certificate of eligibles”).
3 At some undetermined point, the occupant of this position began to be called “Executive Director” by the members of the three-person governing board, but the correct, statutory title remains either “Personnel Director” or “Director of Personnel.” See § 1 of Act No. 680 and § 4 of Act No. 684, 1977 Acts of Alabama (both amending § 12 of Act No. 248, 1945 Acts of Alabama, defining the “Duties of personnel director”).
4 See infra Appendix II (§ 3 of the enabling act). With the sole exception of one of the two Probate Judges serving Jefferson County, the persons serving on the Citizens Supervisory Commission are not employed by any of the appointing authorities served by the Personnel Board and hold no elective public office. Since the legislation creating the Jefferson County Personnel
2

Case 2:75-cv-00666-CLS Document 1542 Filed 09/12/08 Page 3 of 34
The Alabama Legislature purported to change this seven-decades-old structure
during its most recent regular session when Alabama Act No. 2008-408 (“Act No.
408”) was enacted and signed into law by the Governor. That legislation would
abolish the Citizens Supervisory Commission and replace the current three-person
governing board with a seven-member board comprised of the following persons: the
Chair of the Jefferson County Commission; the mayor of the municipality having the
largest number of employees in the classified service (currently, the City of
Birmingham); one member of the Jefferson County Mayors’ Association; two
employees in the classified service, one of whom must be an African-American,
elected by popular vote among all permanent employees in the classified service; and
two persons appointed by the Probate Judge of Jefferson County, one of whom must
be an African-American, one of whom must reside in the Bessemer judicial division, and one of whom must reside in the Birmingham judicial division.5
Board was originally enacted in 1935, the section providing for the method of selecting members of the Citizens Supervisory Commission has been amended by nine Acts of the Alabama Legislature passed from 1939 through 1977. The current method of selecting those persons who may serve as members of the Citizens Supervisory Commission, however, was established by a final judgment entered by this court in the case styled Woods v. Florence, No. CV82-PT-2272-S (N.D. Ala. Apr. 29, 1985) (Propst, J.); see also id. (N.D. Ala. Jan. 31, 1985) (findings of fact and conclusions of law holding that portions of § 5, Act. No. 248, 1945 Acts of Alabama, as subsequently amended, “have been amended and maintained with the intent to discriminate and continue to have an adverse impact on plaintiffs and other black citizens” in violation of the Fourteenth Amendment to the United States Constitution).
5 See infra Appendix III.
3

Case 2:75-cv-00666-CLS Document 1542 Filed 09/12/08 Page 4 of 34
Shortly after the enactment of Act No. 408, the Wilks class — a group
composed of all present and future male, non-black employees and applicants for
employment with the City of Birmingham6 — filed a motion challenging the
constitutionality of those portions of the statute mandating that two members of the
new governing board be African Americans, and asking this court to permanently
enjoin implementation of those race-based provisions.7 The members of the three-
person board governing the Personnel Board as an entity later joined in the motion,8
echoing the constitutional contentions of the Wilks class, but arguing that the entire
Act should be declared unconstitutional because the race-conscious provisions are not
severable from the remainder of the statute.9
6 See Jan. 3, 1991 Order Certifying Classes (appended to doc. no. 1406 as Exhibit 1 to the Declaration of Kristy Greenberg), at 3-4 (“[T]he Court certifies the following classes of interested parties with respect to the proceedings to consider modification of the City Decree: . . . All present and future male, non-black employees of and present and future male, non-black applicants for employment with the City.”); see also, e.g., Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d 1548, 1560 (11th Cir. 1994).
7 See doc. no. 1479 (“Wilks Class’ Motion for Declaratory and Injunctive Relief from RaceBased Provisions of Act No. 2008-408 of the 2008 Regular Session of the Alabama Legislature,” filed May 30, 2008).
8 See doc. no. 1516 (“Defendant, Personnel Board of Jefferson County’s Joinder in Motion”). 9 Compare doc. no. 1479, at 1 n.1 (where the Wilks Class makes clear that it “is not asking this Court to enjoin implementation of Act No. 408 in its entirety, but only to sever the race-based provisions from the Act”) (underscored emphasis in original, boldface emphasis supplied) with doc. no. 1516, at 4 (where the Personnel Board argues that the race-based provisions of Act No. 408 cannot be severed from the non-offensive portions and, therefore, that the Act “should be declared unconstitutional on its face, and in its entirety”) (boldface emphasis supplied). See also doc. no. 1491 (“Defendant, Personnel Board of Jefferson County’s Submission in Response to Court’s Order of June 3, 2008,” filed June 16, 2008), at 10 (arguing that Act. No. 408 must be declared unconstitutional in its entirety because the Act’s legislative history makes clear that the invalid
4

Case 2:75-cv-00666-CLS Document 1542 Filed 09/12/08 Page 5 of 34
The argument that the race-conscious provisions of Act No. 408 constitute
unconstitutional racial quotas is extraordinarily compelling. State-created affirmative
action plans embodying racial preferences are subject to strict scrutiny, and must be
narrowly tailored to the purpose of promoting compelling governmental interests.
See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (“[W]e hold
today that all racial classifications, imposed by whatever federal, state, or local
governmental actor, must be analyzed by a reviewing court under strict scrutiny. In
other words, such classifications are constitutional only if they are narrowly tailored
measures that further compelling governmental interests.”).10 No party has presented
evidence indicating that the racial quotas contained in Act No. 408 were narrowly
provisions were the quid pro quo for enactment of the valid parts; therefore, “it cannot be presumed the Legislature would have passed the one without the other”).
10 See also, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493-94 (1989) (holding that strict scrutiny is the standard of review to be applied to all claims of race-based discrimination by state governmental entities, and that “the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefitted by a particular classification”) (O’Connor, J., plurality opinion); id. at 520 (“I agree . . . with Justice O’CONNOR’s conclusion that strict scrutiny must be applied to all governmental classification by race.”) (Scalia, J., concurring with plurality opinion and judgment); Wygant v. Jackson Board of Education, 476 U.S. 267, 273 (1986) (observing that “the level of scrutiny does not change merely because the challenged classification operates against a group that historically has not been subject to governmental discrimination”) (Powell, J., plurality opinion); Regents of University of California v. Bakke, 438 U.S. 265, 289-90 (1978) (“The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.”) (Powell, J., joined by White, J.). Cf. Fullilove v. Klutznick, 448 U.S. 448, 537 (1980) (“Racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.”) (Stevens, J., dissenting); Hirabayashi v. United States, 320 U.S. 81, 100 (1943) (“Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.”).
5

Case 2:75-cv-00666-CLS Document 1542 Filed 09/12/08 Page 6 of 34
tailored by the Alabama Legislature for the purpose of furthering any “compelling”
governmental interest.11 Instead, the Martin class of plaintiffs and Bryant class of
intervening plaintiffs (“Martin/Bryant parties”) have engaged opposing counsel in
11 Only the City of Birmingham supports the validity of Act No. 408. See doc. no. 1488 (“City of Birmingham’s Response in Opposition to Wilks Class’ Motion for Declaratory and Injunctive Relief From Race-Based Provisions of Act No. 2008-408 [etc.]”). The City’s present attorneys hypothesize that the statute’s race-based quotas were
narrowly tailored to strengthen the County Personnel Board . . . to remedy the Board’s long and well-documented history of discrimination and administrative failings, to continue the Board’s progress towards implementing non-discriminatory practices, and to prevent the Board from slipping back to its discriminatory practices of yore.
Id. at 2 (footnote omitted). The City’s argument explicitly assumes that “ensuring black membership and representation on the Board is necessary to strengthen the Board and put the Board back on track to achieve its long-term goals.” Id. at 8.
The weakness of the City’s argument lies in several facts. First, there is no evidence even suggesting, much less establishing, that any member of Jefferson County’s state legislative delegation consciously thought of any of the interests hypothecated by the City’s attorneys during the period that Act No. 408 was under consideration. This total lack of evidence is damning because, in the absence of legislative statements of the need and basis for such race-conscious preferences, plus evidence showing that the stated rationales constitute “compelling governmental interests,” as well as evidence clearly demonstrating that the racial quotas were narrowly tailored to the justifications articulated by the legislature, the statute must fall. See, e.g., Adarand, 515 U.S. at 228 (“Unless Congress clearly articulates the need and basis for a racial classification, and also tailors the classification to its justification, the Court should not uphold this kind of statute.”) (emphasis in original, citation and internal quotation marks omitted).
Moreover, the statutorily-mandated racial-quotas have no fixed duration: they are indefinite and, as the Wilks class suggests, potentially “everlasting.” Doc. no. 1479 (“Wilks Class’ Motion for Declaratory and Injunctive Relief from Race-Based Provisions of Act No. 2008-408 [etc.]”), at 8. Indeed, the composition of the present governance board has existed for more than seventy-three years. As the Eleventh Circuit observed, “the Constitution demands that race-conscious affirmative action programs end as soon as their purposes are accomplished.” Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d 1548, 1570 (11th Cir. 1994) (“Ensley II”). Cf. In re Birmingham Reverse Discrimination Employment Litigation, 20 F.3d 1525, 1543 (11th Cir. 1994) (“It is not permissible . . . for a government to implement a rigid quota of race-based promotions, to continue indefinitely, with no basis at all for the quota figure selected.”).
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acrimonious argument over other, precedent issues: i.e., (i) whether an Article III case or controversy exists; (ii) if so, whether individual members of either the Wilks class or the three-person board possess standing to challenge Act No. 408; and (iii) whether the present litigation is the proper forum for considering the constitutionality of the statute. After full consideration of the parties’ submissions, the court is of the opinion that this is an appropriate forum to address the constitutionality of Act No. 408, and that individual members of the Wilks class and three-person board have standing to raise that issue. This court remains concerned, however, that the City of Birmingham may not be an appropriate party to defend the constitutionality of the statute. A more appropriate party would have been the Attorney General of the State of Alabama. He was invited to intervene for that purpose,12 but failed to respond. For these reasons, the court concludes that the viability of Act No. 408 can and should be decided on grounds other than its facial constitutionality under the Equal Protection Clause.
DISCUSSION This litigation has dragged on for more than thirty-four years. With the possible exception of some school desegregation cases that long have been moribund, but which no one has taken the time to officially declare dead and buried, there are,
12 See doc. no. 1482 (June 3, 2008 “District Court Certification of Constitutional Question”).
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so far as this judicial officer has been able to ascertain, no federal cases that have
been pending longer. Without question, this is the oldest, governmental, systemic,
employment discrimination litigation still active in any court in the United States. It
has exceeded the lifespan of the first judge to whom it was assigned,13 some of the
original attorneys,14 at least one of the named parties,15 and, if Act No. 408 is allowed
to take effect, promises to accompany the present judicial officer into the winter of
his years. Further, during the pendency of this protracted litigation — an amalgam
of five consolidated and intervening class actions against the City of Birmingham,
Jefferson County, and the Personnel Board16 — various orders of this court have been
13 Sam Clyde Pointer, Jr., was nominated by President Richard M. Nixon to a new seat on the U.S. District Court for the Northern District of Alabama created by 84 Stat. 294 on Sept. 22, 1970. He was confirmed by the Senate on Oct. 8, 1970, and received his commission on Oct. 14, 1970. He then was 35 years of age, and became the youngest U.S. District Judge in the Nation. Judge Pointer served as Chief Judge of the court from 1982 until Nov. 19, 1999, when he assumed senior status. His service terminated on April 2, 2000, due to retirement. Judge Pointer died on March 15, 2008, at age 73.
14 For example, Oscar W. Adams was lead counsel for plaintiffs in the first action to be filed: i.e., the suit commenced on Jan. 4, 1974, by the Ensley Branch of the N.A.A.C.P. against George Seibels, then Mayor of the City of Birmingham, and others. Mr. Adams later left the practice of law to become an Associate Justice on the Supreme Court of Alabama. He died eleven years ago.
15 George G. Seibels, Jr., served from 1967 to 1975 as the first Republican Mayor of Birmingham, Alabama, and died during March of 2000 at age 87.
16 The three class actions listed in the caption of this opinion were consolidated. The two plaintiff classes that were allowed to intervene, but are not referenced in the caption, are generally referred to by the shorthand phrases of “Bryant intervenors” and “Wilks class.” The class of “Bryant intervenors” consists of all present and future black and female employees, and applicants for employment, with the City of Birmingham. As thus defined, the Bryant class of intervening plaintiffs overlaps the Martin class of plaintiffs; nevertheless, this court allowed the Bryant class to intervene “in an effort to gather all interested parties in a single proceeding.” Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d 1548, 1560 (11th Cir. 1994) (“Ensley II ”). As stated in the text
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addressed by nine appellate opinions: one by the former Fifth Circuit,17 six by the
present Eleventh Circuit,18 and one by the Supreme Court.19 The costs of the
litigation to the parties are staggering, and mounting, literally, by the hour. If any one
doubts the accuracy of that assertion, he or she need look no further than the affidavit
submitted by the attorneys for the Martin/Bryant parties in support of their motion
seeking monetary sanctions from Jefferson County for that defendant’s egregious
abuse of the discovery process.20 The total amount of fees and costs accumulated by
those attorneys over the course of just the last four years exceeds Ten Million dollars
accompanying note 6 supra, the “Wilks class” consists of all present and future male, non-black employees, and applicants for employment, with the City of Birmingham. See, e.g., id. at 1560. Consistent with the Supreme Court’s decision in Martin v. Wilks, 490 U.S. 755 (1989), aff’g In re Birmingham Reverse Discrimination Employment Litigation, 833 F.2d 1492 (11th Cir. 1988), this court allowed the Wilks class of plaintiffs — who were not parties to the consent decrees executed in 1981 by the City of Birmingham and the Personnel Board, nor the consent decree executed the following year by Jefferson County — to intervene, originally for the purpose of collaterally attacking the City’s and Personnel Board’s consent decrees and the affirmative action programs adopted under them, but later, and more broadly, “for the limited purpose of participating in any litigation regarding potential modification of the consent decrees.” Ensley II, 31 F.3d at 1560.
17 Ensley Branch of N.A.A.C.P. v. Seibels, 616 F.2d 812 (5th Cir. 1980) (“Ensley I ”). 18 See Birmingham Fire Fighters Ass’n 117 v. Jefferson County, 290 F.3d 1250 (11th Cir. 2002); Birmingham Fire Fighters Ass’n 117 v. Jefferson County, 280 F.3d 1289 (11th Cir. 2002); Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d 1548 (11th Cir. 1994) (“Ensley II ”); In re Birmingham Reverse Discrimination Employment Litigation, 20 F.3d 1525 (11th Cir. 1994); In re Birmingham Reverse Discrimination Employment Litigation, 833 F.2d 1492 (11th Cir. 1987), aff’d sub nom. Martin v. Wilks, 490 U.S. 755 (1989); United States v. Jefferson County, 720 F.2d 1511 (11th Cir. 1984). 19 Martin v. Wilks, 490 U.S. 755 (1989), aff’g In re Birmingham Reverse Discrimination Employment Litigation, 833 F.2d 1492 (11th Cir. 1987). 20 See doc. no. 1529 (Affidavit of Rowan D. Wilson).
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($10,000,000.00)!21 Multiply such sums by the number of attorneys involved from
the inception of this litigation to the present — not to mention the billable hours that
will accumulate, and the judicial resources that will be expended, during the
additional years of litigation that will be required to resolve the remaining
controversies, if Act No. 408 is allowed to take effect22 — and one can reasonably
speculate that these cases may become (if they are not already) the most expensive
21Id. at ¶ 3. 22 The Supreme Court has held that the following questions must be answered affirmatively before court supervision of a public institution pursuant to a remedial consent decree can be withdrawn: (i) has the defendant “fully and satisfactorily complied” with the requirements of its decree?; (ii) is retention of judicial control “necessary or practicable” to achieve compliance with any outstanding decree requirements or court orders?; and (iii) has the public institution demonstrated “its good-faith commitment to the whole of the court’s decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance”? Freeman v. Pitts, 503 U.S. 467, 491 (1992). See also, e.g., Rufo v. Inmates of Suffolk Co. Jail, 502 U.S. 367 (1992); Bd. of Educ. of Oklahoma City v. Dowell, 498 U.S. 237 (1991); United States v. City of Miami, 2 F.3d 1497 (11th Cir. 1993). In addition, the reviewing court must find that it is “unlikely that [the public institution] would return to its former ways” following the termination of judicial supervision. Dowell, 498 U.S. at 247. “In sum, termination of the consent decree would be appropriate if the district court finds that the decree is clearly no longer necessary either to prevent discrimination in the future or to remedy the effects of past discrimination.” City of Miami, 2 F.3d at 1508. This court had begun the process of evaluating the record of the professional staff of the Personnel Board and its current, three-person governance board in the light of the legal requirements summarized in the preceding paragraph when Act No. 408 was signed into law by the Governor of Alabama. See, e.g., doc. no. 1429 (“Personnel Board of Jefferson County’s Motion for Final Relief From 1981 Consent Decree, As Amended, With Supporting Memorandum”). If Act No. 408 is allowed to take effect, the three-person board will be abolished, and its record of compliance (as well as all acts of the Board’s professional staff pursuant to the rules and regulations adopted by the three-person board) will cease to be legally significant. In other words, there will be no factual basis upon which this court can determine whether the Personnel Board, as a public institution under the governance of a newly-constituted, seven-person board, will or will not be likely to return to the institution’s former ways, absent judicial supervision. The Board’s professional staff and seven-person board will have to build a new record of compliance, a tedious effort that would require at least two additional years of supervision.
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systemic employment discrimination controversies in history. For such reasons, this litigation has become the American equivalent of
Jarndyce vs. Jarndyce, the Chancery case depicted by Charles Dickens in his novel Bleak House as having “passed into a joke” within the English Bar because “innumerable children [had been] born into [it]; innumerable young people [had] married into it; innumerable old people [had] died out of it”; and, “in the course of time, [the original controversy had] become so complicated, that no man alive [knew] what it meant.” Like the present litigation, the case just “drone[d] on” and on.23
Some fourteen years ago, however, the Eleventh Circuit issued clear marching orders: bring these cases to a close, and do so “forthwith.” Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d 1548, 1577 (11th Cir. 1994) (Carnes, J.) (emphasis supplied) (“Ensley II ”). That opinion criticized the Personnel Board’s lack of progress over the (then) preceding thirteen years in developing employment selection procedures that complied with federal law. See, e.g., id. at 1571-72 (“Little or no progress . . . has been made.”); id. at 1573 (“The time has long passed for the Board and the City to strip away the past and adopt fresh, race-neutral selection procedures.”). The Ensley II panel insisted that the trial judge bare sufficiently sharp procedural “teeth” to ensure the Board’s prompt compliance with the terms of its
23 Charles Dickens, BLEAK HOUSE 18 (Easton Press ed. 1970).
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consent decree. Id. at 1572. Indeed, the district court was clearly instructed to waste
no time in the pursuit of the Eleventh Circuit’s mission statement because, as Judge
Carnes emphasized when speaking for the panel,
[t]he Constitution was not designed to ease the lot of public officials, and it is not the role of federal courts to insulate public officials from the people. Instead, woven throughout the Constitution is a commitment to democratic self-rule, making public officials answerable to the people. While one of the most important duties of federal courts is to protect the constitutional and statutory rights of minorities, interference in the processes of another branch of government should be as narrow and short-lived as fulfilling that constitutional duty allows. Remedial decrees should require the responsible officials to end their unconstitutional action posthaste. Remedial decrees should not foster prolonged oversight and management by the least representative branch. Federal court supervision of local government has always been “intended as a temporary measure” and should “‘not extend beyond the time required to remedy the effects of past intentional discrimination.’”
Ensley II, 31 F.3d at 1574-75 (quoting Board of Education of Oklahoma City v.
Dowell, 498 U.S. 237, 248 (1991) (in turn quoting Spangler v. Pasadena City Board
of Education, 611 F.2d 1238, 1245 n.5 (9th Cir. 1979) (Kennedy, J., concurring))
(emphasis supplied).
For such reasons, the Ensley II panel directed this court to ensure that the
Personnel Board began to
develop race-neutral selection procedures forthwith, not at the casual pace the Board has passed off as progress for [then] thirteen years. The Board’s decree is not a security blanket to be clung to, but a badge of shame, a monument to the Board’s past and present failure to treat all
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candidates in a fair and non-discriminatory manner. Federal judicial oversight should provide public employers no refuge from their responsibilities. We are confident that, on remand, the district court will modify and enforce the decrees in a way that will bring that truth home. Ensley II, 31 F.3d at 1577-78 (emphasis supplied). This judge can recognize an order when he reads one and — just the same as those men and women who serve in this Nation’s Armed Forces — the duty of all United States District Judges is to obey the orders of superior officers. The pointed directives spread throughout the Ensley II opinion cannot be misinterpreted. In 1994 — now some fourteen years ago — Judge Carnes clearly stated the panel’s expectation that this court would ensure the Board’s compliance with its consent decree, and waste no time in doing so. This court understands the importance of that objective. The Personnel Board lies at the center of the web of discriminatory practices that led to the commencement of these actions. Unfortunately, the task of untangling that web has proven more difficult than expected. The Ensley II Court’s concerns over lack of progress and lingering federal oversight have now been compounded by fourteen additional years of resistance by the defendants, political maneuvering, and other intentional and unintentional barriers to progress. This judge has, nonetheless, persisted in pursuing the goals set for the district court in 1994. Indeed, the Eleventh Circuit’s directives have underscored
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every action taken by the present judicial officer to further this litigation since it was reassigned in 2000.
In 2002, this court held the Personnel Board in civil contempt for its repeated, flagrant failures to comply with this court’s orders and its own consent decree, and appointed a Receiver to assume control of the Board’s day-to-day functions. This court underscored in the memorandum opinion and order appointing the Receiver24 that it was acting pursuant to its power and duty to ensure compliance with the consent decree, the Constitution, federal statutes, and binding authorities. This court also emphasized that it would not be deterred in its objectives by any contrary state action, legislative or otherwise.25
Indeed, the memorandum opinion explaining the events that compelled the appointment of a Receiver preemptively rejected any attempt that might be undertaken by state actors to alter the Board, and clearly established this court’s control over the Board’s operations. Specifically, this court wrote:
Any attempt to abolish the Board, or radically alter the scope of its functions, after nearly three decades of litigation only would spawn more suits, appeals, and legal expenses. Should there be any attempt,
24 See doc. nos. 934 and 935 (July 8, 2002 memorandum opinion and order, respectively, imposing a Receivership upon the Personnel Board).
25 See doc. no. 934, at 104 (“[T]o the extent that state law contravenes federal court orders and constitutional objectives, it is displaced by the Supremacy Clause of the United States Constitution.”) (citations omitted).
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legislative or otherwise, to alter the functions or scope of the Personnel Board during the pendency of the receivership imposed by this court, those actions shall be superceded and stayed until the litigation is concluded. This court does not desire to enter the thicket of enjoining a branch of state government, but is prepared to do so if necessary to preserve its jurisdiction.26
It is important to note that this court has not formally terminated the
Receivership. Instead, the court has adopted, and supervised the administration of, plans for transition of authority from the Receiver back to the three-member board.27
The court also has continued to supervise compliance by the professional staff and
three-person governing board with the terms of the Personnel Board’s consent decree, and has appointed a Monitor to observe and report on the progress of such persons.28
Through these and other efforts, substantial progress has been made toward
termination of the Personnel Board’s decree.
In May of 2007, when a vacancy occurred due to the resignation of Dr. Leta
Clark, who then served as Chair of the three-person board, this court took action to
ensure that the uncertainty likely to arise from that vacancy did not derail the Board’s
26 Id. at 106 (emphasis supplied). 27 See doc. no. 1132 (order adopting transition plan), doc. no. 1163 (order adopting revised transition plan), and doc. no. 1213 (order adopting second revised transition plan). 28 See doc. no. 1270 (order appointing monitor). The court appointed Dr. William I. Sauser, Jr. as Monitor. Dr. Sauser holds a PhD in Industrial/Organizational Psychology from Georgia Institute of Technology and is Associate Dean for Business and Engineering Outreach and Professor of Management at Auburn University. He currently serves in the Office of the Provost of Auburn University.
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recent progress. Noting that the litigation had “reached a critical juncture,” and that “[a]ny barrier to its satisfactory conclusion is simply unacceptable,” this court appointed Birmingham attorney Alfred F. (“Buddy”) Smith, Jr., to fill Dr. Clark’s seat.29 Soon after that appointment was made, the Citizens’ Supervisory Commission (“CSC”) attempted to override it. As reported in the May 16, 2007, edition of the Birmingham News, in an article entitled “Citizen Committee Overrides Federal Judge’s Appointment,” the CSC convened a meeting on May 15, 2007, and appointed a different individual to Dr. Clark’s position. The chair of the nominating committee that selected the CSC’s candidate was quoted as saying, “No disrespect intended, but we view what Judge Smith did as simply a well-regarded nomination. . . . The CSC is not a party to the consent decree, nor are we subject to the action of the referee or whomever directs them.”30 The court considered the CSC’s actions as an obvious affront to the authority of the federal judiciary and, following a lengthy evidentiary hearing on May 23, 2007, declared the CSC’s appointment void ab initio.31 Since that time, Mr. Smith has served as Chair of the three-person board in an exemplary
29 Doc. no. 1361, attachment 1, at 1. Mr. Smith is a graduate of the University of Alabama School of Law, a member of the Alabama State Bar, and a partner in the Birmingham, Alabama, law firm Bainbridge, Mims, Rogers & Smith, LLP. See www.lawyers.com/Alabama/Birmingham/ Bainbridge,-Mims,-Rogers-and-Smith.-LLP.
30 See doc. no. 1361, at 2. 31 Id.
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manner.
Another vacancy on the three-person board occurred on August 1, 2007, due
to the resignation of Rev. Tommy Hagler. Upon being informed of the vacancy, the
court noted that evidence presented during the May 23, 2007 evidentiary hearing
established, unequivocally, that the Citizens Supervisory Commission, in its present state, is not capable of discharging its duties in a manner that will promote the expeditious conclusion of this litigation consistent with the requirements of the consent decree of the Personnel Board of Jefferson County. Indeed, several Commission members who testified were not even aware that the consent decree litigation existed, and most had absolutely no clue as to the duties of those persons who are appointed to serve on the three-member Personnel Board.32
Thus, and again acting pursuant to this court’s inherent supervisory authority, the July
8, 2002 order imposing a Receivership on the Board, “and in accordance with the
Eleventh Circuit’s mandate to conclude this [then] thirty-three-year-old litigation
‘forthwith, not at the casual pace the Board has passed off as progress’” for far toomany years,33 this court appointed Mrs. Ann D. Florie to fill Rev. Hagler’s vacancy.34
The court subsequently renewed Ms. Florie’s appointment for an additional six-year
32 Doc. no. 1395, at 1-2. 33 Id. at 2 (quoting Ensley II, 312 F.3d at 1577). 34 Ann D. Florie holds a Bachelor of Arts degree in Political Science from Newcomb College of Tulane University. Mrs. Florie has served the greater Birmingham metropolitan area in a variety of civic leadership positions. She currently is the Executive Director of Leadership Birmingham. See www.leadershipbirmingham.org.
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term commencing on November 1, 2007.35 Mrs. Florie’s service on the governance board also has been exemplary.
Chairman Smith, Mrs. Florie, and the third member of the governing board, Kenneth L. Moore, an attorney and former municipal judge in Bessemer, Alabama, have formed an extraordinarily-effective team. Working cooperatively and intelligently, they have made great progress toward the goal of terminating federal supervision over the functions of the Personnel Board. Indeed, this court was poised to commence evidentiary hearings on the Board’s motion for final relief from its consent decree when Act No. 408 was signed into law by the Governor.36
Importantly, both Mr. Smith and Mrs. Florie were appointed to their positions by order of this court. Their appointments were for definite terms, and neither of the terms has expired. Thus, if Act No. 408 is implemented, it effectively will override two federal court orders, both of which were entered for the specific purpose of furthering the enforcement of a federal consent decree designed to protect rights firmly grounded in the Fourteenth Amendment to the United States Constitution,37
35 See doc. no. 1418. 36 See the discussion in note 22 supra. 37 In relevant part, the Fourteenth Amendment provides that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const., amend. XIV, § 1 (1868).
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and federal statutes enacted to enforce such rights.38 The Supremacy Clause of the United States Constitution does not countenance such a result. That clause provides:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. U.S. Const., art. VI, cl. 2 (emphasis supplied). Fifty years ago, in the case of Cooper v. Aaron, 358 U.S. 1 (1958), the Supreme Court interpreted the Supremacy Clause to mean that a federal court’s enforcement of a decree is supreme over state law, and any state law that frustrates the federal court’s constitutional objectives is a nullity. The dispute that culminated in the Cooper decision began with the Supreme Court’s opinion in the case of Brown v. Board of Education, 347 U.S. 483 (1954) (“Brown I ”), overruling in part Plessy v. Ferguson, 163 U.S. 537 (1896), and holding that state sponsored and enforced racial segregation of public school students “is a denial of the equal protection of the laws enjoined by the Fourteenth Amendment.” Cooper, 358 U.S. at 5 (construing Brown I ).39 Within a year of the first Brown decision, the Supreme Court entered a second
38 See id., § 5 (“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”).
39 More specifically, the first Brown decision — one of the most momentous decisions in the history of the United States Supreme Court — held that segregation of white and Negro (“black”)
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decree to effectuate its prior decision. See Brown v. Board of Education, 349 U.S.
294 (1955) (“Brown II ”). The Supreme Court required lower federal courts to
effectuate “a prompt and reasonable start toward full compliance,” and to take such
action as deemed necessary to bring about the end of racial segregation in the public
schools “with all deliberate speed.” Brown II, 349 U.S. at 301.40
In compliance with the second Brown decision, the School Board of Little
children in the public schools of a state solely on the basis of race, and pursuant to state laws permitting or requiring such segregation, denied to black children the equal protection of the laws guaranteed by the Fourteenth Amendment, even if the physical facilities and other “tangible” factors of the biracial systems were equal. In the words of Chief Justice Warren, who authored the opinion for a unanimous Court, “We conclude that in the field of public education, separate but equal has no place. Separate educational facilities are inherently unequal.” Brown I, 347 U.S. at 495. The weakness of the first Brown opinion lay in the Court’s decision to not immediately address the critical issues of how, and at what pace, relief should be provided to the prevailing parties. Instead, the four class-actions consolidated under the style of “Brown v. Board of Education of Topeka, Kansas” were restored to the Court’s docket for additional briefing and argument of critical remedial questions. See id. at 495 n.13.
40 During argument of the remedial questions left hanging in the first Brown opinion, counsel for the Legal Defense and Education Fund of the National Association for the Advancement of Colored People (“N.A.A.C.P.”) urged the Court to order that desegregation of all public school systems proceed immediately, or at least within firm deadlines. The Court did neither, however, and remanded the hard questions to lower courts. Worse, the second Brown opinion provided little guidance about how remedial decisions should be fashioned or given effect, beyond that of directing lower federal courts “to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.” Brown II, 349 U.S. at 300 (emphasis supplied).
The directive for lower courts to dismantle segregated public school systems “with all deliberate speed” surely is among the least-happy utterances in American constitutional law. It provided an interstitial space into which racist demagogues throughout the Nation — but especially those hate-mongers residing within the eleven states comprising the former Confederate States of America — drove obstructive wedges.
Note well, however, that Judge Carnes, when speaking for the Ensley II panel, employed language that was extraordinarily clear and firm regarding that Court’s expectations for this court’s resolution of the remedial questions of this litigation.
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Rock, Arkansas began, in good faith, to prepare for the desegregation of public schools in that city, starting with high school students in the Fall of 1957. Other state authorities, however, actively pursued a program designed to perpetuate racial segregation, including “an amendment to the State Constitution flatly commanding the Arkansas General Assembly to oppose ‘in every Constitutional manner the Un-constitutional desegregation decisions of May 17, 1954 and May 31, 1955 of the United States Supreme Court’”; and, in accordance with that “state constitutional command, a law relieving school children from compulsory attendance at racially mixed schools.” Cooper, 358 U.S. at 8-9.
The Governor of Arkansas also engaged in obstructive conduct. He ordered National Guard troops to blockade entrances to Central High School, the first facility that was to be integrated. Id. at 9. In the words of the district judge on the spot, “chaos, bedlam and turmoil” ensued. Cooper v. Aaron, 163 F. Supp. 13, 21 (E.D. Ark. 1958). In February of 1958,
the School Board and the Superintendent of Schools filed a petition in the District Court seeking a postponement of their program for desegregation. Their position in essence was that because of extreme public hostility, which they stated had been engendered largely by the official attitudes and actions of the Governor and the Legislature, the maintenance of a sound educational program at Central High School, with the Negro students in attendance, would be impossible. The Board therefore proposed that the Negro students already admitted to the school be withdrawn and sent to segregated schools, and that all further
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steps to carry out the Board’s desegregation program be postponed for a period later suggested by the Board to be two and one-half years.
Cooper, 358 U.S. at 12-13. The district court granted the relief requested by the
School Board. An appeal was filed by the minority students with the U. S. Court of
Appeals for the Eighth Circuit, which reversed, but stayed its mandate to allow the
School Board to petition the Supreme Court for certiorari review. Id. at 13.
The Arkansas Governor and State Legislature argued before the Supreme Court
that they were not bound by the Supreme Court’s holdings in the Brown cases, see id.
at 17, and that “there is no duty on state officials to obey federal court orders resting
on [the] Court’s considered interpretation of the United States Constitution.” Id. at
4. The Court dispatched those contentions with a discussion of “some basic
constitutional propositions which are settled doctrine.” Id. at 17.
Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State
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to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, ¶ 3 “to support this Constitution.” Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers’ “anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State.” Ableman v. Booth, 21 How. 506, 524, 16 L.Ed. 169.
No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” United States v. Peters, 5 Cranch 115, 136, 3 L.Ed. 53. A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, “it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases.” Sterling v. Constantin, 287 U.S. 378, 397-398, 53 S.Ct. 190, 195, 77 L.Ed. 375.
Cooper, 358 U.S. at 18-19 (bracketed text in original) (emphasis supplied).
The Cooper decision effectively nullified several statutes enacted by the
Arkansas General Assembly, and reaffirmed the keystone principle supporting the
federal system erected following ratification of the United States Constitution: i.e.,
the “obedience of the States” to the Supreme Court’s interpretation of constitutional
provisions is “indispensable for the protection of the freedoms guaranteed by our
fundamental charter for all of us.” Id. at 19-20.
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Of course, Cooper was a school desegregation case, and the federal interests implicated there are not perfectly congruent with those at play here. Even so, the fundamental principles and issues are not greatly different, bottomed as they are upon the Equal Protection Clause of the Fourteenth Amendment. Accordingly, there is no reason to limit the holding of Cooper to the context of school desegregation cases. Indeed, courts have applied the “basic constitutional principles” and “settled doctrine” explicated in Cooper in a variety of contexts. For example, it has been noted that “[a] state statute that thwarts a federal court order enforcing federal rights cannot survive the command of the Supremacy Clause.” Reynolds v. Alabama Department of Transportation, No. 2:85cv665-MHT, 2006 WL 3924790, at *5 n.1 (M.D. Ala. Dec. 6, 2006) (Thompson, J.) (consent decree addressing employment practices within the Alabama Department of Transportation) (quoting Brinn v. Tidewater Transportation Dist. Com’n, 242 F.3d 227, 233-34 (4th Cir. 2001) (considering a state statute that prohibited federal courts from exercising the discretion granted them by Americans with Disabilities Act and the Rehabilitation Act to award attorney’s fees to prevailing plaintiffs) (quoting, in turn, State of Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 695 (1979) (considering a state statute that conflicted with a federal treaty)).
24

Case 2:75-cv-00666-CLS Document 1542 Filed 09/12/08 Page 25 of 34
Furthermore, in Cooper, “the Supreme Court said that its interpretations of the Constitution are binding on state officials, even on those who were not parties to the case or bound by a court order.” Johnson v. United States Railroad Retirement Board, 969 F.2d 1082, 1092 (D.C. Cir. 1992) (construing Cooper). The Fourth Circuit essayed a subtle variation on this doctrine in the Brinn case, supra, when saying:
Although “federal courts are appropriately reluctant to displace state law,” the Supremacy Clause mandates that federal law supersedes state law that either directly or by implication conflicts with federal law. See Metro. Life Ins. Co. v. Pettit, 164 F.3d 857, 861 (4th Cir. 1998). Such a conflict arises when “the state law stands as an obstacle to the accomplishment of the full purposes and objectives of the relevant federal law.” Nat’l Home Equity Mortgage Assoc. v. Face, 239 F.3d 633, 636-37 (4th Cir. 2001) (internal quotation marks omitted). Brinn, 242 F.3d at 233. These constitutional principles apply with equal force in the present case. Although not to such a dramatic degree, the State of Alabama has taken precisely the same type of action when enacting Act No. 408 as was admonished by the Supreme Court in Cooper. The effect of Act No. 408 is crippling to this court’s implementation of consent decrees that are aimed at the purposes of eradicating the vestiges of racial and gender discrimination, and fulfilling the mandate of the Eleventh Circuit. Furthermore, Act No. 408 steps far beyond the bounds of a state’s
25

Case 2:75-cv-00666-CLS Document 1542 Filed 09/12/08 Page 26 of 34
authority in that, if the Act is allowed to stand, it will render void a federal court’s orders entered to enforce federal law. Stated differently, the central purpose of Act No. 408 — i.e., replacing the three-person board that has governed the activities of the Personnel Board as a public institution for more than seventy-three years with seven new members, the majority of whom represent the interests of the governmental employers served by the Board — is directly contrary to this court’s prior orders. Consequently, the Act is in square violation of the Supremacy Clause, and it is adjudged to be null and void.41 See, e.g., Brinn, 242 F.3d at 233-34 (“A state statute that thwarts a federal court order enforcing federal rights ‘cannot survive the command of the Supremacy Clause.’”) (quoting Washington, 443 U.S. at 695); Irving v. Mazda Motor Corp., 136 F.3d 764, 767 (11th Cir. 1998) (holding that a state law that conflicts with federal law is “without effect”); National Home Equity Mortgage Ass’n v. Face, 239 F.3d 633, 637 (4th Cir. 2001) (noting that, pursuant to the Supremacy Clause of the United States Constitution, “federal legislation, if enacted pursuant to Congress’ constitutionally delegated authority, can nullify conflicting state or local actions”) (quoting Worm v. American Cynamid Co., 970 F.2d 1301, 1304-05 (4th Cir. 1992)).
41 The terms “without effect,” “void,” “nullity,” and “nullius juris” are synonyms. A “void” statute is “[o]f no legal effect; null,” BLACK’S LAW DICTIONARY 1604 (8th ed. 2004), while a “nullity” is “something that is legally void.” Id. at 1098. Similarly, a statute that is declared nullius juris has “no legal force.” Id. at 1099.
26

Case 2:75-cv-00666-CLS Document 1542 Filed 09/12/08 Page 27 of 34
CONCLUSION The joint motion of the Wilks class and Personnel Board for declaratory and injunctive relief is due to be granted, insofar as it seeks a declaration that Act No. 408 is ineffectual. Alabama Act No. 2008-408 will be declared void ab initio as violative of the Supremacy Clause, and the three current members of the governing board shall continue to serve until their respective terms expire, or they are otherwise relieved of their duties by further order of this court. An appropriate judgment and order consistent with this memorandum opinion will be entered contemporaneously herewith. DONE this 12th day of September, 2008.
______________________________ United States District Judge
27

Case 2:75-cv-00666-CLS Document 1542 Filed 09/12/08 Page 28 of 34
APPENDIX I
SECTION 2 OF THE ENABLING ACT42 (as amended by Act No. 19, 1956 Acts of Alabama; Act No. 657, 1959 Acts of Alabama; and
Act Nos. 677 & 782, 1977 Acts of Alabama) ===========================================================
Section 2. Personnel Board; extent of its authority defined. In and for each separate county of the State of Alabama which has a population of four hundred thousand or more people according to the last or any future federal census, there shall be a personnel board for the government and control, by rules and regulations and practices hereinafter set out or authorize[d], of all employees and appointees having a population of five thousand of more inhabitants, according to the last federal census, whose corporate limits lie wholly within the county, the police officers who are employed by any municipality therein having a population of 2500 or more inhabitants, according to the last federal census, whose corporate limits lie wholly within the county, and the County Board of Health, and such personnel board is vested with such powers, authority and jurisdiction. Provided, however, that such board shall not govern any officers or appointees holding positions in the unclassified service. The unclassified service shall include: All employees or appointees of a city or county board of education, or a library board; persons engaged in the profession of teaching or in supervising teaching in the public schools; officers elected by popular vote; the judge of any court; the county attorney; the director of personnel; the county health officer, provided, however, that if any law or laws now or hereafter enacted shall cause the offices of all other county health officers in the State of Alabama to become subject to any state or county civil service of merit system now or hereafter established, in such event, the office of county health officer in each county subject to the provisions of this Act shall be a position in the classified service as herein defined; one private secretary of a member of the governing body and of each officer except judges elected by vote of the people; interns, resident physicians, resident dentists, student technicians and student nurses, while undergoing training in a county health department or in a hospital maintained by public funds; common laborers, members of boards who are not employed on a full time basis and are not required to devote their time and services exclusively to such counties and municipalities therein; attorneys,
42 See supra notes 2 and 3, and accompanying text.
28

Case 2:75-cv-00666-CLS Document 1542 Filed 09/12/08 Page 29 of 34
physicians, surgeons and dentists who with the express or implied permission of an appointing authority or of such county or city hold themselves out for employment by others in the same or a like line of work as that performed by them for such appointing authority; where there are two county sites or county court house sites maintained in one county and a county officer or officers are required to maintain an office in one courthouse and a branch of subsidiary office in the other of said courthouses, the chief deputy of each elective officer in charge of such branch office. The classified service shall include all other offices and positions in the county and municipal service, including the services of the county Board of Health and the Board of Registrars of such county, except as otherwise provided in this Act. Each member of the board in all hearings before it may administer oaths, certify to official acts, issue subpoenas, compel the attendance of witnesses and the production of papers, books and records and may punish for contempt of the Board in like manner and extent as may be done by courts of county commissioners: A member of the board or his employer shall be prohibited from selling materials, supplies or services to a county or municipality unless such sales are made as the result of open competitive bidding. The term ‘independent contractor,' as used in this section shall include a prospective independent contractor, and the term ‘appointing authority' as used in this section, shall also include the public entity for which an appointing authority acts. The term ‘employee' as used in this Act, shall not be deemed to include ‘independent contractors,' but in order to prevent evasions of the policy of this Act, the board shall have the power to control, in the manner hereinafter specified, the use of independent contractors for performance of work for an appointing authority except in cases hereinafter specifically exempted from such control. The board shall exercise constant vigilance to see that the policy of this Act be not evaded by the use of independent contractors, and whenever the board shall have reason to believe that work is about to be, or is being done, continued or completed by an independent contractor for an appointing authority, and that such work is such as to be, or, at the time of commencement thereof, to have been, performable as well, practically, expeditiously and economically by one or more employees appointed or appointable, under this Act as by an independent contractor, the board may serve such appointing authority, and such independent contractor, if such independent contractor be known, with a written request to appear before the board at a time and place specified in such written instrument and show cause, if any there be, why such work should not be done, continued or
29

Case 2:75-cv-00666-CLS Document 1542 Filed 09/12/08 Page 30 of 34
completed by one or more employees appointed, or appointable, under this Act. Deposit of such written request in the United States registered mail, postage and registration fee prepaid and properly addressed, shall be sufficient service. At the time and place specified in said written request such appointing authority and independent contractor, or either of them may appear, and, in such event, shall be accorded a fair hearing. If, upon such hearing, or in the event opportunity therefor be not availed of, in the absence thereof, the board shall determine that such work is such, or of such character, as to be, or, at the time of commencement thereof, to have been performable as well, practically, expeditiously and economically by one or more employees appointed, or appointable, under this Act as by an independent contractor, and that no sufficient reason has been made to appear why such work should be performed by an independent contractor in preference to one or more employees appointed, or appointable, under this Act, the Board may enter an order prohibiting the doing, continuance or completion of such work after a date specified in such order otherwise than by and through one or more employees appointed, or to be appointed, under this Act, and no compensation shall be paid to, or received by, an independent contractor effected by such order for work done after the date specified in such order. In arriving at its determination the board shall consider, among other things, and give appropriate weight, to the circumstances of whether or not competent persons are available for appointment under this Act for performance of the type of work involved, and of whether or not the type of work involved is such as may be reasonably expected to be continuous for an indefinite time, regularly recurrent, or sporadic, and of whether or not the type of work involved is such as is customarily and generally let to independent contractors, and or whether or not the appointing authority possesses, or should reasonably be expected to obtain, physical facilities for performance of such work by one or more employees appointed, or appointable under this Act. The board, however, shall have no power to prohibit the use of independent contractors for the construction of viaducts, bridges, street improvements, sewers, canals, public buildings, or public utilities, and, should an appointing authority desire to do any such construction work by means of its own construction forces or employees, the board, upon application to its first made, may, but is not required, to permit the doing of such construction work by construction forces of employees of the appointing authority not appointed under this Act, subject to such conditions and limitations as the board may prescribe. In order to forestall the possibility of prohibition by the board
30

Case 2:75-cv-00666-CLS Document 1542 Filed 09/12/08 Page 31 of 34
of use of an independent contractor for the further performance of any work after such work has been let to such independent contractors, an appointing authority may apply to the board in advance of the letting of any work to an independent contractor for permission to do so, such application to be in writing and to contain a copy of the proposed contract or such general description of its substance as may be satisfactory to the board. The board may grant such application with or without conditions or limitations, and if the same be granted the board shall not thereafter prohibit anything thus authorized. In its determination concerning grant or refusal of such application, the board shall be guided by the same considerations as are hereinabove indicated for guidance of its determination upon the request of whether or not to prohibit the commencement or continuation of work by an independent contractor. In the event the governing body of any municipality whose corporate limits lie partly within said county and partly within any other county and having a population of five thousand or more inhabitants, according to the last federal census, or any succeeding federal census, shall adopt a resolution in favor of such municipality coming under the provisions of this act, and transmit or cause to be transmitted a certified copy of such resolution to the Personnel Board of such civil service system, then, sixty days after effective date of such resolution, the provisions of this Act shall apply to any such municipality having the required number of inhabitants and whose corporate boundaries lie partly within said county and partly without said county. Any municipality which adopts a resolution and comes under the provisions of this Act, as herein provided, shall thereafter remain under this Act, and may not repeal or rescind such action either by the adoption of a resolution or otherwise.
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Case 2:75-cv-00666-CLS Document 1542 Filed 09/12/08 Page 32 of 34
APPENDIX II
SECTION 3 OF THE ENABLING ACT43 (as amended by Act No. 636, 1967 Acts of Alabama; Act No. 684, 1977 Acts of Alabama;
Act Nos. 225 & 799, 1987 Acts of Alabama; and Act No. 739, 1989 Acts of Alabama) ===========================================================
Section 3. Membership of Personnel Board. Said personnel board shall consist of three members designated respectively as member number one, member number two and member number three, each of whom shall be over twenty-one years of age, of recognized character and ability, a bona fide resident and qualified voter of such county and shall not, when appointed, nor for the three years then last past before the date of his appointment have held public office or political party office, nor have been a candidate for such and who shall not directly or indirectly have solicited membership on such board, provided that in any county which is or may hereafter be divided by law into two divisions for the trial of cases in the circuit court of such county, not more than two members of the board shall be residents of the same division. The board shall meet once a month on dates to be fixed by its rules and regulations and as often as shall be necessary for the orderly dispatch of its business. Members number one, two, and three shall be appointed by the citizens supervisory commission of such county, which commission shall likewise appoint their successors. In all counties becoming subject to the provisions of this Act, said board shall be appointed as soon as it is determined that such county is in the population class subject to this Act. Member number one who shall be the chairman of the board shall hold office for a term of two years and until his successor is appointed and has qualified. His successors shall hold office for terms of six years each beginning at the ends of the legal terms, as distinguished from the possible holdover terms of their respective predecessors. Member number two shall hold office for a term of four years and until his successor is appointed and has qualified. His successors shall hold office for terms of six years each beginning at the ends of the legal terms, as distinguished from the possible holdover terms of their respective predecessors. Member number three shall hold office for a term of six years each beginning at the ends of the legal terms, as distinguished from the possible holdover terms of their respective predecessors. In the event of a vacancy on the board occasioned by death, resignation,
43 See supra notes 2 and 3, and accompanying text.
32

Case 2:75-cv-00666-CLS Document 1542 Filed 09/12/08 Page 33 of 34
impeachment or other cause, such vacancy shall be filled by the citizens supervisory commission for the then unexpired term. The chairman of the board shall receive a expense allowance of one hundred dollars ($100.00) for each meeting of the board attended by him and a expense allowance of one hundred twenty-five dollars ($ 125.00) per day for attendance upon trials and hearings. Each member of the board other than the chairman shall receive a expense allowance of seventy-five dollars ($75.00) for each meeting of the board attended by him and an expense allowance of One Hundred dollars ($100.00) per day for attendance upon trials or hearings. No accounting shall be required for such expense allowance. This expense allowance shall not be deemed to be compensation. This expense allowance shall qualify as per diem amount under Act No. 87-706 of the Alabama Legislature, Section 10-11-1 et seq., Code of Alabama 1975. This expense allowance shall not reduce or limit the ability of the chairman and members of the board to receive reimbursements for further actual expense as approved by the board. This expense allowance shall be paid as the salaries of county employees are paid on the warrant of the member claiming such expense allowance, and said expense shall be the sole remuneration received by the chairman and members of the board.
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Case 2:75-cv-00666-CLS Document 1542 Filed 09/12/08 Page 34 of 34
APPENDIX III
ALABAMA ACT NO. 2008-408 (abolishing Section 3 of the Enabling Act supra, and replacing it with the following text)
===========================================================
Section 3. Membership of the personnel board. The personnel board shall be comprised of seven members consisting of the following persons: The Chair of the County Commission of Jefferson County; the mayor of the municipality having the greatest number of employees in the classified service; one member of the Jefferson County Mayors Association, an Alabama nonprofit corporation, not otherwise serving hereunder who is appointed by its governing body; two employees in the classified service, one of whom shall be African American not otherwise serving hereunder who shall be elected by popular vote of the permanent employees in the classified service from a list of nominations submitted to the director under the signatures of at least five employees in the classified service on or before September 30 of each year; and two persons appointed by the presiding Judge of Probate of Jefferson County, one of whom must reside in the Bessemer judicial division and one of whom must reside in the Birmingham judicial division, one of whom shall be African American and each of whom shall be qualified electors in the county, and neither of whom, nor any spouse or lineal descendant of a grandparent of such person or his or her spouse, shall be a current or former employee in the classified service or have any public office of an appointing authority at any time. The term of office of each employee member of the personnel board shall be three years, except that notwithstanding the expiration of an employee member's term of office, he or she shall continue to serve until such time as his or her successor has been elected. The term of office of each judicial appointee member of the personnel board shall be three years except that notwithstanding the expiration of a judicial appointee member's term of office, he or she shall continue to serve until such time as his or her successor has been appointed. The board shall elect its chair from among the members and may create and fill such other of its offices as it may determine from time to time. The term of office of the chair shall be one year, and any chair or former chair shall be eligible for reelection to such office. The board shall meet once a month on dates to be fixed by its rules and regulations and as often as shall be necessary for the orderly conduct of its business.
34

 
 R L W f 1 IN ?BE UNITESDTATES DISTRICT COURT

?OR T?lE NORTHERN DISTRICT OF A L A B A H A

0 1981

-

UNITED STATES OF MEXICA,

1

Plaintiff,

1

C I V I L ACTION NO.

1

75-P-066 6-S

V.

1

1

JEFFERSON COUNTY, e t a l . ,

1

1

Defendants.

1

1

1

JOHN W. UARTIN, e t & I . ,

1

1

Plaintiffs,

1

CIVIL ACTION NO.

.I

74-2-17-S

v.

1

cxn OF BIRMINGEAM, e t a l . ,

1 1

1

Def c n d a n t s .

1

1

ENSLLT SRANCII O F THE N.A.A.C.P.,

t t al.,

1

1

Plaintiffs,

1

1

0.

1

. GEORGE SEIBELS, e t al ,

1 1

1

Dcf r n d a n t s .

1

C I V I L ACTION HO. 74-2-12-5

mese c o n s o l i d r t e d a c t i o n s w e r e b r o u g h t by :he U n i t e d S t a t e s a n d c e r t a i n p r i v a t e ? l a i n t i f f s a g a i n s t the Z e f f t r s o n C o u n t y T e r s o n n e l B o a r d , a n d o t h e r d e f e n d a n t s a o t i n c l u d e d w i t h i n t h e terms o f t h i s Decree, t o e n f o r c e t h e p r o v i s f o n s of T i t l e V I I o f t h e C i v i l I i g h t s Act o f 1964, a s amended, 42 D.S.C. 2000e, e t sea., t h e State and I a c a l F i s c a l A s s i s t a n c e A c t o f 1972, a s amended, 31
U.S.C. 1 2 2 1 , ct .cq., t h e 3 m n i b u s C r i m e C o n t r o l a n d S a f e S t r e e t s
A c t o f 1 9 6 8 , as a m e n d e d , 42 g.d.C. 1 3 7 6 6 ( c l (11, % b e c i v i l 3 i g h t s A c t s o f 1 8 6 6 and 1871, 42 3.S.C. 51981 a n d f1983, and t h e ? o u r t e e n t h Amendment to t h e C o n s t i t u t f o n of t h e U n i t e d S t a t a s . In t h e f t Complaints, t h e p l a i n t i f f s a l l e g e , i n t e r 3118, that the ~ e r z e r s o nCounty ?ersonnel 3oard (hereinafter the 'Personnel

Board' or 'Board'), in carrying out its employee 8election functions for Jefferson County. and other jurisdictions-vi thin Jef fereon County, has engaged in a pattern or practice of discrimination based on race and sex.
The Personnel Board denies it has engaged in any pattern or practice of discrimination or other types of discrimination on the basis of race or sex in carrying out its 5mployee selection functions. Bowever, the aoard realizes that certain facts concerning past practices of the Personnel 3oard might have given rise to an Inference that such a pattern or practice existed, and that this Court entered a Decision and Order in theae consolidated actions on January LO, 1977, concerning P e r s ~ n n e l Board testing practices for entry level police, deputy sheriff and f i r e positions, 14 TE? Cases 570, aff'd in part, reversed in part and remanded, 616 ?.2d 312 (5th Cir. 19801, cert. denied, 49 3 . S . L . w . 3443 (Dee. 15, 1 9 8 0 ) . ?or the purposes of avoiding further litigation, and in resolution of the dispute over the claims of discrimination against the Personnel aoard, the united States, the plaintiffs who are signatories to this Decree, and the eersonnel Board are now milling to agree to the entry of this Consent Decree. The plaintiffs and the defendant Jefferson County Trrsonnel Joard wish to avoid the delay and expense of further litiqation and to insure that any alleqed disadvantages to blacks and vomen that aay have resulted from any alleged 2ast discrlmination
against them In their obtaining employment and advancement are
remedied'ao that equal employment opportunities v i l l be ~ r o v i d e d to all. The plaintiffs who are signatories to this Decree and the Personnel Board, by agreeing to the issuance of this Decree, waive any findings of fact and conclusions of law on all outstanding iaaues p r t a i n i n g solely to the ?ersonnel 3oard 's liability Ln these consolidated actions, except for costs snd attorneys fees. The Personnel Board agrees to negotiate vith tho plaintiffs in the Hartin case regarding t h ~amount o f sttorneys' fees and costs to ?laintiffs in :he Yartin case and viLi negotiate vith ?laintiffs regarding the amount of such fees. If the

parties are unable to reach agreement o n the amount o f s u c h f e e s and costs, the Court will ,resolve the dispute. The United States waives its right to recover costs against the Personnel Board.
By entering into this Decree the plaintiffs d o not waive their rights to have this Court determine the liability and remedia1 obligations. vel non, of any other defendant based upon such defendant's use of Personnel Board recruitment and selection practices or any other employment practices which have been or remain the subject of litigation in these actions. This Decree shall not however constitute an adjudication or admission by the ~ e c s d n n e l3oard of any violation o f l a w or findings o n the merits of these cases.
How therefore, on the basis of the foregoing representation of the united States, and counsel for the other plaintiffs who are signatories to this Decree and the Personnel aoard, and all t r i a l proceedings and discovery filed h e r e i n t o date, it is h e r s by ORDERED, ADJUDGED and DECREED a s Eollows:
I. GENERAL ?ROVI SIONS 1. The defendant Jefferson C o u n t y P e r s o n n e l 3 o a r d and its officers; agents, employees, s u c c ~ s s o r sand 311 p e r s o n s acting in concert vith them or any o f them in the ?erformance 3 f their off icial functions are subject to the terms of 'his C a n s e n t Decree, and shall refrain from engaging in any act or ?rackice vhich has the 2urpose or effect of unlawfully discriminating against any employee of, or any applicant or .potential applicant for employm e n t with, those jurisdictions served by t h e Z ~ r s o n n e laoard because of such individual's race or aex. The defendant Zefferson County Personnel aoard and its officers, agents, employees, suec e s a o c s and a l l persons acting in c o n c e r t v i t h t h e m o r a n y of them in the performance o f their o f f i c i a l functions, s h a l l not discriminate against any zmployee or applicant for 5mployment in certifying for hire or promotion, in upgrading, training, sssignment or discharge, or vith zespect to compensation, terms and conditions ar ?r ivileges 3 f employment, because .3f such individual's race or sex.

2. Remedial actions and practices required by the terms of,

or permitted t o effectua.t$ and c a r r y out the pur_p_oses o f , t h i s

Consent Decree shall not be deemed discriminatory vithin the

meaning of paragraph 1 above or the provisions of 42 U.S.C.

2000e-2(h), ( j l , and the parties h e r e t o agree that they s h a l l in-

dividually and jointly defend the lawfulness of such remedial

measures in the event o f challenge by intervention or collateral

attack. If any collateral lawsuit fnvolvfng this Consent Decree

arises in state court, then the Personnel aoard shall notify

counsel for the plaintiffs and remove such action to the United

States District Court.

11. TESTING A N D OTHE8 iELZCTION P R O C E D U R E S

A. I n G e n e r a l

3 . All phases o f the Jersonnel Board's testing and other

selection and certification procedures for both hires and promo-

tions shall continue t o be reviewed periodically by the aoard t o

assure that such procedures comply with the standards and re-

quirements of the Uniform Guidelines on Employee Selection ?roc=-

- duros, 43 F.R.

3 8 2 5 0 (August 25, 1978) (hereinafter 't)niform

. Gu idelines'l H o r e 3pecifically, the Personnel aoard s h a l l utl-

lize qualifications, tests or other selection standards or proce-

d u r e s vhich t h e 3oard c a n 3emonstrat5 either h a v e no adverse im-

pact or have been validated in accordance vith the 3niform Guide-
- lines. In t h i s regard, the 2 t r s o n n e l l o a r d s h a l l c o n t i n u e t o
apply atatistical teats to, and othervise conduct analyeis of,

the various data generated in the course of using or assessing

the 7 a l i d i t y of a n y s u c h qualifications, t e s t s or other s e l e c t i o n

standards or procedures for the 7urpose o f inaking a good faith

e f f o r t to d e t e r m i n e vhether there are any alternative measures.

including revisions in scoring and :anking ?rocedures, vhich may

be ~ o l l o v e dwhich will reduce ?r rliminate any adverse impact o n

blacks or women, and vhich vould continue to 2rovide a sufficient

pool of qualified candidates Eor certification and selection in

accordance vith the goals of this 3ecree.
--4

8. Written Tests In Soecific Jobs
-.
4 . The Personnel Board may continue to administer its cuc-

rent written tests for the jobs of Account Clerk, Accountant,

Auditor, Intermediate Clerk, aevenue Sxaminer, Secretary, Stnioc

Clerk, Stenographer, Police Sergeant and Shet iff's Sergeant for

the certification of candidates for those jobs, provided that

such certif fcatione sre in conformity with the inter fm certifica-

tion goals for any such jobs for which 3 certification goal is

established by paragraph 24 of this Decree.

. 5 . The Personnel Board shall no Longer administer any of

the written tests which vere challenged by the plaintiffs in these

22

actions to establish eligibility lists :or any of the following

jobs:

1. Animal Control Officer 5. 3eavy Equipment Operator

2. Zoo Xeeper

6. Waste sater Treatment

3. Automotive 3echanic

?lant Operatoc

6. Gngineering Aide

7. Construction Zquipment

Operator

The Personnel 3oard nay continue to use any eligibility lists

based in whole or in par: upon the scores applicants received o n

any of t>c challenged vritten tests for the jobs identified above

if such lists remain in effect on the date this Decree is ap-

proved and entered Sy the Court. H o u ~ v e r , any certifications

from such 5ligibility lists 3hall be in =onformity vith the int9-

rim certification goals set Forth in 2araqraph 24 below.

6. Any qualifications, tests or gther zelection standards

or,procedures used for the astablishrnent a f new eligibility lists

and/or certifications in the jobs listed in paraqraph 5 shall be

designed so as to eliminate or reduce any adverse !mpact in cer-

tffications against blacks, and ahall k consistent vith the

rtandards and requirements of the Uniform Guidelines as specified

in paragraph 3. Certifications from such new rligibility lists

shall be consistent with the goals for the zertif!cation of

blacks as act forth in paragraph 24 Selou.

7. The ?ersonnel 3oard may continue :o administer the 20-3

firefighter test and ',he 10-C police oLf!c~r test ?covided that

certification6 are in compliance vith this Court's Order of Jan-

uary 10, 1977, which is incorporated herein as part of this Con-

sent Decree. The plaintifEs reserve the right-to petition the

Court for supplemental relief under that Ocdec as incor?orated

herein in the event that the percentage of black applicants Eor

police off icer/deputy sheriff positions falls below 358 and the

percentage of black applicants for firefighter postions falls Sc-

low 259.

C. High School Zducation Requirements

8. The Personnel 3oard ahall no longer require that appli-

cants for the jobs listed below possess 3 high school diploma (or

G.E.D. equivalent) in order to be eligible to be considered Eor

employment in those positions, unless the Personnel aoard can

demonstrate in accordance with the provieions of paragraph 3 oE

this Decree that such select ion criteria comply vith the require-

ments of the Uniform Guidelines.

1.

Zoo Xeeper

2.

Eng inter i nq Aide

3.

Firefighter

4.

?over Distribution Belper

5.

Police 3 a d i o Dispatcher/Radio Dispatcher

6.

Wasto water Treatment Plant O ~ e r a t o r

D. Promotional ?otential 3atfnqs

9. The Personnel 3oard may continue :he gse of its current

promotional potential rating system in departnents where it is

shown to have no adverse impact. The 3oard shall discontinue the

use of its current aromotional potential rating system in the

following departments of the following jurisdictions vhere such

ratings have been demonstrated to have had an adverse impact on

blacks.

Deuar tment

City of Birmingham City of Sirmingham City of Sirmingham City of Sirminqham Jefferson County Jefferson County

Streets & Sanitation Police :ire ?arks ; 3ecreation Cooper Green Zospital General Services

LO. T h e P e r s o n n e l Board f u r t h e r agrees t o discontinue t h e
use of its current promotional potential cating system to determine eligibility for promotion in any other hpartment where based upon any two successive rating cycles (one cycle consisting o f 6 months) there is e v i d e n c e of adverse impact against blacks. In determining adverse impact under this ~ u b p a r t the parties agree to rely upon section 4D of the Oniform Guidelines.
11. If the P e r s o n n e l Board s e e k s to institute any new promotional potential ratfng system, it ahall first b e instituted on an experimental basis in a department or departments selected by the Personnel 3oard. As s o o n as d a t a becomes available, the Personnel aoard shall serve upon counsel for the plaintiffs a report reflecting the impact of the system o n blacks. This report shall be submitted in conformity with the reporting rcquiroments of Baragraph 50 below.
If such report discloses that t h i s new zating system has a n adverse impact o n b l a c k s , t h e n the ? ~ r s o n n e l3 o a r d shall, a s s o o n as practicable, serve upon counsel for the plaintiffs a copy of any studies and aupport data bearing gpon the validity of this system under the Uniform Guidelines. CompLiance vith the zequirements of this paragraph shall not relieve the Personnel Board or a defendant jurisdiction from any liability under Title VII and this Decree w h i c h s a y r e s u l t from :he interim or pecnanent use of a new rating 3yetem w h i c h h a s an a d v e r s e impact o n blacks.
12. Should any o f t h e j l a i n t i f f s have objection t o any s u c h promotfonal potential rating system, they may file such objection vith the C o u r t w i t h i n 60 d a y s o f t h e i r receipt o f t h e documents identified in ~ a r a g r a p h11 above, or v i t h i n 60 d a y s of their receipt of copies of the ratings for ?he first tvo cating cycles. If such an objection is Ciled, the Personnel 3oard shall not utilize or s h a l l c e a s e utilizing any such ~ r o m o t i o n a lp o t e n t i a l rating system unless and m t i l approved by the Court.

. E. Time I n Grade Requirements For Promotions I n P o l i c e , Sheriff and F i r e Department Positions

13 ( a ) . The P e r s o n n e l , Board s h a l l n o t require-police o f f i-

c e r s and d e p u t y s h e r i f f s Co s e r v e more t h a n t h r e e y e a r s u n i n t e r -

rup:ed s e r v i c e in r a n k ( o r two y e a r a u n i n t e r r u p t e d s e r v i c e i n t h e

r a n k f o r c a n d i d a t e s vho have zwo y e a r s o f c o l l e g e c r e d i t s ) i n o r -

-

der t o be e l i g i b l e t o take the promotional examination f o r police

sergeant or sheriff'e sergeant. nor shall it require police ser-

g e a n t s and d e p u t y s h e r i f f s e r g e a n t s t o s e r v e more t h a n two y e a r s

u n i n t e r r u p t e d s e r v i c e i n r a n k in o r d e r t o b e e l i g i b l e t o t a k e t h e

promotional examination for police lieutenant or s h e r i f f ' s lieu-

T e n a n t . - b p l o y e e s -ah0 have o b t a i n e d p e n a n e n t s t a t u s a s p o l i c e

l i e u t e n a n t o r s h e r i f f ' a l i e u t e n a n t s h a l l a o t be deemed i n e l i g i b l e

f o r promotion t o t h e n e x t h i g h e r r a n k b a s e d upon any minimum

l e n g t h o f s e r v i c e o r t i m e in r a n k . The ? e r s o n n e l Board a g r e e s

t h a t i t s h a l l n o t announce a xew p r o m o t i o n a l e x a m i n a t i o n f o r 20-

l i c e sergeant o r s h e r i f f ' s sergeant f o r the City of 3imingham o r

Jefferson County f o r a period of a t l e a s t one year following the

entry of t h i s Decree.

t 3 ( b ) . The Fersonnel 3oard s h a l l not r e q u i r e f i r e f i g h t e r s

t o s e r v e s o r e than two p e a r s u n i n t e r r u p t e d s e r v i c e In rank i n o r -

der to 3e t l i g i b l e t o zake ?he promotional examination for the

? o s i t F o n of f i r e l i e u t s n a n t . Zmployees uho Save a b t a i n e d p e r -

manent s t a t u e a s f i r e l i e u t e n a n t o r f i r e capcain anal1 not be

deemed i n e l i g i b l e f o r promotion t o t h e next 'nigher r a n k based

upon any ainimum l e n g t h o f s e r v i c e o r time in r a n k .
. 1 3 (c) For p u r p o e e s of subparagraphs ( a ) and (b) t h e term

" u n i n t e r r u p t e d s e r v i c e " o h a l l i n c l u d e any Zime s p e n t a s a p t o b a -

tionary employee.

F. H e i r h t - Y e i z h t 7 e a u i r s e n t s

14. The ? e r e o n n e l 3oard s r e v i o u a l y d i s c o n t i n u e d t h e u s e of

~ i n i a u mh e i g h t end weFght r e q u i r e m e n t s a s s e l e c t i o n c r i t e r i a f o r

any c l a s s i f i e d s e r v i c e ? o e i r i o n . The P e r s o n n e l a o a r d may con-

= h u e t o administer i t s c l a s s A , c l a s s 3 and class C physical

standards f o r c l a s s i f i e d service positions ?rovided thac no mini-

mum h e i g h t o r sinFmum -9eight r e q u i r e m e n t s a r e f o l l o w e d .

G. E l i g i b i l i t y To Apply F o r P r o m o t i o n s To C e r t a i n J o b s 15. The P e r s o n n e l Board may p r e s c r i b e t h a t i n c o m b i n a t i o n w i t h
o r i n l i e u of taking a promotional examination forLthe positions of P u b l i c Works S u p e r v i s o r , S a n i t a t i o n f n s p e c t o r O r C o n s t r u c t i o n Supervisor t h a t applicants for such positions be required successfully t o complete a job r e l a t e d t r a i n i n g program o f - n o more t h a n 12 weeks d u r a t i o n for t h a t job. T h i s program may b e e x t s n d e d f o r i n d i v i -
C-
d u a l s who f a i l ~ ~ c c e s s f 9 1 ltyo c o m p l e t e s u c h t r a i n i n g w i t h i n t h e p r e s c r i b e d t i m e . Such program is t o be under t h e d i r e c t supervision of t h e Personnel 3oard as t o design, content, and r e l a t e d logist i c s . If any tests a r e used and administered a s p a r t of such program they s h a l l be designed and administered i n accordance with t h e p r o v i s i o n s of paragraph 3 above. The Fersonnel Board nay u t i l i z e t h e resources of any of t h e s e p a r a t e j u r i s d i c t i o n s s o a f f e c t e d i n t h e preparation and conduct of such t r a i n i n g program. The Personnel Board nay a l s o i n s t i t u t e t r a i n i n g programs f o r c l a s s i f i e d o r unclassified employees i n o t h e r positions identified i n paragraphs 16 through 20 below, provided such training programs a r e established and implemented i n accordance with the p r o v i s i o n s of t h i s paragraph. S l i g i b i l i t y f o r any t r a i n i n g 2rograms e s t a b l i s h e d by t h e 3oard under t h i s p a r a g r a p h s h a l l be open t o 51: employees i n t h e l o v e r r a t e d c l a s s i f i c a t i o n s a s s p e c i f i e d by ? a r a g r a p h s 26 'Arouqh 2 0 below. C a n d i d a t e s :or such t r a i n i n g who a r e amploged i n t h e c l a s s i f i e d o r u n c l a s s i f i e d s e r v i c e a h a l l n o t be r e q u i r e d t o i n c u r any reduction i n t h e i r hourly o r salar i e d wage r a t e s o r any l o s s c~fs e n i o r i t y I n o r d e r t o r e c e i v e such t r a i n i n g . Any t r a i n i n g programs e s t a b l i s h e d by t h e P e r s o n n e l Board u n d e r t h i s ~ a r a g r a p hs h a l l n o t b e u s e d o r m a i n t a i n e d s o a s t o i n t e r f e r e w i t h t h e 3 o a r d 0 z a b i l i t y t o meet the c e r t i f i c a t i o n goals set forth i n 2aragraph 24.
1 6 . In o r d e r t o a p p l y t o t a k e a p r o m o t i o n a l e x a m i n a t i o n i n t h e j u r i s d i c t i o n where employed f o r the ? o s i t i o n of P u b l i c works Supervisor o r Construction Supervisor, each applicant must Save p e r m a n e n t a t a t u s i n o n e 3f t h e f o l l o w i n g c l a s s i f i c a t i o n s : Truck D r i v e r , Refuse Truck D r i v e r , Labor S u p e r v i s o r , Heavy Zquipment

Operator, or Construction Equipment Operator. To apply to take

the promotfonal examination for the position of Sanitation In-

spector, an employee must have permanent statlls as a Truck

Driver or Semi-skilled laborer.

17. I f the Personnel aoard establishes a classification of

Refuse Collection Supervisor, then promotional eligibility shall

be limited to employees with permanent status aa Truck Driver and

Refuse Truck Driver. Certifications to such classif i-cations

shall be in accordance with the goal for Publfc Works Supervisor

as set forth in paragraph 24. The pay grade and steps within

grade for that classification shall be set and rnafntained at no

less than the pay grade and steps within grade for the classifi-

cation of Public Wotks Supervisor. The Personnel aoard may, if

justified by future pay plan audits, raise the Refuse Collection

Supervisor classification to a pay grade higher than that of Pub-

. lic Works Supervisor. If a Refuse Collection Supervisor position

is established in the City of aixaingham, the number of Refuse

Collection Supervisors shall Se at ieast two fifths (2/5ths) o f

the total aumber of Public aorks ;upervisor -sitions In the City

-

of Jirmingham.

.-

'

,' , . l L

.'

18. The hrsonnel 3oard shall persit any employee who has

worked full-time in an unclassified laborer position for twelve

. ..
9 , -
/,

i : :L .

. consecutive months to apply to take a promotional examination in /' ?,the furiadiction vhere employed :or the Eollovfng classifica-

tfons: Semi-skilled Laborer, Truck Driver, Refuse Truck river ,

Equipment Service Worker, Automot!ve Mechanic Selper. As used in
!i this paragraph, the term Laborer shall include the elassifica-

> o n 6 of 3uilding Service Xorker, Laborer and Xefuse Collector.

19. The Personnel 3oard zhall ?ernit m y employee who has

obtained permanent status as 3 Semi-skilled Laborer or Truck Jri-

ver to apply to take a promotional examination i n the jurisdfc-

tion where 5mployed Tor the folloving classifications: Truck

Driver, Refuse Truck Driver, Labor Supervisor, Xeavy Zquipment

Operator, qutpment Service :+orker, Automotive .Yechanic 3elper.

20a. he Personnel Board rhall permit Any employee who has

Truck Driver, Or Labor Supervisor to apply to take a promotional

examinatipn in the jhriadiction where employed for the classifi-

eation of Construction Equipment ,rator.

In addition, er,-

ployres of the City of Birmingham who hare obtained permanent

as truck drivers hall also be permitted to apply to take
I
the promotional examination for Construction Equipment Operator
/
in Birmingham.

20b. The Perronnel Board agrees that it shall not certify

a any candiqates for permanent, full time positions with the City

\

I

of Birmingham until after this Court grants final approval to
Cc--

this Consent Decree in Any of the following positions: Public

V '

I Works Supervisor, Construction Superriser, ~onrtruction Equip,-

I
,

ment

Operator,

Labor

Supervisor,

Reavy

Equipment

Operator,

or

Refuse Truck Driver.

2 1 . Attached as Appendix A to this Decree is'a list of in-

cumbent employees of the Streets and ~ s n i tta'ion Department of the

City of Birmingham. Immediately upon final ipproval of this Con-

Bent Decree by the Court, those individuals shall be certified

for promotion to the first vacancy in the Streets and Sanitation

Department in a permanent, full time pos'ition in the job listed

- next

to

their

names.

Such

individual-s-.

rh.-s-l.l-.-

not
.-..

-b-e..-re-q.u.i.red

to

take any furth-e.r.-.-p.r. omo.tional examinations or training ,in order to

be certified for -pyorno-ti.on.. u.n.der -this paragraph. As future

vacancies arise in such jobs, the Board shall continue to certify

these individuals for promotion until each such individual is

promoted to such job, or declines an offer of promotion-to -such
job. f t any individual identified in Appendix A declines an
.- offer of promotion by the City of Birmingham to. the job listed
n_xt to his name, the Personnel Board shall be under no further

obligation to conhider tbat indi~idualas eligible for priority certification for prcmotion under the terms of this paragraph.

Bowever, this rhall not preclude or in any way adversely affect

the right of any nuch perton to apply for future promotional

opportunities in a classified servtce position under the Person-

n e l Board's n o r m a l promotion procedures a s modifled by this Con-

sent Decree.

111. SEX RESTRICTIONS IN JOB ANNOUNCEMENTS AND CEXTIFICATIONS

-

22. T h e P e r s o n n e l Board shall not restrict any j o b announcements or certifications on the basis of sex except that the

Board may continue to certify aales to s u p e r ~ i s emale juvenile

offenders at the Jefferson County Detention Home. The Personnel

Board may establish a special nedical examination to be given to

applicants for nurses aide and laundry worker positions. Such

e x a m i n a t i o n a h a l l b e used eolely to d e terrnine vhether applicants

for such positions are physically qualified to ?erform the duties

o f those jobs, and it s h a l l not be used t o discriminate in pur-

pose or effect against female applicants.

IV. GOALS 3 3 R 3LACXS AND WOMEN
@ The parties to t h i s Consent Decree recognize that the

decision to employ persons certified by the Personnel Board is

left t o the sole discretion of the appointing authority of each

jurisdiction. For this reason, the ?ersonnel Board agrees that it will continue to certif-r blacks md* i n - w c e with

the goals of t h i s Consent 3ecree to each 3 F bhr iurisdicttons

currently served by the ?rrsonnel Board until such time as the

employment o f blacks in the jobs identified in paragraph 24 and

o f w o m e n in the j o b s identified in paragraph 25 in each jurisdic-

tion approximates t h e respective percentages in the civilian la- , Sor force of J e f f e r s o n County as reflected by the 1970 F e d e r a l

Census. T h e parties agree to recogni z e any chanqes in those per-

centages which aay come about as a result of the final publica-

t i o n o f the 1 9 8 0 Census.

24. S u b j e c t t o the availability sf qualified black sppli-

c a n t s , the I e t s o n n a l Board shall establish and attempt to meet an

a n n u a l g o a l o f c e r t i f y i n g to each of the jurisdictions currentiy

served by the aoard black applicants at the rates set forth below

o r at :he :ate of Slack representation among applicants w h o meet

j o b related requirements t o apply for such jobs, whichever is

higher. The parties preserve the right t o adjus. t--, by agreement,
any o f those goals vhere it can be shown that a professional de-

gree, license or certificate is required to perform the duties of

any o f the jobs referred to in this paragraph, and that these an-

nual certification goals d o not reasonably reflect the percentage

o f qualified blacks in the relevant labor market who possess such

degrees, licenses or certificates.

Job Classificat!on

Certification Goal

Accountant Account Clerk Animal Control Officer Aud i tor Automotive Mechanic Construction Equipment Operator Engineer ing Aide
Heavy Equipment Operator Intermediate Clerk Labor Supervisor Public Works Supervisor
(including Construction Supervisor and Landfill Supervisor) Refuse Truck Driver Revenue Examiner Secretary Senior Clerk
Stenographer Truck Driver Waste Water Treatment
Plant Operator Zoo Seeper

With regard to certifications to the jobs of Police Sergrant and

Sheriff's Sergeant, the ?ersonn-el 3oard aorees k? certify auffi-

c i e n t n u m b e r s of -acks

50 meet any promotion o o a l s for

t h i s j o b establi-shed by a C o n s e n t Decree or litigated Decree se-

t h e n the United States and/or any other 2laintifF and any other

defendant in these consolidated actions in accordance with the

p r o v i s i o n s o f paragraph 34 belov.

25. S u b j e c t to the availability o f qualified female appli-

cants, the Personnel 9oard shall establish-and attempt U e e t an

annual goal af certifying to each af the jurisdic_tionarur-rently

served by the Board qualified female applicants at the rates set

f o r t h * ! w C h e - ~ a t e ?£ female :eercsentat!on among appli-

cants who meet the job related requfrements to apply for such

j o b s , vhichevet i d h i n h e t . The parties ?r%serve :he r i g h t t o adjust. by agreement, any o f t h o s e goals vhere !t =an be shown that

a proEessiona1 degree, licenser or certificate is required to

- perform the duties o f any of the jobs referred to in this para-

graph.

ld-9-

Job Classification

Certification Goal

Drafter

15%

Engineering Aide

1st

Zngineering Drafter

15 &

Engineer ing Technician

1st

Firefighter

10%

Graduate Gng ineer

108

m c e Officet/Deputy Sheriff

251

Police 3adio Dispatcher*

20 t

Radfo Dispatcher*

201

Revenue Zxaminer

20%

Security Offlcer

25 %

Sr. Civil Engineer

101

Stores Clerk

20 1

Traffic Planning Technician

10 t

~ d r t i fication g o a l only applies to those -Jurisdictions where this job has Seen previously restricted to nales only. Those jurisdictions are: Zultondale, Gardendale, Hidfield, Mountain arook and Tarrant.

26. I n tilling any vacancies covered by paragraphs 24 and

2s above, the appointment of a >lack female shall count toward

both black snd female intetim certlfication goals.

27. T h e parties recognize that the certification goal set

by this Decree For female firefighters say not acturately reflect

the availability of female applicants for this job assuming full

compliance vi th the affirmative recruitnent obligations set forth

in ?aragraph 29 below. Accordingly, two years after the date of

entry af this 3tCr5e the 2ar:ies shall review the efforts of t h e

Pcraonnel 3oard to recruit f e m a b firefighters (as well as any

such recrui tment efforts conducted by any of the jut isdictions

served by the 3oard1, together with female applicant flow data

for that job in order to determine whether the female certlfica-

tion goal should be raised or lovered to nore accurately reflect

the rvailabillty of females for this job.

28. T h e ~ a r t i e sfurther agree to cansider the establishment

of an interim certification g o a l for females in 'he j o b s listed

below t w o y e a r s Eolloving the date of rntry of this Secrer. At

that time, if zecruitment afEucts and/or applicant Llov data sup-

port it, the ?artice s h a l l negotiate sppropriate Lnterfm certiff-

cation goals I o t vomen in any or all of such fobs.

Building Inspectoe Carpenter Electrical Inspector Electrician Gas Inspector Hains Service Worker Maintenance 2epair Worker Painter Power Distribution Helper Plumber Plumbing Inspector Refrigeration & Beating Mechanic Semi-Skilled Laborer Voting Machine Mechan ic Waste Water Treatment Plant Operator Waste Water Treatment Plant Wor ker
V. RECRUITMENT
29. The Personnel Board shall continue to operate a compre-
hensive recruitment program designed to m e t the needs of the
eervice and s p e c i f i c requirements .set out in this Consent Decree.
T o meet these purgoses. the Personnel Soard, in addition to its
own :esourees, shall have access to and utilize what other zo-
sources aay be deemed appropriate and available from each and
every jurisdiction and department thereof comprising the merit
system subject to the Civil Service Act and terms of this Decree.
30. T h e ?ersonnel aoard w i l l c o n t i n u e to 5ngage in affirma-
tive recruitment activities which are consistent vith its abliga-
tion t o take all reasonable steps 50 reach the goals set forth Ln
this Decr?e, and w i l l insure that the Personnel 3 o a r d 1 3 ~ l f c yo f
affirmative recruitment and non-discr imination in hiring is cm-
phasized to blacks and women. X h e r e v e r feasible, the 3oard s h a l l
u t i l i z e m u s p a p e r , r a d i o and other media a f m a s s circulation in
an effort to attract qualified applicants. The 3oard shall main-
tain regular contact vith area high schools. technical and voca-
t i o n a l schools, :he Alabama Department o f Smployment Security and
minority and vomen's organizations such as the Urban League and
the XAACP. T h e Joard s h a l l c o n t i n u e to notify such schools and
o r g a n i z a t i o n a of anticipated f o b vacancies in the classified ser-
vice and shall send to them examination announcements suf fi-
c i e n t l y in a d v a n c e of any scheduled examination to ?tovide such
s c h o o l s and o r g a n i z a t i o n s a t e a s o n a b l e ooportuni ty to r e f e r
qualified minori ty and female applicants. Such announcements

s h a l l c o n t i n u e t o specify that the P e r s o n n e l Board fs an e q u a l opportunity employer.
31. T h e Personnel Board shall continue to h s u r c that promotional examination announcements and announcements of training opportunities are issued and posted in conspicuous places within each jurisdiction and department reasonably in advance of any scheduled promotional examination or training opportunities in order to provide incumbents with a fair opportunity to apply for promotion or tralninq and to adequately prcpare for the promot i o n a l examination or training. In this regard, t h e Personnel Board shall insure that all persons eligible for training programs and promotional examinations have equal access to all books, articles, pamphlets, and ~ t h e rsater ials which are used for preparation for such examinations or training, and that these materials are made available to such persons reasonably in advance of any scheduled promotional examinations or training.
VX. THE 3NCSASSIPIED SERVICE 32. Effective September 1, 1981, the Personnel Board s h a l l recommend to the appropriate jurisdictions that all unclassified laborer positions with the exception of seasonal or tempocary manual labor positions be brought into the classified service w i t h a11 attendant rights, benefits, wages, and 7r fvileges ?res e n t l y accorded Co class if ied employees. The ?ersonnel 3oard w i l l recommend that each employee vho snters the classiffed service p u r s u a n t t o the provisions of this 2aragraph s h a l l be credited in his or her classified service ?osition with all seniority proviously accrued in the unclassified s e r v f c e aa determined Sy the r e c o r d s sf t h e governing body. Further, s u c h seniority w i l l be credited for all purposes including, but not limited to, layoff, pension, vacation and sick leave. Such credited seniority shall not require under this Decree any ?ayments by a juriedlction to a pension fund in excess of any amounts ?reviously ?aid into such fund o n behalf o f the afEccted employee. areaks in service shall not be computed in establishing an employee's seniority rights under this paragraph unless such break in service was 3ccasioned by documented illness 3r other documented ?hysical disability.

33. All current classified employees w h o pceviously entered
the classified s e r v i c e from an unclassified labor-er p o s i t i o n ei-
ther through promotion or'reallocation shall likewise be credited
immediately upon the entry of this decree with all seniority pre-
viously accrued in the unclassified service. Such seniority s h a l l be computed and credited in the same manner as provided for in paragraph 32.
V X I . ADOPTION OF WPTRMATIVE ACTION P U N S 34. If a jurisdiction which i s a defendant in these a c t i o n s adopts, and the Court approves, a Consent Decree with the Unitod S t a t e s and/or any other plaintiff in these actions, or if :he C o u r t enters a litigated Decree in resolution of the claims of employment discrimination of the Unit5d States and/or any other plaintiff in these actions, which Decree establishes Siring and/or prom o t i o n goals Eor blacks or women for positions in t h e classified service, the Personnel Board shall seek t o insure that it rec r u i t s and certifies sufficient numbers of qualified blacks and women t o afford any such jurisdiction a reasonable o p p o r t u n i t y t o m e 5 t the goals of its Consent Decree. As a m e a n s o f insuring that sufficient numbers of blacks and women are certified to neet the g o a l of this Consent Decree or a Consent Decree or litigated Decree vith a defendant furisdiction. the Zersonnel 3oard aay certify at least three rligibles for any j o b vacancy in :he slassified aervice and, whet? necessary t o m e t such goals, may expand further the number of eligibles certified for a particular job vacancy. The Personnel aoard ahall be afforded a reagonable opport u n i t y to reviev a Consent Decree o f another d e f e n d a n t prior t o i t s approval by t h i s Court. I f the 3oard determines :hat even if it complies fully vith the recruitnent and testing provisions of this Decree, it vill not be able to Certify sufficient numbers of qualified blacks or women to afford another deiendant a reasonable opportunity to m e t a particular goal established by its Consent decree, the aoard aay nove the Court to z e l i e v e it of any liability under this 2aragraph conc?rning that ?articular goal.

The Board may not seek relief from liability under this paragraph concerning any goal (s) set by this Consent Decree or a Consent
Decree o f a defendant jurisdiction for any of th-obs identified in paragraphs 7, 24 and 25 of this Decree.
35. I f a defendant jurisdiction tails or refuses to enter into a Consent Decree with the United States and/or any other
- plaintiff in this action, the Personnel 9oard retains the right to consider and approve or disapprove any aEEirmative action plans which say be submitted to the Personnel 3oard by any defendant jurisdiction pursuant to Xule 4.5(h) of the Board's Rules and Regulations. The parties :ecognlze that any such affirmative action plans, if approved by the Personnel Board, shall not constitute a waiver by the ?laintiffs of any of their claims o f employment discrimination or appropriate relief against any such defendant jurisdiction in these consolidated actions. VIII. INDIVIDUAL 2ELIEi A. Back Pay 36a. The Personnel aoard agrees to pay the sum of $35,000 in full and complete settlement of the 2laintif fs ' claims agalns t the Personnel 3oard for monetary relief. The Board shall deposit this mum in a trust account bearing interest at commercial rates within thirty (30) days after this Court gives provisional approval to this Consent Decree. In the w e n t the Court refuses to give final approval to the Decree, this sum shall be returned to the Personnel Soard with any interest accrued on such aum. This sum shall be used to compensate the class o f blacks identified in Appendix a of this Decree. Back pay relief for the blacks identif itd in Appendfx X of this Decree will be afforded under the Consent Decree vith the City of airmingham. The members of the subclass identified in Appendix 3 d o not wave any rights they may have for monetary or ~ t h e rrelief against any other defendants in these consolidated actions other than the ?ersonnel 3oard.

36b. Each member of the class identified in Appendix B who
files a timely response to the notice of right . t _ q p a r t f c i p a t c in
the back pay settlement and this Decree (Appendix F) , shall re-
ceive a pro rata share of the $35,000, provided that no such individual payments shall be made to any such person until that individual has filed with the Clerk of the Court a signed and notarized releaae in the form set forth in Appendix C. 3. Relief For Named Privato ?laintiffs
37. The plaintiffs and the Pe:sonnel 3oard acknowledge that Ida McGruder, John Martin, Wanda Thomas, and 2ugene Thomas (all named plaintiffs in Martin, ot al. v. City of 3irmingham, et al.) (Civil Action So. 72-17-51 vere ?reviously certified as qualified for certain positions with the City of Slrmingham and/or Jefferson County. In the event that the City of Birmingham and/or Jefferson County agrees to offer %nployment opportunities to any of the sbove named individuals, the Tereonnel Board authorizes their hiring without need for further certification. C. Notification of ilight To Present A Claim
for individual 2elief 38.. Within ten 110) days after the Court grants final
approval to this Consent Decree, vritten notices vill be given by the Tersonnel Soard by certified mail to each af the class members identified In Appendix 3. Notice to such Individuals shall be sent to their last known address. The form of the notice is attached as Appendix D. , ?roof of claim forms (attached as Appendix 2) will be included with the individual notices to class members.
39. Zach class =ember shall be required to file his or her proof of claim form with the Clerk of :he Court within a date no sore than sixty ( 6 0 ) days from :he date of nailing. Within forty-five ( 4 5 ) days after receipt of all timely ?roof of claim forms, counsel for the plaintiffs will submit to the Court and counsel for Psr~onnelBoard a report listing ~ a c hclass member vho, in their view, is intitled to larticipate in the Sack ?ay arovisions of 'his Consent Decree. In no-event vill the sum of

the individual monetary awards to be made under this Decree exceed the sum of $35,00O,plus any interest accrued theroon.
40. within twenty (20) days after the su?Jmission o f the plaintiffs' report, the Personnel Board shall notify by certified mail each of the class members who filed a timely request to be considered for individual relief of the proposed awards of relief t o such person, i f any. This notice shall also inform each o f
t h e s e individuals o f their :ight t o object to the relief, if any,
as contained in the report, and that they must file their object i o n in writing with t h e Clerk o f the Court within fifteen (15) days of their receipt of thie notice.
41. The Court s h a l l thereafter, and as soon as practicable, schedule a hearing at vhich it will rule upon any objections to the report vhich have been timely filed. At the conclusion of such hearing the Court shall determine vhether to give final approval (or approval with aodifications) to the awards of individual relief. D. Implementation o f individual RelieE
42. Any p e r s o n e n t i t l e d t o individual relief under this Dec r e e , in. order to o b t a i n s u c h relief, s u s t sign a notarized r e lease which will be provided that person 3y the Personnel Board f n accordance with 2aragraph 43, Lnfra, and return such notarized r e l e a s e to :he 3oard v i t h i n thirty (30) days o f that p r s o n ' s zec e f p t thereof. Any 3uch Lndividual w h o either does not sign such a notarized releaae at, alternatively, and absent good cause, d o e s aot return s u c h s i g n e d n o t a r i z e d release t o t h e 3oard within thirty (30) days o f that person's receipt thereof, shall be deemed t o have waived h i s or her entitlement t o ouch relief. Such release a h a l l ?rovide that t h e relief to which that person is entitled under this Decree, if acceptcd, shall be in full and Z i n a l settlement of any and a l l c l a i m s against the 3oard based u p o n a l l e g a t i o n s of r a c i a l discrimination occurring prior to the date such release la signed. Such release shall be in the form exemplified by Appendix C attached hereto.

43. The Personnel Boar2 s h a l l send a n o t i c e t o each o f t h e persons cntitled t o individual relief informingthen that the C o u r t h a s g i v e n f i n a l a p p r o v a l t o t h e i r r i g h t t o such r e l i e f und e r t h i s W c r e e . T h i s n o t i f i c a t i o n s h a l l b e i n w r i t i n g , b e made by c e r t i f i e d mail, r e t u r n r e c e i p t requested, and s h a l l be approved as t o substance and form by t h e p l a i n t i Z f s p r i o r t o maili n g . Included v i t h such n o t i c e w i l l be a copy of t h i s Decree and t h e r e l e a s e form a s d e s c r i b e d i n paragraph 42 above. Such n o t i f i c a t i o n a l s o s h a l l s t a t e t h a t i f t h e r e c i p i e n t h a s any q u e s t i o n s a b o u t t h e n o t i c e , h e o r s h e may c o n t a c t c o u n s e l f o r t h e Personnel Board o r counsel f o r t h e p l a i n t i f f s vhose names, a d a r e s s e s and phone numbers s h a l l b e l i s t e d i n t h e n o t i c e , o r t h e i r ovn counsel.
44. As t h e Personnel 3oard receives releases from t h e c l a s s m e d e r s e n t i t l e d t o a j a c k pay award under tfiis Decree, it s h a l l i m e d i a t e l y i s s u e a check drawn from t h e Sack pay fund sstabl i s h e d by +his Decree t o such person i n t h e amount of h i s o r her back ?ay avard.
I X . NOTICZ OF PROVISIONAL APPROVAL O F THE CONSLDT 3ECZE AND IAIiZNESS 3EARING
J5a. X i t h i n t e n (10) d a y s a f t e r p r o v i s i o n a l a p p r o v a l 35 t h i s C o n s e n t D e c r e e by 'he C o u r t , n o t i c e v i l l be i s s u e d by ? u b l f c a t i o n i n t h e Sunday e d i t i o n of t h e 3irriinghan N e w s f o r two consecutive veeks, and i n t h e 3irmingham Times on one weekday d i r e c t e d t o a l l i n t e r e s t e d r e r s o n s informing them af t h e q e n e r a l p r o v i s i o n s o f +-his Decree an< of t k e i r r i g h t t o r e v i e v a c o p y o f t h e Decree which w i l l b e on f i l e v i t h t h e C l e r k o f t h e Court. Within t h e s a w ten (10) day period. individual notice w i l l
a l s o b e g i v e n o f t h e g e n a r a l >revisions o f t h i s 3 e c r e e by t h e
P e r s o n n e l 3 o a r u t o 5 c s u t c l a s s e s i d e n t i f i e d i n Appendix C. The
c o s t o f n a i l i n g an& > u t l i c n t i o n o f a n y n o t i c e s zo b e n a d e u n d e r
t h i s 3 e c z e e t h a l l Le ? a i d by '-he P e r s o n n e l W a r d . 3 0 t h t h e n o t i c e s by p u b l i c a t i o n and 'he i n d i v i d u a l n o t i c e s shall i n f o r n persons t o vhich such n o t i c e s a r e d i r e c t e d of theaz r i g h t t o be

heard and t o file objections, if any, to this Decree. Such

objections must be filed with the Cletk o f the Court by a

date t o be set by the Court ln Its Order granting

provisional approval t o this Decree. The Court shall thereafter,

and o n a date(s1 t o be fixed by the Court in its Order granting

-

provisional approval to the Decree, schedule a fairness hearing at which those persons who file timely objections to the Decree

will be heard. At the close of such hearing, or as soon as prac-

t i c a b l e thereafter, the C o u r t s h a l l rule upon such objections and

grant final approval of disapproval to this Consent Decree. The

Court ahall, however, withhold final approval of the awards of

individual relief to be made under this s c r e e (except the relief

to be granted the individual named plaintiffs in the Hartin case

and the certifications for promotions to be aade to the indivi-

duals named in Appendix A) until those individuals who file a

timely r e p o n s e t o the n o t i c e of right to present a claim for ce-

l i e f under paragraph 39 a b o v e are notified of their individual

awards, if any, and are afforded an opportunity to be heard and

t o file any objections they nay have to those awards.

X . RECORDS AND X P O R T S

17. W i t h i n 50 d a y s o f the entry of this Consent 3ecree and

thereafter semi-annually the ?ersonnel 3oard 3hall 2rovide coun-

s e l for the ?lafntfffs with the following information:

a. X summary report (or computer tape) showing

the total number o f qersanent, non-brobationary em-

ployees by r a c e and sex in both the classified snd un-

c l a s s i f i e d s e r v i c e in $ach job c l a s s i f i c a t i o n of each

d e p a r t m e n t for c a c h o f the j u r i s d i c t i o n s currently

served by the Personnel 3oard.

b. X s u m m a r y i e p o r t (or c o m p u t e r tape) ahowing

the t o t a l n u m b e r of ~ r o b a t f o n a r y +mployees by race and

sex in the classified aervice in each job classifica-

t i o n of cach d e p a r t m e n t :or paeh of the jur!sdietions

currently served S y . the ?ersonnel 3oard.

c. A aummary report (or computer tape) showing

the total number of employees by race and sex employed
-.
under the Comprehensive Employment and Training Act

-A)

in $ach job classification of each department

for each o f the jurisdictions currently served by the

Personnel Board.

d. A summary report (or Eomputer tape) showing -by

race, sex and job title the total number o f persons

certified to and appointed by each department o f each

of the jurisdictions currently eervtd by the Personnel

Board during the reporting period. The Personnel aoard

shall also retain for a period of two years for inspec-

tion at the written request o E counsel for any of

the plaintiffs to the Boardf= legal counsel, copies of

the individual certification sheets vith the indivi-

duals certified and appointed identified by race and

sex from which the above summary reports or computer

tapes are prepared.

e. A summary report (or computer tape) showing

the applicant flow by race and sex tor each job classi-

fication in the classified service. For purposes of

this 3ub~araqraphthe term applicant shall include any

person who files a written application vith the terson-

nel W a r d . Such aummary reports or computer tapes

shall separately identlfy by race and sex the number of

persons vho file written applications with the Person-

nel aoard. In addition, the lersonnel 3oard shall also

retain o n file for a period o f at least 24 months

copies of all poet cards filled out by persons uho ap-

pear at the tcrsonnel a o a r d e s aain office on which they

indicate a desire t o be notified af future ~ x a m i n a t i o n s

for classif~ed eervfce positions. The 3oard shall

record the :ace and s e x of the p e r s o n Eilling o u t the

card at the time it is received.

f. A summary report of the P e r s o n n e l Board's re-
cruitment activities during the reporting perdod which vcre specifically designed to attract qualified black and vomen applicants. Included in such report shall be a list of all minority and/or women's organizations or associations and any professional ~ c h o o l s , colleges, universities or trade schools vhece recruitment elforts ver? aade specifically directed towards blacks and/or vomen. the dates such recruitment efforts vece made, and the jobs for vhicb Slacks and/or vomen were beinq recruited. 48. a i t h i n 60 days o f the entry o f this Consent 3ecree and thereafter zemi-annually, the Personnel aoard shall pravide couneel for the plaintiffs with the following information for each of the j o b s Listed in paragraphs 4 and 5 of this C o n s e n t 3ecree and for the jobs of police of f icer/deputy sheriff, police/sherif f 's lieutenant, police/sheriff's captain, firefighter, fire lieutenant, fire captain, labor supervisoc and public works supervisor.
(a) The total numbers of p r e o n s by race and sex who 3uring the relevant reporting 2eriod applied to be tested m d / o r evaluated for 5mployment.
(b) The total numbers of ?ersons by race and sex w h o 2assed m d v h o failed any such tests and/or cvaluations Eor employment.
(c) The Identification by m m e r a c e and sex of e a c h person selected for a p p o i n t m e n t during t h e reporting period by each o f the jurisdictions currently served by the Personnel 3oard.
(d) ?or any test or selection procedure which v a s administered durinq the relevant zeporting pried ?KOvided 'or above !n any o f 'he j o b s identified 5 y this paragraph, the Personnel aoard shall submit a zeport detailing the manner in vhich such tests or :election procedures vere scored 3r graded lncludinq the impact o f such scoring 3r grading on black applicants, an

analysis of the reliability and standard error of measurernent of the test acores, the mean scorcs or grades of all applicants, w h i t e applicants, and b1a;ks 'applicants, and the standard deviations of the scores or grades of all applicants, white applicants, and black applicants on each such test or selection procedure. If any such. test scores or grades on a eelection ptocedure are used for ranking purposes, such report shall include the raw data of the impact on black applicants of the use of such test scores for ranking purposes together vith an explanation of the ranking procedures. Attached to such report shall be copies of the 5ligibility lists identified by race and sex vhich vert compiled as a result of the administration of any of the t e s t s 3r selection p r o c e d u r e s during the relevant rcporting 2eriod coveted by the report. 49. X i t h i n 60 d a y s of t h e entry of this Consent Decree t h e Personnel Board shall provide counsel for the plaintiffs with the following information vith respect to the 3oard's ?romotional potential.:ating system:
(a) the number o f persons by race, department, job classificstfon and jurisdictfon vho zeceived 3 2roaotional w t e n t i a l rating during the rating period immediately ?receding the entry of this 3ccrec:
(b) t h e number of ?croons by race, departaent, job classification and jurisdiction who scored above and who scored belov the xinimum scort tstablished for promotional eligibility during that rating ?eriod. As new rating c y c l e s are ~ornpleted, t h e 7 e r s o n n e l Board shall. within 50 days of the completion of such cycle, submit to c o u n s e l for t h e plaintiff^ impact data in the form required by subparagraphs la) and (b) above. 50. If the P e r s o n n e l 3oard institut9s a new ?romotional 20-
tential rating system in aceordance vith the ?revisions 3f Tars-
graph 11, the zcports required to be submitted to counsel for the

plaintiffs under that paragraph ahall include the follovfng in-

formation:

. -

(a) the number o f persons by race, department,

and job classif icatlon who received a promotional po-

tential rating during the experimental rating period;

(b) the number o f persons by race, department and

job classification who acored above and who s c o r ~ d - b e -

low the minimum score established for promotional eli-

gibility:
(c) the name, race, department , j o b classi f ica-

tion and promotional potential score of each person vho

received a ?tornotional potential rating during the ex-

perimental rating period. Also included next t o their

n a m e s s h a l l be an identification of the :ace of the ra-

ter or raters who issued that person's promotional po-

tential rating.

51. If the ?er=onnel aoard establishes any training pro-
g r a m s in accordance with the ?revisions of paragraph 1 5 of this

Decree, the 3oard shall y o v i d e counsel for the plaintiffs with

t h e folloving information for each training class:

( a ) The total number of ?ersons by cace, aex, de-

partment and iurlsdiction vbo applied for such train-

ing : (b) T h e total number of persons by race, sex, de-

partment and jurisdiction who were selected for train-

ing t ( c ) T h e total number a f persons, If any. by race,

sex, department and jurisdiction vho vercclisqualified

from or failed to complete the training ?togram:

(d) T h e total number af persons by race, sex, de-

partaent and jurisdiction who successfully completed

such training. 5 2 - ?he ?ersonnel h a r d ;hall retain o n tile snd available

for inspection at the written request a£ any of the ?lalntiffs'

l e q a l counsel ko 'he 3 o a r d 1 s legal t a u n s e l copies 3f all tests.

training and experience evaluations, pcornotional potential ratings, and any other selection instruments together with any documents, forms, reports, statistical compilations and other records which relate to the construction, scoring, use, and validity o f
. -.
such select ion proccdur es 53. The Personnel aoard ahall retain fat s period of tvo
pears on file and available for inspection at the request af any of --€heplaintif t s ' legal counsel sopies of all formal vr 1tten applications for each job in the classified service. If any applicant is determined by the ?ersonnel aoard not to be qualified for employment in the job or jobs for which the applicant has applied, the reasons for such disqualification shall be recorded and kept an file vi th the applicant's application.
XI. ZFFECT OF COMPLIANCO 54. Compliance with the terms and conditions of this eonsent Decree ahall constitute compliance by the Personnel aoard v f t h all obligations arising under Title VII of the Civil Rights Act of 1964, as amended, the State and Local Fiscal Assistance Act of 1972, as amended, the Omnibus Crime Control and S a f e Streets Act of 1968, as amended, the Civil Xights Acts of :a66 and 1871, 42 U . 3 . t . S1981 and S1983, and the Fourteenth Amendment to the constitution of :he Onited States as raised by the ?laintiffs' complaints. Insofar as any of the provisions of this Consent Decree or any actions taken pursuant to such provisions xtay be inconsistent v i t h any state or local civil aervice statute, l a w or regulation. the provisions sf this Consent Decree shall prevail in accordance with the constitut!onal supremacy of federal substantive and remedial law.
XII. MTENTION OF JURISDICTION 55. The Court retains jurisdiction of :his action for such further relief or other orders as say be appropriate. At any time after six : 6 ) years subsequent to the date of :he entry ~f the Cansent Decree, any ?arty to this Decree say move 'he Court upon forty-five ( 4 5 ) days notice to the 2ther, to dissolve this Consent Decree. Zn considering vhether the Consent Oecree shall

be dissolved, t h e C o u r t will take i n t o account whether the pri-
- -.
n a r y p u r p o s e s of t h i s C o n s e n t Decree h a v e been substantially

achieved. Entered and ordered this

d a y of

, 1981.

UNITED STATES DISTRICT JUDGE

AGREED AND CONSENTED TO: For Plaintiff United States:

DATED t

lor the Plaintiffs in Martin, et al. v. C i t y of 3 i r m i n q h a m , et al.:

?or the Plaintiffs in Z n s l e y 3 r a n c h of the H.A.X.C.?., et 31. 7. Seibels, et al.:

Name
Charles Jordan Trennon Nickerson
. Roosevelt Parker
Hose Shine, Jr Charles Boyd Herman Copes Avance Lomax Samuel Bandy A. 8. Campbell Willie Cargill Major Florence Willie Gossum Clyde Bill Arthur Jones Cleo Lewis Alfred Henifield Orman Skinner James Parker, Jr. Char 1ie Simmons

Appendix A

Job

. -

Construction Equipment Operator*

Construction Equipment Operator*

Construction Equipment Operator*

Constructlon Equipment Operator*

Labor Supervisor

Labor Supervisor

Labor Supervisor Public Works Supervfsoc**

-

Public Works Supervieor**

Public Works Supervisor+*

?ublic Wocks Supervisor**

Public Works Supervisor**

Public Works Supervisor**

Public Xorks Supervisor**

Public Works Supervisor**

Public Xor ks Supervisor**

Public Works Supervisor**

ilefuse Truck Driver

Refuse Truck Driver

Certification for promotion shall be to a future vacancy at the landfill unless the individual expresses to the Personnel Board in vriting a desire to be certified for a Construction Zquipment Operator position In another location of the Street and Sanitation Department.
* * Certification for promotion shall be to a future vacancy in a
Public Works Supervisor (or Refuse Collection Supervisor) position in sanitation unless the individual expresses to the Personnel aoard in writing a desire to be certified for a Public works. Supervisor position in another area of the Streets and Sanitation Department. If any such individual indicates in writing that he vould be interested in a Public Works Supervisor position in either sanitation or street construction and street maintenance, he shall be certified to 'he firat permanent vacancy uhich arises in either position Ln accordance w i t h the provisions of 2araqraph 21 of this Decree.

Appendix B A l l b l a c k p e r s o n s who took t h e 10-C Policeman T e s t which res u l t e d i n t h e e l i g i b i l i t y lists f o r p o l i c e o f f i c e r s and deputy s h e r i f f s w h i c h were i n e E f e c t b e t w e e n A p r i l 25, 1 9 7 5 and J a n u a r y 10. 1977 and t h e 20-3 Firef!ghter T e s t which r e s u l t e d i n t h e e l l -
g i b i l i t y l i s t s f o r f i r e f i g h t e r s in e f f e c t b e t v e e n J u l y 8 , 1 9 7 6
and J a n u a r y 1 0 , 1977, who h a v e n o t S e e n h i r e d f a t p o l i c e o f f i c e r , deputy s h e r i f f o r Eir*Lighter positions by a defendant jurisdict i o n i n a n y of t h e s e c o n s o l i d a t e d a c t i o n s o r who s u b s e q u e n t t o t h e e n t r y of t h i s C o u r t ' s O r d e r of J a n u a r y 1 0 , 1 9 7 7 , w e r e h i r e d by a d e f e n d a n t j u r i s d i c t i o n b u t who a a y h a v e h i r e d e a r l i e r b u t f o r t h e i r rank of such e l i g i b i l i t y lists.

Aooendix C

RELEASE

.-.

.

Par and in consideration of the sum of [sum soelled out]

Dollars 1s

) and all other relief to be provided me by the

Jefferson County Personnel Board puf suant to the provisions of

the Consent Decree in i3esolution of Issues Involving the

Jefferson County Personnel Board entered by the Renorable
, United States District Judge, on [ date J

in the consolidated actions o f United States v. J e f f e r s o n County,

et al., C i v i l A c t i o n Nos. 7 5 - P - 0 6 6 6 4 , 74-2-17-S, 71-2-12-5, I

(full name of claimantj, hereby release and discharge the Jeffer-

son County Personnel Board a€ and from all legal and equitable

claims arising out of this action or any other legal, equitable

or administrative claims or causes of action arising out of

alleged racial discriminatlon by the Personnel aoard, in viola-

tion of any Federal, state or local equal employment opportunity

laws, statutes, regulations o r ordinances occur lnq p t iot t o the

date 3f the execution of this Release. t further agree to dis-

continue any ?ending claim or action, vhether legal, equitable or

administrative, alleging race discrimination by the Jef f5rson

County Personnel aoard except with respect to any questions of

attorneys fees and/or costs vhich nay be pending in #aid action.

I carefully h a v e read this Xelease as well as the accompany-

ing Consent Decree entered [ . dat5 ]; I fully comprehend and

understand the contents thereof; and I execute this aelease o f my

own Eree act and deed.

- . Signed this

day of

, 1981.

1Siqnature J Social Secur 1ty Number

-Subscribed and sworn to before xe

this undersigned authority on this

day af

, 1981, to certify

____c

vhlch vitness sy nand and seal ~f sffice.

NOTARY ? U B L i C

APPENDIX O

-

Notice To [Subc:ass definition]:

This announcement is to inform you of your right to pre-

-

- sent a claim for back pay relief under a Connent Decree between
the plaintiffs and the Jefferson County Personnel aoard in the consolidated actions of: Ensley aranch of the N.A.A.C.?. et al. v. Citv of 3irminsham, ct 11., C.A. No. 74-2-12-St. John 'd. Mar-

tin, et al. v. City of jirmingham, C.A. No. 74-2-17-5; and

. ted States of America v. Jefferson County, rt al., C.A. No. '75-P-

0666-5.

If you are a aember of the subclass described in the cap-

tion of this notice you say fill out the attached proof of claim

form and aail ft to the Clerk of the Court for Northern District

of Alabama. Enclosed for your use is an unstampod envelope con-

taining the mailing address of the Clerk of the Court.

If vou wish to ?resent a zlaim for Sack bay relief under

this Consent Decree, vour x o o f of claim form nust be received bv

the .Clerk sf the court by no later than

o'clock an

L

1981. If you do not file this oroof of claim form vith the Clerk

of the Court 3~ that date then, absent qood cause shown, vou will

be deemed to have vaived your right io ?resent 3 zlaim for Sack

zav relief m d e r this C m s e n t Decre5.

After your proof of claim form is filed, you will be con-

tacted by attorneys for the plaintiffs. They will review vith

you your proof of claim form and the relevant facts vhich aupport

your' claim. fiereafter these attorneys will make a determination

of vhether your claim aerits an award of back pay relief m d e r

this Consent Decree.

After final determinations Save been nade of the back pay

awards to be aade under this Consent %Cree, you will be notified

of your individual award, if any. If you do not receive an award

o f individual relief m d e r the Consent Decree, or if you arc not

satisfied ,with :he amount of relief ?rovided to you, you will

have the right :O file an objection to the resolution of your

Please list your:

APPENDIX E Proof of Claim Form

Current Address: Current Telephone Number:
please check the appropriate box or boxes if you fall within either or both of the classes described belov. If you check either of the boxes then please complete this proof o f claim form by supplying the additional information requested below.
[? I sm a black parson rho took the vritten test administered
by the Personnel Board of Jefferson County for the job of police officer. I wish to present a claim for telief under the Consent Decree vith the Personnel Board of Jefferson County.

I am a black person who took the vritten test administered by the Personnel Board of Jefferson County :or the job of firefighter. I vish to 9rcsent a claim for relief under the Consent Decree w'ith the ?ersonnel 3oard of Jefferson County.

If you check either of the boxes above, please indicate in the space provided below whether you vere contacted for an intecview for that job by any o f the pollee or fire departaents of any of the following juriedictions: airmfngham. Jefferson County, Bessemer, Fairfield, Pultondale, Gardendale, Xomewood, ffueytovn, Midfield, nountain Brook, Pleasant Grover Tarrant, Vestavia Bills. If so, please indicate the jurisdictionls) which contacted you.

If you were contacted for an interview by any of the above jurisdictions please indicate In the space provided belov whether

YOU appeared for that interview, the approximate date(s) of such interview, and whether you were offered employment as a police
- officer or firefighter with that juriediction.
Finally, please indicate in the space provided below vhich of the jurisdictions listed above you would have conaldered accepting an offer o f employment with if such an offer would have been made to you. YOU may list as aany jurisdictions as you vsre interested in.
please sign and date this proof of claim form and return it to the Clerk o f the Court in the enclosed self-addressed envelope.
Signature Date:

 
 I·, /-
i ,
j /" ,·-

I __

F I L E D IN THE UNITED STATES DISTRICT COURT

!'OJI 'R'I: JIORTHERN DISTRICT OF ALABAMA DEC 291982

SOUTHERN DIVISION

UNIT[D STATES DISTRICT CO:JRT

-

UNITED STATES OF AMERICA, Plaintiff,

IIORTH£RN DISTRICT Of Ai.lS.\MA

)

JAMES £. YAN~C:CillfT, Cl£RJ\

)

)

CIVIL ACTION NO.

v.

)

75-P-0666-S

)

)

JEFFERSON COUNTY, et al. ,

)

)

Defendants.

)

ENTERED

)

JOHN W. MARTIN, et al.,

)

DEC 2 9 1982

Plaintiffs, v.

)

) CIVIL ACTION NO.

)

74-P-0017-S

)

)
CITY OF BIRMINGHAM, et al., )
_________D_e_fe_n_d_a_n_ts_. _______,))

CONSE~T DECREE WITH JEFFERSON COUNTY
'l'he plaintiffs filed their complaints in these consolidated actions against Jefferson County and others to enforce the provi5ions of Title VII of the Civil Rights Act of 1964, as amended by the Equal Employtnent Opportunity Act of l972, the State and Local Fiscal Assistance Act of 1972, as
amended, 31 o.s.c. Sl22l, !! seq., the Omnibus Crime Control and Safe Streets Act of 1968, as amended, C2 u.s.c. 51981, 42 u.s.c. l98J, and the Fourteenth Amendment to the Constitution
of the Cnited States. In their complaints, the plaintiffs alleged that Jefferson County and the ether named defendants had engaged in a pattern or practice of discrimination based on race and sex with respect to recruitment, hiring, assignment, promotion, d~scipline, and other term$ and conditions of employment~ Jefferson County has denied the allegations in the plaintiffs' complaints.
'l'he parties to this Consent Decree are the plaintiffs in the consolidated actions captioned above and defendants Jefferson County and Ben L. :trdreich, Ray Moore, and Chriss B.

018682

-

rbonatmecaitroreadoTsnhsrgoeiaxDitnooojoDhendrneanoscrueelfefssicPeadrotrvdaencftusueyhtg.sheimripplgi,clspreeJccuodltta,eoaexreeataeilnttvoirngpaaafoftda.hhvttmfeitoretlutehcioeeeiairhntroeqTtstfoeayrrnthsscenrisuhceesmntoentgacieoaaiammssngoenowopalpnn.onntsnaU.rfpaadaDhfteotyaitiTcrilnsmtnentvenataCiehociayceidtpdtgrinenaooeyerbtlipmnneyoushdpsseaspaeidttyanitaneshaihsrsmdatfSysfesissryeto.aauvrrtfueexiit,ftltoraseanafpetliaSdtnnotTitcsoesrmhaneitahhefshrbnoseasdionefnsesbeiycsngpru~iissdoyreairnecpnwgiicylvssgltfimoetnacuDJisMoiaftshlriteoaohe'bn.tivyletieoenptfflemucgeoolafiftascrBsvnptraeefritabeethayitiyieirettentlttoaeposhirfteadsinootonnaaedec.iechaysrnscsncLnkasoienhTiamtosttn.inretweeorahgafieiCiosnerygeaanlneatuoioiBtlnnrossll9itnnilueaddnlhp'tatittgenwlodeshiaantembatwlfatcos,yerooemseeottoeisCatyfteeminenetnhJevopeosdhtextteecnorrsuocnoseemfloaaituaraoudfccvcttw cnsaoeCnsuithtttaihdcrtihidihtstfoitraohsnfotiolheetemiviointcelignfmdserontenosmresumranasiseseytidsbtCeasloosCtosimesayuese.nsrosfohnueikrtadinadouahdeadenfgesalvnnalneiroIsdhatenr-elevted-tnfowrnyid.oressts

Now there representations Commissioners, a herein to date, follows:

fore, on the basis of of the plaintiffs, Jefferson nd all trial proceedings and it is hereby ORDERED, ADJUDGED

the foregoing County and its discovery filed and DECREED as

I. GENERAL INJUNCTIVE PROVISIONS CooCrotohuudennitrtsyy1cp.h(eSahr srheogTreneehr&iieonf ffaw,dfheetomefterhppnleacdoiroyartenlilecteosicpf.ot:faJirivtecefeaiflapeyirlpnsslor,inetchfaaeenCgrtroehseunidnrftisotny,tr,oge,emaamsnfppidlrl•ooitynyhtmhegeeee,nsCt, poJwrueaonfinmtftdhyeo•rtstaihooonenrny

-2-
f\18683

•the defendant Jefferson County•) are-permanently enjoined and

restrained from engaging in any act or practice which has the

purpose or effect of unlawfully discriminating against any

-

employee of, or any applicant or prospective applicant with, Jefferson County because of such individual's race, color or

sex. The defendants have agreed that all hiring, promotion,

upgrading, training, job assignments, discharge or other

disciplinary measures, compensation, or other terms and con-

ditions or privileges of employment shall be maintained and

conducted in a manner which does not unla~fully discriminate on

the basis of race, color or aex. Further, the County shall not

retaliate against or in any way take action against any person

because that person opposes or has opposed alleged discrimi-

natory policies or practices in Jefferson County, or because of

that person's participation in or cooperation with the

investigation and trial of these actions, or in any proceedings

therein.

2. Nothing herein shall be interpreted as requiring the County to hire unnecessary personnel, or to hire, transfer, or promote a person who is not qualified, or to hire, transfer or promote a less qualified person, in preference to a person who is better qualified based upon the results of a job related selection procedure. Nothing herein shall prohibit the County from discharging, disciplining or demoting employees for just cause in accordance with applicable law, nor shall it preclude the County from engaging in layoffs or rollbacks of employees pursuant to State law, provided however that any such actions are taken and executed without regard to race or sex.
3. Remedial actions and practices required by the terms, or per~itted to effectuate and carry out the purposes, of this Consent Decree shall not be deemed discriminatory within the
meaning of paragraph 1 above or the provisions of 42 u.s.c.
2000e-2 (h), (j), and the parties hereto agree that they shall

-3-

018681

. -·

.,.. --

--

UnCcclmioniohontetinalditialslgefisalevydueatnirnettdeScigrsouotaeDaaunlietlnnelcssyasoreuettrlcethDaahnefbcidoayskrretrj.ivreosatiemhencinInysetefttdlCpooiiyaanloftnlahudyicereanthr~ft.tceaaeinlopatfledsefleulrsnasrtgchoetaoeenesnurdbalroaytltrrw,hemarflopntuaohuyawlvengrenstehoyusstsihutthwecionhrehiftoneapvCarcamuovotrcalieutvhyoynninttnryistegoeotmoenskehtthtdhahiiotliaesolsrl

tpipvwoCtnoleoifoiafort:otuiihlhornratemthdCtth4iiiraoocofs.o~uluofnlafnssyuDste.yrot,mIeatnhncnaaBAifrdyIbreoit,fltrtehrtmyetoeuhiaprtntehnnoe(hgpe3envheya0ayera)rpe,nemtxpstlip,dphriJcpaaoeeiaAuyrrlpfflllaastflraaiteiibeirasnwrapoisotsmttrneiouiyotafhgnv,eoffih3insnafdt5fC.ieto2tshlwohr6eeuc'3hneelen'k.ihotmctetoythnShite,acuoinprcttetuothar2eyer1ronoe-s3ntrrffdioeodoealstJresvotyiocerhcefle.feevpfseeiahetrsnrthrahhsyitelooehialnpndelltr,aehomm.lCsnaavlvtaatoepiaiettsugpotttinleeeeonytrdray,ns II. SPECIFIC INJUNCTIVE PROVISIONS
- - · - - - - - -- ---------- PsCetteppefaChhotlmAorahrliueoea.eapqrraunciclctinr;totcitrttbtyciyahilySAomciaubp~el.nehsllercpoiaassncseetncitry6erofpfk,cl)Ofniaorse,eebelnonntfrnycidehcaeatsateeteqlansntoedqgadu~ddftuCueehaoBr_aroiotlefRew!vnlh~ius_fo~einea~imcdbcrtnje_-yCeeroeamsy!dunposbeu~iaariuotcantjbsemhnvf~aoldlstal_rareea_yweefeltcnrcjolnghpoaitkrttee-unbnchssata-darscohoet-_pgnC_iineanw·eodoa~p-knodsss~inh-riduiineC-n-idisnisitos~-cnetefen·teyrrer-rsotiiae-m-tgm~ftle-ddiio_asa-fabrnoi-iont-bi_lmsnlhdc-endafcoi-ag-.nsaCo.i·crnrt-auftimroke-eom-mia-idrrsnoanDiypbsieltn-pneeeeembhjsrcrnaoryao-spParettnsbeltooracdoitoeoannrtrhyDvpicuydsemoipaeaeiawntedcccrtemJonrhaosoumeetotxmnireofepeneiicenfcmlvnbsnieotoieey.ayrn(rssttmsasrthitoenhenutehieIehndecgnnreneett

l.

-4-

018685

(_

unclassified service i.n nwnbers approximating their percentage

representation &J!IQng qualified applicants for such jobs as

determined by the County under the provisions of this Consent

Decree. It is recognized that the process of increasing the

-

number of qualified black and female applicants for these jobs is facilitated by a process free of unlawful barriers to their

entry, by a substantial increase in recruitment efforts

directed toward blacks and women, and by the use of fair and

nondiscriminatory selection criteria. 'l'he objectives of this

Decree will be considered to be attained in entry level jobs

when the percen~age of qualified blacks and women employed by

the County in each of the jobs identified in paragraphs 7, 8,

and 11 and ~

in

Appendices

A and

B of

this

Decree

approximates

their respective percentages in the .civilian labor force of

Jefferson County as qenerally reflected by the 1970 Federal

Census. The parties agree to recognize changes, if any, in

those percentages which may come about as a result of final

public~tion of the 1980 Census. Fer jobs that require a pro-

fessional degree, license or certificate, and where it can be

shown that blacks and/or women hold such degrees, licenses or

certificates in percentage tenns which are lower than their

respective percentage representations in the civilian labor

force of Jefferson County, the parties agree that the attain-

ment of the objectives of this Decree fer such jobs shall be

based upon the best available information as to the availa-

bility of qualified blacks and women for such jobs. If the

parties are anable to agree upon the data to be used for this

purpose, the parties reserve the right to petition the Court to

resolve such disagreement. If the County fails to meet these

objectives in a particular job or jobs, it shall have the

burden of demonstrating that it made a good faith effort to

achieve such objectives, and that it otherwise complied with

the affirmative recruitment and nondiscriminatory selection

-s-
018686

. f_

requirements for auch positions as set forth in Part II of this

Decree.

6. The defendant Jefferson County also recognizes that

-

the Jefferson County Personnel Board has entered into a separate Consent Decree with the plaintiffs in these actions.

That Consent Decree vas approved and entered by this Court on

August 18, 1981. That Decree requires, ~ alia, that the

Personnel Board seek to achieve certain minimum certification

rates of blacks and women from among the Board's pool of

qualified applicants for various jobs within each of the

G) jurisdictions served by the Board, including Jefferson County. The jobs within Jefferson County to which minimum

rates of certifications by the Personnel Board apply for blacks

are: Accountant, Account Clerk, Auditor, Automotive Mechanic,

Construction Equipment Operator, Engineering Aide, Heavy

Equipment Operator, Labor Supervisor, Public Works Supervisor,

Revenue Examiner, Secretary, Intermediate Clerk, Senior ~lerk,

Stenographer, Truck Driver, and Waste Water TreatJnent Plant

Operator.

(!:) The jobs within Jefferson County to which minimum

rates of certification by the Personnel Board apply for females

are: Drafter, Engineering Aide, Engineering Drafter,

Engineering Technician, Graduate Engineer, Deputy Sheriff,

Revenue Examiner, Security Officer, Sr. Civil Engineer, Stores

Clerk, Traffic.Planning Technician.

9. The defendant Jefferson County will insure that
- blacks and women are selected for appointment in the jobs
identified in paragraphs 7 and 8 above in a nondiscriminatory manner, as provided in paragraphs 1 and 2 above, from the group
of applicants certified by the Personnel Board. It is the expectation of the defendant Jefferson County and the plaintiffs, that such nondiscriminatory hiring pursuant to this Decree will result in the selection of qualified blacks and

-6-

women for these jobs 'in nurobers approximating their overall

representations on the certification lists received from the

Personnel Board for such positions. Absent unusual circum-

-

stances, compliance with the provisions of this paragraph will be assessed on a semiannual basis in accordance with the

reporting provisions set forth in paragraph 52 below.

10. Defendant Jefferson County also recognizes and agrees to support the remedial Order entered by this Court in these proceedings on January 10, 1977. That Order was entered after a trial of limited issues involving the Personnel Board. In an opinion filed on January 10, 1977, this Court found, ~

alia, that the written tests administered by the Personnel Board for police officers, deputy sheriffs and firefighters had an adverse impact on black applicants and were not shown to be validated in accordance with the federal agency testing guidelines in effect during the times those tests were
administered. l/ The Court's Order, as it now applies to the
Personn~l Board, requires, in pertinent part, that the number of blacks certified for appointment in police officer, deputy sheriff and firefighter positions be representative of the number of black applicants for those jobs. This provision of the Court's Order is to remain in effect unless and until the .Personnel Board institutes selection procedures for these jobs which it can demonstrate either have no adverse impact on blacks or are job related in accordance with applicable federal guidelines.

,.

LoEGaGDCiEIcisnEsfeaoluex.usOdsbFd/pneiuiuCod.PedacseRe,rerrueeid,dttAs.alrltmhtitisilthn4evneoe3eebdeSbennatsyylshtnFg6us)FAoeee.9..EeRlnfgt7Anthce.oEtShMynietf.emfc3h~ EafyG8eeneCtmE2JeaucUi9pugqGstjoGvle0.diutssofuivmi.u~eatylnliegliledecdSit.gnSehneee.tSeleeE)lierisgmSnpnv(EuaCeCaepteiEneinscllsiowOdodmedevyCuecebiomoltrrlCentinieLtehrnoo'GnsameentES2bEus:mso5mJemiuDaOrp,rPdipp,slrvneerlpsoee1iouopi~lpcfro9yi·acac2eeonene7rre8eerereyt8ddrmts,(uueenC)SeSCnrdd1,otnoeeie0wh.tmstFll,syeete.ambotcRcnhya1Eoittd.Cdse9iEifsoioo7Ooinn7pCotnumSJthnt.hSumeetOGePOdPshsirstrur..aaosidloin4UcitbFcdecodOyeerneeen,dOdifdl,fifu(ueoarnFtitrtdrrhnrcEhehe2emaedAeeses9eslr

-7-
018688

11. In order to carry out the purposes and intent of the

January 10, 1977 Order, the defendant Jefferson County will in-

sure that blacks are appointed to deputy

nondiscriminatory

manner

as

...,::-=
provided in

sheriff positions
-e±'k
paragraph 2 above

in a from

-

the group of applicants certified by the Personnel Board. £1 It
is the expectation of th~ defendant Jefferson County and the

plaintiffs, that such nondiscriminatory hiring pursuant to this

Decree will result in the selection cf qualified black deputy

sheriffs in numbers approximating their overall representation

en the certification lists received from the Personnel Board.

- - Compliance with this paragraph shall be assessed en a semi-J
annual basis in accordance with paragraphs 52 and 53 below. 12. Jefferson County also recognizes that blacks and

women have not been hired into . certain divisions and

departments in the County in numbers reflective of their

interest or potential interest in such employment. Those

departments and divisions in which blacks have not been hired

consistent with their expressed or potential interest in such

employment are identified in Appendix A of this Decree. Those

departments and divisions in which females have not been hired

consistent with their expressed cr potential interest in such

employment are identified in Appe~dix B'of this Decree.

13.

In these departments and divisions, Jefferson County

agrees that it will make a qood faith recruitment effort, in

accordance with its affirmative recruitment obligations under

this Decree, to secure the number of black and female appli-

cants in entry level (open competitive) jobs in those depart-

ments and divisions that is at least equivalent to the degrees

of representation of blacks and women in the civilian labor

force of Jefferson County. The parties preserve the right to

2/ Jefferson firefighters.

County

does

not

employ

police

officers

or

-8-
018689

adjust these recruitment,goals through agreement and subject to

the approval of the Court, where it can be shown that a profes-

sional degree, license or certificate is required to perform

--

the duties of any particular job or jobs and that blacks and/or women hold such degrees, licenses or certificates in percentage terms in the relevant labor market which are inconsistent with

these goals. The relevant labor market for the jobs identified

on Appendices A and B will be Jefferson County, unless the

parties agree or the Court requires that for a particular job

or jobs some other labor market be used that will better serve

the purposes of this Decree. For purposes of this paragraph,

entry level jobs are those listed in Appendices A and B.

14. With respect to positions in the departments lind

divisions identified in Appendices A and B which in the past

hllve been traditionally filled by promotion from lower

classifications,· and except for the jobs identified in par!l-

r

graphs 7 and 8 above for which the Personnel Board has

affirmative certification obligations under its Consent Decree,

the County shall seek to secure the number of qualified black

and female applicants for promotion to those jobs that is at

least equivalent to their percentage representation applicant pool from which such promotions are made. The

in the____. County

shall request that the Personnel Board issue open competitive

job announcements for positions in the Public Works Department

if the parties to this Decree agree that such a request is

necessary to increase the applicant pool of qualified blacks

and females in this disagreement between the any such party may p disagreement.

Department. In the parties to this Decree etition the court to

event of on this ma
resolve

any tter, such

the the

15. With respect to appointments to

departments

and

divisions

:>
identified

in

future vacancies Appendices A and

in B,

County will insure that such appointments are made in a

-9-
018690

nondiscriminatory snanner, as provided in paragraphs l and 2

above. It is the expectation of the defendant Jefferson County

and the plaintiffs, that auch nondiscriminatory hiring pursuant

-

to this Decree will result in the selection of qualified blacks and women in accordance with their overall representations in

the relevant applicant pools as aet forth in paragraphs 9, ll,

13 and H above.

16. Except for unclassified laborer positions over which the County has aole recruitment responsibility under this Decree, if the recruitment efforts of the Personnel Board pursuant to its Consent Decree fail to supply sufficient applicants for the County to meet the objectives of this Decree, the County shall institute an affirmative recruitment program designed to inform blacks and women of job opportunities with the County. This recruitment obligation is intended to supplement but not duplicate tbe recruitm~t efforts of the Personnel Board, as required by the Con~;ent Decree Detween plaintiffs and the Board. The County's recruitment activities shall be directed specifically at attracting qualified black and female applicants for the jobs identified in paragraphs 7, 8, and 11, and in Appendices A and B of this Decree·. The recruitment program may include but shall not be limited to maintaining contacts with area high schools, technical and vocational schools, colleges, and organizations which have traditionally expressed an interest in providing minority and female applicants, or which indicate auch interest in the future, and informing them of employment opportunities with the County. In addition, where appropriate, advertising of employment opportunities may be placed with or in advertising media primarily directed to black and female audiences for the purpose of emphasizing to blacks and women the availability of employment opportunities with the County. Utilization of the above described recruitment sources in accordance with this

-10-
018691

{_

paragraph shall constitute compliance by the County with the

affirmative recruitment obliqations required by this paragraph.

17. Subject to paragraph 2 and all other provisions of

-

this Consent Decree, the County agrees to take appropriate and sufficient action to meet the employment expectations of the parties as set forth i.n paragraphs 9, 11, 13, 14 , and 15 of

this Decree.

B. Job Posting

18. The County shall inform its employees of all opportunities for promotion or transfer. The County shall insure that all written announcements received from the Personnel Board for hiring, promotion and training opportunities with the County are made available to all of its employees reasonably in advance of any scheduled examinations or training for such positions. Such announcements shall be posted in conspicuous places so that reasonable notice is given to the County' a employees of such employment opportunities. Notices· of job announcements within a department in either permanent, part-time or temporary positions shall be posted separately and in conspicuous places from notices of job announcements in other departments.
C. Sex Restrictions in Job Announcements and Certifications 19. Except for the position of Juvenile Detention Officer
at the Jefferson County Family Court, the County shall not request that the Personnel Board restrict any job announcements or certifications on the basis of sex except where, pursuant to a proper validation study, gender is determined to constitute a bona fide occupational qualification within the meaning of Section 703 (e) of Title VII for the job (s) listed in such announcements or certifications, and such determination is approved in writing by the Onited States. If such approval is not granted, the County reserves the right upon proper motion to petition the Court for approval of the determination. The

-11-
018692

County may establish in· consultation with the Personnel Board a

special medical examination to be qiven to applicants for

nurses aide and laundry worker positions. such examination

-

shall be used solely to determine whether applicants for such positions are physically qualified to perform the duties of

those jobs, and it shall not be used to discriminate in purpose

or effect against female applicants.

D. Height-Weight Requirements

20. The County shall not use or follow any minimum height or weight requirements that have an adverse impact against blacks or women as selection criteria for any position, nor
shall it abide by any such requirements if they are instituted and administered by the Personnel Board.

E.

~ibility to ~pply for Promotion to Certain Jobs

21. The County shall not require deputy sheriffs to serve

more than three years uninterrupted service in rank (or two

years uninterrupted service in rank for candidates who have two

years of, college credits) in order to be eligible to take the

promotional examination for sheriff sergeant, nor shall it

require sheriff sergeants to serve more than two years

uninterrupted service in rank in order to be eligible to take

the promotional examination for sheriff lieutenant. Employees

who have obtained permanent status as sheriff lieutenant shall

not be deemed ineligible for promotion to the next higher rank

based upon any minimum length of service or time in rank. The

term •uninterrupted service• shall include any time spent as a

probationary employee.

22. In order to be eligible to apply to take the promotional examinations for the positions of public works supervisor or construction supervisor, an employee must have permanent status as a truck driver, labor supervisor, heavy equipment operator or construction equipment operator.

/

-12-
018693

23. Any employee . vho has worked full-time in an

unclassified labor position for twelve consecuti~e months shall

be eligible to apply to take the promotional examinations for

-

the following classifications: semi-skilled laborer, truck driver, equipment service worker, automotive mechanic helper,

shop helper and service station attendant.

24. Any employee who has obtained permanent status as a semi-skilled laborer or truck driver shall be eligible to applj• to take the promotional examinations for the following classifications: truck driver, labor supervisor, heavy equipment operator, equipment service worker, automotive mechanic helper.

25. Any employee who has obtained permanent status as a truck driver, heavy equipment operator, or labor supervisor shall be eligible to apply to take the promotional examination for the classification of construction equipment operator. F. Promotional Potential Ratings
26 •. The County may continue to use the Personnel Board's current promotional potential rating system in departments where it is shown to have no adverse impact. The County shall discontinue the use of the Personnel Board • s current promotional potential rating system in the following departments in which such ratings have been demonstrated to have had an adverse impact on blacks: Cooper Green Hospital, General Services.

27. The County further agrees to discontinue the use of the Personnel Board's current promotional potential rating system to determine eligibility for promotion in any other department where, based upon any two successive rating cycles (one cycle consisting of 6 months) , there is adverse impact against blacks. In determining adverse impact under this subpart the parties agree to rely upon section 40 of the

-13-
018694

Uniform Guidelines of Employee Selection Procedures, 29 C.F.R. 1607, ~ ~-

G. Background Investiaations

-

28. Background investigations shall be utilized manner so as not unlawfully to discriminate on the race or sex.

in such a basis of

ptqcSptchtoilbotuicudoohcwaeanchigydmtwioaatmranmccecphnaiiarhsnyhlneefprufsfetiapviupettoscoairdttcilnifirnillaefieinertarioltleinsrfnmrsettiobswlctluaniinonghpttidw2sontenahcaioimragoe9gfnonaddhntebinvraoti.l.dtagitaeajtyeofhihbvorwese'hvctsatcoonseaaiiopihpckaapydTnrrftocftufecosgtbhip,kuihsttntiattnreohelhgreboaeytons9asderaotlierelaeut0nucuhedn(opwcntcysbnSc.&cehueikdsrhrrhhddanerfhneuenpigee)riaoSesiiarSdvepcrerjttvniyeiutrorweStiiohisurrnvhseesteeintjcueipcitvhfhheyflrdefwhnynavnvootvyoififcearoidivstenraeoitirdfnfimsoecvssiefdnwonsroitnusenoeaftsafafdeihgafonphicnic'ttdnrfgtsrnehiitusbacaae'aikgcitsaratvtonteynnljhcenyeoDhhianttcledcynendeefoihnDoodetiycewsofoitsmfssirpetetobpnotsiehiihtpaoaetsitaepenngoto,plhcrhsapafethpprpeastanDoraelsapmreakavptrtptlafo.bsametilrrhitetwalneiriinfcanoailhsipneotncndenicfracgigTonhibesntvtaetao'tiorarrhtoshaahteipnctalihatnnedscriisl.shptaepesninlhtepaoieirnhatprrh'asfnSeseaoIneshtaot,iedmbtrqlfihsefscahrcelefwuii3esmpeiopobetilitdontuni3lhrefnciaprfpowhroaefarboii(tivcfaireSorleytfhclen!tstinksoiialtufot)edhrehocotgtaivennretieSqehsoanwersnhpiradrtdnhusodehnenreebwlrer.cheueaaeiiv.teeiiedhmefnn.pssnaopoirqloSlfAoetdaoboilfAatwprui'dynwfhlolsthrwaspnlsltefeeuf(seiirceiotpi,&tclnvsmur:pkcoinoDralnnliytisnpgu)iaaivncseapelthfefspcrptnirwchgett(eobfpophusoaaith1luctesdreueoefnlaierln0'oer-iaseiosdtnlenro)nt-nonstrdsf--

-14-
018695

completion of that review. If the She:iff determines that

blacks or women are not beinq employed in deputy sheriff

positions in accordance with the objectives of paragraphs _9 and

-

11 above, and that the background investigation for this job is

a factor that obj~ctives, the ment review its

is precluding the Sheriff from meeting such
Sheriff shall require that the Sheriff Departbackground investigation policy to insure that

it is administered in a nondiscriminatory manner. In this

regard, the Sheriff ahall aeek to insure that, if as a result

of such element

review of the

it is determined that any component, aspect or background investigation process results in a

disproportionate disqualification of blacks or women, that such

component, aspect or element will either be eliminated or shown

to be job related in accordance with the requirements of Title

VII.

H.

Dismissals of Deputy Sheriffs Durinq Probationary Periods

30. The Sheriff agrees that prior to the dismissal of any

deputy sheriff during his period, it will notify

or her initial twelve any such person in

month probation writing of the

specific reason(&) for auch dismissal, and he or she shall be

given an opportunity to respond in writing to the specific

reason(&) for auch dismissal. Such response shall be made

within five (5) days of the issuance of the notice of

dismissal, provided however that such period shall be upon reasonable request to responsible officials

extended of the

Sheriff's Department with respect to any matter pertaining to

such dismissal. The Sheriff shall insure that such person is

fairly Copies

advised of his or her rights under this of any correspondence, notes ,memoranda or

paragraph. recordings

concerning any retained by the

~attera
Sheriff

covered by this paragraph shall be and shall be available for inspection

by attorneys for the plaintiffs upon request.

-15-
01869G

-I--._
'

-
' '

1. Supervisory Instruction
Oaporaetseafhmfdfrsedpitpvtc,ilhoooteeiCy3innrolse1olsnei.uit,dbnhDo•etieyteT•rlnhcihtbtepreiietsafoehehiCsCts.eeieaoosdinluauSrlntsnouiittnaypfyctnlehooptvreoeshtvayimhprielsaeaplidorgrrlleiraorlisyaltynccaipeioorsthenpinmetfmeroo3purtn3irlsvcnomioaitabtntnhtechncesselaeeouurlwcprbtvahyeh.avgiirestnvapiihgiislesnlrAostsoohfrotbuffyeneitsrnromeapeterhcelaveeirtnasaihovlsbopuanetorrrranouautsetvseAcelsidtsxcti,hit.tooiheaonninIainnsnsyrt J. Facilities

32. bathroom, by County

Jefferson County hereby agrees to insure that locker, and similar facilities are available for employees without regard to race.

all use

~. Affirmative Action Officer

33. 'I'he County Officer who shall have

shall appoint an Affirmative the following responsibilities:

Action

(al Advise black and female employees of the terms of this decree:

(bl Post his or her office hours and location and copies of this Decree in conspicuous places within each department or operational unit of the County:

(c) Receive and investigate oral or written
complaints of race and aex discrimination and ·conciliate auch complaints vhen appropriate, and notwithstanding any other provisions of law, establish a written procedure which shall govern such complaints;

(d) Meet periodically with department heads to assess their progress in me.eting the objectives of this Decree:

(el Maintain a complete record of all actions taken in pursuit of the duties prescribed herein,
-16-
0186 9't'

including all correspondence directed to or from the

County with respect to any complaints or

investigations undertaken pursuant to this Consent

-

Decree and any investigatory files. (f) If within any six month reporting period

prescribed by paragraphs 37 and 39 below, the County

determines that it is failing to meet any of the

objectives contained in Part II, subpart A of this

Decree, the County shall require the Affirmative

Action Officer to review the future selection

decisions of the appointing authority in the job{s)

and Dep~rtment(s) in which such objectives were net

met in order to insure compliance with this Decree.

As part of this review the Affirmative Action Officer

shall review the appointing authority's written

justification for failure to select certified black

or female applicants in the jobs fer which the

objectives of the Decree were not met, and shall

submit his or her written comments together with the

appointing authority' a written justification to the

County Attorney. Appointments may be made in the

job(s) and Department(&) under review while such

review is pending before the Affirmative Action

Officer or the County Attorney, provided, however,

that blacks or women who are found to have been

improperly denied employment or consideration for

employment during the period covered by the review

shall be eligible for recertification and employment

in a future vacancy in the jobs to which they were

originally certified, with all rights, benefits and

compensation that they would otherwise be entitled to

under the provisions of paragraphs 1 and 2 of this

Decree.

-17-
P18698

..

(g) The Affirmative Action Officer shall report

at least semiannually to the County Commissioners his

findings with respect to any investigations under-

-

taken pursuant to his above described responsibilities.

(h) The Affirmative Action Officer referred to herein shall be appointed by the County within thirty (30) days after final approval of this Decree. The County shall inform the plaintiffs of any changes in the identity of the Affirmative Action Officer.
III. INDIVIDUAL RELIEF
34. The County agrees to pay the sum of $298,000 in full and complete settlement of the claims against the County for monetary relief in these consolidated actions. Any back pay awards to be made from such sum shall be subject to income tax withholding and the employee's share of social security. No individual monetary awards shall be made under this Decree until at.least thirty (30) days after the date the Court grants final approval to the Consent Decree. Within seven (7) days after provisional approval of the Consent Decree by the Court, or final approval of the Decree by the Court, whichever occurs first, the County agrees to pay the sum of $298,000 to be deposited in separate trust accounts bearing interest at commercial rates as follows:
a. A fund in the total amount of $10,000 shall be set aside for the individual private plaintiffs in the Martin action. Within ten (10) days after the date this decree is given final approval by the Court, the Clerk shall pay the following amounts to the following named plaintiffs, together with the interest accrued thereon. These amounts shall be in full satisfaction of all claims of the named

-18-

018699

plaintiffs against the County in these consolidated actions.

Eugene Thomas

$ 2,500

-

Wanda Thomas Ida McGruder

4,000 3,500

b. A fund in the total amount of $69,696 for those vomen identified in Appendix C vho vere certified and not hired allegedly because of their sex in the jobs listed next to their names in that appendix._l.f

c. A fund in the total amount of $15,840 for those blacks identified in Appendix E as subclass 1 who took the written test for the job of Deputy Sheriff that resulted in eligibility lists for that job in effect between April 25, 1975, and January 10, 1977, (the date of this Court's Remedial Order referred to in paragraph 10 above), vho have not been hir~d as Deputy Sheriffs, or vho, subsequent to the entry of the Court' a January 10, 1977 Order, vere hired by the County as Deputy Sheriffs, but vho may have been hired earlier but for their rank on auch eligibility 1iata.

d. A fund in the total amount of $202,464 for those blacks identified in Appendix F as subclass 2 who were certified by the Jefferson County Personnel ·Board and not hired by the County to the jobs and departments during the time periods set forth in that appendix. This fund ahall also be used to compensate those blacks identified in Appendix D vho have individual claims of race discrimination in hiring

~I
act the

iodnTesfheentdhUaanntittehJdaesfSfatealrltseeogsne

~s
d C

the on discrim ounty.

l i

y n

part ation

y o

i n

n th the

ese ba

s

co is

nso of

li s

da ex

t

ed by

(

-u-

018700

but who are Appendix F.

not

~embers

of

aubclass

2

as

defined

in

--

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·g3mdbbfu4yeuey(imtnbdedab)erseeml(rac3icsndic)a6n~ee.loacssaftcu:niTroldtgiahhnrbeteose(iudodgap)nmoriow fnoououfipPnrlisltnatshrdobaesireagvulrirsbla~deoucpaulbcldhaaaacetsllt3isae4vusdbnesaadedbcteseeookrcvsodcetneehrpoasiheabmccyahrevificdeobaoleiwlbfdnoetawjehrtuindhienrnserydgePeibafstngoareu.aecrrfgmn~fereiartTrnpephaheadheledy_

•• attc·cdFoahc3teeenal4aratrtch{tethtietaibmrioevfvmf}jriaaeio)seteiln.binuddmta,aascttetfchiafiB(boSoeoonasyaernpnd)rtcxtskeacoottdomhhffpueaeapadanytcarhnriseyepcsteerilcoblocatrsm eiwfiuitiffm m fhtleoiieiacelrcairorlrinaontnatsntotp,iht'sdbfsoiooeieoatdnsftehnwiee.mUteerdiiepnaloeldlcintnoittheucneyh,rmldgmemaiibtnnniehimeSendnretstiescamsvdlopitaianfaedoikysmurifc(ntoaraPlhbglaaarnaaaibttrsmcteaietltglhaadhjirfwienoteaomstyabosprsesn.eh

\

-20-

01870.i

b. Race 'discrimination claims (testinq) (Paraqraph 34(c)). All subclass members eligible for relief will share equally in the back pay allocated to this subclass.

c. Race

discrimination claims

(hirinq)

(Paragraph 34 (d) I. Back pay will be determined for

these claimants by counsel for the United States and

the Martin plaintiffs based on an evaluation of the

merits of the individual claim. The amount of back

pay for a claimant may vary depending upon the date

the claimant was certified for the position, the

number of claimants certified for a particular

position, the fJY rate for the job, the claimant's

willingness or ability to have accepted an offer of

employment in that job at the time {s) of certifi-

cation, and the number of additional vacancies in

that job that plaintiffs allege would have been

fiUed by blacks during the relevant time periods,

absent alleged discrimination.

37. approval

Within ten (10) days after to the Consent Decree, written

the Court gives final notice will be given by

the County by certified mail, return receipt of the individuals identified in Appendices

requested, to each
c, D, E and F who

fdtffseahioaoulrlryeriecemmsghnsi-trfoboihrentolf(qeiemdacuititeritvhraftiheepoctddoerhruoneaodtodtilhfanostetidaoecswissefevuoiicbAlfidilnlmsupamdpibaimiteaelavnitilptdafrdiarioneeuccorgnlehmaoitselfestsdotf,HowofraaiuaetntsnnhhsdcpddeAloetatihprnhIripme)deeytlnhCatwdofissloisiehtxrlrtmalkhkDlGsnelb.oeoiewchfriPrnanetirnvnheoeoao.ceodtlrfisuddcCNidreexooeoertfustdyaisrnctct.do.ewl(a6Tiit0thbtmo)hoee

38. proof of

Within ninety (90) days after claim forms by the Clerk of the

receipt of all timely Court, counsel for the

-21-

(118702

--

iCttttnnafhpothheoaponihteleunelrdleainbmeatrsritciessjieyaenatuoonllnspCmtubaetaytuiowonfidffnffnrtoooaftoyfdtrsescffrestreekfcordvnrteiristoeinwtudrhehrdpgteeeweDihasadalanulhiblenrsltscitcyodootinihhrsfunfbceduyDertreaiebheiisripeb.svnnemm.ecuaalidogreldiIcetPeinltCnehduvoel.noiwaitaeapudooiraleilennreutncxdeitchamtcaytcphtoeileehaoaferetncnerfdpadoiciseonseCnotefidrtagosnrssshrauiusohdnytetncrthnoayidthhvtel,aosilialuwswdfpenbmiiitauehdsafnlhrrroacsedceoes,klcassolpfontunChropuydit$.esaarnon,oe2ythnlus,iI9taenanebo8rtltltcfeehh,lyd0onfbrl'ee0•upooieoepis0enrrecrarco,esfcoeirevvt,dufcih(plviefp3roseliein)tbueriffritoddoywsCeondusrw dn,aoarsatnuiayhtinnbynohlnosyeiyltg,fde,syf

AttpeiDhhnprleeoiipdsgpceianneivrbuddi3tDmidulmx9eeurb.eceeaLnrsrtlet.osSseosefeptietardrxenfeecdsfomneeorenetrtidhdtntfhiuiaameitldinhbncejeolrAaibpinpnampouoreamffAngffbdorepeairrjprxposehbpnLotdrofi4ico6viesbravseicbataeaycmCnlaoac,nlwediicmees.iDspteuilsIonnnaydfgnmoienddrreooenpfntFewatvutirhhefntwiinedceItihedlIrljIwottbiihohblnseflee,

ppvoeuhw(oeoax3baaftr0lrtvjliuei)tesettnitnciiehdonttit4seaieddongo0rdae,y.nypnattssfhlhrct,oaeTeiroefreihufinseojentcaouothsdroinblCeefuuralofeirtbgounsaitlofponf'seooftaonts:ydeo-urrnretctasitoophbrechhafeolasenaersrudelrotslte/ppplehsosvooelehhroenarraalisitvvsol,hntioeelehdontbneewidtjmxfiownifeosfcvf..icusereirtcinpdtsTithtioIotuytyhmfnfaeteslohd(a.aC2batanrnth0tojttyeeo)eeeuIlstcnmnsriouettdeyiptbfcaofoothtjynheaarstcsegeprot,xetrtefoihecrrooeeeiennotmevsaohsdrdneieteynnniyraimfttdoechytatichsyv,imeturmihtiactdboiypaeyaheny-t

-22-

Cl18703

_ .... .r

challenge any of the individual ~.a.ck, pay awards to be made under this Consent Decree.

41. Remedial County seniority date, as that term is used in this Decree, shall mean the employee's seniority for purposes of promotion, vacation as accrued, sick leave, and longevity pay, but such date shall not be utilized for pension purposes. Adjusted classification aeniori ty, as that term is used in this Decree, ahall mean t:he employee's aeniority for layoff and recall in the jobs to be offered to individuals under Part III of this Decree. In no event shall a remedial county seniority date or adjusted classification seniority date be earlier than March 24, 1972, the date Title VII was amended to include State, County and local governments.
42. Upon final determination by the parties of the awards of individual relief to be made under this Decree, the County shall within five (5) days thereafter notify auch persons by certified mail of their proposed awards of relief, if any, as set forth in the plaintiffs' report submitted to the Court. This notice shall also inform each of these individuals of their right to object to the relief, if any, as contained in the report, and that they must file their objections in writing with the Clerk of the Court within fifteen (15) days of their receipt of this notice.

43. If any auch objections are filed, the Court shall thereafter, and as soon as practicable, schedule a hearing at which it will rule upon any objections to the report which have been timely filed. At the conclusion of such hearing the Court shall determine whether to give final approval or disapproval to the awards of individual relief. a. Implementation of Individual Relief
44. l!Miediately 'Cpon final approval by the Court of the awards of individual relief to be made under this Decree, the

-23-

I.'. 8704

county will begin to implement Part III of this Decree as described herein.

45. Any person entitled to individual relief (including

-

the named private plaintiffs), in order to obtain such relief, must sign a notarized release which will be provided that

person by the County (Appendix J) and return such notarized

release to the County within thirty (30) days of that person's

receipt thereof. Any such individual who either does not sign

such a notarized release or, alternatively, and absent good

cause, does not return such signed notarized release to the

County within thirty (30) days of that person's receipt

thereof, shall be deemed to have waived his or her entitlement

to such relief. Such release shall provide that the relief to

which that person is entitled under Part III of this Decree, if

accepted, shall be in full and final settlement of any and all

claims against the County based upon allegations of race or sex

discrimination occurrinq prior to the date such release is

signed ..

46. entitled

The County shall send a notice to each of the persons to individual relief informing them that the Court has

given final approval of their right to such relief under this

Decree. This notification shall be in writing, be made by

certified mail, return receipt requested, and shall be approved

as to substance and form by the plaintiffs prior to mailing.

With respect to those individuals who are eligible for con-

sideration to fill a future vacancy in a classified service

position, the notice shall clearly and specifically inform such

persons meet in

of the qualification requirements they will have to order to be appointed to that position. Such noti-

fication also shall state that if the recipient has any ques-

tions about the notice, he or she may contact the Affirmative

Action Officer, or counsel for the plaintiffs whose names,

-24-

018705

addresses and phone their own counsel.

numbers

•hall

be

listed

in

the

notice,

or

--

pcupeHnrrdirsveeoacrnt4tsie7nt.hgipnilsAatthsihDneeteticahCfmrefelsoeeur,akCnntoiduootnffitnyshdhtiihsavreleilodcrueCaiaohvplueesprrsltyebnatrttcoeioktlleepiatsadhssyeeutseaowCaofacrruhodbrem.atcckkfstohpreatoyOanrswadumeacerrhdsd

atfrpwtmoDoseeinhBethlpponeaptioqtrheseaohyetekooinnucltehiadrredaasrttinsrcpreehiirbiaidoqwtatuuttteesnnnehli,nilniur.dcrcmidi4oeteftpssrs~auii8fjpdneeohefTiolfropst.Crnsissimerfhoboa'effehoietcsdetsifvdlouonna'EociseyttinanfoCetladoaarnrbttildcpeketyorbrynfohipbdeuerltaborooqihieinpsoreytfetconorufuthehoartyiftfcsroahnaetgemrrfhien.syfeltaewitotmuayaffipqhnytcfoCrencgtiputealdiatthrneTraroelcahielsseeoaeuushrsapuidreryiptceanetnt,nchtetsmhpdtgsishhrayetdupeooadaeesaiepiitnrinoonfitstdvnonojrpadntfnaometidpnvilesnstsmdtbqnifdwiirrhwt'ioicoduvuordnesweataetieiaritvnriiftiohtrdbthqtdsvelvhathiueoihttlususipieoiecnmeabmdismiaoanitrlcorettulenaeoeariee.krhnoDntnJweandtmrosesfe.ytleirosffapssfeldfocubuffsfypounlmorCeeayeclaeaaftttlgrrhoroseueyrsiretseuotarneiohrrpodhnamdgwbeiidatangrtegrfetioyfriidealieaafnismaonvlnqedpnifCPcegsraetmnurmpshaudrerionecaiii'uafaclo,rurqniacmipshnretlnncnu3tgeososahmrihtisocia8duosynneptirernie,teranebnpadep1emdannmedtePsaolrtetptnsiileineeosrencjvlehdodctrioonfeainB.onsteht.awybtdtooitsomiliittuhinswltnaoShhsntiehabnrauucnliietnodeelaoeethcthcsbtarthslhhrdee

IV. NOTICE AND FAIRNESS HEARING

th as

49. Wi is Consent
Appendix

thin ten (10) days after provisional Decree by the Court, notice, in the fo Jt, will be issued by publication in

approval of rm attached the Sunday

-25-
018706

aaiiisnfntnAnnptfiDhhybmydowdtepdnittcyeeoaax,ewisrhhiutuiaiooaivearstvcloevhnsnihbtctltmlbeomstdriatidsihahit,fihhdeltdajnndiecesciieeaeeetubdufshculrshobpitd.coteeauehaaohaDyCefpeettwfwlcotsalcDilenedcrrTeoisfhhowtrlmonor,tocieioehutroenhevllerrhocnbeeardansleeBeswtveeaertffisjleheoadeelilhlei(ibarCpieitfer1iotlseCcmpntnhen,foAieaee,0ohhwtofcodegeonCir)rfipueanoraefsyrudoiipwtorssgdlnotrastdatrinteholcuhhetmBtennsrmidion.sshnatresoeddfsaaiadufh,abtemetasriiyOyrichimhnheldlppexinisdbyhtareeouinnaipihuhhdenoendfplpTlflidardIeboedaegClntoCwteaoevihiriilhbioalmmrtvinvrrefalierlimaw dipjteiecigtianeaatafmfeohehdrpdcOaistriryliiirrcknfdodbeeuuaettonli,irtiiegNyltft,nnrgadlrdiaeohoaoodeeotetgtluoehldtnuhnewiiaftantro,nfntrihtonhiunlsofnsdnehngosCiptsietgaoftemdtenhotoeofetoifpohtlrtyrinhsseponeroirapCtvtesaec,AaroirrhbnhrrinoCkitstoewCsfoetdetpeerhoayuushviotavvohapuwiswnnoicentniDrriaueemasinhtehsgbefspdod~snnlyarleioweehecasDtldrsr.odkot.nrtiaopDiiacidhoenilionebgbtcghnooeilcrvBacnaeeeayegflnejenhodoynerDci.osleeandvttssrtcCticaeeareiieehuonaibtaCcdtfaceodsrhcSttppyafiw fetrsoaodiuuoodiuyetplesotlrahartcrnauiehrtenitnmbwhlt.beotoa.spv.rniphecldaeeraeowvnhfererttelTwW au(oaainebopiamptcsnthhtgllacbedwoveorCa)ohhdoieaterdhtrjtpithedotdeiareshhssitopeeCcbusgteco,rficthiettFkrenodanoiehroonDtaoous.ttlaibnsouisory,sohvoeenfnsftdaslnrsecbTfoadnhieetnt.eatbarerslhetsodtioemnyolersefdl

V. RECORDKEEPING

ntrheeectaeisnCsSaeoOrdu.ynbtyryTeoctsohthrhedaeslPleecxrosrtnoeecntnaentrienntlihnBagdotuatrrrhiednecgpoiurmdrtspshuleeramenftepenerttroraietoididotnstoooCffhoenttrshheeiiinssnt

are not Decree,
Decree Decree.

-26-

These records shall be made available to the plaintiffs for inspection and copying upon written request.

51. The County's records shall include the following:

--

(a) A list of all organizations and schools which are contacted for recruitment purposes, showing

the date that any notice of job opportunity was

mailed to them, the title of the job and number of

positions within that job to be filled from that

notice, and the date through which applications would

be received for the job. A summary or compilation of

all other recruitment efforts aimed at minorities and

women shall also be maintained, together vi th the

date and nature of the efforts and the names and job

title of the County employees involved.

(b) All written applications and related records for all persons seeking employment with the County, including applications for transfer or promotion vi thin or among departments, for a period of at least five (5) years, which applications shall include identification by the County of the applicant by race and sex. Such record shall also contain a statement signed by the appropriate County official, setting forth the reasons why any applicant was found not to be qualified for the position(&) applied for.
(c) With respect to any applicant who is ~ertified for hire or promotion and who is not selected for the vacancy for which that applicant is certified, the County shall record in writing, signed by the appropriate County official, the reasons for the applicant's not being selected for that vacancy. Also, the County shall record and maintain any other written records or comments on an applicant for

-27-
018708

certification in accordance with paragraph 32(e) above.

(d) All written communications between the

-

county and applicants for employment, transfer and promotion.

(e) All written communications between the County and employees concerning discipline and discharge, as well as all written reports concerning
these matters.

VI. REPORTING
52. On or before ~IIU"L.J!, 1983 and thereafter semi-annually, the County shall insure that reports are made to the plaintiffs, containing the following information:

(a) A summary showing the total number of current employees by race and sex in each job classification for each department of the County in botn the classified and unclassified service.
(b) A list of all probational appointments for permanent full-time positions, by job classification and department, during the six month reporting period indicating the race and sex of the persons hired or promoted.
53. On or before ~"fr:JI , 1983 and thereafter annually,
the County shall report to the plaintiffs the following information:

(a) A list of all persons, by job classification, department, race and sex, to whom positions have been offered with an indication thereon of whether or not the position was accepted.
(b) A list of all promotions to permanent full-time positions in the classified service, by job classification and department, during the twelve

-28-

018709

month reporting period indicating the race, sex, date of initial hire in the classified service and date of the promotion.

(c) A breaXdown of the applicant flow for

employment with the County which indicates by race

and sex the number of applicants for each department

and job classification in the classified and

unclassified service, and the number of applicants

hired,

rejected and pending

for

each

job

classification and department. Applicant hires shall

be separately identified as to Comprehensive

Employment Training Act (CETA) positions.

(d) A summary report of the recruiting activities conducted by the County and the results of those activities.

(e) A report of the County's implementation of the individual relief provisions of this Decree. This report shall include a statement of the monetary payments, if any, that have been made to individuals entitled to such relief. This report shall further identify each individual who has been offered it job with remedial seniority under this Decree, and whether the job offer was accepted or rejected. For any individual who was disqualified from an offer of employment under Part III of this decree, a specific statement of the reasons for disqualification shall be included in this report.

(f) A list of the sworn personnel terminated from the Sheriff's Department and of employees tenminated from the Public Works and Building Services Departments identifying each individual by race, sex, date of hire, date of termination, probational or permanent status, and rank. In

-29-
018710

addition, the report ahall explain the reason or reasons for each individual ~hy his or her employment was terminated.
(g) Within thirty (30) days of establishment or revision, a copy of the vritten policy concerning background investigations required by paragraph 29.
VII. EFFECT OF COMPLIANCE
fpoiDcCe4AnooraCro2edecoffclmoceovtnlrnru1rn1paesesoa9.o9estliegslfia7li6b5ntu.Bi24ou4cltn11l,i,tr.ita.9tuqeniDsta6obnaaea.iSs8Csonsntctl,iatryn9olaoavca~no8m,manmnceias1fstptoesocehinltr.vnstatifahdadhaidmhaenaeeaorneedrandeincndasn,ylce,snUpli5adendt1rsesnthtwcogd9htairev,aov8taekieeuti3tinnmetOdhsetn,yhSsnhimdetoetSaodeinaotnpntrrtihiCttufusdabaheeTutlrtlieeseosvttoiahuhlscittanfCeaelelcawcdenrroaloRim.ttsmFpmLnhVicosrpgetosiroiIuolhctsavIvirCiaataittiisslonsneoulsCeudfceintAFcdooesnithoitcrenntshcothrsnbbscoepvleyyaoannAriloaflCcotdtmtnfehvhiid1AetsveDie8inutsssoi6dSehpitlsp6mncCoaariireslssfRneoteaametnuuseiantignatCondnSemcthtfocysytt,otae1nrihsyfe8swtlafteaA7eoAhbhlsinw1tflcetice'ts,hstt
Vlll. RETENTION OF JURISDICTION Cfeasonnouryncttrhsyyet-ni5ffmotu5ifver.DtehtehaceefrrT(et4heeC5re.r)eonlICsinsdeoieaxnufcytroston(D6rsnr1eieodcottretayiehrcieeienena,rsrgsatonowjryusdhurteepibhtrashsesdreetqiryaocustttemhhinomeaetynaryCstm,ooobonfevtsetoehtanhetptdhipseiDdsresoaCacotpcreolretvuieiaeroottnfsehtu.hpatfhoilAosnlert
-30-
11 18711

be dissolved, the Court will take into account whether T.ile purposes of this Consent Decree have been aubstantially

a:~ achieved. C,..U .. 1:1

C!

Entered and,.

red this )Cf day of ,!). • U· , 1982.

AGREED AND CONSENTED TO: For Plaintiff United States

STATES DlS'l'RlCT DATED:

Fo~the Defe dan ~efferaon

County an Ray Moore

d

Ben L. Erdre and 'Chriss B.

ich, Doss

in their official capacities

as Commissioners of ~efferaon

c~}."~

flu---~~.$B; 17&.,21
~ ,.u·,t~tl

For the Defendant ~efferson County Sheriff

-31-
018712

APPENDIX A+

Group I - A~ni•tration and Planninq

Departments:

(l) County Commission (2) Budqet Management (3) Planning (4) Risk Management (S) Data Processing (6) Printing (7) Purchasing

Entry Level J6bs

Stenographer Computer Operator Programner Senior Programmer Systems Analyst Data Processing Supervisor Data Operations Supervisor Phototype Setter Microphotographer Assistant Print Shop Supervisor Public Information Officer Administrative Analyst Statistician Housing Rehabilitation Specialist Architect Planner Accountant 'S'ersonnel Officer Principal Personnel Officer Buyer Purchasing Agent

Group II - Finance

Departlnents:

(l) Comptroller (Accounting) (2) Comptroller (Sewer Billing) (3) Revenue (4) Board of Equalization (S) Tax Assessor (6) Tax Collector (7) 'freasurer

Entry Level Jobs

Clerical Assistant Stenographer Property Appraisal Assistant Accountant Principal Accountant Comptroller Auditor Principal Auditor Revenue Examiner 'fu Aqent

+ Except for accompanying

the tex

t

jobs iden , jobs in

tifie the

d in depar

paragra tments

phs 7 ident

and ified

8

of in

t

the his

Appendix or Appendix B that are not entry level jobs may be considered poses of this Consent Decree.

specifically identified as pr01r1otional jobs for pur-

018713

Group Ill - Courta

Departments:

(1) Boar~ of Registrars

(2)
(3) (4)

District Attorney PDriosbtartiectCAotutrotrney

-

Birmingham Bessemer

Entry Level Jobs

--

Legal Secretary Stenographer

Court Reporter

Programmer

Mapper

Photo Camera Operator Microphotographer

Accountant

Group IV - General Services

Departments: (l) General Services Entry Level Jobs

Telephone Cperator

Stores Cler.lt

Voting Machine Locksmith

Mechanic

Carpenter

Plumber

Refrigerat Electricia

ion/ n

H

ea

tin

g

Mechanic

Maintenance Repair 'rruck Driver•

Worker

Group V - Law Enforce~nt

Departments: (l) (2 1 (3)
Entrv Level Jobs

Sheriff Jails Coroner

Deputy Sheriff Stenographer Medical Secretary 'CMPrroueumbdclmikiccuaWlnSieTcaiagfrteahiottnynsIscnDrSsiipbeseeprvcraittcocehr eCr lerk

Group VI - Public Works - Administration and Design

Divisions:

(l) (2)

General Design

Administration

(3) (4) (5)

LInansdpeDcteivoenlopSmerevnitces Right of Way

-f ..,
--

Entry Level Jobs Graduate Engineer Sr. Civil Engineer Drafter Engineer Drafter Mapper Zoning Inspector Computer Operator Electrical Inspector Plumbing Inspector Gas Inspector Building Inspector Plans Examiner

Group VII - Public Work~ - Highway Maintenance

Divisions:

(l) Highway Maintenance and Construction
(2) Beuemer (3) Jl:etona (4) Shops (51 Traffic: (6) Landfill

Entry Level Jobs

Clerk Typist Intermediate Clerk Stores Clerk Senior Stores Clerk Administrative Intern Mainten~nc:e Mechanic Auto Body Worker• Automoti,-e Mechanic Carpenter Engineering Aide Truc:.k. Driver• Semi-skilled ~aborer* Service Station Attendant* Equipment Service Worker• Guard* Shop Helper• Auto Mechanic Helper* Disposal Site Attendant* Graduate Engineer Senior Civil Engineer Engineering Technician Drafter Traffic Planning Technician Traffic Control Technician Count~ Traffic Engineer TUTrrnaacfflffaiisccsiSSfiitegrdinpaiLlnagMboaMrienartcehPninaonesciOetipoWenrosartkoerr•• Cobat1*h4neJboenoejnnoobesusfceCnftnoiticlthvuleilnseedeDttsydeoCedncionirbnesaysiennet,hpnuoertntpofshADeumeibntesolucjetcorriAoeoebtmepnso.psvpeaaenofsctdufiaitxslnievfecmiebtilepylbsfl ooaaytrnsiehtinehesas sasitainsuenfcrfphiiplrsroaomkwrpvaaeoighdtrsriaeiavvrdtpeeaihotbeniyrnd1se3pctrajvhoourieafbiltgsmlrtp. aheapbIinshseftt

018715

Group VIII - Public Works - Sanitation an~ Sewerage

DiviAions:

(1) 8410 "(2) 8420
(3) Sanitation/Sewer Planta (4) Barton Laboratory

Entry Level Jobs

-

Clerk Typist Intermediate Clerk Graduate Engineer

Sewer Service Representative

Tap Machine Operator

Sewer Line - T. V. Equipment

Technician

Waste Wa~er Treatment Plant Operator

Painter

Electrician

Engineering Aide

Truck Dr i ver•

WWTP Maintenance Worker•

018 71 f)

APPENDIX B+

Group I- Administration-and Finance

nepartments 1

(1) County Commission (2) Revenue (3) Board of Equalization (4) Tax Collector (51 Printing

Entry Level Jobs

Senior Administrative Intern Public Information Officer AucHter Principal Auditor Accountant Revenue Examiner Property Appraiser Senior Property Appraiser Senior Accountant Tax Agent Offset Printing Operator Assistant Print Shop Supervisor Group II - General Services Department

Entry Level Jobs

Voting Machine Mechanic

Locksmith

Carpenter

Plumber

Refrigeration/Heating Electrician

Mechanic

Painter

Maintenance Repair Worker

Group III - Sheriff Department Deputy Sheriff Sheriff Sergeant
Entry Level Jobs Deputy Sheriff

+ Except accompanying Appendix or entry level purposes of

for the jobs text, jobs
Appendix A t jobs ~y
this Consent

hibDiandeetectnrahcetreoeief.nidsneieoddptearirnestpdmpeeacnpritarfsoigcmriaadohletlsiynot7niiafdalineedndjtoBiifbniosefdthfthoaisesr

01871?

Group IV- Public Works -'Administration and Desi;n

Divisions:

(ll General Administration (2) Design (3) Inspection Services (~) Land Development CS) Right of Way

Entry Level ~obs

Graduate Engin~er Engineering Technician Drafter Traffic Planning Technician Traffic Control Technician County Traffic Engineer Maintenance Mechanic Automo~ive Mechanic Carpenter Engineering Aide Unclassified Laborer Positions

Croup V - Public Works - Highway Maintenance

Divisions:

(1) Bighway Maint~nance and Construction
(2) Beuemer (3) :JCetona (4 l Shops tS I Traffic (fi I Landfill

Entry Level Jobs

Cr~duate Engineer ·Engineering Technician Drafter Traffic Planning Technician Traffic Control Technician County Traffic Engineer H.lintenance Mechanic Automotive Mechanic Carpenter Engineering Aide Semi-skilled Laborer• Unclassified Laborer Positions vocIfoifablcmjleatehpncdee•tcitivieCbtesiyovsueTpnihintrbeynoamjsistoosiuhsbtciiohusaonnsfapjboposolfrbeesomivettamiiiodso-psenlkfdsosuieylbleltwyfeeidsfilpollalilrrnattahbhbgoteerhraieenparahfnufphnin1aroa4cmrsua.lnaagictsrneiasvdpietfhhioeernd1e3pc,rsaauensifrttuvmobtiupceereeenenn.t

018718

Group V - Public Works Sanitation and Sewerage

Divisions:

(l) 8410 (2) 8420
(3) Sanitation/Sewer Plants (4) Barten Laboratory

-

Entry Level Jobs

Graduate Enqineer

Sew
~ap

er Service Machine O

Repres perator

e

n

t

a

t

i

ve

Sewer Sewer

Grout Line -

Specia
~. v.

list Equipm

ent

~echnician

Waste Water Painter

~reatment

Plant

Operator

Electrician Enqineerinq Aide Semi-skilled Laborer* Unclassified Laborer Positions

l
(.f

018719

-

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018720

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018721

~

'-·

APPENDIX D

Date of

Name

l>epartment

Application or

Job

Claim

Certification

Alicia P. Andrews Willie Austin Mamie Bickerstaff
(Stove) Josh Chappell 'Amy DeLoach Gorc!on Fears Cleophus Evans Viola Fritz Vendetta Humphrey Mary LeVert Jane Moore Walter Pickett Willie Sargent Moses Suggs Deborah !ferry 'ryrone Tolbert

'l'ax Collector Int Clerk 'l'ax Collector Int Clerk

race race

Print

Int. Clerk

race

Public Works Civil Enq

race

County Home Beac! Cook

race

Public: Works Water Po111.;1- race

t.ion Insp.

Public Works Sewage Plant

Operator

race

Criminal Court Int Clerk

race

'l'ax Assessor Int Clerk

race

County Home Bead Cook

race

!fax Assessor Intermediate

Clerk

race

Public Works Watchman

race

Inspection

Builc!inq

race

Services

Inspector

Building

Maintenance race

Services

Repair Worker

Sheri!!

Communications race

Serv.

Public Works Watchman

race

l/9/76 6/22/73 1974 10/22/76 11/73 8/3173
1975 517175 4/1/76 ll/73 1/28/75 2/28172
l/28/72 9/16/76 8/2/73

018722

Appen4ix z

Subclass !lo. l

~his subclass consists of all ~lack persons who took the

written test for the job of Peput:y Sheri!! t.hat resulted in

eliqibility lists for that. job which wen 11\ effect between

April 2S, l97S and January 10, 1977, vho have not been hired as

-

Peputy Sheriffs by the County, or who, aubsequent to January 10, 1977, were hired as Deputy Sheriffs by the County but who ~y have been hired earlier in that job but for their rank on

such eliqibility lists.

~he individuals identified below are .embers of this subclass who previously filed proof of claim forms under the Consent Decree with the Jefferson County Personnel Board and who indicated in their procf of claim forms that they were interested in emploj'1:1'1ent with the County •• Deputy Sheriffs. ~hese ind~vlduals will not. be required to submit another proof of claim form 1mder thia Decree in order to be eliqible for ~ack pay relief.

Addie, Barry

Allen, Ill, Lewis

Austin, Frederick L.

Baldwin, Euqene

Bell, Joyce A.

Belle, Sr., Frank

Bolden, Catherine

Bradford, James E.

Cannon, Charles Edwin

Carlton, l.a"~Jra

Clark, James Edward

Davis, ~enneth A.

Davis, Michael E.

Desmond, Pearlie

Donald, James R.

Drish, Charles Andrev

Dunning, Bosna:a Lee

Echols, S~y L.

English,

. . Dedrick

c.

Fields, ~on William

Forte, Eldrick

Fritz, Veola Parker

Gay, Jr., Chappell

01872.3

Gillespie, Jr., Bomer

Gray•on, James aernard

Green, Alm. ~laine

Grider, Jessie s.

BGarildl,erM, rW•. ilCliaeroFlTAan. k

Halloway, Oelphibe

-

Hampton, Mildred Bicxs, Frederick D. Hogan, Annie MAe

Horne, Jr. , lra

Bunter I acbert

.1acJt•on, ~Night.

.1ackson, .1r., lra

Jenkins, Jr., Benjamin

Johnsen, Berneeda

Jones, Ill, Cleveland

.:Jones, Donald Jt •

.:Jones, Geraldine

~endricks, Angeli& •·

Lambert, Daniel

Lanier, Walter Edwin

Lillie, .:James Darnell

Maze, Alfcnzc

McClure, Rickey l.ane

McElroy, Linda Joyce

Miles, Randy Lynn

Mont;omery, Isaac L.

Neuburn, David Edwards

Nichols, Freddie

Patt.on, l.anc;forl5

(•

Pearson, Gemet.ra

Perdue, Willie B~gh

Perkins, .:Joe L.

Perry, Latricia Ann

Pollard, Mary Alice (~imbrc~c;hl (Spann)

Sanders, DeWayne E.

Scott, .:Jr., Davil5 w.

Sherrod, Otha R. N. Duffie

Smith, Larry .:Jerome

Suttle (Hatcher), Elciae

Sutton, Eddie

Thomas, Wanda Gayle

Wallace, Oscar D.

Ward, Bob w.

1118724

Washington, Carl Jeffrey
••than Wedgeworth, Otis
Welch, Joe Whitehea~. l l , ~ed Williams(NationJ, Cynthia Ann Williams, Gwen~olyn Williams, James A. Williams, Sylvester James Willi&m£, Patricia A. WilsoD, Willie Young, Doria Jean
018725

,_

Subelau •o. 2

" AE2!ncHs

!'his agbclaaa cona1ata of all black peraona who were cer-

-

tifie~ by tbe Peraonnel Joarl and Dot hire~ by tbe County from certifications to tbe following jobs anc5 ~epartaenta, durin;

tbe following perio4a of tiae:

l>eEar U1en t

~

,.ime Period

•• Soar~ of Equal ha Uon (BE)
b. luilc5ing Sen·icea
(BU)
-c. Circuit Court
(CC)

Clerk 'rypht Interaec5iate Clerk

March 24, 1172-Deeelllber 31, 1976 JCarcb 24, 1t72-Deeeaber ll, 1976

Electrician Voting Machine Mechanic Watchman/Guard Clerk 'rypiat

March 24, 1t72-Decembe r 31, 1976 March 24, l 97 2-December 31, 1976 Mucb 24, 1972-Decellber Jl, 1976 ac.rcb 24, 1172-Z>eceaber 31, 1176

d. Criminal Court C:lerlt 'rypht
(CM)

Karch 24, 1172-Deceaber 31, lt76

r

•• Elata ~rocuaini leypuncb Operator (DP)

llarcb 24, 1172-Deceaber 31, 1976

f. Public works
(PW)

Engineering Aide Clerk 'rypiat Interae~iate Clerk Interaediate
Stene>gr apber ltoru Clerk ,.ruck Dr her Sewage Plant Operator 'ub1ic Ser•ice Aide

Marcb 24, 1972-Deeem.ber 31, U78 March 24, 1972-December Jl, U76 Mucb 24, U72-Decelllber 31, 1176 Marcb 24, 1972-December ll, 1976 March 24, 1172-Decelllber 31, 1976 JCarcb 24, U72-December 31, U76 JCarch 24, 1972-December 31, U76 KArch 24, 1J72-December 31, 1t76

I· aevenue (EIR)

C:lerlt ,.ypht Jnteraec51ate Clerk Computer Operator leypunch Operator

JCarch 24, 1972-December ll, 1976

March March March

24, 24, 24,

1972-December U72-December 1172-December

ll, ll, 31,

1976 1976 1176

b. Sheriff
(SD)

Eleputy Sheriff Interaediate Clerk Watchman Pood Service Super•iaor lten09rapher

JCarch March

24, 24,

1972-Decelllber U72-December

ll,
31,

1t71 1978

March 24, 1172-December 31, 1976

March 24, 1972-December ll, 1976

January 1, 1177-Deceaber 31, 1t71

Attachec5 hereto !a a llatin; of the aubclaa aeabera cur-

rently known to the plaintiffa.

01872()

APPEHDIJ G-1
•otlce Yo (In~ivlduals on Appendis Z) l>ear llr. CJU. )_ _ _ _ _ _ _ _•

Ybis notice 1• to 1n!ora you of your z!9bt to preaent a

cLaia tor bact ~Y relief ander a Conaent Decree between tbe

plaintiff• and ~efferaon County in tbe consolidated actions
ofa John w. MArtin, et al. •· City of Birain;ham, C.A. •o. 14-

•-0017-Sr and ~nite~ States of ~erica •· Jefferson County, et

. !!·, c.a. ao. 15-P-O"'-'·

lf JOU wiah to present a clala for back pay relief in

these caaea, please fill out tbe encloae~ proof of clala fora

and aail it to tbe Clerk of tbe Court for tbe •ortbern

l)istr ict of Alabama. Znclo..d for your aae Ia an ana tamped

envelope containini tbe aailini address of tbe Clerk of tbe

Court.

Tour proof of clai~ fora aust be receive~ by the Clerk of
(

the Court no leter than

P·•· on

' 1982. If

you do not file this proof of elai• form with the Clerk of the

Court by that date then, absent Qood cause ahovn, you will be

dee~ed to have waived your ri;ht to present a ela!m fer back

PlY relief under the Consent Decree.

After JOUr proof of claia fora Ia filed, It will be r ...

wiewed by attorneys for tbe plaintiffs who will aake a recoa-

aendat10D to tbe Court vbetber your claia aert:s an award of

back ~y ander the Conaent Decree. Ybe County baa aireed Dot

to contest any of tbe individual back pay deteralnatlons.

Alter final deterainationa bave betn aade of the back pay

avarda to be &liSe under tbil Conaent Decree, JCU v111 be DoU-

fied of your indi•idual award, If an7. lf you are not offered

a back pa1 award ander the Conaent l>ecree, or If JOU are net

01872?

f

aatisfied with tbe . .ownt· of bact pay pro•idtd to fOU, JOU

will ba•e ~bt right to file an objection to the re•olution of

JOUr claia witb ~~ Clerk of tbe Court. Ybat objection will

be aubaequen~ly ruled apon by the Oiatric~ Coart. Ybe pro-

-

cedures for filing &DJ •ucb objections will be ezplained to

JOU in tbe Dotice JOU will recel•e 1nforaing JOU of JOur award

of relief, lf any.
%f rou bave any questions with respect to tbil Dotice,

tbe Consent Decree, or the procedures for filing your proof of

claia fora, JOU ..y call or write any of tbe attorney• lilted

below:

Attorney• for the Onite~ State•:

aichard ~. aitter Onite~ States Departaent of ~ustice Civil ~ights Division Waahington, D. C. 20530 (.202) 633-lUS

Caryl Pr intt

Aaaiatant Onite~ States Attorney

fE
..... -

Rorthern Di•tr1ct of Alabaaa 200 Federal Ccurthouae

airmingham, Alabama 35203

(205) 254-1715

Attorneys for the Plaintiffs 1n Martin, et al. •· the City of li rmingha:u

Stephen L. lpitz

Lavyerl Committee for CiYil aigbts Under

Lav

Suite 520 733 Fifteenth

Street,

w.

w.

Vaahington, D. C. 20005

(202) 628-6700

Susan aeeves
~eevu 6 Still
2027 First Avenue Borth lui te 400 airalngham, Alabaaa 35203 (205) 322-7471

018728

1-
APPENDIX G-2

letiee ~o (1D~ivi~uala on Appen~iz F)

-

Dear Jl:. (Ms.) - - - - - '

~bia notice 1• to infora rou of fOur rivht to preaent a

claia for lndivi~ual relief under a Oonaent Decree between the

plaintiffs an~ Jefferaon County lD the conaolidated actions

ofa John w. Martin, et al. •· City of Birft!ngham, C.A. •o. 74-

0 P-0017-51 and United ltatea of America •· Je!feracn County,

et al., C.A. •o. 75-P-0666-1.

If you wiah to preaent a claia for in~ividual relief, please fill out the enclosed proof of claia fora and aail it to the Clerk of the Court for Morthern ~istrict of Ala~.
Znclosed for your aae la an unatamped envelope ccntainin; the aailin; addreaa of the Clerk of the Court.

Your proof of clai~ fora ~uat be received by the Clerk of

the Co1.2rt no later than

p.a. en

1982. If you do

not file this proof of claim for~ with the Clerk of the Court

by that date then, absent ;ood cause ahovn, you will be deemed

to have waived your ri;ht to present a claim for Individual

relief under the Consent Decree.

After your proof of claia fora ia filed, it will be reviewe~ by attorney• fer the plaintiff• who will aake a recoaaendaticn to the Court whether rour claia aerita an award of individual relief under the Consent Decree baaed on various factor• includin; the date of certification by the Peraonnel Board, the pay rate for the ~ob, an~ the reasons aaaerted for your not being aelecte~ for the ~ob. lucb an award aay include a ~ob offer or proaotion with the County, reaedial aeniority and/or bact pay. ~be County baa reserved the rivht to

018729

t

: 1 r!~~ ~~ to object to any 1n~ivi~ual job offera and/or re-

aedial aeniority datea propoaed by counael for the plaintiffs

on your behalf which have not been previously a;ree~ upon by

the partie• ~er tbe Conaent Decree. ~e county baa a;reed

not to contest any of the in~ividual back pay ~eterainations.

If any objections are raise~ by the County to any proposed job

offers and/or reae~ial aeniority for ~ou, an~ if tbe parties

are unable to reaolve auch objectiona, then the Court will de-

teraine the appropriate relief, if any, for ~ou under thia

Consent Cecree.

After final deterainationa have been aade of the individual awards of relief to be aade under this Consent Decree, ,ou will be notified of fOUr individual award, if any. If you do not receive an award of individual relief under the Conaent Decree, or if fOU are not aatiafied with the a.ount of relief provided to you, you will have the ri;bt to file an objection
to the resolution of fOUr claia with the Clerk of the Court. ~bat objection will be aubaequently ruled upon by the »iatrict Court. ~be procedures for filin; any aucb objection• will be ezplained to you in the notice you will receive inforain; you of your award of relief, if any.
If you have any queationa with respect to thia notice, the Conaent Decree, or the procedure• for filin; your proof of claia fora, you aay call or write any of the attorney• liated
Ml~:

Attorneys for the On!ted Statea:

~!chard J. United Stat Juatice

ai ea

t

ter Depar

t

a

e

n

t

of

Civil ~9bta ~iv1sion

Vashi~9ton, »C
(l02J 'Jl-liJS

20530

Caryl •rivett

AaAatitaotrannetyDnited ltatea

820c0rthPeerdnerDalisCtoriucrtthoouf sAe lab&&a

lirain~ham, Alabaaa (205) 254-1715

15203

018730

Attorn~ys for th~ Plaintiffs in Martin, et al. •· th~ CitY of Birmin;ham:

Stephen L. lplts

Z.vyera Committee for

-

Civil aigbta Onder Law
•.w. Suite 520
733 Fifteenth Street,

Vaahinvton, ~ 20005

(202) ,28-"00

luaan Jleevea Jleevu 1 Still 2027 'irat Avenue 8orth lui te 400 Bir•invham, Alaba•a 35203 (.205) l22-7C"

018731

APPENDIX B

Proof cf.Clai• Form

-

Please lilt rours

••me=-------------------------------------------

Ca.ucrr•e•n-t--A-~-~-r-ea -s -: -_-_--_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_

CUrrent telephone •uaberz.________________________

Please check the boz below if the atatement liate~ nest to the boz appliea to rou an~ rou wiab to present a claia for relief an~er the Conaent Decree with Jefferson County.
_____ % aa a black peraon who took a written test adminiltere~ by the Peraonnel aoar~ of Jefferson County for a job as a Deputy Sheriff with Jefferaon·CDunty.% wish to preaent a claia for relief under the Consent Decree with Jefferson County.
Please si;n and date this proof of claia fora and return 1t to the Clerk of the Court tn the encloaed aelf-ac5c5u..ed envelope.

Signature ~te: ___________________

Social Security ~~ber

018732

~roof of Claia Fora

If 7ou wbh to present a claim for Jzu5hidual relief

ander tbe CDDsent ~cree wltb ~efferson County please aign an~

-

date this proof of claim for• and furnish the lnforaation requeated below. 7bia lnfora.tion will be re•iewed by counsel

for ~effeuon County for the purpose of d.eter•ining tbe relief

to be pro•ide~ to 70u, if any, ander tbe Consent Decree.

1. Please list 7oura

•ame:

aacea ------------------------------------

Current Addressr --------------------------

Current ,.elephone •umber a - - - - - - - - - - - - -

2. aecords obtained from the Jefferson County Person-

nel Board

~ob(s)

of

in"icate that you were _________________

cert!fie!S ________

and ___

not ___

bire!S _____

for ___

t

h

e

in of

tbe Depart.aent (a) of - - - - - - - - - - - - - - - - Jefferaon County on or about _ _ _ _ _ _ _____ <:...::d:.:a~t:.:::•:..~!..:•:..£)

Please in~icate in tbe 8pace provide~ below in as aucb detail as possible an~ to tbe beat of your recollection the following infora.tion. If you nee~ acre apace to aupply tbia infora.tion

7ou aay attach aiSISitional abeeta of paper to tbia proof of claia fora.

(i) Please liat your aailini a!Sdreaa an!S telephone number at or around the tlae 70u were certified for the ~ob(s) listed above, an!S in"icate whether JOU were living at tbat •""resa at that tiae.

018733

UU tleue iDdic:ate wbetber J'OU wen enr con-

tacted by anyone at Jefferaon CouDty for an· interYiev for

the 'ob(a) lD tbe lepartaent(8) 11ated aboye at or around

the date (•) lhted abon, and, if ao, pluae 1nc!icate

whether J'OU appeared for that iDterYiev and deacribe wbat

-

~ppened during that inter•1••·

CUi)

fleue indicate whether fOU would have ac-

cepted an offer of e11ployaent in the 'ob(a) and at the

lepart.ent(8) liated abo•• bad •ucb offer(a) been aade to

fOU at or about the tiae fOU were certified for auch

pca!Uon(a).

018734

3. Please 1n~icate whether at any ti. . aubae~uent to

your being certifie~ for ~he 'ob(a) in the departaent(a) liat-

•••r .~ in p~ragxapb 2 a~•• rou were

offer~ ~loyaent by

..----

Jef!eraon County In another ~ob. lf ao, please ldentifyz (1)

the ~ob(a) you were of!ere~, (2) the departaenta (lf known) ln

which that ~ob esiate~, (3) the approsiaate date(a) of the of-
fer, c•J whether you accepte~ auch offer, an~ your approsiaate

dates of employaent ln that ~ob(a).

•· Please in~icate whether at any ti~ aubae~uent to

your being certifie4 for the job(l) in the departaent(a) liat-

\

•~ in paragraph 2 above, you were ever offere~ employment by

the City of liraingh.. , or the Jefferaon County Bealth Depart-

aent, or any of the folloving aunicipalitieaz leaaemer, Pair-

field, Fultondale, Gardendale, Boaevood, •ueytown, Midfield,

Mountain lrook, Pleasant Creve, Yarrant, or Veatavia Billa.

If ao, please ldentifya (1) wblch of the above cltiea, depart-

aenta or aun1cipalitiea offered you employment, (2) the job

that you were offered, (3) whether you accepted auch offer and

your approsiaate date(a) of ecployaent in that job(a).

018735

~leaae a!gn an~ date t~!• proof of cla!: ~=== ~=~ r=~~rn it to tbe Clerk of tbe Cburt in tbe enclose~ aelf-a~~reaae~ envelope.
llin&ture Date1 Social Security Mumber
018 73 f)

&PPEN~IX J
&ZtZASE For aad Ia coaaider•tioD of the aua of [au. !p!lle~ out) Dollar• ($______, and all other ~ellef to be provided •• by Jeffcraon County purauant to the provillona of the Con1ent De~
cree with Jtfferaon County entered by the Bonorable lam c.
•ointer, Jr., United Statea District Judge, on l____d==•~t•:----Jl ln the conaolidated action• of United Btatea •· Jefferson
County, et al., c. A. ao. 15-t-0666-S, and John v. Martin, et !1·• •· City of •irainghaa, et al., C.A. •o. 14-1-0011•1, 1
lfull name of elaiaant], for •yaelf and foray beira, ezecutora, a4m1n11tratora and aaai;na bereby release and discharge Jefferaon County, 1ta officiala, agenta, and employee• of and fro• all legal and equitable clai•• ariaing out of the aubject ..tter of theae conaolidated actiona or any other legal, equitable or adainiatrati•e claiaa or cauaea of action ariaing out of alleged diacriaination on the ba1i1 of either race or ••• by Jeffer1on County, ln •iolation of any Fe~eral, atate or local equal eaployaent opportunity lava, atatutea, regulationa or ordinance• occurring prior to the date of the execution of thia releaae.
1 underatand and agree that aone of the partie• bereby releaaed, aor any other party, admitl that 1 bave any ~ult claia against thea or anyone elae ln respect to ay aald ••~loyaent with Jefferaon County, or application thereof, and that aont of the partlea bereby releaaed, aor any other party, adaita or baa admitted liability to •• or anyone else on account of any pay.ent bereln recited to bave been ••d• to ae, or otherwiae.
018737

f .

t~ ~

: :ar:fu!!i bavt rea~ thia aeltaat aa well aa the ~~a.-

panyizlg Coa.MIIt ~cret entered f,_____;datt._ _ _J• J fully

comprehend and an~erata~ that bJ aigning thia ael•••• I aa

rtltaling ay claia for ._ct pay, aDd that I .. eDt!tltd to no

-

otber par-ent of .anita for any claia of eaplor-ent diacriai-

nation prior to tbe date tbia aeltaae 1• eaecuted froa Jtffer-

aon CoantJ ezcept as recited btrtin.

J furtbtr certify and warrant tbat % bavt bad tbt oppor-
tunity to consult an attorney prior to tztcution of tbia aelealtl that J aa of lawful attl and, tbat 1 aa ai;ning tbia aeleaae of ay own frtt act an~ deed.

li;ned tbh ___ day of -----' 1112.

(Signature) Social Itcurl ty Number - - - - - - - - - _lclttuhe&dbirsaltaicofuryyifnbdeoowedffhrfsiciai gchnndewe. dalwt naoeurnatahtooa,ryi1tbybJeaIfnoo2dnr, eattohnadei a
IIOTARX PUBLIC

018.138

IIOTICE OF n.OPOSED IE'M'LDU:N'T AGRE!MEN'TS

A2'm COND!'riON.U. CLASS C!RTIFICA'flOR

'l'bere la currently hfon tfle 'United ltat.. l»htrict

-

Court for the llorthern J)iltrict of Alabama a propo..d •ettle-

aent avreeaent with Jefferaon County in the following conaoli-

dated employment diacriaination actions: John W. ~rtin, et
!!· •· CitY of lirain;ham, et al. (C.A. ao. 14-1-17•1), and

Dnihd Statu of America •• Jefferson County, et al. (C.A.

8o. 15-P-0,66-1).

Yhe propoaed aettleaent agreeaent la in the fora of a Conaent Decree. Yhe Consent Decree will reaol•e all of the plaintiff•' claiaa of e~loyaent diacriaination against blacks and women by Jefferson County.

On

, 1112 the J)iatrict Court entered an Order

grantinv proviaional appro•al to the Conaernt Decree, •ubject

to further bearinga. In that Order the Court withheld final

approval of the Consent Decree until after bearing any oboe

jectiona which aay be filed to lt, aa further esplained in

Part II of thia llotice.

%.
Class Certification Rulinv
On - - - - - - ' 1112 the District Court entered an Order purauant to aule 2l(b)(2) of the Federal aulea of Ci•11 Procedure in the Martin action. In that OTder the Court conditionally certified for purposes of thia aettleaent agreement the following claaaea of black lndi•iduala who aay be elitible to preaent a claia for back pay and other relief under the Consent Decree.

018'13!3

 
 --

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHE~~ DISTRICT OF ALABAMA
SOUTHERN DIVISION

UNITED STATES OF AMERICA,

)

. RECEIVED
JUN 81981
UNJHAOIMRTTEEHDSERS£N.lAYOTAEtSSNlliDiOC£TIlSlRTOlRFfTI:A,11CJC.LSCE.\Lf',·:''\P\i

v.

Plaintiff,

) ) ) )

CIV7IL5-PA-C0T6IO6N6-5NO.

JEFFERSON COUNTY, et al. ,

) )

Defendants.

) )

)

JOHN W. MARTIN, et al.,

) )

Plaintiffs,

) )

v.

)

)

CITY OF BIRMINGHAM, et al.,

) )

CIV74IL-ZA-1C7T-IOSN NO.

Defendants.

) )

)

ENSLEY et al.

,

BRANCH

OF

THE

N.A.A.C.P.,

) )

·.~

v.

Plaintiffs,

) )

)

)

CIVIL ACTION 74-Z-12-S

NC

'

GEORGE SEIBELS, et al.,

) )

Defendants.

) )

)

tBIFAAeoSnapiaorrmcc.trcnmusttaoestt.rtinihvoctneoodeoiegf.rensefThidiansr51ahonp1tm1e9nhd8abr26csa6gyp28oa6cALa1,lnmCtai,omotdOinaahpifcce!NnssnealnedSt!atdlthETaimiNe~ En1tmofiFehT8ttfqfnesileos7· utnse,Dt1addchCElf,teiaCetiosVdihltlR~rtcE,heIye2ErmIteAdEin4hmOaop2pseOWmolfts.oilfhSmoeiInyaTCsdB.ema.niECtsioitniaterbhdr.i.nnmntTuoceeitcHssSinc.ffnetEeolfiCgCO9ntSsmhbCurBAdpi3iaaIpvtmap7Tmlcsial,in6Yooteelalt6drnli4astn(oCeOn2uRctgfdFooo)nsh~inonafig(d1Btodt.ihly9Irnst)Rrtto7hh.atse,Mlc2heAncteIh,.NrgtaeaAchseGatntUcae5sgHdatsent1eAnotoCd9ihMSdftoc8aeeaiemfo3dvifsnn1,eneieCf91lsnxSoa7Sa9odinrtRt26eltcdaywi,rdp4iedtge,,aeitahetothtsththt-:tfhae.esnsesed

'-L'f'",
/

respect to pline, and Birmingham complaints.

recruitment, hiring, assignment, promotion, disciother terms and conditions of employment. The City of
has denied the allegations in ·the plaintiffs'

mmtrcswpphdaepCeertdaclnaeiaaainoaptaosiniycsnttytrvatnnehtpygdtmdetcrsirftisfvoaeedoniuaooTanvnalssigngrrifhnsnintahtrd,necyhtoeetaaiaBrecoextesltpaigmtoiprpfslemrchbeapiusdrpmenetosrietbleilnondtsisansiesantirtreaitsigeoegctnitnauaoshssgtigtannictuobnoahaiosdichmbltninlfetnaotteemtif.iiichsodalooseraikhyteftstnnghtsocitdoissaenBapifane,rsdiwaypamiennnsnttocrtiohdCsiietthetltrofhuteayoloentefnnewihnsaisttntaeo'cbsehenettmmdCieheeodrsoinenmioaefeicfngnatetulaopcybgnevcaaDotnraottshocooctrnsvoeo.teaviatiouoeccodfinpitfrlrlotdrtieutarahBnnodemteeTssncehsamdeiuifhdaireoytaocyetmteeCynhrharstdtidbehwnsino'ipituadfesgodayaveatrdhfosehdreeaceaotCftteeosotemlesifnroitflseorholepsna.mastiesnnashBlwntauendiaasehinsnwnndrl.iMudamatdtoncTnierttnaRohilateidynDcleieImiosoegfxocfaetnreqthffhpssscdhl.rpsuae~e,artolmoaeaeasrngmdeikfltdtrsrnoehTetefefieuaahiotAteeextmtnsnhehtoorh-ns--ryy-eefe-pTcmcUrhao.ienersseitsttipieseoado.snrftSsibeTaityganshntytiehsaasectvoDciwCreoeypaclitiartvyehteeiteosohrsnefiahstonBaoyialrfaglmesrielnnnaetotgwomitht,elatecmnhmeotexnoeaesrnsictstuiosfttutuiiihnevtteesaermlsraaoeyansrsndiodhgaeladnvrvbjaeeiutdonodrdtriohicyneragerrtteiegooaicumnnotl.ohvanoetigisrroyntDahsdoee.--f odaCimmfifoinfndpiaAgerlnhemdcamTm(meah•e,tietninhovtaiefapnestdtliSrafoaaeaintctchniitrtveitiboieoyfnhinfsiDssserpuaiil2ncarraeh-engn4cccs-toed5oigev1irnpbnedyiaitzrhnaAettrcamhAocne-tueo1chngreeMthd•aaa)noany,2ddofc-r4eotEh-pto5hexwtf6ieeoictatnhouChnftneiibttvuhyytCeaheleitotOhyfpfBearrdiioeBrermCfpirraiimBhntr1yigiain7rrhtmgi-iaon7homifnga7nmg, ChBoaaaiionrmtsrd-yf-

-2-

evidence of good faith efforts by the City of Birmingham to take meaningful affirmative action to increase minority and female participation throughou·t the City's work force.·-

Now therefore, on the basis of the foregoing representations

of the plaintiffs, the City of Birmingham and the Mayor of the

-

City of Birmingham, and all trial proceedings and discovery filed herein to date, it is hereby ORDERED, ADJUDGED, and DECREED as

follows:

I. GENERAL PROVISIONS 1. The defendant City of Birmingham, its officials, agents, employees, and all persons in active concert or participation with them in the performance of city functions (herein collectively referred to as the City) are permanently enjoined and restrained from engaging in any act or practice which has the purpose or effect of unlawfully discriminating against any employee of, or any applicant or prospective applicant with, the City of Birmingham because of such individual's race, color or sex. Specifically, the City shall not discriminate on the basis of race, color or aex in recruiting, hiring, promotion, upgrading, training, job assignments, discharge or other disciplinary measures, compensation, or other terms and conditions or privileges of em-· ployment. Further, the City shall not retaliate against or in any way take action against any person because that person opposes or has opposed alleged discriminatory policies or practices in the City of Birmingham, or because of that person's participation in or cooperation with the investigation and trial of these actions, or in any proceedings therein. 2. Nothing herein shall be interpreted as requiring the City to hire unnecessary personnel, or to hire, transfer, or promote a person who is not qualified, or to hire, transfer or promote a less qualified person, in preference to a person who is demonstrably better qualified based upon the results of a job related selection procedure. Nothing herein shall prohibit the City from discharging or disciplining employees for just cause in

-3-
018801

accordance with applicable law, provided however that any such

actions are taken and executed in a non-discriminatory manner

'

without regard to race or sex, and are otherwise consistent and

in conformity with the City's obligations under this Decree.

3. Remedial actions and practices required by the terms of,

-

or permitted to effectuate and carry out the purposes of, this Consent Decree shall not be deemed discriminatory within the

meaning of paragraph 1 above or the provisions of 42 u.s.c.

2000e-2(h), (j), and the parties hereto agree that they shall in-

dividually and jointly defend the lawfulness of such remedial

measures in the event of challenge by any other party to this

litigation or by any other person or party who may seek to chal-

lenge such remedial measures through intervention or collateral

attack. If any collateral lawsuit involving this Consent Decree

arises in state court, then the City shall notify counsel for the

plaintiffs and remove such action to the United States District

Court.

4. In the event plaintiffs seek to enforce any provision
(
of this Decree they shall provide notice of their intentions to: City Attorney City of Birmingham 600 City Hall Birmingham, Alabama 35203
Such notice shall state, with reasonable particularity, the nature of the alleged violation and the relief sought. The parties shall have a period of thirty (30) days within which to resolve the matter informally. If the parties fail to resolve the matter plaintiffs may, upon expiration of the thirty-day period, apply to the Court for an appropriate enforcement order.
II. GOALS
S. In order to correct the effects of any underrepresentation of blacks and women in the City's workforce caused by any alleged prior discriminatory employment practices, the City agrees to adopt as a long term goal, subject to the availability of qualified applicants, the employment of blacks and women in each job classification in each department of the City of Birmingham in percentages which approximate their respective percentages in the civilian labor force of Jefferson County as defined

-4-

018802

by the 1970 Federal Census. As a means of achieving the long term

goal established by this Decree the City may prefer residents of

the City for appointment. This long term goal ~all be appro-

priately modified to reflect any changes in the racial and sexual

composition of the applicable civilian labor force as reflected

-

by the 1980 Census. The parties also preserve the right to adjust, through agreement and subject to the approval of the Court,

any of the goals provided by this Decree where it can be shown

that a professional degree, license or certificate is required to

perform the duties of any particular job or jobs in the City's

workforce and that blacks and/or women hold such degrees, 1 i-

censes or certificates in percentage terms which are inconsistent

with the goals provided.

A. Goals for Blacks

6. In order to achieve the long term goal in the job classifications set forth below, and subject to the availability of qualified black applicants for those jobs, the City shall establish and attempt to achieve an annual goal of making probational appointments to vacancies in permanent, full-time positions in the classified service of black applicants at the rates set forth below or at the rate of black representation among applicants, whichever is higher.

Job Classification l. Account Clerk
...2. Automotive Mechanic
3. Building Inspector Construction Equipment Operator
5. Firefighter 6, Gardener 7. Heavy Equipment Operator 8. Labor Supervisor 9. Police Officer 10. Police Radio Dispatcher ll. Police Sergeant 12. Fire Lieutenant 13. Public Works Supervisor 14. Construction Supervisor 15. Refuse Truck Driver 16. Revenue Examiner 17. Secretary 18. Senior Clerk 19. Senior Sanitation Inspector 20. Zookeeper

Interim Annual Goal
50\ 50\ 33\
50\ 50\
so'
50\ 50\ 50\ 50\ 50\ 50\ SO% SO\ 50\ SO\ SO\ SO\ 33\ SO\

-s-

U18803

7. In order to achieve the long term goal in the job classifications within the job groups identified below, and subject to the availability of qualified black applicants· tor the jobs in those job groups, the City shall establish and attempt to achieve an annual goal of making probational appointments to vacancies in permanent, full-time positions in the classified service of black applicants at the rates set forth below or at the rate of black representation among applicants, whichever is higher. Attached as Appendix A to this Consent Decree is a listing of each of the job classifications included within each of the job groups set fort~ in this paragraph.

Job Group Group I - Engineering Department
1) Professionals 2) Technicians
Group II - Finance Department 1) Professionals 2) Technicians

Interim Annual Goal 25% 25%
25%

\

Group III - Inspection Services Department

ll Technicians {other than Building Inspector)
2) Skilled Craft Workers

25%" 25%

Group IV - Traffic Engineering Department

1) Technicians

25t

Group V - Office of Bousing

1) Professionals

25%

8. In order to correct the effects of any past underrepresentation of blacks in the Police and Fire departments of the City of Birmingham, and to further insure the achievement of the long term goal established by this Decree, the City shall, subject to the availability of qualified black candidates, promote at least two {2) blacks to the next four (4) lieutenant vacancies in the Police Department and shall promote at least one (1) black

-6-
018804

\. -

tfotpgFhruhcT(tfoooo2ieaonhmrsa)snetecileidbtastlcwihC~ilodjaadethooitnepcaaithfbcpykstitenhaseanpe.iisrsrpnxlnpt,oohematrmntnraovhecgpdtomlwaenerltcon,otoitbPnsametta,agnroisoto(mgclu2ttniteibe)bcahealgj!eselaecro~aceDcaca?kitpCtpla~nesr_ntpioaetltcadtoteyfishrohinate~dmetsnetsavhhvtefthtaFianeeaascttcsioiailranaaonlneDannevncredcstiaedciheeetirei(eseoelsntplkaer)avibaFinrtanidiitthcsbmrloieliaelttiteanimheyncoacDjeuekotcint.teeohbaePps.fiinltaoenlociravlTqyntlinemtucahhtttsesaeehheentsrlaeehileDtinPefefadpiecioafneopcttltecdieaesainxcaridrtttttetp,iwmbieotoflraiaenaaotincwninnmcrsensddtko.

B. Goals For Women

geAmttoptrapahirtooafconoerteluhadanepsmpcfcirrsehstoeteamtieiefors9oitcstdneaeeaneelptsna.ecshtntratoheoeassfarteafsteooIrpinejtnAeorocpnnrtcnbp•elfluhttomaipoasacresoctrtlaadiinfsrtfllnonohediaiiecnnfrirtswsxsitttnsoeheitomietndroiBtahfnxeisogmienmtlcsoyotpeaonvvt"iieagrogtneta,fvirorsctofaciaehattegocnhahalncijmercspeeoscatohepbispifeiClnjChnsjoitm.aiooohccbtntfbnleaayihnunksnecodeigtestnulhnersphfagjnoted,eofascurebpseDlmpwPclmriwefgeotaioecsihetnrrbncrhrosiseeatcoaiuotnsetnhaanptftieit,obsnoivienealnsetnafilnlahrsucisyleshmhalBtlaalpe-lornpoailtsdaryasinipfistmrtdooed-eboittrhe'endhifsaionltetogumfptgtphwbenhoeejermfdoernsolieaeoo~bsiptf-rt-wsert-·

Job GrOUE Group I - Police Department

Interim Annual Goal 25t

Protective Services (Police Officer)

Group II - Police Department

25t

Protective Services (Police Sergeant)

Group III - Fire Department

1St

Protective Services

-7-
0 1880~)

Group IV - Engineering Department

30\

Professionals Technicians Para-professionals

Group V - Inspection Services Departments

20\

-

Professionals Technicians Skilled Craft Workers

Group VI - Municipal Garage

20\

Skilled Craft Workers Service/Maintenance Workers

Group VII - Office of Housing

20\

Professionals

Group VIII - Streets ' Sanitation

20\

Technicians Service/Maintenance Workers

Group IX - Traffic Engineering

30\

Professionals

Technicians

(..-

Skilled Craft Workers

Service/Maintenance Workers

Group X - Parks ' Recreation

20\

Skilled Craft Workers Service/Maintenance Workers

Group XI - Parking Authority

30\

Protective Services

9b. With respect to promotions to sworn positions in the police department above the rank of sergeant 1 the CHy _sba.l:L_ subject to the availability of qualified female applicants, seek to insure that women are promoted to such positions in percentages which are approximately equivalent to their percentage representation in the job classifications from which promotional candidates are traditionally -~elected.-
c. ImPlementation of Goals
lOa. In order further to insure the possibility of achieving the goals for blacks and women set forth in this Decree, the

-8-
u18 80 t)

City shall request the Personnel Board selectively to certify to

··'--

the City for appointm,ent qualified blacks and females whenever such action is necessary to provide the City with a certification

list that contains sufficient numbers of blacks and females to

meet the goals set forth in this Decree. More specifically, in

-

cases where candidates have been found unqualified or unavailable for appointment, the City shall request that the Person~l Board

certify sufficient numbers of qualified blacks and women to meet

the goals of this Decree. In this regard the City may request

that the Personnel Board cert~fy qualified blacks and females who

are not incumbent employees of the City of Birmingham. In deter-

mining the City's compliance with the goals of this Decree, the

appointment of a black female ahall count toward both black and

female hiring and promotion goals.

lOb. In the event the Personnel Board declines, or is unable, to furnish lists containing qualified blacks or females, or in the event the Personnel Board declines to eliminate from its consideration of eligibles non-validated promotional potential ratings, the City, notwithstanding any state or local law, shall take wnatever actions are required to comply with the terms of this Decree. Such actions may include, but are not limited to:
(i) Directly recruiting blacks or females, for

the purpose of supplementing any non-con-

forming list furnished by the Personnel

Board.

(ii) Considering existing black and female City employees for promotion, whether or not such candidate was certified by the Personnel Board and supplementing any such non-conforming list furnished by the Personnel Board with such persons as are deemed qualified by the City.

-9-

III. AFFIRMATIVE ACTION PLANS

11. On an annual basis for five years after entry of this

Decree, each department of the City shall submit to the Office of

the Mayor, in writing, an affirmative action plan designed to in-

crease the employment and promotions of blacks and women in the

-

respective department, and to otherwise promote the implementation of this Decree. The plan shall set forth the affirmative

steps to be taken to increase the employment and upgrading of

blacks and women.

12. A copy of the affirmative action plan for each depart-

ment, when approved by the Mayor, shall be posted in a conspic-

uous and prominent place in the main office of each department of

the City, and a copy of each plan shall be promi·n~ntly posted by

the Director of Personnel in a public area in City Ball.

13. Each department head shall submit to the Mayor semi-

annual evaluation reports of the department's affirmative action

plan. The report shall also include a review of the department's

..

progress in achieving the specific goals of this Decree and of the department's affirmative action plan, noting the goals which

were achieved and those not yet achieved, the reason £.of any

failure to achieve goals, and the remedial action being taken to

overcome any such failure.

IV. RECRUITMENT
14. The City a hall continue to develop and reassess its present affirmative recruitment program designed to inform blacks and women of job opportunities with the City for the purpose of aecuring sufficient qualified applicants to enable the City to meet the hiring goals set forth herein. The recruitment program shall include maintaining contacts with area high schools, technical and vocational schools, colleges, and organizations which have traditionally expressed an interest in providing minority and female applicants or which indicate such interest in the future, and informing them of employment opportunities with the City. In addition, where appropriate, advertising of employment

-10-
018808

opportunities shall be placed with or in advertising media pri-

marily directed to black and female audiences for the purpose of

emphasizing to blacks and women the availability of employment

opportunities with the City. As part of its recruitment program

the City shall utilize black and female recruiters for the Police

---

and Fire Departments.

V. JOB POSTING

15. The City shall inform its employees of all opportunities for promotion or transfer. The City shall insure that all written announcements received from the Personnel Board for hiring, promotion and training opportunities with the City are made available to all of its employees reasonably in advance of any scheduled examinations or training for such positions. Such announcements shall be posted in conspicuous places so that reasonable notice is given to the City's employees of such employment opportunities.

16. Notices of vacancies within a department in either per-

(

manent, part-time or temporary positions shall be posted sepa-

rately and in conspicuous places from notices of vacancies in

other departments. With respect to promotions and/or training

opportunities in the Police, Fire, and Streets and Sanitation de-

partments, the City shall insure that written notification of

promotion or training opportunities in jobs in those departments

are contained on separate bulletin boards and in conspicuous

places at each precinct, fire house or division of such depart-

ments. The City shall also seek to insure that such announce-

ments remain on the bulletin board for the specified period of

time, and that they are not taken down or otherwise tampered with

by unauthorized persons.

VI. SEX RESATNRDICTCIEORNTSIFIICNATJOIOBNSANNOUNCEMENTS
17. The City shall not request that the Personnel Board restrict any job announcements or certifications on the basis of sex except where, pursuant to a proper validation study, gender

-11-

('1188Qfl '·' ...L'

'....I

-

mpsdjtiuroieisoconbtphean(dertsmier)aowtpeinminprl.tmiarohsottiiitinvnooeaenndldthtiieiotssnompanscepeuooapcttnnirhiotsngivtgoareinantdunnoottftieeuhndnSec,aewecCmtbrthoiioetoeunninranttsCg7fifoi0tobdry3rye(cerate)eohpsrcepteocirruffovUipvecTnaasalitltit~eoitdoehonfeanSlVstrt,IhqiaIgeutaehanfsdotdl.irefustipeuctorhcIan-hfe-

VII. HEIGHT-WEIGHT REQUIREMENTS sotwitroietinuwg,ohtme1tn8deonr.reaqasnuTsdhihraesealemdlClmeeiitcnitynttsiiaossbtnwhiedahreecilcldrhbinytbeohyaatrnvityueahseesafunoPocrehrardsarfonveoyneqlrlnuosceiewrlleamBsiamsoneipyanfratidcmse.tdiniiafmsguetamhrivenyihscteeairgbephlaoticsnkoi--sr lfmtieltoomiuni.iaorfncnonongeirrencentapVnhaontrstfeltIol1keohIolrsm9rerIearftga.iugxnoane.apetsptaiumettooTEonherscnhliLrtdrvinredseIciaeaGeectesdtstorICeioBeioyptirlItnsteoLviostoy}eahreIilTfrcuierboscvYetsteiireeehnmnunTaeiepnlemnOaollixoileionrntilgrudArtniteai.PnceethbnPererotriLkrlnhtgaYueasatnhEpofennkremoFttrert.oOergpbtqRdwlseeuortcohaaiayPsarneankReeyneletkOlered,ilsMvgaiptiOnndbrihwcosTbooaaeehIlsrttlOoieeuecNpibsdsnenerhhitoTawnoaOurdmovhtalpeeeoflneootCframnktErihiiokcRueotabedTep(anvtoAnrtareaiersIyetliNnhdnqtteeewweutmJxlsodoOioiiaerpngBmeriryymSispvobieeeemuniparlacmraoevorr-e--s-se

lfffgteoihiinrrrbaegenltephlrltliowi9etoemoobu,fuo.ttyetsetiTeanenoahkranaervennsittcCt.touehionteyrEiotnhmrptfeseprithlroriomarnemyuleeelpoxectttsiinaenodpownhtthraiasoaglirenhnerhkeeqvar.xsuviacheimrreaaeoilnnbilknfatiatnriirbooenaatnfnesidkegbfdehopintredeuremproetoshmrandeneteedoarnpntoiytsnosseetirmatvlbiitieeonguinmisembulolaomiers-fe

19c. For purposes of subparagraphs terrupted• service shall include any time

a and spent

b the term •uninas a probationary

-12-
018810

employee.

20. In order to be eligible to take the promotional examina-

tions for the positions of public works supervisor. QL construction

supervisor, an employee must have permanent status as a truck

driver, refuse truck driver, labor supervisor, heavy equipment

-

operator or construction equipment operator. In orde~ to be eligible to take the promotional examination for the position of

sanitation inspector, an employee must have permanent status as a

truck driver or semi-skilled laborer.

21. Any employee who has worked full-time in an unclassified laborer position for twelve consecutive months shall be eligible to apply to take the promotional examinations for the following classifications: semi-skilled laborer, truck driver, refuse truck driver, equipment service worker, automotive mechanic helper. As used in this paragraph, the term laborer shall include the classification of building service worker, laborer, and refuse collector.

22. Any employee who has obtained permanent status as a semi-skilled laborer or truck driver shall be eligible to apply· to take ~he promotional examinations for the following classifications: truck driver, refuse truck driver, labor supervisor, heavy equipment operator, equipment service worker, automotive mechanic helper.

23. Any employee who has obtained permanent status as a truck driver, lH~avy equipment operator, refuse truck driver, c: labor supervisor shall be eligible to apply to take the promotional examination for the classification of construction equipment op~rator.

IX. PROMOTIONAL POTENTIAL RATINGS
24. The City may continue to use the Personnel Board's current promotional potential rating system in departments where it is shown to have no adverse impact. The City shall discontinue the use of the Personnel Board's current promotional potential rating system in the following departments in which departments such ratings have been demonstrated to have had an adverse impact on blacks: Streets and Sanitation, Police, Fire, Parks and Recreation.

-13-

018811

25. The City further agrees to discontinue the use of the

Personnel Board's current promotional potential rating system to

determine eligibility for promotion in any other de~tment where,

based upon any two successive rating cycles (one cycle consisting

of 6 months), there is evidence of adverse impact against blacks.

-

In determining adverse impact under this subpart the parties agree to rely upon section 40 of the Uniform Guidelines.

X. BACKGROUND INVESTIGATIONS

26. Background investigations shall be conducted in such a

manner so as not unlawfully to discriminate on the basis of race

or aex. Applicants for employment shall not be disqualified

automatically on the basis of an arrest or conviction record, a

military discharge that is less than honorable, or a poor credit

rating. In considering the effect of a criminal conviction upon

an applicant's qualifications, the City shall consider at least

the following factors: (1) the nature of the position the appli-

cant is seeking; (2) the nature of the crime; (3) the period of

time elapsed since the conviction; and (4) the success or failure

··-·(

of rehabilitation efforts.

27: The City shall establish a writ ten policy concerning background investigations within the Police Department within 90 days after this Decree is entered. As part of that policy, the Police Department shall provide applicants who have been rejected on the basis of the background investigation written notice of t~e specific reason(s) for their rejection. An applicant who has received such notice shall be allowed ten (10) days to respond orally or in writing and to provide relevant information concerning the basis for rejection. The City shall insure that auch oral or written response and relevant information is reviewed by an individual(s) who did not participate in the applicant's initial background investigation, and that this review shall occur before the rejection becomes final. The Department's background investigation policy shall be reviewed periodically to insure that it is administered in a non-discriminatory manner,

-14-

0188l2

--

lgffqtiaieoronnusomrmvdutabanelelidfsetGfohtjiiuroaaicgnibptaadsvptuteriealicloeinosihclynntnaaiegtjnscooeapt.obdftrmirooebbTipcnnyjloeheaesnccaassekntcphnecsotawdosall,hrpioldcfiprcoyaablhnrsiewcpcsoaaehermrenecaejwpsnttlosullibaotalhcaoftrbelerystdtihohneereeoleipentararmshseaoteomqevhdnrnuieeidtiseosrerpnelfaiermotmcoxahfeepntiannottotcaahrserdtteareivnoogtdyefbnierafnasobtc~edhtrlkecaeegabcrsrt.kha~ odiocuoiwoknsnr-nd-

XI. SUPERVISORY INSTRUCTION

AatSCrCtnheecudiigetntptiyaiyoetrrrirnedsvwa2eshilO8qisuta.luooflellratfmlysiliTcep,nnheqeploosemrueatyt.rapsresCdllueooiwicynsteotmycenmnlreepslinlsumlttohhcawyihesaonmilpallpebtpltnheeaotbriesrnseitaioofsurgonepnravnpomicitaeofnoyllrosustrtpauaauanebcntopdereoireadturyat,hovtifoarifiasntrinnohrasdmrseewpysxiaaira.ttarfphintfvre,yieerIrtsnsmoheopanemancaoptnttdniAhilevdooselfyeiinftbeibiterioehaamlfncaisoftat,itryoistoirtptvnhothioesn.efe-

XII. DISMISTSRAALISNINFRGOMACTAHDEEMPOIELSICE AND FIRE abcfwotttteoooihtriinrrrotfamdrhgysrtefianhentneeaamwrgp2cnyeies9aeinsysstrl..hephescsdaoeifounonlcfTCnclrrbthohcoye1mbiept0sbetrhiCtonelhetagsidihsenctiauepayvkgoynbCelfsypanjaoaiegtoiranytcnnamrlyotienfytceaaeimmenftoscrttfdoepoaaesostlrtprehsptrrsodeeuhaorirspfitantssnwpoiumlsrnophlniwecnibiricosrbditrlhesvyoeteiertaqernialrauctncietoovtegenrdofnaas,irrtcniiooeb.nltnemgfsyahriopbennttoathlgetnhcedehstdaii,ehdssafseeoocmpmmiaarpreredicayasmcea,lrismdilanoaafeycrgyisilmaatpcrndoaoyedoeprrs,fcamefhhtafiyiaoaanoisnsrlconbldhpwinlraaean(berllrshcyoi-ls-)e-k-
XII!. FACILITIES ocof nrtainc3ui0ai.nlgsTethogereepngagarattgiioeensinirneacfeofmigrnpmilzoaeytievtehesa' etffatfhcoeirltiCstiitteoys.ehlaismTheienngaCategiteydvehasnetdrigebeiyss

-15-

()1881:3

agrees to take steps to insure that such facilities will be maintained in a racially integrated fashion in the future.
XIV. AFFIRMATIVE ACTION OFFICER
31. The City shall appoint an Affirmative Action Officer who shall have the following responsibilities:

-

(a) Advise black and female employees of the terms of this decree:

(b) Post his or her office hours and location and copies of this Decree in conspicuous places within each department or operational unit of the City;

(c) Receive and investigate complaints of race and sex discrimination and conciliate such complaints when appropriate, and notwithstanding any other provisions of law, establish a written procedure which shall govern such complaints:

(d) Maintain a complete record of all actions ta-

ken in pursuit of the duties outlined above, including

all correspondence directed to or from the City of Bir-

( (

mingham with respect to any complaints or investiga-

tions undertaken pursuant to this Consent Decree and

any investigatory files: and

(e) To review, prior to final selection, a department head's writ ten justification for failure to select certified black or female applicants in jobs in which blacks or females are underrepresented. The Affirmative Action Officer shall submit his or her written comments together with the appointing authority's written justification to the Office of the Mayor, prior to final selection.

XV. AFFIRMATIVE ACTION COMMITTEES
32. The City shall appoint separate affirmative action committees for the Police Department, the Fire Department, and the Streets and Sanitation Department. Each committee shall be composed of not less than 3 nor more than 5 members who are City

-16-

Cil8814

employees, and who may be either incumbents in their respective

~epartments or individuals selected from outside such depart-

ments.

Such committees shall meet periodicaliy to review the

job assignment and disciplinary policies in their respective de-

partments in order to insure that such policies are maintained

-

and administered in a manner that does not unlawfully discriminate against any employee because of race or sex. Such com-

mittees shall report quarterly (or more than quarterly if re-

quired by specific matters) to the mayor or his designee. In ap-

pointing the members of such committees the City shall insure

that there are at least two blacks and one female among the mem-

bers of each such committee.

Each committee member shall be

compensated for committee work at the same rate the committee

member receives in his or her job with the City.

XVI. INDIVIDUAL RELIEF
A. Relief for Named Private Plaintiffs

33. The individual named plaintiffs in the Martin case, (filed on January 7, 1974) are John W. Martin, Major Florence, !da McGruder, Sam Coar, Wanda Thomas, Eugene Thomas, and Charles Boward. The City of Birmingham agrees to provide the following relief for the named plaintiffs in the Martin case, without awaiting any further action by the Personnel Board.
a. !da McGruder alleged in the complaint in the Martin case that the City of Birmingham discriminated against her on the basis of race in failing to hire her to a position as a key punch operator after she was certified to that position as qualified by the Personnel Board on several occasions in 1973. The position of Key punch operator is now known as data entry operator. The City of Birmingham agrees to hire Ida McGruder to the first data entry operator vacancy which occurs after final approval of this Decree by this Court. Ms. McGruder's remedial City seniority date and adjusted classification seniority date shall be May 1, 1973. Ms. McGruder shall also receive back pay relief as provided in paragraph 34a of this Decree. At the time Ms. McGruder fills a data entry operator vacancy with the City, she shall be paid at the highest pay step for that classification.

-17-
018815

b. Major Florence claims he was discriminated against on

the basis of race in that he has been denied promotional oppor-

'(

tunities in the Street~ and Sanitation Department-by the City and

the Personnel Board. The City agrees to promote Mr. Florence to

the position of public works supervisor as provided in paragraph

47a and Appendix C of this Decree. Mr. Florence's adjusted

--

classification seniority date for public works supervisor shall
- be June 3, 1974. Mr. Florence shall also receive back pay relief

as provided by paragraph 34a of this Decree.

c. Sam Coar alleged in the complaint that he was discriminatorily discharged from the Streets and Sanitation Department of the City of Birmingham in 1972 after 8 years of employment as an unclassified laborer. The City of Birmingham agrees to hire Sam Coar to a position as a truck driver in the Streets and Sanitation Department for the first truck driver vacancy which occurs after final approval of this Consent Decree by this Court. At the time Mr. Coar fills a truck driver vacancy with the City, he shall be paid at the highest step for that classification. Mr. Coar's remedial city seniority date shall be March 3, 196~, the date Mr. Coar entered the unclassified service of the City of Birmingham. Mr. Coar's adjusted classification seniority date for truck driver shall be January 1, 1973. Mr. Coar shall also receive back pay relief pursuant to paragraph 34a of this Decree.

d. Eugene Thomas alleged in the complaint that he was
denied a position as a police officer with the City of Birmingham
because of race. The City of Birmingham agrees to hire Mr. Thomas for the first police officer vacancy which occurs after final approval of this Decree, provided that Mr. Thomas satisfactorily passes the standard physical examination for the police officer position. Mr. Thomas shall also receive back pay relief as provided in paragraph 34a of this Decree. Mr. Thomas' remedial city seniority and adjusted classification seniority shall date from July 1, 1973. At the time Mr. Thomas fills a police officer vacancy with the City under this Decree, he shall be paid
at the highest pay step for that classification.

-18-
018 81 ~)

, ... f
<
\

e. John W. Martin alleged in the complaint that he was re-

jected for the position of security guard with the City of Bir-

mingham because of race, after he had been certified by the Per-

sonnel Board as qualified for subsequently hired by the City

that position. of Birmingham in

Mr. Martin was another position.

--

Mr. Martin shall receive back pay relief as provided in paragraph 34a of this Decree, but waives any claim to any other indjvidual

relief.

f. Charles Boward alleged in the complaint that he was denied a position as a firefighter with the City of Birmingham because of the racially discriminatory firefighter test. Mr. Boward shall receive back pay relief as provided in paragraph 34a of this Decree, but waives any claim to any other relief.
g. Wanda Thomas claims she was discriminated against by Jefferson County, not by the City of Birmingham. She therefore does not seek any relief against the City of Birmingham.
Each of the individual named plaintiffs, with the exception of Wanda Thomas, agrees to sign the release contained in Appendix E of this Decree. The plaintiffs do not waive any claims they may have for monetary relief or any other relief to which they may be entitled against any other defendants in these or any other actions.

B.

BBar ocku gPhat yBya n dt h eO tUh enri t eIdn

dSivtaidteusalanRdelPierfivIante

The Pl

Actions aintiffs

34. The City agrees to pay the sum of $265,000 in full and

complete settlement of the claims against the City of Birmingham

for monetary relief in these consolidated actions. Any back pay

awards to be made from such sum shall be subject to income tax

withholding and the employee's share of social security. Within

sixty-five (65) days after provisional approval of the Consent

Decree by the District Court, or final approval of the Decree by

the Court, whichever occurs first, the City agrees to pay the sum

of $265,000 the City of

in full and complete settlement Birmingham for monetary relief

of in

the claims against these consolidated

actions. This sum shall be deposited in separate trust accounts

-19-

01881?

bearing interest at commercial rates as follows:

a. A fund in the total amount of $30,000 shall be

set aside for the individual private plaintiffs re-

ferred to in paragraph 33. Within ten (10) days after

the date this Decree is given final approval by the

Court, the Clerk shall pay the following amounts to the

following named plaintiffs, together with the interest

-

accrued thereon. Major Florence

Ida McGruder

Sam Coar

Eugene Thomas

John Martin

Charles Howard

$8,500 $6,500 $6,500 $4,000 $3,500 $1,000

These amounts shall be in full satisfaction of all

claims of the named plaintiffs for monetary relief

against the City of Birmingham in these consolidated

actions including claims they may have as members of

any of the subclasses.

b. A fund in the total amount of $5,000.00 shall be set aside for the members of Subclass No. 1 in Appendix C (the Police and Fire test subclass) . Members of this subclass shall also be eligible fer back pay relief under the Personnel Board Decree.
c. A fund in the total amount of $65,000.00 shall be set aside for the members of Subclass No. 2 in Appendix C (the Unclassified Service subclass).
d. A fund in the total amount of $137,000.00 shall be set aside for the members of Subclass No. 3 in Appendix C (the Streets and Sanitation promotional subclass).

e. A fund in the total amount of $6,000.00 shall be set aside for the members of Subclass No. 4 (the Policewomen subclass).

f. A fund in the total amount of $22,000.00 shall be set aside for the members of Subclass No. 5 (the Rejected Applicant subclass).

The amounts described in paragraphs b through f above, together with the interest accrued thereon, shall be paid to members

-20-

018818

of the appropriate subclasses as described in Appendix D. Pay-

.(

ments from these separate funds shall be pursuant to Court order • 35. The amount of back pay relief allocat~d-for each sub-

class listed in Appendix C has been determined by a calculation

of the relative economic injury suffered by each of the sub-

-

classes. The amount of individual back pay relief for subclass members will be determined as described in Appendix D after the

individual subclass members submit proof of claim forms in accor-

dance with the provisions of paragraph 36 below.

36. Within ten (10) days after the Court gives final appro-

val to the Consent Decree, written notice will be given by the

City by certified mail, return receipt requested, to each of the

members of the subclasses identified in Appendix c. Notice to
such individuals will be sent to their last known address. The

form of the notice is attached as Appendix G. Proof of claim

forms (attached as Appendices B through L) will be included with

the individual notice to class members. Each subclass member

shall have sixty (60) days from the date of mailing to respond to

r~

this notice and to file his or her proof of claim form with the

Clerk oi the Court.

37. Within forty-five (45) days after receipt of all timely proof of claim forms, counsel for the plaintiffs will submit to the Court and counsel for the City a report listing each subclass member who, in their view, is entitled to participate in the individual relief provisions of this Consent Decree. In preparing this report counsel for the plaintiffs shall be allowed access to the City's records and files after reasonable notice of no less than three (3i days, and any review of such records and files shall occur· during normal working hours. Plaintiffs shall include a description of the job offer and remedial seniority, if any, to be offered by the City to the subclass member and the monetary relief, if any, to be afforded by the City to such person. In no event will the sum of the individual monetary awards to be paid by the City of Birmingham to the members of the subclasses identified in Appendix C, and to individual private

-21-

018818

plaintiffs identified in paragraph 33, exceed the sum of

-..(

$265,000, plus any interest accrued thereon.

38. The City shall have ten (10) days from-receipt of the

plaintiffs' report on individual relief to notify, in writing,

counsel for the plaintiffs of any objection(&) it may have to the

-

job offer and/or seniority dates for the individuals identified in such report. If there is any such objection(&), the parties

shall first attempt to reach a voluntary resolution of the mat-

ter(s). In the event the parties are unable to resolve such ob-

jection(s), they may petition the court for a resolution of such

objections(s). The City agrees not to challenge any of the indi-

vidual back pay awards to be made under this Consent Decree.

39. Remedial City seniority date, as that term is used in

this Decree, shall mean the employee's seniority for purposes of

promotion, vacation as accrued, sick leave, and longevity pay,

but such date shall not be utilized for pension purposes. How-

ever, employees with remedial City seniority dates may elect, if

state law permits, to pay into the City's pension system the

amount of money the employee would have paid into the system had

such employee been in active uninterrupted service with the City

from such remedial date. Such election must be made and the re-

quired sum of money paid into the pension fund within six (6)

months after the date the employee enters the City's service un-

der the provisions of this decree or, in the case of current City

employees, within six (6) months of their being notified that the

Court has given final approval to their remedial seniority rights

under this Decree. Adjusted classification seniority, as that

term is used in this Decree, shall mean the employee's seniority

for layoff and recall in the jobs to be offered to individuals

under Part XVI of this Decree.

40. Upon final determination of the awards of individual relief to be made under this Decree, the City of Birmingham shall within five (5) days thereafter notify by certified mail each of the subclass members who filed a timely request to be considered

-22-

1118820

for individual relief of their proposed awards of relief, if any,

as set forth in the plaintiffs' report submitted to the Court.

.... .-r

This notice shall also inform each of these individuals of their

right to object to the relief, if any, as contained in the re-

port, and that they must file their objections in writing with

the Clerk of the Court within fifteen (15) days of their receipt

-

of this notice. 41. If any such objections are filed, the Coux:..t shall

thereafter, and as soon as pra.:ticable, schedule a hearing at

which it will rule upon any objections to the report which have

been timely filed. At the conclusion of such hearing the court

shall determine whether to give final approval or disapproval to

the awards of individual relief.

C. Implementation of Individual Relief

42. Immediately upon final approval by the Court of the awards of individual relief for subclass members to be made under this Decree, the City will begin to implement part XVI of this Decree as described herein. However, the City shall implement the relief for the named private plaintiffs as provided in paragraphs 33(a) through JJ(f) of this Decree.

43. Any person entitled to individual relief (including the named private plaintiffs), in order to obtain such relief, must sign a notarized release which will be provided that person by the City (Appendix E) and return such notarized release to the City within thirty (30) days of that person's receipt thereof. Any such individual who either does not sign such a notarized release or, alternatively, and absent good cause, does not return such signed notarized release to the City within thirty (30) days of that person's receipt thereof shall be deemed to have waived his or her entitlement to such relief. Such release shall provide that the relief to which that person is entitled under part XVI of this Decree, if accepted, shall be in full and final settlement of any and all claims against the City of Birmingham based upon allegations of race or sex discrimination occ:Jrring

-23-

018821

prior to the date such release is signed. Such release shall be in the form exemplified by Appendix E attached hereto, or such other form upon which the plaintiffs and the city may agree and the Court approve.

44. The City of Birmingham shall send a notice to each of

-

the subclass members entitled to individual relief informing them that the Court has given final approval to their right ~o such

relief under this Decree. This notification shall be in writing,

be made by certified mail, return receipt requested, and shall be

approved as to substance and form by the plaintiffs prior to

mailing. Included with such notice will be a copy of this Decree

and the release form as described in paragraph 43 above. With

respect to those individuals who are eligible for consideration

to fill a future vacancy in a classified service position, the

notice shall clearly and specifically inform such persons of the

qualification requirements they will have to meet in order to be

appointed to that position. Such notification also shall state

that if the recipient has any questions about the notice, he or

she may contact the Affirmative Action Officer, the Director of

Personnel for the City or counsel for the plaintiffs whose names,

addresses and phone numbers shall be listed in the notice, or

their own counsel.

45. As the City receives releases from the named private plaintiffs and subclass members entitled to a back pay award under this Decree, it shall apply to the Court for Orders directing the Clerk of the Court to issue checks to such persons in the amount of his or her back pay award.
46. Subject to the provisions of paragraph 47a, each of the persons who are determined to be entitled to an offer of employment with the City pursuant to the plaintiffs' report as set forth in paragraph 37, shall be entitled to priority appointments to future vacancies in such positions in the order provided in plaintiffs' report.

47a. The individuals named in Appendix C as members of subclass 3 are blacks who the parties have already determined are entitled to priority promotional opportunities in the Streets and

-24-

t"I188°t..(t)...

r-

Sanitation Department. Immediately upon final approval of this Consent Decree by the Court, those individuals-~11 be deemed by

the City to be qualified for promotion to the jobs listed next to

their names in the Appendix. The City agrees to promote these

--

individuals to the first permanent full time vacancies which occur in the job listed next to their names after the Court grants

final approval to this Decree. Where two or more persons named

in this subclass are entitled to fill a future vacancy in the

same position, priority of appointments shall be determined by

the date of hire seniority dates listed next to their names in

that Appendix.

47b. Except for the individuals who are named as members of subclass 3 in Appendix C who are eligible for priority promotional opportunity in the Streets and Sanitation department, each individual entitled to a job offer under this Decree and pursua~t to the plaintiffs' report shall be required satisfactorily to demonstrate his or her q~alifications for the job to be offered in accordance with the current qualification requirements for the job as.established by the City and the defendant Jefferson County Personnel Board, provided that sue~ requirements are administered in a nondiscriminatory manner, do not unlawfully discriminate ei~,er in purpose or effect against blacks or women, and do not o~~erwise conflict with the provisions of paragraph 1 of this Decree. The City agrees to waive any age requirements which may currently bar any such individual from obtaining employment with the City if such individual met such age requirements at the time of application. No such class member shall be required to pass any test or meet any other qualification standard which has been shown to have an adverse impact on blacks or women.

XVII!. NOTICE AND FAIRNESS HEARING
4Sa. Within ten (10) days after provisional approval of this Consent Decree by the Court, notice, in the form attached as Appendix F-1, will be issued by publication in the Sunday edition of the Birmingham News for two consecutive weeks, and in the Birmingham Times on one weekday directed to all interested persons

-25-

018823

informing them of the ~eneral provisions of this Decree and of their right to review a copy of the Decree which will be on
file with the Clerk of the Court. Within this same ten (10) day period, individual notice will also be given of the
general provisions of this Decree by the City to the subclasses identified in Appendix C. The cost of mailing and publication of any notices to be made under this Decree shall be paid by the City. The form of this notice is attached as Appendix F-2. Both the notices by publication and the individual notices shall inform persons to whom such notices are directed of their right to be heard and to file objections, if any, to this Decree. Such objections must be filed with the Clerk of the Court by a date to be set by the Court in its Order qranting provisional approval to this Decree. The Court shall thereafter, and on a date(s) to be fixed by the Court in its Order granting provisional approval to the Decree, schedule a fairness hearing at which those persons who file timely objections to the Decree will be heard. At the close of such hearing, or as soon as practicable thereafter, the Court shall rule upon such objections and grant final approval or disapproval to this Consent Decree. The Court shall, however, withhold final approval of the awards of individual relief to be made under this Decree, except the relief to be granted the individual named plaintiffs in the Martin case and the offers of promotion to be made to individuals named in Appendix C, until those class members who file a timely response to the notice of right to present a claim for relief under paragraph 36 above, are notified of ~;eir individual awards, if any, and are affordec an opportunity to be heard and to file any objections they may have to those awards.
48b. In the event there are objections to the Consent Decree which the Court overrules, the Court shall not implement the Decree until thirty days after the entry of an Order finally approving the Decree.
XVIII. RECORDKEEPING
49. The City shall retain during the period of this Decree
824 necessary records concerning the implementation of this Delfle8
-26-

These records shall be made available to the plaintiffs for in-

.... ...~ .

spection and copying upon written request • 50. The City's records shall include the f01."1owing:

(a) A list of all organizations and schools which

are contacted for recruitment purposes, showing the

-

date that any notice of job opportunity was mailed to them, the position and number of positions to be filled

from that notice, and the date through which applica-

tions could be received for the job which was adver-

tised, including a aummary or compilation of all other

recruitment efforts aimed at minorities and women, to-

gether with the date of said efforts and the names and

positions of the City's employees who made the contact

and the nature of the contact.

(b) All written applications and related records for all persons seeking employment with the City, ineluding applications for transfer or promotion within or among departments, for a period of at least five (5) years, and shall include on such applications identifi"cation of the applicant by race and sex. Such records shall also contain a statement of the reasons why any applicant was found not to be qualified for the position(&) applied for.

(c) With respect to any applicant who is certified for hire or promotion and who is not selected for the vacancy for which that applicant is certified, the City shall record in writing the reason(s) for the applicant's not being selected for that vacancy. Also, the city shall record and maintain any other written records or comments on an applicant for certification in accordance with paragraph 3l(e) above.
(d) All written communications between the City and applicants for employment, transfer and promotion.
(e) All writ ten communications between the City and employees concerning discipline and discharge, as

-27-
018825

well as all written reports concerning these matters.

XIX. REPORTING

51. Within ten days after adoption of the City's annual af-

firmative action plans and reports for each department, the City

---

shall furnish a copy of every plan and report to the plaintiffs. 52. Within 60 days of the entry of this decree and there-

after semi-annually, the City shall report to the plaintiffs, the

following information:

(a) A summary showing the total number of employees by race and sex in each job classification for each department of the City in both the classified and unclassified service.

(b) A list of all probational appointments for

permanent full-time positions, by job classification

and department, during the reporting period indicating

the race and sex of the persons hired or promoted.

53. Within 60 days of the entry of this Decree and there-

I

after on an annual basis, the City shall report to the plaintiffs

the following information:

(a) A list of all persons, by job classification, department, race and sex, to whom positions have been offered and whether or not the positions were accepted.
(b) A list of all promotions to permanent fulltime positions in the classified service, by job classification and department, during the reporting period indicating the race, sex, date of initial hire ·in the classified service and date of the promotion.
(c) A breakdown of the applicant flow for employment with the City which indicates by race and sex the number of applicants for each department and job classification in the classified and unclassified service, and the number of applicants hired, rejected and pending for each job classification and department. Applicant hires shall be separately identified as to

-28-
(-)1. 88?._ f•')

.

Comprehensive Employment Training Act (CETA) posi-

tions •

(d) A summary report of the recruiting activi-

--

ties conducted by the City and the results of those activities.

(e) A report of the City's implementation of ~he

individual relief provisions of this Decree. This re-

port shall include a statement of the monetary pay-

ments, if any, that have been made to individuals en-

titled to such relief. This report shall further iden-

tify each individual who has been offered a job with

remedial seniority under this Decree, and whether the

job offer was accepted or rejected. For any individual

who was disqualified from an offer of employment under

Part XVI of this decree, a specific statement of the

reasons for disqualification shall be included in this

report.

(f) A list of the sworn personnel terminated from either the Police Department or the Fire Department, identifying each individual by race, sex, date of hire, date of termination, probational or permanent status, and rank. In addition, the report shall explain the reason each individual was terminated.
(g) Within thirty (30) days of establishment or revision, a copy of the written policy concerning background investigations required by paragraph 27.

XX. EFFECT OF COMPLIANCE 54. Compliance with the terms and conditions of this Consent Decree shall constitute compliance by the City with all obligations arising under Title VI! of the Civil Rights Act of 1964, as amended, the State and Local Fiscal Assistance Act of 1972, as amended, the Omnibus Crime Control and Safe Streets Act of 1968, as amended, the Civil Rights Acts of 1866 and 1871, 42
u.s.c. Sl981 and S1983, and the Fourteenth Amendment to the

-29-

018827

Constitution of the United States as raised by the plaintiffs'

complaints. Insofar as any of the provisions of this Consent De-

cree or any actions taken pursuant to such provi&i~ns may be in-

consistent with any state or local civil service statute, law or

regulation, the provisions of this Consent Decree shall prevail

-

in accordance with the constitutional supremacy of federal substantive and remedial law.

XXI. RETENTION OF JURISDICTION

55. The Court retains jurisdiction of this action for such further relief or other orders as may be appropriate. At any time after six (6) years subsequent to the date of the entry of the Consent Decree, any party may move the Court upon forty-five (45) days notice to the other, to dissolve this Consent Decree. In considering whether the Consent Decree shall be dissolved, the Court will take into account whether the purposes of this Consent Decree have substantially been achieved.

Entered and Ordered this ___ day of-----------------' 1981.

AGREED AND CONSENTED TO: For Plaintiff United States

UNITED STATES DISTRICT JUDGE DATED:

For the Plaintiffs in Martin, et al. v. City of Birmingham, et al.

Mf1:-, .I

15

7

!z[l

Ja.---<::·t~=~~::~h of~~ I~)\qg \ N.A.A.C.P., et al. v. Seibels, et al.

For the Defendant City of Birmingham

~'2;. ,c:r-;;(
018828

Appendix A

Group I - Engineering Department

l. Professionals:

(1) Graduate Engineer

(2) Sr. Graduate Engineer

(3) Airplane Fac. Engineer

--

(4) Sr. Civil Engineer (5) Chief Civil Engineering (6) Chief Design Engineering

2. Technicians:

(1) Civil Engineer

(2) (3)
( 4)

CSErnh.gieiEfnenoegfriinnPegaerrTtinyegchTneiccihannician

(5) Engineering Inspector

(6) {7)
(8)

MCSroe.dnisaEtrnSugpcienticeo.enrinCgosItnAspneacltyosrt

(9) Engineering Drafter

(10) (11)

Sr. Sr.

Engineering Row Agent

Drafter

Group II - Finance Department

l. Professionals:

(1)

(2)

(3)

(4)

(5)

(6)

(7)

Sr. Auditor Sr. Accountant Principal Accountant Chief Accountant Accountant Auditor Revenue Examiner

Group III - Inspection Services Department

l. Technicians: (other than Building Inspectors)
. 2. Skilled Craft worker:

(1)
(2)
(3)
( 4)
(5) (6) (7)
(8)
(9)
(10)
(11)
(12)

Maintenance Mechanic

CEElhleeivecfattroEicrlaeIlcntsIrpnicesapclteocrItonrspector~

CPlhuimefbinEgleIvnastoprecItonrspector

Gas Inspector

Chief Chief

Pl/Gas Inspector Building Inspector

Zoning Inspector

WSre.igWhtesig'htMs e' asMureeassuIrnesspIencstpoer ctor

(l) Maintenance Mechanic

(2) ~~F Maintenance Worker

(3) Cabinet Maker

( 4) Plumber

(5) (6)

Refrigerator ' Painter

Beating Mechanic

(7) Painter Supervisor

( 8) Electrician

01882B

Aopendix A Cont'd.

Group IV- Traffic Engineering Department

-

1. Technicians:

(1) (2)
(3) (4) (5)

STTSTurrrrSp.aaavufffT.pfffiiierocccarfvfCAPifTsilonocarnanralsPnyftiflrsnaiutcngcntCiTionoengcnhsSTntureiucpcciheatrnniviocinsioanr

( 6)
(7)

Traff Stree

i t

c Operators Supe Light Inspecto~

r

v

is

o

r

Group V - Office of Housing

1. Professionals:

(1)

(2) (3)
(4)

Housing Speci

Rehabili alist

tat

ion

HPSror..usHHinooguussRiinneggloRRcaeehhtiaaobbn.. Officer

'

018830

Appendix B

Group I - Police Department 1. Protective Service:

(1) Police Officer

Group II - Police Department

-

1. Protective Service:

(1) Police Sergeant

Group !II - Fire Department

1. Protective Service:

(1) Firefighter (2) Fire Prevention Inspector (3) Fire Communications Operator

Group IV - Engineering Department

1. Professionals:

(1)

(2)

(3)

(4)

(5)

(6)

2. Technicians:

(1) (2)
( 3)
( 4)
(5) (6)
(7)
(8) (9)
(10)
(11)

3. Para-Profes-

sionals:

(1)

(2)

Graduate Engineer Sr. Graduate Engineer Airplane Fac. Engineer Sr. Civil Engineer Chief Civil Engineering Chief Design Engineering Civil Engineer Engineering Technician Sr. Engineering Technician Chief of Party Engineering Inspector Sr. Engineering Inspector Construction Cost Analyst Media spec. Engineering Drafter Sr. Engineering Drafter Sr. Row Agent
Engineering Aide Sr. Engineering Aide

Group V - Inspection Services Department

1. Professionals:

(1) Architect (2) Architect Drafter (3) Plans Examiner (4) Zoning Coordinator

2. Technicians:

(1) Communications Technician (2) Electrical Inspector (3) Chief Electrical Inspector (4) Elevator Inspector (5) Chief Elevator Inspector (6) Plumbing Inspector (7) Gas Inspector

018831

Appendix B Cont'd.

Group V- Inspection Services Department (cont'd,) __

2. Technicians:

(8) Chief Pl/Gas Inspector

(9) Building Inspector

(10) Chief Building Inspector

(11) Zoning Inspector

-

(12) Weights ' Measures Inspector (13) Sr. Weights ' Measures
Inspector

3. Skilled Craft Worker:

(1) Maintenance Mechanic (2) Auto Mechanic (3) WWTF Maintenance Worker (4) Cabinet Maker (5) Plumber (6) Plumber (7) Painter (8) Painter Supervisor (9) Electrician

Group VI - Municipal Garage 1. Skilled Craft Worker:
2. Service/Maintenance Worker:

(1) Auto Mechanic {2) Auto Shop Supervisor (3) Auto Repair Expert (1) Service Station Attendant (2) Equipment Service Worker (3) Sr. Equipment Service Worker (4) Auto Mechanic Helper (5) Building Service Worker ( 6) Laborer

Group VII - Office of Housing

1. Professionals:

(1)

(2)

(3)

( 4)

(5)

Housing Rehabilitation Specialist Sr. Housing Rehab. Pr. Housing Rehab. A/HCUS Rehab. Officer Sousing Relocation Officer

Group VIII - Streets ' Sanitation

l. 'l'echnicians:

(1)

(2)

(3)

2. Service Maintenance

Worker:

(1)

(2)

(3)

(4)

(5)

(6)

(7)

(8)

(9)

Sanitation Inspector Sr. Sanitation Inspector Street Paving Spec. Driver Messenger Oist. Sit. Attn. Truck Driver Semi-skilled laborer Shop Helper Guard Building Service Worker Laborer Refuse Collector

018832

Appendix B Cont'd.

Group IX - Traffic Engineering

1. Professionals:

(1) Traffic Systems Engineer (2) Sr. Traffic Systems Engineer

2. Technicians:

(l) Traffic Planning Technician

-

(2) Sr. Traffic Planning Technician (3) . Traffic Analyst (4) Traffic Control Supervisor

(5) Supv. Traffic Control_

Supervisor

(6) Traffic Opns. Supervisor

(7) Street Light Inspector

3. Skilled Craft worker:

(1) Traffic Signals Markings Worker
(2) Traffic Signals Markings Crew Leader
(3) Laborer

4. Service/Maintenance worker:

(1) Traffic Signs, Signals ' Markings Workers
(2) Traffic Signs, Signals & Markings Crew Leader

Group X - Parks ' Recreation

1. Skilled Craft Worker:

(1)
(2)
(3)
(4)
(5) (6) (7)
(8)
(9)
(10)

2. Service/Maintenance worker:

(1) (2) (3) (4)
(5)
(6) (7)
(8)
(9) (1 0)
(11)
(12)
(13)

Maintenance Mechanic Park Maintenance Supervisor Park Maintenance Supt. Mason Carpenter Plumber Painter Sign Painter Painter Supervisor Electrician
Zookeeper Truck Driver Semi-skilled Laborer Shop Helper Stadium Maintenance Supervisor Greenhouse worker Gardener Landscape Supervisor Hort. Dist. Supv. Guard Maintenance Repair Worker Laborer Refuse Collector

Group XI - Parking Authority 1. Protective Service: (1)

Security Officer

018833

APPENDIX C

'

Subclass No. 1 All black persons who took the 10-c Policeman Test which re-

sulted in the eligibility lists for police officers in the City

-

of Birmingham which were in effect between April 25, 1975, and January 10, 1977, and the 20-B Firefighter Test which resulted in

the eligibility lists for firefighters in effect between July 8,

1976, and January 10, 1977, who have not been hired for police

officer or firefighter positions by the City of Birmingham or who

subsequent to the entry of this Court's Order on January 10,

1977, were hired by the City of Birmingham but who may have been

hired earlier but for their rank on such eligibility lists.

Subclass No. 2

All blacks who prior to the entry of this Decree were hired and assigned to laborer positions in the unclassified service of the City of Birmingham who, at any time after March 24, 1972, worked as laborers in the unclassified service and who prior to the ent:y of this Decree, were reclassified into the classified service. Listed below are named individuals who the parties to this Decree acknowledge are properly members of this subclass. Additional names may be added to this subclass pursuant to the provisions of paragraph 36 of this Decree:

Birmingham Streets and Sanitation Department

1. James Addie

2. Burnice Anthony

3. Willie Allen

4. Johnnie Bridges

5. Johnny Brown

6 •· Eugene Carlton

7. Elmo Carter

8. John Carter

9. Herman Copes

10. Otis Dickerson

11. John Foster

12. Rickey K. Graham

13. Roy Harris

14. Melvin Barris

15. Emmitt Hicks

16. Adam Horne

17. David Borton

18. James Hudson

19. Alex Huggins

20. 21.

Bruno Norman

Huggins, Jackson

Jr.

22. Houston Kennedy

23. Curtis w. Xing

24. Avance Lomax

25. 26. 27

James Lowery Robert Lowery Carl E. Morris

28. 29. 30.

Elbert Muse

Trennon Nick Henry Paige

erson

31. Earnest Perry

3 2. Sammie Robinson

33. Edgar Sanders

34. Anthony Scales

35. 36.

James Shuford Gus Smith

37. .:essie Staten

38. Otis Taylor

39. 40.
u.

Winston Thomas Wilson Tucker Morris Weatherly

4 2. 43. 44.

Willie Wells Richard Whitaker I.C. Williams

APPENDIX D
.,

The allocation of back pay amounts among the members of

each subclass listed in Appendix C who file timely proof of claim

--

forms shall be determined according to the following guidelines:

a.

Subclass No. 1 - All subclass members will share

equally in the back pay allocated to this subclass

under the Decree. In addition, individual members

of this subclass may be entitled to back pay under

the Consent Decree with the Personnel Board. If

members of this subclass also applied for a police

officer, firefighter, or deputy sheriff posi-

tion (s) with any other defendant jurisdiction (s)

in these consolidated actions, such persons shall

not be deemed to have waived any back pay or other

rights which they may have against that jurisdic-

tion(s). Back pay may be denied to members of this

(

subclass who refused prior offers of employment

with the City as police officers or firefighters.

b.

Subclass No. 2 - Members of this subclass shall re-

ceive back pay according to the following formula:

1. A calculation will be made of the difference

between the annual pay of each subclass member

in the unclassified service at the time of his

reclassification and the annual pay he re-

ceived in a classified service position at the

time of reclassification. Some adjustments

may be made in individual cases if there is

evidence that an unclassified worker should

have been reclassified in a higher paying job

than the one he received at the time of re-

classification.

2. This difference will be multiplied by the num-

ber of years (rounded off to the nearest year)

that the subclass member served in the un-

classified service between March 24, 1972,

and the date the subclass member was reclassified into a classified service position.

3. Each member of this subclass shall receive a

-

proportion of the amount set aside for this

subclass in accordance with his relative eco-

nomic injury as calculated above.

c.

Subclass No. 3 - Back pay shall be determined for

this subclass according to the merits of the indi-

vidual claim and the relative economic injury suf-

fered by the claimant. The amount of back pay for

a subclass member may vary depending upon the pay

rate of the job for which a promotion claim is

made, the subclass member's qualifications for

promotion and length of service with the City, and

any evidence that such individual had previously

expressed an interest in obtaining a promotion in

the job which is the subject of his claim. Set

forth below are the guidelines which will be used

for determining individual back pay awards on

claims for the jobs listed below. Onder each job

title is a listing of categories of potential

claimants in descending order of priority, i.e. in-

dividuals with claims within category 1 will, ab-

sent unusual circumstances, receive a larger back

pay award than individuals who have claims which fall within category 2 etc.

No person will be eligible for back pay under more than one category for each of the job classifications listed below. Back pay awards for persons who file claims for more than one job may reduced in cases where there is an overlap between

ii

the back pay period for the jobs involved. The

purpose of any such reduction(s) is to preclude the

possibility of a •windfall• or double recovery for

such claimant.

-

Public Works Supervisor And Construction Supervisor

Category No. 1 This category consists _of sub-

class members who have been employed in the

Streets and Sanitation Department of the Ci~y

of Birmingham on a continuous basis since at

least January 1, 1974, in a permanent, full

time position as a Refuse Truck Driver, Heavy

Equipment Operator, or Truck Driver in either

the classified or unclassified service; and

who demonstrate that, at any time between

January 1, 1975 and October 31, 1979, they ex-

pressed an interest to the City or the Person-

nel Board in being considered for a promotion

to a Public Works Supervisor or construction

Supervisor position.

Category No. 2 This category consists of sub-

class members who have been employed in the

Streets and Sanitation Department of the City

of Birmingham on a continuous basis since at

least January 1, 1974, in a permanent, full

time position as a Refuse Truck Driver, Heavy

Equipment Operator or Truck Driver in either

the classified or unclassified service.

category No. 3 This category consists of sub-

class members who were employed in the Streets

and Sanitation Department of the City of Bir-

mingham on or after March 24, 1972, and who

after that date were employed in a permanent

iii
() 18 8 3'/

fu·ll time position with the City as a Refuse

Truck Driver, Heavy Equipment Operator or

Truck Driver in either the classified or un-

classified service.

-

Category No. 4 This category consists of subclass members who were employed in the Streets

and Sanitation Department of the City ~f Bir-

mingham on or after March 24, 1972, and who

accumulated at least ten (10) continuous

years of service in the Streets and Sanitation

Department as a classified and/or unclassi-

fied employee.

Category No. 5 This category shall consist of

the claims of any remaining subclass members

for these jobs.

Construction Eouipment Operator

Category No. 1 This category consists of subclass members who have been employed in the Streets and Sanitation Department of the City of Birmingham, and who demonstrate that at any time between March 24, 1972, and October 31, 1979, they performed the work of a Construction Equipment Operator while classified as a Truck Driver, Semi-skilled Laborer or Unclassified Laborer in the Streets and Sanitation Department of the City. category No. 2 This category consists of subclass members who have been employed in the Streets and Sanitation Department of the City of Birmingham on a continuous basis since at least January 1, 1974: who, on or after March 24, 1972, were employed in a permanent full time position as as a Truck Driver or a Semiskilled Laborer, and who demonstrate that at

iv
fll8B3t:s

any time after March 24, 1972, they expressed an interest to the City or the Personnel Board in being considered for a promcLion to a Construction Equipment Operator position. Category No. 3 This category consists of subclass members who have been employed in the Streets and Sanitation Department of the City of Birmingham on a continuous basis since at least January 1, 1974, and who, on or after March 24, 1972, were employed in a permanent full time position as a Truck Driver or Semiskilled Laborer. Category No. 4 This category consists of subclass members employed in the Streets and Sanitation Department of the City of Birmingham on or after March 24, 1972, who accumulated at least ten (10) years continuous years of service in the Streets and Sanitation Department as a classified and/or unclassified employee. Category No. 5 This category consists of subclass members employed in the Streets and Sanitation Department of the City of Birmingham on or after March 24, 1972 who, after that date, were employed in a permanent full time position with the City as a Truck Driver or Semi-skilled Laborer in either the classified or unclassified service. category No. 6 This category consists of the claims of any remaining subclass members for this job. Labor Supervisor
Category No. 1 This category consists of subclass members who have been employed in the
v
018839

Streets and Sanitation Department of the City

of Birmingham on a continuou~sis since at

least January 1, 1974, and who demonstrate

that between March 24, 1972, and December 1,

-

1978, they expressed an interest to the City or the Personnel Board in being promoted to a

Labor Supervisor position, and who,- at the

time they expressed such interest, were em-

ployed as a Truck Driver or Semi-skilled La-

borer in either the classified or unclassi-

fied service.

Category No. 2 This category consists of sub-

class members who have been employed in the

Streets and Sanitation Department of the City

of Birmingham on a continuous basis since at

least January 1, 1974, and who, between March

24, 1972 and December 1, 1978, were employed

in a permanent full time position as a Truck

Driver or Semi-skilled Laborer in either the

classified or unclassified service.

Cateoory No. 3 This category consists of sub-

class members vho, on or after March 24, 1972,

were employed in the Streets and Sanitation

Department of the Cityof Birmingham, and who

worked in a permanent full time position as a

Truck Or iver or Semi-skilled Laborer in ei-

ther the classified or unclassified service.

Category No. 4 This category consists of the

claims of any remaining subclass members for

this job.

Beavy Eguioment Operator

Category No. 1 This category consists of subclass members who have been continuously employed in the Streets and Sanitation Department of the City of Birmingham since at least

vi

018840

January 1, 1974, and who, on or after March

24, 1972, expressed an interest to the City or

the Personnel Board in being_promoted to a

position as a Heavy Equipment Operator, and

who, at the time they expressed such an inter-

-

est, were employed as a Semi-skilled Laborer in either the classified or unclassified ser-

vice.

Category No. 2 This category consists of sub-

class members who at any time between March

24, 1972, and July 1, 1978, took the written

promotional examination for Heavy Equipment

Operator, and who, prior to January 1, 1979,

were not promoted to a permanent, full time

vacancy in that job.

Cateoory No. 3 This category consists of sub-

class members who have been continuously em-

ployed in the Streets and Sanitation Depart-

ment of the City of Birmingham since at least

January 1, 1974, and who, on or after March

24, 1972, were employed in a permanent full

time position as a Semi-skilled Laborer in ei-

ther the classified or unclassified service.

Category No. 4 This category consists of the

claims any remaining subclass members for

this job.

Refuse Truck Driver

Category No. 1 This category consists of subclass members who have been continuously employed in the Streets and Sanitation Department of the City of Birmingham since January 1, 1974, and who, on or after March 24, 1972, can demonstrate that they expressed an interest to the City or the Personnel Board in

vii

018841

being considered for a promotion to a Refuse

Truck Driver position, and who at the time

they expressed such an interest were employed

as a Semi-skilled Laborer or as_a Laborer in

the unclassified service.

Category No. 2 This category consists of sub-

-

class members who have been continuously employed in the Streets and Sanitation Depart-

ment of the City of Birmingham since January

1, 1974, and who, on or after March 24, 1972,

were employed in a permanent full time posi-

tion as a Semi-skilled Laborer or as a Laborer

in the unclassified service.

Category No. 3 This category consists of sub-

class members who, on or after March 24, 1972,

were employed by the City of Birmingham as a

Semi-skilled Laborer or as a Laborer in the

unclassified service, and who accumulated at

least ten (10) years continuous service in the

Streets and Sanitation Department as a

classified and/or unclassified employee.

Cateoory No. 4 This category consists of the

claims of any remaining subclass members for

this job.

d.

Subclass No. 4 - Back pay for members of this sub-

class shall be based upon the difference in earn-

ings between traffic citation officers and/or po-

lice women and police sergeants. Members of this

class who demonstrate that on or after March 24,

1972, they were assigned to the Youth Aid Division

and per formed the same or similar duties as male

sergeants in that Division, shall receive a back

pay award based upon the number of years worked in

the Youth Aid Division on and after March 24, 1972.

viii

018342

e.

Subclass No. 5 - Individual back pay for the mem-

bers of subclass No. S shall be computed as fol-

lows. The number of actual vacancies filled by

black persons in the positions and departments

-

identified in Appendix C during the period from March 24, 1972, through January 7, 1974, will be

subtracted from the number of vacancies in those

positions that would have been expected to be

filled by black persons if the proportion of black

hires approximated the proportion of blacks who

were certified for those vacancies during that

period. This calculation vill determine the black

hire differential for each position. Back pay will

be distributed to class members on a pro rata basis

according to the relative black hire differential

among the positions identified in the subclass de-

finition.

Those individuals who turned down an offer for the position to which they were certified, failed to appear for an interview for such position after receiving notice of such interview, or whose preemployment backgrounds clearly demonstrate that such persons were not minimally qualified for employment for such positions, shall be ineligible for back pay.

ix
018843

..

APPENDIX E

RELEASE

F~r and in consideration of the sum of [sum soelled out]

-

~ollars {$____) and all other relief to be provided me by the City of Birmingham pursuant to the provisions of the Consent

Decree Wi~~ the City Of Bir.minaham entered by the Honorable

-------------------------------' United States District Judge, on

date

in the consolidated actions of United

States v. Jefferson Countv, et al., Civil Action Nos. 75-P-0666-S,

74-Z-17-S, 74-Z-12-S, I [full name of claimant), for cyself and

for ~y heirs, executors, a~~inistrators and assigns hereby release

and discharge the City of Birmingham, its Mayor, officials, agents,

and employees of and from all legal and equitabl~ claL~s arising

out of the subject matter of these consolidated actions or any

other legal, equitable or administrative clai~s or causes of acti~;.

arising out of alleged discrimination on the basis of either race

or sex by the City of Birmingham, in violation of any Fede:al, sta~­

·......_

or loc~l equal employment opportunity laws, statutes, regulations or

ordinances occurring prior to the date of the execution of this

Release. I further agree to discontinue any pending cl~.im or acbor:.

whether legal, equitable or administrative, alleging race or gende:

discrimination by the City of Birmingham, its Mayor, and e~ployees

except with respect to any questions of attorneys fees and/or costs

which may be pending in said actions.

I understand and agree that none of the parties hereby released, nor any other party, admits that I have any just clai~ against th~~ or anyone else in respect to my said employment with the City of Birmingh~~. or application thereof, and that none of the parties hereby released, nor any other party, admits or has admitted liability to me or anyone else on account of any pa:nnent herein recited to have been made to me, or otherwise.

018844

I carefully have read this Release as weir-as the accompanying Consent Decree entered ----~d~a~t~e~_______]: I fully comprehend and understand that by signing this Release I am releasing my cla~ for back pay and that I am entitled to no o~~er payrnent of monies for any claim of employment discrimination prior to the date this Release is executed from the City of Birmingham except as recited herein.
I further certify and warrant that I have had the opportunity to consult an attorney prior to execution of this Release; tha~ I am of lawful age; and, that I am signing this Release of my own tree act and deed.
Signed this ______day of -------------------' 1981.

Social Security Number

(Signature)

Subs this

cr u

ibed and ndersigne

sworn to be d au~~ority

f

or on

e

day of
wh~ch wi~,ess

my

hand

, 1981, and seal

t

me hi to of

s certify office.

NOTARY PUBLIC

018845

APPENDIX F-1

NOTICE AND

OF PROPOSED CONDITIONAL

SETTLEMENT AGREEMEN!S CLASS CERTIFICATION

There are currently before the United States District Court

-

for the Northern District of Alabama proposed partial settlement agreements in the following consolidated employment discrimina-

tion actions: Ensley Branch of the N.A.A.C.P., et al. v.~City of

Birmingham, et al. (C.A. No. 74-Z-12-S): John W. Martin, et al.

v. Citv of Birmingham, et al. (C.A. No. 74-Z-17-S) and United

States of America v. ,'Tefferson County, et al. (C.A. No. 75-P-
0666-S).

The proposed settlement agreements are in the form of two Consent Decrees. One of the Consant Decrees is between each of the plaintiffs in the above actions and the defendants Jefferson

County Personnel Board, its Director and the members of the Board

(hereinafter Personnel Board or BoarJ). The other Consent Decree

is between these same plaintiffs and the City of Birmingham and

I I

its Mayor (hereinafter the City cf Birmingham). The Consent De-

crees will resolve all of the plaintiffs' claims of employment

discrimination against blacks and women by these defendants. The

Consent Decrees do not resolve the plaintiffs' claims of employ-

ment discrimination by the remaining defendant jurisdictions in these actions. These remaining defendants are: Jefferson County,

Jefferson County Health Department, and the cities of Bessemer,

Fairfield, Fultondale, Gardendale, Homewood, Hueytown, Midfield, Mountain Brook, Pleasant Grove, Tarrant and Vestavia Bills.

·On

1!>81 the District Court entered an Order

granting provisional approval to both Decrees, subject to further

hearings. In that Order the Cou~t withheld final approval of

the Consent Decrees until after hearing any objections which may be filed to them, as further explained in Part II of this Notice.

I.
Class Certification Ruling

- - - - - - - On

, 1981 the District Court entered an Order

pursuant to Rule 23 (b) (2) of the Federal Rules of Civil Proce-

dure in the Ensley Branch and Martin actions. In that order the

i

01884b

Court conditionally certifie-:3 for purposes of these settlement

.--

agreements the following classes of black individuals who may be

eligible to present a claim for back pay and other relief under.

the Consent Decrees.

1. All black persons who took the 10-C Policeman Test which

-

resulted in the eligibility lists for police officers and deputy sheriffs which were in effect between April 25, 1975 and January

10, 1977, and the 20-B Firefighter Test which resulted in the

eligibility lists for firefighters in effect between July 8,

1976, and January 10, 1977, who have not been hired for police

officer, deputy sheriff or firefighter positions by any of the

defendant jurisdictions in these consolidated actions, or who

subsequent to the entry of this Court's Order on January 10,

1977, were hired by any of the defendant jurisdictions but may

have been hired earlier but for their rank on such eligibility

lists.

2. All blacks who prior to the submission of the Consent Decree with the City of Birmingham to the Court on May 19, 1981 were hired and assigned to laborer positions in the unclassified service of the City of Birmingham; who, at any time after March 24, 1972, worked as laborers in the ·unclassified service; and who, prior to the suomiss;.on of this Decree to the Court, were reclassified into the classified service.
3. All blacks who were denied promotional opportunities in the Streets and Sanitation Department of the City of Birmingham at any time between March 24, 1972 and May 19, 1981, the date of the Jubmission of the Consent Decree with the City of Birmingham to the Court.

4. All black persons who were certified by the Personnel Board for positions with the City of Birmingham in the Police Department as police officers, key punch operators, or clerk typists, or in the Finance Departmen~ as clerk typists or intermediate clerks, but who were not hir~d for those positions during the period from March 24, 1972, through January 7, 1974.

ii

018 84'/

There is also a class of women who are eligible to present a

claim for relief under the Consent Decree with the City of Bir-

mingham. This class consists of all women who~·~ior to May 24,

1975, were hired by the City of Birmingham as traffic citation

officers or policewomen and who, on and after March 24, 1972,

-

were assigned to the Youth Aid Division of the City Police De-

partment. The claims of this class are being presented ~o1e1y as

part of the action brought by the United States.

II.

Notice of the Consent

Right To File Objections to Decrees and Fairness Hearing

This notice is directed to all persons who have an interest which may be affected by the Consent Decrees. Copies of the Decrees and the entire file in this proceeding are on file in the office of the Clerk of the Court for the Northern District of Alabama. They may be examined in the Clerk's office during normal working hours (Mon.-Fri. 8 a.m.-4:30p.m.). The address of the Clerk's office is 1800 Fifth Avenue North, Birmingham, Alabama 35203. Any person who wishes to register an objection(s} to either of the Consent Decrees must file such objection(s) in

writing with the Clerk of the Court bv

p.m.,

, 1981.

Obiections filed after that date will not be considered by the

Court in deter.mining whether to grant final approval to the

Consent Decrees.

On ----------' 1981, at

o'clock the District Court ~ill

hold a fairness hearing at which it will consider any timely

filed objections to the Consent Decrees. Individual objectors

may appear at that hearing with or without the assistance of legal

counsel.

II!.

Gen

era

l

Summary Jefferson

of the Consent Decree W County Personnel Board

ith

The

These Consent Decrees contain a number of general injunctive

iii
018848

-

atwnphdaasohaardbcalpyoyiptosrrrcsriuieopvechtomrgseeleveshim.dpaiceilnerrssaistoaesieaehnDotivdnafgeitainoemtsrndvsetanaeeiata,artndoiienatailfloidssnsaontcrtsdobrcenlefeoallromettuefbcesloypaddolsostocilirhouninkwmrbneyftegysoeseptci:muehgrangttsreeyhboetnfeewhtaoorrehleseeirrfPse,tqaflheputilifaCrhcealonstieaoelfodhrnninejanosefbtnumeohfftlCennfairepltcfeitcltohftcckBcyDiyeetsovomcseraueaClcteanraraornndldtpseietfd.senrrfioeoskawin,svnplcToe,yoilphmatsasfheonwiesa,eonrstlhCte,nhleouaxecosessenplgniealaviseaClctnenndiiihoondsledaftemutspoedsrteaDfhetdfss,oreetwvcraoirhbndrceiadaiceecslhskl-

Attorneys for the United States:

RFCURoeioindvcmihetielra4dar5Rdl1Si7EgJtn.ahfttoseRrsciDteDtimeveeripsnaitrotnSmeecnttioonf Justice

Washington, DC {202) 633-4086

20530

B2N(AC20io0ras0m5rrsty)iiFhsnleetgardPh2nnea5rrtmi4Dav-,lU1ei7sAntCt8tilotr5aeuibdcrattmhSoaotufast3eAe5sl2a0bA3amttoa rney

Attornevs for th v. the City

eoPf lBaiirnmtiinfgfhsamin:

Martin,

et

al.

SLSuatCewiptiyehveeir5nls20RCL.oigmhSmtpsiitttUzeen

for der Law

W7(23a03s2h)Finifg6tte2oe8nn-,6t7hD0C0St2r0e0e0t5, N.W.

Susan Reeves

S2R0ue2ie7tveeFs4i0'r0sSt tAivllenue North

Birmingham, AL (205) 322-74 79

35203

Attorney for the Plaintiffs in NAACP v. Seibels:

B1(O26is0r0mc50a)irn2g1Wh32a21iml4l-iB,4aum4A4iLl5dAidn3ag5m2s0,3 III

iv

01884~~

APPENDIX F-2

NOTICE AND

OF PROPOSED CONDITIONAL

SETTLEMENT AGREEMENTS CLASS CERTIFICATION

There are currently before the United States District Court

-

for the Northern District of Alabama proposed partial settlement agreements in the following consolidated employment discrimina-

tion actions: Enslev Branch of the N.A.A.C.P., et al. v. Citv of

Birmingham, et al. (C.A. No. 74-Z-12-S): John w. Martin, et al.

v. City of Birmingham, et al. (C.A. No. 74-Z-17-S) and United

States of America v. •"efferson County, et al. (C.A. No. 75-P-

0666-S).

The proposed settlement agreements are in the form of two

Consent Decrees. One of the Cons~nt Decrees is between each of the plaintiffs in the above actions and the defendants Jefferson

County Personnel Board, its Director and the members of the Board

(hereinafter Personnel Board or BoarJ). The other Consent Decree is between these same plaintiffs and the City of Birmingham and

its Mayor (hereinafter the City cf Birmingham). The Consent De-

crees will resolve all of the plaintiffs' claims of employment

discrimination against blacks and women by these defendants. The

Consent Decrees do not resolve the plaintiffs' claims of employ-

ment discrimination by the remaining defendant jurisdictions in these actions. These remaining defendants are: Jefferson County,

Jefferson County Bealth Department, and the cities of Bessemer,

Fairfield, Fultondale, Gardendale, Homewood, Hueytown, Midfield, Mountain Brook, Pleasant Grove, Tarrant and Vestavia Bills.

. On

1981 the District Court entered an Order

granting provisional approval to both Decrees, subject to further

hearings. In that Order the Court withheld final approval of

the Consent Decrees until after hearing any objections which may

be filed to them, as further explained in Part II of this Notice.

I. Class Certification Ruling

- - - - - - - On

, 1981 the District Court entered an Order

pursuant to Rule 23 (b) (2) of the Federal Rules of Civil Proce-

dure in the Ensley Branch and Martin actions. In that Order the

i

(118850

Court conditionally certified for purposes of these settlement agreements the fo1lowing'c1assP.s of black individuals who may be eligible to present a claim for back pay and other relief under. the Consent Decrees.
1. All black persons who took the 10-C Policeman Test which resulted in the eligibility lists for police officers and deputy sheriffs which were in effect between April 25, 1975 and_January 10, 1977, and the 20-B Firefighter Test which resulted in the eligibility lists for firefighters in effect between July 8, 1976, .and January 10, 1977, who have not been hired for police officer, deputy sheriff or firefighter positions by any of the defendant jurisdictions in these consolidated actions, or who subsequent to the entry of this Court's Order on January 10, 1977, were hired by any of the defendant jurisdictions but may have been hired earljer but for their rank on such eligibility lists.
2. All blacks who prior to the submission of the Consent Decree with the City of Birmingham to the Court on May 19, 1981 were hired and assigned to laborer positions in the unclassified service of the City of Birmingham~ who, at any time after March 24, 1972, worked as laborers in the unclassified service; and who, prior to the sucmission of this Decree to the Court, were reclassified into the classified service.
3. All blacks who were denied promotional opportunities in the Streets and Sanitation Department of the City of Birmingham at any time between March 24, 1972 and May 19, 1981, the date of the ~ubmission of the Consent Decree with the City of Birmingham to the Court.
4. All black persons who were certified by the Personnel Board for positions with the City of Birmingham in the Police Department as police officers, key punch operators, or clerk typists, or in the Finance Departmen~ as clerk typists or intermediate clerks, but who were not hired for those positions during the period from March 24, 1972, through January 7, 1974.
ii
018851

There is also a class of women who are eligible to pr~sent a

claim for relief under the Consent Decree with the City of Bir-

mingham. This class consists of all woman whC?•Jri'?r to 11ay 24,

1975, were hired by the City of Birmingham as traffic citation

officers or policewomen and who, on and after March 24, 1972,

-

were assigned to the Youth Aid Division of the City Police Depar~ent. The claims of this class are being presented solely as

part of the action brought by the United States.

II. Notice of Right To File Objections to the Consent Decrees and Fa~rness Hear~ng

This notice is directed to all persons who have an interest

which may be affected by the Consent Decrees. Copies of the

Decrees and the entire file in this proceeding are on file in

the office of the Clerk of the Court for the Uorthern District of

Alabama. They ~ay be examined in the Clerk's office during normal working hours (Mon.-Fri. 8 a.m.-4:30p.m.). The address of the

Clerk's office is 1800 Fifth Avenue ;~orth, Birmingham, Alabama

35203. Any person who wishes to register an objection(s) to

either of the Consent Decrees must file such objection(s) in

writina with the Clerk of the Court by p. rn.,

, 1981.

Objections filed after that date wil~ not be considered by the

Court in determining whether to grant final approval to the

Consent Decrees.

On ______________ , 1981, at

o'clock the District Court will

hold a fairness hearing at which it will consider any timely filed objections to the Consent Decrees. Individual objectors

~ay appear at that hearing with or without the assistance of legal

counsel.

III.
of the Consent Decree ~:ith The

This Consent Decree contains a number of general injunctive provisions each of which are c!esigned to insure equal er::ployment opportunities for all applicants and employees in the civil service system administered by the Personnel Board. The Personnel

iii

Board has agreed to review its teEting and other selection procedures to insure that they do not unlawfully discriminate against either blacks or women.

To correct for the effects of any alleged past discrimina-

tion against blacks by the Personnel Board, the Consent Decree

provides for interim annual certification goals in nineteen (19)

classified service positions. These goals range from 33\ to SO%.

The jobs to which these certification goals apply are:

1. Accountant 2. Account Clerk 3. Animal Control Officer 4. Auditor S. Automotive Mechanic 6. Construction Equipment
Operator 7. Engineering Aide 8. Heavy Equipment Operator 9. Intermediate Clerk 10. Labor Supervisor 11. Public Works Supervisor
(including Construction Supervisor and Landfill supervisor)

12. Refuse Truck Driver 13. Revenue Examiner 14. Secretary 15. Senior Clerk 16. Stenographer 17. Truck Driver 18. waste Water Treatment
Plant Operator 19. Zookeeper

The Consent Decree also incorporates a prior Order of the District Court entered on ~anuary 10, 1977 concerning the certification of blacks for police officer, deputy sheriff and firefighter.positions. That Order requires, among other things, that the number of blacks certified for these jobs approximate the number of black applicants for those positions.

To corect for the effects of any alleged past discr~rnination against women by the Personnel Board, the Consent Decree provides fo~ annual certification goals for women in fourteen (14) classified service jobs. The goals range from 10' to 25,, The jobs to which these certification goals apply are:

1. Drafter

2. Engineering Aide

3. Engineering Drafter

4.
S.

Engineering Technician Firefighter

6. Graduate Engineer

7. Police Officer/De~uty

Sheriff

8. Police Radio Dispatcher* 9. Radio Dispatcher* 10. Revenue Examiner 11. Security Officer 12. Sr. Civil Engineer 13. Stores Clerk 14. Traffic Planning Technician

*Goals apply only Midfield, Mountain

to certi Brook,

fications to and Tarrant.

Fultondale,

Gardendale,

All of the annual certifi~ation goals are subject to the availability of qualified black and female applicants, and they

iv
01885j

do not preclude the certification of qualified males and non

minorities. These goals are also temporary or interim measure

because they are designed to end when certain minimum employmen

levels are reached. These levels are defined in terms of th

percentage of blacks and women in the civilian labor force o:

-

Jefferson County. The Consent Decree also provides for a lowering of the tim'

in grade requirements prescribed by the Board for promotions i:

certain aworn police and fire department positions, such as po·

lice sergeant and fire lieutenant: the elimination of minimur:

height and weight requirements in all classified service jobs,

including police otficer and firefighter: and the elimination of

promotional potential ratings in certain departments of the Cit;

of Birmingham and Jefferson County where such ratings had an ad-

verse impact on blacks. Thos~ departments are: City of Birming-

ham- Streets and Sanitation, Police, Fire, and Parks and Recrea-

tion; Jefferson County- Cooper Green Bospital, General Services.

Promotional eligibility requirements in certain public works and streets and Eanitation positions have been revised tc expand the pool of employees eligible for promotional consideration. For example, if this Cons~nt Decree is finally approved by the Court, employees in unclassified laborer and semi-skilled laborer positions would be eligible to take promotional examinations for jobs such as refuse truck driver and heavy equipment operator. In the past, employP.es in these jobs were not eligible to take these promotional examinations.

The Consent Decree provides for $35,000.00 in back pay for a class of blacks who took the Personnel Board's written tests for police officer positions which resulted in eligibility lists in effect between April 25, 1975, and January 10, 1977, or who tool: the tests for firefighter positions which resulted in eligibil it:: lists in effect between July 8, 1976 and January 10, 1977. Bac~ pay for individual class members will be contingent on the filing of timely proof of claim forms with the Clerk of the Court.

v

018854

The Decree also provides for the priority certification of nineteen (19) named black individuals to various jobs in the streets and Sanitation Department of the Ci-t;t--of Birmingham. These jobs include public works supervisor, labor supervisor, construction equipment operator and refuse truck driver.

--

DeGcreeneerWalithSumThmeacICyVi.otyf

the Consent of Birmingham

The Consent Decree contains injunctive provisions which are designed to insure equal employment opportunities with the City for all persons wit~out regard to race or sex in hiring, promotion, training, job assignments, discharge, and other terms and conditions of employment.

To correct for the effects of any alleged past discrimina-

tion against blacks and women, the Decree contains interim annual

hiring and promotion goals for blacks and women. The goals are

subject to the availability of qualified black and female appli-

cants, and they do not preclude the hiring or promotion of quali-

fied males and non-minorities. The goals rim measures because they are designed to

are end

temporary or intewhen the percentage

of blac"ks· and women in the affected jobs or groups of jobs·

approximate the percentage of blacks an~ women in the labor force

of Jefferson County.

The City bas agreed to interim annual hiring and promotion goals for blacks in the following specific job categories:

1: Account Clerk

2.
3. •·

CBAouuntiolsOdmtirponuetgcirvtaieItononMsr peEeccqhtuaoinprimc ent

S. Firefighter

6. Gardener

7. 8. 9. 10.

Heavy Labor

Equipm Superv

ent iso

r

Op~rator

Police Officer

Police Radio Dispatcher

ll. 12. 13. 14. 15. 16. 17.

SRCRPFPeeeuoiovrcfbnleuerilsncseiteuceLtraeuirTWSecyEruteouixtrroceagkknmnseaaiDSSnnneuuttrrippveeerrrvviissoorr

18.
19.

Senior Clerk Senior Sanitation

20.

Inspector Zookeeper

The Consent Decree also provides for annual employment goals

for blacks in certain groups ments: Engineering, Fir.ance,

of jobs in the following departInspection Services, Traffic En-

gineering, and Housing.

vi

018855

The Consent Decree provides for annual hiring and promo-

tional goals for women in police officer and police sergeant

positions, and in groups of jobs in the follow:Lng departments:

Fire, Engineering, Inspection Services, Municipal Garage, Hous-

ing, Streets and Sanitation, Traffic Engineering, Parks and Re-

-

creation and Parking Authority.

The City has agreed to lower the time in grade requirement

for promotions in several sworn positions in the Police and Fire

Departments such as police sergeant and fire lieutenant, and it

has agreed to expand the pool of employees eligible to apply for

promotions to jobs in the Streets and Sanitation Department. The

City has also agreed to discontinue the use of promotional poten-

tial ratings in the Police, Fire, Streets and Sanitation, and

Park and Recreation Departments.

The Consent Decree provides for $30,000.00 in back pay for six {6) of the named plaintiffs in the Martin action, and for $235,000.00 in back pay for four sub:lasses of blacks and a subclass of women. These subclasses consist of: (1) blacks who took
the police officer tests for: the City of Birmingham which resulted in eligibility lists in effect between April 25, 1975, and January 10, 1977, and the firefighter tests for the City of Birmingham which resulted in eligibility lists in effect between July 8, 1976, and January 10, 1977; (2) blacks in unclassified laborer positions with the City who between March 24, 1972 and May 19, 1981 were reclassified into the classified service; (3) blacks who between March 24, 1972 and May 19, 1981, were denied promotional opportunities in the Streets and Sanitation department of the City; (4) women employed as traffic citation officers or policewomen who, between March 24, 1972, and May 27, 1975, were assigned to the Youth Aid Division of the City Police department; and (5) blacks who were certified but not hired for certain positions in the Police and Finance departments of the City between March 24, 1972, and January 7, 1974.

vii
Ol885b

The back pay amounts set aside for each of the subclasses

identified above are: . Class l ($5, 000. 00) 1 Class 2 {$65, 000. 00),

Class 3 ($137 1 000.00) 1 Class 4 ($6,000.00), Class 5 ($22,000.00).

Procedures for allocating the amounts of back pay among mern-

-

bers of each of the subclasses are set out in Appendix D to the Consent Decree with the City of Birmingham. Each subclass member

will be required, after final approval of the Consent Decree, to

file a proof of claim form in order to be eligible for an award of

back pay.

The Consent Decree provides for priority hiring and/or pro-

motions and remedial seniority for several of the named plain-

tiffs in the Martin case, and for nineteen (19) named members of

subclass 3 in the Streets and Sanitation department of the City

of Birmingham. Certain other members of each of the five sub-

classes may be eligible for priority hiring or promotional oppor-

tunities and remedial seniority based upon the individual facts of

their claims. Their relief is to be determined after they submit

·-

the appropriate proof of claim forms.

v.
Attorneys' Fees and Costs

l~either of the Consent Decrees contains an award of attorney fees or costs for counsel for the plaintiffs. The amount of attorneys' fees and costs as finally determined will NOT REDUCE the amounts to be distributed as back pay to any of the subclass members or named plaintiffs under either of the Consent Decrees.
If you have any questions with respect to this notice, the Consent Decree, or the procedures for filing your proof of claim form, you may call or write any of the attorneys listed belo~,o.·: Attornevs for the United States:

Richard J. Ritter United States Department of Justice Civil Rights Division Federal Enforcement Section Room 4517
Washington, DC 20530
(202) 633-4086

01885'('
viii

Caryl Privett Assistant United States-Attorney Northern District of Alabam~ 200 Federal Courthouse Birmingham, Alabama 35203 (205) 254-1785

-

Attorneys for the Plaintiffs in v. the City of Birmingham:

Martin,

et

al.

Stephen L. Spitz Lawyers Committee for
Civil Rights Under Law Suite 520
733 Fifteenth Street, N.W. Washington, DC 20005 (202) 628-6700

Susan Reeves Reeves ' Still 2027 First Avenue North Suite 400 Birmingham, AL 35203 (205) 322-74 79
Attornev for the Plaintiffs in NAACP v. Seibels:
Oscar William Adams, Ill 1600 2121 Building Birmingham, AL 35203 (205) 324-4445

ix
018858

APPENDIX G Notice To [Subclass definition]:

This announcement is to inform you of your right to pre-

sent a claim for individual relief under a Consent Decree between

-

the plaintiffs and the City of Birmingham in the consolidated actions of: Ensley Branch of the N.A.A.C.P. et al. v. City of Bir-

mingham, et al., C.A. No. 74-Z-12-Sr John W. Martin, et al. v.

City of Birmingham, C.A. No. 74-Z-17-S: and United States of

America v. Jefferson County, et al., C.A. No. 75-P-0666-S.

If you are a member of the subclass described in the cap-

tion of this notice you may fill out the attached proof of claim

form and mail it to the Clerk of the Court for Northern District

of Alabama. Enclosed for your use is an unstamped envelope con-

taining the mailing address of the Clerk of the Court.

If you wish to present a claim for individual relief under

the Consent Decree, your proof of claim form must be received by

the Clerk of the Court by no later than

p.m. on

1981. If you do not file this proof of claim form with the Clerk

of the.Court by that date then, absent good cause shown, you will

be deemed to have waived your right to present a claim for in-

dividual relief under the Consent Decree.

After your proof of claim form is filed, you will be con-

tacted by attorneys for the plaintiffs. They will review with

y~u your proof of claim form and the relevant facts which support

your claim. Thereafter, these attorneys will make a recommenda-

tion to the Court whether your claim merits an award of indi-

vidual relief under the Consent Decree. Such an award may in-

clude a job offer or promotion with the City, remedial seniority

and/or back pay. The City has reserved the right to review and to

object to any individual job offers and/or remedial seniority

dates proposed by counsel for the plaintiffs on your behalf which

have not been previously agreed upon by the parties under the

i

01885U

Consent Decree. The City has agreed not to contest any of the

individual back pay de~erminations. If any objections are raised

by the City to any proposed job offers and/or.remedial seniority

for you, and if the parties are unable to resolve such objec-

tions, then the Court will determine the appropriate relief, if

-

any, for you under this Consent Decree.

After final determinations have been made of.th~ indivi-

dual awards of relief to be made under this Consent Decree, you

will be notified of your individual award, if any. If you do not

receive an award of individual relief under the Consent Decree,

or if you are not satisfied with the amount of relief provided to

you, you will have the right to file an objection to the resolu-

tion of your claim with the Clerk of the Court. That objection

will be subsequently ruled upon by the District Court. The pro-

cedures for filing any such objections will be explained to you

in the notice you will receive informing you of your award of re-

lief, if any.

If you have any questions with respect to this notice, the Consent Decree, or the procedures for filing your proof of claim form, you may call or write any of the attorneys listed below:

Attorneys for the United States:

Richard J. Ritter United States Department of Justice Civil Rights Division washington, DC 20530 (202) 633-4086 Caryl Privett Assistant United States
Attorney Northern District of Alabama 200 Federal Courthouse Birmingham, Alabama 35203
(205) 254-1785

i i
018860

At

to

rney

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f v.

or the the C

Plain ity of

tiffs in Martin, Birmingham:

et

al.

Stephen L. Spitz

Lawyers Committee for

Civil Rights Under Law

Suite 520

733 Fifteenth Street, N.W.

-

Washington, DC 20005 (202) 628-6700 Susan Reeves

Reeves ' Still

2027 First Avenue North

Suite 400

Birmingham, AL 35203

(205) 322-7479

iii
018861

APPENDIX B Proof of Claim Form
Please list your: Name=---------------------------------------------Current Address: ___________________________________ Current Telephone Number: __________________________
Please ch~ck the appropriate box or boxes if you fall within either or both of the classes described below. If you check either of the boxes, please complete this proof of claim form by supplying the information requested below.
r==J I am a black person who took a written test admini-
stered by the Personnel Board of Jefferson County for a job as a police officer with the City of Birmingham. I wish to present a claim for relief under the Consent Decree with the City of Birmingham.
D I am a black person who took a written test admini-
stered by the Personnel Board of Jefferson County for a job as a firefighter with the City of Birmingham. I wish to present a claim for relief under the Consent Decree with the City of Birmingham.
If you check either of the boxes above, please indicate in the space provided below whether you were ever contacted by the Cit~ of Birmingham for employment as a police officer or firefighter, and the approximate date(s) of such contact to the best of your recollection. Also, please indicate whether you were ever offered employment with the City as a police officer or firefighter, and the date you began employment with the City if you accepted such a job offer.
i
01886~

/·

-

Please sign and date this proof of claim form and return it to the Clerk of the Court in the enclosed self-addressed

envelope.

S1gnature Date: _____________________

ii
018863

APPENDIX I

~roof of Claim Form

Please list your: Name: _______________________________________________

current Address: ___________________________________

-

Current Telephone Number: __________________________

Please check the box provided below if the statement next

to the box applies to you and you wish to present a claim for

relief under the Consent Decree with the City of Birmingham.

D I am a black person who worked for the City of Bir-
mingham as an unclassified laborer on or after March 24, 1972 and who was later brought into the classified service on
(fill in approximate date) as a
(fill in job title) • · I wish to present a claim for relief under the Consent Decree with the City of Birmingham.

Please sign and date this proof of claim form and return

in it to the Clerk of the Court

the enclosed self-addressed

envelope.

Signature Date: _____________________

i
018864

Please list your:

APPENDIX J Proof o'f Claim Form

Name=---------------------------------------------Current Address: ___________________________________ ,__ Current Telephone Number: __________________________
Please check the box provided below if the statement next to the box applies to you. If you check the box, please complete the proof of claim form by supplying the information requested below.

D I am a black person who vas employed by the City of
Birmingham in the Streets and Sanitation Department on or after March 24, 1972 in either a classified or unclassified position, and I was denied the opportunity to apply for a promotion to a higher paying position in the Streets and Sanitation Department after that date. I wish to present a claim for relief under the Consent Decree with the City of Birmingham.

I.
Please supply the following additional information: Please list the job (s) which you claim you were denied promotional opportunities in:

[Please note: You may list a job(s) in the space provided above even if you were not eligible to apply for it under the promotion policies of the City of Birmingham or the Personnel Board of Jefferson County.)
2. Bow long have you been employed in the Streets and Sanitation Department of the City of Birmingham? (Include classified and unclassified service time) ______________________
3. List the approximate date when you were first hired by
i
01886~)

the City. (If you were first hired as an unclassified laborer please list that date)________

4. Please list all of the job in which you have worked on

a permanent full time basis in the Streets and Sanitation Depart-

ment of the City and the approximate dates you worked in those

-

jobs.

Sa. Bave you ever taken a written promotional examination for the job of Heavy Equipment Operator in the Streets and Sanitation Department of the City? Yes_ _ No_ _
b. If you answer to a is yes please indicate the date{s) you took the examination.
c. Please indicate whether at any time prior to January 1, 1979 you ever received a promotion to a permanent full time position as a Heavy Equipment Operator in the Streets and Sanitation Department of the City. Yes__ No_ _
6. Have you ever expressed an interest to any official of the City of Birmingham or the Personnel Board of Jefferson County about being promoted to any of the jobs you have listed in your answer to l above? If so, please supply the following information in the space provided below: (1) the approximate date {s) that you expressed such an interest, (2) the person to whom such interest was expressed, (3) the job you were in at the time you expressed your interest, and (4) indicate whether you were ever offered such a promotion by the City or the Personnel Board.

ii

-
Please sign and date this proof of claim form and return it to the Clerk of the Court in the enclosed self-addressed envelope.
Signature Date: ____________________
iii

Please list your:

APPENDIX K Proof of Claim Form

Name=----------------------------------------------

-

Current Address: ___________________________________ Current Telephone Number: __________________________

Please check the box immediately below if the statement next to the box applies to you. If you check the box, please complete the proof of claim form by supplying the information requested below.

D I am a female who prior to May 27, 1975, was hired by
the City of Birmingham as a traffic citation officer or policewoman and who, on or after March 24, 1972, was assigned to the Youth Aid Division of the City Police Department. I wish to present a claim for relief under the Consent Decree with the City of Birmingham.
If you were originally hired as a traffic citation officer and were subsequently promoted or reclassified to a position as a policewoman, please indicate whether you were credited with your seniority as a traffic citation officer at the time you became a policewoman.

Please sign and date this proof of claim form and return it to the Clerk of the Court in the enclosed self-addressed envelope.
Signature Date: ____________________

i
018868

APPENDIX L

Proof of Claim Form

Please list your:

Name=---------------------------------------------Current Address: ___________________________________

-

current Telephone Number: __________________________ Please check the appropriate box or boxes if you fall

within any of the classes described below. If you check any of

the boxes, please complete the proof of claim form by supplying

the information requested below.

r===J I am a black person who applied for a job as a police
officer with the City of Birmingham between March 24, 1972 and January 7, 1974, and I was not hired or offered employment by the City in that job. I wish to present a claim for relief under the Consent Decree with the City of Birmingham.
D I am a black person who applied for a job as a key-
punch operator with the City of Birmingham between March 24, 1972, and January 7, 1974, and I was not hired or offered employment by the City in that job. I wish to present a claim for relief under the Consent Decree with the City of Birmingham.
c==J I am a black person who applied for a job as a clerk
typist with the City of Birmingham between March 24, 1972, and January 7, 1974, and I was not hired or offered employment by the City in that job. I wish to present a claim for relief under the Consent Decree with the City of Birmingham.
c==J I am a black person who applied for a position as an
intermediate clerk with the City of Birmingham between March 24, 1972, and January 7, 1974, and I was not hired or offered employment by the City in that job. I wish to present a claim for relief under the Consent Decree with the City of Birmingham.

i
01886D

If you have checked any of the boxes above, please indi-

cate in the space provided below whether to the-best of your re-

collection you were ever contacted by the City of Birmingham for

an interview for the job or jobs you have checked, whether you

-

appeared for that interview, and, if so, what happened during that interview. If you need more space to supply this informa-

tion you may attach additional sheets of paper to this this proof

of claim form.

Please sign and date this proof of claim form and return it to the Clerk of the Court in the enclosed self-addressed envelope.
S1gnature Date: ___________________
ii
0188-70

 
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4

 
 Create an Alert for This Case on RECAP

CLOSED,MONEY

U.S. District Court Northern District of Alabama (Southern) CIVIL DOCKET FOR CASE #: 2:75-cv-00666-CLS

USA, et al v. Jefferson Cty, et al Assigned to: Judge C Lynwood Smith, Jr Demand: $0 Case in other court: 08-16604D
11th Circuit, 20-14687-F Cause: 42:1983 Civil Rights Act

Date Filed: 05/27/1975 Date Terminated: 12/21/2020 Jury Demand: Defendant Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Birmingham Fire Fighters Association 117

represented by Gary L Brown U.S. Attorney Office 1801 4th Avenue North Birmingham, AL 35203 205-244-2117 Fax: 205-244-2181 Email: gary.brown3@usdoj.gov TERMINATED: 11/05/2009 ATTORNEY TO BE NOTICED

Raymond P Fitzpatrick , Jr 1200 Corporate Drive, Ste. 105 Birmingham, AL 35242 205-437-8846 Fax: 855-898-3647 Email: rpf@rfitzpatricklaw.com ATTORNEY TO BE NOTICED

Plaintiff
Wilks Class TERMINATED: 01/27/2012

represented by James Michael Cooper PORTERFIELD HARPER MILLS & MOTLOW PA 22 Inverness Center Parkway Suite 600 P O Box 530790 Birmingham, AL 35253-0790 205-980-5000

Plaintiff United States of America

Fax: 205-980-5001 Email: jmc@phm-law.com TERMINATED: 04/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raymond P Fitzpatrick , Jr (See above for address) TERMINATED: 01/27/2012 ATTORNEY TO BE NOTICED
Gary L Brown (See above for address) TERMINATED: 11/05/2009 ATTORNEY TO BE NOTICED
represented by Alice H Martin MARTIN LEGAL AND COMPLIANCE SERVICES, LLC P.O. 3034 Florence, AL 35631 256-710-8190 Fax: 256-757-1230 Email: alice@alicemartin.com TERMINATED: 02/10/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carl D Wasserman UNITED STATES DEPARTMENT OF JUSTICE 950 Pennsylvania Ave., N.W.-PHB Washington, DC 20530 202-353-8015 Fax: 202-514-1005 Email: Carl.Wasserman@usdoj.gov TERMINATED: 05/09/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hector Federico Ruiz , Jr. United States Department of Justice Civil Rights Division 601 D Street NW, Room 4034 Washington, DC 601 D Street NW

202-514-9694 Fax: 202-514-1105 Email: hector.ruiz@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jay Adelstein US DEPARTMENT OF JUSTICECIVIL RIGHTS DIVISION 601 D Street, NW, Room 4026 Washington, DC 20004 1-202-514-1005 fax Email: jay.d.adelstein@usdoj.gov TERMINATED: 12/21/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jay E Town US ATTORNEYS OFFICE 1801 4th Avenue North Birmingham, AL 35203 205-244-2015 Fax: 205-244-2184 TERMINATED: 12/17/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John P Cunningham US DEPT OF JUSTICE 950 Pennsylvania Avenue NW Washington, DC 20530 202-514-3831 Fax: 202-514-1005 Email: john.cunningham4@usdoj.gov TERMINATED: 11/14/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joyce White Vance 101 Paul W. Bryant Drive Tuscaloosa, AL 35487 205-348-5440 TERMINATED: 04/25/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert O Posey US ATTORNEY'S OFFICE 1801 4th Avenue North Birmingham, AL 35203-2101 244-2001 Email: robert.posey@usdoj.gov TERMINATED: 10/04/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barbara E Thawley UNITED STATES DEPARTMENT OF JUSTICE EMMPLOYMENT LITIGATION SECTION, CIVIL RIGHTS DIVISION 950 Pennsylvania Avenue NW Washington, DC 20530 1-202-514-3852 Fax: 1-202-514-1105 Email: Barbara.E.Thawley@usdoj.gov TERMINATED: 03/31/2009 ATTORNEY TO BE NOTICED
Joseph John Sperber , IV US DEPARTMENT OF JUSTICE Employment Litigation Section 950 Pennsylvania Avenue NW PHB Room 4914 Washington, DC 20530 202-514-8138 Fax: 202-514-1005 Email: joseph.sperber@usdoj.gov ATTORNEY TO BE NOTICED
Leslie M Proll NAACP LEGAL DEFENSE & EDUCATIONAL FUND INC 1444 I Street NW, 10th Floor Washington, DC 20005-2239 1-202-682-1300 Fax: 1-202-682-1312 fax TERMINATED: 04/03/2007 ATTORNEY TO BE NOTICED

Matthew Kaplan CRAVATH SWAINE & MOORE Worldwide Plaza 825 Eighth Avenue New York, NY 10019-7415 1-212-474-1000 Fax: 1-212-474-3700 fax TERMINATED: 02/18/2005 ATTORNEY TO BE NOTICED
Caryl P Privett 300 Union Hill Drive, Suite 220 Birmingham, AL 35209 868-1240 Fax: 868-1250 fax TERMINATED: 01/04/2001 ATTORNEY TO BE NOTICED
James S Angus US DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION PO Box 37076 Washington, DC 20066 TERMINATED: 01/04/2001 ATTORNEY TO BE NOTICED
Karin Antonoia 825 8th Ave New York, NY 10019-7475 1-212-474-1000 TERMINATED: 01/04/2001 ATTORNEY TO BE NOTICED
Oscar W Adams , III OSCAR W ADAMS III PC 413 16th Street North Birmingham, AL 35203 205-458-1540 Fax: 205-443-7878 Email: oscaradamsiii@bellsouth.net TERMINATED: 01/04/2001 ATTORNEY TO BE NOTICED
Richard T Seymour LAWYERS COMMITTEE FOR

Plaintiff John G Veres, III Special Master
Plaintiff Martin

CIVIL RIGHTS UNDER LAW 1401 New York Avenue, NW, Suite 400 Washington, DC 20005 1-202-662-8600 Fax: 1-202-783-5131 fax TERMINATED: 01/19/2001 ATTORNEY TO BE NOTICED
Stephen L Spitz 1400 Eye Street NW, Suite 400 Washington, DC 20005 TERMINATED: 07/28/1997 ATTORNEY TO BE NOTICED
Susan W Reeves REEVES LAW OFFICES 714 29th Street South Birmingham, AL 35233 205-322-6631 Email: swrlaw@gmail.com TERMINATED: 01/04/2001 ATTORNEY TO BE NOTICED
Thomas D Barr 825 8th Avenue New York, NY 10019 1-212-474-1000 TERMINATED: 01/04/2001 ATTORNEY TO BE NOTICED
represented by John G Veres , III Auburn University Montgomery 600 South Court Street, Suite 110 Montgomery, AL 36104 1-334-244-3700 Email: jveres@aum.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ali Klein CRAVATH, SWAINE & MOORE LLP

825 Eighth Ave. New York, NY 10019 212-474-1000 Fax: 212-474-3700 Email: aklein@cravath.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Damaris Hernandez CRAVATH SWAINE & MOORE LLP Worldwide Plaza 825 Eighth Avenue New York, NY 10019 212-474-1486 Fax: 212-474-3700 Email: dhernandez@cravath.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David R Marriott CRAVATH SWAINE & MOORE LLP 825 Eighth Avenue New York, NY 10019 212-474-1000 Email: dmarriott@cravath.com TERMINATED: 01/18/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth A Lewis CRAVATH SWAINE & MOORE LLP Worldwide Plaza 825 Eighth Avenue New York, NY 10019 212-474-1730 Fax: 212-474-3700 Email: elewis@cravath.com TERMINATED: 03/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily O Famutimi CRAVATH SWAINE & MOORE

LLP Worldwide Plaza 825 Eighth Avenue New York, NY 10019 212-474-1226 Email: efamutimi@cravath.com TERMINATED: 03/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hussein E. Elbakri CRAVATH, SWAINE & MOORE, LLP 825 Eighth Avenue New York, NY 10019 212-474-1211 Email: helbakri@cravath.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine M. Pecore CRAVATH SWAINE & MOORE LLP Worldwide Plaza 825 Eighth Avenue New York, NY 10019 212-474-1000 Fax: 212-474-3700 Email: kpecore@cravath.com TERMINATED: 09/30/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristy Jean Greenberg CRAVATH SWAINE & MOORE LLP 825 Eighth Avenue New York, NY 10019 212-474-1170 Fax: 212-474-3700 Email: kgreenberg@cravath.com TERMINATED: 01/18/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lauren K. Ross CRAVATH, SWAINE & MOORE, LLP 825 Eight Avenue New York, NY 10019 212-474-1000 Fax: 212-474-3700 Email: lross@cravath.com TERMINATED: 03/12/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margarita Botero CRAVATH, SWAINE & MOORE LLP 825 Eighth Avenue New York, NY 10019 212-474-1062 Email: mbotero@cravath.com TERMINATED: 06/23/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara A Slavin CRAVATH SWAINE & MOORE LLP 825 Eighth Avenue New York, NY 10019 Email: sslavin@cravath.com TERMINATED: 06/16/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott P Dixler CRAVATH SWAINE & MOORE LLP 825 Eighth Avenue New York, NY 10019 212-474-1000 Email: sdixler@cravath.com TERMINATED: 01/18/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shawn G Crowley CRAVATH SWAINE & MOORE

LLP 825 Eighth Avenue New York, NY 10019 212-474-1000 Fax: 212-474-3700 Email: scrowley@cravath.com TERMINATED: 08/07/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Farah S Brelvi CRAVATH SWAINE & MOORE Worldwide Plaza 825 Eighth Avenue New York, NY 10019-7415 1-212-474-1000 Fax: 1-212-474-3700 fax TERMINATED: 02/18/2005 ATTORNEY TO BE NOTICED
Lauren Rosenberg CRAVATH SWAINE & MOORE LLP 825 Eighth Avenue New York, NY 10019 212-474-1716 Email: lrosenberg@cravath.com TERMINATED: 01/28/2014 ATTORNEY TO BE NOTICED
Margaret E Lynaugh CRAVATH SWAINE & MOORE LLP 825 Eighth Avenue New York, NY 10019 212-474-1000 Fax: 212-474-3700 Email: mlynaugh@cravath.com TERMINATED: 10/23/2012 ATTORNEY TO BE NOTICED
Rachel M Fritzler CRAVATH SWAINE & MOORE LLP 825 Eighth Avenue New York, NY 10019

212-474-1274 Email: rfritzler@cravath.com TERMINATED: 06/19/2018 ATTORNEY TO BE NOTICED
Thomas G Rafferty CRAVATH SWAINE & MOORE LLP 825 Eighth Avenue New York, NY 10019 (212) 474-1000 Email: trafferty@cravath.com ATTORNEY TO BE NOTICED
Mary Beth Vrabel CRAVATH SWAINE & MOORE Worldwide Plaza 825 Eighth Avenue New York, NY 10019-7415 1-212-474-1974 Fax: 1-212-474-3700 Email: mvrabel@cravath.com TERMINATED: 06/18/2007 ATTORNEY TO BE NOTICED
Olivia J Zach CRAVATH SWAINE & MOORE Worldwide Plaza 825 Eighth Avenue New York, NY 10019-7415 1-212-474-1000 Fax: 1-212-474-3700 fax TERMINATED: 01/09/2006 ATTORNEY TO BE NOTICED
Richard T Seymour (See above for address) TERMINATED: 01/19/2001 ATTORNEY TO BE NOTICED
Rowan D Wilson CRAVATH SWAINE & MOORE LLP Worldwide Plaza 825 Eighth Avenue New York, NY 10019

Plaintiff Charles A Powell, III TERMINATED: 08/31/2006
V. Defendant Ben L Erdreich TERMINATED: 02/02/2001

212-474-1000 Fax: 212-474-3700 Email: rwilson@cravath.com TERMINATED: 04/25/2017 ATTORNEY TO BE NOTICED
represented by Charles A Powell , III JOHNSTON BARTON PROCTOR & POWELL LLP Colonial Brookwood Center Suite 901 569 Brookwood Village Birmingham, AL 35209 205-458-9449 Fax: 205-458-9500 Email: cap@jbpp.com TERMINATED: 08/31/2006 ATTORNEY TO BE NOTICED
represented by Richard P Rouco QUINN CONNOR WEAVER DAVIES & ROUCO LLP Two North Twentieth Street 2 20th Street North Suite 930 Birmingham, AL 35203 205-870-9989 Fax: 205-803-4143 Email: rrouco@qcwdr.com TERMINATED: 02/02/2001 ATTORNEY TO BE NOTICED
Russell Jackson Drake WHATLEY KALLAS LLC 2001 Park Place North, Suite 1000 Birmingham, AL 35203 205-488-1200 Fax: 205-922-4551 Email: jdrake@whatleykallas.com TERMINATED: 02/02/2001 ATTORNEY TO BE NOTICED

Defendant Thomas W Gloor TERMINATED: 02/02/2001
Defendant Chriss H Doss TERMINATED: 02/02/2001
Defendant Jefferson County Personnel Board

represented by Richard P Rouco (See above for address) TERMINATED: 02/02/2001 ATTORNEY TO BE NOTICED
Russell Jackson Drake (See above for address) TERMINATED: 02/02/2001 ATTORNEY TO BE NOTICED
represented by Richard P Rouco (See above for address) TERMINATED: 02/02/2001 ATTORNEY TO BE NOTICED
Russell Jackson Drake (See above for address) TERMINATED: 02/02/2001 ATTORNEY TO BE NOTICED
represented by Brice Martin Johnston JOHNSTON LAW FIRM, PC 2100 First Avenue North, Suite 600 Birmingham, AL 35203 205-328-9445 Fax: 800-856-9028 Email: brice@johnstonfirmpc.com TERMINATED: 06/13/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
David B Walston CHRISTIAN & SMALL LLP 505 North 20th Street, Suite 1800 Birmingham, AL 35203 205-795-6588 Fax: 205-328-6588 Email: dbwalston@csattorneys.com TERMINATED: 06/13/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

LaVeeda Morgan Battle BATTLE LAW FIRM LLC 501 Riverchase Parkway E St 100 Hoover, AL 35244 205-322-1504 Fax: 205-321-1444 Email: laveeda@battlelawfirm.com TERMINATED: 03/29/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie Allen Coyne COYNE COUNSEL & CONSULTING LLC 2655 Alta Vista Drive Birmingham, AL 35243 205-401-5096 Fax: 205-959-9442 Email: lcoyne@coynecounsel.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas L Stewart WALDREP STEWART & KENDRICK LLC 2323 2nd Avenue North Birmingham, AL 35203 205-254-3216 Fax: 205-324-3802 Email: stewart@wskllc.com TERMINATED: 01/12/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron L Dettling Aaron L. Dettling, Lawyer, L.L.C. 5809 Feldspar Way Suite 111 Hoover, AL 35244 205-988-3119 Email: aaron@dettlinglaw.com TERMINATED: 01/16/2014 ATTORNEY TO BE NOTICED
Anne R Yuengert BRADLEY ARANT BOULT

CUMMINGS LLP 1819 5th Avenue North P O Box 830709 Birmingham, AL 35283-0709 205-521-8000 Fax: 205-488-6362 Email: ayuengert@bradley.com ATTORNEY TO BE NOTICED
Kenneth O Simon Judicial Arbiter Group, Inc. 420 North 20th Street, Ste. 2200 Birmingham, AL 35203 205-379-1029 Fax: 205-379-1001 Email: ksimon@jaginc.com TERMINATED: 06/13/2007 ATTORNEY TO BE NOTICED
Mary Ann Couch BRADLEY ARANT BOULT CUMMINGS 1819 5th Avenue North Birmingham, AL 35203 205-521-8281 Fax: 205-488-6281 Email: macouch@babc.com TERMINATED: 02/18/2020 ATTORNEY TO BE NOTICED
Sarah Elizabeth Merkle BRADLEY ARANT BOULT CUMMING 1819 5th Avenue North Birmingham, AL 35203 205-521-8380 Fax: 205-488-6380 Email: smerkle@babc.com ATTORNEY TO BE NOTICED
Charlie D Waldrep WALDREP STEWART & KENDRICK LLC 2101 6th Avenue North, Suite 700 Birmingham, AL 35203 254-3216

Email: waldrep@wskllc.com TERMINATED: 04/20/2004 ATTORNEY TO BE NOTICED
John A Lentine SHEFFIELD & LENTINE PC Frank Nelson Building 205 North 20th Street, Suite 323 Birmingham, AL 35203 205-328-1365 Fax: 205-328-8098 Email: john@sheffieldlentine.com TERMINATED: 04/30/2003 ATTORNEY TO BE NOTICED
Myron C Penn PENN & SEABORN LLC 53 Highway 110 P O Box 5335 Union Springs, AL 36089 334-738-4486 Fax: 334-738-4432 Email: myronpenn28@hotmail.com TERMINATED: 04/12/2004 ATTORNEY TO BE NOTICED
Richard P Rouco (See above for address) TERMINATED: 02/02/2001 ATTORNEY TO BE NOTICED
Russell Jackson Drake (See above for address) TERMINATED: 02/02/2001 ATTORNEY TO BE NOTICED
V Michelle Obradovic WISE RESOLUTION LLC 2100A SouthBridge Parkway, Suite 650 Birmingham, AL 35209 414-7589 Fax: 414-7400 fax Email: Michelle@WiseResolution.com TERMINATED: 04/12/2004

Defendant Jefferson Cty

ATTORNEY TO BE NOTICED
William K Bradford BRADFORD LADNER, LLP 3928 Montclair Road, Suite 208 Birmingham, AL 35213 205-802-8823 Fax: 205-802-8825 Email: wkb@bradfordladner.com TERMINATED: 04/30/2003 ATTORNEY TO BE NOTICED
represented by Carol Sue Nelson Jefferson County Attorney's Office 716 Richard Arrington Jr. Blvd. North Room 280 Birmingham, AL 35203 205-325-5688 Fax: 205-325-5840 Email: nelsonc@jccal.org TERMINATED: 09/30/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward A Hosp MAYNARD COOPER & GALE PC 1901 Sixth Avenue North, Suite 2400 Birmingham, AL 35203-2618 205-254-1000 Fax: 205-254-1999 Email: thosp@maynardcooper.com TERMINATED: 09/26/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Fournier J Gale , III MAYNARD COOPER & GALE PC AmSouth Harbert Plaza, Suite 2400 1901 6th Avenue North Birmingham, AL 35203-2618 254-1000 Fax: 254-1999 Email: bgale@maynardcooper.com

TERMINATED: 05/13/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary L Brown (See above for address) TERMINATED: 01/16/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Janell M Ahnert LITTLER MENDELSON PC 420 20th Street North Suite 2300 Birmingham, AL 35203 205-421-4784 Fax: 205-278-8523 Email: jahnert@littler.com TERMINATED: 02/14/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nefertari S Rigsby MAYNARD COOPER & GALE PC 2400 Regions/Harbert Plaza 1901 Sixth Avenue N Birmingham, AL 35203 205-254-1237 Fax: 205-254-1999 Email: nrigsby@maynardcooper.com TERMINATED: 01/18/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raymond P Fitzpatrick , Jr (See above for address) TERMINATED: 01/16/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Russell Jackson Drake (See above for address) TERMINATED: 02/02/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shawnna H Smith JEFFERSON COUNTY DISTRICT ATTORNEY'S OFFICE 716 Richard Arrington Jr. Blvd. North, Suite 280 Birmingham, AL 35203 205-325-5688 Fax: 205-325-5840 Email: smithsha@jccal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theodore A Lawson , II JEFFERSON COUNTY ATTORNEY'S OFFICE 716 Richard Arrington Jr. Blvd. North Room 280 Birmingham, AL 35203 205-325-5688 Fax: 205-325-5840 Email: lawsont@jccal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Christine Green BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ PC Wells Fargo Tower 420 Twentieth Street North Suite 1400 Birmingham, AL 35203 205-328-0480 Fax: 205-322-8007 Email: acgreen@bakerdonelson.com TERMINATED: 05/01/2012 ATTORNEY TO BE NOTICED
Byron R Perkins PERKINS LAW The Civic Center Medical Forum Building 950 22nd Street North, Ste. 550 Birmingham, AL 35203 205-558-4696

Fax: 205-759-3669 Email: bperkins@perkins-law.com ATTORNEY TO BE NOTICED
David M Smith MAYNARD COOPER & GALE PC 1901 6th Avenue North Suite 2400 Birmingham, AL 35203-2618 205-254-1000 Fax: 205-254-1999 Email: dsmith@maynardcooper.com ATTORNEY TO BE NOTICED
Grace Robinson Murphy MAYNARD COOPER & GALE PC 1901 6th Avenue North AmSouth Harbert Plaza, Suite 2400 Birmingham, AL 35203-2618 205-254-1170 Fax: 205-254-6388 Email: gmurphy@maynardcooper.com ATTORNEY TO BE NOTICED
James L Mitchell MAYNARD COOPER & GALE PC 1901 6th Avenue N 2400 Regions/Harbert Plaza Birmingham, AL 35203 205-254-1000 Fax: 205-254-1999 Email: jmitchell@maynardcooper.com TERMINATED: 09/26/2016 ATTORNEY TO BE NOTICED
Michael G Graffeo MICHAEL G GRAFFEO PC 3100 Independence Drive, Suite 200 Birmingham, AL 35209 205-871-7979 Fax: 205-871-7175 Email: usdc-alnd@graffeolaw.com TERMINATED: 05/04/1999

Mitchell David Greggs MAYNARD COOPER & GALE, PC 1900 Sixth Avenue North, Suite 2400 Birmingham, AL 35203 205-254-1000 Fax: 205.714.6333 Email: mgreggs@maynardcooper.com ATTORNEY TO BE NOTICED
Stephanie H Mays MAYNARD COOPER & GALE PC 1901 6th Avenue North Suite 2400 Birmingham, AL 35203 205-254-1000 Fax: 205-254-1999 Email: smays@maynardcooper.com ATTORNEY TO BE NOTICED
Thomas J Butler MAYNARD COOPER & GALE 1901 Sixth Avenue North 2400 Regions Harbert Plaza Birmingham, AL 35203 205-254-1063 Fax: 205-254-1999 Email: tbutler@maynardcooper.com ATTORNEY TO BE NOTICED
Charles S Wagner JEFFERSON COUNTY ATTORNEY'S OFFICE 280 Jefferson County Courthouse 716 Richard Arrington Jr Blvd N Birmingham, AL 35203 205-325-5688 Fax: 205-325-5840 Email: cockrellh@jccal.org ATTORNEY TO BE NOTICED
Edwin A Strickland JEFFERSON COUNTY ATTORNEY'S OFFICE

Defendant
Bham City of TERMINATED: 01/27/2012

280 Jefferson County Courthouse 716 Richard Arrington Jr Blvd North Birmingham, AL 35203 325-5688 Fax: 325-5840 fax Email: cockrellh@jccal.org ATTORNEY TO BE NOTICED
Richard P Rouco (See above for address) TERMINATED: 02/02/2001 ATTORNEY TO BE NOTICED
represented by Michael K K Choy BURR & FORMAN, LLP 420 North 20th Street Suite 3400 Birmingham, AL 35203 205-251-3000 Fax: 205-458-5616 Email: mchoy@burr.com TERMINATED: 01/27/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandy Murphy Lee LEE LAW FIRM LLC 2100 First Avenue North, Suite 600 Birmingham, AL 35203 205-328-9445 Fax: 800-856-9028 Email: brandy@leelawfirmllc.com TERMINATED: 05/27/2010 ATTORNEY TO BE NOTICED
Charles I Brooks THE BROOKS LAW FIRM PC 275 Forest Road, #100 Suite 1100 Hueytown, AL 35023 205-744-0058 Email: thebrooksfirm2@yahoo.com TERMINATED: 01/27/2012 ATTORNEY TO BE NOTICED

Elizabeth Bosquet Shirley BURR & FORMAN LLP 420 North 20th Street, Suite 3100 Birmingham, AL 35203 205-251-3000 Fax: 205-458-5100 Email: bshirley@burr.com TERMINATED: 01/27/2012 ATTORNEY TO BE NOTICED
Howard P Walthall , Jr BURR & FORMAN LLP 420 North 20th Street, Suite 3100 Birmingham, AL 35203 205-251-3000 Fax: 205-244-5718 Email: hpwaltha@burr.com TERMINATED: 02/24/2011 ATTORNEY TO BE NOTICED
Hycall Brooks , III FAITH WORKS LEGAL, INC. 275 Forest Road, Suite 100 Hueytown, AL 35203 205-744-0058 Email: thebrooksfirm@yahoo.com TERMINATED: 01/27/2012 ATTORNEY TO BE NOTICED
Jonice M Vanterpool HAND ARENDALL LLC 2001 Park Place, Ste. 1200 Birmingham, AL 35203 205-502-0117 Fax: 205-397-1321 Email: Jvanterpool@handarendall.com TERMINATED: 01/27/2012 ATTORNEY TO BE NOTICED
Michael L Lucas BURR & FORMAN LLP 420 North 20th Street Suite 3400 Birmingham, AL 35203

205-251-3000 Fax: 205-244-5673 Email: mlucas@burr.com TERMINATED: 01/27/2012 ATTORNEY TO BE NOTICED
Tiffany N Johnson-Cole LAW OFFICES OF ROBERT SIMMS THOMPSON PC 308 North Elm Street Tuskegee, AL 36083 334-727-6463 Fax: 334-727-5746 Email: spelmanite@hotmail.com TERMINATED: 03/01/2010 ATTORNEY TO BE NOTICED
Anne R Yuengert (See above for address) TERMINATED: 03/14/2008 ATTORNEY TO BE NOTICED
James P Alexander LITTLER MENDELSON PC 420 20th Street North, Suite 2300 Birmingham, AL 35203 205-421-4778 Fax: 205-449-9846 Email: jalexander@littler.com TERMINATED: 03/14/2008 ATTORNEY TO BE NOTICED
James K Baker HARE WYNN NEWELL & NEWTON Massey Building, Suite 800 2025 3rd Avenue, North Birmingham, AL 35203-3331 328-5330 Fax: 324-2165 fax TERMINATED: 05/08/2000 ATTORNEY TO BE NOTICED
Richard P Rouco (See above for address) TERMINATED: 02/02/2001

Defendant
Mel Bailey Sheriff TERMINATED: 01/04/2001

ATTORNEY TO BE NOTICED
Ronald H Kent , Jr 2790 Saddle Creek Trail Birmingham, AL 35252 205-218-5073 Email: rhk66@bellsouth.net TERMINATED: 03/14/2008 ATTORNEY TO BE NOTICED
Russell Jackson Drake (See above for address) TERMINATED: 02/02/2001 ATTORNEY TO BE NOTICED
Scott B Smith BRADLEY ARANT BOULT CUMMINGS LLP 200 Clinton Avenue, Ste. 900 Huntsville, AL 35801 256-517-5100 Fax: 256-517-5200 Email: ssmith@bradley.com TERMINATED: 03/14/2008 ATTORNEY TO BE NOTICED
represented by Jeffrey D Dyess BRADLEY ARANT BOULT CUMMINGS LLP 1819 5th Avenue North Birmingham, AL 35283-0709 205-521-8000 Fax: 205-488-6288 Email: jdyess@babc.com TERMINATED: 02/11/1999 ATTORNEY TO BE NOTICED
Raymond P Fitzpatrick , Jr (See above for address) TERMINATED: 02/11/1999 ATTORNEY TO BE NOTICED
Terry McElheny DOMINICK FELD HYDE PC PO Box 1387

Defendant
Jim Woodward Sheriff TERMINATED: 04/24/2009

Birmingham, AL 35201 939-0033 Fax: 939-2914 Email: tmcelheny@dfhlaw.com TERMINATED: 02/11/1999 ATTORNEY TO BE NOTICED
Mark T Waggoner HAND ARENDALL LLC 1801 5th Avenue North Suite 400 Birmingham, AL 35203 205-324-4400 Fax: 205-322-1163 Email: mwaggoner@handarendall.com TERMINATED: 02/11/1999 ATTORNEY TO BE NOTICED
Richard P Rouco (See above for address) TERMINATED: 02/02/2001 ATTORNEY TO BE NOTICED
Russell Jackson Drake (See above for address) TERMINATED: 02/02/2001 ATTORNEY TO BE NOTICED
represented by Robert R Riley , Jr RILEY & JACKSON PC 3530 Independence Drive Birmingham, AL 35209 205-879-5000 Fax: 205-879-5901 Email: rob@rileyjacksonlaw.com TERMINATED: 04/24/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Albert L Jordan WALLACE JORDAN RATLIFF & BRANDT LLC 800 Shades Creek Parkway, Suite 400

P O Box 530910 Birmingham, AL 35209 205-870-0555 Fax: 205-871-7534 Email: bjordan@wallacejordan.com TERMINATED: 04/29/2004
Brent G Grainger JEFFERSON COUNTY ATTORNEY'S OFFICE 716 Richard Arrington Jr. Blvd. North, Room 280 Birmingham, AL 35203 205-325-5688 Fax: 205-325-5840 Email: graingerb@jccal.org TERMINATED: 10/21/2008 ATTORNEY TO BE NOTICED
James R Esdale THE ESDALE LAW FIRM 2323 2nd Av N Birmingham, AL 35203 205-327-8335 Fax: 205-278-9235 Email: jim.esdale@gmail.com TERMINATED: 01/12/2009 ATTORNEY TO BE NOTICED
Kallie C Lunsford RILEY & JACKSON PC 3530 Independence Drive Birmingham, AL 35209 205-879-5000 Fax: 205-879-5901 Email: kallie@rileyjacksonlaw.com TERMINATED: 04/24/2009 ATTORNEY TO BE NOTICED
Keith Jackson RILEY & JACKSON PC 3530 Independence Drive Birmingham, AL 35209 205-879-5000 Fax: 205-879-5901 Email: kj@rileyjacksonlaw.com

TERMINATED: 04/24/2009 ATTORNEY TO BE NOTICED
Michael G Kendrick WALDREP STEWART & KENDRICK LLC 2323 2nd Avenue North Birmingham, AL 35203 205-254-3216 Fax: 205-278-9204 Email: kendrick@wskllc.com TERMINATED: 01/12/2009 ATTORNEY TO BE NOTICED
Susan Jane Walker McDORMAN & WALKER 4 Office Park Circle, Ste. 304 Birmingham, AL 35223 205-871-3800 Fax: 205-561-3245 Email: susanwalker1662@yahoo.com TERMINATED: 01/12/2009 ATTORNEY TO BE NOTICED
Wayne Morse , Jr WALDREP STEWART & KENDRICK LLC 2323 2nd Avenue North Birmingham, AL 35203 205-327-8325 Fax: 205-327-8395 Email: morse@wskllc.com TERMINATED: 01/12/2009 ATTORNEY TO BE NOTICED
Algert S Agricola , Jr AGRICOLA LAW, LLC 127 South 8th Street Opelika, AL 36801 334-759-7557 Fax: 334-759-7558 Email: al@agricolalaw.com TERMINATED: 02/05/2002 ATTORNEY TO BE NOTICED

Defendant

Charlie D Waldrep (See above for address) TERMINATED: 01/12/2009 ATTORNEY TO BE NOTICED
J Fred Wood , Jr DOMINICK FLETCHER YEILDING WOOD & LLOYD PA 2121 Highland Avenue PO Box 1387 Birmingham, AL 35201 205-939-0033 Fax: 205-933-6133 Email: jfw@dfy.com TERMINATED: 03/27/1998 ATTORNEY TO BE NOTICED
Richard P Rouco (See above for address) TERMINATED: 02/02/2001 ATTORNEY TO BE NOTICED
Russell Jackson Drake (See above for address) TERMINATED: 02/02/2001 ATTORNEY TO BE NOTICED
Tammy C Woolley CONSTANGY BROOKS SMITH & PROPHETE LLP Two Chase Corporate Drive Suite 120 Birmingham, AL 35244 205-252-9321 Fax: 205-323-7674 Email: twoolley@constangy.com TERMINATED: 05/23/2008 ATTORNEY TO BE NOTICED
Terry McElheny (See above for address) TERMINATED: 03/27/1998 ATTORNEY TO BE NOTICED

Mike Hale Sheriff TERMINATED: 03/23/2017
Defendant

represented by James E Murrill , Jr RILEY & JACKSON PC 3530 Independence Drive Birmingham, AL 35209 205-879-5000 Fax: 205-879-5901 Email: jay@rileyjacksonlaw.com TERMINATED: 07/08/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kallie C Lunsford (See above for address) TERMINATED: 07/08/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Keith Jackson (See above for address) TERMINATED: 07/08/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert R Riley , Jr (See above for address) TERMINATED: 07/08/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremiah M Mosley RILEY & JACKSON PC 3530 Independance Drive Birmingham, AL 35209 205-879-5000 Fax: 205-879-5901 Email: jeremiah@rileyjacksonlaw.com TERMINATED: 07/08/2019 ATTORNEY TO BE NOTICED
Tammy C Woolley (See above for address) TERMINATED: 05/23/2008 ATTORNEY TO BE NOTICED

Mark Pettway TERMINATED: 02/25/2019
V. Respondent Joyce G Smith TERMINATED: 07/08/2011

represented by Bruce L Gordon GORDON DANA GILMORE LLC 600 University Park Place, Suite 100 Birmingham, AL 35209 205-874-7950 Fax: 205-776-6540 Email: bgordon@gattorney.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
James A Stewart GORDON, DANA, KNIGHT & GILMORE LLC 600 University Park Place, Ste. 100 Birmingham, AL 35209 205-874-7950 Fax: 205-874-7960 Email: jstewart@gattorney.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
John G Dana GORDON DANA GILMORE & MANER LLC 600 University Park Place Suite 100 Birmingham, AL 35209 205-874-7956 Fax: 205-776-6546 Email: jdana@gattorney.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John D Saxon JOHN D SAXON PC 2119 3rd Avenue North, Suite 100 Birmingham, AL 35203 205-324-0223 Fax: 205-324-1039 Email: jsaxon@saxonattorneys.com TERMINATED: 07/08/2011 ATTORNEY TO BE NOTICED

Respondent Barbara S Carmichael TERMINATED: 07/08/2011
Respondent Rev. Steve Small, Jr. TERMINATED: 05/27/2007
Respondent Citizens Supervisory Commission
Respondent Mr. Russell M. Cunningham TERMINATED: 05/27/2007

Michael G Graffeo (See above for address) TERMINATED: 05/04/1999
represented by John D Saxon (See above for address) TERMINATED: 07/08/2011 ATTORNEY TO BE NOTICED
Michael G Graffeo (See above for address) TERMINATED: 05/04/1999
represented by Walter E Braswell WALTER E BRASWELL, ATTORNEY AT LAW 2101 4th Avenue South, Suite 200 Birmingham, AL 35233 205-327-5700 Fax: 205-327-5773 Email: webraswell@mindspring.com TERMINATED: 07/08/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael L Jackson WALLACE JORDAN RATLIFF & BRANDT, LLC P O Box 530910 Birmingham, AL 35253 205-870-0555 Fax: 205-874-3251 Email: mjackson@wallacejordan.com ATTORNEY TO BE NOTICED
represented by William G Somerville , III BAKER DONELSON BEARMAN

Respondent Edwin A. Strickland
Respondent Charles S Wagner Respondent

CALDWELL & BERKOWITZ PC 420 North 20th Street, Ste. 1400 Birmingham, AL 35203 205-250-8375 Fax: 205-488-3775 Email: wsomerville@bakerdonelson.com TERMINATED: 05/29/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Julian D Butler SIROTE AND PERMUTT PC 305 Church Street, SW, Ste. 800 Huntsville, AL 35801 256-536-1711 Fax: 256-518-3681 Email: jbutler@sirote.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Augusta S Dowd WHITE ARNOLD & DOWD PC 2025 3rd Avenue North Suite 500 Birmingham, AL 35203 205-323-1888 Fax: 205-323-8907 Email: adowd@whitearnolddowd.com ATTORNEY TO BE NOTICED
represented by Raymond P Fitzpatrick , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Augusta S Dowd (See above for address) ATTORNEY TO BE NOTICED

Theo Lawson
Intervenor Bryant

represented by Augusta S Dowd (See above for address) ATTORNEY TO BE NOTICED
represented by Ali Klein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Damaris Hernandez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David R Marriott (See above for address) TERMINATED: 01/18/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth A Lewis (See above for address) TERMINATED: 03/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily O Famutimi (See above for address) TERMINATED: 03/01/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Hussein E. Elbakri (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine M. Pecore (See above for address) TERMINATED: 09/26/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren K. Ross

(See above for address) TERMINATED: 03/12/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margarita Botero (See above for address) TERMINATED: 06/23/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara A Slavin (See above for address) TERMINATED: 06/16/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott P Dixler (See above for address) TERMINATED: 01/18/2012 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shawn G Crowley (See above for address) TERMINATED: 08/07/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas G Rafferty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kristy Jean Greenberg (See above for address) TERMINATED: 01/18/2012 ATTORNEY TO BE NOTICED
Lauren Rosenberg (See above for address) TERMINATED: 01/28/2014 ATTORNEY TO BE NOTICED
Margaret E Lynaugh (See above for address)

Intervenor
Erin C. Ryerson TERMINATED: 11/13/2020

TERMINATED: 10/23/2012 ATTORNEY TO BE NOTICED
Rachel M Fritzler (See above for address) TERMINATED: 06/19/2018 ATTORNEY TO BE NOTICED
Farah S Brelvi (See above for address) TERMINATED: 01/09/2006 ATTORNEY TO BE NOTICED
Mary Beth Vrabel (See above for address) TERMINATED: 06/18/2007 ATTORNEY TO BE NOTICED
Olivia J Zach (See above for address) TERMINATED: 01/09/2006 ATTORNEY TO BE NOTICED
Richard T Seymour (See above for address) TERMINATED: 01/19/2001 ATTORNEY TO BE NOTICED
Rowan D Wilson (See above for address) TERMINATED: 04/25/2017 ATTORNEY TO BE NOTICED
represented by James Franklin Ozment FRANK OZMENT ATTORNEY AT LAW, LLC 2910 Linden Avenue Suite 200-B Birmingham, AL 35209 205-413-9973 Fax: 205-847-5400 Email: frankozmentlaw@gmail.com ATTORNEY TO BE NOTICED

Date Filed 03/01/1983 03/28/1995
03/28/1995 04/17/1995 02/10/1997
06/06/1997 07/30/1997 12/17/1997 01/02/1998 01/06/1998 03/13/1998 03/13/1998

# Docket Text
DOCKET modification (utility event) terminating case (TLM) (Entered: 03/28/1995)
1 CERTIFIED copy of Appellate Court order: that the order of District Court are Affirmed in part Reversed in part and Vacated in part and that this action is Remanded t District Court for further proceedings (issued as mandate 3/23/95) filed (TLM) (Entered: 03/28/1995)
DOCKET modification (utility event) Case reopened (TLM) (Entered: 03/28/1995)
DOCKET modification (utility event) ; Status hearing to be held on 9:00 6/30/95 see order of 4/17/95 on manual docket sheet (KAM) (Entered: 04/17/1995)
2 ORDER after the conference on2/6/97 the parties have agreed to the the schedule as set out in the provisions of this order :2/14/97 exchange of discovery requests 1/30/97 discovery to conclude including responses to written discovery requests 7/97 backpay hrgs for the original fifteen plas 9/97 trial of the claims of th remaing plas filed ( by Chief Judge Sam C. Pointer Jr ) cm (TLM) (Entered: 02/12/1997)
3 MOTION by Wilks Class to enforce settlement agreement on attorneys fees filed cs (Former Employee) (Entered: 06/09/1997)
4 3 - ORDER finding the motion to enforce settlement agreement on attorneys fees [3-1] moot ( by Chief Judge Sam C. Pointer Jr ) entered cm (TLM) (Entered: 07/31/1997)
5 MOTION by Martin plaintiff & the Bryant Intevenors for final distribution of settlement funds for order filed cs (TLM) (Entered: 01/05/1998)
6 MOTION by defendant Jim Woodward to withdraw attorney J Fred Wood, Terry McElheny filed cs (TLM) Modified on 01/08/1998 (Entered: 01/05/1998)
7 MOTION by Martin pla and Bryant intervenors request for hrg or conference concerning Personnel Bd compliance with modified consent decree for hearing filed cs (TLM) (Entered: 01/08/1998)
8 MOTION by plaintiff Wilks Class for temporary restraining order filed cs (TLM) (Entered: 03/13/1998)
9 - ORDER denying motion for temporary restraining order [8-1] but w/o prejudice to the possibility that either or both might later be ordered

03/25/1998 03/25/1998 03/27/1998 05/07/1998 05/07/1998 05/08/1998 05/18/1998 05/20/1998 05/20/1998
05/20/1998

vacated ( by Chief Judge Sam C. Pointer Jr ) entered cm (TLM) (Entered: 03/16/1998)
10 6 - ORDER granting motion to withdraw attorney J Fred Wood, Terry McElheny [6-1] ( by Chief Judge Sam C. Pointer Jr ) entered cm (TLM) (Entered: 03/27/1998)
11 - ORDER withdrawing motion for order [5-1] for final distrution of funds ( by Chief Judge Sam C. Pointer Jr ) entered cm (TLM) (Entered: 03/27/1998)
DOCKET modification (utility event) withdrawing attorney attorney Terry McElheny for Jim Woodward, attorney J Fred Wood for Jim Woodward (TLM) (Entered: 03/27/1998)
12 MOTION by plaintiff Wilks Class for order for further injunctive relief , and for order to hold dfts in civil contempt filed cs (TLM) (Entered: 05/08/1998)
13 MOTION by plaintiff Wilks Class for temporary restraining order filed cs (TLM) (Entered: 05/08/1998)
14 ORDER granting motion for temporary restraining order [13-1] as set o ut in the provisions of this order filed ( by Chief Judge Sam C. Pointer Jr ) cm (TLM) (Entered: 05/08/1998)
15 7 - ORDER granting motion for hearing [7-1] by separate order ( by Chief Judge Sam C. Pointer Jr ) entered cm (TLM) (Entered: 05/18/1998)
16 NOTICE of appearance for defendant Mel Bailey by Mark T Waggoner, Jeffrey D Dyess filed cs (TLM) (Entered: 05/20/1998)
17 ORDER ; hearing to be held on 9:00 6/30/98 on the Jeff Cty Personnel Bds compliance with the 1995 Compiance Modification Order; the court hereby vacates the tro entered on 5/8/98 regarding promotions to Sergeant , Lieutenant and Captain at the City fo Bham Plice Dept; pursuant to the courts finding the City of Bham is directed to promptly complete a written job analysis for the position of Plice Captain and begin the process of revising its selection procedures for this position in a way that is consistent with implementing selection devices which are job related and which reduce or eliminate adverse impact as provided by paragraph 15 of the 1995 City Modification Order; filed ( by Chief Judge Sam C. Pointer Jr ) cm (TLM) (Entered: 05/20/1998)
COURTROOM NOTES: 05/20/98-HEARING on Plff-intervenors' Motion for Further Injunctive Relief (SCP)-Court's preliminary

05/20/1998
05/21/1998 05/26/1998 05/28/1998 06/01/1998
06/09/1998 06/15/1998 06/15/1998 06/22/1998 06/26/1998 06/29/1998

remarks-Plff-intervenors' testimony-Plff-intervenors rest-Deft City of B'ham's testimony-Deft City of B'ham rests-Counsel's closing arguments-The Court to VACATE the previous injunction order and to allow the selection process to proceed-WRITTEN ORDER to be entered. (Julie Martin, Court Reporter) (RLD) (Entered: 05/21/1998)
MOTION by movant Evelyn C Drake to consolidate cases w/CV-98JEO-1044-S , or, alternatively for order for limited intervention filed cs (see doc #4 in CV-98-JEO-1044-S) (Former Employee) (Entered: 06/10/1998)
18 OPPOSITION by defendant Bham City of to motion for injunctive relief for further injunctive relief [12-1] filed cs (TLM) (Entered: 05/21/1998)
19 DEPOSITION of George L. C ooley taken on behalf of: pla intervenor (Wilkes Class) (pgs 71-74 SEALED) filed (TLM) (Entered: 05/27/1998)
20 NOTICE filed by defendant Personnel Bd of Jeff of compliance cs (TLM) (Entered: 05/28/1998)
21 ORDER after careful consideration the court hereby directs taht the Wilks Exhibit #52 presented at hrg on 5/20/98; be placed under seal to protect the privacy of the individuals named thereon; a copy of the Wilks Exhibit 52 that has ahd the named redacted will be placed in the file not under seal in the place of the original version filed ( by Chief Judge Sam C. Pointer Jr ) cm (TLM) (Entered: 06/01/1998)
RESPONSE by dft Bham City of motion to consolidate cases w/CV-98JEO-1044-S [0-1] filed cs (see doc #7 in CV-98-JEO-1044-S) (Former Employee) (Entered: 06/10/1998)
22 ORDER granting motion to consolidate cases w/CV-98-JEO-1044-S [01] 2:75-cv-666 with member cases 2:98-cv-1044 filed ( by Chief Judge Sam C. Pointer Jr ) cm (Former Employee) (Entered: 06/15/1998)
DOCKET modification (utility event) terminating motion for order for limited intervention [0-2] (TLM) (Entered: 12/09/1998)
23 NOTICE filed by defendant Jefferson Cty Per Bd in 2:75-cv-00666 on 6/22/98 report to the court (TLM) (Entered: 06/27/1998)
24 NOTICE (amended) report to the court of 6/22/98 filed by defendant Jefferson Cty Per Bd in 2:75-cv-00666 (TLM) (Entered: 06/27/1998)
25 AFFIDAVIT of Matthew N. Kaplan filed (TLM) (Entered: 06/29/1998)

06/30/1998 07/09/1998 07/17/1998 07/28/1998 08/10/1998 08/31/1998 08/31/1998 09/28/1998 10/07/1998

COURTROOM NOTES: COMPLIANCE HEARING (SCP)-Court's preliminary remarks-Counsel's arguments-Status Meeting to be scheduled for early August, 1998-(Lindy Fuller, Court Reporter) (RLD) (Entered: 06/30/1998)
642 NOTICE of appeal by plaintiff Wilks Class in 2:75-cv-00666 from District Court decision [17-2] ; notice of appeal, order appealed from and court copy of docket entries w/transmittal letter mailed cm (TLM) (Entered: 07/14/1998)
643 ORDER ( APPOINTING SPECIAL MASTER & COURT APPOINTED EXPERT DR. JOHN VERES) as set out in the provisions of this order filed ( by Chief Judge Sam C. Pointer Jr ) cm (TLM) (Entered: 07/20/1998)
NOTIFICATION by Circuit Court of Appellate docket number in 2:75cv-00666 98-6512 (TLM) (Entered: 07/28/1998)
644 TRANSCRIPT of proceedings had before Chief Judge Sam C. Pointer Jr on 6/30/98 , filed - Court Reporter Lindy Fuller (TLM) (Entered: 08/11/1998)
645 CERTIFIED copy of Appellate Court order in CV 75-P-666-S (986512): dated 8/28/98 issued as mandate that per appellant's motion for voluntary dismissal, appeal was dismissed 8/28/98, with exhs att [6421] filed (Former Employee) (Entered: 08/31/1998)
646 TRANSCRIPT of proceedings had before Chief Judge Sam C. Pointer Jr on 8/11/98 , filed - Court Reporter Teresa Roberson (TLM) (Entered: 09/01/1998)
647 TRANSCRIPT of proceedings had before Chief Judge Sam C. Pointer Jr on 9/16/98 , filed - Court Reporter Lindy Fuller (TLM) (Entered: 10/05/1998)
648 ORDER that the City of Bham shall indicate to the parties the job classification for which it believes n adverse impact exists; the parties shall then determine thejobs in which the existence of adverse impact is disputed; the parties shall submit a list of disputed jobs to Dr. Veres; Dr Veres shall review the submitted materials and propose to the parties and to the court a model for analyzing adverse impact in the Citys jobs, Dr Veres may provide other guidance or suggestion on the issue of analyzing adverse impact in the Citys jobs; The City shall pay Dr Veres for service performed for the City or in connection with the Citys data ; The City shall not be responsibe for paying Dr. Veres for time spent in conferences with the court unlsess the time attributable to City matters is significat and easily identifiable ; Status hearing to be held on 11:00

10/28/1998 12/22/1998 01/14/1999 01/14/1999 01/14/1999
02/05/1999

11/3/98 filed ( by Chief Judge Sam C. Pointer Jr ) cm (TLM) (Entered: 10/08/1998)
649 NOTICE (report to court) filed by defendant Personnel Bd of Jeff in 2:75-cv-00666 cs (TLM) (Entered: 10/29/1998)
650 Report to the court filed by defendant Jefferson Cty Per Bd in 2:75-cv00666 cs (TLM) (Entered: 12/29/1998)
651 TRANSCRIPT of proceedings had before Chief Judge Sam C. Pointer Jr on 11/3/98 , filed - Court Reporter Lindy Fuller (TLM) (Entered: 01/14/1999)
652 TRANSCRIPT of proceedings had before Chief Judge Sam C. Pointer Jr on 12/7/98 , filed - Court Reporter Lindy Fuller (TLM) (Entered: 01/14/1999)
653 ORDER [12-1], taht all pending motions in the above styled case are deemed moot and w/o prejudice to re-presentation in appropriate cases as indicated in this order; each of the cases is severed from any other case with which it may have been previously consolidated; each of the causes is administratively closed w/o prejudice and w/o taxation of costs; any relief granted or injunctions previously entered and still effective in these cases (or 84-90e) remain in effect as the judgment of this court and the court retains jursidciton to consider and act upon any pending or subesquently filed motions or other requests for enforcement of or relief from or modification of such orders or injunctions; this order does not vacate any previously entered order in any of these cases or in 84-903 determining that claims or defenses should be maintained on behalf of a class of plas, dfts or intervenors; any unresolved previouslypending cliams for individual relief in these cases based on claims of "reverse discrimination " may be preserved by filng within 60 days an appropriate claim as an intervenor in 84-903; recognizing the possibility that the administrative closing of these cases might unintentionally adversely affect of the rights of some pla or class memeber the court reserves the power on motion filed within 60 days to set aside and vacate in whole or in part the closing of these caes w/o any requirement to show good cause; recognizing that documents filed in the cases might become relevant in considering further issues in 84-903 or in considering post judgment issues in the above sty;ed causes the court directs taht until further order the Clerk Office retain locally the files in these cases [12-2] terminating case (2:98-cv-01044) filed ( by Chief Judge Sam C. Pointer Jr ) cm (TLM) (Entered: 01/14/1999)
654 MOTION by defendant to withdraw attorney Mark T Waggoner, Jeffrey D Dyess & Roger L Bates filed cs (TLM) (Entered: 02/08/1999)

02/10/1999 02/11/1999 02/12/1999
02/25/1999 03/04/1999 03/10/1999
03/24/1999 03/24/1999 03/25/1999 03/29/1999 03/29/1999

655 654 - ORDER granting motion to withdraw attorney Mark T Waggoner, Jeffrey D Dyess & Roger L Bates [654-1] ( by Chief Judge Sam C. Pointer Jr ) entered cm (TLM) (Entered: 02/11/1999)
DOCKET modification (utility event) withdrawing attorney attorney Jeffrey D Dyess for Mel Bailey, attorney Mark T Waggoner for Mel Bailey, attorney Charles S Wagner for Jefferson Cty (TLM) (Entered: 02/11/1999)
656 NOTICE of appearance for defendant Jefferson Cty, defendant Ben L Erdreich, defendant Thomas W Gloor, defendant Chriss H Doss, defendant Jefferson Cty Per Bd, defendant Jefferson Cty, defendant Personnel Bd of Jeff, defendant Bham City of, defendant Mel Bailey, defendant Jim Woodward by R Jackson Drake, Richard P Rouco filed cs (TLM) (Entered: 02/17/1999)
657 TRANSCRIPT of proceedings had before Chief Judge Sam C. Pointer Jr on January 13, 1999 , filed - Court Reporter Lindy Minton Fuller (SRJ) (Entered: 02/26/1999)
658 MOTION by plaintiff Wilks Class for attorney fees filed cs (TLM) (Entered: 03/05/1999)
659 658 - ORDER granting motion for attorney fees [658-1] to the extent that the City of Bham is expected to pay non disputed fees/ costs of Wilks class atty or same time table as paying fees, costs of own counsel ( by Chief Judge Sam C. Pointer Jr ) entered cm (TLM) (Entered: 03/11/1999)
660 MOTION by defendant Jefferson Cty Per Bd to withdraw attorney LaVeeda Morgan Battle filed cs (TLM) (Entered: 03/25/1999)
NOTICE of appearance for defendant Jefferson Cty Per Bd by Charlie D Waldrep filed cs (TLM) (Entered: 03/25/1999)
661 NOTICE of appearance by Charlie D. Waldrep for defendant Jefferson Cty Per Bd by filed cs (TLM) (Entered: 03/26/1999)
662 660 - ORDER granting motion to withdraw attorney LaVeeda Morgan Battle [660-1] ( by Chief Judge Sam C. Pointer Jr ) entered cm (TLM) (Entered: 03/29/1999)
DOCKET modification (utility event) withdrawing attorney attorney LaVeeda Morgan Battle for Personnel Bd of Jeff (TLM) (Entered: 03/29/1999)

04/23/1999 04/26/1999 05/04/1999
06/11/1999 06/14/1999 06/25/1999 07/15/1999
07/21/1999 08/31/1999 08/31/1999 09/15/1999 10/22/1999 02/11/2000 02/16/2000

663 NOTICE of compliance by defendant Jefferson Cty Per Bd with [0-0] filed s (TLM) (Entered: 04/26/1999)
664 MOTION by defendant Jefferson Cty Per Bd to withdraw attorney Michael G Graffeo filed cs (TLM) (Entered: 04/26/1999)
665 664 - ORDER granting motion to withdraw attorney Michael G Graffeo [664-1] attorney Michael G Graffeo for Jefferson Cty; dft will continue to be represented by Charlie D. Waldrep of Gorham & Waldrep, P.C. ( by Chief Judge Sam C. Pointer Jr ) entered cm (SRJ) (Entered: 05/04/1999)
666 ORDER (Protective) as set out in the provisions of this order filed ( by Chief Judge Sam C. Pointer Jr ) cm (TLM) (Entered: 06/11/1999)
667 NOTICE of appearance for defendant Jefferson Cty Per Bd by Myron C Penn filed cs (TLM) (Entered: 06/14/1999)
668 MOTION by plaintiff Wilks Class to compel with order to pay atty fees filed cs (TLM) (Entered: 06/28/1999)
669 TRANSCRIPT of proceedings had before Chief Judge Sam C. Pointer Jr on 6/2/99 , filed - Court Reporter Lindy Fuller (TLM) (Entered: 07/19/1999)
670 668 - ORDER finding the motion to compel [668-1] moot ( by Chief Judge Sam C. Pointer Jr ) entered cm (TLM) (Entered: 07/22/1999)
671 WITNESS list by defendant Bham City of filed cs (TLM) (Entered: 09/10/1999)
672 EXHIBIT list by defendant Bham City of filed cs (TLM) (Entered: 09/10/1999)
673 TRANSCRIPT of proceedings had before Chief Judge Sam C. Pointer Jr on 7/21/99 , filed - Court Reporter Lindy Fuller (TLM) (Entered: 09/20/1999)
674 NOTICE of Compliance Report filed by dft Jefferson Cty Per Bd w/diskette attached thereto (DWC) (Entered: 10/22/1999)
675 MOTION by dft Jefferson Cty Per Bd to continue 2/16/00 hearing for a period of (90) days filed cs (DWC) (Entered: 02/14/2000)
676 ORDER granting motion to continue 2/16/00 hearing for a date to be set [675-1] filed ( by Senior Judge Sam C. Pointer Jr ) cm (DWC) (Entered: 02/16/2000)

04/06/2000 04/27/2000 05/05/2000 05/08/2000 05/08/2000 05/25/2000 06/30/2000 07/11/2000 07/17/2000 07/17/2000 07/20/2000 07/27/2000 09/18/2000 09/25/2000

677 NOTICE of reassignment Case reassigned to Judge C L. Smith Jr cm (DWC) (Entered: 04/06/2000)
678 NOTICE of compliance Report by dft Jefferson Cty Per Bd with [0-0] filed (DWC) (Entered: 04/27/2000)
679 MOTION by dft Bham City of & former Mayor, Richard Arrington, Jr to withdraw attorney James K Baker filed cs (DWC) (Entered: 05/05/2000)
680 679 - ORDER granting motion to withdraw attorney James K Baker [679-1] ( by Judge C L. Smith Jr ) entered cm (SHB) (Entered: 05/08/2000)
UTILITY event: terminates attorney James K Baker for Bham City of pursuant to doc# 680 (SHB) (Entered: 05/08/2000)
REMARK envelope addressed to James S Angus w/ doc# 677 returned w/ notation "return to sender attempted not known" (SHB) (Entered: 05/30/2000)
681 NOTICE of appearance for dft Jefferson Cty Per Bd by Virginia M Obradovic filed cs (DWC) (Entered: 07/06/2000)
682 MOTION by defendant Jefferson Cty Per Bd to withdraw attorney LaVeeda Morgan Battle filed cs (MAA) (Entered: 07/12/2000)
683 682 - ORDER granting motion to withdraw attorney LaVeeda Morgan Battle [682-1] ( by Judge C L. Smith Jr ) entered (SHB) (Entered: 07/17/2000)
UTILITY event: terminates attorney LaVeeda Morgan Battle for Personnel Bd of Jeff pursuant to doc# 683 (SHB) (Entered: 07/17/2000)
684 NOTICE of appearance for defendant Jefferson Cty Per Bd by V. Michelle Obradovic. filed cs (MAA) (Entered: 07/21/2000)
REMARK Mailed Order granting motion to withdraw mailed to Thomas D Barr returned by USPO marked attempted-not known. (Former Employee) (Entered: 07/27/2000)
685 NOTICE of hearing status conference set for 10/30/00 at 10:00 in Birmingham in this and CV 98-s-1044-S issued cm (LCW) Modified on 09/19/2000 (Entered: 09/18/2000)
686 ORDER directing all attys involved in this action be present at the status conference scheduled at 10:00 am 10/30/00 in Birmingham unless after receipt of the written status report the court determines there is no need

09/29/2000 10/06/2000 10/16/2000 10/17/2000 10/23/2000 10/27/2000 10/27/2000 10/27/2000 10/30/2000 10/31/2000
10/31/2000

for such conference due to its completeness filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 09/25/2000)
REMARK envelopes addressed to Karin Antonoia and Thomas D Barr w/ doc# 685 returned w/ notation "returned to sender company name requested" (SHB) (Entered: 10/02/2000)
REMARK envelope addressed to James S Angus w/ doc# 685 returned w/ notation "returned to sender attempted not known Washington DC 20013" (SHB) (Entered: 10/06/2000)
REMARK envelope address to James S Angus w/ order entered 9/25/00 [doc# 686] returned w/ notation "returned to sender attempted not known" (SHB) (Entered: 10/17/2000)
687 NOTICE of history of the litigation current status and project completion timelines filed by defendant Jefferson Cty Per Bd (SHB) (Entered: 10/17/2000)
688 SUPPLEMENTAL NOTICE of compliance by defendant Jefferson Cty Per Bd with 1995 modification orders [0-0] filed cs (SHB) (Entered: 10/23/2000)
689 OBJECTIONS by defendant Bham City of to status report filed cs (LCW) (Entered: 10/27/2000)
690 OBJECTIONS by Martin plaintiffs to status report filed (LCW) (Entered: 10/27/2000)
691 OBJECTIONS by plaintiff Wilks Class to status report filed cs (LCW) (Entered: 10/27/2000)
COURTROOM NOTES: Status conference held before the Honorable C. Lynwood Smith, Jr., US District Judge; remarks by counsel for parties; written order to be entered by the court; Julie Martin, reporter (LCW) (Entered: 11/24/2000)
692 ORDER in accordance with the instructions given at the status conference held 10/30/00 the parties are ordered to sumit written recommendations and proposals as to what court actions are necessary to move these actions toward closure in prompt manner by 11/20/00 as more fully set out in the order Status hearing to be held on 10:00 11/30/00 ; Status hearing held on 10/31/00 filed (by Judge C L Smith Jr) cm (LCW) (Entered: 10/31/2000)
693 NOTICE of appearance for defendant Jim Woodward by Algert S Agricola Jr, Albert L Jordan filed cs (SHB) (Entered: 11/02/2000)

11/13/2000 11/13/2000 11/20/2000 11/20/2000 11/20/2000 11/20/2000 11/20/2000 11/20/2000 11/20/2000 11/20/2000 11/24/2000 11/30/2000

REMARK envelope addressed to Karin Antonia and Thomas D Barr w/ doc# 692 returned w/ notation "returned to sender forwarding order expired" (SHB) (Entered: 11/15/2000)
694 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 10/30/00 , filed - Court Reporter Julie Martin (SHB) (Entered: 11/15/2000)
695 NOTICE of compliance by plaintiff USA with [692-2] filed cs (SHB) (Entered: 11/20/2000)
696 MOTION by plaintiff Wilks Class for order for additional relief and submission in response to 10/31/00 order filed cs (SHB) (Entered: 11/21/2000)
697 RESPONSE by dft Jim Woodward order of 10/31/00 [692-2] filed cs (LCW) (Entered: 11/22/2000)
698 RESPONSE by defendant Jefferson Cty order of 10/31/00 [692-2] filed cs (LCW) (Entered: 11/24/2000)
699 RESPONSE by Martin Plaintiffs and Bryant Intervenors to order of 10/31/00 [692-2] filed cs (LCW) (Entered: 11/24/2000)
700 RESPONSE by dft Jefferson Cty Per Bd to order of 10/31/00 (re: Application of Al Competitive Bid Law to contracts between Personnel Bd and Consultants) filed (LCW) (Entered: 11/24/2000)
701 RESPONSE by dft Jefferson Cty Per Bd to Court inquires during 10/30/00 status conference re: Summary of enabling act of Personnel Bd of Jefferson County filed cs (LCW) (Entered: 11/24/2000)
702 RESPONSE by dft Jefferson Cty Per Bd to court inquiries at 10/30/00 status conf re: Summary of Hiring Process of Personnel Bd of Jefferson County filed (LCW) (Entered: 11/24/2000)
703 SUPPLEMENTAL REPORT & OPPOSITION by plaintiff USA to proposals to modify 1995 Personnel board Modification order and to vacate 1977 order filed cs (LCW) (Entered: 11/24/2000)
COURTROOM NOTES: Status conference held before the Honorable C. Lynwood Smith, Jr., US District Judge; comments by attorneys for all parties; written order to be entered by the court on or before 12/20/00 extending consent order; parties to notify the court by 12/13/00 if disagreements in proposed order and if needed, status conference will be set for Friday, December 15, 2000 at 9:00 a.m. in Birmingham; Julie Martin, reporter (LCW) Modified on 01/03/2001 (Entered: 11/30/2000)

12/04/2000 12/05/2000 12/05/2000 12/07/2000 12/18/2000
12/20/2000 01/03/2001 01/18/2001 01/18/2001 01/19/2001 01/19/2001 01/24/2001

704 ORDER denying motion for additional relief as set out in this Order [696-1] filed ( by Judge C L. Smith Jr ) cm (DWC) (Entered: 12/04/2000)
705 RESPONSE by intervenor Bryant, plaintiff Martin to 10/31/00 order [692-2] filed cs (SHB) (Entered: 12/05/2000)
706 NOTICE filed by intervenor Bryant, plaintiff Martin of filing amended certificate of service to doc# 705 (SHB) (Entered: 12/05/2000)
707 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 11/30/00 at 10:00 am , filed - Court Reporter Julie A Martin (SHB) (Entered: 12/08/2000)
708 ORDER that court finds that upon consideration of parties' submission filed in accordance w/ 9/25 and 10/31/00 orders the court finds that good cause has been shown for extension of the terms of the 1981 consent decrees for the City of Birmingham and the Jefferson County Personnel Board and the 12/95 orders modifying those consent decrees as more fully set out in order filed ( by Judge C L. Smith Jr ) cm (SHB) (Attachment added 2/6/2009, deemed filed 12/18/2000 SPT, ). Modified on 2/6/2009 (SPT, ). (Entered: 12/18/2000)
REMARK envelope addressed to James Angus w/ order entered 12/4/00 doc# 704 returned (SHB) (Entered: 12/20/2000)
709 ORDER In-court hearing set for 9:30 am 1/25/01 in Birmingham counsel for parties are directed to appear filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 01/03/2001)
710 NOTICE of compliance by defendant Bham City of with [708-1] filed cs (SHB) (Entered: 01/19/2001)
711 MOTION by intervenor Bryant, plaintiff Martin to withdraw attorney Richard T Seymour filed cs (SHB) (Entered: 01/19/2001)
712 ORDER granting motion to withdraw attorney Richard T Seymour [711-1] filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 01/19/2001)
UTILITY event: terminates attorney Richard T Seymour for Martin, attorney Richard T Seymour for Bryant, attorney Richard T Seymour for USA (SHB) (Entered: 01/19/2001)
713 RESPONSE by intervenor Bryant, plaintiff Martin to City of Birminghams 12/20/00 report pursuant to paragraph 8 of the 12/15/00

01/25/2001 01/25/2001
01/25/2001 01/25/2001 01/25/2001
01/25/2001 01/26/2001 01/29/2001
01/29/2001

order modifying the City of Birmingham consent decree filed cs (SHB) (Entered: 01/24/2001)
714 REPORT of City of B'ham, pursuant to 5/20/98 order regarding the development of selection procedures for the Police Captain classification filed (LCW) (Entered: 01/25/2001)
715 Report pursuant to paragraph 8 of the 12/15/00 order modifying the City of Birmingham Consent Decree regarding the adverse impact of its selection procedures for Police Captain, Fire Apparatus Operator, Fire Lieutenant, Fire Captain,& Fire Battalion Chief filed by defendant Bham City of (LCW) (Entered: 01/25/2001)
716 RESPONSE by plaintiff USA to City of B'hams report on selection procedures for Police Captain, Fire Apparatus Operator, etc [715-1] filed cs (LCW) (Entered: 01/25/2001)
717 RESPONSE by plaintiff Wilks Class to City of B'ham's report regarding adverse impact of its selection procedures for Police Captain, Fire Apparatus Operator, Fire Lieutenant, etc [715-1] filed cs (LCW) (Entered: 01/25/2001)
COURTROOM NOTES: Monthly status hearing before the Honorable C. Lynwood Smith, Jr., United States District Judge; discussion regarding task list provided to counsel by the court; comments by counsel; next monthly conference to be held on 2/22/01 at 9:30 a.m. in Birmingham, AL; Lindy Fuller, reporter (LCW) Modified on 01/29/2001 (Entered: 01/25/2001)
720 NOTICE of appeal by plaintiff Wilks Class from District Court decision, [704-1] ; notice of appeal, order from and court copy of docket entries w/transmittal letter mailed cm (SHB) (Entered: 01/30/2001)
APPEAL fee received in amount of $ 105 receipt # 200 160442 (SHB) (Entered: 01/30/2001)
718 Second report pursuant to paragraph 8 of the 12/15/00 order modifying the City of Birmingham consent decree re the adverse impact of its selection procedures for Engineering Aide, Gardener, Heavy Equipment Operator, and Public Safety Dispatcher II filed by defendant Bham City of cs (SHB) (Entered: 01/29/2001)
719 Third report pursuant to paragraph 8 of the 12/15/00 order modifying the City of Birmingham consent decree re the adverse impact of its selection procedures for Police Officer and Firefighter filed by defendant Bham City of cs (SHB) (Entered: 01/29/2001)

01/31/2001 01/31/2001 02/02/2001 02/02/2001
02/02/2001
02/05/2001 02/07/2001 02/07/2001 02/13/2001

721 MOTION by defendant Jim Woodward to withdraw attorney Richard P Rouco Russell Jackson Drake filed cs (SHB) (Entered: 02/01/2001)
722 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 1/25/01 , filed - Court Reporter Lindy Minton Fuller (SHB) (Entered: 02/01/2001)
723 721 - ORDER granting motion to withdraw attorney Richard P Rouco Russell Jackson Drake [721-1] ( by Judge C L. Smith Jr ) entered cm (SHB) (Entered: 02/02/2001)
UTILITY event: terminates attorney Richard P Rouco for Jim Woodward, attorney Russell Jackson Drake for Jim Woodward, attorney Richard P Rouco for Mel Bailey, attorney Russell Jackson Drake for Mel Bailey, attorney Richard P Rouco for Bham City of, attorney Russell Drake for Bham City of pursuant to doc# 723 (SHB) (Entered: 02/02/2001)
UTILITY event: terminates attorney Richard P Rouco for Personnel Bd of Jeff, attorney Russell Jackson Drake for Personnel Bd of Jeff, attorney Richard P Rouco for Jefferson Cty, attorney Richard P Rouco for Jefferson Cty Per Bd, attorney Russell Jackson Drake for Jefferson Cty Per Bd, attorney Richard P Rouco for Chriss H Doss, attorney Russell Jackson Drake for Chriss H Doss, Richard P Rouco for Thomas W Gloor, attorney Russell Jackson Drake for Thomas W Gloor, attorney Richard P for Ben L Erdreich, attorney Russell Jackson Drake for Ben L Erdreich, attorney Richard P Rouco for Jefferson Cty, attorney Russell Jackson Drake for Jefferson Cty pursuant to doc# 723 (SHB) (Entered: 02/02/2001)
724 RESPONSE by plaintiff Wilks Class to City of Birminghams second adverse impact report pursuant to paragraph 8 of the 12/15/00 order modifying the City of Birmingham consent decree [718-1] filed cs (SHB) (Entered: 02/06/2001)
725 RESPONSE by plaintiff USA to City of Birminghams second report pursuant to paragraph 9 of the 12/18/00 order extending 1981 consent decrees and 1995 modification orders [718-1] filed cs (SHB) (Entered: 02/07/2001)
NOTIFICATION by Circuit Court of Appellate docket number 0110544I (SHB) Modified on 02/08/2001 (Entered: 02/08/2001)
726 RESPONSE by intervenor Bryant, plaintiff Martin to City of Birminghams second report pursuant to paragraph 8 of the 12/15/00 order modifying the City of Birmingham consent decree [718-1] filed cs (SHB) (Entered: 02/15/2001)

02/14/2001 02/15/2001 02/15/2001 02/15/2001 02/16/2001 02/16/2001 02/21/2001 02/22/2001
02/26/2001 02/27/2001 03/13/2001

728 Appeal Information Sheet filed [720-1] (SHB) (Entered: 02/15/2001)
727 NOTICE of monthly status report for 2/01 regarding compliance w/ paragraph 5 of the 12/15/00 order modifying the City of Birmingham consent decree filed by defendant Bham City of cs (SHB) (Entered: 02/15/2001)
729 NOTICE of filing monthly progress report filed by defendant Jefferson Cty Per Bd cs (SHB) (Entered: 02/15/2001)
730 RESPONSE by plaintiff Wilks Class ito City of Birminghams third adverse impact report pursuant to paragrpah 8 of the 12/15/00 order modifying the City of Birmingham consent decree [719-1] filed cs (SHB) (Entered: 02/16/2001)
731 NOTICE of report on the Police Captain process in the City of Birmingham filed by plaintiff John G Veres III (SHB) (Entered: 02/20/2001)
732 NOTICE of report on adverse impact in the process by which the City of Birmingham selects from employment certificates filed by plaintiff John G Veres III (SHB) (Entered: 02/20/2001)
733 RESPONSE by plaintiff USA to City of Birminghams third report pursuant to paragraph 9 of the 12/18/00 order extending 1981 consent decrees and 1995 modification orders notice [719-1] filed cs (SHB) (Entered: 02/21/2001)
COURTROOM NOTES: monthly status conference held 2/22/01 Status conference before the Honorable C. Lywnood Smith, Jr., United States District Judge; Review of tasks list by the Court and parties; Comments by counsel and the Court; daily adj; Christina Decker, reporter (LCW) (Entered: 02/27/2001)
734 CERTIFIED copy of Appellate Court order: GRANTING appellants motion to stay briefing pending supplementation of the record through 3/15/01; appellant's brief is due on 4/18/01 filed (SHB) (Entered: 02/27/2001)
735 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on February 22, 2001 , filed - Court Reporter Christina Decker (LCW) (Entered: 02/27/2001)
736 MOTION by plaintiff Wilks Class to supplement record on appeal filed cs (SHB) (Entered: 03/14/2001)

03/14/2001 03/15/2001 03/16/2001 03/20/2001 03/21/2001
03/22/2001 03/22/2001 04/02/2001 04/13/2001 04/16/2001 04/24/2001 04/26/2001

738 DESIGNATION by plaintiff Wilks Class of record on appeal filed cs (SHB) (Entered: 03/15/2001)
737 ORDER granting motion to supplement record on appeal [736-1] filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 03/15/2001)
739 REPORT pursuant to paragrpah 11 of the courts 12/18/00 order modifying the City of Birminghams consent decree filed by defendant Bham City of cs (SHB) (Entered: 03/16/2001)
740 SUBMISSION of proposed modifications to City of Birmingham and Personnel Board consent decrees by plaintiff Wilks Class filed (deemed filed 8/18/95) cs (SHB) (Entered: 03/20/2001)
741 NOTICE of second report on adverse impact in the process by which the City of Birmingham selects from employment certificates for Engineering Aide, Gardener, and Heavy Equipment Operator by race and selections for Heavy Equipment Operator and Public Safety Dispatcher II (Fire) for gender filed by plaintiff John G Veres III (deemed filed 3/1/01) (SHB) Modified on 03/21/2001 (Entered: 03/21/2001)
742 ORDER ; Status hearing to be held on 9:30 4/26/01 in Birmingham filed by Judge C L. Smith Jr ) cm (LCW) (Entered: 03/23/2001)
COURTROOM NOTES: Monthly Status conference held; Discussion re: tasks list; next conference to be held 4/26/01 in Birmingham, 9:30 a.m.; Christina Decker, reporter (LCW) (Entered: 04/26/2001)
743 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 3/22/01, (monthly status conference) filed - Court Reporter Chrstina Decker (LCW) (Entered: 04/02/2001)
744 RESPONSE by plaintiff USA to paragraph 11 of 12/18/00 order extending 1981 consent decrees and 1995 modification orders [708-1] filed cs (SHB) (Entered: 04/13/2001)
745 RESPONSE by defendant Bham City of order [708-1] filed cs (SHB) (Entered: 04/16/2001)
746 RESPONSE by John G Veres III to Court's questions regarding presence or absence of adverse impact under two scoring methods filed cs (LCW) (Entered: 04/24/2001)
COURTROOM NOTES:Monthly status conference; discussions re: tasks list; any motions to be filed must be filed 10 days prior to any hearing; argument as to gov'ts motion to approve interim police/sheriff

04/26/2001 04/26/2001 05/01/2001
05/01/2001 05/03/2001 05/07/2001
05/08/2001 05/14/2001 05/14/2001

selection procedure ; Status hearing to be held on 9:30 5/31/01 (LCW) (Entered: 04/26/2001)
747 MOTION by plaintiff USA for order to approve interim police/sheriffs sergeant selection procedure filed cs (SHB) (Entered: 04/26/2001)
748 MOTION by dft Jefferson Cty Per Bd to modify paragraph 19 of the 12/18/00 order extending 1981 consent decrees and 1995 modification order filed cs (LCW) (Entered: 04/27/2001)
749 ORDER that the motion of the United States to approve an interim use of existing police/deputy sheriff sergeant registers of eligibles is granted in part and denied in part with modifications and delineation of time lines and instructions for re-administration of sergeants' selection procedure more fully set out in the order; further that the court will hold an evidentiary hearing on 10/15/01 at 9:30 a.m. in Birmingham filed ( by Judge C L. Smith Jr ) cm (LCW) Modified on 05/01/2001 (Entered: 05/01/2001)
DOCKET modification (utility event) granting in part and denying in part US motion for order to approve interim police/sheriffs sergeant selection procedure [747-1] see order #749 ; In-court hearing set for 9:30 on 10/15/01 in Birmingham (LCW) (Entered: 05/01/2001)
750 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 4/26/01 , filed - Court Reporter Christina Decker (SHB) (Entered: 05/03/2001)
751 ORDER Status hearing to be held on 9:30 am 5/31/01 in Courtroom 4A in Birmingham and for the purpose of offering any evidence any party may choose regarding the alleged adverse impact of selection procedures for any of the job classifications more set out in order filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 05/07/2001)
752 MOTION by plaintiff Wilks Class for order to hold dft personnel board of Jefferson Co. in civil contempt filed cs (DJG) (Entered: 05/10/2001)
753 OPPOSITION by plaintiff USA to motion for order to hold dft personnel board of Jefferson Co. in civil contempt [752-1] filed cs (SHB) (Entered: 05/14/2001)
754 MOTION by plaintiff USA to reconsider the scheduling of an evidentiary hearing on the issue of whether the city's selection procedures for police officer and firefighter have adverse impact filed cs (SHB) (Entered: 05/14/2001)

05/21/2001 05/21/2001 05/24/2001 05/24/2001
05/24/2001 05/25/2001 05/29/2001

755 MOTION by defendant Jefferson Cty Per Bd for order to allocate costs to the City of Birmingham and Jefferson County filed cs (SHB) (Entered: 05/23/2001)
756 SUPPLEMENTAL RESPONSE by plaintiff Wilks Class to responsive submission to the City of Birmingham's third adverse impace report pursuant to paragraph 8 of the 12/15/00 order modifying the City of Birmingham consent decree [730-1] filed cs (SHB) (Entered: 05/23/2001)
757 NOTICE filed by defendant Bham City of monthly status report for 5/01 regarding compliance w/ paragraph 5 of the 12/18/00 order modifying the City of Birmingham consent decree cs (SHB) (Entered: 05/24/2001)
758 ORDER granting motion to modify paragraph 19 of the 12/18/00 order extending 1981 consent decrees and 1995 modification order [748-1] to the extent specified in order; in addition this court has determined sua sponte that additional modicifications are required to paragraph 20 of the 1995 order modifying the Personnel Board's 1981 consent decree and paragraphs 21 and 24 of this court's 12/18/00 order; ORDERED that paragraph 19 of this court's 12/18/00 order extending the parties' 1981 consent decrees and 1995 modification orders [doc# 708] is modified as more set out; further ordered sua sponte that paragraph 20 of the 1995 order modifying the 1981 Jefferson County personnel board consent decree be modified as more set out; further ordered sua sponte that paragraph 21 of court's 12/18/00 order extending the 1981 consent decrees and 1995 modification orders is modified as more set out and ordered sua sponte that paragraph 24 of the court's 12/18/00 order extending the 1981 consent decrees and 1995 modification orders is modified as more fully set out filed ( by Judge C L. Smith Jr cm (SHB) (Attachment added 2/6/2009, deemed filed 5/24/2001 SPT, ). Modified on 2/6/2009 (SPT, ). (Entered: 05/24/2001)
759 ORDER denying motion to reconsider [754-1] as more fully set out in order filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 05/24/2001)
760 NOTICE filed by defendant Bham City of supplement to monthly status report filed 5/24/01 cs (SHB) (Entered: 05/25/2001)
761 SUPPLEMENTAL RESPONSE by plaintiff USA to the City of Birminghams 4/23/01 supplemental report on police officer and firefighter post-physical abilitites screeing [760-1] filed cs (SHB) (Entered: 05/29/2001)

05/29/2001 05/31/2001 05/31/2001 06/01/2001
06/01/2001 06/04/2001 06/05/2001

762 NOTICE of report on adverse impact of the procedures for the selection of police officers and firefighters by Chester I Palmer Senior Statistician Economic Research Services Inc filed (SHB) (Entered: 05/29/2001)
COURTROOM NOTES monthly Status hearing held on 5/31/01 ; Christina Decker, reporter (LCW) Modified on 06/18/2001 (Entered: 06/01/2001)
COURTROOM NOTES: Evidentiary hearing before the Honorable C. Lynwood Smith, Jr., US District Judge; Preliminary remarks by the court; testimony of dft City of B'ham; City of B'ham rests; testimony of Wilks Class; Wilks Class rests; daily adj; Christina Decker, reporter (LCW) (Entered: 06/22/2001)
763 ORDER TO SHOW CAUSE and NOTICE of Commencement of Criminal Contempt Proceedings that the Jefferson County Personnel Board, including all individual members as set out in the order appear on 9:30 7/26/01 to show cause why they should not be held in criminal contempt for knowingling and willfully failing to comply with teh 12/18/00 order extending the 1981 consent decrees and 1995 modification orders, specificially by failing to meeting court-ordered deadlines as set out in the order; further that copies were personally delivered by the clerk to all persons to whom directed, with exception of Mr. Robin L. Bureell, Associate Member of Jefferson Cty Personnnel Board; further that the USMarshal forthwith serve a copy of this order upon Ms. Bureell at 300 North 21st Street in Birmingham, Alabama 35203 and make due return to this court filed ( by Judge C L. Smith Jr ) cm (LCW) Modified on 06/18/2001 (Attachment added 2/6/2009, deemed filed 6/1/2001 SPT, ). Modified on 2/6/2009 (SPT, ). (Entered: 06/01/2001)
COURTROOM NOTES: Evidentiary hearing resumed; testimony of USA; gov't rests; briefs due 14 days; Oral argument on Wilks Class motion for contempt; Charles A Powell appointed by the Court as special prosecutor re: criminal contempt charges; written order to be entered by the court; daily adj; Christina Decker, reporter (LCW) (Entered: 06/22/2001)
764 ORDER to show cause deadline created for 6/24/01 that Personnel Board is to show why it should not be held in contempt of court's 1995 order modifying Board's 1981 consent decree as subsequently amended by the 12/18/00 order extending the consent decree filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 06/04/2001)
765 MOTION by plaintiff Wilks Class, defendant Bham City of to supplement record filed cs (SHB) (Entered: 06/06/2001)

06/06/2001 06/07/2001 06/08/2001 06/11/2001 06/11/2001 06/15/2001 06/18/2001 06/18/2001 06/18/2001 06/21/2001
06/22/2001 06/22/2001
07/03/2001

766 765 - ORDER granting motion to supplement record [765-1] ( by Judge C L. Smith Jr ) entered cm (SHB) (Entered: 06/06/2001)
767 RETURN of service of 6/1/01 order served on Robin Burrell of Jefferson County Personnel Board filed (SHB) (Entered: 06/07/2001)
768 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 5/31/01-6/1/01, filed - Court Reporter Christina (SHB) (Entered: 06/08/2001)
769 MOTION by intervenor Bryant, plaintiff Martin for reconsideration of provisions of the court's 5/24/01 order and for atty fees filed cs (SHB) (Entered: 06/12/2001)
770 AFFIDAVIT of Farah S. Brelvi regarding motion for reconsideration of provisions of the court's 5/24/01 order and for atty fees [769-1] filed cs (SHB) (Entered: 06/12/2001)
771 POST-HEARING BRIEF by plaintiff USA concerning the Wilks Class' claim of adverse impace in eight selection procedures administered by the City of Birmingham filed cs (SHB) (Entered: 06/15/2001)
772 NOTICE of filing post hearing submission filed by intervenor Bryant, plaintiff Martin cs (SHB) (Entered: 06/18/2001)
773 AFFIDAVIT of Farah Brelvi regarding notice [772-1] filed (SHB) (Entered: 06/18/2001)
774 POST-HEARING BRIEF by plaintiff Wilks Class on City of Birmingham adverse impact issues filed cs (SHB) (Entered: 06/19/2001)
776 NOTICE of monthly status report for 6/01 regarding compliance w/ paragraph 5 of the 12/18/00 order modifying the City of Birmingham consent decree filed by defendant Bham City of cs (SHB) (Entered: 06/26/2001)
775 ORDER ; Status hearing to be held on 9:30 6/28/01 in Birmingham filed by Judge C L. Smith Jr ) cm (LCW) (Entered: 06/22/2001)
777 TRANSCRIPT of proceedings had before Senior Judge Sam C. Pointer Jr on 5/20/1998, filed - Court Reporter Julie Martin (not previously made part of record see docs 765-766) (SHB) Modified on 06/26/2001 (Entered: 06/26/2001)
779 RESPONSE by defendant Jefferson Cty Per Bd order to show cause order dated 06/04/01 [764-1] filed cs (DJG) (Entered: 07/06/2001)

07/05/2001 07/11/2001 07/11/2001 07/13/2001 07/16/2001 07/17/2001 07/17/2001
07/19/2001 07/26/2001 07/26/2001

778 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on June 28, 2001 , filed - Court Reporter Christina K Decker (Former Employee) (Entered: 07/05/2001)
CERTIFICATE of readiness issued cm (SHB) (Entered: 07/12/2001)
CERTIFIED record on appeal with certified copy of docket entries and transmittal mailed USCA cm (SHB) (Entered: 07/12/2001)
780 ORDER monthly status hearing to be held on 9:30 am 7/26/01 in Courtroom 4A in Birmimgham and counsel for the parties are ORDERED to appear filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 07/13/2001)
781 RESPONSE by defendant Jefferson Cty Per Bd motion for reconsideration of provisions of the court's 5/24/01 order and for atty fees [769-1] filed cs (SHB) (Entered: 07/17/2001)
782 MEMORANDUM opinion filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 07/17/2001)
783 ORDER in accordance w/ the memorandum opinion entered contemporaneously herewith that it is ORDERED, ADJUDGED and DECREED that the City has satisfied the requirements of paragraph 8 of the 1995 Order modifying the City of B'Ham consent decree w/ respect to selection procedures for the classifications of Fire Apparatus Operator, Fire Captain, Fire Battalion Chief, Engineering Aide, Gardener, and Heavy Equipment Operator and with respect to the postjob task screening portion of its selection procedure for the entry level Firefighter classification filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 07/17/2001)
784 NOTICE filed by defendant Bham City of filing monthly status report for 7/2001 regarding compliance w/ paragraph 5 of the 12/18/00 order modifying the City of Birmingham consent decree cs (SHB) (Entered: 07/19/2001)
785 ORDER establishing timelnes for selection procedure revisions for the City of Bham's Police Captain & public Safety Dispatcher II (Fire) classifications in accordance w/ the schedule as set out in this order filed ( by Judge C L. Smith Jr ) cm (DWC) (Entered: 07/26/2001)
786 ORDER Jefferson Cty Personnel Bd's motion to allocate costs to the City of Birmingham and Jefferson County [755-1] is DENIED, in accordance w/ the court's comments during the status conf filed ( by Judge C L. Smith Jr ) cm (DWC) (Entered: 07/26/2001)

07/26/2001 07/26/2001 07/26/2001 07/26/2001 07/27/2001 08/02/2001 08/02/2001 08/03/2001
08/03/2001 08/03/2001 08/06/2001

787 ORDER denying motion to hold dft personnel board of Jefferson Co. in civil contempt [752-1] filed ( by Judge C L. Smith Jr ) cm (DWC) (Entered: 07/26/2001)
788 ORDER denying motion for reconsideration of provisions of the court's 5/24/01 order and for atty fees [769-1] filed by Judge C L. Smith Jr ) cm (DWC) (Entered: 07/26/2001)
789 NOTICE of appeal by pla/intvs Robert K Wilks, et al, the Wilks Class, from District Court decision, [782-1] ; notice of appeal, order from and court copy of docket entries w/transmittal letter mailed cm (CTS) (Entered: 07/26/2001)
APPEAL fee received in amount of $ 105.00 receipt #200-167069 (CTS) (Entered: 07/26/2001)
790 ORDER extending some of the deadlines for the police/deputy sheriff sergeant selection procedure with hearing on any objections beginning at 9:30 on 12/06/01 in Birmingham filed ( by Judge C L. Smith Jr ) cm (DJG) (Entered: 07/27/2001)
791 ORDER Status hearing to be held on 10:00am 8/22/01 in Birmingham Courtroom 4A filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 08/02/2001)
792 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 7/26/01 , filed - Court Reporter Christina K Decker (SHB) (Entered: 08/02/2001)
793 ORDER on the mtn of Martin Plas and Bryan Intervenors for attys' fees and expert expensese that having considered the motion, afdt of Farah Brelvi w/ its attachments, brief in support of the mtn, and the response of the Jefferson Cty Personnel Board the court agrees w/ the Personnel Board's response that the submission is incomplete therefore the mtn is OVERRULED w/o prej to counsel to renew the mtn when appropriate supporting documentation has been submitted for a sum certain filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 08/03/2001)
NOTIFICATION by Circuit Court of Appellate docket number 0114262I (SHB) (Entered: 08/03/2001)
794 MOTION by plaintiff Wilks Class for reconsideration of motion to hold dft Personnel Board in civil contempt filed cs (SHB) (Entered: 08/06/2001)
795 Appeal Information Sheet filed [789-1] (SHB) (Entered: 08/06/2001)

08/09/2001 08/22/2001 08/23/2001 08/31/2001 09/07/2001
09/07/2001 09/17/2001
09/27/2001
10/02/2001 10/03/2001 10/03/2001 10/09/2001

REMARK envelope addressed to Stephen Spitz w/ 7/27/01 letter returned with FOE 7/31/01 notation (SHB) (Entered: 08/10/2001)
COURTROOM NOTES: Monthly Status hearing held on 8/22/01 Christina Decker, reporter (LCW) (Entered: 08/23/2001)
796 DESIGNATION by plaintiff Wilks Class of record on appeal filed cs (SHB) (Entered: 08/29/2001)
797 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on August 22, 2001, monthly status conference filed - Court Reporter Christina Decker (LCW) (Entered: 09/04/2001)
798 ORDER granting motion for reconsideration of motion to hold dft Personnel Board in civil contempt [794-1] but relief requested is DENIED filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 09/07/2001)
799 ORDER Status hearing to be held 9:30 am on 9/27/01 in Birmingham filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 09/07/2001)
800 MOTION by defendant Jefferson Cty Per Bd for order seeking permission to administer selection procedures to individuals asserting a federal right to same outside of deadlines established in 5/24/01 order modifying paragraph 19 of the 12/18/00 order extending 1981 consent decrees and 1995 modification order filed cs (SHB) (Entered: 09/18/2001)
801 RESPONSE by plaintiff USA motion for order seeking permission to administer selection procedures to asserting a federal right to same outside of deadlines established in 5/24/01 order modifying paragraph 19 of the 12/18/00 order extending 1981 consent decrees and 1995 modification order [800-1] filed cs (SHB) (Entered: 09/27/2001)
802 ORDER Status hearing to be held on 9:30 10/25/01 in Birmingham filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 10/02/2001)
803 NOTICE of appeal by plaintiff Wilks Class from District Court decision, [787-1] ; notice of appeal, order from and court copy of docket entries w/transmittal letter mailed cm (SHB) (Entered: 10/04/2001)
APPEAL fee received in amount of $ 105 receipt # 200 169354 (SHB) (Entered: 10/04/2001)
804 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 9/27/01, filed - Court Reporter Christina K. Decker (SHB) (Entered: 10/09/2001)

10/10/2001 10/10/2001 10/16/2001 10/17/2001 10/23/2001 10/23/2001
10/26/2001 10/31/2001 11/01/2001 11/01/2001 11/20/2001

805 EVIDENTIARY SUBMISSION by plaintiff Wilks Class in support of injunctive relief (deemed filed 5/20/98 pursuant to granting motion to supplement record doc# 766) filed cs (SHB) Modified on 10/18/2001 (Entered: 10/18/2001)
806 EVIDENTIARY SUBMISSION by defendant Bham City of in opposition to Wilks Class mtn for injunctive relief (deemed filed 5/20/98 pursuant to order granting mtn to supplement record doc# 766) filed cs (SHB) (Entered: 10/18/2001)
NOTIFICATION by Circuit Court of Appellate docket number 0115695I (SHB) (Entered: 10/16/2001)
SUPPLEMENTAL CERTIFICATE of readiness issued cm (SHB) (Entered: 10/23/2001)
807 RESPONSE by plaintiff USA to the City of Birminghams report pursuant to paragraph 12 of the 12/18/00 order extending 1981 consent decrees and 1995 modification orders filed cs (SHB) (Entered: 10/23/2001)
808 ORDER granting motion for order seeking permission to administer selection procedures to individuals asserting a federal right to same outside of deadlines established in 5/24/01 order modifying paragraph 19 of the 12/18/00 order extending 1981 consent decrees and 1995 modification order [800-1] filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 10/23/2001)
809 OBJECTIONS by plaintiff Wilks Class to the proposed use of selection procedure for Public Safety Dispatcher II by dft City of Birmingham filed cs (SHB) (Entered: 10/29/2001)
811 DESIGNATION by plaintiff Wilks Class of record on appeal filed cs (SHB) (Entered: 11/01/2001)
810 RESPONSE by defendant Bham City of to paragraph 14 of order modifying the consent decree [708-1] filed cs (SHB) (Entered: 11/01/2001)
812 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 10/25/01, filed - Court Reporter Christina Decker (SHB) (Entered: 11/01/2001)
813 MOTION by defendant Jefferson Cty Per Bd for order to administer selection procedures to an individual asserting a federal right to same filed cs (SHB) (Entered: 11/20/2001)

11/20/2001 11/20/2001 11/21/2001 11/21/2001 11/21/2001
11/21/2001 11/21/2001 11/30/2001

814 ORDER granting motion for order to administer selection procedures to an individual asserting a federal right to same [813-1] filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 11/20/2001)
817 OBJECTIONS by plaintiff Wilks Class to the job analysis test plan and content validity report for police captain by dft City of Birmingham filed cs (SHB) (Entered: 11/21/2001)
815 NOTICE filed by intervenor Bryant, plaintiff Martin of motion for seven day extension of certain deadlines for the police/sheriff sergeant selection procedure cs (SHB) (Entered: 11/21/2001)
816 MOTION by intervenor Bryant, plaintiff Martin to extend time by seven days of certain deadlines for the police/sheriff sergeant selection procedure filed cs (SHB) (Entered: 11/21/2001)
818 ORDER granting motion to extend time by seven days of certain deadlines for the police/sheriff sergeant selection procedure [816-1]; if any party has an objection to the selection procedure for the police/deputy sheriff sergeant classification or the results thereof that party shall file a motion and brief with the court and simultaneously deliver copies to the Jefferson Cty Personnel Board, special master and counsel for all other parties NO LATER THAN 12/10/01; a hearing on any objection so filed will be conducted on 12/13/01 immediately following the monthly status conference which will begin at 9:30 in Birmingham filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 11/21/2001)
819 NOTICE of appearance for defendant Jefferson Cty Per Bd by William K Bradford filed cs (SHB) (Entered: 11/26/2001)
820 RESPONSE by defendant Jefferson Cty Per Bd in opposition to motion to extend time by seven days of certain deadlines for the police/sheriff sergeant selection procedure [816-1] filed cs (SHB) (Entered: 11/26/2001)
821 ORDER Status hearing to be held on 9:30 1/16/02 in Birmingham the parties are reminded that if any party has an objection to the selection procedure for the police/deputy sheriff sergeant classification or results thereof they shall file a motion and brief with the court as more set out no later than 12/10/01; each party is to file the written report of any expert whose testimony it intends to present as more set out no later than 12/21/01 and the special master shall review the relevant materials and provide a written recommendation to the court no later than 1/4/02 filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 11/30/2001)

12/05/2001 12/05/2001 12/10/2001 12/11/2001 12/11/2001 12/11/2001 12/11/2001
12/11/2001
12/11/2001 12/12/2001
12/12/2001

822 NOTICE of disagreement regarding the City's selection procedure for police captain filed by plaintiff Wilks Class cs (SHB) (Entered: 12/06/2001)
823 NOTICE of disagreement regarding the City's selection procedure for public safety dispatcher II filed by plaintiff Wilks Class cs (SHB) (Entered: 12/06/2001)
824 SUBMISSION by plaintiff Wilks Class on police/deputy sheriff sergeant selection procedure filed cs (SHB) (Entered: 12/11/2001)
825 OBJECTIONS by plaintiff USA to personnel boards proposed use of the 2001 police/sheriffs sergeant examination filed cs (SHB) (Entered: 12/11/2001)
826 MOTION by intervenor Bryant, plaintiff Martin for order rejecting the personnel boards proposed 2001 police/sherif sergeant selection procedures filed cs (SHB) (Entered: 12/11/2001)
CERTIFICATE of readiness issued as to appeal numbers 01-14262I and 01-15695I, cm (SHB) (Entered: 12/11/2001)
827 MOTION by defendant Jefferson Cty Per Bd for order seeking permission to accept out of time applications for individuals asserting a federal right to same/Tyrone Allen and Jerome Gray filed cs (SHB) Modified on 12/12/2001 (Entered: 12/12/2001)
828 MOTION by defendant Jefferson Cty Per Bd for order seeking permission to administer selection procedures to an individual asserting a federal right to same/Chante Bias filed cs (SHB) (Entered: 12/12/2001)
CERTIFIED record on appeal with certified copy of docket entries and transmittal mailed USCA cm (SHB) (Entered: 01/29/2002)
829 827 - ORDER granting motion for order seeking permission to accept out of time applications for individuals a federal right to same/Tyrone Allen and Jerome Gray ( by Judge C L. Smith Jr ) entered cm (SHB) (Entered: 12/12/2001)
830 828 - ORDER granting motion for order seeking permission to administer selection procedures to an individual asserting a federal right to same/Chante Bias [828-1] ( by Judge C L. Smith Jr ) entered cm (SHB) (Entered: 12/12/2001)

12/17/2001 12/19/2001 12/26/2001 01/02/2002 01/02/2002 01/08/2002 01/08/2002 01/14/2002 01/14/2002 01/15/2002 01/16/2002 01/25/2002 01/28/2002 01/29/2002

831 RESPONSE by defendant Personnel Bd of Jeff to USA objection to police/sheriff sargent examination [825-1] filed cs (SHB) (Entered: 12/19/2001)
832 RESPONSE by plaintiff USA to Personnel Boards response to USA's objection to proposed use of the 2001 police/sheriffs sergeant examination [831-1] filed cs (SHB) (Entered: 12/19/2001)
833 NOTICE filed by intervenor Bryant, plaintiff Martin of filing expert report of Dr. Kathleen Lundquist cs (SHB) (Entered: 01/02/2002)
834 MOTION by defendant Jefferson Cty Per Bd for sanctions , or in the alternative in limine filed cs (SHB) (Entered: 01/04/2002)
835 MOTION by defendant Jefferson Cty Per Bd for order for pre-hearing determination of order of proof and burden of persuasion filed cs (SHB) (Entered: 01/04/2002)
836 RESPONSE by intervenor Bryant, plaintiff Martin motion for order for pre-hearing determination of order of proof and burden of persuasion [835-1] filed cs (SHB) (Entered: 01/08/2002)
837 CERTIFIED copy of Appellate Court order: dismissing the appeal [7891] # 01-14262 for lack of jurisdiction filed (SHB) (Entered: 01/09/2002)
838 OPPOSITION by intervenor Bryant, plaintiff Martin to motion for sanctions [834-1], motion in limine [834-2] filed cs (SHB) (Entered: 01/14/2002)
839 AFFIDAVIT of Farah Brelvi regarding opposition [838-1] filed cs (SHB) (Entered: 01/14/2002)
840 NOTICE of filing supplement expert report of Dr. Kathleen K. Lundquist filed (SHB) (Entered: 01/15/2002)
841 MOTION by dft Jefferson Cty Per Bd to allow use of Police/Sheriff's Sergeant Register filed cs (LCW) (Entered: 01/16/2002)
842 ORDER Status hearing to be held on 9:30am 2/21/02 in Birmingham and counsel for the parties are directed to appear filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 01/25/2002)
843 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 1/16/02, filed - Court Reporter Christina K. Decker (SHB) (Entered: 01/28/2002)
844 SCHEDULING ORDER FOR POLICE OFFICER RECRUIT POSTPHYSICAL ABILITIES SCREENING PROCEDURE that certain time

01/31/2002 02/01/2002 02/01/2002 02/01/2002 02/05/2002 02/05/2002 02/06/2002 02/08/2002 02/08/2002

limits apply as more fully set out in order filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 01/29/2002)
845 MOTION by defendant Jefferson Cty Per Bd for order to file police/sheriffs sergeant register under seal filed cs (SHB) (Entered: 02/01/2002)
846 NOTICE filed by plaintiff USA of filing expert report of Dr. Harold W. Goldstein cs (SHB) (Entered: 02/04/2002)
847 NOTICE filed by plaintiff John G Veres III of report on Personnel Board of Jefferson County Merit System 2001 Police/Deputy Sheriff Promotion Process cs (SHB) (Entered: 02/04/2002)
848 MOTION by defendant Jim Woodward to withdraw attorney Algert S Agricola filed cs (SHB) (Entered: 02/04/2002)
849 848 - ORDER granting motion to withdraw attorney Algert S Agricola [848-1] ( by Judge C L. Smith Jr ) entered cm (SHB) (Entered: 02/05/2002)
UTILITY event: terminates attorney Algert S Agricola for Jim Woodward pursuant to doc# 849 (SHB) (Entered: 02/05/2002)
850 RESPONSE by plaintiff USA to City of Birminghams report on its revised selection procedure for police captain filed cs (SHB) (Entered: 02/06/2002)
851 MEMORANDUM opinion filed ( by Judge C L. Smith Jr ) cm (SHB) (SPT, ). Modified on 2/6/2009 (attachment added 2/6/2009, deemed filed 2/8/2002 SPT, ). (Entered: 02/08/2002)
852 ORDER granting motion to allow use of Police/Sheriff's Sergeant Register [841-1], granting motion for order to file police/sheriffs sergeant register under seal [845-1]; the Personnel Board is ORDERED to use the register pending development of a lawful selection procedure; further in order to implement the terms of the parties agreement it is ORDERED that the parties are to follow procedures as more fully set out in paragraphs 1 & 2 of order; further the parties are ORDERED to brief the issues as more set out in order w/ briefs and recommendations to be filed no later than 3/11/02; clerk is directed to file under seal as Exhibit B to this order the items more set out in order fil ed ( by Judge C L. Smith Jr ) cm (SHB) (SPT, ). Modified on 2/6/2009 (attachment added 2/6/2009, deemed filed 2/8/2002 SPT, ). (Entered: 02/08/2002)

02/11/2002 02/15/2002 02/19/2002 02/19/2002 02/21/2002 02/22/2002 02/22/2002 02/22/2002
02/22/2002 02/22/2002 02/27/2002

853 MOTION by defendant Jefferson Cty Per Bd for order to allow them to administer the senior stores clerk selection procedure to Ann S. Smith filed cs (SHB) (Entered: 02/12/2002)
854 MOTION by defendant Jefferson Cty Per Bd for order allowing release of information and release of registers filed cs (SHB) (Entered: 02/19/2002)
855 MOTION by intervenor Bryant, plaintiff Martin for order to shorten dft Jeff Cty Personnel Boards time to respond to interrogatories and rfp filed cs (SHB) (Entered: 02/19/2002)
856 MOTION by plaintiff Wilks Class for order requiring payment of expert fees by dft City of Bham filed cs (SHB) (Entered: 02/20/2002)
COURTROOM NOTES: Monthly Status hearing held on 2/21/02 before the Honorable C. Lynwood Smith, Jr., United States District Judge; Christina Decker, reporter (LCW) (Entered: 02/21/2002)
857 ORDER granting motion for order to allow them to administer the senior stores clerk selection procedure to Ann S. Smith [853-1] as no objections have been filed filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 02/22/2002)
858 ORDER In-court hearing set for 9:30 am 3/21/02 in Birmingham and counsel for the parties are directed to appear filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 02/22/2002)
859 ORDER denying as moot motion for order for pre-hearing determination of order of proof and burden of persuasion [835-1], denying as moot motion for sanctions [834-1], denying as moot motion in limine [834-2], denying as moot motion for order rejecting the personnel boards proposed 2001 police/sheriff sergeant selection procedures [826-1] filed ( by Judge C L. Smith ) cm (SHB) (Entered: 02/22/2002)
860 ORDER denying as moot motion for order allowing release of information and release of registers [854-1] filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 02/22/2002)
861 MOTION by defendant Jefferson Cty Per Bd for protective order filed cs (SHB) (Entered: 02/25/2002)
863 RESPONSE by plaintiff USA motion for protective order [861-1] filed cs (SHB) (Entered: 02/27/2002)

02/27/2002 02/27/2002 02/27/2002
02/27/2002 02/28/2002 03/01/2002
03/01/2002 03/04/2002 03/05/2002
03/05/2002

864 MEMORANDUM opinion filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 02/27/2002)
862 MOTION by intervenor Bryant, plaintiff Martin for protective order and OPPOSITION to Jefferson Cty Personnel Boards motion for protective order filed cs (SHB) (Entered: 02/27/2002)
865 ORDER granting motion for order to shorten dft Jeff Cty Personnel Boards time to respond to interrogatories and rfp [855-1]; granting motion for protective order [861-1] to the extent that the time period for which documents must be produced is limited to 12/19/95 to the present, otherwise the motion is denied; granting motion for protective order [862-1] and the 3/11/02 deadline for the parties to file briefs on the issues identified in the order entered on 2/8/02 is extended to 3/25/02 filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 02/27/2002)
866 MOTION by plaintiff Wilks Class for order to shorten dft Personnel Boards time to respond to rfp filed cs (SHB) (Entered: 02/28/2002)
868 MOTION by defendant Jefferson Cty Per Bd to alter judgment , or to amend judgment of 2/27/02 filed cs (SHB) Modified on 03/04/2002 (Entered: 03/04/2002)
867 ORDER granting motion for order to shorten dft Personnel Boards time to respond to rfp [866-1] and the Jefferson Cty Personnel Board is ordered to respond to the request of the Wilks class for production of documents no later than 3/8/02 filed ( by Judge C Smith Jr ) cm (SHB) (Entered: 03/01/2002)
869 MOTION by defendant Jefferson Cty for order to shorten Jefferson Cty Personnel Boards time to respond to rfp filed cs (SHB) (Entered: 03/04/2002)
871 MOTION by plaintiff Wilks Class for order to show cause , and for order holding dft City of Bham in civil contempt filed cs (SHB) (Entered: 03/05/2002)
870 ORDER granting motion for order to shorten Jefferson Cty Personnel Boards time to respond to rfp [869-1] and it is ordered that the Jefferson County Personnel Board respond to Jefferson County's rfp no later than 3/15/02 filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 03/05/2002)
872 OPPOSITION by intervenor Bryant, plaintiff Martin to motion to alter judgment [868-1], motion to amend judgment of 2/27/02 [868-2] filed cs (SHB) (Entered: 03/05/2002)

03/05/2002 03/05/2002
03/06/2002
03/07/2002 03/13/2002 03/13/2002 03/18/2002 03/19/2002 03/20/2002

873 ORDER that the City of Birmingham is directed to file a response to the motion no later than 3/13/02; the Wilks class must submit its reply no later than 3/19/02 filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 03/05/2002)
874 ORDER granting motion for order to show cause [871-1] and the City of Bham is ordered to show cause why it should not be held in contempt of the courts 1995 order modifying the City of Bhams 1981 consent decree as subsequently amended by the 12/18/00 order extending the consent decree and the courts order entered on 5/20/98 in writing no later than 3/26/02; any other party that wishes to respond to the submissions of the Wilks class and the City must do so no later than 4/2/02 filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 03/05/2002)
875 ORDER granting motion to alter judgment [868-1], granting motion to amend judgment of 2/27/02 [868-2] as more set out in order; the portion of the 2/27/02 order [doc 865] granting the mtn filed by the Martin/Bryant parties for a protective order and excluding the members of the Personnel Board from attending each others depositions is vacated and upon further consideration the Martin/Bryant parties mtn for protective order is denied filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 03/06/2002)
876 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 2/21/02, filed - Court Reporter Christina Decker (SHB) (Entered: 03/07/2002)
877 NOTICE filed by defendant Bham City of filing monthly status report for March 2002 regarding compliance w/ paragraph 5 of the 12/18/00 order modifying the City of Birmingham consent decree cs (SHB) (Entered: 03/14/2002)
878 RESPONSE by defendant Bham City of motion for order requiring payment of expert fees by dft City of Bham filed cs (SHB) (Entered: 03/14/2002)
879 MOTION by defendant Jefferson Cty to extend time by one week to file briefs on the issue of the appointment of a receiver filed cs (SHB) (Entered: 03/19/2002)
880 RESPONSE by plaintiff Wilks Class to City of Bhams response to motion for order requiring payment of expert fees [878-1] filed cs (SHB) (Entered: 03/20/2002)
881 NOTICE filed by defendant Jefferson Cty Per Bd of filing monthly status report for March 2002 (deemed filed 3/15/02) cs (SHB) (Entered: 03/20/2002)

03/21/2002 03/27/2002 04/01/2002 04/04/2002 04/05/2002 04/05/2002
04/10/2002 04/15/2002 04/17/2002 04/17/2002 04/19/2002

COURTROOM NOTES: Monthly status conference held in Birmingham 3/21/02 (LCW) (Entered: 03/21/2002)
882 ORDER In-court hearing set for 9:30 am 4/17/02 and counsel for parties are directed to appear for the next conference filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 03/27/2002)
883 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 3/21/02, filed - Court Reporter Christina Decker (SHB) (Entered: 04/01/2002)
884 MOTION by plaintiff Wilks Class, intervenor Bryant, plaintiff Martin for civil contempt filed (LCW) (Entered: 04/05/2002)
885 MEMORANDUM opinion filed ( by Judge C L. Smith Jr ) cm (LCW) (attachment added 2/6/2009, deemed filed 4/5/2002 SPT, ). Modified on 2/6/2009 (SPT, ). (Entered: 04/05/2002)
886 ORDER in accordance with the memoradum opinion entered contemoraneously herewith that all portions of the memopn and order entered on 2/8/02 addressing the imposition of receivership upon the Jefferson Cty Personnel Bd are vacated for reconsideration; further Jefferson Cty Personnel Bd is ordered to show cause on or before 4/19/02 why it should not be held in civil contempt for failure to comply with court orders as more fully set out; any party who wishes to contest the written response or evidentiary showing of the jefferson Cty Bd shall file its response no later than 5/3/02 as more fully set out in the order; to show cause deadline created for 4/19/02 filed ( by Judge C L. Smith Jr ) cm (LCW) (attachment added 2/6/2009, deemed filed 4/5/2002 SPT, ). Modified on 2/6/2009 (SPT, ). (Entered: 04/05/2002)
887 NOTICE filed by defendant Jefferson Cty Per Bd of filing monthly status report for April 2002 cs (SHB) (Entered: 04/12/2002)
888 CERTIFIED copy of Appellate Court order: dismissing the appeal [8031] as appellants unopposed mtn to dismiss is GRANTED filed (SHB) Modified on 05/09/2002 (Entered: 04/17/2002)
COURTROOM NOTES: Monthly status conference held 4/17/02 in Birmingham (LCW) (Entered: 04/17/2002)
889 MOTION by defendant Jefferson Cty Per Bd for leave to file revised police/sheriffs sergeant register under seal filed cs (SHB) (Entered: 04/18/2002)
890 RESPONSE by defendant Jefferson Cty Per Bd order to show cause order [886-1] filed cs (SHB) (Entered: 04/19/2002)

04/22/2002 04/23/2002 04/23/2002 04/25/2002 04/26/2002
04/29/2002 04/29/2002 04/29/2002 04/29/2002

891 ORDER In-court hearing set for 9:30 am 5/23/02 in Birmingham filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 04/23/2002)
892 ORDER granting motion for leave to file revised police/sheriffs sergeant register under seal [889-1] filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 04/24/2002)
893 NOTICE filed by defendant Jefferson Cty Per Bd of filing Police/Sheriff's Sergeant examination under seal (SHB) (Entered: 04/24/2002)
894 MOTION by defendant Jefferson Cty to extend time for submission of responsive briefs and evidentiary materials , or in the alternative for evidentiary hearing filed cs (SHB) (Entered: 04/26/2002)
895 ORDER on dft Jefferson Cty Alabama's mtn seeking an extension of the 5/3/02 deadline for filing its response as directed by 4/5/02 show cause order or in the alternative for evidentiary hearing that Jefferson Cty is directed to file no later than the close of business on 4/29/02 a statement fully and completely informing the court why each of the witnesses listed in exhibit 2 of the mtn has been identified for deposition and explaining the expected areas of inquiry of each witness filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 04/26/2002)
896 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 4/16/02, filed - Court Reporter Christina Decker (SHB) (Entered: 04/29/2002)
897 MOTION by defendant Jefferson Cty for protective order filed cs (SHB) (Entered: 04/29/2002)
898 NOTICE filed by defendant Jefferson Cty of filing responsive statement under seal cs (SHB) (Entered: 04/29/2002)
899 ORDER granting motion for protective order [897-1] and clerk of court is directed to file under seal the "statement" appended to the "notice of filing responsive statement under seal" on the same date; Jefferson Cty is directed to transmit copies of the "statement" to all attys of record via facsimile transmission of receipt no later than 3:00 CST on 4/30/02; all attys of record especially those of Jefferson Cty Personnel Brd are prohibited from disclosing contents of sealed "statement" as more set out; counsel for all parties except Jeff Cty are directed to file a response to Jeff Cty's mtn for extension of submission deadline or in the alternative for an evidentiary hearing [#894] no later than close of business on 5/1/02 CST filed ( by Judge C L. Smith Jr ) cm (SHB) Modified on 04/29/2002 (Entered: 04/29/2002)

05/01/2002 05/01/2002 05/01/2002 05/01/2002 05/02/2002 05/02/2002 05/02/2002
05/07/2002 05/07/2002 05/08/2002 05/10/2002

900 RESPONSE by plaintiff Wilks Class order [899-1] filed cs (SHB) (Entered: 05/02/2002)
901 MOTION by defendant Jefferson Cty Per Bd for order to unseal the "statement" of Jefferson Cty appended to the notice of filing responsive statement under seal filed under seal filed cs (SHB) (Entered: 05/02/2002)
902 MOTION by defendant Jefferson Cty Per Bd for protective order FILED UNDER SEAL cs (SHB) (Entered: 05/02/2002)
903 RESPONSE by defendant Jefferson Cty Per Bd motion to extend time for submission of responsive briefs and evidentiary materials [894-1], motion for evidentiary hearing [894-2] filed cs (SHB) (Entered: 05/02/2002)
904 RESPONSE by plaintiff USA motion to extend time for submission of responsive briefs and evidentiary materials [894-1], motion for protective order [902-1] filed cs (SHB) (Entered: 05/02/2002)
905 MOTION by intervenor Bryant, plaintiff Martin for order to limit discovery by Jefferson County filed cs (SHB) (Entered: 05/02/2002)
906 ORDER granting motion for order to limit discovery by Jefferson County [905-1] to the extent that the number of depositions will be limited to six; finding the motion for protective order [902-1] moot, the deposition transcripts will not be submitted under seal; vacating order [899-1]; granting motion for order to unseal the "statement" of Jefferson Cty appended to the notice of filing responsive statement under seal filed under seal [901-1]; granting motion to extend time for submission of responsive briefs and evidentiary materials [894-1] and the parties are directed to file their responses on or before 5/20/02; terminating motion for evidentiary hearing [894-2] filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 05/02/2002)
907 MOTION by defendant Jefferson Cty Per Bd to supplement truck driver register filed cs (SHB) (Entered: 05/07/2002)
909 CERTIFIED copy of Appellate Court order: dismissing appeal [720-1] for lack of jurisdiction filed (SHB) (Entered: 05/09/2002)
908 RESPONSE by plaintiff USA motion to supplement truck driver register [907-1] filed cs (SHB) (Entered: 05/08/2002)
910 MOTION by intervenor Bryant, plaintiff Martin for attorney Mary Beth Vrabel to appear pro hac vice filed cs (SHB) (Entered: 05/10/2002)

05/10/2002 05/10/2002 05/13/2002 05/17/2002 05/20/2002 05/20/2002 05/20/2002 05/20/2002 05/21/2002 05/21/2002 05/23/2002 05/23/2002 05/29/2002 05/31/2002

PRO HAC VICE admission fee paid on 5/10/02 receipt # 500 52609 (SHB) (Entered: 05/10/2002)
911 ORDER granting motion for attorney Mary Beth Vrabel to appear pro hac vice [910-1] filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 05/10/2002)
912 ORDER granting motion to supplement truck driver register [907-1] filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 05/13/2002)
913 STATUS REPORT for May, 2002, filed by defendant Jefferson Cty Per Bd cs (DJG) (Entered: 05/17/2002)
914 RESPONSE by plaintiff to Jefferson Cty Personnel Boards response to order to show cause why it should not be held in civil contempt filed cs (SHB) (Entered: 05/20/2002)
915 RESPONSE by plaintiff Wilks Class order to show cause order [886-1] filed cs (SHB) (Entered: 05/21/2002)
916 BRIEF by defendant Jefferson Cty in response to show cause order filed cs (SHB) (Entered: 05/21/2002)
917 EVIDENTIARY SUBMISSION by defendant Jefferson Cty in response to Jefferson Cty Personnel Boards response to show cause order filed cs (SHB) (Entered: 05/21/2002)
918 BRIEF by intervenor Bryant, plaintiff Martin in support of order to show cause filed cs (SHB) (Entered: 05/21/2002)
919 AFFIDAVIT of Mary Beth Vrabel regarding brief [918-1] w/ list of exhibits filed separately filed cs (SHB) (Entered: 05/21/2002)
920 ADDITIONAL EXHIBITS (68,69,72,74 AND 79-31) to affidavit of Mary Beth Vrabel (doc #919) filed by plaintiff Martin cs (LCW) (Entered: 05/23/2002)
COURTROOM NOTES: Monthly status conference held 5/23/02 written orders to be entered by the court Christina Decker, reporter (LCW) (Entered: 05/23/2002)
921 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 5/23/02, filed - Court Reporter Christina K Decker (SHB) (Entered: 05/29/2002)
922 ORDER In-court hearing set for 9:30am 6/20/02 in Birmingham and counsel for the parties are directed to appear filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 05/31/2002)

06/03/2002
06/04/2002 06/13/2002 06/13/2002 06/17/2002 06/19/2002 06/19/2002
06/20/2002 06/21/2002 06/24/2002

923 ORDER thatthe Jefferson County Personnel Board is enjoined and restrained from entering into any contract relating to the so-called "Compensation and Classification Study" until this court rules on the motion for civil contempt filed ( by Judge C L. Smith Jr ) cm (KAM) (Entered: 06/03/2002)
924 NOTICE filed by intervenor Bryant, plaintiff Martin of filing supplemental exhibits to affidavit of Mary Beth Vrable [doc# 919] cs (SHB) (Entered: 06/04/2002)
925 NOTICE filed by defendant Bham City of filing monthly status report for 6/02 regarding compliance w/ paragraph 5 of the 12/18/00 order modifying the City of Birmingham consent decree cs (SHB) (Entered: 06/14/2002)
926 NOTICE filed by defendant Jefferson Cty Per Bd of filing monthly status report for 6/02 cs (SHB) (Entered: 06/17/2002)
927 MOTION by intervenor Bryant, plaintiff Martin for order extending 1981 Jefferson Cty Personnel Bd and City of Bham consent decrees and 1995 modification orders and 2000 decree extension filed cs (SHB) (Entered: 06/17/2002)
928 RESPONSE by plaintiff USA motion for order extending 1981 Jefferson Cty Personnel Bd and City of Bham consent decrees and 1995 modification orders and 2000 decree extension [927-1] filed cs (SHB) (Entered: 06/19/2002)
929 ORDER granting motion for order extending 1981 Jefferson Cty Personnel Bd and City of Bham consent decrees and 1995 modification orders and 2000 decree extension [927-1]; orders are extended until 12/31/04 as set out filed ( by Judge C L. Smith Jr ) cm (KAM) (Entered: 06/19/2002)
COURTROOM NOTES: monthly status hearing held 6/20/02 Teresa Roberson, reporter (LCW) (Entered: 06/20/2002)
930 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 6/20/02, filed - Court Reporter Teresa Roberson (SHB) (Entered: 06/24/2002)
931 RESPONSE (memorandum) by defendant Jefferson Cty to courts direction of 6/20/02 status conference filed cs (SHB) (Entered: 06/26/2002)

06/27/2002 07/05/2002 07/08/2002 07/08/2002
07/08/2002 07/09/2002 07/10/2002 07/10/2002 07/11/2002 07/11/2002

932 BRIEF by defendant Jefferson Cty Per Bd in support of allegation of noncooperation against Jefferson County filed cs (SHB) (Entered: 06/28/2002)
933 ORDER that the parties are advised that there will be no status conference during the month of July 2002 filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 07/05/2002)
934 MEMORANDUM opinion filed ( by Judge C L. Smith Jr ) cm (SNH) Additional attachment(s) added on 3/31/2006 (MNH, ). (Entered: 07/08/2002)
935 ORDER in accordance with memorandum [934-1] that the Personnel Board of Jefferson County is adjudged to be in contempt of court for violating the terms of the December 19, 1995 order; appointing Ronald R. Sims, Ph.D as Receiver of the Personnel Board, effective immediately, whose powers, duties and responsibilities are set out in this order; and setting out functions that shall not be performed by members of the Jefferson County Personnel Board, with biographical sketch of receiver and other exhibits attached filed ( by Judge C L. Smith Jr ) cm (SNH) Additional attachment(s) added on 3/31/2006 (MNH, ). (Entered: 07/08/2002)
936 SUPPLEMENTAL RESPONSE by defendant Jefferson Cty Per Bd order to show cause order [886-1] filed (FILED UNDER SEAL) cs (SHB) Modified on 07/15/2002 (Entered: 07/10/2002)
COURTROOM NOTES: In chambers status conference held; Julie Martin reporter (LCW) (Entered: 07/15/2002)
937 RETURN of service on service of docs# 934 and 934 to Mayor Wayne Tuggle, Alice Williams, Zhaleh McCullers, Mayor Terry Oden, Mayor Barry R. McCulley, Mayor Larry Langford, Mayor Quitman Mitchell; Jack Swann filed (SHB) (Entered: 07/11/2002)
939 MOTION by plaintiff Wilks Class for attorney fees filed cs (SHB) (Entered: 07/12/2002)
938 RETURN of service of docs# 934 and 935 to Mayor Jerry Brasseale, Greg Canfield, Mayor Joe Williams, Brenda Myrick, Mayor Charles McCallum, WW Ledbetter, Mayor Aubrey Alan Ramsey, B.Y. Williams, Dr Woody Odom filed (SHB) (Entered: 07/11/2002)
940 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 7/9/02, filed - Court Reporter Julie A. Martin (SHB) (Entered: 07/12/2002)

07/12/2002 07/12/2002 07/15/2002 07/15/2002 07/15/2002 07/16/2002
07/16/2002 07/18/2002 07/23/2002 07/26/2002 07/26/2002 07/29/2002 07/30/2002

941 RETURN of service of docs# 934 and 935 on Mayor Eugene Milton, Michael Fleenor, Mayor Carlton McWhorter filed (SHB) (Entered: 07/12/2002)
942 RETURN of service of docs# 934 and 935 on James Whitfield and Mayor Rayburn Phillips filed (SHB) (Entered: 07/12/2002)
REMARK - copies of transcript of 7/9/02 in chambers conference mailed to counsel of record (LCW) (Entered: 07/15/2002)
943 RETURN of service of docs# 934 and 935 on William M Flippo and Mayor Jerry Cochran filed (SHB) (Entered: 07/15/2002)
946 NOTICE of appearance for defendant Jefferson Cty Per Bd by John A Lentine filed cs (SHB) (Entered: 07/16/2002)
944 ORDER on mtn filed by Wilks class for attys fees and costs incurred in connection w/ civil contempt proceedings against Jefferson Cty Personnel Board that the Wilks class is directed to file appropriate affidavits and other supporting documentation not later than 8/12/02 and any party who desires to respond to the Wilks class motion for atty fees shall do so not later than 9/3/02 filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 07/16/2002)
945 ORDER In-court hearing set for 9:30 am 8/22/02 in Birmingham filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 07/16/2002)
947 RETURN of service of docs# 934 and 935 on Greg Morris filed (SHB) (Entered: 07/18/2002)
948 RETURN of service of docs# 934 and 935 on Jerry Bailey and Mayor Kenneth A Gimmis filed (SHB) (Entered: 07/23/2002)
949 RETURN of service of docs# 934 and 935 on Ginger Busby filed (SHB) (Entered: 07/26/2002)
951 NOTICE of appearance for miscellaneous party Ronald R Sims by David R Boyd filed cs (SHB) (Entered: 07/29/2002)
950 RETURN of service of docs # 934 & 935 upon Simpson Berry on 7/24/02 filed (CTS) (Entered: 07/29/2002)
952 ORDER that pursuant to paragraph 15 of the order entered on 7/8/02 appointing Dr. Ronald R Sims as received of the Jefferson County Personnel Board [doc# 935] the firste two sentences of paragraph 6 of that order are revised as more fully set out in order filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 07/30/2002)

08/08/2002 08/09/2002 08/12/2002 08/15/2002
08/16/2002 08/19/2002 08/19/2002 08/21/2002 08/22/2002 08/22/2002 08/23/2002
08/26/2002 08/28/2002

953 MOTION by intervenor Bryant, plaintiff Martin for reconsideration of order of 7/8/02 filed (MAA) (Entered: 08/08/2002)
954 ORDER -Parties directed to respond to motion for reconsideration filed by Martin and Bryant (doc # 953) before 8/19/02 filed ( by Judge C L. Smith Jr ) cm (MAA) (Entered: 08/09/2002)
955 SUBMISSION of discovery in support of motion for attorney fees and costs with affidait of Raymond P. Fitzpatrick, Jr. and John D. Saxon by plaintiff Wilks Class filed cs (MAA) (Entered: 08/13/2002)
956 NOTICE (monthly status report for August 2002 regarding compliance with paragraph 5 of the 12/18/00 order modifying the City of Bham consent decree) filed by defendant Bham City of cs (Former Employee) (Entered: 08/19/2002)
957 RESPONSE by defendant Jefferson Cty to motion for reconsideration of order of 7/8/02 [953-1] filed cs (Former Employee) (Entered: 08/19/2002)
958 RESPONSE by plaintiff USA to Martin and Bryant's motion for reconsideration of order of 7/8/02 [953-1] filed cs (Former Employee) (Entered: 08/19/2002)
959 RESPONSE by receiver Ronald R Sims to Martin and Bryant's motion for reconsideration of order of 7/8/02 [953-1] filed cs (Former Employee) (Entered: 08/20/2002)
960 NOTICE of appearance for miscellaneous Ronald R Sims by Leslie M Allen filed cs (Former Employee) (Entered: 08/22/2002)
COURTROOM NOTES: Monthly status conference held 8/22/02 (LCW) (Entered: 08/22/2002)
961 NOTICE of appearance for reveiver Ronald R Sims by Aaron L Dettling filed cs (Former Employee) (Entered: 08/26/2002)
962 MOTION by movant Clare D. Haynes for order for due process hearing and notice of appeal of disciplinary action filed cs [DOCUMENT REMOVED TO INDEPENDENT CASE 2:02-2186] (DJG) Modified on 09/06/2002 (Entered: 08/26/2002)
963 ORDER ; In-court conference set for 9:30 9/19/02 filed ( by Judge C L. Smith Jr ) cm (Former Employee) (Entered: 08/27/2002)
964 CERTIFIED copy of Appellate Court order: appellant's 6/14/02 "Petition for Rehearing En Banc" construed as a motion for reconsideration of 5/26/02 order dismissing this appeal for lack of

08/29/2002 08/30/2002 09/03/2002 09/03/2002
09/12/2002 10/04/2002 10/04/2002 10/07/2002 10/17/2002 11/07/2002 11/25/2002

jurisdiction, is DENIED, before: Carnes, Fay and Martin, filed (Former Employee) (Entered: 08/29/2002)
965 MOTION by Receiver Ronald R Sims to extend time to respond to Wilks Class' motion for attys fees and costs filed cs (Former Employee) (Entered: 08/30/2002)
966 ORDER granting motion to extend time to respond to Wilks Class' motion for attys fees and costs [965-1] until 9/13/02, filed ( by Judge C L. Smith Jr ) cm (Former Employee) (Entered: 08/30/2002)
967 TRANSCRIPT of hearing proceedings had before Judge C L. Smith Jr on 8/22/02, filed - Court Reporter Christina K. Decker (KLL) (Entered: 09/05/2002)
968 RESPONSE by Dr. Ronald R Sims as receiver of Jefferson Cty Per Bd to order [935-1] filed cs [DOCUMENT REMOVED TO INDEPENDENT CASE 2:02-2186] (KLL) Modified on 09/06/2002 (Entered: 09/05/2002)
969 NOTICE of compliance (Status Report for Sept 2002) by dft Bham City of with [708-1] filed cs (KLL) (Entered: 09/12/2002)
970 ORDER denying as moot motion for attorney fees [939-1] as parties have advised court that they have resolved issues raised in the motion filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 10/04/2002)
971 ORDER In-court hearing set for 9:30 10/24/02 in Birmingham filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 10/04/2002)
972 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 9/19/02, filed - Court Reporter Christina K. Decker (SHB) (Entered: 10/07/2002)
973 RESPONSE by plaintiff Wilks Class response [968-1] filed cs (SHB) (Entered: 10/22/2002)
974 ORDER that the parties are notified that no status conference will be conducted during the month of November 2002 filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 11/07/2002)
975 CERTIFIED copy of Appellate Court order: GRANTING appellants mtn for further consideration of petition for rehearing en banc and VACATING 8/26/02 order on courts own motion which denied reconsideration of the 6/14/02 order; directing clerk to submit appellants petition for rehearing en banc to court filed (SHB) (Entered: 11/26/2002)

12/02/2002 12/12/2002 12/19/2002
01/03/2003 01/09/2003 01/17/2003 01/21/2003 01/29/2003 01/30/2003 01/31/2003 02/10/2003 02/13/2003

976 ORDER In-court hearing set for 9:00 am 12/19/02 in Birmingham filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 12/02/2002)
977 NOTICE filed by defendant Bham City of filing monthly status report for 12/02 cs (SHB) (Entered: 12/13/2002)
COURTROOM NOTES: status conference held 12/19/02 Atty Wagner directed to certify to court that copies of July, 2002 order and memopn have been provided to county commission; daily adj; Christina Decker (LCW) (Entered: 12/19/2002)
978 ORDER Status hearing to be held on 9:30 1/23/03 filed ( by Judge C L. Smith Jr ) cm (LCW) (Entered: 01/03/2003)
979 MOTION by movant John Seaman for due process hearing and notice of appeal of disciplinary action filed cs [REMOVED TO INDEPENDENT CASE 03-HGD-69-S] (SHB) (Entered: 01/13/2003)
980 NOTICE filed by defendant Bham City of filing monthly status report for 1/03 cs (SHB) (Entered: 01/22/2003)
981 RESPONSE by Ronald R Sims as receiver of Jefferson Cty Personnel Board to order [935-1] filed cs [DOCUMENT REMOVED TO INDEPENDENT CASE 2:03-69] (SHB) (Entered: 01/22/2003)
982 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 12/19/02, filed - Court Reporter Christina K. Decker (SHB) (Entered: 01/30/2003)
983 ORDER that the parties are directed to appear for the next conference in this action In-court hearing set for 9:30 am 2/20/03 in Birmingham filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 01/30/2003)
984 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 1/23/03, filed - Court Reporter Christina K. Decker (SHB) (Entered: 01/31/2003)
DOCKET modification (utility event) terminating motion for civil contempt [884-1] see order entered 7/8/02 (LCW) (Entered: 02/10/2003)
985 NOTICE filed by defendant Bham City of filing monthly status report for 2/5/03 regarding compliance w/ paragraph 5 of the 12/18/00 order modifying the City of Birmingham consent decree cs (SHB) (Entered: 02/14/2003)

02/18/2003 02/20/2003 02/28/2003 03/10/2003
03/10/2003 03/10/2003
03/11/2003 03/13/2003 03/19/2003 03/20/2003 03/21/2003
03/26/2003

986 MOTION by plaintiff Wilks Class for order directing receiver to comply w/ agreement governing payment of fees and costs filed cs (SHB) (Entered: 02/19/2003)
COURTROOM NOTES: MONTHLY Status hearing held on 2/20/03 Christina Decker, reporter (LCW) (Entered: 02/20/2003)
987 ORDER In-court hearing set for 9:30 am 3/20/03 in Birmingham filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 02/28/2003)
DOCKET modification (utility event) withdrawing motion for order directing receiver to comply w/ agreement governing payment of fees and costs [986-1] per oral motion and oral ruling by Judge Smith granting motion to withdraw (LCW) (Entered: 03/10/2003)
DOCKET modification (utility event) terminating motion to extend time by one week to file briefs on the issue of the appointment of a receiver [879-1]; moot, briefs filed (LCW) (Entered: 03/10/2003)
DOCKET modification (utility event) terminating motion for order for due process hearing and notice of appeal of disciplinary action [962-1], terminating motion for reconsideration of order of 7/8/02 [953-1] (SHB) (Entered: 03/10/2003)
988 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 2/19/03, filed - Court Reporter Christina K. Decker (SHB) (Entered: 03/11/2003)
989 NOTICE filed by defendant Bham City of filing status report for 3/03 regarding compliance w/ paragraph 5 of 12/18/00 order modifying consent decree cs (SHB) (Entered: 03/14/2003)
990 MOTION by Ronald R Sims for order for approval to initiate search for suitable rooms and accomodations for the personnel board of Jefferson Cty filed cs (SHB) (Entered: 03/20/2003)
COURTROOM NOTES: monthly STATUS Conference held 3/20/03 (LCW) (Entered: 03/20/2003)
991 ORDER that any party that desires to respond to the motion of the Receiver for approval to initiate search for suitable rooms & accomodations for the Personnel Board shall do so in writing not later than 4/11/03 filed ( by Judge C L. Smith Jr ) cm (LCW) (Entered: 03/21/2003)
992 ORDER ; hearing set for 9:30 4/17/03 in Birmingham filed ( by Judge C L. Smith Jr ) cm (TLM) (Entered: 03/26/2003)

03/28/2003 993 MEMORANDUM opinion filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 03/28/2003)

03/28/2003

994 ORDER in accordance w/ memo opinion entered contemporaneously herewith terminating motion for order requiring payment of expert fees by dft City of Bham [856-1]; the City of B'ham is ORDERED to pay to the order of counsel for Wilks class the sum of $10,366.84 as an expert fee with such sum to be paid on or before 4/30/03 filed ( by Judge C L. Smith Jr ) cm (SHB) (Entered: 03/28/2003)

04/01/2003

995 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 3/20/03 , filed - Court Reporter Christina Decker (TLM) (Entered: 04/01/2003)

04/10/2003

996 NOTICE filed by defendant Bham City of filing monthly status report for April 2003 regarding compliance w/ paragraph 5 of the 12/18/00 order modifying City of Bham consent decree cs (SHB) (Entered: 04/11/2003)

04/11/2003

997 OPPOSITION by defendant Jefferson Cty to motion for order for approval to initiate search for suitable rooms and accomodations for the personnel board of Jefferson Cty [990-1] filed cs (SHB) (Entered: 04/14/2003)

04/11/2003

998 EVIDENTIARY SUBMISSION by defendant Jefferson Cty in support of Jefferson Ctys opposition to receivers mtn for approval to initiate search for suitable rooms and accommodations for the personnel board of Jefferson Cty filed cs (SHB) (Entered: 04/14/2003)

04/11/2003

999 BRIEF by defendant Jefferson Cty in support of Jefferson Ctys opposition to receivers mtn for approval to initiate search for suitable rooms and accomodations for the personnel board of Jefferson Cty filed cs (SHB) (Entered: 04/14/2003)

04/18/2003

1000

ORDER re motion to reconsider 7/8/02 court order: no party shall communicate ex parte w/the Special Master re any subject which could be construed to compromise the independence and impartiality of the Special Master w/respect to technical issues on which the Special Master may eventually offer opinions and advice to the court; the motion is denied in all other respects filed (by Judge C L. Smith Jr) cm (KLL) (Entered: 04/18/2003)

04/18/2003

1001

ORDER that motion for order for approval to initiate search for suitable rooms and accomodations for the personnel board of Jefferson Cty [990-1] is OVERRULED, w/out prej to the Receiver's right to refile the motion at a later date, if necessary filed ( by Judge L. Smith Jr ) cm (KLL) (Entered: 04/18/2003)

04/18/2003 1002 NOTICE of filing proposed schedule for the development of selection procedures for classifications filed by Court-Receiver Ronald R Sims cs (KLL) (Entered: 04/21/2003)

04/24/2003 1003 ORDER implementing receiver's proposed schedule, copy of receiver's proposed schedule is att as "Exh A" filed ( by Judge C L. Smith Jr ) cm (KLL) (Entered: 04/24/2003)

04/24/2003 1004 MOTION by dft Jefferson Cty Per Bd to withdraw attorney William K Bradford filed cs (KLL) (Entered: 04/25/2003)

04/28/2003 1005 MOTION by defendant Jefferson Cty Per Bd to withdraw attorney John A Lentine filed cs (BST) (Entered: 04/29/2003)

04/30/2003 1006 1004 - ORDER granting motion to withdraw attorney William K Bradford [1004-1] ( by Judge C L. Smith Jr ) entered cm (BST) (Entered: 04/30/2003)

04/30/2003

UTILITY event: terminates attorney William K Bradford for Jefferson Cty Per Bd (BST) (Entered: 04/30/2003)

04/30/2003 1007 1005 - ORDER granting motion to withdraw attorney John A Lentine [1005-1] ( by Judge C L. Smith Jr ) entered cm (BST) (Entered: 04/30/2003)

04/30/2003

UTILITY event: terminates attorney John A Lentine for Jefferson Cty Per Bd (BST) (Entered: 04/30/2003)

04/30/2003 1008 ORDER In-court hearing set for 9:30am 5/22/03 filed ( by Judge C L. Smith Jr ) cm (BST) (Entered: 04/30/2003)

05/15/2003

1009 Monthly status report for May 2003 re compliance w/paragraph 5 of the 12/18/00 order modifying the City of Bham consent decree filed by dft Bham City of cs (KLL) (Entered: 05/19/2003)

05/27/2003 1010 ORDER that no status conf will be conducted during June, counsel for parties are to appear at next status conf on 7/17/03 at 9:30 am in Bham filed ( by Judge C L. Smith Jr ) cm (KLL) (Entered: 05/27/2003)

05/30/2003

1011 ORDER Status conference rescheduled for 9:30 am on 7/16/03 in Bham, AL filed ( by Judge C L. Smith Jr ) cm (KLL) (Entered: 05/30/2003)

06/02/2003 1012 MOTION by Court-Appointed Receiver Ronald R Sims to amend schedule for consent decree compliance filed w/proposed schedule att cs (KLL) (Entered: 06/03/2003)

06/06/2003 1013 TRANSCRIPT of Hearing held 04/17/03 before C. Lynwood Smith, Jr., U. S. District Judge, CrtRptr Christina filed (DJG) (Entered: 06/06/2003)

06/06/2003 1014 TRANSCRIPT of hearing held 05/22/03 before C. Lynwood Smith, Jr., U. S. District Judge, CrtRptr Christina filed (DJG) (Entered: 06/06/2003)

07/08/2003

1015

ORDER amending the order of 7/8/02 by revising the authority, location and compensation of the appointed Receiver as further set out in this order filed ( by Judge C L. Smith Jr ) cm (KAM) (Entered: 07/08/2003)

07/11/2003 1016 Monthly Status Report for July 2003 re compliance w/paragraph 5 of the 12/18/00 order modifying City of Bham Consent Decree by dft Bham City of filed cs (KLL) (Entered: 07/14/2003)

07/16/2003

COURTROOM NOTES ( before Judge C L. Smith Jr ): STATUS CONFERENCE held - oral motion of receiver to withdraw motion to amend schedule for consent decree compliance [1012-1] - GRANTED (orally Judge Smith) CrtRptr Christina Decker (LCW) (Entered: 07/31/2003)

07/25/2003 1017 ORDER parties are to appear for next conference to be held at 9:30 am on 8/21/03 in Bham, AL filed ( by Judge C L. Smith Jr ) cm (KLL) (Entered: 07/25/2003)

08/12/2003 1018 TRANSCRIPT of status conference hearing had before Judge C L. Smith Jr on July 16, 2003, in Bham, AL filed - Court Reporter Christina K Decker (KLL) (Entered: 08/12/2003)

08/14/2003

1019

NOTICE of monthly status report for August 2003 regarding compliance w/paragraph 5 of the 12/18/03 order modifying the City of Bham consent decree filed by dft Bham City of cs (KLL) (Entered: 08/18/2003)

08/25/2003 1020 MOTION by intervenor Bryant, plaintiff Martin for attorney Olivia J Zach to appear pro hac vice filed cs (KLL) (Entered: 08/25/2003)

08/25/2003

PRO HAC VICE admission fee paid on 8/25/03 receipt # 500 53523 re Olivia J Zach (KLL) (Entered: 08/25/2003)

08/25/2003

1021

ORDER implementing receiver's revised proposed schedule: the receiver's revised proposed schedule is ratified, approved, and adopted by the court, further ordered that, on or before each date specified in att schedule, the receiver shall take the designated action filed ( by Judge C L. Smith Jr ) cm (KLL) (Entered: 08/25/2003)

08/25/2003 1022 ORDER granting motion for attorney Olivia J Zach to appear pro hac vice [1020-1] filed ( by Judge C L. Smith Jr ) cm (KLL) (Entered: 08/25/2003)

08/29/2003 1023 ORDER parties are directed to appear for next conference at 9:30 am on 9/18/03 in Bham, AL filed ( by Judge C L. Smith Jr ) cm (KLL) (Entered: 08/29/2003)

09/02/2003

1024 TRANSCRIPT of status conference hearing had before Judge C L. Smith Jr on August 21, 2003 , filed - Court Reporter Christina Decker (KLL) (Entered: 09/04/2003)

09/11/2003

1025

NOTICE of filing monthly status report for Sept 2003 re compliance w/paragraph 5 of the 12/18/03 order modifying the City of Bham Consent Decree filed by dft Bham City of cs (KLL) (Entered: 09/15/2003)

09/17/2003 1026 ORDER Status hearing scheduled for 9/18/03 has been rescheduled to 9:30 am on 9/25/03 in Bham, AL filed ( by Judge C L. Smith Jr ) cm (KLL) (Entered: 09/18/2003)

09/25/2003

DOCKET modification (utility event) terminating motion for due process hearing [979-1] (LCW) (Entered: 09/25/2003)

09/26/2003

1027

ORDER terminating motion for order holding dft City of Bham in civil contempt the request to withdraw is GRANTED and the motion is denied as moot[871-2] filed ( by Judge C L. Smith Jr ) cm (DJG) (Entered: 09/26/2003)

10/02/2003

1028 TRANSCRIPT of meeting of County Commissioners Hrg had before Judge C L. Smith Jr on 9/25/03, filed - Court Reporter Christina K Decker (KLL) (Entered: 10/02/2003)

10/02/2003 1029 TRANSCRIPT of status conf hrg had before Judge C L. Smith Jr on 9/25/03, filed - Court Reporter Christina K Decker (KLL) (Entered: 10/02/2003)

10/02/2003

1030 ORDER that parties are directed to appear for next Status conf to be held at 9:30 am on 10/16/03 in Bham, AL filed ( by Judge C L. Smith Jr ) cm (KLL) (Entered: 10/02/2003)

10/09/2003

1031

MONTHLY STATUS REPORT for October 2003 regarding compliance w/paragraph 5 of the 12/18/00 order modifying the City of Birmingham Consent Decree filed by defendant Bham City of cs (KLL) (Entered: 10/15/2003)

10/16/2003 1032 MOTION by receiver for reconsideration of motion for leave to investigate alternate accommodations filed cs (DJG) (Entered: 10/21/2003)

10/21/2003 1033 TRANSCRIPT of 10/16/03 Status conference before C. Lynwood Smith, Jr. CrtRptr Christina Decker filed (DJG) (Entered: 10/21/2003)

10/23/2003 1034 ORDER that any party that desires to respond to the receiver's motion for reconsideration 1032 must do so by 11/10/03 filed (by Judge C L. Smith Jr) cm (DRR) (Entered: 10/23/2003)

10/23/2003 1035 ORDER that the Pretrial scheduling conf is set for 9:30AM 12/18/03 in Birmingham filed (by Judge C L. Smith Jr) cm (DRR) (Entered: 10/23/2003)

11/10/2003 1036 MOTION by defendant to extend time to respond to Receiver's motion to explore outside space filed cs (DJG) (Entered: 11/12/2003)

11/12/2003 1037 ORDER granting motion to extend time to respond to Receiver's motion to explore outside space [1036-1] filed by Judge C L. Smith Jr ) cm (DRR) (Entered: 11/12/2003)

11/24/2003

1038 MOTION by defendant Jefferson Cty for leave to file response out of time to doc. no. 1032(motion of receiver) filed cs (LCW) (Entered: 11/24/2003)

11/25/2003

1039

ORDER granting motion for leave to file response out of time to doc. no. 1032(motion of receiver) [1038-1] ; Evidentiary hearing set for 12/28/03 in Birmingham, immediately following the monthly status conference which shall commence at 9:00 a.m.; further with discovery as more fully set out in the order, filed ( by Judge C L. Smith Jr ) cm (DJG) (Entered: 11/25/2003)

11/25/2003 1040 OPPOSITION by defendant Jefferson Cty to motion for reconsideration of motion for leave to investigate alternate accommodations [1032-1] filed cs (DJG) (Entered: 11/25/2003)

11/25/2003 1041 REPORT of receiver for November , 2003, filed by receiver cs (DJG) (Entered: 11/25/2003)

11/25/2003 1042 SUPPLEMENT to receivers monthly report for November, 2003, filed by Ronald R Sims (DJG) (Entered: 11/25/2003)

11/25/2003 1043 Letter from commission president Larry Langford to the receiver, together with its attchments, filed (DJG) (Entered: 11/25/2003)

12/01/2003 1044 MOTION by defendant for clarification of the order dated 11/25/03 filed cs (MNH) (Entered: 12/02/2003)

12/04/2003 1045 ORDER granting motion for clarification of the order dated 11/25/03 [1044-1] filed ( by Judge C L. Smith Jr ) cm (DJG) (Entered: 12/05/2003)

12/10/2003 1046 MOTION by Ronald R Sims to clarify the order of 7/8/02 filed cs (MNH) (Entered: 12/11/2003)

12/11/2003 1047 MOTION by miscellaneous to withdraw document [1032-1] motion for reconsideration filed cs (MNH) (Entered: 12/12/2003)

12/11/2003

1048

NOTICE filed by defendant Bham City of monthly satus report of 12/03 regarding compliance with paragraph 5 of the 12/18/00 order modifying the City of Birmingham consent decree cs (MNH) (Entered: 12/15/2003)

12/17/2003 1049 BRIEF pre hearing by receiver filed cs (DJG) (Entered: 12/18/2003)

12/18/2003

COURTROOM NOTES ( before Judge C L. Smith Jr ): Status hearing held on 12/18/03 CrtRptr Christina Decker (LCW) (Entered: 12/18/2003)

12/18/2003

COURTROOM NOTES ( before Judge C L. Smith Jr ): Evdentiary hearing before the Honorable C. Lynwood Smith, Jr. CrtRptr Christina Decker (LCW) (Entered: 12/18/2003)

12/23/2003 1050 ORDER granting motion to clarify the order of 7/8/02 [1046-1] filed ( by Judge C L. Smith Jr ) cm (MNH) (Entered: 12/23/2003)

01/07/2004 1051 ORDER directing parties to appear at the next conference in this action at 9:30am on 1/22/04 in Birmingham filed ( by Judge C L. Smith Jr ) cm (MNH) (Entered: 01/07/2004)

01/14/2004 1052 SUBMISSION of discovery by defendant, filed cs (MNH) (Entered: 01/15/2004)

01/14/2004 1053 NOTICE filed by miscellaneous Ronald R Sims of receivers position on auditing the personnel board cs (SPT) (Entered: 01/15/2004)

01/16/2004 1054 RESPONSE by defendant motion to clarify the order of 7/8/02 [1046-1] filed cs (MNH) (Entered: 01/20/2004)

01/16/2004 1057 NOTICE filed by Bham City of monthly status report of January pursuant to paragraph 5 of the 12/18/00 order cs (MNH) (Entered: 01/21/2004)

01/20/2004 1055 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 12/18/03 , filed - Court Reporter Christina Decker (MNH) (Entered: 01/20/2004)

01/20/2004 1056 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 12/18/03 , filed - Court Reporter Christina Decker (MNH) (Entered: 01/20/2004)

01/20/2004

1059 RESPONSE by John Seaman to Courts order [1050-1] seeking response to receivers motion for clairification filed cs (MNH) (Entered: 01/21/2004)

01/20/2004 1061 RESPONSE by Jefferson Cty to Personnel Board's Submission on expenses filed cs (MNH) (Entered: 01/21/2004)

01/20/2004 1062 NOTICE filed by plaintiff of amended certificate of service cs (MNH) (Entered: 01/21/2004)

01/20/2004 1063 RESPONSE by Joyce G Smith, Barbara S Carmichael order for response to receiver's motion for clarification, [1050-1] filed cs (DJG) (Entered: 01/22/2004)

01/20/2004

1064 NOTICE of appearance for respondents Joyce G. Smitha nd Barabara D. Carmichael, attorneys Graffeo and Saxon, by filed cas (DJG) (Entered: 01/22/2004)

01/21/2004 1058 ORDER response to evidentuary submissions should be filed by 2/20/04, any responses are due 3/12/04 filed ( by Judge C L. Smith Jr ) cm (MNH) (Entered: 01/21/2004)

01/21/2004 1060 RESPONSE by Ronald R Sims motion to clarify the order of 7/8/02 [1046-1] filed cs (MNH) (Entered: 01/21/2004)

01/28/2004 1065 ORDER ; In-court hearing set for 9:30 2/19/04 in Birmingham filed ( by Judge C L. Smith Jr ) cm (MNH) (Entered: 01/28/2004)

02/09/2004 1066 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 1/22/04 , filed - Court Reporter Christina Decker (MNH) (AHI, ). (Entered: 02/10/2004)

02/11/2004 1067 RESPONSE by dft Jefferson Cty pursuant to paragraph 8 of the 12/18/00 order, filed cs (DJG) (Entered: 02/12/2004)

02/11/2004 1068 MOTION by Ronald R Sims for order to set deadline for objections to police/sheriff's sergeant selection procedure filed cs (DJG) (Entered: 02/12/2004)

02/20/2004 1069 SUBMISSION of discovery by Ronald R Sims filed cs (MNH) (Entered: 02/23/2004)

02/23/2004 1070 MEMORANDUM opinion filed ( by Judge C L. Smith Jr ) cm (DJG) (Entered: 02/23/2004)

02/23/2004 1071 ORDER granting motion to clarify the order of 7/8/02 [1046-1] filed ( by Judge C L. Smith Jr ) cm (DJG) (Entered: 02/23/2004)

02/27/2004 1072 MOTION by defendant to withdraw attorney Charlie D Waldrep filed cs (MNH) (Entered: 03/01/2004)

03/02/2004

1073

ORDER that any objections to the proposed selection proceedure and use of the selection proceedure to select and rank candidates for the promotion in the Jefferson Co Sheriffs Dept and the various police depts be served by the Personnel Board of Jefferson Co shall be filed on or before 3/15/04 filed ( by Judge C L. Smith Jr ) cm (MNH) (Entered: 03/02/2004)

03/02/2004 1074 ORDER ; In-court hearing set for 9:30 3/18/04 filed ( by Judge C L. Smith Jr ) cm (MNH) (Entered: 03/02/2004)

03/09/2004

1075 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 2/19/04 , filed - Court Reporter Christina Decker (MNH) (AHI, ). (Entered: 03/09/2004)

03/12/2004 1076 RESPONSE (status report) by defendant City of Birmingham to order [708-1] regarding complaince with paragraph 5 of the 12/18/00 orderfiled cs (DJG) (Entered: 03/15/2004)

03/15/2004 1077 OBJECTIONS by plaintiff Wilks Class to receiver's selection procedure for police/deputy Sheriff Seargant filed cs (DJG) (Entered: 03/16/2004)

03/25/2004 1078 RESPONSE by intervenor Bryant, plaintiff Martin to objection of Wilks Class Sergeant [1077-1] filed cs (MNH) (Entered: 03/25/2004)

04/02/2004 1079 NOTICE of appearance for Jim Woodward by Charlie D Waldrep, Tammy C Woolley filed cs (DJG) (Entered: 04/06/2004)

04/05/2004 1081 MOTION by defendant Jim Woodward to withdraw attorney Albert L Jordan filed cs (MNH) (Entered: 04/07/2004)

04/06/2004 1080 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 3/18/04 , filed - Court Reporter Christina Decker (MNH) (AHI, ). (Entered: 04/06/2004)

04/07/2004 1082 ORDER ; In-court hearing set for 9:30 4/15/04 in the Ceremonial Courtroom in Birmingham filed ( by Judge C L. Smith Jr ) cm (MNH) (Entered: 04/07/2004)

04/08/2004

1083

NOTICE of monthly status report for April 2004 regarding compliance with paragraph 5 of the Dec 18, 2000 order modifying the consent decree filed by defendant Bham City of cs (MNH) (Entered: 04/12/2004)

04/12/2004

1084

ORDER striking attorney notice of appearance [1079-1] terminating motion to withdraw attorney; attorney Michelle Obradovic granted; attorney Myron Dean Granted and attorney Charlie Waldres denied as to Jefferson County Personnel Board [1072-1] denying to withdraw attorney Albert L Jordan [1081-1] filed ( by Judge C L. Smith Jr ) cm (DJG) (Entered: 04/12/2004)

04/14/2004

1085

MOTION by USA, Bham City of, Jefferson Cty Per Bd, Martin, Bryant for order to modify paragraph 16 of the 1981 Jefferson County Personnel Board Decree and Paragraph 20 of the 1981 City of Birmingham Decree filed cs (DJG) (Entered: 04/16/2004)

04/14/2004

1086

BRIEF by USA, Bham City of, Jefferson Cty Per Bd, Martin, Bryant in support of the joint motion to modify paragraph 16 of the 1981 Jefferson Co. Personnel Board Decree and paragraph 20 of the 1981 City of Birmingham Decree, filed cs (DJG) (Entered: 04/16/2004)

04/16/2004

1087

ORDER granting motion for order to modify paragraph 16 of the 1981 Jefferson County Personnel Board Decree and Paragraph 20 of the 1981 City of Birmingham Decree [1085-1] filed ( by Judge C L. Smith Jr ) cm (DJG) (Entered: 04/16/2004)

04/20/2004 1088 NOTICE of appearance for Personnel Bd of Jeff by Kenneth O Simon, David Walston filed cs (DJG) (Entered: 04/21/2004)

04/22/2004

1089 ORDER ; In-court hearing set for 9:30 5/20/04 to take place in Birmingham at the Robert S. Vance Federal Building filed ( by Judge C L. Smith Jr ) cm (MNH) (Entered: 04/22/2004)

04/22/2004

1090

ORDER overruling objection [1077-1] for the reasons set out in the response filed by the Martin/Bryant parties, which the court adopts as the opinion of the court as further set out in the order filed ( by Judge C L. Smith Jr ) cm (MNH) (Entered: 04/22/2004)

04/26/2004 1091 NOTICE of appearance for defendant Sheriff by attorneys Charlie Waldrep and Tammy Woolley, by filed cs (DJG) (Entered: 04/27/2004)

04/27/2004 1092 MOTION by defendant to withdraw attorney Albert L Jordan , filed cs (MNH) (Entered: 04/28/2004)

04/29/2004

1093 - ORDER granting motion to withdraw attorney Albert L Jordan [10921] attorney Albert L Jordan for Jim Woodward, granting motion [10922] ( by Judge C L. Smith Jr ) entered cm (MNH) (Entered: 04/30/2004)

04/30/2004 1094 ORDER that no status conference will be conducted during the month of June, 2004, filed ( by Judge C L. Smith Jr ) cm (DJG) (Entered: 04/30/2004)

05/07/2004 1095 MOTION by plaintiff for order requiring submission of a plan to bring this case to resolution filed cs (DJG) (Entered: 05/10/2004)

05/10/2004 1096 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 4/15/04 , filed - Court Reporter Christina Decker (MNH) (AHI, ). (Entered: 05/10/2004)

05/13/2004 1097 NOTICE of monthly status reports filed by defendant Bham City of cs (MNH) (Entered: 05/14/2004)

05/20/2004

1098

CROSS-MOTION by intervenor Bryant, plaintiff Martin for extention of the Personnel Boards consent decree and repsonse to Wilk's class motion for orders requiring submission of a plan to bring this case to resolution filed cs (MNH) (Entered: 05/20/2004)

05/21/2004

1099

ORDER,any parties want ing to repsond to the motion for submission of a plan to bring this case to resolution and cross-motion for extension of the Personnel Boards consent decree filed ( by Judge C L. Smith Jr ) cm (MNH) (Entered: 05/21/2004)

05/21/2004 1100 ORDER ; In-court hearing set for 9:30 7/15/04 in Huntsville filed ( by Judge C L. Smith Jr ) cm (MNH) (Entered: 05/21/2004)

05/21/2004

1101

ORDER i the court invites the parties to submit seperate proposals suggesting how the court should conclude the receivership of the Jefferson County Personnel Board. The proposed transititon plans should be filed with the court not later than 7/8/04 filed ( by Judge C L. Smith Jr ) cm (MNH) (Entered: 05/21/2004)

06/04/2004 1102 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 5/20/04 , filed - Court Reporter Christina Decker (MNH) (AHI, ). (Entered: 06/04/2004)

06/09/2004

1103 ORDER order of 5/21/04 is amended, sua sponte as follows. Proposed transition plans submitted bya ny party should be filed on or before 6/6/04, receiver is directed to submit such plan on or by 7/12/04 as more

fully set out in the order filed ( by Judge C L. Smith Jr ) cm (MNH) (Entered: 06/09/2004)

06/23/2004

1104 RESPONSE by defendant motion for order requiring submission of a plan to bring this case to resolution [1095-1] filed cs (MNH) (Entered: 06/24/2004)

06/25/2004 1105 RESPONSE by defendant Jefferson Cty motion for order requiring submission of a plan to bring this case to resolution [1095-1] filed cs (MNH) (Entered: 06/28/2004)

06/30/2004

1106

RESPONSE by plaintiff USA motion for extention of the Personnel Boards consent decree [1098-1], motion for order requiring submission of a plan to bring this case to resolution [1095-1] filed cs (MNH) (Entered: 06/30/2004)

06/30/2004 1107 MEMORANCUM in response to filings by the Wilks Class and MartinBryant parties by the receiver filed cs (DJG) (Entered: 07/01/2004)

06/30/2004 1108 RESPONSE by Wilks Class motion for extention of the Personnel Boards consent decree [1098-1] filed cs (DJG) (Entered: 07/01/2004)

06/30/2004

1109 RESPONSE by defendant Jefferson Cty Per Bd to Martin/Bryants cross-motion for extention of the Personnel Boards consent decree [1098-1] filed cs (MNH) (Entered: 07/02/2004)

07/06/2004 1110 NOTICE of transition plan submission filed by defendant Jefferson Cty Per Bd cs (MNH) (Entered: 07/07/2004)

07/06/2004 1111 NOTICE of submission plan for concluding receivership filed by plaintiff Wilks Class cs (MNH) (Entered: 07/07/2004)

07/06/2004

1113 MOTION by defendant Bham City of for order to terminate The City of Birmingham consent decree and to dimsiss City as a party filed cs (MNH) (Entered: 07/08/2004)

07/06/2004 1116 RESPONSE by Joyce G Smith, Barbara S Carmichael order [1103-1] filed cs (MNH) (Entered: 07/08/2004)

07/07/2004 1112 NOTICE of compliance by intervenor Bryant, plaintiff Martin with order [1103-1] filed cs (MNH) (Entered: 07/07/2004)

07/07/2004 1114 NOTICE of monthly status report for July 2004 filed by Bham City of cs (MNH) (Entered: 07/08/2004)

07/07/2004

1115 BRIEF in support of motion for an order to terminate City of Birmingham's consent decree and to dismiss City as a party by defendant Bham City of filed cs (MNH) (Entered: 07/08/2004)

07/12/2004 1117 RESPONSE by defendant Jefferson Cty Per Bd to compliance notice [1112-1], the proposed transition plan by interveanors Martin & Bryant filed cs (MNH) (Entered: 07/13/2004)

07/12/2004 1118 NOTICE of proposed transitition plan filed by miscellaneous Ronald R Sims cs (MNH) (Entered: 07/13/2004)

07/13/2004

1119

ORDER amended by the present order and orders entered on July 30, 2002 and the July 8, 2003 the complete, revised text of paragraph 6 of the receivership order is amended as more fully set out in the order filed( by Judge C L. Smith Jr ) cm (MNH) (Entered: 07/14/2004)

07/16/2004

1120

ORDER any party desiring to conduct discovery in connection with the motion to termintate consent decree [1113-1] should do so by 8/27/04. Written responses shall be filed on or before 9/3/04, the City's reply if any shall be filed on or before 9/10/04 at which time the motion shall be deemed submitted to the court for decision filed ( by Judge C L. Smith Jr ) cm (MNH) (Entered: 07/16/2004)

07/23/2004 1121 ORDER ; Status conference to be held on 9:30 8/19/04 in Huntsville, before Judge Smith,filed ( by Mag-Judge Harwell G. Davis III ) cm (DJG) (Entered: 07/23/2004)

07/28/2004 1122 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on July 15, 2004 , filed - Court Reporter Christina Decker (MNH) (AHI, ). (Entered: 07/28/2004)

08/10/2004

1123

ORDER counsel for the Jefferson County, Alabama is ordered to obtain and file with the court an original copy of the report of Auburn University's Center for Governmental Service which were reported in the 8/8/04 edition of the Birmingham News in a article entitiled "AUStudy Finds Flaws in Jeffco Govenment" filed ( by Judge C L. Smith Jr ) cm (MNH) (Entered: 08/10/2004)

08/12/2004 1124 NOTICE of monthly status report for August 2004 filed by defendant Bham City of cs (MNH) (Entered: 08/13/2004)

08/17/2004 1125 MOTION by plaintiff Wilks Class to extend time to respond to motion to terminate consent decree filed cs (MNH) (Entered: 08/18/2004)

08/19/2004 1126 1125 - ORDER granting motion to extend time to respond to motion to terminate consent decree [1125-1] ( by Judge C L. Smith Jr ) entered cm (DJG) (Entered: 08/25/2004)

08/30/2004 1127 ORDER ; Status hearing to be held on 9:30 9/16/04 in Huntsville filed ( by Judge C L. Smith Jr ) cm (DJG) (Entered: 08/30/2004)

08/30/2004

1128

COMMENTS by Receiver to proposed plan to transition authority over personnelBoard fromreceiver to three-member board and recommendations concerning personnel board, notice [1118-1] filed cs (DJG) (Entered: 08/31/2004)

08/31/2004

1129

RESPONSE by Jefferson Cty Per Bd to the proposed plan for transition of authority over personnel board from receiver to three emeber board and recommendations concerngin personnel board [1118-1] filed cs (DJG) (Entered: 09/01/2004)

09/10/2004

1130

NOTICE of proposed plan for transition of authority over Personnel Board from receiver to three member board, w/proposed order attached filed by Bryant, Martin, Wilks Class cs (MNH) Modified on 09/13/2004 (Entered: 09/13/2004)

09/10/2004 1131 NOTICE of recommendations concerning Personnel Board filed by Bryant, Martin, Wilks Class cs (MNH) (Entered: 09/13/2004)

09/15/2004

1132

ORDER approving and adopting proposed transition plan of authority over the personnel board from receiver to the three member board as more fully set out in the order filed ( by Judge C L. Smith Jr ) cm (MNH) (Entered: 09/15/2004)

09/15/2004 1133 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 8/18/04 , filed - Court Reporter C. Decker (MNH) (AHI, ). (Entered: 09/15/2004)

09/15/2004 1134 MOTION by movant John Seaman for order requiring the receiver to serve counsel for John Seaman on all relevant pleadings filed cs (MNH) (Entered: 09/20/2004)

09/22/2004 1135 AMENDED ORDER adopting transition plan filed ( by Judge C L. Smith Jr ) cm (MNH) (Entered: 09/22/2004)

09/28/2004

DOCKET modification (utility event) terminating motion to withdraw document [1032-1] motion for reconsideration [1047-1], terminating motion for reconsideration of motion for leave to investigate alternate accommodations [1032-1] (LCW) (Entered: 09/28/2004)

09/28/2004 1136 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 9/15/04 , filed - Court Reporter C. Decker (MNH) (AHI, ). (Entered: 09/28/2004)

09/30/2004

1137 RESPONSE by intervenor, plaintiff motion for order to terminate The City of Birmingham consent decree and to dimsiss City as a party [1113-1] filed cs (MNH) (Entered: 09/30/2004)

10/04/2004 1138 CROSS-MOTION by plaintiff for order modifying the remedial orders governing the City of Birmingham's employment practices filed cs (MNH) Modified on 10/05/2004 (Entered: 10/05/2004)

10/04/2004 1140 OPPOSITION by plaintiff Wilks Class to motion for order to terminate The City of Birmingham consent decree and to dimsiss City as a party [1113-1] filed cs (MNH) (Entered: 10/05/2004)

10/05/2004

1139 RESPONSE by USA motion for order to terminate The City of Birmingham consent decree and to dimsiss City as a party [1113-1] filed cs (MNH) (Entered: 10/05/2004)

10/05/2004 1141 ORDER Conference set for 9:30 10/21/04 in Huntsville filed ( by Judge C L. Smith Jr ) cm (MNH) (Entered: 10/05/2004)

10/05/2004 1142 MOTION by defendant to amend or vacate certain language in the other adopting transition plan filed cs (MNH) (Entered: 10/06/2004)

10/08/2004 1156 OPPOSITION by Bham City of to motion to extend time to respond to motion to terminate consent decree [1125-1] filed cs (MNH) (Entered: 11/10/2004)

10/12/2004 1143 ORDER denying motion to amend the transition plan [1142-1] filed ( by Judge C L. Smith Jr ) cm (DJG) (Entered: 10/12/2004)

10/12/2004 1144 ORDER denying motion for order requiring the receiver to serve counsel for John Seaman on all relevant pleadings [1134-1] filed ( by Judge C L. Smith Jr ) cm (DJG) (Entered: 10/12/2004)

10/12/2004

1145

ORDER on cross-motion filed by the Wilks Class for modification of the remedial orders governing the City of Birmingham's employment practices (doc no 1138) ; Cs Mgmt ddl 10/25/04 for any perty to respond to the motion filed ( by Judge C L. Smith Jr ) cm (DJG) (Entered: 10/12/2004)

10/12/2004 1146 MOTION by Bham City of to extend time to file responses to the Wilks Class' Opposition to the City of Birmingham motion to terminate consent decree filed cs (DJG) (Entered: 10/13/2004)

10/13/2004

1147

1146 - ORDER granting motion to extend time to file responses to the Wilks Class' Opposition to the City of Birmingham motion to terminate consent decree [1146-1] ( by Judge C L. Smith Jr ) entered cm (DJG) (Entered: 10/13/2004)

10/14/2004 1148 NOTICE of monthly staus report filed by defendant's City of B'ham cs (MNH) (Entered: 10/18/2004)

10/15/2004 1150 BRIEF in response to Wilks Class opposition to City of Birmingham 's motion to terminate consent decree and to be dismissed as a party by defendant City of B'ham filed cs (MNH) (Entered: 10/19/2004)

10/18/2004

1149

MOTION by Bryant & Martin to extend time to file a repsonse to Wilk's Class Cross-Motion for Mod of remedial Orders Governing the City of B'hams employment practices filed cs (MNH) (Entered: 10/18/2004)

10/20/2004

1151

- ORDER granting motion to extend time to file a repsonse to Wilk's Class Cross-Motion for Mod of remedial Orders Governing the City of B'hams employment practices [1149-1] ( by Judge C L. Smith Jr ) entered cm (MNH) (Entered: 10/21/2004)

10/28/2004

1152 TRANSCRIPT of proceedings had before Judge C L. Smith Jr on 10/21/04 , filed - Court Reporter Christina Decker (MNH) (AHI, ). (Entered: 10/28/2004)

11/05/2004

1153

ORDER Setting next conference for 9:30 12/2/04 in Birmingham, oral argument on the motion by City of Birmingham to terminate consent decree, and the cross- motion by Wilks Class will be heard immediately following, etc filed ( by Judge C L. Smith Jr ) cm (MNH) (Entered: 11/05/2004)

11/08/2004 1154 OPPOSITION by Bryant, Martin to motion for order modifying the remedial orders governing the City of Birmingham's employment practices [1138-1] filed cs (MNH) (Entered: 11/08/2004)

11/08/2004

1155 RESPONSE by USA to opposition to cross-motion for the modfication and extension of the City's consent decree [1140-1] filed cs (MNH) (Entered: 11/08/2004)

11/19/2004 1157 MOTION for order adopting revised transition plan with proposed order attached by Bryant, Martin, Wilks Class. (MNH, ) (Entered: 11/19/2004)

11/23/2004

1158 NOTICE by Personnel Board of Jefferson County of filing of Job descriptions as required by transition plan (MNH, ) (Entered: 11/29/2004)

12/01/2004 1159 NOTICE of objection of th three member board to revised plan for transition of authority (MNH, ) (Entered: 12/02/2004)

12/01/2004

1160 NOTICE of Appearance by Theodore A Lawson, II on behalf of Jefferson Cty, Jefferson Cty(as per conversation w/assistant, an amd appr will be filed to reflect the correct appr for Jefferson County,

instead of the pla as stated in the attached doc) (MNH,) (Entered: 12/02/2004)

12/02/2004

1161 JOINT STIPULATION regarding City selections in seven job classifications by Bham City of, Bryant, Martin, Wilks Class. (MNH, ) (Entered: 12/03/2004)

12/09/2004 1162 ORDER extending City of Birmingham's 1981 Consent Decree and 1995 Modification Order as more fully set out in the order. Signed by Judge C Lynwood Smith Jr on 12/9/04. (JRP, ) (Entered: 12/09/2004)

12/09/2004 1163 ORDER adopting revised transition plan. Signed by Judge C Lynwood Smith Jr on 12/9/04. (MNH, ) (Entered: 12/09/2004)

01/03/2005 1164 ORDER setting status conference for Thursday, January 20, 2005, in Birmingham, as further set out in order. Signed by Judge C Lynwood Smith Jr on 1/3/05. (JRP, ) (Entered: 01/03/2005)

01/05/2005 1165 STATUS REPORT of Three-Member Board Re: Personnel Director Search by Jefferson County Personnel Board. (Simon, Kenneth) (Entered: 01/05/2005)

01/06/2005

1168 TRANSCRIPT of Proceedings held on 12/2/04 before Judge Smith. Court Reporter: Christina Decker. [Contact court reporter for copy of transcript] (MNH, ) (Entered: 01/14/2005)

01/10/2005 1166 NOTICE by Bham City of Filing of Expert Report (Attachments: # 1 Exhibit City of Birmingham Expert Report)(Yuengert, Anne) (Entered: 01/10/2005)

01/12/2005

1167

ORDER that the Wilks Class is directed to file its expert report on or before January 24, 2005; any other party that desires to submit an expert report shall do so on or before February 7, 2005; additionally, the City shall submit its reply to the Wilks Class report, if any, on or before February 7, 2005; The court's Special Master shall submit a report on or before February 18, 2005 as more fully set out; Further that on or before February 7, 2005, the parties are directed to file briefs addressing the contention of the Wilks Class that parargraph 8 of the 1995 modification order places on the City of Birmingham the evidentiary bruden of demonstrating the absence of adverse impact; reply briefs shall be filed on or before February 18, 2005, at which time the motion filed by the City of Birmingham and the cross-motion filed by the Wilks Class will be deemed submitted. Signed by Judge C Lynwood Smith Jr on 1/11/2005. (LCW, ) (Entered: 01/12/2005)

01/14/2005 1169 First MOTION for Protective Order Motion to Direct the Parties to Maintain the Confidentiality of Information Concerning Personnel

Director Candidates by Jefferson County Personnel Board. (Simon, Kenneth) (Entered: 01/14/2005)

01/18/2005

1170 Joint MOTION to Bifurcate Submitting Objections to Board's Rounding of Scores to Court for Resolution by Bryant, Martin. (Vrabel, Mary) (Entered: 01/18/2005)

01/18/2005 1171 AFFIDAVIT in Support of Joint Motion Submitting Objections to Board's Rounding of Scores to Court for Resolution by Bryant, Martin. (Vrabel, Mary) (Entered: 01/18/2005)

01/24/2005

ORDER granting 1170 Motion to Bifurcate. The Martin/Bryant parties are directed to file their submission on the rounding issue on or before January 28, 2005. The Receiver and any other party who desires to respond shall do so on or before February 9, 2005. The Martin/Bryant parties are directed to file their reply on or before February 16, 2005. The Special Master shall review the parties' submissions and submit his report on or before February 22, 2005 . Signed by Judge C Lynwood Smith Jr on 1/24/2005. (JRP, ) (Entered: 01/24/2005)

01/24/2005

1172

NOTICE by Wilks Class re 1167 Order,,, Notice of Filing of Expert Report of J. Michael Hardin, Ph.D., dated January 24, 2005 (Attachments: # 1 Report of Wilks Class Expert)(Brown, Gary) (Entered: 01/24/2005)

01/27/2005 1173 TRANSCRIPT of Proceedings held on 1/20/05 before Judge Smith. Court Reporter: Christina Decker. [Contact court reporter for copy of transcript] (MNH, ) (Entered: 01/27/2005)

01/27/2005

ORDER Counsel for the parties are directed to appear for the next conference in this action at 9:30 a.m., Wednesday, February 23, 2005. The conference will be conducted in the United States Courthouse at 101 Holmes Avenue, Huntsville, Alabama. Signed by Judge C Lynwood Smith Jr on 1/27/2005. (JRP, ) (Entered: 01/27/2005)

01/27/2005

1174 MOTION to Exclude Portions of City Report on Adverse Impact re 1166 Notice (Other) by Wilks Class. (Brown, Gary) (Entered: 01/27/2005)

01/28/2005

ORDER re 1174 MOTION to Exclude Portions of City Report on Adverse Impact re 1166 Notice (Other) filed by Wilks Class. Any party that desires to respond to the motion shall do so on or before Wednesday, February 2, 2005, so that the court may rule on the motion in advance of the previously established February 7, 2005 deadline for submissions pertaining to the City classifications. Signed by Judge C Lynwood Smith Jr on 1/28/2005. (JRP, ) (Entered: 01/28/2005)

01/28/2005 1175 AFFIDAVIT Affidavit of Kathleen K. Lundquist In Support of Martin/Bryant Parties' Memorandum by Bryant, Martin. (Vrabel, Mary) (Entered: 01/28/2005)

01/29/2005 1176 Brief Martin/Bryant Parties' Memorandum in Support of Their Objections to Board's Rounding of Scores. (Vrabel, Mary) (Entered: 01/29/2005)

01/29/2005

1177 AFFIDAVIT of Mary Beth Vrabel in Support of Martin/Bryant Parties' Memorandum (Part 1) by Bryant, Martin. (Vrabel, Mary) (Entered: 01/29/2005)

01/29/2005 1178 AFFIDAVIT of Mary Beth Vrabel in Support of Martin/Bryant Parties' Memorandum (Part 2) by Bryant, Martin. (Vrabel, Mary) (Entered: 01/29/2005)

01/29/2005

1179 AFFIDAVIT of Mary Beth Vrabel in Support of Martin/Bryant Parties' Memorandum (Part 3) by Bryant, Martin. (Vrabel, Mary) (Entered: 01/29/2005)

01/29/2005 1180 AFFIDAVIT of Mary Beth Vrabel in Support of Martin/Bryant Parties' Memorandum (Part 4) by Bryant, Martin. (Vrabel, Mary) (Entered: 01/29/2005)

02/01/2005

1181

RESPONSE in Opposition re 1174 MOTION to Exclude Portions of City Report on Adverse Impact re 1166 Notice (Other) filed by United States of America. (Attachments: # 1 Exhibit Exhibits to U.S. Opposition to Wilks Class Motion)(Thawley, Barbara) (Entered: 02/01/2005)

02/02/2005 1182 MOTION for Extension of Time to File Brief by United States of America. (Adelstein, Jay) (Entered: 02/02/2005)

02/02/2005 1183 RESPONSE in Opposition re 1174 MOTION to Exclude Portions of City Report on Adverse Impact re 1166 Notice (Other) filed by Bham City of. (Yuengert, Anne) (Entered: 02/02/2005)

02/02/2005

1184 Opposition to re 1174 Wilks Class' Motion To Exclude Portions of City Report on Adverse Impact filed by Bryant, Martin. (Vrabel, Mary) (Entered: 02/02/2005)

02/03/2005

1185

REPLY to Response to Motion re 1174 MOTION to Exclude Portions of City Report on Adverse Impact re 1166 Notice (Other) Doc. nos. 1181, 1183, 1184 filed by Wilks Class. (Brown, Gary) (Entered: 02/03/2005)

02/03/2005

ORDER granting in part and denying in part 1182 Motion for Extension of Time to file briefs -- in particular, the motion is granted only to the extent that the parties shall file their briefs on or before February 9, 2005, and shall file reply briefs, if any, on or before February 22, 2005. Signed by Judge C Lynwood Smith Jr on 2/3/2005. (JRP, ) (Entered: 02/03/2005)

02/04/2005

1186

ORDER entered on 1174 motion to exclude portions of City's expert; denying to the extent that those portitons of the report data not contained in the parties stipulation, but already before the court in connection with the evidentiary hearings during June of 2001 will not be excluded, as more fully stated in the order . Signed by Judge C Lynwood Smith Jr on 2/4/05. (MNH, ) (Entered: 02/04/2005)

02/07/2005

1187 NOTICE by United States of America of Filing Expert Report (Attachments: # 1 U.S. Expert Report with Exhibits)(Adelstein, Jay) (Entered: 02/07/2005)

02/07/2005 1188 NOTICE by Bryant, Martin of Filing Expert Report (Attachments: # 1 Expert Report of Dr. Kathleen K. Lundquist)(Vrabel, Mary) (Entered: 02/07/2005)

02/07/2005 1189 NOTICE by Bham City of re 1167 Order,,, Filing of Responsive Expert Report (Attachments: # 1 # 2 Appendix # 3 Appendix)(Yuengert, Anne) (Entered: 02/07/2005)

02/09/2005 1190 Brief of Wilks Class on Burden of Proof Issue. (Attachments: # 1 Exhibit Martin/Bryant parties' brief# 2 Exhibit City brief# 3 Exhibit USA brief)(Cooper, Jimmy) (Entered: 02/09/2005)

02/09/2005

1191

Brief re 1176 Brief in Response to Martin/Bryant Parties' "Objections to Board's Rounding of Scores". (Attachments: # 1 Exhibit Report of James C. Sharf, Ph.D.# 2 Exhibit Jefferson County Personnel Board Rule 3.10)(Brown, Gary) (Entered: 02/09/2005)

02/09/2005 1192 Brief of U.S. Concerning the Parties' Burdens of Proof. (Thawley, Barbara) (Entered: 02/09/2005)

02/09/2005 1193 Brief re 1176 Brief IN RESPONSE TO OBJECTIONS BY THE MARTIN-BRYANT PARTIES filed by Ronald R Sims. (Dettling, Aaron) (Entered: 02/09/2005)

02/09/2005

1194

NOTICE by Ronald R Sims re 1193 Brief OF FILING OF EVIDENTIARY SUBMISSION (Attachments: # 1 Rating Scales For Use In Job Analysis# 2 Structured Interview Methodology# 3 Report of Neal Schmitt--Revenue Examiner and Zoning Inspector# 4 Neal Schmitt Expert Report--Caliber Jobs# 5 Neal Schmitt Expert Report--Jeanneret

Jobs# 6 Neal Schmitt Expert Report--Internal Jobs# 7 Expert Report of P. R. Jeanneret# 8 Expert Report of Leaetta M. Hough# 9 Expert Report of Paul J. Hanges)(Dettling, Aaron) (Entered: 02/09/2005)

02/09/2005 1195 Brief concerning burden of proof filed by Bham City of. (Yuengert, Anne) (Entered: 02/09/2005)

02/09/2005 1196 Brief Martin/Bryant Parties' Memorandum on the Burden of Proof. (Vrabel, Mary) (Entered: 02/09/2005)

02/09/2005

1197

AFFIDAVIT of Rowan D. Wilson in Support of Martin/Bryant Parties' Memorandum on the Burden of Proof (Part 1) by Bryant, Martin. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 #(10) #(11) # 12)(Vrabel, Mary) (Entered: 02/09/2005)

02/10/2005

1198 MOTION to Amend/Correct 935 Order,, To amend Paragraph 6 of July 8, 2002 Order by Ronald R Sims. (Dettling, Aaron) Additional attachment(s) added on 2/11/2005 (MNH, ). (Entered: 02/10/2005)

02/15/2005 1199 NOTICE of Appearance by Sharon D Simmons on behalf of United States of America (Simmons, Sharon) (Entered: 02/15/2005)

02/15/2005

1200

NOTICE by Wilks Class of Filing Expert Report of J. Michael Hardin (Attachments: # 1)(Brown, Gary) Modified on 2/16/2005 (MNH, ). Modified on 2/16/2005 (MNH, ). Modified on 2/16/2005 (MNH, ). (Entered: 02/15/2005)

02/16/2005 1201 Brief Martin/Bryant Parties' Reply Brief in Further Support of Their Objections to the Board's Rounding of Scores. (Vrabel, Mary) (Entered: 02/16/2005)

02/17/2005

1202 REPORT on Adverse Impact in the City of Birmingham's Selection of Candidates from Employee Certificates by John G Veres, III. (MNH, ) (Entered: 02/17/2005)

02/18/2005

1203

REPLY Brief filed by Plaintiff United States of America re: 1167 Order,,, Concerning Burdens of Proof (Paragraph 8 of Mod Order) filed by United States of America. (Adelstein, Jay) (Entered: 02/18/2005)

02/21/2005 1204 REPLY Brief filed by Intervenor Bryant, Plaintiff Martin re: 1167 Order,,, on the Burden of Proof filed by Bryant, Martin. (Vrabel, Mary) (Entered: 02/21/2005)

02/22/2005 1205 REPORT on Rounding Proceedures by John G Veres, III. (MNH, ) (Entered: 02/22/2005)

02/22/2005 1206 AFFIDAVIT re 1196 Brief in response to Affidavit of Rowan D. Wilson by Wilks Class. (Fitzpatrick, Raymond) (Entered: 02/22/2005)

02/22/2005 1207 Brief re 1167 Order,,, Wilks Class' Reply Brief on the Burden of Proof. (Cooper, Jimmy) (Entered: 02/22/2005)

02/22/2005 1208 REPLY Brief filed by Defendant Bham City of re: 1190 Brief by Wilks Class on Burden of Proof filed by Bham City of. (Yuengert, Anne) (Entered: 02/22/2005)

03/02/2005

1209

Second MOTION to Amend/Correct 1130 Notice (Other) 2nd Revised Proposed Plan for Transition of Authority Over Personnel Board from Receiver to Three-Member Board by Jefferson County Personnel Board. (Attachments: # 1 Text of Proposed Order Adopting 2nd Revised Transition Plan)(Simon, Kenneth) (Entered: 03/02/2005)

03/10/2005

1210 MOTION for Protective Order Motion for Entry of Confidentiality Order by Jefferson County Personnel Board. (Attachments: # 1 Exhibit A)(Simon, Kenneth) (Entered: 03/10/2005)

03/10/2005

1211

Second MOTION for Protective Order Motion for Entry of Confidentiality Order w/corrected Order by Jefferson County Personnel Board. (Attachments: # 1 Exhibit A)(Simon, Kenneth) (Entered: 03/10/2005)

03/18/2005

ORDER finding as moot 1210 Motion for Protective Order - Motion superseded by document no. 1211. Signed by Judge C Lynwood Smith Jr on 3/17/2005. (ADS) (Entered: 03/18/2005)

03/18/2005

ORDER granting 1211 Motion for Protective Order - Confidentiality Order Concerning Personnel Director Candidates will be entered on even date herewith. Signed by Judge C Lynwood Smith Jr on 3/18/2005. (ADS) (Entered: 03/18/2005)

03/18/2005 1212 Confidentiality Order Concerning Personnel Director Candidates. Signed by Judge C Lynwood Smith Jr on 3/18/2005. (ADS) (Entered: 03/18/2005)

03/18/2005 1213 ORDER Adopting Second Revised Transition Plan. Signed by Judge C Lynwood Smith Jr on 3/18/05. (Attachments: # 1 Exhibit A)(MNH, ) (Entered: 03/18/2005)

03/18/2005

1214 ORDER granting 1198 MOTION to Amend/Correct Paragraph 6 of July 8, 2002 Order 935 . Signed by Judge C Lynwood Smith Jr on 3/18/2005. (ADS) (Entered: 03/18/2005)

03/18/2005

1215

ORDER overruling and denying objections of the Martin-Bryant parties to the Receiver's decision to round candidates' z scores to the 0.1 digit . Signed by Judge C Lynwood Smith Jr on 3/18/2005. (ADS, ) (Entered: 03/18/2005)

03/18/2005

1216

MEMORANDUM OPINION regarding objections of Martin-Bryant parties to Receiver's decision to round candidates' standard scores to the 0.1 digit. Signed by Judge C Lynwood Smith Jr on 3/18/2005. (ADS) (Entered: 03/18/2005)

04/05/2005

1217

ORDER setting Status Conference for 4/21/2005 09:30 AM at the United States District Courthouse located at 101 Holmes Avenue, Huntsville, AL in Courtroom 2 before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith Jr on 4/5/05. (MNH, ) (Entered: 04/05/2005)

04/05/2005 1218 TRANSCRIPT of Proceedings held on 2/23/05 before Judge Smith. Court Reporter: Christina Decker. [Contact court reporter for copy of transcript] (MNH, ) (Entered: 04/05/2005)

05/03/2005

1219

ORDER directing parties to appear in Birmingham in Courtroom #3 of the Robert S. Vance Federal Building for a Conference set for 5/19/2005 09:30 AM before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith Jr on 5/3/05. (MNH, ) (Entered: 05/03/2005)

05/06/2005

1220

ORDER the court will hear objections at a validity hearing on August 15, 2005 at 9:30 am in the United States Courthouse in Huntsville. Schedule of submissions more fully set forth in the order. Signed by Judge C Lynwood Smith Jr on 5/6/05. (MNH, ) (Entered: 05/06/2005)

05/10/2005

1221

ORDER setting objections for validity hearing set for August 15, 2005 at 9:30 am in Huntsville. The US is directed to file its submission on the objection on or before July 1, 2005. The Receiver and any other party may respond on or before July 11, 2005. The US is directed to reply on or before July 18, 2005. The Special Master shall reveiw the parties submissions and submit a report on or before August 1, 2005.. Signed by Judge C Lynwood Smith Jr on 5/10/05. (MNH, ) (Entered: 05/10/2005)

06/01/2005

1222

ORDER parties are notified that no status conference will be conducted in the month of June, 2005. The July, 2005 conference will be set by seperate order. Signed by Judge C Lynwood Smith Jr on 6/1/05. (MNH, ) (Entered: 06/01/2005)

06/06/2005 1223 STATUS REPORT May 16, 2005 - May 31, 2005 by Personnel Board of Jefferson County. (Simon, Kenneth) (Entered: 06/06/2005)

06/13/2005

PHV Fee paid: for Kristy Greenberg $ 50, receipt number 500 54710 (MNH, ) (Entered: 06/20/2005)

06/17/2005

1224 MOTION for Leave to Appear Pro Hac Vice Motion to Admit Kristy Greenberg Pro Hac Vice by Bryant, Martin. (Vrabel, Mary) (Entered: 06/17/2005)

06/20/2005

ORDER granting 1224 Motion for Leave to Appear pro hac vice. Signed by Judge C Lynwood Smith Jr on June 20, 2005. (ADS) (Entered: 06/20/2005)

06/21/2005

1225

ORDER parties are notified that the validity hearing scheduled for 9:30 a.m. on August 15, 2005 is CANCELLED, and all parties are relieved of their obligation to file submissions on objections of selection proceedures for the job classifications. Signed by Judge C Lynwood Smith Jr on 6/21/05. (MNH, ) (Entered: 06/21/2005)

07/07/2005 1226 ORDER Conference set for Thursday, 7/21/2005 09:30 AM before Judge C Lynwood Smith Jr in Huntsville.. Signed by Judge C Lynwood Smith Jr on 7/6/05. (MNH, ) (Entered: 07/07/2005)

07/12/2005 1227 MEMORANDUM OPINION. Signed by Judge C Lynwood Smith Jr on 7/12/05. (MNH, ) (Entered: 07/12/2005)

07/12/2005

1228

ORDER GRANTING IN PART AND DENYING IN PART the City's motion to terminate it's Consent Decree. Judicial supervision is retained for the limited purpose of obtaining the City's compliance with paragraph 8 of the 1995 Modification Order for the Fire Apparatus Operator classification. The Wilk's Class's motion to modify the City's decree is DENIED . Signed by Judge C Lynwood Smith Jr on 7/12/05. (MNH, ) (Entered: 07/12/2005)

07/14/2005 1229 STATUS REPORT Monthly Report - June 2005 by Personnel Board of Jefferson County. (Simon, Kenneth) (Entered: 07/14/2005)

07/29/2005 1230 NOTICE by Bham City of of the City's Plans Regarding Fire Apparatus Operator Selection Procedure (Yuengert, Anne) (Entered: 07/29/2005)

08/01/2005 1231 TRANSCRIPT of Proceedings held on July 21, 2005 before Judge Lynwood Smith. Court Reporter: Christina Decker. [Contact court reporter for copy of transcript] (MNH, ) (Entered: 08/02/2005)

08/04/2005

1232

RESPONSE to Court's Query filed by Bryant, Martin. (Attachments: # 1 Martin/Bryant Parties' Response to Comparison# 2 Martin/Bryant Parties' Response to Comparison - Blackline Version# 3 Certificate of Service)(Greenberg, Kristy) (Entered: 08/04/2005)

08/04/2005 1233 RESPONSE to the Court's Request [Wilks Class' Analysis of the Alabama Enabling Act: Duties of the Personnel Board and Personnel Director] filed by Wilks Class. (Cooper, Jimmy) (Entered: 08/04/2005)

08/04/2005

1234

RESPONSE to Court's Draft Comparison of the Powers and Duties of the Three-Member Board vis a vis The Personnel Director Under the Enabling Act filed by Personnel Board of Jefferson County. (Attachments: # 1 Exhibit Exhibit 1)(Simon, Kenneth) (Entered: 08/04/2005)

08/04/2005

1235

RESPONSE to the Court's Draft Comparison of the Powers and Duties of the Three-Member Board vis a vis The Personnel Director Under the Enabling Act filed by Ronald R Sims. (Allen, Leslie) (Entered: 08/04/2005)

08/05/2005

1236

RESPONSE to Court's Draft Comparison of the Powers and Duties of the Three-Member Board vis a vis the Personnel Director under Alabama Enabling Act (July 21, 2005 Draft) filed by Mark Gaines. (Jordan, Albert) (Entered: 08/05/2005)

08/08/2005

1237

RESPONSE to Court's Draft Compairson of the Powers and Duties of the Three-Member Board vis a vis the Personnel Director under Alabama Enabling Act (July 21, 2005 Draft) filed by Jefferson Cty. (Wagner, Charles) (Entered: 08/08/2005)

08/08/2005 1238 ORDER Status Conference set for 8/25/2005 09:30 AM before Judge C Lynwood Smith Jr in Huntsville.. Signed by Judge C Lynwood Smith Jr on 8/8/05. (MNH, ) (Entered: 08/08/2005)

08/15/2005

1239 NOTICE by Ronald R Sims of filing of Receiver's Final Report (Attachments: # 1 Final Report of the Receiver, Ronald R. Sims, Ph.D.)(Dettling, Aaron) (Entered: 08/15/2005)

08/17/2005 1240 NOTICE by Bham City of Withdrawal of Arnold W. Umbach III as attorney representing defendant The City of Birmingham (Umbach, Arnold) (Entered: 08/17/2005)

08/17/2005 1241 MOTION to Seal Document (Receiver's Final Report) by Jefferson County Personnel Board. (Simon, Kenneth) (Entered: 08/17/2005)

08/19/2005

1242

ANSWER to Interrogatories from Demetruis Taylor by Jefferson Cty. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Errata G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M - Part 1# 14 Exhibit M - Part 2# 15 Exhibit N# 16 Exhibit O# 17 Exhibit P)(Wagner, Charles) (Entered: 08/19/2005)

08/19/2005 1243 RESPONSE to Discovery Request from Jefferson County by Jefferson Cty.(Wagner, Charles) (Entered: 08/19/2005)

08/22/2005 1244 MOTION to Seal Exhibits by Jefferson Cty. (Wagner, Charles) (Entered: 08/22/2005)

08/22/2005

ORDER granting 1244 Motion to Seal - The clerk is directed to seal all the exhibits to Jefferson County's answers to interrogatories. Signed by Judge C Lynwood Smith Jr on August 22, 2005. (ADS) (Entered: 08/22/2005)

08/24/2005 1245 STATUS REPORT Monthly Report of the Personnel Board of Jefferson County by Jefferson County Personnel Board. (Simon, Kenneth) (Entered: 08/24/2005)

08/24/2005 1246 RESPONSE to Receiver's Final Report filed by Jefferson County Personnel Board. (Simon, Kenneth) (Entered: 08/24/2005)

08/25/2005

1247

ORDER parties are directed to submit written repsonses and comments regarding the court's proposed order for appointment of a monitor of the Personnel Board on or before 9/2/05. Signed by Judge C Lynwood Smith Jr on 8/25/05. (MNH, ) (Entered: 08/25/2005)

08/25/2005

1248

ORDER the three-member board is ORDERED to sumbit its proposal for the selection of a new Personnel Director on or before 8/30/05. Signed by Judge C Lynwood Smith Jr on 8/25/05. (MNH, ) (Entered: 08/25/2005)

08/30/2005 1249 STATUS REPORT The Three-Member Board's Plan to Select a New Personnel Director by Jefferson County Personnel Board. (Simon, Kenneth) (Entered: 08/30/2005)

09/02/2005 1250 RESPONSE to re 1247 Proposed Order Appointing a Monitor filed by United States of America. (Adelstein, Jay) (Entered: 09/02/2005)

09/02/2005 1251 RESPONSE to the Proposed Order Appointing Monitor (pursuant to the Court's instructions at the status conference of August 25, 2005) filed by Wilks Class. (Brown, Gary) (Entered: 09/02/2005)

09/02/2005 1252 RESPONSE to the Proposed Order Appointing Monitor (pursuant to the Court's instructions at the status conference of August 25, 2005) filed by Jefferson Cty. (Wagner, Charles) (Entered: 09/02/2005)

09/02/2005

1253

MOTION to Appoint Receiver Motion to Assign Monitoring Duties to Receiver or to Appoint Monitor by Bryant, Martin. (Attachments: # 1 Exhibit Exhibit A: Proposed Order Assigning Additional Monitoring Duties to Receiver# 2 Exhibit Exhibit B: Proposed Order Appointing

Monitor# 3 Certificate of Service)(Greenberg, Kristy) (Entered: 09/02/2005)

09/02/2005 1254 RESPONSE to Court's Proposed Monitor Order filed by Jefferson County Personnel Board. (Simon, Kenneth) (Entered: 09/02/2005)

09/02/2005 1255 RESPONSE to Proposed Monitor Order (Textual Comments) filed by Jefferson County Personnel Board. (Simon, Kenneth) (Entered: 09/02/2005)

09/02/2005

1256 RESPONSE to proposed order regarding appointment of Court Monitor filed by Ronald R Sims. (Dettling, Aaron) (Entered: 09/02/2005)

09/07/2005

ORDER finding as moot 1241 Motion to Seal Document. Signed by Judge C Lynwood Smith Jr on September 7, 2005. (ADS) (Entered: 09/07/2005)

09/08/2005 1257 RESPONSE in Opposition re 1253 MOTION to Appoint Receiver Motion to Assign Monitoring Duties to Receiver or to Appoint Monitor filed by Wilks Class. (Brown, Gary) (Entered: 09/08/2005)

09/08/2005

1258

ORDER that the counsel for the parties are directed to appear for the next conference in this action at 9:30 am Thursday September 22, 2005; the conference will be conducted at the US Courthouse located at 101 Holmes Ave in Hsv Al. Signed by Judge C Lynwood Smith Jr on 09/08/05. (SPT, ) Modified on 9/9/2005 (SPT, ). (Entered: 09/08/2005)

09/15/2005 1259 STATUS REPORT Regarding Revision of Fire Apparatus Operator Selection Procedure by Bham City of. (Yuengert, Anne) (Entered: 09/15/2005)

09/16/2005

1260

REPLY to Response to Motion re 1253 MOTION to Appoint Receiver Motion to Assign Monitoring Duties to Receiver or to Appoint Monitor filed by Bryant, Martin. (Attachments: # 1 Certificate of Service)(Greenberg, Kristy) (Entered: 09/16/2005)

09/21/2005

1261 TRANSCRIPT of Proceedings held on 8/25/05 before Judge Smith. Court Reporter: Christina Decker. [Contact court reporter for copy of transcript] (MNH, ) (Entered: 09/21/2005)

09/21/2005 1262 STATUS REPORT MONTHLY REPORT - SEPTEMBER 2005 by Jefferson County Personnel Board. (Simon, Kenneth) (Entered: 09/21/2005)

09/26/2005 1263 ORDER setting City's FAO deadlines. Signed by Judge C Lynwood Smith Jr on 9/26/05. (MNH, ) (Entered: 09/27/2005)

09/30/2005

1264

ORDER Setting Status Conference for 10/20/2005 09:30 AM before Judge C Lynwood Smith Jr in Courtroom #3 in the Robert S. Vance Federal Building in Birmingham. Signed by Judge C Lynwood Smith Jr on 9/30/05. (MNH, ) (Entered: 09/30/2005)

10/12/2005 1265 STATUS REPORT October Monthly Status Report by Personnel Board of Jefferson County. (Simon, Kenneth) (Entered: 10/12/2005)

10/13/2005

1266 NOTICE by Bham City of Status Report Regarding Revision of Fire Apparatus Operator Selection Procedure (Yuengert, Anne) (Entered: 10/13/2005)

10/28/2005

1267

TRANSCRIPT of Proceedings held on 10/20/05 before Judge C Lynwood Smith, Jr. Court Reporter: Christina Decker. [Contact court reporter for copy of transcript] (MNH, ) Additional attachment(s) added on 10/28/2005 (MNH, ). (Entered: 10/28/2005)

11/10/2005

1268

ORDER the next status conference will be conducted in Courtroom #3 in the Robert S. Vance Building on December 1, 2005 at 9:30am . Signed by Judge C Lynwood Smith Jr on 11/10/05. (MNH, ) (Entered: 11/10/2005)

11/14/2005 1269 STATUS REPORT November 2005 Monthly Report by Jefferson County Personnel Board. (Simon, Kenneth) (Entered: 11/14/2005)

11/15/2005 1270 ORDER appointing William I. Sauser, Ph.D., as Monitor, as more fully set out in the attached order. Signed by Judge C Lynwood Smith Jr on November 15, 2005. (ADS) (Entered: 11/15/2005)

11/22/2005 1271 STATUS REPORT Revision of Fire Apparatus Operator Deadlines by Bham City of. (Yuengert, Anne) (Entered: 11/22/2005)

11/29/2005 1272 STATUS REPORT OF THE MONITOR filed by William I Sauser, Jr for November, 2005. (MNH, ) (Entered: 11/29/2005)

12/15/2005 1273 STATUS REPORT Monthly Report by Jefferson County Personnel Board. (Simon, Kenneth) (Entered: 12/15/2005)

01/04/2006

Document number #1274 deleted and entered in error, a corrected order will be entered. (MNH, ) (Entered: 01/04/2006)

01/04/2006

1274

TRANSCRIPT of Proceedings held on December 1, 2005 before Judge C. Lynwood Smith, Jr. Court Reporter: Christina Decker. [Contact court reporter for copy of transcript] (MNH, ) Additional attachment(s) added on 1/4/2006 (MNH, ). Modified on 1/12/2006 (MNH, ).TRANSCRIPT of Proceedings held on December 1, 2005 before Judge C. Lynwood Smith, Jr. Court Reporter: Christina Decker. [Contact court reporter for

copy of transcript] (MNH, ) Additional attachment(s) added on 1/4/2006 (MNH, ). Modified on 1/12/2006 (MNH, ). Modified on 1/12/2006 (LCW, ). Modified on 1/12/2006 (SNH, ). (Entered: 01/04/2006)

01/05/2006

1275

ORDER that the next status conference in this action will be conducted at 9:30 a.m. on Thursday, January 19, 2006, in Birmingham, as more fully set out in the attached order. Signed by Judge C Lynwood Smith Jr on January 5, 2006. (ADS) (Entered: 01/05/2006)

01/09/2006 1276 NOTICE of Monthly Report filed by Monitor, William I Sauser, Jr (MNH, ) (Entered: 01/09/2006)

01/10/2006

1277

STATUS REPORT Monthly Report of the Personnel Board of Jefferson County Pursuant to Personnel Board of Jefferson County Consent Decree, As Amended by Personnel Board of Jefferson County. (Simon, Kenneth) (Entered: 01/10/2006)

01/13/2006 1278 Letter Brief to Judge Smith. (Jordan, Albert) Modified on 1/13/2006 (MNH, ). (Entered: 01/13/2006)

01/27/2006 1279 NOTICE of Appearance by Brice Martin Johnston on behalf of Personnel Board of Jefferson County (Johnston, Brice) (Entered: 01/27/2006)

02/02/2006 1280 ORDER setting Status Conference for 2/16/2006 09:30 AM before Judge C Lynwood Smith Jr in Courtroom #3 in Birmingham. Signed by Judge C Lynwood Smith Jr on 2/2/06. (MNH, ) (Entered: 02/02/2006)

02/03/2006 1281 TRANSCRIPT of Proceedings held on January 19, 2006 before Judge C. Lynwood Smith, Jr. Court Reporter: Christina Decker. [Contact court reporter for copy of transcript] (MNH, ) (Entered: 02/03/2006)

02/07/2006

1282

STATUS REPORT Monthly Report of the Personnel Board of Jefferson County Pursuant to Personnel Board of Jefferson County Consent Decree, As Amended by Jefferson County Personnel Board. (Simon, Kenneth) (Entered: 02/07/2006)

02/08/2006 1283 NOTICE of Monthly Report of the Monitor by William I Sauser, Jr (MNH, ) (Entered: 02/08/2006)

02/16/2006 1284 NOTICE by Bham City of of Filing Proposal for Deadlines for Revisions of Fire Apparatus Operator Selection Procedure (Yuengert, Anne) (Entered: 02/16/2006)

02/21/2006

1285 ORDER setting City's Fire Apparatus Operator position deadlines. Signed by Judge C Lynwood Smith Jr on 2/17/06. (MNH, ) (Entered: 02/21/2006)

03/07/2006 1286 NOTICE of filing Monthly Report of the Monitor by William I Sauser, Jr (MNH, ) (Entered: 03/07/2006)

03/15/2006 1287 STATUS REPORT - March 2006 Monthly Report by Jefferson County Personnel Board. (Simon, Kenneth) (Entered: 03/15/2006)

03/28/2006 1288 TRANSCRIPT of Proceedings held on 2/16/06 before Judge C Lynwood Smith. Court Reporter: Christina Decker. [Contact court reporter for copy of transcript] (MNH, ) (Entered: 03/28/2006)

03/29/2006

1289 ORDER settingConference for 4/27/2006 09:30 AM before Judge C Lynwood Smith Jr. in Courtroom #3 in Birmingham. Signed by Judge C Lynwood Smith Jr on 3/29/06. (MNH, ) (Entered: 03/29/2006)

04/05/2006 1290 NOTICE of SPECIAL REPORT by William I Sauser, Jr (MNH, ) (Entered: 04/05/2006)

04/05/2006 1291 NOTICE of MONTHLY REPORT for MARCH by William I Sauser, Jr (MNH, ) (Entered: 04/05/2006)

04/06/2006 1292 NOTICE of CORRECTED REPORT OF THE MONITOR (March, 2006) William I Sauser, Jr (MNH, ) (Entered: 04/06/2006)

04/19/2006 1293 STATUS REPORT April 2006 Monthly Report by Jefferson County Personnel Board. (Simon, Kenneth) (Entered: 04/19/2006)

04/20/2006 1294 STATUS REPORT for APRIL 2006 by Bham City of. (Yuengert, Anne) (Entered: 04/20/2006)

05/08/2006 1295 NOTICE of MONTHLY REPORT for APRIL by William I Sauser, Jr (AHI) (Entered: 05/08/2006)

05/11/2006

1296 TRANSCRIPT of Proceedings held on 4/27/2006 before Judge C. Lynwood Smith, Jr. Court Reporter: Christina K. Decker. [Contact court reporter for copy of transcript] (AHI) (Entered: 05/11/2006)

05/16/2006 1297 NOTICE of Appearance by Brent G Grainger on behalf of Jim Woodward (Grainger, Brent) (Entered: 05/16/2006)

05/16/2006 1298 NOTICE of Appearance by James R Esdale on behalf of Jim Woodward (Esdale, James) (Entered: 05/16/2006)

05/17/2006 1299 STATUS REPORT Monthly Report (May 2006) by Personnel Board of Jefferson County. (Simon, Kenneth) (Entered: 05/17/2006)

06/05/2006 1300 NOTICE of MONTHLY REPORT for May, 2006 by William I Sauser, Jr (AHI) (Entered: 06/05/2006)

06/06/2006

1301

ORDER that the parties are directed to appear for the next conference in this case action at 9:30 am, Thursday 22, 2006; the conference will be conducted in Courtroom #3 of the Robert S. Vance Federal Building at 1800 Fifth Avenue North, Birmingham, Alabama. Signed by Judge C Lynwood Smith Jr on 06/06/06. (SPT ) (Entered: 06/06/2006)

06/13/2006 1302 STATUS REPORT June 2006 by Jefferson County Personnel Board. (Simon, Kenneth) (Entered: 06/13/2006)

06/15/2006 1303 NOTICE of Appearance by Carl D Wasserman on behalf of United States of America (Wasserman, Carl) (Entered: 06/15/2006)

06/16/2006 1304 STATUS REPORT for June 2006 by Bham City of. (Yuengert, Anne) (Entered: 06/16/2006)

07/07/2006 1305 NOTICE of Monthly Report of the Monitor, June, 2006 by William I Sauser, Jr (MNH, ) (Entered: 07/07/2006)

07/19/2006 1306 STATUS REPORT (July 2006) by Personnel Board of Jefferson County. (Simon, Kenneth) (Entered: 07/19/2006)

07/26/2006 1307 STATUS REPORT of July 2006 by Bham City of. (Yuengert, Anne) (Entered: 07/26/2006)

08/07/2006 1308 NOTICE of Monthly Report of the Monitor, July, 2006 by William I Sauser, Jr (AHI) (Entered: 08/07/2006)

08/17/2006 1309 STATUS REPORT by Bham City of. (Yuengert, Anne) (Entered: 08/17/2006)

08/22/2006 1310 STATUS REPORT for August 2006 by Personnel Board of Jefferson County. (Simon, Kenneth) (Entered: 08/22/2006)

09/05/2006 1311 NOTICE of Monthly Report of the Monitor, August, 2006 by William I Sauser, Jr (AHI) (Entered: 09/05/2006)

09/20/2006 1312 STATUS REPORT September 2006 by Personnel Board of Jefferson County. (Simon, Kenneth) (Entered: 09/20/2006)

10/05/2006

1313 ORDER parties are directed to appear for the next conference on 10/19/2006, at 9:30 a.m., US Courthouse, Huntsville, AL. Signed by Judge C Lynwood Smith Jr on 10/5/2006. (AHI) (Entered: 10/05/2006)

10/10/2006 1314 NOTICE of Monthly Report of the Monitor, September, 2006 by William I Sauser, Jr. (AHI) (Entered: 10/10/2006)

10/12/2006 1315 STATUS REPORT October 2006 by Personnel Board of Jefferson County. (Simon, Kenneth) (Entered: 10/12/2006)

10/13/2006 1316 STATUS REPORT of October 2006 by Bham City of. (Yuengert, Anne) (Entered: 10/13/2006)

10/19/2006

1317

TRANSCRIPT of Status Conference Hearing held on 6/22/2006 before Judge C. Lynwood Smith, Jr. Court Reporter: Christina Decker. [Contact court reporter for copy of transcript] (AHI) (Entered: 10/19/2006)

11/02/2006

1318

ORDER parties are directed to appear for the next conference in this action on 11/16/2006, at 9:30 A.M. in Courtroom No. 3 of the Vance Federal Building in Birmingham, Alabama. Signed by Judge C Lynwood Smith Jr on 11/2/2006. (AHI) (Entered: 11/02/2006)

11/08/2006 1319 NOTICE of Monthly Report of the Monitor, October 2006 by William I Sauser, Jr (AHI) (Entered: 11/08/2006)

11/09/2006 1320 STATUS REPORT November 2006 by Personnel Board of Jefferson County. (Simon, Kenneth) (Entered: 11/09/2006)

11/28/2006

1321

MOTION to Compel Co-Defendant Personnel Board by Jefferson Cty. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G)(Wagner, Charles) (Entered: 11/28/2006)

11/28/2006

ORDER setting motion deadline 1321 Motion to Compel - The Jefferson County Personnel Board must file a written response to the motion on or before December 12, 2006. Signed by Judge C Lynwood Smith Jr on November 28, 2006. (ADS) (Entered: 11/28/2006)

12/12/2006

1322 RESPONSE in Opposition re 1321 MOTION to Compel Co-Defendant Personnel Board filed by Jefferson County Personnel Board. (Attachments: # 1 Exhibit 1)(Dettling, Aaron) (Entered: 12/12/2006)

12/13/2006 1323 REPLY to Response to Motion re 1321 MOTION to Compel CoDefendant Personnel Board filed by Jefferson Cty. (Wagner, Charles) (Entered: 12/13/2006)

12/21/2006 1324 NOTICE of Monthly Report of the Monitor, November, 2006 by William I Sauser, Jr (AHI) (Entered: 12/21/2006)

12/21/2006 1325 STATUS REPORT December 2006 by Personnel Board of Jefferson County. (Simon, Kenneth) (Entered: 12/21/2006)

12/21/2006 1326 STATUS REPORT Annual Report 2006 by Personnel Board of Jefferson County. (Simon, Kenneth) (Entered: 12/21/2006)

12/21/2006 1327 ORDER January Status Conference is set for 1/18/2007 at 9:30 A.M., Courtroom #3, Robert S. Vance Federal Building, Birmingham, AL.

Signed by Judge C Lynwood Smith Jr on 12/21/2006. (AHI) (Entered: 12/21/2006)

01/11/2007 1328 NOTICE of Monthly Report of the Monitor, December 2006, by William I Sauser, Jr (AHI) (Entered: 01/11/2007)

01/12/2007 1329 STATUS REPORT January 2007 by Personnel Board of Jefferson County. (Simon, Kenneth) (Entered: 01/12/2007)

01/25/2007

1330

ORDER that the parties are directed to appear for the next conference in this action at 9:30 am Thursday, February 15, 2007; the conference will be conducted in Courtroom No. 3 of the Robert S. Vance Federal Building at 1800 Fifth Avenue North, Birmingham, Alabama. Signed by Judge C Lynwood Smith Jr on 01/25/07. (SPT, ) (Entered: 01/25/2007)

01/31/2007

1331 RESPONSE to City of Birmingham Validity Report on Fire Apparatus Operator Selection Procedure filed by Wilks Class. (Fitzpatrick, Raymond) (Entered: 01/31/2007)

02/02/2007 1332 MOTION to Dismiss the City as a Party and Motion to Terminate the Remainder of the City of Birmingham Consent Decree by Bham City of. (Yuengert, Anne) (Entered: 02/02/2007)

02/02/2007

1333 Brief in Support of Motion to Terminate Remainder of Consent Decree and Dismiss City as a Party filed by Bham City of. (Yuengert, Anne) (Entered: 02/02/2007)

02/08/2007

1334

ORDER Responses to the motion to terminate consent degree and to dismiss the City as a party are due by 2/19/2007, replies are due by 2/26/2007, as more fully set out in order. Signed by Judge C Lynwood Smith Jr on 2/8/2007. (AHI) (Entered: 02/08/2007)

02/09/2007 1335 STATUS REPORT February 2007 by Personnel Board of Jefferson County. (Attachments: # 1 Appendix Appendix A-H# 2 Appendix Appendix I)(Simon, Kenneth) (Entered: 02/09/2007)

02/12/2007 1336 NOTICE of Monthly Report of the Monitor, January, 2007, by William I Sauser, Jr (AHI) (Entered: 02/12/2007)

02/13/2007

1337

ORDER Status Conference set for Thursday, February 15, 2007, is CANCELLED; next conference is set for 2/22/2007 at 9:30 A.M. in Courtroon No. 3 of the Robert S. Vance Federal Building, 1800 Fifth Avnue, North, Birmingahm, AL. Signed by Judge C Lynwood Smith Jr on 2/12/2007. (AHI) Modified on 3/5/2007 (AHI). (Entered: 02/13/2007)

02/15/2007

1338

MOTION for Extension of Time to File Response/Reply as to 1334 Order by Bryant, Martin. (Attachments: # 1 Text of Proposed Order Proposed Order# 2 Certificate of Service)(Greenberg, Kristy) (Entered: 02/15/2007)

02/16/2007 1339 ORDER granting 1338 Motion for Extension of Time to File Response/Reply as more fully set out in order. Signed by Judge C Lynwood Smith Jr on 02/16/07. (SPT, ) (Entered: 02/16/2007)

03/05/2007 1340 NOTICE of Monthly Report of the Monitor, February 2007, by William I Sauser, Jr (AHI) (Entered: 03/05/2007)

03/05/2007

1341

ORDER that the parties are directed to appear for the next conference in this action at 9:30 am Thursday, March 15, 2007; the conference will be conducted in Courtroom No. 3 of the Robert S. Vance Federal Building at 1800 Fifth Avenue North, Birmingham, Alabama. Signed by Judge C Lynwood Smith Jr on 3/5/2007. (AHI) (Entered: 03/05/2007)

03/07/2007 1342 STATUS REPORT March 2007 by Personnel Board of Jefferson County. (Simon, Kenneth) (Entered: 03/07/2007)

03/12/2007

1343 TRANSCRIPT of Proceedings held on 2/22/2007 before Judge C. Lynwood Smith. Court Reporter: Christina Decker. [Contact court reporter for copy of transcript] (AHI) (Entered: 03/12/2007)

03/12/2007 1344 RESPONSE to re 1321 Suggestion of Mootness filed by Jefferson County Personnel Board. (Attachments: # 1 Exhibit # 2 Exhibit # 3 Exhibit)(Dettling, Aaron) (Entered: 03/12/2007)

03/13/2007

1345 RESPONSE to Suggestion of Mootness by Personnel Board filed by Jefferson Cty. (Attachments: # 1 Exhibit A)(Wagner, Charles) (Entered: 03/13/2007)

03/15/2007

ORDER finding as moot 1321 Motion to Compel by Jefferson County. Signed by Judge C Lynwood Smith Jr on March 15, 2007. (ADS) (Entered: 03/15/2007)

03/21/2007

1346

ORDER that the parties are directed to appear for the next conference in this action at 9:30 am Thursday, April 19, 2007; the conference will be conducted in Courtroom No. 3 of the Robert S. Vance Federal Building at 1800 Fifth Avenue North, Birmingham, Alabama. Signed by Judge C Lynwood Smith Jr on 3/21/2007. (AHI) (Entered: 03/21/2007)

03/29/2007 1347 NOTICE of Change of Address by Tammy C Woolley (Woolley, Tammy) (Entered: 03/29/2007)

03/30/2007

1348

RESPONSE to 1332 MOTION to Dismiss the City as a Party and Motion to Terminate the Remainder of the City of Birmingham Consent Decree filed by United States of America. (Adelstein, Jay) Modified on 3/30/2007 (AHI). (Entered: 03/30/2007)

04/02/2007 1349 MOTION to Withdraw as attorney of record by Leslie M. Proll. (AHI) (Entered: 04/02/2007)

04/02/2007

1350

RESPONSE in Opposition re 1113 Motion for Miscellaneous Relief, 1332 MOTION to Dismiss the City as a Party and Motion to Terminate the Remainder of the City of Birmingham Consent Decree filed by Wilks Class. (Attachments: # 1 Exhibit A - Opinion of Attorney General, dated January 30, 2007# 2 Exhibit B - K. Simon letter to B. Smith, dated February 23, 2007 re: Draft Opinion# 3 Exhibit C - L. Lyas letter to Attorney General, dated February 23, 2007# 4 Exhibit D Mayor's First Request for Admissions from Personnel Board, dated February 6, 2007# 5 Exhibit E - R. Fitzpatrick email to Court and parties re: contention that City is no longer subject to Personnel Board or Enabling statute, dated February 9, 2007# 6 Exhibit F - R. Wilson and K. Greenberg letter to Judge Smith, dated February 13, 2007# 7 Exhibit G - Martin/Bryant Parties' First Set for Requests for Admission Directed to City of Birmingham, dated February 13, 2007# 8 Exhibit H - Response to Martin/Bryant Parties' First Set for Requests for Admissions Directed to City of Birmingham, dated March 2, 2007# 9 Exhibit I - A. Yuengert letter to G. Brown, dated December 11, 2006)(Brown, Gary) (Entered: 04/02/2007)

04/02/2007

1351

RESPONSE in Support re 1332 MOTION to Dismiss the City as a Party and Motion to Terminate the Remainder of the City of Birmingham Consent Decree filed by Bryant, Martin. (Greenberg, Kristy) (Entered: 04/02/2007)

04/02/2007

ORDER granting 1349 Motion to Withdraw - Attorney Leslie M. Proll terminated. Signed by Judge C Lynwood Smith Jr on April 2, 2007. (ADS) (Entered: 04/02/2007)

04/09/2007 1352 REPLY to re 1350 Wilks' Class Opposition to Motion to Terminate Consent Decree filed by Bham City of. (Yuengert, Anne) (Entered: 04/09/2007)

04/11/2007 1353 STATUS REPORT April 2007 by Personnel Board of Jefferson County. (Attachments: # 1 Exhibit Monthly Report Exhibits)(Simon, Kenneth) (Entered: 04/11/2007)

04/13/2007 1354 NOTICE of Monthly Report of the Monitor, March, 2007 by William I Sauser, Jr (AHI) (Entered: 04/13/2007)

04/24/2007 1355 MOTION to Withdraw as Attorney by Wilks Class. (Cooper, Jimmy) (Entered: 04/24/2007)

04/24/2007

ORDER granting 1355 Motion to Withdraw as Attorney. Attorney Jimmy Michael Cooper terminated. Signed by Judge C Lynwood Smith Jr on April 24, 2007. (ADS) (Entered: 04/24/2007)

04/30/2007

1356

ORDER that the parties are directed to appear for the next conference in this action at 9:30 am Thursday, May 17, 2007; the conference will be conducted in Courtroom No. 3 of the Robert S. Vance Federal Building at 1800 Fifth Avenue North, Birmingham, Alabama. Signed by Judge C Lynwood Smith Jr on 4/30/2007. (AHI) Modified on 4/30/2007 (AHI). (Entered: 04/30/2007)

05/01/2007

1357

TRANSCRIPT of Status Conference Hearing held on April 19, 2007, before Judge C. Lynwood Smith, Jr. Court Reporter: Christina K. Decker. [Contact court reporter for copy of transcript] (AHI) (Entered: 05/01/2007)

05/07/2007 1358 NOTICE of Monthly Report of the Monitor, April 2007, by William I Sauser, Jr (AHI) (Entered: 05/07/2007)

05/09/2007 1359 MOTION to Withdraw as Attorney by United States of America. (Wasserman, Carl) (Entered: 05/09/2007)

05/09/2007 1360 STATUS REPORT May 2007 by Personnel Board of Jefferson County. (Attachments: # 1 Exhibits to May 2007 Monthly Report)(Simon, Kenneth) Modified on 5/11/2007 (AHI). (Entered: 05/09/2007)

05/09/2007

ORDER granting 1359 Motion to Withdraw as Attorney. Attorney Carl D Wasserman terminated. Signed by Judge C Lynwood Smith Jr on May 9, 2007. (ADS) (Entered: 05/09/2007)

05/18/2007

1361

ORDER an Evidentiary Hearing is set for 9:30 A.M. 5/23/2007, in Birmingham, Alabama, as more fully set out in order. Signed by Judge C Lynwood Smith Jr on 5/18/2007. (Attachments: # 1 Attachment)(AHI) (Entered: 05/18/2007)

05/21/2007 1362 MOTION to Continue Wednesday, May 23 Hearing by Alan L King. (Hawley, Gregory) (Entered: 05/21/2007)

05/21/2007 1363 NOTICE of Appearance by Walter E Braswell on behalf of Steve Small, Jr. (Braswell, Walter) (Entered: 05/21/2007)

05/21/2007 1364 NOTICE by Bryant, Martin ("Notice of Motion for Injunction") (Greenberg, Kristy) (Entered: 05/21/2007)

05/21/2007 1365 ORDER 1362 Motion to Continue Hearing is DENIED, as more fully set out in order. Signed by Judge C Lynwood Smith Jr on 5/21/2007. (AHI) (Entered: 05/21/2007)

05/21/2007 1366 First MOTION Excuse Attendance or Allow telephonic participation by Steve Small, Jr.. (Braswell, Walter) (Entered: 05/21/2007)

05/21/2007 1367 ORDER 1366 MOTION Excuse Attendance or Allow telephonic participation is DENIED; as more fully set out in order. Signed by Judge C Lynwood Smith Jr on 5/21/2007. (AHI) (Entered: 05/21/2007)

05/21/2007 1368 First MOTION for Reconsideration Denial of Motion for Relief by Steve Small, Jr.. (Braswell, Walter) (Entered: 05/21/2007)

05/21/2007

1369

ORDER deferring ruling on motion 1368 Motion for Reconsideration until movant can provide additional information no later than 9:30 a.m. on 5/22/07 as more fully outlined in attached order . Signed by Judge C Lynwood Smith Jr on 5/21/07. (RBG, ) Additional attachment(s) added on 5/21/2007 (LCW, ). (Entered: 05/21/2007)

05/21/2007 1370 RESPONSE to court's order 1369 filed by Steve Small, Jr.. (Braswell, Walter) (Entered: 05/21/2007)

05/22/2007 1371 MOTION to Continue the hearing of May 23, 2007, by Citizens Supervisory Commission. (Jackson, Michael) (Entered: 05/22/2007)

05/22/2007 1372 RESPONSE to Court's Inquiry filed by Steve Small, Jr.. (Braswell, Walter) (Entered: 05/22/2007)

05/22/2007 1373 ORDER denying 1371 Motion to Continue, as more fully set forth in the attached motion. Signed by Judge C Lynwood Smith Jr on 5/22/07. (MNH) (Entered: 05/22/2007)

05/22/2007

1374

ORDER that the Motion for Reconsideration filed by Steve Small (doc. 1368) is DENIED, as more fully set out in the order. Mr. Small is not released from his subpoena, and he is ORDERED to appear on May 23, 2007 at 9:30 a.m. in Courtroom 3 of the Robert S. Vance Federal Building at 1800 Fifth Avenue North, Birmingham, Alabama. No further motions for continuance will be allowed to be filed without prior leave of court. Signed by Judge C Lynwood Smith Jr on 05/22/2007. (LCW) (Entered: 05/22/2007)

05/22/2007 1375 RESPONSE to Court's Order Dated May 18, 2007 filed by Russell M. Cunningham. (Somerville, William) (Entered: 05/22/2007)

05/22/2007 1376 First MOTION to Dismiss by Steve Small, Jr.. (Braswell, Walter) (Entered: 05/22/2007)

05/22/2007 1377 MOTION for Reconsideration re 1361 Order by Alan L King. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Hawley, Gregory) (Entered: 05/22/2007)

05/22/2007

1378

ORDER that the court will take the Motion to Dismiss filed by Steven Small (doc no. 1376) under advisement, as more fully set out in the order. This order does not relieve Steve Small from the requirement to appear pursuant to subpoena for hearing on May 23, 2007 at 9:30 a.m., in Birmingham, Alabama, as more fully set out. Signed by Judge C Lynwood Smith Jr on 05/22/2007. (LCW) (Entered: 05/22/2007)

05/22/2007 1379 JOINDER in re 1377 Judge Alan King's Motion for Reconsideration of May 18, 2007, order (Doc.# 1361) filed by Citizens Supervisory Commission. (Jackson, Michael) (Entered: 05/22/2007)

05/22/2007 1380 Evidentiary Material re: 1372 Response (other) filing of documents previously tendered. (Braswell, Walter) (Entered: 05/22/2007)

05/23/2007

Minute Entry for proceedings held before Judge C Lynwood Smith Jr: Evidentiary hearing held 5/23/07; preliminary remarks by the court; testimony received by the court; daily adj; (Court Reporter Christina Decker.) (LCW) (Entered: 05/30/2007)

05/24/2007 1381 TRANSCRIPT of Proceedings held on 5/23/2007 before Judge C. Lynwood Smith, Jr. Court Reporter: Christina Decker. [Contact court reporter for copy of transcript] (AHI) (Entered: 05/24/2007)

05/24/2007 1382 ORDER denying as moot 1376 Motion to Dismiss and denying 1377 Motion for Reconsideration as more fully set out in order. Signed by Judge C Lynwood Smith Jr on 05/24/07. (SPT, ) (Entered: 05/24/2007)

06/04/2007

1383

ORDER parties are directed to appear for the next conference in this action on 6/21/2007, at 9:30 A.M. in Courtroom No. 3 of the Vance Federal Building in Birmingham, Alabama. Signed by Judge C Lynwood Smith Jr on 6/4/2007. (AHI) (Entered: 06/04/2007)

06/07/2007

1384 Brief in Response to Court's Directive in Evidentiary Hearing held on May 23, 2007 filed by Wilks Class. (Brown, Gary) (Entered: 06/07/2007)

06/13/2007 1385 MOTION to Withdraw as Attorney for Defendant Personnel Board of Jefferson County by Personnel Board of Jefferson County. (Simon, Kenneth) (Entered: 06/13/2007)

06/13/2007 1386 NOTICE of Appearance by Leslie M Allen on behalf of Personnel Board of Jefferson County (Allen, Leslie) (Entered: 06/13/2007)

06/13/2007

ORDER granting 1385 Motion to Withdraw as Attorney. Attorneys David Walston, Brice Martin Johnston, and Kenneth O Simon terminated. Signed by Judge C Lynwood Smith Jr on June 13, 2007. (ADS) (Entered: 06/13/2007)

06/13/2007 1387 NOTICE of Monthly Report of the Monitor, May 2007, by William I Sauser, Jr (AHI) (Entered: 06/13/2007)

06/14/2007

1388 RESPONSE to 1387 Monthly Report of the Monitor, May 2007, filed by Alan King. (Bowen, William) Modified on 6/15/2007 (AHI ). (Entered: 06/14/2007)

06/14/2007

1389

REPLY to 1388 Response of Probate Judge Alan King to Monthly Report of the Monitor, May 2007 filed by Personnel Board of Jefferson County. (Allen, Leslie) Modified on 6/15/2007 (AHI). (Entered: 06/14/2007)

06/15/2007 1390 NOTICE by Jefferson County Personnel Board of filing of May 2007 Monthly Report (Attachments: # 1 Exhibit May 2007 Monthly Report)(Dettling, Aaron) (Entered: 06/15/2007)

06/18/2007

1391 MOTION to Withdraw as Attorney Motion to Withdraw Appearance of Mary Beth Vrabel by Bryant, Martin. (Greenberg, Kristy) (Entered: 06/18/2007)

06/18/2007

ORDER granting 1391 Motion to Withdraw as Attorney. Attorney Mary Beth Vrabel terminated. Signed by Judge C Lynwood Smith Jr on June 18, 2007. (ADS) (Entered: 06/18/2007)

06/29/2007

1392 ORDER Parties are advised that no status conference will be conducted during the month of July, 2007, as more fully set out in order. Signed by Judge C Lynwood Smith Jr on 6/29/2007. (AHI) (Entered: 06/29/2007)

07/13/2007 1393 NOTICE by Personnel Board of Jefferson County of filing of June 2007 Monthly Report (Attachments: # 1 Exhibit June 2007 Monthly Report)(Dettling, Aaron) (Entered: 07/13/2007)

07/19/2007 1394 NOTICE of Monthly Report of the Monitor, June, 2007 by William I Sauser. (SPT, ) Modified on 8/13/2007 (AHI) (Entered: 07/19/2007)

08/01/2007

1395

ORDER that Ann D. Floriebe is appointed to fill the vacancy on the Personnel Board of Jefferson County created by the resignation of Reverend Tommy Hagler effective immediately; it is further ordered that this appointment be made binding on all members of the Citizens' Supervisory Commission as more fully set out in order. Signed by Judge C Lynwood Smith Jr on 08/01/07. (Attachments: # 1 Professional Biography)(SPT, ) (Entered: 08/01/2007)

08/06/2007

1396

ORDER that the parties are directed to appear for the next conference in this action at 9:30 am Thursday, August 16, 2007; the conference will be conducted in Courtroom No. 3 of the Robert S. Vance Federal Building at 1800 Fifth Avenue North, Birmingham, Alabama. Signed by Judge C Lynwood Smith Jr on 8/6/2007. (AHI) (Entered: 08/06/2007)

08/09/2007 1397 NOTICE by Jefferson County Personnel Board of filing of July 2007 Monthly Report (Attachments: # 1 Exhibit July 2007 Monthly Report)(Dettling, Aaron) (Entered: 08/09/2007)

08/13/2007 1398 NOTICE of Monthly Report of the Monitor, July, 2007 by William I Sauser, Jr (AHI) (Entered: 08/13/2007)

08/20/2007

1399

MEMORANDUM OPINION and ORDER City of Birmingham's 1332 MOTION to Dismiss is DENIED, but without prejudice to the City's right to refile the motion after an additional period for discovery has expired; as more fully set out in order. Signed by Judge C Lynwood Smith Jr on 8/20/2007. (AHI) (Entered: 08/20/2007)

08/28/2007 1400 NOTICE of Appearance by Raymond P Fitzpatrick, Jr on behalf of Jefferson Cty (Fitzpatrick, Raymond) (Entered: 08/28/2007)

09/04/2007

1401 MOTION to Amend/Correct 1399 Memorandum Opinion,, Order,, Terminate Motions, by Bham City of. (Yuengert, Anne) (Entered: 09/04/2007)

09/07/2007

1402

ORDER it is ORDERED that any party desiring to file a response to the City's 1401 motion to amend/correct must do so by 10/25/2007; if the City desires to file a written reply it must be done by 11/8/2007; as more fully set out in order. Signed by Judge C Lynwood Smith Jr on 9/7/2007. (AHI) Modified on 9/7/2007 (AHI). (Entered: 09/07/2007)

09/07/2007

1403

ORDER that the parties are directed to appear for the next conference in this action at 9:30 am Thursday, September 20, 2007; the conference will be conducted in Courtroom No. 3 of the Robert S. Vance Federal Building at 1800 Fifth Avenue North, Birmingham, Alabama. Signed by Judge C Lynwood Smith Jr on 9/7/2007. (AHI) (Entered: 09/07/2007)

09/13/2007 1404 NOTICE of Monthly Report of Monitor, August 2007, filed by William I. Sauser, Jr. (SPT, ) Modified on 9/13/2007 (SPT, ). (Entered: 09/13/2007)

09/13/2007

1405

NOTICE by Jefferson County Personnel Board of Filing of August 2007 Monthly Report (Attachments: # 1 August 2007 Monthly Report of the Personnel Board of Jefferson County)(Dettling, Aaron) (Entered: 09/13/2007)

09/18/2007

1406

MOTION to Disqualify Counsel Motion to Disqualify Fitzpatrick and Brown as Additional Counsel for Jefferson County by Bryant, Martin. (Attachments: # 1 Greenberg Declaration# 2 Exhibit Greenberg Decl. Ex. 1# 3 Exhibit Greenberg Decl. Ex. 2# 4 Exhibit Greenberg Decl. Ex. 3# 5 Exhibit Greenberg Decl. Ex. 4# 6 Exhibit Greenberg Decl. Ex. 5# 7 Exhibit Greenberg Decl. Ex. 6# 8 Exhibit Greenberg Decl. Ex. 7# 9 Exhibit Greenberg Decl. Ex. 8# 10 Exhibit Greenberg Decl. Ex. 9# 11 Exhibit Greenberg Decl. Ex. 10# 12 Exhibit Greenberg Decl. Ex. 11# 13 Exhibit Greenberg Decl.Ex. 12# 14 Exhibit Greenberg Decl. Ex. 13# 15 Exhibit Greenberg Decl. Ex. 14# 16 Exhibit Greenberg Decl. Ex. 15# 17 Exhibit Greenberg Decl. Ex. 16# 18 Exhibit Greenberg Decl. Ex. 17# 19 Exhibit Greenberg Decl. Ex. 18# 20 Exhibit Greenberg Decl. Ex. 19# 21 Exhibit Greenberg Decl. Ex. 20# 22 Exhibit Greenberg Decl. Ex. 21# 23 Exhibit Greenberg Decl. Ex. 22# 24 Exhibit Greenberg Decl. Ex. 23# 25 Exhibit Greenberg Decl. Ex. 24# 26 Exhibit Greenberg Decl. Ex. 25)(Greenberg, Kristy) (Entered: 09/18/2007)

09/19/2007

1407 TRANSCRIPT of Proceedings held on 6/21/2007 before Judge C. Lynwood Smith, Jr. Court Reporter: Christina Decker. [Contact court reporter for copy of transcript] (AHI) (Entered: 09/19/2007)

09/19/2007 1408 TRANSCRIPT of Proceedings held on 8/16/2007 before Judge C. Lynwwod Smith, Jr. Court Reporter: Christina Decker. [Contact court reporter for copy of transcript] (AHI) (Entered: 09/19/2007)

09/21/2007

1409

ORDER The attorneys of Fitzpatrick & Brown are ORDERED to file a written response to the motion on or before 10/11/2007, and the MartinBryant parties must file any reply submission on or before 10/18/2007. Signed by Judge C Lynwood Smith Jr on 9/21/2007. (AHI) (Entered: 09/21/2007)

09/26/2007

1410

MOTION to Compel Martin/Bryant Parties' Motion to Compel Responses to its First Set of Interrogatories Directed to Jefferson County Sheriff's Office and First Request for Production of Documents by Jefferson County Sheriff's Office by Bryant, Martin. (Attachments: # 1 Exhibit Exhibit A# 2 Exhibit Exhibit B# 3 Exhibit Exhibit C# 4 Exhibit Exhibit D)(Greenberg, Kristy) (Entered: 09/26/2007)

09/26/2007

ORDER setting motion deadline 1410 Motion to Compel - The Jefferson County Sheriff's Office must file a written response to the motion on or before September 28, 2007. Signed by Judge C Lynwood Smith Jr on September 26, 2007. (ADS) (Entered: 09/26/2007)

09/28/2007

1411 RESPONSE to Motion re 1410 MOTION to Compel Martin/Bryant Parties' Motion to Compel Responses to its First Set of Interrogatories Directed to Jefferson County Sheriff's Office and First Request for

Production of Documents by Jefferson County Sheriff's Office filed by Jim Woodward. (Woolley, Tammy) (Entered: 09/28/2007)

10/01/2007

1412

ORDER 1410 Motion to Compel is GRANTED, the Sheriff of Jefferson County, Alabama, is ORDERED to respond to the Martin-Bryant Parties First Interrogatories by 10/10/2007, and to complete production of documents by 11/9/2007, as more fully set out in order. Signed by Judge C Lynwood Smith Jr on 10/1/2007. (AHI) (Entered: 10/01/2007)

10/03/2007

1413

MOTION for Order to Show Cause Martin/Bryant Parties' Motion to Hold Defendant Jefferson County in Civil Contempt and Modify Jefferson County Consent Decree by Bryant, Martin. (Attachments: # 1 Text of Proposed Order Proposed Order to Show Cause)(Greenberg, Kristy) (Entered: 10/03/2007)

10/04/2007

1414

RESPONSE in Opposition re 1413 MOTION for Order to Show Cause Martin/Bryant Parties' Motion to Hold Defendant Jefferson County in Civil Contempt and Modify Jefferson County Consent Decree Jefferson County's Objections to Proposed Scheduling Order filed by Jefferson Cty. (Fitzpatrick, Raymond) (Entered: 10/04/2007)

10/10/2007

1415

ORDER that the parties are directed to appear for the next conference in this action at 9:30 am Thursday, October 18, 2007; the conference will be conducted at the United States Courthouse located at 101 Holmes Avenue, Huntsville, AL. Signed by Judge C Lynwood Smith Jr on 10/10/07. (AHI) (Entered: 10/10/2007)

10/11/2007

1416

RESPONSE in Opposition re 1406 MOTION to Disqualify Counsel Motion to Disqualify Fitzpatrick and Brown as Additional Counsel for Jefferson County Fitzpatrick & Brown's Response to Martin/Bryant Parties' Motion to Disqualify Fitzpatrick & Brown as Additional Counsel for Jefferson County filed by Jefferson Cty. (Attachments: # 1 Exhibit Attachment 1# 2 Exhibit Attachment 2# 3 Exhibit Attachment 3# 4 Exhibit Attachment 4# 5 Exhibit Attachment 5# 6 Exhibit Attachment 6# 7 Exhibit Attachment 7# 8 Exhibit Attachment 8# 9 Exhibit Attachment 9# 10 Exhibit Attachment 10# 11 Exhibit Attachment 11# 12 Exhibit Attachment 12# 13 Exhibit Attachment 13# 14 Exhibit Attachment 14# 15 Exhibit Attachment 15# 16 Exhibit Attachment 16# 17 Exhibit Attachment 17# 18 Exhibit Attachment 18# 19 Exhibit Attachment 19# 20 Exhibit Attachment 20# 21 Exhibit Attachment 21# 22 Exhibit Attachment 22)(Fitzpatrick, Raymond) Modified on 10/11/2007 (AHI, ). (Entered: 10/11/2007)

10/11/2007

1417

NOTICE by Jefferson County Personnel Board of filing of September 2007 Monthly Report (Attachments: # 1 Exhibit September 2007 Monthly Report of the Personnel Board of Jefferson County)(Dettling, Aaron) (Entered: 10/11/2007)

10/15/2007

1418

It is ORDERED that Ann D. Florie is appointed to Place Three on the Jefferson County Personnel Board for a 6 year term commencing 11/1/2007; it is further ORDERED that this appointment is made binding on all members of the Citizen's Supervisory Commission as more fully set out in order. Signed by Judge C Lynwood Smith Jr on 1015/2007. (AHI) (Entered: 10/15/2007)

10/16/2007 1419 NOTICE of Monthly Report of Monitor, September 2007, by William I Sauser, Jr (AHI ) (Entered: 10/16/2007)

10/17/2007

1420

REPLY to Response to Motion re 1406 MOTION to Disqualify Counsel Motion to Disqualify Fitzpatrick and Brown as Additional Counsel for Jefferson County Martin/Bryant Parties' Reply to Fitzpatrick & Brown's Response to Martin/Bryant Parties' Motion to Disqualify Fitzpatrick and Brown as Additional Counsel for Jefferson County filed by Bryant, Martin. (Attachments: # 1 Greenberg Declaration# 2 Exhibit Greenberg Decl. Ex. 1 (Reply)# 3 Exhibit Greenberg Decl. Ex. 2 (Reply)# 4 Exhibit Greenberg Decl. Ex. 4# 5 Exhibit Greenberg Decl. Ex. 5# 6 Exhibit Greenberg Decl. Ex. 6# 7 Exhibit Greenberg Decl. Ex. 7# 8 Exhibit Greenberg Decl. Ex. 8# 9 Exhibit Greenberg Decl. Ex. 9# 10 Exhibit Greenberg Decl. Ex. 10# 11 Exhibit Greenberg Decl. Ex. 11# 12 Exhibit Greenberg Decl. Ex. 12# 13 Exhibit Greenberg Decl. Ex. 13)(Greenberg, Kristy) (Entered: 10/17/2007)

10/18/2007

1421

REPLY to Response to Motion re 1406 MOTION to Disqualify Counsel Motion to Disqualify Fitzpatrick and Brown as Additional Counsel for Jefferson County Martin/Bryant Parties' Corrected Reply to Fitzpatrick & Brown's Response to Martin/Bryant Parties' Motion to Disqualify Fitzpatrick and Brown As Additional Counsel for Jefferson County filed by Bryant, Martin. (Greenberg, Kristy) (Entered: 10/18/2007)

10/19/2007

1422

ORDER that the deadline for filing responses to the City's motion for reconsideration of this court's order denying the City's motion to terminate its consent decree is extended to January 14, 2008; the City must file any reply submission on or before January 28, 2008; further, all discovery pursuant to this Court's August 20, 2007 memorandum opinion and order is suspended until January 14, 2008; Discovery must be completed by March 14, 2008; if the City intends to refile its motion to terminate its consent decree, it must do so on or before April 14, 2008. Signed by Judge C Lynwood Smith Jr on 10/19/07. (SPT, ) (Entered: 10/19/2007)

10/25/2007 1423 RESPONSE in Opposition re 1406 MOTION to Disqualify Counsel Motion to Disqualify Fitzpatrick and Brown as Additional Counsel for

Jefferson County Supplemental Response of Fitzpatrick and Brown to Motion for Disqualification filed by Jefferson Cty. (Attachments: # 1 Attachment 2# 2 Attachment 3# 3 Attachment 4# 4 Attachment 5# 5 Attachment 6)(Fitzpatrick, Raymond) (Entered: 10/25/2007)

11/01/2007

1424

REPLY to Response to Motion re 1406 MOTION to Disqualify Counsel Motion to Disqualify Fitzpatrick and Brown as Additional Counsel for Jefferson County Martin/Bryant Parties' Reply to Supplemental Response of Fitzpatrick & Brown to Motion For Disqualification (Doc. No. 1406) filed by Bryant, Martin. (Attachments: # 1 Greenberg Declaration# 2 Exhibit Greenberg Decl. Ex. 1# 3 Exhibit Greenberg Decl. Ex. 2# 4 Exhibit Greenberg Decl. Ex. 3# 5 Exhibit Greenberg Decl. Ex. 4# 6 Exhibit Greenberg Decl. Ex. 5# 7 Exhibit Greenberg Decl. Ex. 6# 8 Exhibit Greenberg Decl. Ex. 7# 9 Exhibit Greenberg Decl. Ex. 8# 10 Exhibit Greenberg Decl. Ex. 9# 11 Exhibit Greenberg Decl. Ex. 10# 12 Exhibit Greenberg Decl. Ex. 11# 13 Exhibit Greenberg Decl. Ex. 12# 14 Exhibit Greenberg Decl. Ex. 13)(Greenberg, Kristy) (Entered: 11/01/2007)

11/05/2007

1425

REPLY to 1406 Sur-Reply of Fitzpatrick & Brown to Reply to Supplemental Response to Motion for Disqualification filed by Jefferson Cty. (Attachments: # 1 Exhibit 2)(Fitzpatrick, Raymond) Modified on 11/6/2007 (AHI). (Entered: 11/05/2007)

11/26/2007 1426 NOTICE of Monthly Report of Monitor, October 2007, filed by William I. Sauser, Jr (AHI) (Entered: 11/26/2007)

11/27/2007

1427

NOTICE by Jefferson County Personnel Board of filing of October 2007 Monthly Report (Attachments: # 1 Exhibit October 2007 Monthly Report of the Personnel Board of Jefferson County)(Dettling, Aaron) (Entered: 11/27/2007)

12/10/2007 1428 NOTICE of Appearance by Brandy Murphy Lee on behalf of Bham City of (Lee, Brandy) (Entered: 12/10/2007)

12/19/2007

1429

MOTION Final Relief from 1981 Consent Decree , As Amended, with Supporting Memorandum by Jefferson County Personnel Board. (Attachments: # 1 Exhibit Dettling Declaration# 2 Dettling Declaration Ex. 1# 3 Dettling Declaration Ex. 2)(Dettling, Aaron) Modified on 2/4/2009 (LCW, ). (Entered: 12/19/2007)

12/20/2007

1430

NOTICE by Jefferson County Personnel Board of filing of November 2007 Monthly Report (Attachments: # 1 Exhibit November 2007 Monthly Report of the Personnel Board of Jefferson County)(Dettling, Aaron) (Entered: 12/20/2007)

12/28/2007 1431 MOTION to Withdraw as Attorney by Bham City of. (Yuengert, Anne) (Entered: 12/28/2007)

01/04/2008

1432

ORDER that upon review of the motion for final relief from its consent decree, the court concludes that the parties should be allowed a period of discovery prior to filing their respective responses. All Discovery relative to the Personnel Board's motion must be completed on or before March 21, 2008. Any objections to the Personnel Board's motion must be filed on or before April 21, 2008. All objections must be accompanied by a brief setting forth legal basis for the objection, as well as any supporting evidence. The court will enter a briefing schedule on the objections, if necessary, once they have been filed. If any party has no objection to the Personnel Board's motion, it must state so, in writing, on or before April 21, 2008. Signed by Judge C Lynwood Smith Jr on 01/04/08. (SPT, ) (Entered: 01/04/2008)

01/04/2008 1433 NOTICE of Appearance by Hycall Brooks, III on behalf of Bham City of (Brooks, Hycall) (Entered: 01/04/2008)

01/04/2008 1434 NOTICE of Appearance by Charles I Brooks on behalf of Bham City of (Brooks, Charles) (Entered: 01/04/2008)

01/07/2008 1435 NOTICE of Appearance by Tiffany Johnson on behalf of Bham City of (Johnson, Tiffany) (Entered: 01/07/2008)

01/11/2008

1436

RESPONSE to Motion re 1401 MOTION to Amend/Correct 1399 Memorandum Opinion,, Order,, Terminate Motions, Wilks Class' Response to City Motion to Alter or Amend the Court's August 20, 2007 Memorandum Opinion and Order filed by Wilks Class. (Brown, Gary) (Entered: 01/11/2008)

01/16/2008

1437

MEMORANDUM OPINION and ORDER, it is ORDERED that the Martin-Bryant parties' 1406 Motion to Disqualify the law firm of Fitzpatrick & Brown LLP from serving as additional counsel for Jefferson County, Alabama be, and it hereby is GRANTED, as more fully set out in order. Signed by Judge C Lynwood Smith Jr on 1/16/08. (AHI) (Entered: 01/16/2008)

01/17/2008 1438 NOTICE of Monthly Report of Monitor, December 2007 by William I Sauser, Jr (AHI) (Entered: 01/17/2008)

01/17/2008

1439

NOTICE by Jefferson County Personnel Board of filing of December 2007 Monthly Report (Attachments: # 1 Exhibit December 2007 Monthly Report of the Personnel Board of Jefferson County)(Dettling, Aaron) (Entered: 01/17/2008)

02/05/2008 1440 MOTION for Leave to Appear Pro Hac Vice Motion to Admit Elizabeth A. Lewis Pro Hac Vice by Bryant, Martin. (Attachments: # 1 Text of Proposed Order)(Wilson, Rowan) (Entered: 02/05/2008)

02/05/2008 1441 NOTICE of Appearance by Grace Robinson Murphy on behalf of Jefferson Cty (Murphy, Grace) (Entered: 02/05/2008)

02/07/2008 1442 MOTION to Vacate Wilks Class' Motion for Final Termination of the 1981 Consent Decree with the Personnel Board of Jefferson County by Wilks Class. (Fitzpatrick, Raymond) (Entered: 02/07/2008)

02/07/2008

PHV Fee paid: ( $ 50.00, receipt number 200 243818 )for Elizabeth A. Lewis (AHI) (Entered: 02/07/2008)

02/07/2008

1443

Amended MOTION to Vacate Wilks Class' Motion for Final Termination of the 1981 Consent Decree with the Personnel Board of Jefferson County (Corrected) by Wilks Class. (Fitzpatrick, Raymond) Modified on 2/4/2009 (LCW, ). (Entered: 02/07/2008)

02/07/2008

ORDER granting 1440 Motion for Leave to Appear pro hac vice by Elizabeth A. Lewis. Signed by Judge C Lynwood Smith Jr on February 7, 2008. (ADS) (Entered: 02/07/2008)

02/07/2008

ORDER finding as moot 1442 Wilks Class's motion for final termination of the 1981 consent decree with the Personnel Board of Jefferson County, in light of the amended motion filed. Signed by Judge C Lynwood Smith Jr on February 7, 2008. (ADS) (Entered: 02/07/2008)

02/07/2008

1444

ORDER that the parties are directed to appear for the next conference in this action at 9:30 am Wednesday, March 13, 2008; the conference will be conducted in Courtroom No. 3 of the Robert S. Vance Federal Building at 1800 Fifth Avenue North, Birmingham, Alabama. Signed by Judge C Lynwood Smith Jr on 2/7/2008. (AHI) (Entered: 02/07/2008)

02/08/2008 1445 MOTION to Quash Wilks Class' Motion for Protective Order or Order to Quash Deposition Notices by Wilks Class. (Attachments: # 1 Notices# 2 Letter)(Fitzpatrick, Raymond) (Entered: 02/08/2008)

02/08/2008 1446 ORDER Wilks Class' 1445 Motion for a Protective Order and Motion to Quash is DENIED. Signed by Judge C Lynwood Smith Jr on 2/8/2008. (AHI ) (Entered: 02/08/2008)

02/08/2008

1447 ORDER, any party that wishes to respond to the Wilks Class's motion must do so by 4/21/2008. Signed by Judge C Lynwood Smith Jr on 2/8/2008. (AHI) (Entered: 02/08/2008)

03/04/2008 1448 NOTICE of Appearance by Susan Jane Walker on behalf of Jim Woodward (Walker, Susan) (Entered: 03/04/2008)

03/04/2008

1449

MOTION for Protective Order & Objection to Portions of the Deposition Notice to the Jefferson County Sheriff's Office by Jim Woodward. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Walker, Susan) (Entered: 03/04/2008)

03/05/2008

1450

RESPONSE in Opposition re 1449 MOTION for Protective Order & Objection to Portions of the Deposition Notice to the Jefferson County Sheriff's Office ("Response to the Jefferson County Sheriff's Office's Objection to Portions of the Deposition Notice to the Jefferson County Sheriff's Office and Motion For Protective Order") filed by Bryant, Martin. (Attachments: # 1 Declaration of Elizabeth A. Lewis# 2 Exhibit A to Declaration of Elizabeth A. Lewis# 3 Exhibit B to Declaration of Elizabeth A. Lewis# 4 Exhibit C to Declaration of Elizabeth A. Lewis# 5 Exhibit D to Declaration of Elizabeth A. Lewis# 6 Exhibit E to Declaration of Elizabeth A. Lewis# 7 Exhibit F to Declaration of Elizabeth A. Lewis)(Lewis, Elizabeth) (Entered: 03/05/2008)

03/07/2008

1451 ORDER 1449 Motion for Protective Order is DENIED; as more fully set out in order. Signed by Judge C Lynwood Smith Jr on 3/7/2008. (AHI) (Entered: 03/07/2008)

03/07/2008

1452

NOTICE by Jefferson County Personnel Board of filing of January 2008 Monthly Report (Attachments: # 1 Exhibit January 2008 Monthly Report of the Personnel Board of Jefferson County)(Dettling, Aaron) (Entered: 03/07/2008)

03/10/2008 1453 NOTICE of Monthly Report of Monitor, January and February 2008, by William I Sauser, Jr (AHI) (Entered: 03/10/2008)

03/11/2008

1454

RESPONSE to Motion re 1401 MOTION to Amend/Correct 1399 Memorandum Opinion,, Order,, Terminate Motions, Wilks Class' Supplemental Response to City of Birmingham's Motion to Alter or Amend the Court's August 20, 2007 Memorandum Opinion and Order filed by Wilks Class. (Fitzpatrick, Raymond) (Entered: 03/11/2008)

03/14/2008

ORDER granting 1431 Motion to Withdraw as Attorney. Attorneys Scott B Smith; Anne R Yuengert; James P Alexander and Ronald H Kent, Jr. terminated. Signed by Judge C Lynwood Smith Jr on March 14, 2008. (ADS) (Entered: 03/14/2008)

03/14/2008 1455 NOTICE by Bham City of COMPLIANCE (Attachments: # 1 Exhibit Compliance Attachment)(Brooks, Hycall) (Entered: 03/14/2008)

03/21/2008 1456 Mail [Order granting motion to withdraw] Returned as Undeliverable. Mail sent to James P. Alexander "Return to sender attempted not known unable to forward" (AHI) (Entered: 03/21/2008)

03/24/2008 1457 NOTICE of Filing Special Report of the Monitor, March 23, 2008, by William I Sauser, Jr . (SPT, ) Modified on 4/15/2008 (AHI). (Entered: 03/24/2008)

03/25/2008

1458

ORDER TO SHOW CAUSE, the county is ODERED to show cause why it should not held in civil contempt for failing to comply with the Decree, why this court should not modify the Decree in the manner propsoed by the Martin-Bryant parties, and why this court should not grant such other equitable relief as is necessary to purge the County of its contempt and secure compliance with the Decree; County response to Martin/Bryant motion due 4/28/2008; affirmative expert reports due 6/6/2008; rebuttal expert reports due 6/30/2008; expert discovery shall conclude on 7/14/2008; witness and exhibit lists due 7/14/2008; objections due 8/4/2008; motions in limine due 8/11/2008; parties joint pre-trial order due 8/18/2008; pre-trial memoranda of law due 8/18/2008; responses to motions in limine due 8/28/2008; trail set for 9/8/2008; as more fully set out in order. Signed by Judge C Lynwood Smith Jr on 3/25/2008. (AHI, ) (Entered: 03/25/2008)

03/25/2008

Set/Deadlines and Hearing: Responses to 1413 MOTION for Order to Show Cause due by 4/28/2008, Discovery due by 7/14/2008, Exhibit List due by 7/14/2008, Witness List due by 7/14/2008, Motions in Limine due by 8/28/2008, Pretrial Order due by 8/18/2008, Jury Trial set for 9/8/2008 09:00 AM before Judge C Lynwood Smith Jr. (AHI) (Entered: 03/25/2008)

03/31/2008 1459 NOTICE of Filing ADDENDUM to 1457 Special Report of the Monitor, March 23, 2008 by William I Sauser, Jr (AHI) Modified on 4/15/2008 (AHI). (Entered: 03/31/2008)

03/31/2008

1460

ORDER Motion to Extend the Deadlines for Filing Responses to the Personnel Board's Motion for Final Relief from its Consent Decree is GRANTED, but only to the limited extent set forth in this this order. Signed by Judge C Lynwood Smith Jr on 3/31/2008. (AHI) (Entered: 03/31/2008)

03/31/2008

1461

ORDER it is ORDERED that the deadlines for the City to refile its Motion to Terminate its Consent Decree is extened to 6/13/2008; as more fully set out in order. Signed by Judge C Lynwood Smith Jr on 3/31/2008. (AHI) (Entered: 03/31/2008)

04/01/2008 1462 NOTICE by Jefferson County Personnel Board of filing of February 2008 Monthly Report (Attachments: # 1 Exhibit February 2008 Monthly

Report of the Personnel Board of Jefferson County)(Dettling, Aaron) (Entered: 04/01/2008)

04/01/2008

1463

ORDER that the parties are directed to appear for the next conference in this action at 9:30 am Thursday, April 17, 2008; the conference will be conducted in Courtroom No. 3 of the Robert S. Vance Federal Building at 1800 Fifth Avenue North, Birmingham, Alabama. Signed by Judge C Lynwood Smith Jr on 4/1/2008. (AHI ) (Entered: 04/01/2008)

04/14/2008

1464

NOTICE by Jefferson County Personnel Board of Filing of March 2008 Monthly Report (Attachments: # 1 Appendix March 2008 Monthly Report of the Personnel Board of Jefferson County)(Dettling, Aaron) (Entered: 04/14/2008)

04/14/2008

1465

TRANSCRIPT of Proceedings held on March 6, 2008 before Judge C. Lynwood Smith, Jr.. Court Reporter: Teresa Roberson. [Contact court reporter for copy of transcript] (Attachments: # 1 court reporter signature) (SMH2, ) (Entered: 04/14/2008)

04/15/2008 1466 NOTICE of Monthly Report of Monitor, March 2008 by William I Sauser, Jr (AHI) (Entered: 04/15/2008)

04/16/2008

ORDER that the Status Conference set for April 17, 2008 will commence at 8:00 a.m. before Judge C Lynwood Smith Jr., in Courtroom 3 of the Robert S. Vance Federal Building in Birmingham, Alabama. Signed by Judge C Lynwood Smith Jr on 04/16/2008. (LCW) (Entered: 04/16/2008)

04/17/2008

1467

TRANSCRIPT of Status Conference held on April 17, 2008, before Judge Honorable C. Lynwood Smith, Jr. Court Reporter: Teresa Roberson. [Contact court reporter for copy of transcript] (Attachments: # 1) (KAM, ) (Entered: 04/17/2008)

04/28/2008

1468

RESPONSE to Motion re 1413 MOTION for Order to Show Cause Martin/Bryant Parties' Motion to Hold Defendant Jefferson County in Civil Contempt and Modify Jefferson County Consent Decree filed by Jefferson Cty. (Murphy, Grace) (Entered: 04/28/2008)

05/12/2008 1469 RESPONSE to Motion re 1429 MOTION Final Relief from 1981 Consent Decree , As Amended, with Supporting Memorandum filed by United States of America. (Adelstein, Jay) (Entered: 05/12/2008)

05/12/2008

1470 RESPONSE to Jefferson County Personnel Board's Motion for Final Relief from the 1981 Consent Decree filed by Jefferson Cty. (Murphy, Grace) (Entered: 05/12/2008)

05/12/2008

1471

***DUPLICATE TO MAIN DOC. 1472*** RESPONSE in Opposition re 1429 MOTION Final Relief from 1981 Consent Decree , As Amended, with Supporting Memorandum MARTIN/BRYANT PARTIES' OPPOSITION TO THE PERSONNEL BOARD OF JEFFERSON COUNTY'S MOTION FOR FINAL RELIEF FROM 1981 CONSENT DECREE filed by Bryant, Martin. (Wilson, Rowan) Modified on 5/13/2008 (AHI). (Entered: 05/12/2008)

05/13/2008

1472

RESPONSE in Opposition re 1429 MOTION Final Relief from 1981 Consent Decree , As Amended, with Supporting Memorandum MARTIN/BRYANT PARTIES' OPPOSITION TO THE PERSONNEL BOARD OF JEFFERSON COUNTY'S MOTION FOR FINAL RELIEF FROM 1981 CONSENT DECREE filed by Bryant, Martin. (Attachments: # 1 Declaration of Elizabeth A. Lewis, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Exhibit 35, # 37 Exhibit 36, # 38 Exhibit 37, # 39 Exhibit 38, # 40 Exhibit 39, # 41 Exhibit 40, # 42 Exhibit 41, # 43 Exhibit 42, # 44 Exhibit 43, # 45 Exhibit 44, # 46 Exhibit 45, # 47 Exhibit 46, # 48 Exhibit 47, # 49 Exhibit 48, # 50 Exhibit 49, # 51 Exhibit 50, # 52 Exhibit 51, # 53 Exhibit 52, # 54 Exhibit 53, # 55 Exhibit 54, # 56 Exhibit 55, # 57 Exhibit 56, # 58 Exhibit 57, # 59 Exhibit 58, # 60 Exhibit 59, # 61 Exhibit 60, # 62 Exhibit 61, # 63 Exhibit 62, # 64 Exhibit 63, # 65 Exhibit 64, # 66 Exhibit 65)(Wilson, Rowan) (Additional attachment(s) added on 5/13/2008: # 67 Exhibit 62 SEALED DOCUMENT) (AHI, ). (Additional attachment(s) added on 5/13/2008: # 68 Exhibit 63 SEALED DOCUMENT) (AHI, ). (Additional attachment(s) added on 5/13/2008: # 69 Exhibit 64 SEALED DOCUMENT) (AHI, ). (Additional attachment(s) added on 5/13/2008: # 70 Exhibit 65 SELAED DOCUMENT) (AHI, ). (Entered: 05/13/2008)

05/15/2008

1473

ORDER Counsel for all parties are ORDERED to appear for a Status Conference set for 5/22/2008, 09:30 AM, U.S. Courthouse, 101 Holmes Avenue, Huntsville, AL, before Judge C Lynwood Smith Jr., as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 5/15/2008. (AHI) (Entered: 05/15/2008)

05/16/2008 1474 Emergency MOTION for instructions by Jefferson County Personnel Board. (Dettling, Aaron) (Entered: 05/16/2008)

05/19/2008 1475 NOTICE of Monthly Report of Monitor, April, 2008 by William I Sauser, Jr (AHI) (Entered: 05/19/2008)

05/23/2008

1476

ORDER that the Personnel Board is ordered to file a written response to the objections of the US and the Martin-Bryant parties, including supporting briefs and evidentiary materials, on or before July 25, 2008; any other party who desires to file a response to the objections of the US and Martin-Bryant parties must do so on or before July 25, 2008. Signed by Judge C Lynwood Smith, Jr on 05/23/08. (SPT, ) (Entered: 05/23/2008)

05/23/2008

1477

ORDER granting 1474 Motion of the current three-member Personnel Board for instructions on how to proceed in light of the passage of Alabama Act No. 408; In accordance with the court's oral comments at the status conference conducted on May 22, 2008 it is hereby ordered that the three current members of the Personnel Board shall remain in service for 30 days from the date of this order as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 05/23/08. (SPT, ) (Entered: 05/23/2008)

05/23/2008 1478 MOTION to Withdraw as Attorney by Jim Woodward. (Woolley, Tammy) (Entered: 05/23/2008)

05/23/2008

ORDER granting 1478 Motion to Withdraw as Attorney. Attorney Tammy C Woolley terminated. Signed by Judge C Lynwood Smith, Jr on March 23, 2008. (ADS ) (Entered: 05/23/2008)

05/30/2008

1479

MOTION for Permanent Injunction Wilks Class' Motion for Declaratory and Injunctive Relief from Race-based Provisions of Act No. 2008-408 of the 2008 Regular Session of the Alabama Legislature by Wilks Class. (Attachments: # 1 Exhibit A - Act No. 2008 408)(Fitzpatrick, Raymond) (Entered: 05/30/2008)

06/03/2008

1480

ORDER that the parties are directed to appear for the next conference in this action at 9:30 am Thursday, June 19, 2008; the conference will be conducted in Courtroom No. 3 of the Robert S. Vance Federal Building at 1800 Fifth Avenue North, Birmingham, Alabama. Signed by Judge C Lynwood Smith, Jr on 6/3/2008. (AHI) (Entered: 06/03/2008)

06/03/2008

1481

ORDER any party wishing to repsond to the Wilks Class' motion is ORDERED to do so by 6/16/2008; any reply by the Wilks Class must be filed by 6/26/2008; it is further ORDERED that the order entered on 5/23/2008, directing the three current members of the Personnel Board to remain in service for 30 days is extended, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 6/3/2008. (AHI) (Entered: 06/03/2008)

06/03/2008 1482 District Court Certification of Constitutional Question. Signed by Judge C Lynwood Smith, Jr on 6/3/2008. (AHI ) (Entered: 06/03/2008)

06/04/2008

1483

NOTICE by Jefferson County Personnel Board of filing of April 2008 Monthly Report (Attachments: # 1 Appendix April 2008 Monthly Report of the Personnel Board of Jefferson County)(Dettling, Aaron) (Entered: 06/04/2008)

06/04/2008

1484

NOTICE by Jefferson County Personnel Board of Filing of 2008 SemiAnnual Report and 2009 Fiscal Year Operating Budget (Attachments: # 1 Appendix 2008 Semi-Annual Report of the Personnel Board of Jefferson County, # 2 Appendix 2009 Fiscal Year Operating Budget)(Dettling, Aaron) (Entered: 06/04/2008)

06/05/2008

1485 Notice of Appearance John P. Cunningham by United States of America. (Adelstein, Jay) Modified on 6/6/2008 (AHI). (Entered: 06/05/2008)

06/13/2008

1486

MOTION to Dismiss City as Party & Terminate the Remainder of the City of Birmingham Consent Decree by Bham City of. (Attachments: # 1 Exhibit A, # 2 Exhibit A-1, # 3 Exhibit A-2.1, # 4 Exhibit A-2.2, # 5 Exhibit A-3, # 6 Exhibit A-4, # 7 Exhibit B, # 8 Exhibit C, # 9 Exhibit C-2)(Lee, Brandy) (Entered: 06/13/2008)

06/16/2008

1487

ORDER responses to the City of Birmingham's Motion to Terminate the Remaining Provisions of its Consent Decree must be filed by 7/16/2008; reply submissions must be filed by 7/30/2008, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 6/16/2008. (AHI) (Entered: 06/16/2008)

06/16/2008

1488

RESPONSE in Opposition re 1479 MOTION for Permanent Injunction Wilks Class' Motion for Declaratory and Injunctive Relief from Racebased Provisions of Act No. 2008-408 of the 2008 Regular Session of the Alabama Legislature Response in Opporsition to Wilks Class' Motion for Declaratory & Injunctive Relief from Race Based Provisions filed by Bham City of. (Lee, Brandy) (Entered: 06/16/2008)

06/16/2008

1489

NOTICE by Jefferson County Personnel Board of filing of May 2008 Monthly Report of the Personnel Board of Jefferson County (Attachments: # 1 Appendix May 2008 Monthly Report of the Personnel Board of Jefferson County)(Dettling, Aaron) (Entered: 06/16/2008)

06/16/2008 1490 NOTICE of Filing Certified Mail return from Hon. Troy King (AHI) (Entered: 06/16/2008)

06/16/2008

1491

RESPONSE to Motion re 1479 MOTION for Permanent Injunction Wilks Class' Motion for Declaratory and Injunctive Relief from Racebased Provisions of Act No. 2008-408 of the 2008 Regular Session of the Alabama Legislature in accordance with Court's Order of June 3, 2008 (Doc. No. 1481) filed by Jefferson County Personnel Board. (Attachments: # 1 Exhibit Act No. 408, # 2 Exhibit Substitute Bill 98535-1, # 3 Exhibit Birmingham News, February 28, 2008, # 4 Exhibit Birmingham News April 3, 2008, # 5 Exhibit Senate Bill 566, # 6 Exhibit 2007 House Bill 818, # 7 Exhibit 2007 Senate Bill 485)(Dettling, Aaron) (Entered: 06/16/2008)

06/16/2008

1492

RESPONSE in Opposition re 1479 MOTION for Permanent Injunction Wilks Class' Motion for Declaratory and Injunctive Relief from Racebased Provisions of Act No. 2008-408 of the 2008 Regular Session of the Alabama Legislature filed by Bryant, Martin. (Attachments: # 1 Lewis Declaration, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Lewis, Elizabeth) (Entered: 06/16/2008)

06/17/2008 1493 NOTICE of Monthly Report of Monitor, May, 2008 by William I Sauser, Jr (AHI) (Entered: 06/17/2008)

06/18/2008

1494

MOTION to Strike Martin/Bryant Parties' Motion to Strike Jefferson Countys Proposed Expert Testimony, Preclude the use by Jefferson County of Evidence not Produced to the Martin/Bryant Parties and for Sanctions by Bryant, Martin. (Attachments: # 1 Lewis Declaration, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Errata 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 22, # 25 Exhibit 23, # 26 Exhibit 23, # 27 Exhibit 24, # 28 Exhibit 25, # 29 Exhibit 26, # 30 Exhibit 27, # 31 Exhibit 28, # 32 Exhibit 29, # 33 Exhibit 30, # 34 Exhibit 31, # 35 Exhibit 32, # 36 Exhibit 33, # 37 Exhibit 34)(Lewis, Elizabeth) Modified on 6/18/2008 (AHI). (Entered: 06/18/2008)

06/18/2008

1495

NOTICE by Bryant, Martin re 1494 MOTION to Strike Martin/Bryant Parties' Motion to Strike Jefferson Countys Proposed Expert Testimony, Preclude the use by Jefferson County of Evidence not Produced to the Martin/Bryant Parties and for Sanctions Martin/Bryant Parties' Notice of Corrected Exhibits to the Declaration of Elizabeth A. Lewis filed on June 18, 2008 (Attachments: # 1 Corrected exhibit #26 to Declaration of Elizabeth A. Lewis filed on June 18, 2008, # 2 Corrected exhibit #28 to Declaration of Elizabeth A. Lewis filed on June 18, 2008, # 3 Corrected exhibit #32 to Declaration of Elizabeth A. Lewis filed on June 18, 2008)(Lewis, Elizabeth) (Entered: 06/18/2008)

06/20/2008

1496

ORDER TO SHOW CAUSE, Jefferson County is ORDERED to show cause in writing by 7/3/2008, why the court should not grant the relief requested by the Martin-Bryant parties, reply to the show cause response is due by 7/10/2008, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 6/20/2008. (AHI) (Entered: 06/20/2008)

06/25/2008

1497

MOTION for Extension of Time to File Response/Reply as to 1488 Response in Opposition to Motion, 1492 Response in Opposition to Motion, Wilks Class' Unopposed Motion for Extension of time to Respond to City of Birmingham and Martin/Bryant Parties' Opposition to Its Motion For Declaratory and Injunctive Relief (doc nos 1488 & 1492) by Wilks Class. (Fitzpatrick, Raymond) (Entered: 06/25/2008)

06/25/2008

ORDER granting 1497 Motion for Extension of Time to File Response/Reply. Signed by Judge C Lynwood Smith, Jr on June 25, 2008. (ADS) (Entered: 06/25/2008)

06/30/2008

1498

REPLY to Response to Motion re 1479 MOTION for Permanent Injunction Wilks Class' Motion for Declaratory and Injunctive Relief from Race-based Provisions of Act No. 2008-408 of the 2008 Regular Session of the Alabama Legislature Wilks Class' Reply to City of Birmingham and Martin-Bryant Parties' Opposition to Motion for Declaratory and Injunctive Relief (Doc. nos 1488, 1492) filed by Wilks Class. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Fitzpatrick, Raymond) (Entered: 06/30/2008)

07/03/2008

1499 Consent MOTION for Extension of Time for Expert Discovery and Witness and Exhibit Lists by Jefferson Cty. (Murphy, Grace) (Entered: 07/03/2008)

07/03/2008

1500

RESPONSE in Opposition re 1494 MOTION to Strike Martin/Bryant Parties' Motion to Strike Jefferson Countys Proposed Expert Testimony, Preclude the use by Jefferson County of Evidence not Produced to the Martin/Bryant Parties and for Sanctions filed by Jefferson Cty. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I Part 1, # 10 Exhibit I Part 2, # 11 Exhibit J, # 12 Exhibit K)(Murphy, Grace) (Entered: 07/03/2008)

07/07/2008

ORDER granting 1499 Motion for Extension of Time for expert discovery and witness and exhibit lists. Signed by Judge C Lynwood Smith, Jr on July 7, 2008. (ADS) (Entered: 07/07/2008)

07/10/2008 1501 ORDER that Counsel for the parties are directed to appear for the next conference in this action at 9:30 a.m. Thursday, July 31, 2008; the conference will be conducted in the United States Courthouse located at

101 Holmes Avenue, Huntsville, Alabama. Signed by Judge C Lynwood Smith, Jr on 7/10/2008. (AHI) (Entered: 07/10/2008)

07/10/2008

1502

REPLY to Response to Motion re 1494 MOTION to Strike Martin/Bryant Parties' Motion to Strike Jefferson Countys Proposed Expert Testimony, Preclude the use by Jefferson County of Evidence not Produced to the Martin/Bryant Parties and for Sanctions filed by Bryant, Martin. (Attachments: # 1 Affidavit Lewis Declaration, # 2 Exhibit 35, # 3 Exhibit 36, # 4 Exhibit 37, # 5 Exhibit 38, # 6 Exhibit 39, # 7 Exhibit 39, # 8 Exhibit 40, # 9 Exhibit 41, # 10 Exhibit 42, # 11 Exhibit 43, # 12 Exhibit 44, # 13 Exhibit 45)(Lewis, Elizabeth) (Entered: 07/10/2008)

07/15/2008

1503 RESPONSE to Motion re 1486 MOTION to Dismiss City as Party & Terminate the Remainder of the City of Birmingham Consent Decree filed by Jefferson Cty. (Murphy, Grace) (Entered: 07/15/2008)

07/15/2008

1504

RESPONSE to Motion re 1486 MOTION to Dismiss City as Party & Terminate the Remainder of the City of Birmingham Consent Decree Wilks Class' Response to Renewed Motion to Terminate the Remainder of the City of Birmingham Consent Decree and to Dismiss City as Party filed by Wilks Class. (Attachments: # 1 Exhibit Exhibit 1)(Fitzpatrick, Raymond) (Entered: 07/15/2008)

07/16/2008

1505

RESPONSE to Motion re 1486 MOTION to Dismiss City as Party & Terminate the Remainder of the City of Birmingham Consent Decree filed by United States of America. (Cunningham, John) (Entered: 07/16/2008)

07/16/2008

1506

RESPONSE to Motion re 1486 MOTION to Dismiss City as Party & Terminate the Remainder of the City of Birmingham Consent Decree filed by Bryant, Martin. (Attachments: # 1 Affidavit of Elizabeth A. Lewis, # 2 Exhibit 46 to Lewis Declaration, # 3 Exhibit 47 to Lewis Declaration, # 4 Exhibit 48 to Lewis Declaration, # 5 Exhibit 49 to Lewis Declaration, # 6 Exhibit 50 to Lewis Declaration, # 7 Exhibit 51 to Lewis Declaration, # 8 Exhibit 52 to Lewis Declaration)(Lewis, Elizabeth) (Entered: 07/16/2008)

07/25/2008

1507

REPLY to Response to Motion re 1429 MOTION Final Relief from 1981 Consent Decree , As Amended, with Supporting Memorandum, 1443 Amended MOTION to Vacate Wilks Class' Motion for Final Termination of the 1981 Consent Decree with the Personnel Board of Jefferson County (Corrected) Wilks Class' Reply To Plaintiffs' Oppositions To the Motions Seeking Final Relief From The Personnel Board Decree filed by Wilks Class. (Attachments: # 1 Exhibit A)(Fitzpatrick, Raymond) (Entered: 07/25/2008)

07/25/2008

1508

Brief re 1429 MOTION Final Relief from 1981 Consent Decree , As Amended, with Supporting Memorandum filed by Jefferson County Personnel Board. (Attachments: # 1 Exhibit Expert Report of P. Richard Jeanneret, # 2 Exhibit Expert Report of Neal Schmitt, # 3 Exhibit PBJC Response, # 4 Exhibit Deposition of Lorren Oliver (Part 1), # 5 Exhibit Deposition of Lorren Oliver (Part 2), # 6 Exhibit Deposition of Gregory James, # 7 Exhibit Letter from Wilson to Counsel July 20 2004, # 8 Exhibit Letter from Wilson to Counsel February 13 2004, # 9 Exhibit Excerpt from 2002 30(B)(6) Deposition of Greg James, # 10 Exhibit Report of Special Master, February 17, 2005, # 11 Exhibit Letter from Wilson to Counsel December 20, 2004, # 12 Exhibit Letter from Dettling to Counsel May 19 2005, # 13 Exhibit Letter from Wilson to Counsel April 29 2004, # 14 Exhibit Letter from Wilson to Counsel July 20 2004, # 15 Exhibit Letter from Thawley to Counsel July 20 2004, # 16 Exhibit Expert Report of Neal Schmitt (2005), # 17 Exhibit Letter from Wilson to Counsel February 24 2004, # 18 Exhibit Letter from Wilson to Counsel March 22 2004, # 19 Exhibit Letter from Wilson to Counsel February 20 2002, # 20 Exhibit Expert Report of Neal Schmitt (Part II-Vita))(Dettling, Aaron) (Entered: 07/25/2008)

07/29/2008 1509 NOTICE of Monthly Report of Monitor, June, 2008 by William I Sauser, Jr (AHI) (Entered: 07/29/2008)

07/29/2008 1510 STATUS REPORT Monthly Report by Jefferson County Personnel Board. (Attachments: # 1 Supplement PBJC Part 1, # 2 Supplement PBJC Part 2)(Dettling, Aaron) (Entered: 07/29/2008)

07/30/2008 1511 NOTICE of Appearance by Wayne Morse, Jr on behalf of Jim Woodward (Morse, Wayne) (Entered: 07/30/2008)

07/30/2008

1512

REPLY Brief filed by Defendant Bham City of re: 1486 MOTION to Dismiss City as Party & Terminate the Remainder of the City of Birmingham Consent Decree and to Dismiss the City as Party filed by Bham City of. (Attachments: # 1 Exhibit A)(Lee, Brandy) Modified on 7/30/2008 (AHI). (Entered: 07/30/2008)

08/01/2008 1513 NOTICE of Appearance by Byron R Perkins on behalf of Jefferson Cty (Perkins, Byron) (Entered: 08/01/2008)

08/01/2008

1514

ORDER 1494 Motion to Strike and Impose Monetary Sactions is GRANTED in part and DENIED in part; to the extent the motion seeks the exclusion of expert testimony and other evidence it is DENIED without prejudice; to the extent the motion seeks monetary sactions it is GRANTED; Counsel for the Martin-Bryant parties are ORDERED to file a sworn statement of fees and expenses by 8/15/2008; response to statement must be filed by 8/22/2008; Wagner, Lawson, and the aforesaid attorneys' ultimate supervisor are ORDERED to show cause in

writing by 8/15/2008; why fees and expenses incurred by the MartinBryant parties in pursuing discovery from Jefferson COunty, the order entered on 3/25/2008 is RESCINDED; parties are directed to confer as to a revised schedule by 8/15/ 2008; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 8/1/2008. (AHI) (Entered: 08/01/2008)

08/04/2008

1515

***RESCINDED PER ORDER ISSUED ON 8/15/2008*** ORDER it is hereby ORDERED that the transcript of the deposition of Commissioner Shelia Smoot, taken in the above-captioned action on 7/30/2008, is sealed until further order of this court, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 8/1/2008. (AHI) Modified on 8/15/2008 (AHI). (Entered: 08/04/2008)

08/04/2008 1516 JOINDER in Wilks Class' Motion Regarding Act 408 filed by Jefferson County Personnel Board. (Dettling, Aaron) (Entered: 08/04/2008)

08/05/2008

1517

ORDER the Martin-Bryant parties are ORDERED to file a written response to the Personnel Board's joinder in the Wilks Class' motion addressing at least whether the Personnel Board has standing to challenge the Act; the Martin-Bryant response is due by 8/19/2008; Personnel Board's reply is due by 8/26/2008; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 8/5/2008. (AHI) (Entered: 08/05/2008)

08/05/2008

1518

NOTICE by Jefferson County Personnel Board of filing of Expert Report of P. Richard Jeanneret, Ph.D. (Attachments: # 1 Appendix Expert Report of P. Richard Jeanneret, 14 point type)(Dettling, Aaron) (Entered: 08/05/2008)

08/05/2008 1519 MOTION to Amend/Correct Order of August 4, 2008 [Doc. 1515] by Jefferson Cty. (Murphy, Grace) (Entered: 08/05/2008)

08/06/2008

ORDER setting motion deadline 1519 Motion to Amend/Correct Response due August 13, 2008. Signed by Judge C Lynwood Smith, Jr on August 6, 2008. (ADS) (Entered: 08/06/2008)

08/06/2008 1520 MOTION for Reconsideration or in the Alternative for Enlargement of Time by Jefferson Cty. (Murphy, Grace) (Entered: 08/06/2008)

08/07/2008

1521

ORDER denying 1520 Motion for Reconsideration and denying request for an extension of time to respond to the court's show cause order as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 08/07/08. (SPT, ) (Entered: 08/07/2008)

08/08/2008 1522 MOTION for Leave to Appear Pro Hac Vice Motion to Admit Emily O. Famutimi Pro Hac Vice by Bryant, Martin. (Attachments: # 1 Text of Proposed Order)(Wilson, Rowan) (Entered: 08/08/2008)

08/11/2008

1523

RESPONSE to Motion re 1519 MOTION to Amend/Correct Order of August 4, 2008 [Doc. 1515] ("Response To Motion To Modify Protective Order") filed by Bryant, Martin. (Attachments: # 1 Certificate of Service)(Wilson, Rowan) (Entered: 08/11/2008)

08/12/2008

1524

ORDER that Counsel for the parties are directed to appear for the next conference in this action at 9:30 a.m. Thursday, August 21, 2008; the conference will be conducted in the United States Courthouse located at 101 Holmes Avenue, Huntsville, Alabama. Signed by Judge C Lynwood Smith, Jr on 8/12/2008. (AHI) (Entered: 08/12/2008)

08/14/2008

1525

NOTICE by Jefferson County Personnel Board of filing of July 2008 Monthly Report (Attachments: # 1 Appendix July 2008 Monthly Report of the Personnel Board of Jefferson County)(Dettling, Aaron) (Entered: 08/14/2008)

08/15/2008

1526

ORDER Defendant, Jefferson County's 1519 Motion to Modify the Protective ORder is GRANTED and the protective order entered on 8/4/2008, is RESCINDED; it is ORDERED that the transcript of the deposition of Commissioner Smoot, is sealed until further order of this court; the county shall file a motion to recall exhibits or testimony as privileged or desires confidential treatment by 8/22/2008, Responses to motion shall be filed by 8/29/2008, and replies shall be filed by 9/5/2008; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 8/15/2008. (AHI) Modified on 8/15/2008 (AHI). (Entered: 08/15/2008)

08/15/2008

1527

RESPONSE to Court's Show Cause Order of August 1, 2008 filed by Jefferson Cty. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K Part 1, # 12 Exhibit K Part 2, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S)(Murphy, Grace) Modified on 8/18/2008 (AHI). (Entered: 08/15/2008)

08/15/2008

1528 MOTION for Reconsideration of Court's Order of August 1, 2008 by Jefferson Cty. (Attachments: # 1 Exhibit 1)(Murphy, Grace) (Entered: 08/15/2008)

08/15/2008 1529 AFFIDAVIT of Rowan D. Wilson by Bryant, Martin. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Lewis, Elizabeth) (Entered: 08/15/2008)

08/18/2008

ORDER setting motion deadline 1528 Motion for Reconsideration of August 1, 2008 Sanction Order. The Martin-Bryant parties must respond to the motion on or before August 25, 2008. Signed by Judge C Lynwood Smith, Jr on August 18, 2008. (ADS) (Entered: 08/18/2008)

08/18/2008 1530 MOTION for Extension of Time to File Motions Set Out in Order of August 15, 2008 by Jefferson Cty. (Murphy, Grace) (Entered: 08/18/2008)

08/19/2008

1531

ORDER Defendant, Jefferson County's 1530 Motion for Extension of Time is GRANTED; Jefferson County's Motion to Recall shall be filed no later than 8/29/2008; Jefferson County shall file a motion for a protective order no later than 8/29/2008; responses to motions shall be filed no later than 9/5/2009, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 8/19/2008. (AHI) (Entered: 08/19/2008)

08/19/2008

PHV Fee paid: ($ 50.00, receipt number 200 249290 ) for Emily O. Famutimi (AHI) (Entered: 08/19/2008)

08/19/2008

1532

RESPONSE to re 1516 ("Response Of The Martin/Bryant Parties To The Joinder Of The Personnel Board Of Jefferson County In The Motion Of The Wilks Class For Declaratory And Injunctive Relief From Race-Based Provisions Of Act No. 2008-408 Of The 2008 Regular Session Of The Alabama Legislature") filed by Bryant, Martin. (Lewis, Elizabeth) (Entered: 08/19/2008)

08/19/2008

1533

NOTICE by Bryant, Martin re 1516 JOINDER ("Declaration of Elizabeth A. Lewis In Support Of The Response Of The Martin/Bryant Parties To The Joinder Of The Personnel Board Of Jefferson County In The Motion Of The Wilks Class For Declaratory And Injunctive Relief From Race-Based Provisions Of Act No. 2008-408 Of The 2008 Regular Session Of The Alabama Legislature") (Attachments: # 1 Exhibit 53 to Declaration of Elizabeth A. Lewis, # 2 Exhibit 54 to Declaration of Elizabeth A. Lewis)(Lewis, Elizabeth) (Entered: 08/19/2008)

08/19/2008

ORDER granting 1522 Motion for Leave to Appear pro hac vice by Emily O. Famutimi. Signed by Judge C Lynwood Smith, Jr on August 19, 2008. (ADS) (Entered: 08/19/2008)

08/22/2008

1534 Opposition to Fee Request of Martin/Bryant Parties filed by Jefferson Cty. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Murphy, Grace) (Entered: 08/22/2008)

08/25/2008 1535 RESPONSE in Opposition re 1528 MOTION for Reconsideration of Court's Order of August 1, 2008 filed by Bryant, Martin. (Attachments: # 1 Affidavit Lewis Declaration, # 2 Exhibit 46, # 3 Exhibit 47, # 4

Errata 48, # 5 Exhibit 49, # 6 Exhibit 50, # 7 Exhibit 51, # 8 Exhibit 52, # 9 Exhibit 53, # 10 Exhibit 54)(Lewis, Elizabeth) (Entered: 08/25/2008)

08/26/2008

1536

REPLY to Response to Motion re 1479 MOTION for Permanent Injunction Wilks Class' Motion for Declaratory and Injunctive Relief from Race-based Provisions of Act No. 2008-408 of the 2008 Regular Session of the Alabama Legislature Wilks Class' Reply to Martin-Bryant Parties' Response to the Joinder of the Personnel Board of Jefferson County in the Motion for Relief from Certain Provisions of Act No. 2008-408 of the 2008 Regular Session of the Alabama Legislature filed by Wilks Class. (Fitzpatrick, Raymond) (Entered: 08/26/2008)

08/28/2008 1537 MOTION for Leave to File Under Seal by Jefferson Cty. (Murphy, Grace) (Entered: 08/28/2008)

08/28/2008

ORDER granting 1537 Motion for Leave to File under seal. Signed by Judge C Lynwood Smith, Jr on August 28, 2008. (ADS) (Entered: 08/28/2008)

08/29/2008

1538

Court only) ***Document Sealed- MOTION to Recall Certain Portions of A Deposition and for Protective Order filed by Jefferson Cty. (AHI) (DEEMED FILED 8/29/2008) Modified on 9/9/2008 (AHI). Modified on 2/4/2009 (LCW, ). (Entered: 09/02/2008)

09/04/2008 1539 MOTION for Leave to File Under Seal by Bryant, Martin. (Lewis, Elizabeth) (Entered: 09/04/2008)

09/04/2008

ORDER granting 1539 Motion for Leave to File under seal. Signed by Judge C Lynwood Smith, Jr on September 4, 2008. (ADS) (Entered: 09/04/2008)

09/12/2008

1541

ORDER Wilks Class' 1479 Motion Seeking Declaratory and Injunctive Relief from the Race-Based Provisions of Alabama Act. No. 2008-408 is GRANTED; it is ORDERED that the Alabama Act No. 2008-408 is declared void ab initio as violative of the Supremacy Clause of the U.S. Constitution, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 9/12/2008. (AHI) (Entered: 09/12/2008)

09/12/2008 1542 MEMORANDUM OPINION. Signed by Judge C Lynwood Smith, Jr on 9/12/2008. (AHI) (Entered: 09/12/2008)

09/12/2008

1543

ORDER Evidentiary Hearing set for 11/18/2008, before Judge C Lynwood Smith Jr.; depositions due by 10/20/2008; Witness and Exhibit Lists due by 10/28/2008; Stipulations due by 11/4/2008; Prehearing Briefs due by 11/4/2008; Ojections due by 11/4/2008; and Posthearing Briefs due 14 days after receipt of the official hearing

transcripts; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 9/12/2008. (AHI) (Entered: 09/12/2008)

09/19/2008

1545

REPLY to re 1534 Reply of the Martin/Bryant Parties to Jefferson County and the Jefferson County Attorneys' Objections to the Martin/Bryant Parties' Sanctions Submissions filed by Bryant, Martin. (Attachments: # 1 Greenberg Declaration, # 2 Exhibit Greenberg Decl. Exhibit 1, # 3 Exhibit Greenberg Decl. Ex. 2, # 4 Exhibit Greenberg Decl. Ex. 3, # 5 Exhibit Greenberg Decl. Ex. 4)(Greenberg, Kristy) (Entered: 09/19/2008)

10/01/2008

1546

NOTICE by Jefferson County Personnel Board of filing of August 2008 Monthly Report of the Personnel Board of Jefferson County (Attachments: # 1 Appendix August 2008 Monthly Report of the Personnel Board of Jefferson County)(Dettling, Aaron) (Entered: 10/01/2008)

10/06/2008 1547 ***STRICKEN PER ORDER ISSUED ON 10/15/2008*** NOTICE by United States of America Filing of Expert Report (Adelstein, Jay) Modified on 10/15/2008 (AHI). (Entered: 10/06/2008)

10/13/2008

1548 MOTION to Strike Expert Report of Dr. Harold Goldstein, with Request for Expedited Ruling by Jefferson County Personnel Board. (Dettling, Aaron) (Entered: 10/13/2008)

10/14/2008 1549 RESPONSE to re 1548 Request for Expedited Ruling filed by United States of America. (Adelstein, Jay) (Entered: 10/14/2008)

10/14/2008

1550

MOTION to Strike 1429 MOTION Final Relief from 1981 Consent Decree , As Amended, with Supporting Memorandum Wilks Class' Motion to Strike Declaration of Dr. Kathleen K. Lundquist by Wilks Class. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Fitzpatrick, Raymond) (Entered: 10/14/2008)

10/14/2008

ORDER setting motion deadline 1550 Motion to Strike the Declaration of Kathleen K. Lundquist. Any party wishing to respond to the motion must do so on or before October 21, 2008. Signed by Judge C Lynwood Smith, Jr on October 14, 2008. (ADS) (Entered: 10/14/2008)

10/15/2008

1551

ORDER 1548 Motion to Strike is GRANTED and the expert report of Dr. Harold Goldstein is STRICKEN, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 10/15/2008. (AHI ) (Entered: 10/15/2008)

10/15/2008 1552 ORDER OF CLARIFICATION -- Dr. Goldstein will be precluded from testifying at the November 18, 2008 hearing, as more fully set out in the

order. Signed by Judge C Lynwood Smith, Jr on October 15, 2008. (ADS) (Entered: 10/15/2008)

10/20/2008 1553 NOTICE of Monthly Report of Monitor, July, August and September, 2008 by William I Sauser, Jr (AHI) (Entered: 10/20/2008)

10/21/2008 1554 MOTION to Withdraw as Attorney for Mike Hale by Jim Woodward. (Grainger, Brent) (Entered: 10/21/2008)

10/21/2008

ORDER granting 1554 Motion to Withdraw as Attorney. Attorney Brent G Grainger terminated. Signed by Judge C Lynwood Smith, Jr on October 21, 2008. (ADS) (Entered: 10/21/2008)

10/21/2008

1555

RESPONSE in Opposition re 1550 MOTION to Strike 1429 MOTION Final Relief from 1981 Consent Decree , As Amended, with Supporting Memorandum Wilks Class' Motion to Strike Declaration of Dr. Kathleen K. Lundquist MOTION to Strike 1429 MOTION Final Relief from 1981 Consent Decree , As Amended, with Supporting Memorandum Wilks Class' Motion to Strike Declaration of Dr. Kathleen K. Lundquist Martin/Bryant Parties' Opposition to the Wilks Class' Motion to Strike Declaration of Dr. Kathleen K. Lundquist filed by Bryant, Martin. (Greenberg, Kristy) (Entered: 10/21/2008)

10/23/2008 1556 ORDER Wilks Class' 1550 Motion to Strike the declaration of Dr. Lundquist is DENIED, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 10/23/2008. (AHI) (Entered: 10/23/2008)

10/24/2008

1557

ORDER County's 1538 Motion to Recall Portions of the Smoot Deposition and for a Protective Order is DENIED; the prior order of this court placing the Smoot Deposition under seal is VACATED AND RESCINDED, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 10/23/2008. (AHI) (Entered: 10/24/2008)

10/27/2008 1558 Consent MOTION for Extension of Time by Jefferson County Personnel Board. (Dettling, Aaron) (Entered: 10/27/2008)

10/27/2008

ORDER granting 1558 Motion for Extension of Time. Witness and exhibit lists for the November 18 hearing are due October 31, 2008. All other deadlines remain in effect. Signed by Judge C Lynwood Smith, Jr on October 27, 2008. (ADS) (Entered: 10/27/2008)

10/30/2008

1559

ORDER CONTINUING PRE-HEARING DEADLINES; it is ORDERED that the deadlines for filing witness and exhibit lists, stipulations, and pre-hearing briefs are extended until 11/7/2008; deadline for filing objections to witness and exhibit lists is extended to 11/11/2008, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 10/30/2008. (AHI) (Entered: 10/30/2008)

11/03/2008 1560 MOTION to Withdraw by Jefferson Cty. (Strickland, Edwin) (Entered: 11/03/2008)

11/07/2008

1561

ORDER the motion to withdraw as an attorney of record by Mr. Strickland will be held in abeyance until such time as the court decides whether sanctions should be imposed upon Mr. Strickland, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 11/6/2008. (AHI) (Entered: 11/07/2008)

11/07/2008

1562

Joint MOTION for Termination of Consent Decree with Personnel Board of Jefferson County, Approval of Agreement, and Termination of Receivership by Bryant, Martin, Jefferson County Personnel Board, United States of America. (Attachments: # 1 Exhibit Agreement, # 2 Text of Proposed Order)(Dettling, Aaron) Modified on 11/7/2008 (AHI ). (Entered: 11/07/2008)

11/07/2008

1563

MOTION of Personnel Board of Jefferson County to be Relieved of Obligation to Pay for Services Provided by Special Master and Monitor by Jefferson County Personnel Board. (Dettling, Aaron) Modified on 11/7/2008 (AHI) . (Entered: 11/07/2008)

11/10/2008

1564

ORDER A Hearing and Status Conference are set for 11/20/2008 09:30 AM in Courtroom No.3 of the Robert S. Vance Federal Building, 1800 5th Avenue North, Birmingham,Alabama, before Judge C Lynwood Smith Jr., all parties are directed to attend; the hearing currently scheduled to commence on 11/18/2008, is CANCELLED and the parties are relieved of all pre-hearing deadlines, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 11/10/2008. (AHI) (Entered: 11/10/2008)

11/11/2008

1565

NOTICE OF APPEAL (Interlocutory) as to 1541 Order on Motion for Permanent Injunction, 1542 Memorandum Opinion by Bham City of. Appeal Record due by 11/11/2008. (Lee, Brandy) Modified on 11/12/2008 (AHI). Modified on 11/12/2008 (SPT, ). (Entered: 11/11/2008)

11/12/2008 1566 NOTICE to Counsel regarding Interlocutory Appeal. (SPT, ) (Entered: 11/12/2008)

11/12/2008 1567 NOTICE by Bham City of re 1565 Notice of Appeal (Attachments: # 1 Exhibit Notice of Appeal)(Lee, Brandy) (Entered: 11/12/2008)

11/13/2008 1568 MOTION to Withdraw as Attorney for Plaintiff United States by United States of America. (Cunningham, John) (Entered: 11/13/2008)

11/14/2008

ORDER granting 1568 Motion to Withdraw as Attorney. Attorney John P Cunningham terminated. Signed by Judge C Lynwood Smith, Jr on November 14, 2008. (ADS) (Entered: 11/14/2008)

11/17/2008 1569 NOTICE of Monthly Report of Monitor, October 2008 by William I Sauser, Jr (AHI) (Entered: 11/17/2008)

11/17/2008

1570

RESPONSE to 1562 Joint MOTION Joint Motion for Termination of Consent Decree with Personnel Board of Jefferson County, Approval of Agreement, and Termination of Receivership Wilks Class' Partial Objections and Comments Concerning the Proposed Agreement Conditioning Final Dismissal of Personnel Board From This Litigation filed by Wilks Class. (Fitzpatrick, Raymond) Modified on 11/18/2008 (AHI). (Entered: 11/17/2008)

11/18/2008

1571

NOTICE by Jefferson County Personnel Board of filing of Annual Report. (Attachments: # 1 Exhibit 2007-2008 Annual Report of the Personnel Board of Jefferson County)(Dettling, Aaron) (Entered: 11/18/2008)

11/18/2008

USCA Appeal Fees received $ 455.00 receipt number 200251829 regarding 1565 Notice of Appeal filed by City of Birmingham. (SPT, ) (Entered: 11/19/2008)

11/19/2008

Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals regarding 1565 Notice of Appeal. (SPT, ) (Entered: 11/19/2008)

11/19/2008

1572

RESPONSE to 1563 MOTION Motion of Personnel Board of Jefferson County to be Relieved of Obligation to Pay for Services Provided by Special Master and Monitor filed by Jefferson Cty. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Murphy, Grace) Modified on 11/19/2008 (AHI). (Entered: 11/19/2008)

11/20/2008

1573

ORDER, It is ORDERED that the Consent Decree with the Personnel Board of Jefferson County, entered on 6/8/1981, and amended by Orders of 12/19/1995, and 4/23/1996, is hereby immediately and unconditionally terminated and the Personnel Board of Jefferson County is hereby relieved from all obligations imposed by the Decree and the supervision of the Court, this judgment is hereby made final, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 11/20/2008. (AHI) (Entered: 11/20/2008)

11/25/2008

1574

ORDER the Personnel Boards's 1563 Motion to be Relieved of the Obligation to pay for the services of the Special Master and Monitor is GRANTED; it is ORDERED that the order appointing Dr. Sauser as Monitor of the Personnel Board is extended to all allow Dr. Sauser to

monitor the City of Birmingham's progress in resolving the I-1 date interface problems with the Personnel Board; the City of Birmingham and the Personnel Board are directed to submit a joint proposal by 12/9/2008, regarding which defendant shall be responsible for paying Dr. Sauser's fees and expenses, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 11/25/2008. (AHI) (Entered: 11/25/2008)

11/25/2008

1575

ORDER it is ORDERED that the City of Birmignham shall adhere to the follwing deadlines in resolving the problem of data interface with the Personnel Board of Jefferson County; by 12/31/2008, resolve the 894 actions prior to implementation of the 2006 salary schedule; by 5/31/2009, resolve the 1901 actions prior to implementation of the 2007 salary schedule; by 1/31/2010, reslove the 2958 actions prior to implementation of the 2008 salary schedule; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 11/25/2008. (AHI, ) (Entered: 11/25/2008)

11/25/2008

1576

Evidentiary Material Notice of Filing Appeal Documents Conventionally. (Lee, Brandy) (Additional attachment(s) added on 2/23/2009: # 1 Complaint, # 2 Complaint) (SPT, ). (Entered: 11/25/2008)

11/25/2008 1577 Evidentiary Material Notice of Filing Statement of Issues on Appeal. (Attachments: # 1 Exhibit)(Lee, Brandy) (Entered: 11/25/2008)

11/25/2008 1578 TRANSCRIPT REQUEST by the City of Birmingham. (SPT, ) (Entered: 12/01/2008)

12/01/2008 1579 USCA Case Number 08-16604D for 1565 Notice of Appeal filed by City of Birmingham. (SPT, ) (Entered: 12/02/2008)

12/09/2008 1580 MOTION to Alter Judgment Motion to Alter, Amend or Vacate the Order of November 25, 2008 by Bham City of. (Lee, Brandy) (Entered: 12/09/2008)

12/09/2008

1581

NOTICE by Bham City of, Jefferson County Personnel Board Joint Submission by the City of Birmingham and the Personnel Board of Jefferson County Regarding Fees of the Court Appointed Monitor (Coyne, Leslie) (Entered: 12/09/2008)

12/11/2008

1582

ORDER City of Birmingham's 1580 Motion for the Court to Alter, Amend or Vacate it 11/25/2088 Order is DENIED; it is ORDERED that the City and the Personnel Board each be responsible for paying 50% of the fees and expenses incurred by the Court Monitor, As more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 12/11/2008. (AHI) (Entered: 12/11/2008)

12/15/2008 1583 STATUS REPORT by Bham City of. (Attachments: # 1 Exhibit Progress Report Memo)(Lee, Brandy) (Entered: 12/15/2008)

12/18/2008

1584 DESIGNATION of Record on Appeal by Jefferson County Personnel Board re 1565 Notice of Appeal (Dettling, Aaron) (Entered: 12/18/2008)

12/18/2008

1585

ORDER OF CLARIFICATION; it is ordered that any fees and expenses incurred by Dr. Sauser shall be paid by the City as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 12/18/08. (SPT, ) (Entered: 12/18/2008)

12/22/2008 1586 MOTION in Limine by Jefferson Cty. (Murphy, Grace) (Entered: 12/22/2008)

12/24/2008 1587 DESIGNATION of Record on Appeal by Bryant, Martin re 1565 Notice of Appeal (Greenberg, Kristy) (Entered: 12/24/2008)

12/29/2008 1588 NOTICE of Monthly Report of the Monitor, November and December 2008, by William I Sauser, Jr. (SPT, ) (Entered: 12/29/2008)

01/02/2009 1589 STATUS REPORT by Bham City of. (Attachments: # 1 Exhibit Exhibit A)(Lee, Brandy) (Entered: 01/02/2009)

01/05/2009

ORDER setting motion deadline 1586 Motion in Limine - The MartinBryant parties must file a written response on or before January 19, 2009. Signed by Judge C Lynwood Smith, Jr on January 5, 2009. (ADS) (Entered: 01/05/2009)

01/06/2009

1590

ORDER that a Bench Trial shall commence on March 30, 2009 at 9:30 a.m., in Courtroom 3 of the Robert S. Vance Federal Building, Birmingham, Alabama on the issues more fully set out in the order; The parties are directed to submit, on or before January 16, 2009, a joint proposed schedule for all remaining pretrial deadlines. Signed by Judge C Lynwood Smith, Jr on 01/06/2009. (LCW, ) Modified on 1/7/2009 (LCW, ). (Entered: 01/06/2009)

01/07/2009

1591

ORDER that the City of Birmingham must file a status report by noon on January 9, 2009, as more fully set out in the attached order. Signed by Judge C Lynwood Smith, Jr on January 7, 2009. (ADS) (Entered: 01/07/2009)

01/08/2009 1592 MOTION to Withdraw as Attorney by Jim Woodward. (Kendrick, Michael) (Entered: 01/08/2009)

01/09/2009 1593 STATUS REPORT by Bham City of. (Lee, Brandy) (Entered: 01/09/2009)

01/09/2009 1594 STATUS REPORT by Bham City of. (Lee, Brandy) (Entered: 01/09/2009)

01/09/2009 1595 NOTICE of Appearance by B. Keith Jackson on behalf of Jim Woodward (Jackson, B.) (Entered: 01/09/2009)

01/12/2009 1596 NOTICE of Appearance by Kallie C Lunsford on behalf of Jim Woodward (Lunsford, Kallie) (Entered: 01/12/2009)

01/12/2009

ORDER granting 1592 Motion to Withdraw as Attorney. Attorneys Wayne Morse, Jr; Thomas L Stewart; Charlie D Waldrep; Susan Jane Walker; James R Esdale and Michael G Kendrick terminated. Signed by Judge C Lynwood Smith, Jr on January 12, 2009. (ADS) (Entered: 01/12/2009)

01/15/2009 1597 STATUS REPORT by Bham City of. (Lee, Brandy) (Entered: 01/15/2009)

01/15/2009 1598 ***DUPLICATE TO DOC. # 1597*** STATUS REPORT Supplemental by Bham City of. (Lee, Brandy) Modified on 1/16/2009 (AHI). (Entered: 01/15/2009)

01/15/2009 1599 STATUS REPORT Supplemental by Bham City of. (Lee, Brandy) (Entered: 01/15/2009)

01/16/2009

Mail Order issued on 1/12/09 Returned as Undeliverable. Mail sent to James R. Esdale. Return to Sender not deliverable as addressed. (AHI) (Entered: 01/16/2009)

01/16/2009 1600 NOTICE by Jefferson Cty, Bryant, Martin, United States of America of Joint Proposed Schedule (Murphy, Grace) (Entered: 01/16/2009)

01/19/2009 1601 NOTICE by Bham City of Certification (Attachments: # 1 Exhibit PBJC letter)(Lee, Brandy) (Entered: 01/19/2009)

01/19/2009

1602

RESPONSE in Opposition re 1586 MOTION in Limine Martin/Bryant Parties' Response to Jefferson County's Motion in Limine filed by Bryant, Martin. (Attachments: # 1 Greenberg Declaration, # 2 Exhibit Greenberg Decl. Ex. 1, # 3 Exhibit Greenberg Decl. Ex. 2, # 4 Exhibit Greenberg Decl. Ex. 3, # 5 Exhibit Greenberg Decl. Ex. 4, # 6 Exhibit Greenberg Decl. Ex. 5, # 7 Exhibit Greenberg Decl. Ex. 6, # 8 Exhibit Greenberg Decl. Ex. 7, # 9 Exhibit Greenberg Decl. Ex. 8, # 10 Exhibit Greenberg Decl. Ex. 9, # 11 Exhibit Greenberg Decl. Ex. 10, # 12 Exhibit Greenberg Decl. Ex. 11, # 13 Exhibit Greenberg Decl. Ex. 12, # 14 Exhibit Greenberg Decl. Ex. 13, # 15 Exhibit Greenberg Decl. Ex. 14, # 16 Exhibit Greenberg Decl. Ex. 15, # 17 Exhibit Greenberg Decl. Ex. 16, # 18 Exhibit Greenberg Decl. Ex. 17, # 19 Exhibit Greenberg

Decl. Ex. 18, # 20 Exhibit Greenberg Decl. Ex. 19, # 21 Exhibit Greenberg Decl. Ex. 20, # 22 Exhibit Greenberg Decl. Ex. 21, # 23 Exhibit Greenberg Decl. Ex. 22, # 24 Exhibit Greenberg Decl. Ex. 23)(Greenberg, Kristy) Modified on 1/20/2009 (AHI). (Entered: 01/19/2009)

01/20/2009 1603 MOTION for Attorney Fees Notice of Motion and Motion by Bryant, Martin. (Greenberg, Kristy) (Entered: 01/20/2009)

01/22/2009

1604

REVISED SCHEDULING ORDER, The parties shall submit a joint pre-trial order by 3/9/2009; pre-trial memoranda of law due by 3/16/2009; trial set for 3/30/2009; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 1/22/09. (AHI) (Entered: 01/22/2009)

01/22/2009

1605

ORDER Martin-Bryant parties shall submit a brief and evidentiary material by 3/1/2009; Personal Board of Jefferson County shall respond by 4/1/2009; Martin-Bryant parties may file a reply by 5/1/2009. Signed by Judge C Lynwood Smith, Jr on 1/22/2009. (AHI) (Entered: 01/22/2009)

01/28/2009

1606 MOTION for Leave to File Supplement to Designation of Record on Appeal by Bham City of. (Attachments: # 1 Exhibit A)(Lee, Brandy) (Entered: 01/28/2009)

01/28/2009

ORDER granting 1606 Motion for Leave to Supplement Designation of Record on Appeal. Signed by Judge C Lynwood Smith, Jr on January 28, 2009. (ADS) (Entered: 01/28/2009)

02/02/2009 1607 STATUS REPORT by Bham City of. (Lee, Brandy) (Entered: 02/02/2009)

02/09/2009 1608 NOTICE of Monthly Report of the Monitor, January 2009 by William I Sauser, Jr (AHI) (Entered: 02/09/2009)

02/10/2009

1609

Joint MOTION for Extension of Time to File Response/Reply as to 1603 MOTION for Attorney Fees Notice of Motion and Motion, 1605 Order, by Bryant, Martin, Jefferson County Personnel Board. (Dettling, Aaron) (Entered: 02/10/2009)

02/11/2009

1610

ORDER granting Joint Motion for Extension of Time to File Response/Reply; Martin-Bryant parties shall submit a brief and evidentiary material in support of their motion for attorney's fees and costs on or before May 1, 2009. Personnel Board of Jefferson County shall respond to the motion on or before June 1, 2009; Martin-Bryant parties may file a reply submission on or before July 1, 2009. Signed by Judge C Lynwood Smith, Jr on 02/11/2009. (LCW) (Entered: 02/11/2009)

02/16/2009 1611 STATUS REPORT by Bham City of. (Lee, Brandy) (Entered: 02/16/2009)

02/23/2009 1612 NOTICE by Clerk of filing Certificate of Readiness of Record on Appeal. (SPT, ) (Entered: 02/23/2009)

02/23/2009

Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Northern District of Alabama certifies that the record is complete for purposes of this appeal re: 1565 Notice of Appeal, Appeal No. 0816604D. The entire record on appeal is available electronically. (SPT, ) (Entered: 02/23/2009)

02/27/2009

1613

*** WITHDRAWN PURSUANT TO ORDER ISSUED ON 2/27/2009*** MOTION for Order Directing the Monitor to Facilitate Discussions Between the Martin-Bryant Parties, the United States and Jefferson County by Jefferson Cty. (Hosp, Edward) Modified on 3/2/2009 (AHI) (Entered: 02/27/2009)

02/27/2009 1614 MOTION to Withdraw (Doc. #1613) by Jefferson Cty. (Hosp, Edward) (Entered: 02/27/2009)

02/27/2009

ORDER finding as moot 1613 Motion for an order directing the Court Monitor to facilitate discussions among the Martin-Bryant parties, the United States, and Jefferson County; granting 1614 Motion to Withdraw doc. no. 1613. Signed by Judge C Lynwood Smith, Jr on February 27, 2009. (ADS) (Entered: 02/27/2009)

03/02/2009

1615

Transcript of Proceedings held on 5/22/2008, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina K. Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (See Transcript Redaction Policy) Redaction Request due 3/23/2009. Redacted Transcript Deadline set for 4/2/2009. Release of Transcript Restriction set for 6/1/2009. (AHI) (Entered: 03/02/2009)

03/02/2009

1616

Transcript of Proceedings held on 7/31/2008, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina K. Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no

such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (See Transcript Redaction Policy) Redaction Request due 3/23/2009. Redacted Transcript Deadline set for 4/2/2009. Release of Transcript Restriction set for 6/1/2009. (AHI) (Entered: 03/02/2009)

03/02/2009

1617

Transcript of Proceedings held on 8/21/2008, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina K. Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (See Transcript Redaction Policy) Redaction Request due 3/23/2009. Redacted Transcript Deadline set for 4/2/2009. Release of Transcript Restriction set for 6/1/2009. (AHI ) (Entered: 03/02/2009)

03/02/2009 1618 STATUS REPORT by Bham City of. (Lee, Brandy) (Entered: 03/02/2009)

03/09/2009

1619

NOTICE by Bryant, Martin Joint Pre-Trial Order (Attachments: # 1 Exhibit Pre Trial Order Exhibit A, # 2 Exhibit Pre Trial Order Exhibit B, # 3 Exhibit Joint Pre Trial Order C, # 4 Exhibit Joint Pre Trial Order Exhibit D, # 5 Exhibit Joint Pre Trial Order Exhibit E, # 6 Exhibit Joint Pre Trial Order F, # 7 Exhibit Joint Pre Trial Order Exhibit G, # 8 Exhibit Joint Pre Trial Order Exhibit H)(Greenberg, Kristy) (Entered: 03/09/2009)

03/13/2009

1620

JOINT PRETRIAL ORDER, that certain time limits and deadlines apply as set out in this order; trial to commence on 3/30/2009. Signed by Judge C Lynwood Smith, Jr on 3/9/2009. (AHI ) (Entered: 03/13/2009)

03/16/2009 1621 STATUS REPORT by Bham City of. (Lee, Brandy) (Entered: 03/16/2009)

03/16/2009 1622 PRETRIAL MEMORANDUM by Bryant, Martin. (Greenberg, Kristy) (Entered: 03/16/2009)

03/16/2009 1623 TRIAL BRIEF (Pre-Trial Memorandum of Law) by Jefferson Cty. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Murphy, Grace) (Entered: 03/16/2009)

03/17/2009 1624 MOTION for Leave to Appear Motion to Admit Pro Hac Vice by Bryant, Martin. (Greenberg, Kristy) (Entered: 03/17/2009)

03/24/2009 1625 MOTION for Leave to Appear Motion to Admit Pro Hac Vice by Bryant, Martin. (Greenberg, Kristy) (Entered: 03/24/2009)

03/25/2009

1626 ORDER Jefferson County's 1586 Motion in Limine is DENIED, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 3/25/2009. (AHI) (Entered: 03/25/2009)

03/26/2009

PHV Fee paid: $ 50.00, receipt number H4601000041 for David R. Marriott (AHI) (Entered: 03/26/2009)

03/26/2009

PHV Fee paid: $ 50.00, receipt number H4601000040 for Scott P. Dixler (AHI ) (Entered: 03/26/2009)

03/26/2009

ORDER granting 1624 Motion for Leave to Appear pro hac vice by Scott P. Dixler; granting 1625 Motion for Leave to Appear pro hac vice by David R. Marriot. Signed by Judge C Lynwood Smith, Jr on March 26, 2009. (ADS) (Entered: 03/26/2009)

03/27/2009 1627 NOTICE of the Monthly Report of the Monitor, February 2009 by William I. Sauser, Jr. (SPT, ) (Entered: 03/27/2009)

03/27/2009 1628 NOTICE of Appearance by Anna Christine Green on behalf of Jefferson Cty (Green, Anna) (Entered: 03/27/2009)

03/30/2009

Minute Entry for proceedings held before Judge C Lynwood Smith, Jr: Bench Trial begun on 3/30/2009. Preliminary remarks by the court; Opening statement by defendant Jefferson County; testimony of Martin/Bryant parties; daily adj; trial to resume at 8:50 a.m. on 3/31/2009.(Court Reporter Christina Decker/Cheryl Powell.) (LCW) (Entered: 03/31/2009)

03/31/2009 1629 NOTICE of Appearance by Joseph John Sperber, IV on behalf of United States of America (Sperber, Joseph) (Entered: 03/31/2009)

03/31/2009 1630 MOTION to Withdraw as Attorney by United States of America. (Sperber, Joseph) (Entered: 03/31/2009)

03/31/2009

ORDER granting 1630 Motion to Withdraw as Attorney. Attorney Barbara E Thawley terminated. Signed by Judge C Lynwood Smith, Jr on March 31, 2009. (ADS) (Entered: 03/31/2009)

03/31/2009

Minute Entry for proceedings held before Judge C Lynwood Smith, Jr: Bench Trial resumed on 3/31/2009. testimony of plaintiff continued; daily adj; trial to resume on 4/6/2009 at 9:30 a.m. (Court Reporter Christina Decker.) (LCW) (Entered: 04/01/2009)

04/01/2009 1631 STATUS REPORT by Bham City of. (Lee, Brandy) (Entered: 04/01/2009)

04/08/2009

1632

ORDER that the bench trial that commenced on March 30, 2009 and recessed on April 1, 2009 shall reconvene on April 20, 2009 at 9:30 a.m. in Courtroom No. 8 of the Hugo L. Black United States Courthouse in Birmingham AL and shall continue from day to day until completed. Signed by Judge C Lynwood Smith, Jr on 04/08/09. (SPT, ) (Entered: 04/08/2009)

04/15/2009 1633 STATUS REPORT by Bham City of. (Lee, Brandy) (Entered: 04/15/2009)

04/17/2009

CLERK'S NOTICE: The trial in this case presently set on April 20, 2009 is CONTINUED generally and will be reset by subsequent notice. (LCW) (Entered: 04/17/2009)

04/20/2009 1634 NOTICE by Clerk of filing Certificate of Readiness of Record on Appeal. (SPT, ) (Entered: 04/20/2009)

04/20/2009

Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Northern District of Alabama certifies that the record is complete for purposes of this appeal re: 1565 Notice of Appeal, Appeal No. 0816604D. The entire record on appeal is available electronically.(SPT, ) (Entered: 04/20/2009)

04/23/2009 1635 NOTICE of Appearance by Tammy C Woolley on behalf of Jim Woodward (Woolley, Tammy) (Entered: 04/23/2009)

04/28/2009 1636 Second MOTION for Extension of Time re attorney's fees briefing schedule by Bryant, Martin, Jefferson County Personnel Board. (Dettling, Aaron) (Entered: 04/28/2009)

05/01/2009

1637

ORDER, Joint Motion to Amend the Briefing Schedule on the MartinBryant Parties' Motion for an Award of Attorney's Fees and Costs is GRANTED, Martin-Bryant Parties shall submitt a brief by 6/1/2009; the Jefferson County Personnel Board shall respond by 7/1/2009; MartinBryant reply due by 8/3/2009, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 5/1/2009. (AHI) (Entered: 05/01/2009)

05/01/2009 1638 STATUS REPORT by Bham City of. (Lee, Brandy) (Entered: 05/01/2009)

05/13/2009 1639 NOTICE of the Monthly Report of the Monitor, March and April 2009 by William I Sauser, Jr (AHI) (Entered: 05/13/2009)

05/14/2009

1640 Joint MOTION Notice of Settlement and Joint Motion for Approval of Settlement and Entry of Judgment re 1603 MOTION for Attorney Fees Notice of Motion and Motion by Bryant, Martin, Jefferson County

Personnel Board. (Attachments: # 1 Exhibit Agreement, Including Proposed Judgment)(Dettling, Aaron) (Entered: 05/14/2009)

05/14/2009

1641

MOTION for Attorney Fees Wilks Class' Motion For Interim Award Of Attorneys' Fees and Expenses From Defendant City of Birmingham by Wilks Class. (Attachments: # 1 Exhibit A)(Fitzpatrick, Raymond) (Entered: 05/14/2009)

05/14/2009

1642

ORDER, it is ORDERED that the parties' Agreement is APPROVED and judgment is hereby ENTERED in favor of Cravath, Swaine & Moore, LLP, John W. Martin, et al., and Gwendolyn Bryant, et al., jointly and severally and against the Personnel Board of Jefferson County in the amount of $2,250,000.00, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 5/14/2009. (AHI) (Entered: 05/14/2009)

05/15/2009 1643 STATUS REPORT by Bham City of. (Lee, Brandy) (Entered: 05/15/2009)

05/15/2009

ORDER setting motion deadline 1641 Motion for Attorney Fees - The City of Birmingham must respond to the motion on or before June 5, 2009. Signed by Judge C Lynwood Smith, Jr on May 15, 2009. (ADS) (Entered: 05/15/2009)

05/28/2009 1644 SETTLEMENT AGREEMENT Joint Motion to Approve Fees and Settlement by Bham City of. (Lee, Brandy) (Entered: 05/28/2009)

06/01/2009 1645 STATUS REPORT by Bham City of. (Lee, Brandy) (Entered: 06/01/2009)

06/15/2009 1646 STATUS REPORT by Bham City of. (Lee, Brandy) (Entered: 06/15/2009)

07/01/2009 1647 STATUS REPORT by Bham City of. (Lee, Brandy) (Entered: 07/01/2009)

07/07/2009 1648 NOTICE of Monthly Report of the Monitor, May and June 2009, by William I Sauser, Jr (AHI) (Entered: 07/07/2009)

07/15/2009 1649 STATUS REPORT by Bham City of. (Lee, Brandy) (Entered: 07/15/2009)

07/22/2009

1650

ORDER 1641 MOTION for this court to determine the specific amounts to be awarded in attorneys' fees, expenses and costs is DENIED as Moot. Signed by Judge C Lynwood Smith, Jr on 7/22/2009. (AHI) (Entered: 07/22/2009)

08/03/2009 1651 STATUS REPORT by Bham City of. (Lee, Brandy) (Entered: 08/03/2009)

08/17/2009 1652 STATUS REPORT by Bham City of. (Lee, Brandy) (Entered: 08/17/2009)

09/01/2009 1653 STATUS REPORT by Bham City of. (Lee, Brandy) (Entered: 09/01/2009)

09/04/2009 1654 NOTICE of Monthly Report of the Monitor, July and August 2009 by William I Sauser, Jr (AHI) (Entered: 09/04/2009)

09/15/2009 1655 STATUS REPORT by Bham City of. (Lee, Brandy) (Entered: 09/15/2009)

09/25/2009 1656 NOTICE of Appearance by James E. Murrill, Jr. on behalf of Mike Hale (Riley, Robert) Modified on 9/28/2009 (AHI). (Entered: 09/25/2009)

09/28/2009

1657 ***DUPLICATE TO DOCUMENT 1656*** NOTICE of Appearance by James E Murrill, Jr on behalf of Mike Hale (Murrill, James) Modified on 9/28/2009 (AHI). (Entered: 09/28/2009)

10/01/2009 1658 STATUS REPORT by Bham City of. (Lee, Brandy) (Entered: 10/01/2009)

10/15/2009 1659 STATUS REPORT by Bham City of. (Lee, Brandy) (Entered: 10/15/2009)

11/02/2009 1660 STATUS REPORT by Bham City of. (Lee, Brandy) (Entered: 11/02/2009)

11/05/2009 1661 MOTION to Withdraw as Attorney By Gary L. Brown by Wilks Class. (Brown, Gary) (Entered: 11/05/2009)

11/05/2009

ORDER granting 1661 Motion to Withdraw as Attorney. Attorney Gary L Brown terminated. Signed by Judge C Lynwood Smith, Jr on November 5, 2009. (ADS) (Entered: 11/05/2009)

11/13/2009 1662 NOTICE of Monthly Report of the Monitor, September and October 2009, by William I Sauser, Jr. (SPT, ) (Entered: 11/13/2009)

11/16/2009 1663 STATUS REPORT by Bham City of. (Lee, Brandy) (Entered: 11/16/2009)

12/01/2009 1664 STATUS REPORT by Bham City of. (Lee, Brandy) (Entered: 12/01/2009)

12/15/2009 1665 STATUS REPORT by Bham City of. (Lee, Brandy) (Entered: 12/15/2009)

12/31/2009 1666 NOTICE by Bham City of Progress Report 12-31-09 (Lee, Brandy) (Entered: 12/31/2009)

01/04/2010 1667 NOTICE of Monthly Report of the Monitor, November - December 2009 by William I Sauser, Jr (AHI) (Entered: 01/04/2010)

01/08/2010 1668 STATUS REPORT Change of Address and Firm by Bham City of. (Lee, Brandy) (Entered: 01/08/2010)

01/11/2010 1669 NOTICE of Filing Attachments to the 1667 Monthly Report of the Monitor, November - December 2009 by William I Sauser, Jr (Attachments: # 1 Attachment 1)(AHI ) (Entered: 01/11/2010)

01/15/2010 1670 STATUS REPORT Progress Report by Bham City of. (Lee, Brandy) (Entered: 01/15/2010)

02/01/2010 1671 SPECIAL REPORT re 1575 Order,, Progess Report filed by Bham City of. (Lee, Brandy) (Entered: 02/01/2010)

02/04/2010 1672 NOTICE of Monthly Report of the Monitor--January 2010 by William I Sauser, Jr (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3)(AHI) (Entered: 02/04/2010)

02/05/2010

1673

ORDER TO SHOW CAUSE, it is ORDERED that the City of Birmingham as an enitity and Barbara L. White, the City's Personnel Director, individually, show cause why they should not be held in contempt for failure to comply with this court's orders; it is further ORDERED that the City of Birmingham show cuase why a Receiver, Project Coordinator or outside services firm should not be appointed to assume control of the City's Personnel Department; as more fully set out in order; Show Cause Hearing set for 2/11/2010 10:00 AM before Judge C Lynwood Smith Jr., Courtroom No. 3, Vance Federal Building, Birmingham, Alabama. Signed by Judge C Lynwood Smith, Jr on 2/5/2010. (AHI) Modified on 2/5/2010 (AHI ). (Entered: 02/05/2010)

02/10/2010 1674 STATUS REPORT Supplemental Report by Bham City of. (Lee, Brandy) (Entered: 02/10/2010)

02/17/2010

1675

ORDER that on or before February 26, 2010 the City of Birmingham must submit a report outlining in detail its plan for resolving all remaining issues with the Personnel Board of Jefferson County, including the I-1 interface problem and other issues, as more fully set out in the order. Signed by Judge C Lynwood Smith, Jr on 02/17/2010. (LCW) (Entered: 02/17/2010)

02/25/2010

1676

ORDER, it is ORDERED that the deadline for filing reports contemplated in this court's 2/17/2010, Order 1675 are extended to 3/1/2010. Signed by Judge C Lynwood Smith, Jr on 2/25/2010. (AHI) (Entered: 02/25/2010)

02/26/2010 1677 Proposed MOTION to Withdraw Tiffany N. Johnson by Bham City of. (Johnson, Tiffany) (Entered: 02/26/2010)

03/01/2010

ORDER granting 1677 Motion to Withdraw by Tiffany N. Johnson. Signed by Judge C Lynwood Smith, Jr on March 1, 2010. (ADS) (Entered: 03/01/2010)

03/01/2010 1678 MOTION to Withdraw as Attorney of record for EMILY O. FAMUTIMI AND ELIZABETH A. LEWIS by Bryant, Martin. (Wilson, Rowan) Modified on 3/1/2010 (AHI). (Entered: 03/01/2010)

03/01/2010

ORDER granting 1678 Motion to Withdraw as Attorney. Attorney Emily O Famutimi and Elizabeth A Lewis terminated. Signed by Judge C Lynwood Smith, Jr on March 1, 2010. (ADS) (Entered: 03/01/2010)

03/02/2010 1679 NOTICE of Appearance by Howard P Walthall, Jr on behalf of Bham City of (Walthall, Howard) (Entered: 03/02/2010)

03/02/2010 1680 NOTICE of Appearance by Michael K K Choy on behalf of Bham City of (Choy, Michael) (Entered: 03/02/2010)

03/10/2010 1681 NOTICE of Monthly Report of the Monitor -- February 2010 by William I Sauser, Jr (AHI) (Entered: 03/10/2010)

03/26/2010

1682

ORDER, it is ORDERED that the show cuase hearing which commenced on 2/11/2010, shall RESUME at 10:30 AM 3/31/2010, in Courtroom No. 3 of the Robert S. Vance Building, Birmingham, AL before Judge C Lynwood Smith Jr., as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 3/26/2010. (AHI) (Entered: 03/26/2010)

03/29/2010 1683 NOTICE of Monthly Report of the Monitor--March 2010 by William I Sauser, Jr (AHI) (Entered: 03/29/2010)

04/05/2010

1684

ORDER, it is ORDERED technically-competent persons exployed by the City of Birmingham and the Personnel Board of Jefferson County must meet on 4/6/2010; the plan that results from the 4/6/2010 meeting will be submitted to the court no later than 4/12/2010; Attorneys for the City and Board should submit a joint report on 4/12/2010, if a hearing is deemed necessary it will begin at 9:00 AM, 4/14/2010, in Courtroom No.3, Vance Federal Building, Birmingham, Alabamam; as more fully

set out in order. Signed by Judge C Lynwood Smith, Jr on 4/5/2010. (AHI) (Entered: 04/05/2010)

04/12/2010

1685

ORDER, it is ORDERED that the show cause hearing tentatively scheduled for 4/14/2010 is CONTINUED generally; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 4/12/2010. (AHI) (Entered: 04/12/2010)

04/12/2010

1686

RESPONSE to re 1675 (Joint Report of City of Birmingham and The Personnel Board of Jefferson County's Plan for the Resolution of "Other Issues" filed by Bham City of. (Choy, Michael) (Entered: 04/12/2010)

04/23/2010

1687

ORDER of USCA as to 1565 Notice of Appeal; this appeal is DISMISSED for lack of jurisdiction; as more fully set out in order. Signed by Circuit Judges Black, Marcus and Higginbotham. (AHI) (Entered: 04/23/2010)

04/29/2010

1688

ORDER that the bench trial that was recessed on April 1, 2009 will reconvene at 9:30 a.m. on Monday June 7, 2010, in the United States Courthouse located at 101 Holmes Avenue in Huntsville, Alabama and will continue from day-to-day until completed. Signed by Judge C Lynwood Smith, Jr on 04/29/10. (SPT ) (Entered: 04/29/2010)

05/03/2010 1689 MOTION for Leave to Appear Motion to Admit Pro Hac Vice by Bryant, Martin. (Greenberg, Kristy) (Entered: 05/03/2010)

05/04/2010

PHV Fee paid: $ 50.00, receipt number B4601011932 for Margaret E. Lynaugh (AHI) (Entered: 05/05/2010)

05/05/2010

ORDER granting 1689 Motion for Leave to Appear pro hac vice by Margaret E. Lynaugh. Signed by Judge C Lynwood Smith, Jr on May 5, 2010. (ADS) (Entered: 05/05/2010)

05/26/2010 1690 MOTION to Withdraw as Attorney by Bham City of. (Lee, Brandy) (Entered: 05/26/2010)

05/27/2010

ORDER granting 1690 Motion to Withdraw as Attorney. Attorney Brandy Murphy Lee terminated. Signed by Judge C Lynwood Smith, Jr on May 27, 2010. (ADS) (Entered: 05/27/2010)

06/14/2010 1691 NOTICE of Monthly Report of the Monitor--April and May 2010 by William I Sauser, Jr (AHI) (Entered: 06/14/2010)

07/12/2010 1692 NOTICE of Monthly Report of the Monitor--June 2010 by William I Sauser, Jr (AHI) (Entered: 07/12/2010)

08/13/2010 1693 NOTICE of Monthly Report of the Monitor--July 2010 by William I Sauser, Jr (AHI) (Entered: 08/13/2010)

09/08/2010 1694 NOTICE of Monthly Report of the Monitor--August 2010 by William I Sauser, Jr (AHI) (Entered: 09/08/2010)

10/22/2010 1695 MOTION to Consolidate Cases by Bham City of. (Attachments: # 1 Exhibit Exhibit - A - Order, # 2 Exhibit Exhibit - B Complaint)(Vanterpool, Jonice) (Entered: 10/22/2010)

10/22/2010 1696 RESPONSE in Opposition re 1695 MOTION to Consolidate Cases filed by MICHAEL E. CARROLL. (Wright, Josh) (Entered: 10/22/2010)

10/22/2010

1697

RESPONSE in Opposition re 1695 MOTION to Consolidate Cases MICHAEL E. CARROLL vs. CITY OF BIRMINGHAM, ALABAMA, et al. UNITED STATES OF AMERICA vs. JEFFERSON COUNTY, ALABAMA, et al.; JOHN W. MARTIN, et al vs. CITY OF BIRMINGHAM, ALABAMA, et al.and ENSLEY BRANCH OF THE N.A.A.C.P., et al. vs. GEORGE SEIBELS, et al., filed by MICHAEL E. CARROLL. (Wright, Josh) (Entered: 10/22/2010)

10/26/2010

1698

ORDER that any party who wishes to file a response to the motion to consolidate must do so by 11/5/2010; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 10/26/2010. (AHI ) (Entered: 10/26/2010)

11/04/2010 1699 Opposition to 1695 Motion to Consolidate filed by Wilks Class. (Fitzpatrick, Raymond) Modified on 11/4/2010 (AHI ). (Entered: 11/04/2010)

11/05/2010 1700 RESPONSE in Opposition re 1695 MOTION to Consolidate Cases filed by United States of America. (Adelstein, Jay) (Entered: 11/05/2010)

11/05/2010 1701 RESPONSE in Opposition re 1695 MOTION to Consolidate Cases ("Martin/Bryant Parties' Opposition To Motion To Consolidate") filed by Bryant, Martin. (Wilson, Rowan) (Entered: 11/05/2010)

11/15/2010

1702 MEMORANDUM OPINION AND ORDER that the motion to consolidate is DENIED; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 11/15/2010. (AHI) (Entered: 11/15/2010)

01/18/2011 1703 NOTICE of Monthly Report of the Monitor--September through December 2010 by William I Sauser, Jr. (AHI) (Entered: 01/18/2011)

02/02/2011 1704 MOTION to Withdraw as Attorney by Jefferson Cty. (Wagner, Charles) (Entered: 02/02/2011)

02/22/2011

1705

NOTICE of Appearance and Substitution of Counsel by Elizabeth Bosquet Shirley, Michael L. Lucas and Michael K.K. Choy on behalf of Bham City of (Shirley, Elizabeth) Modified on 2/22/2011 (AHI). (Entered: 02/22/2011)

02/24/2011 1706 ORDER that the motion to withdraw at attorny of record by Howard P. Walthall is GRANTED; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 2/23/2011. (AHI) (Entered: 02/24/2011)

03/01/2011

1707 MOTION to Dismiss the City of Birmingham, Alabama, as a Party, and to Dissolve the Consent Decree, as Amended by Bham City of. (Choy, Michael) (Entered: 03/01/2011)

03/04/2011

1708

RESPONSE to 1707 MOTION to Dismiss the City of Birmingham, Alabama, as a Party, and to Dissolve the Consent Decree, as Amended ("Martin/Bryant Parties' Response To The City Of Birmingham, Alabama's Motion To Dissolve The Consent Decree, As Amended, And To Dismiss The City Of Birmingham, Alabama, As A Party") filed by Bryant, Martin. (Wilson, Rowan) Modified on 3/7/2011 (AHI ). (Entered: 03/04/2011)

03/09/2011

1709

REPLY to Response to Motion re 1707 MOTION to Dismiss the City of Birmingham, Alabama, as a Party, and to Dissolve the Consent Decree, as Amended filed by Bham City of. (Choy, Michael) (Entered: 03/09/2011)

05/06/2011 1710 MOTION to Withdraw as Attorney for Fournier J. ("Boots") Gale, III by Jefferson Cty. (Murphy, Grace) (Entered: 05/06/2011)

05/13/2011

ORDER granting 1710 Motion to Withdraw as Attorney. Attorney Fournier J Gale, III terminated. Signed by Judge C Lynwood Smith, Jr on May 13, 2011. (ADS) (Entered: 05/13/2011)

12/21/2011

1711

ORDER that a Hearing on the renewed motion of the City of Birmingham, Alabama, to terminate its consent decreee is set for Thursday, 1/26/2012, at 10:00 AM in Courtroom 5B of the Hugo L Black US Courthouse, Birmingham, AL, before Judge C Lynwood Smith Jr., it is ORDERED that the parties proceed to mediation in accordance with this court's Alternative Dispute Resolution Plan; mediation must occur by 1/11/2012; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 12/21/2011. (AHI ) (Entered: 12/21/2011)

12/21/2011

1712

AMENDED ORDER that a Hearing on the renewed motion of the City of Birmingham, Alabama, to terminate its consent decreee is set for Thursday, 1/26/2012, at 10:00 AM in Courtroom 5B of the Hugo L Black US Courthouse, Birmingham, AL, before Judge C Lynwood

Smith Jr., it is ORDERED that the parties proceed to mediation in accordance with this court's Alternative Dispute Resolution Plan; mediation must occur by 1/11/2012; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 12/21/2011. (AHI) (Entered: 12/21/2011)

12/22/2011

1713

MOTION for Reconsideration re 1712 Order,, 1711 Order, Set Hearings,,,, ("Martin/Bryant Parties' Request For Reconsideration Of The Court's December 21, 2011, Order") by Bryant, Martin. (Wilson, Rowan) (Entered: 12/22/2011)

01/03/2012

1714

ORDER that the 1713 Motion for Reconsideration is GRANTED and the requirement to proceed to mediation no later than 1/11/2012 is RESCINDED; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 1/3/2012. (AHI ) (Entered: 01/03/2012)

01/06/2012 1715 NOTICE by Albert Jordan of election to no longer receive electronic notifications in this matter. (KAM, ) (Entered: 01/09/2012)

01/13/2012 1716 MOTION for a Declaration of the Inapplicability of the Automatic Stay by Bryant, Martin. (Wilson, Rowan) (Entered: 01/13/2012)

01/13/2012

1717

Brief re 1716 MOTION for a Declaration of the Inapplicability of the Automatic Stay ("Memorandum of Law in Support of the Martin/Bryant Parties' Motion for a Declaration of Inapplicability of the Automatic Stay") filed by Bryant, Martin. (Wilson, Rowan) (Entered: 01/13/2012)

01/13/2012

1718

AFFIDAVIT in Support re 1716 MOTION for a Declaration of the Inapplicability of the Automatic Stay ("Declaration of Margaret E. Lynaugh in Support of Martin/Bryant Parties' Motion for a Declaration of Inapplicability of the Automatic Stay") filed by Bryant, Martin. (Attachments: # 1 Exhibit A to Lynaugh Declaration, # 2 Exhibit B to Lynaugh Declaration, # 3 Exhibit C to Lynaugh Declaration)(Wilson, Rowan) (Entered: 01/13/2012)

01/13/2012

1719

CERTIFICATE OF SERVICE by Bryant, Martin re 1718 Affidavit in Support of Motion, 1716 MOTION for a Declaration of the Inapplicability of the Automatic Stay (Wilson, Rowan) (Entered: 01/13/2012)

01/17/2012 1720 MOTION to Withdraw as Attorney Nefertari Rigsby by Jefferson Cty. (Ahnert, Janell) (Entered: 01/17/2012)

01/17/2012 1721 MOTION to Withdraw as Attorney ("Motion to Withdraw Appearances of Kristy Jean Greenberg, Scott P. Dixler, and David R. Marriott") by Bryant, Martin. (Wilson, Rowan) (Entered: 01/17/2012)

01/17/2012 1722 RESPONSE to Motion re 1716 MOTION for a Declaration of the Inapplicability of the Automatic Stay filed by United States of America. (Sperber, Joseph) (Entered: 01/17/2012)

01/18/2012

ORDER granting 1720 Motion to Withdraw as Attorney. Attorney Nefertari S Rigsby terminated. Signed by Judge C Lynwood Smith, Jr on January 18, 2012. (ADS) (Entered: 01/18/2012)

01/18/2012

ORDER granting 1721 Motion to Withdraw as Attorney. Attorneys David R Marriott, Scott P Dixler, and Kristy Jean Greenberg terminated. Signed by Judge C Lynwood Smith, Jr on January 18, 2012. (ADS) (Entered: 01/18/2012)

01/25/2012 1723 NOTICE of Monthly Report of the Monitor - January 2012 by William I Sauser, Jr (AHI) (Entered: 01/25/2012)

01/26/2012

Minute Entry for proceedings held before Judge C Lynwood Smith, Jr on January 26, 2012. Hearing held on Motion to Dismiss by City of Birmingham; preliminary remarks by the court; testimony of City of Birmingham; daily adj, with written order to be entered; (Court Reporter Christina Decker.) (LCW) (Entered: 01/30/2012)

01/27/2012

1724

ORDER DISMISSING City of Birmingham that the The Citys March 1, 2011, motion to dissolve its consent decree and to dismiss the City as a party to this litigation is GRANTED, The Citys August 20, 2007, motion to alter or amend, and the Citys June 13, 2008, renewed motion to terminate, are DENIED as moot, The oral motion of attorney Ray Fitzpatrick to withdraw from this case and to be relieved of his representation obligations to the Wilks Class of plaintiffs is GRANTED, cost are taxed as paid; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 1/27/2012. (AHI) (Entered: 01/27/2012)

01/27/2012

1725

ORDER that the MArtin-Bryant 1716 MOTION for a Declaration of the Inapplicability of the Automatic Stay provisions of Title 11 of the United States do not apply to that portion of this litigation concerning defendant Jefferson County, Alabama1 is GRANTED, it is ORDERED that by 2/8/2012, the Martin-Bryant parties shall submit a written proposal to the County regarding their plan to resolve the remaining dispute without the necessity of trial, by 2/24/2012, the County shall submit a written counter-proposal to the Martin-Bryant parties, by 3/12/2012, the parties shall file a joint statement with the court, disclosing the status of their negotiations and indicating whether there is a necessity to proceed to trial, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 1/27/2012. (AHI) (Entered: 01/27/2012)

02/09/2012 1726 MOTION for Attorney Fees by Bryant, Martin. (Wilson, Rowan) (Entered: 02/09/2012)

02/10/2012 1727 Amended MOTION for Attorney Fees (with [Proposed] Order) by Bryant, Martin. (Wilson, Rowan) Modified on 4/13/2012 (AHI). (Entered: 02/10/2012)

02/10/2012

ORDER finding as moot 1726 Motion for Attorney Fees, in light of the amended motion filed. Signed by Judge C Lynwood Smith, Jr on February 10, 2012. (ADS) (Entered: 02/10/2012)

02/10/2012

1728

ORDER that the Martin-Bryant parties must submit a memorandum of law and evidentiary material in support of the motion by 4/2/2012, the City of Birmingham must file a response by 5/1/2012, the MartinBryant parties must file any reply submission by 5/15/2012. Signed by Judge C Lynwood Smith, Jr on 2/10/2012. (AHI) (Entered: 02/10/2012)

02/10/2012

1729

MOTION for Attorney Fees Wilks Class' Unopposed Motion for Award of Attorneys' Fees and Expenses from Defendant City of Birmingham by Wilks Class. (Attachments: # 1 Exhibit Statement of Time and Expense, # 2 Text of Proposed Order Proposed Order)(Fitzpatrick, Raymond) (Entered: 02/10/2012)

02/13/2012

1730

ORDER that the Wilks Class of plaintiff's 1729 Motion for Attorney Fees is GRANTED and it is ORDERED that Defendant, City of Birmingham, Alabama, must pay Mr. Ray Fitzpatrick, counsel fo the Wilks Class, the amount of $22,350.00 in attorney's fees and $331.85 in expenses for a total award of $22,681.85; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 2/13/2012. (AHI) Modified on 2/13/2012 (AHI ). (Entered: 02/13/2012)

03/12/2012

1731 STATUS REPORT ("Joint Status Report on Settlement Discussions") by Bryant, Jefferson Cty, Martin, United States of America. (Wilson, Rowan) (Entered: 03/12/2012)

03/16/2012

1732

Joint MOTION for Approval of Settlement and Entry of Judgment re 1726 MOTION for Attorney Fees ("Notice of Settlement and Joint Motion for Approval of Settlement and Entry of Judgment") by Bham City of, Bryant, Martin. (Wilson, Rowan) Modified on 4/13/2012 (AHI ). (Entered: 03/16/2012)

03/16/2012

1733

RESPONSE to Motion re 1732 Joint MOTION for Approval of Settlement and Entry of Judgment re 1726 MOTION for Attorney Fees ("Notice of Settlement and Joint Motion for Approval of Settlement and Entry of Judgment")Joint MOTION for Approval of Settlement and Entry of Judgment re 1726 MOTION for Attorney Fees ("Notice of Settlement and Joint Motion for Approval of Settlement and Entry of Judgment") filed by United States of America. (Adelstein, Jay) (Entered: 03/16/2012)

03/16/2012

1734

ORDER that a Bench Trial shall receonvene at 9:30 AM on 9/10/2012 at the Federal Courthouse, Huntsville, AL before Judge C Lynwood Smith Jr.; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 3/16/2012. (AHI) (Entered: 03/16/2012)

03/16/2012

1735

ORDER that it is ORDERED that the parties' settlement is APPROVED, and judgment hereby is entered in favor of Cravath, Swaine & Moore, LLP, John W. Martin et al., and Gwendolyn Bryant et al., jointly and severally, and against the City, in the amount of $350,000.00, In satisfaction of this judgment, the City shall pay $250,000.00 to the Lawyers Committee for Civil Rights Under Law and shall pay $100,000.00 to Cravath, Swaine & Moore, LLP, as counsel for the Martin-Bryant parties, for partial reimbursement of costs, these payments shall be made within 30 days from entry of this judgment, and shall represent full and final satisfaction of the Martin-Bryant parties' claim for attorneys fees and costs from the City set forth in their motion; as mroe fully set out in order. Signed by Judge C Lynwood Smith, Jr on 3/16/2012. (AHI, ) (Entered: 03/16/2012)

04/04/2012

1736 ORDER setting schedule for all pre-trial deadlines as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 4/4/2012. (AHI) (Entered: 04/04/2012)

04/16/2012 1737 MOTION for Hearing Motion for Status Conference by Jefferson Cty. (Hosp, Edward) (Entered: 04/16/2012)

04/17/2012

ORDER setting motion deadline 1737 Motion for Status Conference. Plaintiffs must file a response to the motion on or before May 1, 2012. Signed by Judge C Lynwood Smith, Jr on April 17, 2012. (ADS) (Entered: 04/17/2012)

04/26/2012 1738 RESPONSE in Opposition re 1737 MOTION for Hearing Motion for Status Conference ("Opposition to Motion for Status Conference") filed by Bryant, Martin. (Wilson, Rowan) (Entered: 04/26/2012)

04/27/2012 1739 RESPONSE to Motion re 1737 MOTION for Hearing Motion for Status Conference filed by United States of America. (Adelstein, Jay) (Entered: 04/27/2012)

04/27/2012

1740 REPLY to Response to Motion re 1737 MOTION for Hearing Motion for Status Conference filed by Jefferson Cty. (Ahnert, Janell) (Entered: 04/27/2012)

04/27/2012 1741 MOTION for Leave to Appear Pro Hac Vice by Bryant, Martin. (Wilson, Rowan) (Entered: 04/27/2012)

04/30/2012

1742

ORDER that the defendant, Jefferson County's, 1737 Motion for a status conference is DENIED; the parties are directed to prepare for the 9/10/2012, trial in accordance with the pretrial schedule entered on 3/4/2012. Signed by Judge C Lynwood Smith, Jr on 4/30/2012. (AHI ) (Entered: 04/30/2012)

04/30/2012

PHV Fee paid: $50, receipt number B4601033099 for Lauren Rosenberg (AHI ) (Entered: 05/01/2012)

05/01/2012 1743 NOTICE of Appearance by Stephanie Houston Mays on behalf of Jefferson Cty (Mays, Stephanie) (Entered: 05/01/2012)

05/01/2012 1744 MOTION to Withdraw as Attorney , Christine Green by Jefferson Cty. (Mays, Stephanie) (Entered: 05/01/2012)

05/01/2012

ORDER granting 1744 Motion to Withdraw as Attorney. Attorney Anna Christine Green terminated. Signed by Judge C Lynwood Smith, Jr on May 1, 2012. (ADS) (Entered: 05/01/2012)

05/01/2012

ORDER granting 1741 Motion for Leave to Appear pro hac vice. Signed by Judge C Lynwood Smith, Jr on May 1, 2012. (ADS) (Entered: 05/01/2012)

06/13/2012 1745 MOTION for Leave to Appear Pro Hac Vice by Bryant, Martin. (Wilson, Rowan) (Entered: 06/13/2012)

06/15/2012

PHV Fee paid: $50, receipt number B4601034448 for Rachel Fritzler (AHI) (Entered: 06/18/2012)

06/18/2012

ORDER granting 1745 Motion for Leave to Appear pro hac vice by Rachel M. Fritzler. Signed by Judge C Lynwood Smith, Jr on June 18, 2012. (ADH) (Entered: 06/18/2012)

08/13/2012 1746 First MOTION for Extension of Time to File Pre-Trial Memoranda by Jefferson Cty. (Ahnert, Janell) (Entered: 08/13/2012)

08/15/2012

ORDER granting 1746 Motion for Extension of Time to File. Signed by Judge C Lynwood Smith, Jr on August 15, 2012. (ADH) (Entered: 08/15/2012)

08/15/2012

1747

NOTICE by Bryant, Jefferson Cty, Martin, United States of America re 1736 Order, Set Deadlines/Hearings ("Revised Joint Pre-Trial Order") (Attachments: # 1 Exhibit A to Revised Joint Pre-Trial Order, # 2 Exhibit B to Revised Joint Pre-Trial Order, # 3 Exhibit C to Revised Joint Pre-Trial Order, # 4 Exhibit D to Revised Joint Pre-Trial Order, # 5 Exhibit E to Revised Joint Pre-Trial Order, # 6 Exhibit F to Revised Joint Pre-Trial Order, # 7 Exhibit G to Revised Joint Pre-Trial Order, #

8 Exhibit H to Revised Joint Pre-Trial Order)(Wilson, Rowan) (Entered: 08/15/2012)

08/22/2012 1748 PRETRIAL MEMORANDUM by Bryant, Martin. filed by Bryant, Martin (Wilson, Rowan) (Entered: 08/22/2012)

08/22/2012 1749 MOTION for Leave to Appear Pro Hac Vice by Bryant, Martin. (Wilson, Rowan) (Entered: 08/22/2012)

08/22/2012 1750 PRETRIAL MEMORANDUM by Jefferson Cty. filed by Jefferson Cty (Murphy, Grace) (Entered: 08/22/2012)

08/23/2012 1751 REVISED PRE-TRIAL ORDER that the court will resume the trial on 9/10/2012; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 8/22/2012. (AHI) (Entered: 08/23/2012)

08/27/2012 1752 NOTICE of Appearance by Thomas J Butler on behalf of Jefferson Cty (Butler, Thomas) (Entered: 08/27/2012)

08/31/2012

ORDER that the Bench Trial presently set for September 10, 2012, will begin on Wednesday, September 12, 2012 at 9:30 a.m. in Courtroom 5B of the Hugo L. Black U. S. Courthouse located at 1729 Fifth Avenue North in Birmingham, Alabama. Signed by Judge C Lynwood Smith, Jr on 08/31/2012. (LCW) (Entered: 08/31/2012)

09/04/2012

PHV Fee paid: $50, receipt number B4601036663 for Thomas G. Rafferty (AHI ) (Entered: 09/05/2012)

09/05/2012

ORDER granting 1749 Motion for admission pro hac vice. Signed by Judge C Lynwood Smith, Jr on September 5, 2012. (ADH) (Entered: 09/05/2012)

09/10/2012

1753

ORDER that the trial presently set for September 12, 2012, is CONTINUED generally and will be reset by subsequent order. Signed by Judge C Lynwood Smith, Jr on 09/10/2012. (LCW) (Entered: 09/10/2012)

10/12/2012

1754

ORDER that the trial in this case will resume on December 3, 2012 at 9:30 a.m. in Courtroom 5B of the Hugo L. Black U.S. Courthouse. Signed by Judge C Lynwood Smith, Jr on 10/11/12. (SPT ) (Entered: 10/12/2012)

10/23/2012 1755 MOTION to Withdraw as Attorney ("Motion to Withdraw Appearance of Margaret E. Lynaugh") by Bryant, Martin. (Wilson, Rowan) (Entered: 10/23/2012)

10/23/2012

ORDER granting 1755 Motion to Withdraw as Attorney. Attorney Margaret E Lynaugh terminated. Signed by Judge C Lynwood Smith, Jr on October 23, 2012. (ADH) (Entered: 10/23/2012)

10/24/2012 1756 NOTICE by Bryant, Martin re 1642 Order on Motion for Attorney Fees,, Order on Motion for Miscellaneous Relief, ("Notice of Satisfaction of Judgment") (Wilson, Rowan) (Entered: 10/24/2012)

11/28/2012

1757 CERTIFICATE OF SERVICE by Bryant, Martin ("Proof of Service of Trial Subpoena Directed to Kimberly Oden-Webster") (Wilson, Rowan) (Entered: 11/28/2012)

11/28/2012 1758 CERTIFICATE OF SERVICE by Bryant, Martin ("Proof of Service of Trial Subpoena Directed to Robby G. Bennett") (Wilson, Rowan) (Entered: 11/28/2012)

11/28/2012

1759 CERTIFICATE OF SERVICE by Bryant, Martin ("Proof of Service of Trial Subpoena Directed to Jon Moon") (Wilson, Rowan) (Entered: 11/28/2012)

11/28/2012 1760 CERTIFICATE OF SERVICE by Bryant, Martin ("Proof of Service of Trial Subpoena Directed to J. Fancher") (Wilson, Rowan) (Entered: 11/28/2012)

11/28/2012 1761 CERTIFICATE OF SERVICE by Bryant, Martin ("Proof of Service of Trial Subpoena Directed to Demetruis Taylor") (Wilson, Rowan) (Entered: 11/28/2012)

11/28/2012 1762 AFFIDAVIT of Service for Trial Subpoena served on David Shockey, filed by Bryant, Martin. (Wilson, Rowan) (Entered: 11/28/2012)

11/28/2012 1763 AFFIDAVIT of Service for Trial Subpoena served on William J. Corley, filed by Bryant, Martin. (Wilson, Rowan) (Entered: 11/28/2012)

12/02/2012 1764 AFFIDAVIT of Service for Trial Subpoena served on Robby G. Bennett on 12/01/12, filed by Bryant, Martin. (Wilson, Rowan) (Entered: 12/02/2012)

12/02/2012

1765 AFFIDAVIT of Service for Trial Subpoena served on William J. Corley on 12/02/12, filed by Bryant, Martin. (Wilson, Rowan) (Entered: 12/02/2012)

12/03/2012 1766 ORDER Marshals to transport Kimberly Wesbster to testify before the court as more fully set out in the order. Signed by Judge C Lynwood Smith, Jr on 12/3/12. (LCW) (Entered: 12/03/2012)

12/03/2012

The order directing the Marshals to transport Ms. Webster to testify before this court is VACATED. Signed by Judge C Lynwood Smith, Jr on 12/3/2012. (LCW) (Entered: 12/03/2012)

12/03/2012

Minute Entry for proceedings held before Judge C Lynwood Smith, Jr: On trial before the Honorable C. Lywnood Smith, Jr; opening statements; testimony of Martin/Bryant plaintiffs; daily adj; (Court Reporter Christina Decker, Cheryl Powell.) (LCW, ) (Entered: 12/06/2012)

12/04/2012

Minute Entry for proceedings held before Judge C Lynwood Smith, Jr: Bench Trial resumed on 12/4/2012; testimony of Martin/Bryant plaintiffs continued; daily adj; (Court Reporter Christina Decker, Cheryl Powell.) (LCW) (Entered: 12/06/2012)

12/06/2012

Minute Entry for proceedings held before Judge C Lynwood Smith, Jr: Bench Trial resumed on 12/6/2012; testimony of plaintiffs continued; testimony of defendant Jefferson County; daily adj; (Court Reporter Christina Decker, Cheryl Powell.) (LCW) (Entered: 12/06/2012)

12/06/2012

1767 AFFIDAVIT of Service of Subpoena to Appear and Testify at Hearing or Trial served on Marcia Coleman by Jefferson Cty. filed by Jefferson Cty (Murphy, Grace) (Entered: 12/06/2012)

12/12/2012

1768

ORDER that in accordance with the court's oral comments at the conclusion of the bench trial on 12/11/2012, it is ORDERED that the Martin-Bryant parties, theUnited States, and Jefferson County shall simultaneously submit post-trial briefs, including individually numbered proposed findings of fact and conclusions of law, on or before 1/28/2013, Responses to the post-trial briefs, including individually numbered responses to the opposing partys proposed findings of fact and conclusions of law, shall be filed by 2/8/2013.Signed by Judge C Lynwood Smith, Jr on 12/12/2012. (AHI) (Entered: 12/12/2012)

01/24/2013 1769 MOTION for Order by Jefferson Cty. (Attachments: # 1 Exhibit A)(Lawson, Theodore) (Entered: 01/24/2013)

01/25/2013

ORDER setting motion deadline 1769 Motion for order to allow hiring. Plaintiffs must respond to the motion on or before February 8, 2013. Signed by Judge C Lynwood Smith, Jr on January 25, 2013. (ADH) (Entered: 01/25/2013)

01/28/2013 1770 RESPONSE in Support re 1769 MOTION for Order filed by United States of America. (Adelstein, Jay) (Entered: 01/28/2013)

01/28/2013 1771 ORDER granting 1769 Motion to allow hiring. The County may hire for the positions Clinical Nurse Practitioner, Principal Buyer, Chief Deputy

Coroner, Chief Court Clerk, and Principal Court Clerk under the terms set forth in the attached order. The January 25, 2013 order requiring a response to the County's motion is rescinded. The parties must file a joint status report by February 1, 2013, regarding their efforts to draft an interim plan for hiring and promotion decisions. Signed by Judge C Lynwood Smith, Jr on January 28, 2013. (ADH, ) (Entered: 01/28/2013)

01/28/2013 1772 Brief (Proposed Findings of Fact and Conclusions of Law). (Murphy, Grace) (Entered: 01/28/2013)

01/28/2013 1773 Martin/Bryant Parties' Proposed Findings of Fact and Conclusions of Law by Bryant, Martin (Wilson, Rowan) Modified on 1/29/2013 (AHI). (Entered: 01/28/2013)

01/28/2013

1774

AFFIDAVIT in Support re 1773 Notice (Other) ("Declaration of Rowan D. Wilson in Support of Martin/Bryant Parties' Proposed Findings of Fact and Conclusions of Law") by Bryant, Martin. (Attachments: # 1 Exhibit A to Wilson Declaration, # 2 Exhibit B to Wilson Declaration, # 3 Exhibit C to Wilson Declaration, # 4 Exhibit D to Wilson Declaration, # 5 Exhibit E to Wilson Declaration, # 6 Exhibit F to Wilson Declaration, # 7 Exhibit G to Wilson Declaration, # 8 Exhibit H to Wilson Declaration, # 9 Exhibit I to Wilson Declaration, # 10 Exhibit J to Wilson Declaration, # 11 Exhibit K to Wilson Declaration, # 12 Exhibit L to Wilson Declaration, # 13 Exhibit M to Wilson Declaration, # 14 Exhibit N to Wilson Declaration, # 15 Exhibit O to Wilson Declaration)(Wilson, Rowan) (Entered: 01/28/2013)

01/31/2013

1775 MOTION for Extension of Time to File Response/Reply to the MartinBryant Parties' Post-Trial Submission by Jefferson Cty. (Murphy, Grace) (Entered: 01/31/2013)

01/31/2013

1776

RESPONSE to Motion re 1775 MOTION for Extension of Time to File Response/Reply to the Martin-Bryant Parties' Post-Trial Submission ("Response of the Martin/Bryant Parties to Jefferson County's Motion for an Extension of Time for Defendant Jefferson County to File a Response to Plaintiffs' Post-Trial Submission") filed by Bryant, Martin. (Wilson, Rowan) (Entered: 01/31/2013)

02/01/2013

1777

ORDER that the 1775 Motion for Extension of Time to File a Response is GRANTED and the deadlines for filing said response to post-trial briefs is extended to 2/22/2013. Signed by Judge C Lynwood Smith, Jr on 2/1/2013. (AHI) (Entered: 02/01/2013)

02/01/2013 1778 STATUS REPORT by Bryant, Jefferson Cty, Martin, United States of America. filed by Bryant, Jefferson Cty, Martin, United States of America (Murphy, Grace) (Entered: 02/01/2013)

02/11/2013 1779 NOTICE by Bryant, Jefferson Cty, Martin, United States of America ("[Proposed] Temporary Order") (Attachments: # 1 Appendix A to [Proposed] Temporary Order)(Wilson, Rowan) (Entered: 02/11/2013)

02/13/2013

1780

TEMPORARY ORDER that pending a final decision on the motion of the Martin plaintffs and Bryant intervenors to hold the defendant Jefferson County in contempt as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 2/13/2013. (Attachments: # 1 Appendix A)(AHI) (Entered: 02/13/2013)

02/13/2013 1781 MOTION Partial Relief from Order by Jefferson Cty. (Lawson, Theodore) (Entered: 02/13/2013)

02/14/2013

1782

ORDER that the plaintiffs must file a response to the motion for partial relief from the temporary order entered on 2/13/2013, by 2/28/2013, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 2/14/2013. (AHI) (Entered: 02/14/2013)

02/15/2013

1783

RESPONSE in Opposition re 1781 MOTION Partial Relief from Order ("Martin/Bryant Parties' Opposition to Defendant's Motion for Partial Relief from Order") filed by Bryant, Martin. (Wilson, Rowan) (Entered: 02/15/2013)

02/15/2013

1784

AFFIDAVIT in Opposition re 1781 MOTION Partial Relief from Order ("Declaration of Rowan D. Wilson in Support of Martin/Bryant Parties' Opposition to Defendant's Motion for Partial Relief from Order") filed by Bryant, Martin. (Attachments: # 1 Exhibit A to Wilson Declaration, # 2 Exhibit B to Wilson Declaration, # 3 Exhibit C to Wilson Declaration)(Wilson, Rowan) (Entered: 02/15/2013)

02/19/2013

1785

ORDER that the 1781 Motion for partial relief from the temporary order entered on 2/13/2013, is DENIED; it is further ORDERED that Jefferson County must provide supplemental list of jobs to be covered by the temporary order to the Martin-Bryant parties by 3/1/2013 as more fully set out; the parties are ordered to submit a revised temporary order by 3/8/2013. Signed by Judge C Lynwood Smith, Jr on 2/19/2013. (AHI) Modified on 2/20/2013 (LCW, ). Modified on 2/20/2013 (LCW, ). (Entered: 02/19/2013)

02/19/2013 1786 MOTION for Emergency Appointment by Jefferson Cty. (Murphy, Grace) Modified on 2/20/2013 (AHI). (Entered: 02/19/2013)

02/20/2013

1787

ORDER that hte plaintiffs are ORDERED to file a respone to the Motion for permission to make an emergency appointment to the position of Licensed Professional Counselor at Cooper Green Clinic by 2/21/2013. Signed by Judge C Lynwood Smith, Jr on 2/20/2013. (AHI, ) (Entered: 02/20/2013)

02/21/2013 1788 MOTION for Reconsideration of Court's February 19th Order [Doc. 1785] by Jefferson Cty. (Murphy, Grace) (Entered: 02/21/2013)

02/21/2013

1789 RESPONSE to Motion re 1786 MOTION Emergency Appointment filed by United States of America. (Adelstein, Jay) (Entered: 02/21/2013)

02/21/2013

1790

RESPONSE in Opposition re 1786 MOTION Emergency Appointment ("Martin/Bryant Parties' Opposition to Defendant's Motion for Emergency Appointment") filed by Bryant, Martin. (Wilson, Rowan) (Entered: 02/21/2013)

02/21/2013

1791

AFFIDAVIT in Opposition re 1786 MOTION Emergency Appointment ("Declaration of Rowan D. Wilson in Support of Martin/Bryant Parties' Opposition to Defendant's Motion for Emergency Appointment") filed by Bryant, Martin. (Attachments: # 1 Exhibit A to Wilson Declaration, # 2 Exhibit B to Wilson Declaration, # 3 Exhibit C to Wilson Declaration, # 4 Exhibit D to Wilson Declaration, # 5 Exhibit E to Wilson Declaration, # 7 Exhibit G to Wilson Declaration, # 8 Exhibit H to Wilson Declaration, # 9 Exhibit I to Wilson Declaration)(Wilson, Rowan) (# 10 Exhibit F REDACTED) Modified on 3/1/2013 (AHI ). (Entered: 02/21/2013)

02/21/2013

1792

MOTION to Seal Declarations of Rowan Wilson in Support of Martin Bryant Parties' Opposition to Defendant's Motion for Emergency Appointment by Jefferson Cty. (Lawson, Theodore) (Entered: 02/21/2013)

02/21/2013

1793

ORDER that counsel for all parties are ORDERED to appear at a Motions Hearing on 2/25/2013, at 1:30 PM in Federal Courthouse, Huntsville, AL before Judge C Lynwood Smith Jr.; it is further ORDERED that the psychiatrist whose contract to work at the Cooper Green Clinic is contingent upon the immediate hiring of a Licensed Professional Counselor must attend the hearing and be prepared to present testimony; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 2/21/2013. (AHI ) (Entered: 02/21/2013)

02/21/2013

1794

RESPONSE in Opposition re 1788 MOTION for Reconsideration of Court's February 19th Order [Doc. 1785] ("Response of the Martin/Bryant Parties to the Motion of Jefferson County for Reconsideration of the February 19, 2013, Order") filed by Bryant, Martin. (Wilson, Rowan) (Entered: 02/21/2013)

02/21/2013 1795 REPLY to Response to Motion re 1786 MOTION Emergency Appointment filed by Jefferson Cty. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Lawson, Theodore) (Entered: 02/21/2013)

02/22/2013

1796

ORDER that the hearing set for 1:30 p.m. on February 25, 2013 is CONTINUED generally and will be reset by separate order. Signed by Judge C Lynwood Smith, Jr on February 22, 2013. (ADH) (Entered: 02/22/2013)

02/22/2013

1797

RESPONSE to re 1772 ("Martin/Bryant Parties' Responses to Defendant Jefferson County's Post-Trial Proposed Findings of Fact and Conclusions of Law") filed by Bryant, Martin. (Wilson, Rowan) (Entered: 02/22/2013)

02/22/2013 1798 RESPONSE to the Martin-Bryant Parties Post-Trial Proposed Findings of Fact and Conclusions of Law filed by Jefferson Cty. (Murphy, Grace) (Entered: 02/22/2013)

02/25/2013

1799

ORDER that the Motion Hearing is RESCHEDULED for 2/27/2013 1:30 PM in Courtroom 7B of the Hugo L Black US Courthouse, Birmingham, AL before Judge C Lynwood Smith Jr. as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 2/25/2013. (AHI) (Entered: 02/25/2013)

03/01/2013

1800

ORDER that it is ORDERED that Jefferson County's motion for reconsideration isDENIED and the court's 2/13/2013 and 2/19/2013, orders remain in full force and effect; Jefferson County's motion for emergency appointment also is DENIED and the court instead adopts the alternative procedure proposed by the Martin-Bryant parties in their response to the motion for emergency appointment as mroe fully set out therein; Jefferson County's motion to seal the declaration of Rowan Wilson is DENIED; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 3/1/2013. (AHI ) Modified on 3/1/2013 (AHI). (Entered: 03/01/2013)

03/08/2013

1801

NOTICE by Bryant, Jefferson Cty, Martin, United States of America of Second Proposed Temporary Order (Attachments: # 1 Appendix A (List of Classifications and Number of Positions))(Murphy, Grace) (Entered: 03/08/2013)

03/11/2013 1802 SECOND TEMPORARY ORDER as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 3/11/2013. (Attachments: # 1 Appendix A)(AHI ) (Entered: 03/11/2013)

04/25/2013 1803 MOTION to Appoint County Attorney by Jefferson Cty. (Ahnert, Janell) (Entered: 04/25/2013)

04/25/2013 1804 ORDER that the 1803 Motion to Appoint a New County Attorney for Jefferson County is GRANTED. Signed by Judge C Lynwood Smith, Jr on 4/25/2013. (AHI ) (Entered: 04/25/2013)

04/26/2013 1805 NOTICE of Appearance by David M Smith on behalf of Jefferson Cty (Smith, David) (Entered: 04/26/2013)

05/16/2013 1806 MOTION Unopposed Motion to Appoint County Attorney for Jefferson County by Jefferson Cty. (Lawson, Theodore) (Entered: 05/16/2013)

05/17/2013 1807 ORDER that the second unopposed 1806 Motion to Appoint a New County Attorney for Jefferson County is GRANTED. Signed by Judge C Lynwood Smith, Jr on 5/17/2013. (AHI ) (Entered: 05/17/2013)

06/19/2013

1808 MOTION Unopposed Motion to Appoint Confidential Secretary for Commissioner Joe Knight by Jefferson Cty. (Lawson, Theodore) (Entered: 06/19/2013)

06/20/2013

1809

ORDER that the unopposed motion to appoint Zach Brooks as Confidential Secretary for Commissioner Joe Knight is GRANTED. Signed by Judge C Lynwood Smith, Jr on 6/20/2013. (AHI ) (Entered: 06/20/2013)

06/28/2013 1810 Joint MOTION Entry of First Proposed Interim Order by Bryant, Jefferson Cty, Martin, United States of America. (Murphy, Grace) Modified on 7/29/2013 (AHI ). (Entered: 06/28/2013)

07/02/2013

1811 FIRST INTERIM ORDER INCORPORATING ALL AGREED-TO SELECTION PROCEDURES as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 07/02/13. (SPT ) (Entered: 07/02/2013)

07/08/2013 1812 MOTION Appoint Interim Director of Office of Senior Citizens Services (Unopposed) by Jefferson Cty. (Murphy, Grace) (Entered: 07/08/2013)

07/09/2013

1813

ORDER that the 1812 Motion to appoint Derry Johnson as Interim Director of the Office of Senior Citizens Services is GRANTED. Signed by Judge C Lynwood Smith, Jr on 7/9/2013. (AHI) (Entered: 07/09/2013)

07/19/2013 1814 MOTION Appoint Interim Director of Roads and Transportation (Unopposed) by Jefferson Cty. (Murphy, Grace) (Entered: 07/19/2013)

07/19/2013

1815

ORDER that the 1814 Motion to appoint Tracy Pate as Interim Director of the Department of Roads and Transportation is GRANTED. Signed by Judge C Lynwood Smith, Jr on 7/19/2013. (AHI) (Entered: 07/19/2013)

07/26/2013 1816 MOTION to Seal Document by Jefferson Cty. (Murphy, Grace) (Entered: 07/26/2013)

07/26/2013

1817

MOTION to Approve Interim Selection Methods for Security Officer and WWTP Supervisor and for Approval to Hire Additional Security Officers by Jefferson Cty. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9 (to be filed under seal))(Murphy, Grace) Modified on 7/29/2013 (AHI). (Entered: 07/26/2013)

07/26/2013 1818 Joint MOTION for Protective Order for Deposition Set for July 30, 2013 by Jefferson Cty. (Murphy, Grace) (Entered: 07/26/2013)

07/29/2013

ORDER granting 1816 Motion to Seal Document. Signed by Judge C Lynwood Smith, Jr on July 29, 2013. (ADH) (Entered: 07/29/2013)

07/29/2013 1819 PROTECTIVE ORDER at to Deposition of Jeff Sewell as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 7/29/2013. (AHI) (Entered: 07/29/2013)

07/29/2013

1820

ORDER that this case is before the court on Jefferson County's motion to approve interim selection procedures for Security Officer and WWTP Supervisor, and for approval to hire additional Security Officers; all plaintiffs must file a response to the motion by 8/12/2013. Signed by Judge C Lynwood Smith, Jr on 7/29/2013. (AHI ) (Entered: 07/29/2013)

08/07/2013 1821 NOTICE by Jefferson Cty of Withdrawal of Doc. 1817 without Prejudice (Murphy, Grace) (Entered: 08/07/2013)

08/07/2013

ORDER finding as moot 1817 Motion to Approve Interim Selection Methods, as the motion has been withdrawn. Signed by Judge C Lynwood Smith, Jr on August 7, 2013. (ADH) (Entered: 08/07/2013)

08/16/2013

1822 MOTION Approve Supplemental Interim Selection Procedure for Bridge Maintenance Construction Supervisor (Unopposed) by Jefferson Cty. (Murphy, Grace) (Entered: 08/16/2013)

08/20/2013

1823

ORDER that the Jefferson County's 1822 Motion to approve a supplemental interim selection method for the bridge maintenance construction supervisor position is GRANTED. Signed by Judge C Lynwood Smith, Jr on 8/20/2013. (AHI) (Entered: 08/20/2013)

08/20/2013

1824

MEMORANDUM OPINION AND ORDER that the Motion to hold Jefferson County in civil contempt and to modify some provisions of its decree is GRANTED an it is ORDERED that defendant, Jefferson County, Alabama, is adjudged to be in contempt for failing to comply with the requirements of the consent decree entered on 12/29/1982; the parties are ORDERED to file a joint report of their conference by 9/20/2013; the parties are also directed to appear for a Status Conference set for 9/26/2013 09:30 AM in Hugo L Black US

Courthouse, Birmingham, AL before Judge C Lynwood Smith Jr., as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 8/20/2013. (AHI) (Entered: 08/20/2013)

09/20/2013

1825

STATUS REPORT ("Joint Status Report") by Bryant, Jefferson Cty, Martin, United States of America. filed by Bryant, Jefferson Cty, Martin, United States of America (Attachments: # 1 Resume of Dr. Ronald R. Sims, # 2 Resume of C. Michael Quinn, # 3 Resume of Alfred F. ("Buddy") Smith, # 4 Resume of Fern H. Singer)(Wilson, Rowan) (Entered: 09/20/2013)

09/24/2013 1826 MOTION to Approve Essential Hire Request for Accounting Assistant I (Unopposed) by Jefferson Cty. (Murphy, Grace) (Entered: 09/24/2013)

09/25/2013

1827

ORDER granting 1826 Motion to Approve Essential Hire Request for Nine Positions in the Job Classification of Accounting Assistant I. Signed by Judge C Lynwood Smith, Jr on 09/25/13. (SPT ) (Entered: 09/25/2013)

10/01/2013 1828 MOTION to Stay by United States of America. (Sperber, Joseph) (Entered: 10/01/2013)

10/11/2013 1829 MOTION Allow Appointment of Family Court Administrator (Unopposed) by Jefferson Cty. (Murphy, Grace) (Entered: 10/11/2013)

10/15/2013 1830 ORDER that the motion to appoint Ronald Truss as Family Court Administrator is GRANTED. Signed by Judge C Lynwood Smith, Jr on 10/15/2013. (AHI ) (Entered: 10/15/2013)

10/15/2013

1831

ORDER that the Clerk of Court is to detach the following copy of the 12/29/1982, consent decree, and file it as a separate document as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 10/15/2013. (Attachments: # 1 Exhibit A Consent Decree with Jefferson County Entered on 12-29-1982)(AHI) (Entered: 10/15/2013)

10/15/2013 1832 CONSENT Decree with Jefferson County Entered on 12/29/1982 (AHI ) (Entered: 10/15/2013)

10/16/2013 1833 MODIFIED Jefferson County Consent Decree as more fully set out thereon. Signed by Judge C Lynwood Smith, Jr on 10/16/2013. (AHI ) (Entered: 10/16/2013)

10/17/2013

1834 MOTION to Withdraw 1828 MOTION to Stay Reqest to Withdraw Motion for Stay by United States of America. (Sperber, Joseph) Modified on 10/17/2013 (AHI). (Entered: 10/17/2013)

10/17/2013 1835 Consent MOTION to Approve Interim Selection Procedures for Juvenile Detention Officer and Accountant by Jefferson Cty. (Murphy, Grace) (Entered: 10/17/2013)

10/18/2013 1836 ORDER granting 1835 Motion to Approve Interim Selection Procedures for six Juvenile Detention Officers and one Accountant. Signed by Judge C Lynwood Smith, Jr on 10/18/13. (SPT ) (Entered: 10/18/2013)

10/18/2013

1837 ORDER denying as moot 1828 Motion to Stay and granting 1834 Motion to Withdraw Motion to Stay. Signed by Judge C Lynwood Smith, Jr on 10/18/13. (SPT ) (Entered: 10/18/2013)

10/18/2013

1838

ORDER that the parties are directed to appear for the next conference in this action at 9:30 a.m., Thursday, October 31, 2013, in Birmingham, Alabama. Signed by Judge C Lynwood Smith, Jr on 10/18/13. (SPT ) (Entered: 10/18/2013)

10/25/2013

1839

ORDER that it is ORDERED Dr. Ronald R. Sims is appointed Receiver, effective immediately, the County is ORDERED to provide suitable rooms and accommodations for the Recevier, The Personnel Board of Jefferson County, Alabama, is ORDERED to comply with Receiver's requests, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 10/25/2013. (Attachments: # 1 Attachment 1 -VITA Ronald R. Sims)(AHI) (Entered: 10/25/2013)

10/28/2013

1840

ORDER that the conference scheduled for 10/31/2013, at 9:00a.m. in Courtroom 5B of the Hugo L. Black U. S. Courthouse located at 1729 Fifth Avenue North in Birmingham, Alabama. Signed by Judge C Lynwood Smith, Jr on 10/28/2013. (AHI) (Entered: 10/28/2013)

10/29/2013 1841 NOTICE of Appearance by Carol S Nelson on behalf of Jefferson Cty (Nelson, Carol) (Entered: 10/29/2013)

11/12/2013 1842 JEFFERSON COUNTY CONSENT DECREE as modified 11/12/2013, nunc pro tunc 10/16/2013. Signed by Judge C Lynwood Smith, Jr on 11/12/2013. (AHI) (Entered: 11/12/2013)

11/12/2013

1843

MODIFIED ORDER APPOINTING RECEIVER that it is ORDERED Dr. Ronald R. Sims is appointed Receiver, effective immediately, the County is ORDERED to provide suitable rooms and accommodations for the Recevier, The Personnel Board of Jefferson County, Alabama, is ORDERED to comply with Receiver's requests, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 11/12/2013. (AHI ) (Entered: 11/12/2013)

11/14/2013 1844 NOTICE of Appearance by Alfred F Smith, Jr on behalf of Ronald R Sims (Smith, Alfred) (Entered: 11/14/2013)

11/14/2013 1845 MOTION for Permission to Employ/Appoint Certain Individuals by Ronald R Sims. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C)(Smith, Alfred) (Entered: 11/14/2013)

11/15/2013

1846

ORDER that any party desiring to file a response to the motion for premission to employ/appoint certain individuals to his staff must do so by 11/22/2013. Signed by Judge C Lynwood Smith, Jr on 11/15/0213. (AHI ) (Entered: 11/15/2013)

11/20/2013

1847 RESPONSE to Motion re 1845 MOTION for Permission to Employ/Appoint Certain Individuals (Non-Opposition) filed by Jefferson Cty. (Murphy, Grace) (Entered: 11/20/2013)

11/25/2013 1848 ORDER granting 1845 Motion for Permission to Employ/Appoint Certain Individuals as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 11/25/13. (SPT ) (Entered: 11/25/2013)

12/19/2013 1849 MOTION (Unopposed) to Terminate Temporary Orders by Ronald R Sims. (Smith, Alfred) (Entered: 12/19/2013)

12/19/2013

1850

ORDER that the 1849 Motion to Terminate the Temporary Orders governing Jefferson County's hiring procedures is GRANTED and the Temporary Orders are TERMINATED as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 12/19/2013. (AHI ) (Entered: 12/19/2013)

12/30/2013

1851

STATUS REPORT ("Joint Status Report") by Bryant, Jefferson Cty, Martin, United States of America. filed by Bryant, Jefferson Cty, Martin, United States of America (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Wilson, Rowan) (Entered: 12/30/2013)

01/10/2014

1852

ORDER that the counsel for the parties are directed to appear for the next conference in this action at 9:30 a.m. on Thursday January 30, 2014; the conference will be conducted in Courtroom No. 3 of the Robert S. Vance Federal Building at 1800 Fifth Avenue North, Birmingham, Alabama. Signed by Judge C Lynwood Smith, Jr on 01/10/14. (SPT ) (Entered: 01/10/2014)

01/15/2014 1853 NOTICE of Change of Address by Aaron L Dettling (Dettling, Aaron) (Entered: 01/15/2014)

01/15/2014 1854 MOTION to Withdraw as Attorney by Jefferson County Personnel Board. (Dettling, Aaron) (Entered: 01/15/2014)

01/15/2014 1855 NOTICE of Appearance by Aaron L Dettling on behalf of Ronald R Sims (Dettling, Aaron) (Entered: 01/15/2014)

01/16/2014

ORDER granting 1854 Motion to Withdraw as Attorney. Attorney Aaron L Dettling terminated as counsel for the Personnel Board of Jefferson County. Signed by Judge C Lynwood Smith, Jr on January 16, 2014. (ADH) (Entered: 01/16/2014)

01/16/2014 1856 MOTION to Withdraw of Alfred F. Smith by Ronald R Sims. (Smith, Alfred) (Entered: 01/16/2014)

01/17/2014

ORDER granting 1856 Motion to Withdraw by attorney Alfred F. Smith, Jr. Signed by Judge C Lynwood Smith, Jr on January 17, 2014. (ADH) (Entered: 01/17/2014)

01/17/2014

1857

MOTION For approval to appoint persons to Receiver's personal staff by Ronald R Sims. (Attachments: # 1 Exhibit Job Description and Bio for Chief Administrative Analyst, # 2 Exhibit Job Description and Bio for Personnel Technician)(Dettling, Aaron) (Entered: 01/17/2014)

01/23/2014

1858

ORDER that the 1857 MOTION For approval to appoint persons to Receiver's personal staff is GRANTED as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 1/22/2014. (AHI ) (Entered: 01/23/2014)

01/27/2014

1859 MOTION to Withdraw as Attorney ("Motion to Withdraw Appearance of Lauren M. Rosenberg") by Bryant, Martin. (Wilson, Rowan) (Entered: 01/27/2014)

01/28/2014

ORDER granting 1859 Motion to Withdraw as Attorney. Attorney Lauren Rosenberg terminated. Signed by Judge C Lynwood Smith, Jr on January 28, 2014. (ADH) (Entered: 01/28/2014)

01/28/2014

1860 ORDER that the status conference scheduled for Thursday, January 30, 2014 is CANCELLED due to inclement weather conditions. Signed by Judge C Lynwood Smith, Jr on 01/28/14. (SPT) (Entered: 01/28/2014)

02/06/2014

1861

ORDER that the Counsel for the parties are directed to appear for the next conference in this action at 9:30 a.m., Thursday, February 27, 2014. The conference will be conducted in Courtroom No. 3 of the Robert S. Vance Federal Building at 1800 Fifth Avenue North, Birmingham, Alabama. Signed by Judge C Lynwood Smith, Jr on 2/6/2014. (AHI) (Entered: 02/06/2014)

02/07/2014

1862 MOTION to Alter Judgment , to Modify Order Appointing the Receiver, by Ronald R Sims. (Attachments: # 1 Exhibit Senate Bill 158 Introduced)(Dettling, Aaron) (Entered: 02/07/2014)

02/10/2014 1863 ORDER that the 1862 Motion to Modify the Order Appointing Recevier is GRANTED as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 2/10/2014. (AHI) (Entered: 02/10/2014)

02/10/2014 1864 MOTION to Withdraw as Attorney Janell M. Ahnert by Jefferson Cty. (Murphy, Grace) (Entered: 02/10/2014)

02/14/2014

ORDER granting 1864 Motion to Withdraw as Attorney. Attorney Janell M Ahnert terminated. Signed by Judge C Lynwood Smith, Jr on February 14, 2014. (ADH) (Entered: 02/14/2014)

02/16/2014 1865 MOTION to Withdraw as Attorney by MICHAEL E. CARROLL. (Wright, Josh) (Entered: 02/16/2014)

02/26/2014

ORDER granting 1865 Motion to Withdraw as Attorney. Attorney Josh J Wright terminated. Signed by Judge C Lynwood Smith, Jr on February 26, 2014. (ADH) (Entered: 02/26/2014)

02/26/2014 1866 NOTICE of Appearance by Anne R Yuengert on behalf of Jefferson County Personnel Board (Yuengert, Anne) (Entered: 02/26/2014)

02/26/2014 1867 RECEIVER'S 120-Day Report Pursuant to Paragraphs 4 and 5 of the Order Appointing the Receiver by Ronald R Sims (AHI ) (Entered: 02/26/2014)

02/28/2014

1868

ORDER that Counsel for the parties are directed to appear for the next conference in this action at 9:30 a.m., Thursday, March 20, 2014; the conference will be conducted in Courtroom No. 3 of the Robert S. Vance Federal Building at 1800 Fifth AvenueNorth, Birmingham, Alabama. Signed by Judge C Lynwood Smith, Jr on 2/28/2014. (AHI) (Entered: 02/28/2014)

03/13/2014 1869 RESPONSE to Receiver's Proposed Budget (Non-Objection) filed by Jefferson Cty. (Murphy, Grace) (Entered: 03/13/2014)

03/14/2014

1870

NOTICE by Ronald R Sims of Filing of Monthly Report (Attachments: # 1 Appendix Receiver's March 2014 Monthly Report Pursuant to Paragraph 4 of the Order Appointing the Receiver)(Dettling, Aaron) (Entered: 03/14/2014)

03/14/2014 1871 ORDER that the status conference scheduled for 9:30 a.m. on Thurdays March 20, 2014 is cancelled. Signed by Judge C Lynwood Smith, Jr on 03/14/14. (SPT ) (Entered: 03/14/2014)

03/14/2014

1872 ORDER that BB&T remit the total amount of funds on on deposit held on behalf of the US District Court Northern Division Civil Action, payable to the Clerk, U.S. District Court, Northern District of Alabama,

and mail funds to the Clerk at the Hugo L. Black U.S. Courthouse, 1729 Fift Avenue North, Birmingham, Alabama 35203 as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 03/14/14. (Attachments: # 1 Attachment)(SPT ) (Entered: 03/14/2014)

03/20/2014 1873 MOTION for Leave for Shawn G. Crowley to Appear Pro Hac Vice by Bryant, Martin. (Wilson, Rowan) Modified on 3/24/2014 (SPT ). (Entered: 03/20/2014)

03/21/2014

PHV Fee paid for Shawn G. Crowley: $50.00, receipt number B4601051275 (SPT ) (Entered: 03/24/2014)

03/31/2014

ORDER granting 1873 Motion for Leave to Appear pro hac vice. Signed by Judge C Lynwood Smith, Jr on March 31, 2014. (ADH) (Entered: 03/31/2014)

03/31/2014

1874 Mail 1872 Returned as Undeliverable. Mail sent to Ms. Melody S. Hambrick RETURN TO SENDER NO SUCH NUMBER UNABLE TO FORWARD (AHI) (Entered: 03/31/2014)

04/01/2014 1875 Joint MOTION for Final Distribution of Settlement Funds by Bryant, Martin, United States of America. (Wilson, Rowan) (Entered: 04/01/2014)

04/01/2014

1876

Brief re 1875 Joint MOTION for Final Distribution of Settlement Funds ("Memorandum in Support of the Martin/Bryant Parties' and United States' Joint Motion for Final Distribution of Settlement Funds") filed by Bryant, Martin, United States of America. (Wilson, Rowan) (Entered: 04/01/2014)

04/01/2014

1877

AFFIDAVIT in Support re 1875 Joint MOTION for Final Distribution of Settlement Funds ("Declaration of Rowan D. Wilson in Support of the Martin/Bryant Parties' and United States' Joint Motion for Final Distribution of Settlement Funds") filed by Bryant, Martin, United States of America. (Attachments: # 1 Exhibit A to Wilson Declaration, # 2 Exhibit B to Wilson Declaration, # 3 Exhibit C to Wilson Declaration, # 4 Exhibit D to Wilson Declaration, # 5 Exhibit E to Wilson Declaration)(Wilson, Rowan) (Entered: 04/01/2014)

04/04/2014 1878 ORDER -re: Deposit of Funds into Registry (AHI) (Entered: 04/04/2014)

04/07/2014

1879

ORDER that a Status Conference is set for 4/24/2014 at 09:30 AM in the Robert S. Vance Federal Building, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 4/7/2014. (AHI ) (Entered: 04/07/2014)

04/07/2014 1880 ORDER that the 1875 MOTION for Final Distribution of Settlement Funds is GRANTED as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 4/7/2014. (AHI) (Entered: 04/07/2014)

04/18/2014

1881

NOTICE by Ronald R Sims of Filing of Monthly Report (Attachments: # 1 Supplement Receiver's April 2014 Monthly Report Pursuant to Paragraph 4 of the Order Appointing the Receiver, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7)(Dettling, Aaron) (Entered: 04/18/2014)

05/08/2014

1882

ORDER that a Status Conference is set for 5/22/2014 09:30 AM in Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 5/8/2014. (AHI ) Modified on 5/8/2014 (AHI). (Entered: 05/08/2014)

05/08/2014

1883

Brief regarding the Issue of EEOC Representation. (Attachments: # 1 Exhibit 1 (9/26/13 Status Conference Transcript), # 2 Exhibit 2 (Meet and Confer Correspondence), # 3 Exhibit 3 (3.31.14 DOJ Letter))(Murphy, Grace) (Entered: 05/08/2014)

05/15/2014

1884

NOTICE by Ronald R Sims of filing of May 2014 Monthly Report (Attachments: # 1 Appendix Monthly Report of the Receiver May 2014, # 2 Exhibit 1, # 3 Exhibit 2, # 5 Exhibit 4, # 7 Exhibit 3, # 8 Exhibit 5)(Dettling, Aaron) Modified on 5/15/2014 (AHI ). (Entered: 05/15/2014)

05/19/2014

1885

Transcript of Status Conference held on 4/24/2014, before Judge C. Lynwood Smith, Jr. Court Reporter/Transcriber Christina K. Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 6/9/2014. Redacted Transcript Deadline set for 6/19/2014. Release of Transcript Restriction set for 8/18/2014. (AHI) (Entered: 05/19/2014)

05/19/2014

1886

Transcript of Status Conference held on 2/27/2014, before Judge C. Lynwood Smith, Jr. Court Reporter/Transcriber Christina K. Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 6/9/2014. Redacted Transcript Deadline set for 6/19/2014. Release of Transcript Restriction set for 8/18/2014. (AHI) (Entered: 05/19/2014)

05/19/2014

1887

Transcript of Status Conference held on 9/26/2013, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina K. Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 6/9/2014. Redacted Transcript Deadline set for 6/19/2014. Release of Transcript Restriction set for 8/18/2014. (AHI) (Entered: 05/19/2014)

05/19/2014

1889

Transcript of Status Conference held on 10/31/2013, before Judge C. Lynwood Smith, Jr. Court Reporter/Transcriber Christina K. Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 6/9/2014. Redacted Transcript Deadline set for 6/19/2014. Release of Transcript Restriction set for 8/18/2014. (AHI) (Entered: 05/19/2014)

05/19/2014 1890 RESPONSE to re 1883 ("Memorandum in Response to Jefferson County's Submission on the Issue of Representation in Front of the

Equal Employment Opportunity Commission") filed by Bryant, Martin. (Wilson, Rowan) (Entered: 05/19/2014)

05/19/2014

1891

AFFIDAVIT in Support re 1890 Response (other) ("Declaration of Rowan D. Wilson in Support of the Martin/Bryant Parties' Memorandum in Response to Jefferson County's Submission on the Issue of Representation in Front of the U.S. Equal Employment Opportunity Commission") by Bryant, Martin. (Attachments: # 1 Exhibit A to Wilson Declaration, # 2 Exhibit B to Wilson Declaration, # 3 Exhibit C to Wilson Declaration, # 4 Exhibit D to Wilson Declaration, # 5 Exhibit E to Wilson Declaration, # 6 Exhibit F to Wilson Declaration)(Wilson, Rowan) (Entered: 05/19/2014)

05/20/2014 1892 NOTICE by Ronald R Sims of Joinder in Plaintiffs' Brief (Dettling, Aaron) (Entered: 05/20/2014)

05/22/2014

Minute Entry for proceedings held before Judge C Lynwood Smith, Jr: Status Conference held on 5/22/2014. (Court Reporter Christina Decker.) (LCW) (Entered: 05/23/2014)

06/02/2014

1893

ORDER that a Status Conference is set for 6/26/2014 09:30 AM in Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 6/2/2014. (AHI ) (Entered: 06/02/2014)

06/13/2014

1894

NOTICE by Ronald R Sims of filing of June 2014 Monthly Report (Attachments: # 1 Receiver's June 2014 Monthly Report, # 2 Exhibit Exhibit 1 Draft Schedule, # 3 Exhibit Exhibit 2 RFI to PBJC, # 4 Exhibit Exhibit 3 SME Confidentiality Agreement, # 5 Exhibit Exhibit 4 AAO Complaint Form, # 6 Exhibit Exhibit 5 AAO Poster, # 7 Exhibit Exhibit 6 EEO Policy, # 8 Exhibit Exhibit 7 AAO Training Slides)(Dettling, Aaron) (Entered: 06/13/2014)

07/08/2014

1895

ORDER that a Status Conference is set for 7/31/2014 09:30 AM in the Robert S. Vance Federal Building, Birmingham, Alabama, before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 7/8/2014. (AHI ) (Entered: 07/08/2014)

07/09/2014

1896

NOTICE by Ronald R Sims of Filing, and Motion for Approval, of Initial Schedule for Development of Employee Selection Procedures (Attachments: # 1 Exhibit Proposed Schedule)(Dettling, Aaron) Modified on 7/10/2014 (AHI). (Entered: 07/09/2014)

07/11/2014

1897

ORDER that on or before each date specified in the attached schedule the Receiver shall take the designated action as more fully set out. Signed by Judge C Lynwood Smith, Jr on 07/11/14. (Attachments: # 1 Proposed Schedule)(SPT ) (Entered: 07/11/2014)

07/15/2014

1898

NOTICE by Ronald R Sims of filing of July 2014 Monthly Report (Attachments: # 1 Supplement Receiver's July 2014 Monthly Report Pursuant to Paragraph 4 of the Order Appointing the Receiver, # 2 Exhibit Exhibit 1 Memorandum, # 3 Exhibit Exhibit 2 RFI to PBJC, # 4 Exhibit Exhibit 3 Draft Written Procedure)(Dettling, Aaron) (Entered: 07/15/2014)

07/21/2014 1899 MOTION for Leave to Appear Pro Hac Vice re: Sara A. Slavin by Bryant, Martin. (Wilson, Rowan) (Entered: 07/21/2014)

07/22/2014

PHV Fee paid: $50, receipt number B4601054675 - Sara A. Slavin (AHI) (Entered: 07/23/2014)

07/23/2014 1900 TEXT ORDER granting 1899 Motion for Leave to Appear pro hac vice. Signed by Judge C Lynwood Smith, Jr on July 23, 2014. (ADH) (Entered: 07/23/2014)

08/05/2014

1901

ORDER that a Status Conference is set for 8/28/2014 09:30 AM in the Robert S. Vance Federal Building Birmingham, AL before Judge C Lynwood Smith Jr. as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 8/5/2014. (AHI ) (Entered: 08/05/2014)

08/06/2014 1902 NOTICE by Jefferson Cty re 1901 Order, Set Hearings of Compliance with Court Order (Nelson, Carol) (Entered: 08/06/2014)

08/07/2014 1903 MOTION to Withdraw as Attorney Shawn G. Crowley by Bryant, Martin. (Wilson, Rowan) (Entered: 08/07/2014)

08/07/2014 1904 TEXT ORDER granting 1903 Motion to Withdraw as Attorney. Attorney Shawn G Crowley terminated. Signed by Judge C Lynwood Smith, Jr on August 7, 2014. (ADH) (Entered: 08/07/2014)

08/13/2014 1905 NOTICE of Appearance by Julian D Butler on behalf of Edwin A. Strickland (Butler, Julian) (Entered: 08/13/2014)

08/13/2014 1906 NOTICE of Appearance by Raymond P Fitzpatrick, Jr on behalf of Charles S Wagner (Fitzpatrick, Raymond) (Entered: 08/13/2014)

08/14/2014 1907 NOTICE of Appearance by Augusta S Dowd on behalf of Theo Lawson (Dowd, Augusta) (Entered: 08/14/2014)

08/15/2014

1908

NOTICE by Ronald R Sims of filing of August 2014 Monthly Report (Attachments: # 1 Exhibit Receiver's August 2014 Monthly Report Pursuant to Paragraph 4 of the Order Appointing the Receiver, # 2 Appendix Appendix 1: Outline of Interim Selection Procedure Development Process, # 3 Appendix Appendix 2: AAO Job Posting)(Dettling, Aaron) (Entered: 08/15/2014)

08/19/2014 1909 MOTION to Continue Show Cause Hearing by Theo Lawson. (Dowd, Augusta) (Entered: 08/19/2014)

08/19/2014 1910 JOINDER in re 1909 (Motion to Continue 8.28.14 Show Cause Hearing) filed by Jefferson Cty. (Murphy, Grace) (Entered: 08/19/2014)

08/20/2014

1911

ORDER that the 1909 MOTION to Continue the Show Cause Hearing is GRANTED and will commence immediately upon completion of the 10/30/2014, status conference as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 8/20/2014. (AHI) (Entered: 08/20/2014)

09/10/2014

1912

ORDER that a Status Conference is set for 9/25/2014 09:30 AM in the Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 9/10/2014. (AHI) (Entered: 09/10/2014)

09/15/2014

1913

NOTICE by Ronald R Sims of filing of September 2014 Monthly Report (Attachments: # 1 Supplement Receiver's September 2014 Monthly Report Pursuant to Paragraph 4 of the Order Appointing the Receiver, # 2 Appendix Foundations of HRM, # 3 Appendix RAMP Program, # 4 Appendix RFP Questions and Answers)(Dettling, Aaron) (Entered: 09/15/2014)

09/22/2014

1914

Respondent Charles Wagner's MOTION To Require Compliance With Rule 42, Federal Rules Of Criminal Procedure, And For Other Pretrial Orders In Sanctions Proceedings Against Respondent County Attorneys by Charles S Wagner. (Fitzpatrick, Raymond) Modified on 9/22/2014 (AHI). (Entered: 09/22/2014)

09/22/2014 1915 DEMAND for Trial by Jury by Charles S Wagner. filed by Charles S Wagner (Fitzpatrick, Raymond) (Entered: 09/22/2014)

09/23/2014 1916 MOTION for Joinder Doc 1914 and Doc 1915) Motion to Require Compliance with Rule 42 and Jury Demand by Edwin A. Strickland. (Butler, Julian) (Entered: 09/23/2014)

09/23/2014

1917

Transcript of Status Conference held on 8/28/2014, before Judge C. Lynwood Smith, Jr. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri

pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 10/14/2014. Redacted Transcript Deadline set for 10/24/2014. Release of Transcript Restriction set for 12/22/2014. (AHI ) (Entered: 09/23/2014)

09/24/2014 1918 NOTICE by Theo Lawson of Joinder and Adoption (Dowd, Augusta) (Entered: 09/24/2014)

10/14/2014

1919 MOTION to Continue Respondent County Attorneys' Motion for Continuance by Theo Lawson, Edwin A. Strickland, Charles S Wagner. (Dowd, Augusta) (Entered: 10/14/2014)

10/14/2014 1920 ORDER that the 1919 Motion to Continue is GRANTED as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 10/14/2014. (AHI) (Entered: 10/14/2014)

10/15/2014

1921

NOTICE by Ronald R Sims of filing of October 2014 Monthly Report (Attachments: # 1 Appendix Receiver's October 2014 Monthly Report Pursuant to Paragraph 4 of the Order Appointing the Receiver)(Dettling, Aaron) (Entered: 10/15/2014)

10/16/2014

1922

ORDER that a Status Conference is set for 10/30/2014 09:30 AM in Courtroom 3 of the Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 10/16/2014. (AHI) (Entered: 10/16/2014)

10/22/2014

1923

Supplement to 1704 MOTION to Withdraw as Attorney Supplement To Motion To Withdraw of Charles Wagner by Charles S Wagner. (Fitzpatrick, Raymond) Modified on 10/22/2014 (AHI ). (Entered: 10/22/2014)

10/27/2014

1924

Transcript of the Status Conference held on 9/24/2014, before Judge C. Lynwood Smith, Jr. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 11/17/2014. Redacted Transcript Deadline set for 11/28/2014. Release of Transcript Restriction set for 1/25/2015. (AHI ) (Entered: 10/27/2014)

11/06/2014

1925

Transcript of Status Conference held on 10/30/2014, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 11/28/2014. Redacted Transcript Deadline set for 12/8/2014. Release of Transcript Restriction set for 2/4/2015. (AHI) (Entered: 11/06/2014)

11/14/2014

1926

NOTICE by Ronald R Sims of filing of November 2014 Monthly Report (Attachments: # 1 Supplement Receiver's November 2014 Monthly Report Pursuant to Paragraph 4 of the Order Appointing the Receiver)(Dettling, Aaron) (Entered: 11/14/2014)

12/15/2014

1927

NOTICE by Ronald R Sims of filing of December 2014 Monthly Report (Attachments: # 1 Receiver's December 2014 Monthly Report Pursuant to Paragraph 4 of the Order Appointing the Receiver, # 2 Appendix Appendix 1)(Dettling, Aaron) (Entered: 12/15/2014)

01/06/2015

1928

Transcript of Status Conference held on 5/22/2014, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 1/27/2015. Redacted Transcript Deadline set for 2/6/2015. Release of Transcript Restriction set for 4/6/2015. (AHI) (Entered: 01/06/2015)

01/07/2015

1929

ORDER that a Scheduling Conference is set for 1/29/2015 09:30 AM in the Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 1/7/2015. (AHI ) (Entered: 01/07/2015)

01/15/2015

1930

NOTICE by Ronald R Sims of filing of January 2015 Monthly Report (Attachments: # 1 Receiver's January 2015 Monthly Report Pursuant to Paragraph 4 of the Order Appointing the Receiver, # 2 Appendix 1, # 3 Appendix 2, # 4 Appendix 3, # 5 Appendix 4)(Dettling, Aaron) (Entered: 01/15/2015)

01/22/2015 1931 RESPONSE to re 1930 the Receiver's January 2015 Report filed by Jefferson Cty. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Murphy, Grace) (Entered: 01/22/2015)

01/22/2015 1932 MOTION to Seek Guidance by Jefferson Cty. (Attachments: # 1 Exhibit A)(Murphy, Grace) (Entered: 01/22/2015)

01/26/2015

1933

ORDER that the status conference previously scheduled for 1/29/2015, is CONTINUED to 9:30 a.m. 2/5/2015, in Courtroom No. 3 of the Robert S. Vance Federal Building, Birmingham, Alabama, before Judge C. Lynwood Smith, Jr. Signed by Judge C Lynwood Smith, Jr on 1/26/2015. (AHI) (Entered: 01/26/2015)

02/04/2015 1934 NOTICE of Appearance by Mary Ann Couch on behalf of Jefferson County Personnel Board (Couch, Mary) (Entered: 02/04/2015)

02/09/2015

1935

ORDER that a Status Conference is set for 2/26/2015 09:30 AM in Courtroom 3, Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr.; the parties are directed to submit their proposed agendas, by e-mail, no later than 2/19/2015. Signed by Judge C Lynwood Smith, Jr on 2/9/2015. (AHI ) Modified on 2/9/2015 (AHI). (Entered: 02/09/2015)

02/13/2015

1936

NOTICE by Ronald R Sims of filing of February 2015 Monthly Report (Attachments: # 1 Appendix Receiver's February 2015 Monthly Report Pursuant to Paragraph 4 of the Order Appointing the Receiver)(Dettling, Aaron) (Entered: 02/13/2015)

02/19/2015

1937 ORDER with sealed exhibits. Signed by Judge C Lynwood Smith, Jr on 02/19/2015. (LCW) (1) Attachment 1 UNDER SEAL (LCW). (Entered: 02/19/2015)

02/23/2015

1938

Transcript of Status Comference held on 2/5/2015, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy

can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 3/16/2015. Redacted Transcript Deadline set for 3/26/2015. Release of Transcript Restriction set for 5/24/2015. (AHI ) (Entered: 02/23/2015)

02/24/2015

1939

ORDER -- It is ORDERED sua sponte that the order entered on February 19, 2015 (doc.no. 1937) and the notice attached as Exhibit A be UNSEALED. The Clerk is directed to maintain UNDER SEAL Exhibits B and C, which contain personal identifying information. Signed by Judge C Lynwood Smith, Jr on 2/24/2015. (AHI ) (Entered: 02/24/2015)

02/24/2015

1940

ORDER - The status conference scheduled for February 26, 2015 is CANCELLED due to inclement weather, and will be rescheduled by subsequent order. Signed by Judge C Lynwood Smith, Jr on February 24, 2015. (ADH) (Entered: 02/24/2015)

02/24/2015

1941 NOTICE by Ronald R Sims of Filing of Certificate of Counsel (Attachments: # 1 Exhibit Certificate of Counsel)(Dettling, Aaron) (Entered: 02/24/2015)

02/27/2015 1942 SEALED ORDER. Signed by Judge C Lynwood Smith, Jr on 2/27/2015. (AHI ) (Entered: 02/27/2015)

02/27/2015

1943

ORDER that a Status Conference is set for 3/12/2015 09:30 AM in Courtroom #3 of the Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr.; the parties are directed to submit their proposed agendas by e-mail by 3/5/2015. Signed by Judge C Lynwood Smith, Jr on 2/27/2015. (AHI ) (Entered: 02/27/2015)

03/13/2015 1944 ORDER with sealed exhibits. Signed by Judge C Lynwood Smith, Jr on 3/13/2015. (AHI) # 1 Attachment 1 UNDER SEAL) (AHI). (Entered: 03/13/2015)

03/13/2015

1945

NOTICE by Ronald R Sims of filing of March 2015 Monthly Report (Attachments: # 1 Receiver's March 2015 Monthly Report Pursuant to Paragraph 4 of the Order Appointing the Receiver)(Dettling, Aaron) (Entered: 03/13/2015)

03/17/2015

1946 NOTICE by Ronald R Sims of Filing of Certificate of Counsel (Attachments: # 1 Affidavit Certificate of Counsel)(Dettling, Aaron) (Entered: 03/17/2015)

03/18/2015 1947 Transcript of Status Conference held on 3/12/2015, before Judge C. Lynwood Smith, Jr. Court Reporter/Transcriber Christina Decker.

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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 4/8/2015. Redacted Transcript Deadline set for 4/18/2015. Release of Transcript Restriction set for 6/16/2015. (AHI) (Entered: 03/18/2015)

04/02/2015

1948

ORDER that the parties are directed to appear for the next conference in this action at 9:30 a.m., Thursday, April 30, 2015. The conference will be conducted in Courtroom No. 3 of the Robert S. Vance Federal Building at 1800 Fifth Avenue North, Birmingham, AL. Signed by Judge C Lynwood Smith, Jr on 04/02/15. (SPT ) (Entered: 04/02/2015)

04/15/2015

1949

NOTICE by Ronald R Sims of filing of April 2015 Monthly Report (Attachments: # 1 Receiver's April 2015 Monthly Report Pursuant to Paragraph 4 of the Order Appointing the Receiver)(Dettling, Aaron) (Entered: 04/15/2015)

05/01/2015

1950

ORDER that defendant Jefferson County must comply with the directives contained within this order by 5/15/2015 as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 5/1/2015. (AHI) (Entered: 05/01/2015)

05/11/2015

1951

ORDER that the next Conference is set for 5/28/2015 09:30 AM in Courtroom No. 3, Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 5/11/2015. (AHI ) (Entered: 05/11/2015)

05/14/2015 1952 Consent MOTION for Extension of Time to File Response to Court Order of May 1, 2015 by Jefferson Cty. (Murphy, Grace) (Entered: 05/14/2015)

05/14/2015

1953 ORDER that the 1952 Motion for Extension of Time to File is GRANTED and the County's response is due by 5/19/2015. Signed by Judge C Lynwood Smith, Jr on 5/14/2015. (AHI) (Entered: 05/14/2015)

05/15/2015

1954

Transcript of Status Conference held on 4/30/2015, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 6/5/2015. Redacted Transcript Deadline set for 6/15/2015. Release of Transcript Restriction set for 8/13/2015. (AHI ) (Entered: 05/15/2015)

05/15/2015

1955

NOTICE by Ronald R Sims of filing of May 2015 Monthly Report (Attachments: # 1 Receiver's May 2015 Monthly Report Pursuant to Paragraph 4 of the Order Appointing the Receiver)(Dettling, Aaron) (Entered: 05/15/2015)

05/19/2015

1956

RESPONSE to Court Order of May 1, 2015 filed by Jefferson Cty. (Attachments: # 1 Exhibit A (J. Smith Affidavit), # 2 Exhibit 1 to A, # 3 Exhibit 2 to A, # 4 Exhibit 2-1 to A, # 5 Exhibit 3 to A, # 6 Exhibit B (Hodge Affidavit), # 7 Exhibit C (Petelos Affidavit), # 8 Exhibit 1 to C, # 9 Exhibit 2 to C, # 10 Exhibit 3 to C, # 11 Exhibit 4 to C, # 12 Exhibit D (Contempt Trial Transcript))(Murphy, Grace) (Entered: 05/19/2015)

05/19/2015

1957

Evidentiary Material (Declaration of G. Murphy in Support of Response to May 1, 2015 Order). (Attachments: # 1 Exhibit 1-9, # 2 Exhibit 9 (Part 2) - 40, # 3 Exhibit 41-64, # 4 Exhibit 65-67, # 5 Exhibit 68-94, # 6 Exhibit 95-113, # 7 Exhibit 114-124, # 8 Exhibit 125-146, # 9 Exhibit 147-163)(Murphy, Grace) (Entered: 05/19/2015)

06/11/2015

1958

ORDER that Lorren Oliver will serve as Interim Receiver until the Court identifies and appoints a new, permanent Receiver or until 11/30/2015 as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 6/11/2015. (AHI) (Entered: 06/11/2015)

06/15/2015 1959 MOTION to Withdraw as Attorney Sara A. Slavin by Martin. (Wilson, Rowan) (Entered: 06/15/2015)

06/16/2015

1960 TEXT ORDER granting 1959 Motion to Withdraw as Attorney. Attorney Sara A Slavin terminated. Signed by Judge C Lynwood Smith, Jr on June 16, 2015. (ADH) (Entered: 06/16/2015)

06/16/2015

1961

ORDER that a Status Conference is set for 6/25/2015 09:30 AM in the Robert S. Vance Federal, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 6/16/2015. (AHI) (Entered: 06/16/2015)

06/18/2015

1962

RESPONSE to re 1956 ("Martin/Bryant Parties' Response To Defendant Jefferson County, Alabama's Response To Order Dated May 1, 2015") filed by Bryant, Martin. (Wilson, Rowan) (Entered: 06/18/2015)

06/23/2015 1963 NOTICE of Appearance by Alfred F Smith, Jr on behalf of lorren oliver (Smith, Alfred) (Entered: 06/23/2015)

07/28/2015 1964 MOTION for Leave to Appear pro hac vice of Lauren K. Ross by Bryant, Martin. (Wilson, Rowan) (Entered: 07/28/2015)

07/29/2015

PHV Fee paid: $50, receipt number B4601064054 (AHI) (Entered: 07/30/2015)

08/03/2015 1965 TEXT ORDER granting 1964 Motion for Leave to Appear pro hac vice. Signed by Judge C Lynwood Smith, Jr on August 3, 2015. (ADH) (Entered: 08/03/2015)

08/11/2015

1966

ORDER that a Status Conference is set for 8/27/2015 09:30 AM in Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 8/11/2015. (AHI) (Entered: 08/11/2015)

08/20/2015

1967

NOTICE by lorren oliver of Filing Assessment and Recommendations of the Interim Receiver (Attachments: # 1 Assessment and Recommendations of the Interim Receiver, # 2 Appendix A, # 3 Appendix B, # 4 Appendix B2, # 5 Appendix C, # 6 Appendix D, # 7 Appendix E, # 8 Appendix F, # 9 Appendix G, # 10 Appendix H)(Hanson, Jennifer) (Entered: 08/20/2015)

08/27/2015

1968

Transcript of Status Conderence held on 6/25/2015, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 9/17/2015. Redacted Transcript Deadline set for 9/27/2015. Release of Transcript Restriction set for 11/25/2015. (AHI) (Entered: 08/27/2015)

09/01/2015 1969 MOTION for Leave to Appear Pro Hac Vice of Katherine M.A. Pecore by Bryant, Martin. (Wilson, Rowan) (Entered: 09/01/2015)

09/02/2015

PHV Fee paid: $50, receipt number B4601064900 for Katherine M. A. Pecore (AHI ) Modified on 9/3/2015 (AHI ). (Entered: 09/03/2015)

09/03/2015 1970 MOTION to Quash by Jefferson Cty. (Attachments: # 1 Exhibit, # 2 Exhibit)(Smith, David) (Entered: 09/03/2015)

09/03/2015

1971

ORDER that the 1970 Motion to Quash is GRANTED in part and DENIED in part, Responses to Interrogatories are due by 9/11/2015; Responses to Requests for Production of Documents are due by 9/18/2015, as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 9/3/2015. (AHI ) (Entered: 09/03/2015)

09/03/2015

1972 TEXT ORDER granting 1969 Motion for Leave to Appear pro hac vice. Signed by Judge C Lynwood Smith, Jr on September 3, 2015. (ADH) (Entered: 09/03/2015)

09/08/2015

1973

ORDER that a Status Conference is set for 9/24/2015 09:30 AM in the Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr., as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 9/8/2015. (AHI) (Entered: 09/08/2015)

09/15/2015 1974 NOTICE by lorren oliver of Filing of September 2015 Monthly Report (Attachments: # 1 Interim Receiver's September 2015 Monthly Report)(Hanson, Jennifer) (Entered: 09/15/2015)

09/18/2015 1975 NOTICE by Lorren Oliver of Filing Corrected September 2015 Monthly Report (Attachments: # 1 Interim Receiver's Corrected September 2015 Monthly Report)(Hanson, Jennifer) (Entered: 09/18/2015)

10/01/2015

1976

Transcript of Status Conference held on 8/27/2015, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 10/22/2015. Redacted Transcript Deadline set for 11/1/2015. Release of Transcript Restriction set for 12/30/2015. (AHI ) (Entered: 10/01/2015)

10/01/2015

1977

Transcript of Status Conference held on 9/24/2015, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 10/22/2015. Redacted Transcript Deadline set for 11/1/2015. Release of Transcript Restriction set for 12/30/2015. (AHI) (Entered: 10/01/2015)

10/02/2015

1978

ORDER that a Status Conference is set for 10/22/2015 09:30 AM in Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 10/2/2015. (AHI ) (Entered: 10/02/2015)

10/15/2015 1979 NOTICE by Lorren Oliver of Filing of October 2015 Monthly Report (Attachments: # 1 Interim Receiver's October 2015 Monthly Report)(Hanson, Jennifer) (Entered: 10/15/2015)

10/30/2015

1980

ORDER that a Status Conference is set for 11/19/2015 09:30 AM in Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 10/30/2015. (AHI) (Entered: 10/30/2015)

11/16/2015

1981

NOTICE by Lorren Oliver of Filing of November 2015 Monthly Report (Attachments: # 1 Interim Receiver's November 2015 Monthly Report, # 2 Appendix A, # 3 Appendix B)(Hanson, Jennifer) (Entered: 11/16/2015)

11/25/2015

1982

MODIFIED ORDER APPOINTING RECEIVER, that Mr. Lorren Oliver is appointed Receiver, effective immediately, as more fully set out in the order. Signed by Judge C Lynwood Smith, Jr on 11/25/2015. (LCW) (Entered: 11/25/2015)

12/01/2015

1983

ORDER that a Status Conference set for 12/17/2015 09:30 AM in Federal Courthouse, Second Floor, Huntsville, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 12/1/2015. (AHI) Modified on 12/1/2015 (AHI). (Entered: 12/01/2015)

12/15/2015 1984 NOTICE by Lorren Oliver of Filing of December 2015 Monthly Report (Attachments: # 1 Receiver's December 2015 Monthly Report, # 2

Appendix A, # 3 Appendix B, # 4 Appendix C, # 5 Appendix D, # 6 Appendix E)(Hanson, Jennifer) (Entered: 12/15/2015)

12/16/2015

1985

Transcript of Status Conference held on 11/19/2015, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 1/6/2016. Redacted Transcript Deadline set for 1/16/2016. Release of Transcript Restriction set for 3/15/2016. (AHI) (Entered: 12/16/2015)

12/16/2015

1986

Transcript of Status Conference held on 10/22/20105, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 1/6/2016. Redacted Transcript Deadline set for 1/16/2016. Release of Transcript Restriction set for 3/15/2016. (AHI) (Entered: 12/16/2015)

01/05/2016

1987

ORDER that a Status Conference set for 1/28/2016 09:30 AM in Courtroom No. 3 of the Robert S. Vance Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 1/5/2016. (AHI) (Entered: 01/05/2016)

01/15/2016 1988 NOTICE by Lorren Oliver of Filing of January 2016 Monthly Report (Attachments: # 1 Receiver's January 2016 Monthly Report)(Hanson, Jennifer) (Entered: 01/15/2016)

01/19/2016 1989 Transcript of Status Hearing held on 12/17/2015, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina Decker.

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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 2/9/2016. Redacted Transcript Deadline set for 2/19/2016. Release of Transcript Restriction set for 4/18/2016. (AHI) (Entered: 01/19/2016)

02/03/2016

1990

ORDER that a Status Conference is set for 2/26/2016 09:30 AM in Courtroom No. 3 Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 2/3/2016. (AHI) (Entered: 02/03/2016)

02/15/2016

1991 NOTICE by Lorren Oliver of Filing of February 2016 Monthly Report (Attachments: # 1 Receiver's February 2016 Monthly Report)(Hanson, Jennifer) (Entered: 02/15/2016)

03/01/2016

1992

Transcript of Status Conference held on 1/28/2016, before Judge C. Lynwood Smith, Jr. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 3/22/2016. Redacted Transcript Deadline set for 4/1/2016. Release of Transcript Restriction set for 5/30/2016. (AHI) (Entered: 03/01/2016)

03/07/2016

1993

ORDER that a Status Conference is set for 3/31/2016 09:30 AM in Courtroom #3, Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 3/7/2016. (AHI) (Entered: 03/07/2016)

03/15/2016 1994 NOTICE by Lorren Oliver of Filing of March 2016 Monthly Report (Attachments: # 1 Receiver's March 2016 Monthly Report, # 2

Appendix A, # 3 Appendix B, # 4 Appendix C, # 5 Appendix D, # 6 Appendix E, # 7 Appendix F, # 8 Appendix G, # 9 Appendix H, # 10 Appendix I, # 11 Appendix J)(Hanson, Jennifer) (Entered: 03/15/2016)

03/22/2016

1995

Transcript of Status Conference held on 2/26/2016, before Judge C. Lynwood Smith, Jr. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 4/12/2016. Redacted Transcript Deadline set for 4/22/2016. Release of Transcript Restriction set for 6/20/2016. (AHI) (Entered: 03/22/2016)

03/24/2016 1996 NOTICE of Appearance by Jeremiah M Mosley on behalf of Mike Hale (Mosley, Jeremiah) (Entered: 03/24/2016)

03/28/2016 1997 NOTICE of Appearance by Mitchell David Greggs on behalf of Jefferson Cty (Greggs, Mitchell) (Entered: 03/28/2016)

04/06/2016

1998

ORDER that Status Conference is set for 4/28/2016 09:30 AM in Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 4/6/2016. (AHI) (Entered: 04/06/2016)

04/15/2016 1999 NOTICE by Lorren Oliver of Filing of April 2016 Monthly Report (Attachments: # 1 Receiver's April 2016 Monthly Report, # 2 Appendix A, # 3 Appendix B)(Hanson, Jennifer) (Entered: 04/15/2016)

04/27/2016

2000

Transcript of Status Conference held on 3/31/2016, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy

Redaction Request due 5/18/2016. Redacted Transcript Deadline set for 5/30/2016. Release of Transcript Restriction set for 7/26/2016. (AHI) (Entered: 04/27/2016)

05/04/2016

2001

ORDER that the parties are directed to appear for the next conference in this action at 9:30 a.m., Thursday, May 26, 2016 in the United States Courthouse at 101 Holmes Avenue in Huntsville, AL. Signed by Judge C Lynwood Smith, Jr on 05/04/16. (SPT ) (Entered: 05/04/2016)

05/16/2016

2002 NOTICE by Lorren Oliver of Filing of May 2016 Monthly Report (Attachments: # 1 Receiver's May 2016 Monthly Report)(Hanson, Jennifer) (Entered: 05/16/2016)

05/17/2016

Set Hearings: Status Conference set for 5/26/2016 09:30 AM in Federal Courthouse, Huntsville, AL before Judge C Lynwood Smith Jr. (SPT ) (Entered: 05/17/2016)

06/03/2016

2003

Transcript of Status Conference held on 4/28/2016, before Judge C. Lynwood Smith, J r.. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 6/24/2016. Redacted Transcript Deadline set for 7/4/2016. Release of Transcript Restriction set for 9/1/2016. (AHI ) (Entered: 06/03/2016)

06/03/2016

2004

Transcript of Status Conference held on 5/26/2016, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 6/24/2016. Redacted Transcript Deadline set for

7/4/2016. Release of Transcript Restriction set for 9/1/2016. (AHI ) (Entered: 06/03/2016)

06/07/2016

2005

ORDER that a Status Conference is set for 6/30/2016 09:30 AM in Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 6/7/2016. (AHI) (Entered: 06/07/2016)

06/15/2016

2006 NOTICE by Lorren Oliver of Filing of June 2016 Monthly Report (Attachments: # 1 Receiver's June 2016 Monthly Report)(Hanson, Jennifer) (Entered: 06/15/2016)

06/20/2016 2007 NOTICE of Appearance by Sarah Elizabeth Merkle on behalf of Jefferson County Personnel Board (Merkle, Sarah) (Entered: 06/20/2016)

06/21/2016

2008 ORDER that the status conference previously scheduled for 6/30/2016 is CANCELLED as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 6/21/2016. (AHI) (Entered: 06/21/2016)

07/08/2016

2009

ORDER that a Status Conference is set for 7/28/2016 09:30 AM in Federal Courthouse, Huntsville, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 7/8/2016. (AHI) (Entered: 07/08/2016)

07/15/2016

2010

NOTICE by Lorren Oliver of Filing of July 2016 Monthly Report and Proposed Budget for FY 2016-2017 (Attachments: # 1 Receiver's July 2016 Monthly Report and Proposed Budget for FY 2016-2017)(Hanson, Jennifer) (Entered: 07/15/2016)

08/04/2016

2011

ORDER that a Status Conference is set for 8/25/2016 09:30 AM in Hugo L Black US Courthouse, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 8/4/2016. (AHI) (Entered: 08/04/2016)

08/15/2016

2012 NOTICE by Lorren Oliver of Filing of August 2016 Monthly Report (Attachments: # 1 Receiver's August 2016 Monthly Report)(Hanson, Jennifer) (Entered: 08/15/2016)

09/08/2016

2013

ORDER that a Status Conference set for 9/27/2016 09:30 AM in the Robert S. Vance Building, Birmingham, AL, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 9/8/2016. (AHI) (Entered: 09/08/2016)

09/15/2016 2014 NOTICE by Lorren Oliver of Filing of September 2016 Monthly Report (Attachments: # 1 Receiver's September 2016 Monthly Report)(Hanson, Jennifer) (Entered: 09/15/2016)

09/23/2016 2015 MOTION to Withdraw as Attorney for Jefferson County, Alabama by Jefferson Cty. (Nelson, Carol) (Entered: 09/23/2016)

09/23/2016 2016 MOTION to Withdraw as Attorney James L. Mitchell by Jefferson Cty. (Greggs, Mitchell) (Entered: 09/23/2016)

09/23/2016 2017 MOTION to Withdraw as Attorney Edward A. Hosp by Jefferson Cty. (Greggs, Mitchell) (Entered: 09/23/2016)

09/26/2016 2018 MOTION to Withdraw as Attorney Katherine M. A. Pecore by Bryant, Martin. (Wilson, Rowan) (Entered: 09/26/2016)

09/26/2016 2019 TEXT ORDER granting 2016 Motion to Withdraw as Attorney. Attorney James L Mitchell terminated. Signed by Judge C Lynwood Smith, Jr on September 26, 2016. (ADH) (Entered: 09/26/2016)

09/26/2016

2020 TEXT ORDER granting 2017 Motion to Withdraw as Attorney. Attorney Edward A Hosp terminated. Signed by Judge C Lynwood Smith, Jr on September 26, 2016. (ADH) (Entered: 09/26/2016)

09/26/2016 2021 TEXT ORDER granting 2018 Motion to Withdraw as Attorney. Attorney Katherine M. Pecore terminated. Signed by Judge C Lynwood Smith, Jr on September 26, 2016. (ADH) (Entered: 09/26/2016)

09/26/2016

2022

Transcript of Status Conference held on 8/25/2016, before Judge C. Lynwood Smith, Jr. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 10/17/2016. Redacted Transcript Deadline set for 10/27/2016. Release of Transcript Restriction set for 12/26/2016. (AHI) (Entered: 09/26/2016)

09/29/2016

2023

ORDER that a Status Conference is set for 11/3/2016 09:30 AM in Courtroom No.3 of the Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 9/29/2016. (AHI) (Entered: 09/29/2016)

09/30/2016 2024 TEXT ORDER granting 2015 Motion to Withdraw as Attorney. Attorney Carol Sue Nelson terminated. Signed by Judge C Lynwood Smith, Jr on September 30, 2016. (ADH) (Entered: 09/30/2016)

10/17/2016 2025 NOTICE by Lorren Oliver of Filing of October 2016 Monthly Report (Attachments: # 1 Receiver's October 2016 Monthly Report)(Hanson, Jennifer) (Entered: 10/17/2016)

11/03/2016

2026

Transcript of Status Conference held on 9/27/2016, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 11/24/2016. Redacted Transcript Deadline set for 12/5/2016. Release of Transcript Restriction set for 2/1/2017. (AHI) (Entered: 11/03/2016)

11/08/2016

2027

ORDER that a Status Conference is set for December 8, 2016 at 9:30 a.m. in Courtroom No. 3 of the Robert S. Vance Federal Building at 1800 Fifth Avenue North, Birmingham, Alabama. Signed by Judge C Lynwood Smith, Jr on 11/08/16. (SPT ) (Entered: 11/08/2016)

11/15/2016 2028 NOTICE by Lorren Oliver of Filing of November 2016 Monthly Report (Attachments: # 1 Receiver's November 2016 Monthly Report)(Hanson, Jennifer) (Entered: 11/15/2016)

12/07/2016

2029

Transcript of Status Conference held on 11/3/2016, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Chirstina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 12/28/2016. Redacted Transcript Deadline set

for 1/7/2017. Release of Transcript Restriction set for 3/7/2017. (AHI ) (Entered: 12/07/2016)

12/15/2016

2030 NOTICE by Lorren Oliver of Filing of December 2016 Monthly Report (Attachments: # 1 Receiver's December 2016 Monthly Report)(Hanson, Jennifer) (Entered: 12/15/2016)

01/11/2017

2031

ORDER that a Status Conference is set for 1/26/2017 09:30 AM in Courtroom 4B, Hugo L Black US Courthouse, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 1/11/2017. (AHI) (Entered: 01/11/2017)

01/17/2017 2032 NOTICE by Lorren Oliver of Filing of January 2017 Monthly Report (Attachments: # 1 Receiver's January 2017 Monthly Report)(Hanson, Jennifer) (Entered: 01/17/2017)

01/23/2017 2033 MOTION for Leave to Appear Pro Hac Vice of Damaris Hernandez by Bryant, Martin. (Wilson, Rowan) (Entered: 01/23/2017)

01/23/2017

PHV Fee paid: $ 50, receipt number 1126-2773726 (B4601077464). (Wilson, Rowan) Modified on 1/25/2017 (AHI). (Entered: 01/23/2017)

01/26/2017

Minute Entry for proceedings held before Judge C Lynwood Smith, Jr: Status Conference held on 1/26/2017. (Court Reporter Christina Decker.) (FNC) (Entered: 01/26/2017)

01/26/2017 2034 TEXT ORDER granting 2033 Motion for Leave to Appear pro hac vice. Signed by Judge C Lynwood Smith, Jr on January 26, 2017. (ADH) (Entered: 01/26/2017)

02/03/2017

2035

ORDER that a Status Conference is set for 2/23/2017 09:30 AM in Courtroom 4B Hugo L Black US Courthouse, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 2/3/2017. (AHI) (Entered: 02/03/2017)

02/15/2017 2036 NOTICE by Lorren Oliver of Filing of February 2017 Monthly Report (Attachments: # 1 Receiver's February 2017 Monthly Report)(Hanson, Jennifer) (Entered: 02/15/2017)

02/22/2017

2037

Transcript of Status Conference held on 12/8/2016, before Judge C. Lynwood Smith, Jr. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically

available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 3/15/2017. Redacted Transcript Deadline set for 3/25/2017. Release of Transcript Restriction set for 5/23/2017. (AHI ) (Entered: 02/22/2017)

02/22/2017

2038

Transcript of Status Conference held on 1/26/2017, before Judge C. Lynwood Smith, Jr. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 3/15/2017. Redacted Transcript Deadline set for 3/25/2017. Release of Transcript Restriction set for 5/23/2017. (AHI) (Entered: 02/22/2017)

02/23/2017

Minute Entry for proceedings held before Judge C Lynwood Smith, Jr: Status Conference held on February 23, 2017; (Court Reporter Christina Decker.) (LCW) (Entered: 02/28/2017)

03/01/2017

2039

ORDER that a Status Conference is set for 3/23/2017 09:30 AM in Hugo L Black US Courthouse, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 3/1/2017. (AHI ) (Entered: 03/01/2017)

03/03/2017 2040 MOTION for Leave to Appear Pro Hac Vice of Ali Z. Klein by Bryant, Martin. (Hernandez, Damaris) (Entered: 03/03/2017)

03/03/2017

PHV Fee paid: $ 50, receipt number 1126-2799630 (B4601078423). (Hernandez, Damaris) Modified on 3/7/2017 (AHI). (Entered: 03/03/2017)

03/06/2017 2041 TEXT ORDER granting 2040 Motion for Leave to Appear pro hac vice. Signed by Judge C Lynwood Smith, Jr on March 6, 2017. (ADH) (Entered: 03/06/2017)

03/15/2017

2042 NOTICE by Lorren Oliver of Filing of March 2017 Monthly Report (Attachments: # 1 Receiver's March 2017 Monthly Report)(Hanson, Jennifer) (Entered: 03/15/2017)

03/16/2017

2043

Joint MOTION FOR TERMINATION OF CONSENT DECREE WITH THE SHERIFF OF JEFFERSON COUNTY, IN PART, AND APPROVAL OF AGREEMENT by Mike Hale. (Attachments: # 1 Exhibit Exhibit 1 (Agreement), # 2 Exhibit Exhibit 2 (Proposed Order))(Murrill, James) (Entered: 03/16/2017)

03/23/2017

2044

ORDER that the 2043 Joint MOTION FOR TERMINATION OF CONSENT DECREE WITH THE SHERIFF OF JEFFERSON COUNTY, IN PART, AND APPROVAL OF AGREEMENT is GRANTED as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 3/23/2017. (AHI ) (Entered: 03/23/2017)

03/27/2017

2045

ORDER that a Status Conference set for 4/27/2017 09:30 AM in Courtroom #3 of the Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 3/27/2017. (AHI) (Entered: 03/27/2017)

04/17/2017 2046 NOTICE by Lorren Oliver of Filing of April 2017 Monthly Report (Attachments: # 1 Receiver's April 2017 Monthly Report)(Smith, Alfred) (Entered: 04/17/2017)

04/24/2017

2047

Transcript of Status Conference held on 2/23/2017, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 5/15/2017. Redacted Transcript Deadline set for 5/25/2017. Release of Transcript Restriction set for 7/23/2017. (AHI) (Entered: 04/24/2017)

04/24/2017

2048

Transcript of Status Conference held on 3/23/2017, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy

can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 5/15/2017. Redacted Transcript Deadline set for 5/25/2017. Release of Transcript Restriction set for 7/23/2017. (AHI) (Entered: 04/24/2017)

05/01/2017

2049

ORDER that a Status Conference is set for 5/25/2017 09:30 AM in Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 5/1/2017. (AHI) (Entered: 05/01/2017)

05/10/2017

2050

Transcript of Status Conference held on 4/27/2017, before Judge C. Lynwood Smith, Jr. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 5/31/2017. Redacted Transcript Deadline set for 6/10/2017. Release of Transcript Restriction set for 8/8/2017. (AHI) (Entered: 05/10/2017)

05/15/2017 2051 NOTICE by Lorren Oliver of Filing of May 2017 Monthly Report (Attachments: # 1 Receiver's May 2017 Monthly Report)(Hanson, Jennifer) (Entered: 05/15/2017)

05/18/2017 2052 MOTION for Extension of Time to Apply for Attorneys' Fees by Bryant, Martin. (Hernandez, Damaris) (Entered: 05/18/2017)

05/19/2017 2053 TEXT ORDER granting 2052 Motion for Extension of Time. Signed by Judge C Lynwood Smith, Jr on May 19, 2017. (ADH) (Entered: 05/19/2017)

06/05/2017

2054

Transcript of Status Conference held on 5/25/2017, before Judge C. Lynwood Smith, Jr. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically

available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 6/26/2017. Redacted Transcript Deadline set for 7/6/2017. Release of Transcript Restriction set for 9/3/2017. (AHI) (Entered: 06/05/2017)

06/07/2017

2055

ORDER that a conference is set for Thursday, June 29, 2017 at 9:30 a.m. in the Robert S. Vance Building, 3rd Floor, Birmingham, Alabama. Signed by Judge C Lynwood Smith, Jr on 06/07/17. (SPT ) (Entered: 06/07/2017)

06/15/2017

2056 NOTICE by Lorren Oliver of Filing of June 2017 Monthly Report (Attachments: # 1 Receiver's June 2017 Monthly Report)(Hanson, Jennifer) (Entered: 06/15/2017)

06/20/2017

2057

NOTICE by Bryant, Martin re 2044 Order, Terminate Motions, Add and Terminate Parties ("Notice Of Settlement And Joint Motion For Approval Of Settlement And Entry Of Judgment") (Hernandez, Damaris) Modified on 6/21/2017 (AHI). (Entered: 06/20/2017)

06/21/2017

2058

ORDER that the 2057 Motion for Attorney's Fees and Costs is GRANTED and the parties' settlement is APPROVED and judgment is ENTERED in favor of Cravath, Swaine & Moore, LLP, John W. Martin, et al, and Gwendolyn Bryant, et al, jointly and severally and against the Sheriff in the amount of $150,0000.00 as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 6/21/2017. (AHI ) (Entered: 06/21/2017)

07/05/2017

2059

Transcript of Proceedings held on 06/29/17, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina K. Decker, Telephone number 256-506-0085. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 7/26/2017. Redacted Transcript Deadline set for 8/5/2017. Release of Transcript Restriction set for 10/3/2017. (SPT ) (Entered: 07/06/2017)

07/06/2017

2060

ORDER that a conference is set for Thursday, July 27, 2017, at 9:30 a.m. in the Robert S. Vance Federal, Building Birmingham, Alabama. Signed by Judge C Lynwood Smith, Jr on 07/06/17. (SPT ) (Entered: 07/06/2017)

07/17/2017

2061

NOTICE by Lorren Oliver of Filing of July 2017 Monthly Report and Proposed Budget for FY 2017-2018 (Attachments: # 1 Receiver's July 2017 Monthly Report and Proposed Budget for FY 2017-2018, # 2 Appendix A)(Hanson, Jennifer) (Entered: 07/17/2017)

07/17/2017

2062

NOTICE by Lorren Oliver of Filing of Interim Report on Consent Decree Progress (Attachments: # 1 Receiver's Interim Report on Consent Decree Progress, # 2 Appendices A-C)(Hanson, Jennifer) (Entered: 07/17/2017)

07/21/2017 2063 NOTICE of Appearance by Shawnna H Smith on behalf of Jefferson Cty (Smith, Shawnna) (Entered: 07/21/2017)

07/31/2017 2064 NOTICE of Change of Address by Leslie Allen Coyne (Coyne, Leslie) (Entered: 07/31/2017)

08/01/2017

2065

ORDER that a Status Conference is set for 8/31/2017 09:30 AM in the Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 8/1/2017. (AHI) (Entered: 08/01/2017)

08/09/2017

2066

Transcript of Status Conference held on July 27, 2017, before Judge C. Lynwood Smith, Jr. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 8/30/2017. Redacted Transcript Deadline set for 9/9/2017. Release of Transcript Restriction set for 11/7/2017. (AHI) (Entered: 08/09/2017)

08/15/2017 2067 NOTICE by Lorren Oliver of Filing of August 2017 Monthly Report (Attachments: # 1 Receiver's August 2017 Monthly Report, # 2 Appendices A-C)(Hanson, Jennifer) (Entered: 08/15/2017)

09/07/2017

2068

ORDER that a Status Conference is set for 9/28/2017 10:30 AM in Courtroom 3 of the Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 9/7/2017. (AHI ) (Entered: 09/07/2017)

09/13/2017 2069 MOTION for Leave to Appear Pro Hac Vice of Margarita Botero by Bryant, Martin. (Hernandez, Damaris) (Entered: 09/13/2017)

09/13/2017

PHV Fee paid: $50.00, receipt number B4601083124 (SPT, ) (Entered: 09/14/2017)

09/15/2017 2070 ORDER that the 2069 Motion for Leave to Appear PHV for Margarita Botero is GRANTED. Signed by Judge C Lynwood Smith, Jr on 9/15/2017. (AHI) (Entered: 09/15/2017)

09/15/2017

2071 NOTICE by Lorren Oliver of Filing of September 2017 Monthly Report (Attachments: # 1 Receiver's September 2017 Monthly Report)(Hanson, Jennifer) (Entered: 09/15/2017)

09/20/2017

2072

ORDER that the status conference set for 9/28/2017 is CANCELLED and reset for for 10/5/2017 10:30 AM in Courtroom No. 3, Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr.. Signed by Judge C Lynwood Smith, Jr on 9/20/2017. (AHI) (Entered: 09/20/2017)

10/04/2017

2073

Transcript of Status Conference held on 8/31/2017, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 10/25/2017. Redacted Transcript Deadline set for 11/4/2017. Release of Transcript Restriction set for 1/2/2018. (AHI) (Entered: 10/04/2017)

10/10/2017

2074

ORDER that a Status Conference is set for 12/14/2017 10:30 AM in Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 10/10/2017. (AHI) (Entered: 10/10/2017)

10/16/2017 2075 NOTICE by Lorren Oliver of Filing of October 2017 Monthly Report (Attachments: # 1 Receiver's October 2017 Monthly Report)(Hanson, Jennifer) (Entered: 10/16/2017)

10/17/2017

2076

NOTICE by Lorren Oliver re 2075 Notice (Other) of Filing of Appendices to Receiver's October 2017 Monthly Report (Attachments: # 1 Appendix A, # 2 Appendix B)(Hanson, Jennifer) (Entered: 10/17/2017)

11/15/2017

2077 NOTICE by Lorren Oliver of Filing of November 2017 Monthly Report (Attachments: # 1 Receiver's November 2017 Monthly Report, # 2 Appendix A)(Hanson, Jennifer) (Entered: 11/15/2017)

12/07/2017

2078

NOTICE of Appeal of the Decision of "termination" found in "Notice to Employee of Disciplinary Action dated 11/30/2017 (pursuant to 1982 MODIFIED ORDER APPOINTING RECEIVER issued on 11/25/2015 by this Court) by Teresa Brakefield (AHI) (Entered: 12/12/2017)

12/13/2017

2079

Transcript of Status Conference held on 10/5/2017, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 1/3/2018. Redacted Transcript Deadline set for 1/13/2018. Release of Transcript Restriction set for 3/13/2018. (AHI ) (Entered: 12/13/2017)

12/13/2017 2080 MOTION to Withdraw 2078 Termination Appeal. (AHI) (Entered: 12/13/2017)

12/13/2017 2081 ORDER that the Appeal of Termination filed by Ms. Brakefield is DENIED as MOOT as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 12/13/2017. (AHI) (Entered: 12/13/2017)

12/15/2017 2082 NOTICE by Lorren Oliver of Filing of December 2017 Monthly Report (Attachments: # 1 Receiver's December 2017 Monthly Report, # 2 Appendix A)(Hanson, Jennifer) (Entered: 12/15/2017)

12/15/2017 2083 MOTION to Withdraw as Attorney Jay Adelstein by United States of America. (Adelstein, Jay) (Entered: 12/15/2017)

12/15/2017

2084

ORDER that a Status Conference is set for 2/22/2018 10:30 AM in Courtroom 3 of the Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 12/15/2017. (AHI) (Entered: 12/15/2017)

12/21/2017

2085

ORDER that the 2083 MOTION to Withdraw as Attorney is GRANTED and Attorney Jay D. Aldelstein is TERMINATED. Signed by Judge C Lynwood Smith, Jr on 12/21/2017. (AHI) (Entered: 12/21/2017)

12/21/2017

2086

Transcript of Status Conference held on 12/14/2017, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 1/11/2018. Redacted Transcript Deadline set for 1/21/2018. Release of Transcript Restriction set for 3/21/2018. (AHI) (Entered: 12/21/2017)

01/16/2018

2087 NOTICE by Lorren Oliver of Filing of January 2018 Monthly Report (Attachments: # 1 Receiver's January 2018 Monthly Report)(Hanson, Jennifer) (Entered: 01/16/2018)

02/15/2018 2088 NOTICE by Lorren Oliver of Filing of February 2018 Monthly Report (Attachments: # 1 Receiver's February 2018 Monthly Report, # 2 Appendix A, # 3 Appendix B)(Hanson, Jennifer) (Entered: 02/15/2018)

02/23/2018

2089

ORDER that a status conference is set for 10:30 a.m. on Thursday, March 22, 2018 in the Historic Courtroom No. 3 of the Robert S. Vance Federal Building. Signed by Judge C Lynwood Smith, Jr on 02/23/18. (SPT ) (Entered: 02/23/2018)

03/09/2018 2090 MOTION to Withdraw Appearance of Lauren Ross by Bryant, Martin. (Hernandez, Damaris) (Entered: 03/09/2018)

03/12/2018 2091 ORDER that the motion to withdraw as attorney of record by Lauren Ross is GRANTED. Signed by Judge C Lynwood Smith, Jr on 3/12/2018. (AHI) (Entered: 03/12/2018)

03/15/2018 2092 NOTICE by Lorren Oliver of Filing of March 2018 Monthly Report (Attachments: # 1 Receiver's March 2018 Monthly Report, # 2 Appendix A)(Hanson, Jennifer) (Entered: 03/15/2018)

03/21/2018

2093

Transcript of Status Conference held on 2/22/2018, before Judge C. Lynwood Smith, Jr. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 4/11/2018. Redacted Transcript Deadline set for 4/21/2018. Release of Transcript Restriction set for 6/19/2018. (AHI) (Entered: 03/21/2018)

03/26/2018

2094

ORDER that a Status Conference is set for 4/26/2018 10:30 AM in Courtroom No., in the Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 3/26/2018. (AHI) (Entered: 03/26/2018)

04/16/2018

2095 NOTICE by Lorren Oliver of Filing of April 2018 Monthly Report (Attachments: # 1 Receiver's April 2018 Monthly Report, # 2 Appendix A, # 3 Appendix B)(Hanson, Jennifer) (Entered: 04/16/2018)

05/15/2018 2096 NOTICE by Lorren Oliver of Filing of May 2018 Monthly Report (Attachments: # 1 Receiver's May 2018 Monthly Report)(Hanson, Jennifer) (Entered: 05/15/2018)

05/15/2018

2097

NOTICE by Lorren Oliver of Joint Proposed Plan for Transition of Authority from Receiver to County and Appointment of Monitor (Attachments: # 1 Text of Proposed Order)(Hanson, Jennifer) (Entered: 05/15/2018)

05/23/2018

2098

Transcript of Status Conference held on 3/22/2018, before Judge C. Lynwood Smith, Jr. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy

can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 6/13/2018. Redacted Transcript Deadline set for 6/23/2018. Release of Transcript Restriction set for 8/21/2018. (AHI) (Entered: 05/23/2018)

05/23/2018

2099

Transcript of Status Conference held on 4/26/2018, before Judge C. Lynwood Smith, Jr. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 6/13/2018. Redacted Transcript Deadline set for 6/23/2018. Release of Transcript Restriction set for 8/21/2018. (AHI) (Entered: 05/23/2018)

06/06/2018

2100

ORDER that a conference is set in this action for 9:30 a.m., Thursday, June 28, 2018 in the Robert S. Vance Federal Courthouse, Birmingham, Alabama. Signed by Judge C Lynwood Smith, Jr on 06/06/18. (SPT ) (Entered: 06/06/2018)

06/06/2018

2101

ORDER ADOPTING THE PROPOSED PLAN FOR TRANSITION OF AUTHORITY FROM RECEIVER TO COUNTY AND APPOINTMENT OF MONITOR as more fully set out. Signed by Judge C Lynwood Smith, Jr on 06/06/18. (SPT ) (Entered: 06/06/2018)

06/15/2018 2102 NOTICE by Jefferson Cty of filing of June 2018 Monthly Report (Attachments: # 1 Jefferson County's June 2018 Monthly Report)(Lawson, Theodore) (Entered: 06/15/2018)

06/15/2018 2103 ***Document Sealed -- Transcript from 4/26/2018 (AHI) (Entered: 06/15/2018)

06/18/2018 2104 MOTION to Withdraw Appearance of Rachel M. Friztler by Bryant, Martin. (Hernandez, Damaris) (Entered: 06/18/2018)

06/19/2018 2105 ORDER that the 2104 Motion to Withdraw as attorney of record by Rachel M. Fritzler is GRANTED. Signed by Judge C Lynwood Smith, Jr on 6/19/2018. (AHI) (Entered: 06/19/2018)

07/09/2018

2106

ORDER that a Status Conference is set for 7/26/2018 10:30 AM in the Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 7/9/2018. (AHI) (Entered: 07/09/2018)

07/13/2018 2107 NOTICE of Appearance by Hector Federico Ruiz, Jr on behalf of United States of America (Ruiz, Hector) (Entered: 07/13/2018)

07/15/2018

2108 NOTICE by Jefferson Cty Notice of Filing of Monthly Report (Attachments: # 1 Exhibit Monthly Report July 2018)(Lawson, Theodore) (Entered: 07/15/2018)

07/24/2018

2109

Transcript of Proceedings held on June 28, 2018, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina K. Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy (SPT ) (Entered: 07/24/2018)

07/31/2018

2110

ORDER that a Status Conference is set for 8/30/2018 10:30 AM in the Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 7/31/2018. (AHI) (Entered: 07/31/2018)

08/06/2018

2111

ORDER that the status conference set for 10:30 AM on 8/30/2018 is RESCINDED and reset for 8/28/2018 10:30 AM in Birmingham, Alabama before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 8/6/2018. (AHI) (Entered: 08/06/2018)

08/15/2018 2112 NOTICE by Jefferson Cty of Filing of Monthly Report August 2018 (Attachments: # 1 Exhibit Human Resources August 2018 Monthly Report)(Lawson, Theodore) (Entered: 08/15/2018)

08/27/2018

2113

Transcript of Status Conference held on 7/26/2018, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no

such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 9/17/2018. Redacted Transcript Deadline set for 9/27/2018. Release of Transcript Restriction set for 11/25/2018. (AHI) (Entered: 08/27/2018)

08/29/2018

2114

ORDER that a Status Conference is set for 10/25/2018 10:30 AM in the Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 8/29/2018. (AHI) (Entered: 08/29/2018)

09/14/2018

2115 NOTICE by Jefferson Cty Notice of Filing of Monthly Report (Attachments: # 1 Exhibit Monthly Report September 2018)(Lawson, Theodore) (Entered: 09/14/2018)

10/12/2018

2116

ORDER that the previously scheduled status conference for 10/25/2018 is CANCELLED and the next Status Conference is set for 11/7/2018 10:30 AM in Federal Courthouse, Huntsville, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 10/12/2018. (AHI) (Entered: 10/12/2018)

10/15/2018 2117 NOTICE by Jefferson Cty Notice of Filing of Monthly Report (Attachments: # 1 Supplement Monthly Report October 2018)(Lawson, Theodore) (Entered: 10/15/2018)

11/06/2018

2118

Transcript of Status Conference held on 8/28/2018, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 11/27/2018. Redacted Transcript Deadline set for 12/7/2018. Release of Transcript Restriction set for 2/4/2019. (AHI) (Entered: 11/06/2018)

11/07/2018

Minute Entry for proceedings held before Judge C Lynwood Smith, Jr: Status Conference held on November 7, 2018, in Huntsville, Alabama; (Court Reporter Christina Decker.) (LCW) (Entered: 11/07/2018)

11/15/2018 2119 NOTICE by Jefferson Cty of Filing of Monthly Report November 2018 (Lawson, Theodore) (Entered: 11/15/2018)

12/15/2018

2120 NOTICE by Jefferson Cty of Filing of Monthly Report December 2018 (Attachments: # 1 Exhibit Exhibit)(Lawson, Theodore) (Entered: 12/15/2018)

01/08/2019

2121

ORDER that a Status Conference is set for 1/31/2019 10:30 AM in the Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 1/8/2019. (AHI) (Entered: 01/08/2019)

01/15/2019 2122 NOTICE by Jefferson Cty of Filing of Monthly Report January 2019 (Lawson, Theodore) (Entered: 01/15/2019)

01/22/2019

2123

Transcript of Status Conference held on 11/7/2018, before Judge C. Lynwood Smith, Jr. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 2/12/2019. Redacted Transcript Deadline set for 2/22/2019. Release of Transcript Restriction set for 4/22/2019. (AHI) (Entered: 01/22/2019)

01/24/2019

2124

ORDER that Due to the continuing government shutdown and the resulting lapse in appropriations the status conference scheduled for January 31, 2019, in Birmingham, Alabama, is CANCELLED. Signed by Judge C Lynwood Smith, Jr on 1/24/2019. (AHI) (Entered: 01/24/2019)

01/30/2019

2125

ORDER that a Status Conference is set for 2/28/2019 10:30 AM in the Robert S. Vance Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 1/30/2019. (AHI) (Entered: 01/30/2019)

02/04/2019 2126 Joint MOTION to Withdraw as Attorney for Robert Riley, Keith Jackson, Kallie Lunsford, James E. Murrill, Jr., and Jeremiah Mosley by Mike Hale. (Murrill, James) (Entered: 02/04/2019)

02/15/2019 2127 NOTICE by Jefferson Cty of Filing of Monthly Report February 2019 (Lawson, Theodore) (Entered: 02/15/2019)

02/20/2019

2128

NOTICE by Mark Pettway re 2126 Joint MOTION to Withdraw as Attorney for Robert Riley, Keith Jackson, Kallie Lunsford, James E. Murrill, Jr., and Jeremiah Mosley (Murrill, James) (Entered: 02/20/2019)

02/21/2019

2129 TEXT ORDER finding as moot 2126 Motion to Withdraw as Attorney.Signed by Judge C Lynwood Smith, Jr on February 21, 2019. (ADH) (Entered: 02/21/2019)

03/11/2019

2130

ORDER that this case is set for a Status Conference on 4/25/2019 10:30 AM in the Robert S. Vance Federal Building, Birmingham, AL before Judge C Lynwood Smith Jr. Signed by Judge C Lynwood Smith, Jr on 3/11/2019. (AHI ) (Entered: 03/11/2019)

03/15/2019 2131 NOTICE by Jefferson Cty Filing of Monthly Report (Attachments: # 1 Supplement Monthly Report March 2019)(Lawson, Theodore) (Entered: 03/15/2019)

04/15/2019 2132 NOTICE by Jefferson Cty of filing of Monthly Report April 2019 (Lawson, Theodore) (Entered: 04/15/2019)

04/24/2019

2133

ORDER that the status conference scheduled for 10:30 AM on 4/25/2019, is CANCELLED and will be rescheduled by separate order. Signed by Judge C Lynwood Smith, Jr on 4/24/2019. (AHI ) (Entered: 04/24/2019)

05/02/2019

2134

ORDER: Conference set for 6/27/2019 at 10:30 AM in the Robert S. Vance Federal Building at 1800 Fifth Avenue North, Birmingham, Alabama. The parties shall submit their proposed agendas by e-mail no later than June 20, 2019. Signed by Judge C Lynwood Smith, Jr on 5/2/19. (BJL) (Entered: 05/02/2019)

05/15/2019 2135 NOTICE by Jefferson Cty of filing of Monthly Report May 2019 (Lawson, Theodore) (Entered: 05/15/2019)

06/14/2019 2136 NOTICE by Jefferson Cty of Filing of Monthly Report June 2019 (Lawson, Theodore) (Entered: 06/14/2019)

06/26/2019

2137

ORDER that the 6/27/2019 status conference is CANCELLED and the next Status Conference is set for 7/25/2019 10:30 AM in Robert S. Vance Federal Building, Birmingham, AL. Signed by Judge C Lynwood Smith, Jr on 6/26/2019. (AHI ) (Entered: 06/26/2019)

07/01/2019 2138 Second MOTION to Withdraw as Attorney for Robert R. Riley, Jr., Keith Jackson, Kallie Lunsford, James E. Murrill, Jr., and Jeremiah Mosley by Mark Pettway. (Murrill, James) (Entered: 07/01/2019)

07/03/2019 2139 NOTICE of Appearance by Bruce L Gordon on behalf of Mark Pettway (Gordon, Bruce) (Entered: 07/03/2019)

07/03/2019 2140 NOTICE of Appearance by John G Dana on behalf of Mark Pettway (Dana, John) (Entered: 07/03/2019)

07/03/2019 2141 NOTICE of Appearance by James A Stewart on behalf of Mark Pettway (Stewart, James) (Entered: 07/03/2019)

07/08/2019

2142

ORDER that the 2138 Motion to Withdraw as Attorneys of record is GRANTED and attorneys Jeremiah M Mosley; James E Murrill, Jr; Robert R Riley, Jr; Keith Jackson and Kallie C Lunsford are terminated. Signed by Judge C Lynwood Smith, Jr on 7/8/2019. (AHI) (Entered: 07/08/2019)

07/15/2019 2143 NOTICE by Jefferson Cty of filing of Monthly Report July 2019 (Lawson, Theodore) (Entered: 07/15/2019)

07/17/2019

2144 ORDER that the status conference set for 7/25/2019 is CANCELLED. Signed by Judge C Lynwood Smith, Jr on 7/17/2019. (AHI) (Entered: 07/17/2019)

07/30/2019 2145 ORDER that a Status Conference is set for 9/12/2019 10:30 AM in the Robert Vance Federal Building, Birmingham, Alabama. Signed by Judge C Lynwood Smith, Jr on 7/30/2019. (AHI) (Entered: 07/30/2019)

08/15/2019 2146 NOTICE by Jefferson Cty of Filing of Monthly Report August 2019 (Lawson, Theodore) (Entered: 08/15/2019)

08/15/2019 2147 NOTICE by Jefferson Cty of Filing of Revised Monthly Report August 2019 (Lawson, Theodore) (Entered: 08/15/2019)

09/11/2019 2148 MOTION for Leave to Appear Pro Hac Vice of Hussein E. Elbakri by Bryant, Martin. (Hernandez, Damaris) (Entered: 09/11/2019)

09/11/2019

PHV Fee paid: $ 75, receipt number 1126-3432222 (B4601100562). (Hernandez, Damaris) (Entered: 09/11/2019)

09/11/2019 2149 ORDER granting 2148 Motion for Leave to Appear pro hac vice. Signed by Judge C Lynwood Smith, Jr on September 11, 2019. (ADH) (Entered: 09/11/2019)

09/13/2019 2150 NOTICE by Jefferson Cty Filing of Monthly Report September 2019 (Lawson, Theodore) (Entered: 09/13/2019)

09/24/2019 2151 ORDER that a Status Conference is set for 10/31/2019 10:30 AM in the Robert S. Vance Federal Building, Birmingham, AL. Signed by Judge C Lynwood Smith, Jr on 9/24/2019. (AHI ) (Entered: 09/24/2019)

09/27/2019

2152

ORDER: The parties are Ordered to show cause during the October 31, 2019 statusconference (including, if any so desire, the presentation of supporting evidence) why this case should not be concluded by the end of the 2019 calendar year. The parties are further Ordered to submit, by email, on or before October 24, 2019, an outline of their proposed arguments. Signed by Judge C Lynwood Smith, Jr on 9/27/19. (BJL) (Entered: 09/27/2019)

10/15/2019 2153 NOTICE by Jefferson Cty Filing of Monthly Report October 2019 (Lawson, Theodore) (Entered: 10/15/2019)

10/30/2019

2154

Transcript of Status Conference held on 9/12/2019, before Judge C. Lynwood Smith, Jr.. Court Reporter/Transcriber Christina Decker. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 11/20/2019. Redacted Transcript Deadline set for 11/30/2019. Release of Transcript Restriction set for 1/28/2020. (AHI) (Entered: 10/30/2019)

11/15/2019 2155 NOTICE by Jefferson Cty of Filing of Monthly Report November 2019 (Lawson, Theodore) (Entered: 11/15/2019)

11/21/2019 2156 ORDER setting out case plan for the remainder of the 2019 calendar year. Signed by Judge C Lynwood Smith, Jr on 11/21/2019. (AHI) (Entered: 11/21/2019)

12/15/2019 2157 NOTICE by Jefferson Cty of Filing of Monthly Report December 2019 (Lawson, Theodore) (Entered: 12/15/2019)

01/02/2020 2158 MOTION to Withdraw (Mary Ann Couch) by Jefferson County Personnel Board. (Couch, Mary Ann) (Entered: 01/02/2020)

01/15/2020 2159 NOTICE by Jefferson Cty of Filing of Monthly Report January 2020 (Lawson, Theodore) (Entered: 01/15/2020)

02/14/2020 2160 NOTICE by Jefferson Cty of Filing of Monthly Report February 2020 (Lawson, Theodore) (Entered: 02/14/2020)

02/18/2020

2161 ORDER that the 2158 MOTION to Withdraw as co-counsel by (Mary Ann Couch) is GRANTED.. Signed by Judge C Lynwood Smith, Jr on 2/18/2020. (AHI) (Entered: 02/18/2020)

03/13/2020 2162 NOTICE by Jefferson Cty of Filing of Monthly Report March 2020 (Lawson, Theodore) (Entered: 03/13/2020)

04/10/2020 2163 Unopposed MOTION for Extension of Time by Jefferson Cty. (Mays, Stephanie) (Entered: 04/10/2020)

04/10/2020

2164

ORDER granting 2163 Motion for Extension of Time. The time for filing the Human Resources Director's Strategic Direction Report is extended to no later than May 4, 2020. Signed by Judge C Lynwood Smith, Jr on 4/10/20. (BJL) (Entered: 04/10/2020)

04/15/2020 2165 NOTICE by Jefferson Cty of Filing of Monthly Report April 2020 (Attachments: # 1 Monthly Report April 2020)(Lawson, Theodore) (Entered: 04/15/2020)

05/04/2020

2166

NOTICE by Jefferson Cty of Filing of Jefferson County Human Resources Director's Strategic Direction Report (Attachments: # 1 Exhibit Strategic Report, # 2 Exhibit Co Manager Letter of Support)(Lawson, Theodore) (Entered: 05/04/2020)

05/15/2020 2167 NOTICE by Jefferson Cty of Filing of Monthly Report May 2020 (Lawson, Theodore) (Entered: 05/15/2020)

06/15/2020 2168 NOTICE by Jefferson Cty of Filing of Monthly Report June 2020 (Lawson, Theodore) (Entered: 06/15/2020)

06/19/2020 2169 MOTION to Withdraw as Attorney ("Motion to Withdraw Appearance of Margarita M. Botero") by Bryant, Martin. (Hernandez, Damaris) (Entered: 06/19/2020)

06/23/2020

2170 ORDER: The 2169 MOTION to Withdraw as Attorney is GRANTED and Attorney Margarita Botero terminated. Signed by Judge C Lynwood Smith, Jr on 6/23/2020. (AHI ) (Entered: 06/23/2020)

07/15/2020 2171 NOTICE by Jefferson Cty of Filing of Monthly Report July 2020 (Lawson, Theodore) (Entered: 07/15/2020)

08/14/2020

2172 NOTICE by Jefferson Cty of Filing of Monthly Report August 2020 (Attachments: # 1 Exhibit Monthly Report August 2020)(Lawson, Theodore) (Entered: 08/14/2020)

09/01/2020 2173 Joint MOTION for Termination of the Consent Decree with Supporting Memorandum by Jefferson Cty. (Attachments: # 1 Exhibit Exhibit A)(Lawson, Theodore) (Entered: 09/01/2020)

09/15/2020 2174 NOTICE by Jefferson Cty of Filing of Monthly Report September 2020 (Attachments: # 1 Exhibit Monthly Report September 2020)(Lawson, Theodore) (Entered: 09/15/2020)

10/15/2020 2175 NOTICE by Jefferson Cty of Filing of Monthly Report October 2020 (Lawson, Theodore) (Entered: 10/15/2020)

11/03/2020 2176 MOTION to Intervene by Erin C. Ryerson. (Attachments: # 1 Exhibit A - Complaint in Intervention)(Ozment, James) (Entered: 11/03/2020)

11/04/2020

2177

MOTION to Amend/Correct 2176 MOTION to Intervene (Amended Motion for Leave to Intervene) by Erin C. Ryerson. (Attachments: # 1 Exhibit A - Amended Complaint in Intervention, # 2 Exhibit A to Amended Complaint in Intervention - Ryerson EEOC Charge)(Ozment, James) (Entered: 11/04/2020)

11/12/2020

2178

Brief re 2177 MOTION to Amend/Correct 2176 MOTION to Intervene (Amended Motion for Leave to Intervene), 2176 MOTION to Intervene (Memorandum in Support of Motion for Leave to Intervene) filed by Erin C. Ryerson. (Attachments: # 1 Exhibit 1 - Complaint, # 2 Exhibit 2 - Answer to Complaint, # 3 Exhibit 3 - First Amended Complaint, # 4 Exhibit 4 - Answer to First Amended Complaint, # 5 Exhibit 5 Transcript of 8-10-20 Hearing Before Judge Haikala, # 6 Exhibit 6 Defendant's MSJ and Brief in Support of MSJ, # 7 Exhibit 7 - Plaintiff's Response in Opposition to Defendant's MSJ, # 8 Exhibit 8 - Plaintiff's Motion to Strike or Alternatively, Motion for Partial SJ, # 9 Exhibit 9 Defendant's Opposition to Motion to Strike or Alternatively MPSJ, # 10 Exhibit 10 - Plaintiff's Reply to Defendant's Opposition to Motion to Strike or Alternatively, MPSJ)(Ozment, James) (Entered: 11/12/2020)

11/13/2020

2179 ORDER: The motion for leave to intervene filed by Erin Ryerson (doc. no. 2176), asamended (doc. no. 2177), is DENIED. Signed by Judge C Lynwood Smith, Jr on 11/13/20. (BJL) (Entered: 11/13/2020)

11/15/2020 2180 NOTICE by Jefferson Cty of Filing of Monthly Report November 2020 (Attachments: # 1 Exhibit Exhibit A)(Lawson, Theodore) (Entered: 11/15/2020)

12/14/2020 2181 NOTICE OF APPEAL by Erin C. Ryerson. Appeal Record due by 12/14/2020. (Abbot, R) (Entered: 12/14/2020)

12/14/2020 2182 TRANSMITTAL LETTER regarding 2181 Notice of Appeal (AHI) (Entered: 12/14/2020)

12/14/2020 2183 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals regarding 2181 Notice of Appeal (AHI) (Entered: 12/14/2020)

12/15/2020 2184 NOTICE by Jefferson Cty of Filing of Monthly Report December 2020 (Lawson, Theodore) (Entered: 12/15/2020)

12/16/2020 2185 USCA Case Number 20-14687-F for 2181 Notice of Appeal filed by Erin C. Ryerson. (AHI) (Entered: 12/16/2020)

12/21/2020

2186

ORDER: The Court GRANTS the Joint Motion for Termination of the Consent Decree; and all provisions of the 1832 Consent Decree entered on 2/29/1982; together with the modifications incorporated in the 11/12/2013 1842 Order are TERMINATED as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 12/21/2020. (AHI) (Entered: 12/21/2020)

12/21/2020

2187 ORDER TERMINATING ALL PENDING MOTIONS as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 12/21/2020. (AHI) (Entered: 12/21/2020)

12/21/2020 2188 LETTER to Counsel Regarding Termination of Jefferson County's Consent Decree (AHI) (Entered: 12/21/2020)

01/05/2021

2189

TRANSCRIPT REQUEST by Erin C. Ryerson for proceedings held on 8/10/2020 before Judge Madeline H. Haikala, re 2185 USCA Case Number, 2183 Transmission of Notice of Appeal and Docket Sheet to USCA, 2181 Notice of Appeal Transcript due by 1/5/2021. (Ozment, James) (Entered: 01/05/2021)

01/06/2021

2190

Transcript of Status Conference held on August 10, 2020, before Judge Madeline H. Haikala. Court Reporter/Transcriber Teresa Roberson. 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: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. (A copy can be obtained at http://www.alnd.uscourts.gov/local/court%20forms/transcripts/Transcri pt% 20Redaction%20Policy.pdf) See Transcript Redaction Policy Redaction Request due 1/27/2021. Redacted Transcript Deadline set for 2/6/2021. Release of Transcript Restriction set for 4/6/2021. (Attachments: # 1 Court Reporter Certificate) (AHI ) (Entered: 01/06/2021)

01/06/2021

USCA Appeal Fees received $ 505 receipt number B4601110630 re 2181 Notice of Appeal (AHI) (Entered: 01/07/2021)

03/18/2021

2191

MANDATE of USCA -ENTRY OF DISMISSAL: Pursuant to Appellant Erin C. Ryerson's motion for voluntary dismissal, FRAP Rule 42 and 11th Cir. R. 42-1(a), the this appeal was duly entered dismissed on this date; issued as mandate on 3/18/2021(AHI) (Entered: 03/18/2021)

03/31/2021

2192 MOTION for Attorney Fees Motion and Proposed Judgment for Attorneys' Fees and Costs by Bryant, Martin. (Hernandez, Damaris) (Entered: 03/31/2021)

04/02/2021

2193

ORDER - The Court APPROVES the parties proposed settlement and judgment is entered in favor of the Martin/Bryant Parties, jointly and severally and against Jefferson County, Alabama in the amount of $7,289,532.90, this judgment fully adjudicates and extinguishes any claims for attorneys' fees and costs which the Martin/Bryant Parties have or might have made against Jefferson County as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 4/2/2021. (AHI) (Entered: 04/02/2021)

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 726 F.2d 1554 (1984)
Lucy WALKER, Plaintiff-Appellant, v.
JEFFERSON COUNTY HOME, et al., Defendants-Appellees.
No. 82-7297.
United States Court of Appeals, Eleventh Circuit.
March 16, 1984.
15556 *1555 *1556 C. Michael Quinn, Robert L. Wiggins, Jr., Birmingham, Ala., for plaintiff-appellant.
Edwin A. Strickland, Michael L. Hall, Birmingham, Ala., for defendants-appellees.
Before JOHNSON and ANDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.
TUTTLE, Senior Circuit Judge.
Plaintiff-appellant Lucy Walker appeals from a judgment by the United States District Court for the Northern District of Alabama that defendant-appellee Jefferson County Home (the "Home") did not discriminate against Walker on the basis of race in violation of Title VII of the Civil Rights Act. This Court holds that the Home did violate Title VII. Therefore, we reverse the district court's judgment.
I. BACKGROUND
The Home is a nursing home in Jefferson County, Alabama. In 1965, the Home hired Walker, a black woman, to work in the Home's Housekeeping Department. Later, Walker was transferred to Nursing Services as a nurse's aid. Early in 1972, the Housekeeping Department supervisor was involved in an automobile accident and had to be absent from work for several months. The Home decided to fill the position on a temporary basis. A white employee, Ivory McCutcheon, who had been hired by the Home two months earlier, was transferred from the kitchen to the Housekeeping Department supervisor position. Although McCutcheon had no previous supervisory experience, the Home did not consider anyone else for the position. After the regular supervisor returned, McCutcheon remained in the Housekeeping Department to assist the supervisor. McCutcheon worked in the Housekeeping Department for fifteen or sixteen months until August 19, 1973, when she resigned.
The regular supervisor decided to retire in June, 1974 and gave notice sometime earlier. The Home's director, Lillian Holmes, requested from the Personnel Board of Jefferson County a certified list of names of qualified people from which she could fill the supervisor position. The Personnel Board had established prior supervisory experience and a high school diploma or its equivalent as the qualifications for the position. Walker was certified as qualified and was referred to the Home with two other candidates, both of whom were white and one of whom was McCutcheon. Following interviews of the three candidates, Holmes selected McCutcheon for the position. Walker filed a discrimination charge with the EEOC, which issued a right-to-sue letter. Walker then filed this action in district court on February 20, 1976.
II. THE DISTRICT COURT OPINION
The district court applied a disparate treatment analysis to the facts of the case. Disparate treatment occurs when "the employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment." Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). The district court first examined whether Walker had met the requirements of a prima facie disparate treatment case: 1) the existence of a vacant position; 2) the application to the position by

1557 appellant; 3) the selection of a person of another race; and 4) the possession by appellant *1557 of the necessary qualifications for appointment. See McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973).
The district court concluded that Walker had met the first three requirements. It found that Holmes chose McCutcheon because she had more recent supervisory experience 0907 in particular, the supervisory experience she had gained when she replaced and then assisted the regular supervisor at the Home. There was some question about the type of supervisory experience that Walker had received prior to her employment with the Home. Prior to 1965, she held three housekeeping or janitorial type jobs, one with a high school and two with hospitals or clinics. Apparently, Walker's original application for employment with the Home in 1965, her initial application to the Personnel Board in 1973, and a deposition taken under oath several months before the trial, did not indicate that her positions prior to employment with the Home provided any supervisory experience. By supplementary notation filed June 10, 1974 with the Personnel Board and in testimony at trial, however, Walker indicated that some supervisory duties attached to her earlier positions. Nevertheless, the district court concluded that those earlier positions had little, if any, supervisory responsibilities attached to them.
Although the district court found that Walker was not "qualified," the court noted that circumstances that occurred in 1972 complicated the issue. In particular, the court found that in 1972, when McCutcheon was given the opportunity to acquire supervisory experience, the Home had a general policy, practice, or pattern of favoring whites over blacks for movement into supervisory positions. According to the district court, "this infected at least to some degree the selection of Ms. McCutcheon to be this Acting Housekeeper and in the nonconsideration of Ms. Walker or others for that same position." Although the district court was troubled that the reason for Walker's nonselection in 1974 arose out of preferential treatment given a white employee in 1972, it concluded that the statute of limitations barred Walker from litigating discriminatory treatment that occurred in 1972. In this appeal, Walker contends that the district court did not apply the proper legal analysis to the facts.
III. LEGAL ANALYSIS
We must determine whether the district court applied the proper legal analysis to the facts of this case. Although the district court applied a disparate treatment analysis, on appeal, Walker contends that she proved both a disparate impact theory and a disparate treatment theory of discrimination. See Teamsters v. United States, 431 U.S. 324, 338 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977) (either theory may be applied to a particular set of facts). We hold that Walker has made a showing of discrimination under the disparate impact theory. Disparate impact occurs when an employer bases an employment selection decision on a criterion that is neutral on its face but disfavors black employees in operation. "Under the Act [Title VII], practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to `freeze' the status quo of prior discriminatory employment practices." Griggs v. Duke Power Co., 401 U.S. 424, 430, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). In a disparate impact case, the court clearly may consider evidence of prior discriminatory acts if such evidence is relevant to show independently actionable conduct occurring within the statutory period.[1]See e.g., Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241 (5th Cir.1980); Fisher v. Proctor & Gamble Mfg. Co., 613 F.2d 527 (5th Cir.1980); Guardians Association v. Civil Service Commission, 633 F.2d 232 (2nd Cir.1980), cert. 1558 denied, ___ *1558 U.S. ___, 103 S.Ct. 3568, 77 L.Ed.2d 1410 (1983).
In this case, the Home established a requirement of prior supervisory experience for promotion to Housekeeping Department supervisor. On its face, such a policy is neutral because it applies equally to all applicants. The district court found, however, that the Home had a past policy or practice of favoring whites over blacks for movement into positions from which they could gain initial supervisory experience.[2] In turn, that past intentional discrimination was carried into the 1974 policy, which, although neutral on its face, had a discriminatory impact on blacks. In other words, blacks were first denied the opportunity to obtain supervisory experience, and then were told that they were "unqualified" for promotion because they lacked the very quality that had intentionally been denied to them. Thus, the requirement of supervisory experience served to freeze the status quo of prior discriminatory employment practices.

Lest it be said that the Home's policy of favoring whites over blacks for supervisory positions had no impact on other blacks who might seek to fill the vacancy, we call attention to a personnel policy of the Home. That policy, which was in effect in 1974, read into the record, was:
When filling vacant positions the County Home gives first consideration to Home employees who meet the job requirements in preference to outside recruitment. However, you must be eligible for appointment under the rules established by the Personnel Board of Jefferson County.
Thus, the employees of the Home became a separate group for consideration for promotion. A policy having a disparate impact on the black employees as a class therefore constituted disparate impact.
Once the plaintiff has shown that the facially neutral employment practice has a discriminatory impact, the employer may nevertheless prevail by showing that the practice was a "business necessity." A practice is a business necessity only if it bears "a manifest relationship to the employment in question." Griggs v. Duke Power Co., 401 U.S. at 432, 91 S.Ct. at 854. Accord Connecticut v. Teal, 457 U.S. 440, 446, 102 S.Ct. 2525, 2530, 73 L.Ed.2d 130 (1982). The burden of persuasion shifts to the employer to prove business necessity and rebut the plaintiff's prima facie case. Eastland v. Tennessee Valley Authority, 704 F.2d 613, 619 (11th Cir.1983); Johnson v. Uncle Ben's, Inc., 657 F.2d 750, 752-53 (5th Cir.1981), cert. denied, 459 U.S. 967, 103 S.Ct. 293, 74 L.Ed.2d 277 (1982). In determining whether the employer has met its burden, the court looks at the amount of skill required for the position and the economic and human risks involved. "When a job requires a small amount of skill and training and the consequences of hiring an unqualified applicant are insignificant, the courts should examine closely any pre-employment standard or criteria which discriminate against minorities. In such a case, the employer should have a heavy burden to demonstrate to the court's satisfaction that his employment criteria are job-related." Spurlock v. United Air Lines, Inc., 475 F.2d 216, 219 (10th Cir.1972). See EEOC v. International Union of Operating Engineers, Local 14 & 15, 553 F.2d 251 (2d Cir.1977) (union admission requirements of city operator's license, ability to operate more than one piece of equipment, and 200 days' experience were not job related); Fisher v. Proctor & Gamble Mfg. Co., 613 F.2d 527, 541-42 n. 27 (5th Cir.1980), cert. denied, 449 U.S. 1115, 101 S.Ct. 929, 66 L.Ed.2d 845 (1981) (injunction against 20-year experience requirement for promotion from nonmanagement to management positions upheld in view of racial impact); Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir.1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979) (experience prerequisite for eligibility for apprenticeship program and on-the-job training found to perpetuate 1559 effects of *1559 past discrimination; district court ordered to consider whether experience prerequisite should be shortened). Compare Spurlock v. United Air Lines, Inc., 475 F.2d 216 (10th Cir.1972) (job of airline flight officer requires high degree of skill, and economic and human risks are great); Hodgson v. Greyhound Lines, Inc., 499 F.2d 859 (7th Cir.1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 822 (1975) (requirement that applicants for bus-driving position be younger than 35 years of age upheld on safety grounds). See generally B. Schlei & P. Grossman, Employment Discrimination Law, 167-72 (1983).
The Home failed to meet the rigorous standard of proving that the requirement of supervisory experience was job related and a business necessity. The Home's only evidence in support of business necessity was its emphasis on the importance of the Housekeeping Department supervisor's job in a nursing home.[3] The Home did not show that the job of Housekeeping Department supervisor is highly skilled or that the economic and human risks involved in hiring an unqualified applicant are great. Moreover, when McCutcheon was hired as a temporary supervisor in 1972, she had no supervisory experience. Therefore, we are not persuaded that the Home demonstrated that its supervisory experience policy was a business necessity.
Under the disparate impact model, if the employer establishes job-relatedness, the burden then shifts to the employee to show the availability of other selection devices with a lesser adverse impact which would serve the employer's needs, Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975), or to show that the employer was using the practice as a pretext for discrimination. Connecticut v. Teal, 457 U.S. 440, 447, 102 S.Ct. 2525, 2531, 73 L.Ed.2d 130 (1982). Because the Home failed to establish jobrelatedness, we need not examine alternatives or pretext.[4]

The Home urges that Walker did not properly raise the occurrence of discrimination in 1972 in her EEOC charge, complaint, or in the pretrial order. We find this argument to be without merit.
Accordingly, the judgment is REVERSED and REMANDED to the district court to determine the appropriate relief.
[1] Thus, the statute of limitations does not prevent the court from considering 1972 events. The district court relied on United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), to rule that Walker's suit was time barred. Unlike our case, however, in Evans the plaintiff relied on a "continuing violation" theory, not on a disparate impact theory.
[2] The Home and the district court questioned whether McCutcheon's promotion in 1972 occurred prior to or subsequent to March 24, 1972, the date Title VII first became applicable to government employers. The record, however, indicates that McCutcheon was promoted sometime in April 1972.
[3] The Personnel Board announcement described the duties as follows:
Plans, assigns and supervises the work of a group of employees performing cleaning, housekeeping, and minor maintenance duties; demonstrates methods and instructs subordinates in the performance of such duties as sweeping, mopping, waxing and polishing floors, washing windows, cleaning restrooms and replenishing necessary supplies; inspects facilities to assure adherence to standards of cleanliness and sanitation; directs the mending, pick-up and distribution of linens; prepares work schedules and assures adequate staffing, evaluates operations and makes necessary changes to improve the quality of performance; requisitions janitorial and housekeeping supplies; performs related duties as required.
[4] The district court apparently reversed the order of proof. It determined the question of pretext before examining business necessity.
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 720 F.2d 1511 (1983)
UNITED STATES of America, Plaintiff-Appellee, v.
JEFFERSON COUNTY, et al., Defendants-Appellees. John W. MARTIN, et al., Plaintiffs-Appellees, v.
CITY OF BIRMINGHAM, et al., Defendants-Appellees. ENSLEY BRANCH OF THE NAACP, et al., Plaintiffs-Appellees,
v. George SEIBELS, et al., Defendants-Appellees, Birmingham Firefighters Association 117, Proposed Intervenor-Appellant. James A. BENNETT, et al., Plaintiffs-Appellants,
v. Richard ARRINGTON, Jr., etc., et al., Defendants-Appellees.
Nos. 81-7761, 82-7129.
United States Court of Appeals, Eleventh Circuit.
December 12, 1983. Rehearing and Rehearing Denied January 20, 1984.
15123 *1512 *1513 William W. Conwell and Raymond P. Fitzpatrick Jr., Foster & Conwell, Birmingham, Ala., for the proposed intervenors-appellants in No. 81-7761 and for the plaintiffs-appellants in No. 82-7129.
William L. Robinson, Stephen L. Spitz, Lawyers' Committee for Civil Rights Under Law, Washington, D.C.; St. John Barrett, Barnett & Alagia, Washington, D.C.; and Susan W. Reeves, Reeves & Still, Birmingham, Ala.; for plaintiffs-appellees, John W. Martin et al. in No. 81-7761 and for defendants-appellees John W. Martin et al. in No. 82-7129.
Frank W. Donaldson, U.S. Atty., and Caryl P. Privett, Asst. U.S. Atty., Birmingham, Ala.; Wm. Bradford Reynolds, Asst. Atty. Gen. and Robert T. Moore, Richard J. Ritter, Attys., Dept. of Justice, Civil Rights Div., Washington, D.C.; for the plaintiff-appellee United States in No. 81-7761.
James K. Baker, City Atty.; James P. Alexander and Eldridge D. Lacy, Bradley, Arant, Rose and White, Birmingham, Ala.; for the defendant-appellee, City of Birmingham, in both No. 81-7761 and No. 82-7129.
Hubert A. Grissom, Jr., David P. Whiteside, Jr. and Michael Hall, Johnston, Barton, Proctor, Swedlaw and Neff, Birmingham, Ala.; for the defendant-appellee Personnel Bd. of Jefferson County, Ala., in both No. 81-7761 and No. 82-7129.
1514 *1514 Before TJOFLAT, FAY and ANDERSON, Circuit Judges.
Rehearing and Rehearing En Banc Denied January 20, 1984.
TJOFLAT, Circuit Judge:
In January 1974 the Ensley Branch of the NAACP[1] and John Martin[2] each filed a separate class action complaint in the district court against the Jefferson County, Alabama, Personnel Board (Board) and the City of Birmingham, Alabama (City). They alleged that the Board and the City violated, inter alia, Title VII of the Civil Rights Act[3] through racially discriminatory hiring and promotion in various public service jobs, including

firefighters.[4] In May 1975, the United States also filed a complaint in the district court alleging similar discrimination against blacks and women by the Board and the City.[5]
These three cases were consolidated for discovery and trial purposes. In December 1976, the district court held a bench trial limited to the issue of the validity of the written tests used by the Board and the City to screen police and firefighter applicants. The court found that the tests had a severe adverse impact on black applicants and concluded that the tests therefore violated Title VII. The court directed entry of final judgment for the plaintiffs on this issue, pursuant to Fed.R.Civ.P. 54(b), and the defendants appealed. While their appeal was pending, the district court tried the remaining claims pending against the Board only.
After we ruled on the district court's decision concerning the written tests, Ensley Branch of NAACP v. Seibels, 616 F.2d 812 (5th Cir.) cert. denied sub nom. Personnel Board v. United States, 449 U.S. 1061, 101 S.Ct. 783, 66 1515 L.Ed.2d 603 (1980),[6] the plaintiffs, in all three cases, entered into *1515 extensive negotiations with the Board and the City which culminated in two proposed consent decrees, one with the Board[7] and one with the City.[8] The former disposed of all of the plaintiffs' claims against the Board; the latter disposed of all the plaintiffs' claims against the City. The two consent decrees incorporated some affirmative action remedies in hiring and promotional policies.[9]
The court provisionally approved these consent decrees in June 1981, but reserved final approval until it convened a fairness hearing to consider the objections of all interested parties. The court held that hearing in August 1981, at which it considered, among others, the objections filed by the Birmingham Firefighters Association 117 (BFA),[10] as amicus curiae. The day after the hearing, BFA and two of its members (BFA members) moved, pursuant to Fed.R.Civ.P. 24(a), to intervene of right in each of the three cases, contending that the proposed consent decrees would have a substantial adverse impact upon them. The court denied their motions as untimely, and approved, and entered, both consent decrees.
Seven individual white male firefighters (Firefighters) then filed a complaint in the district court against the Board and the City[11] to enjoin the enforcement of the consent decrees on the ground that the operation of the decrees would discriminate against them in violation of Title VII of the Civil Rights Act. They applied for a preliminary injunction, which, after a hearing, the district court denied.
The BFA members and the Firefighters then appealed from the court's denials of the motion to intervene and the preliminary injunction. We note provisional jurisdiction to review the denial of the motion to intervene, under our "anomalous rule";[12] if we find the motion to have been properly denied, we must dismiss for lack of jurisdiction. We note jurisdiction, pursuant to 28 U.S.C. § 1292(a)(1) (1976), to review the denial of the preliminary injunction.
1516 *1516 I.
The district court denied the BFA members' motion to intervene on the ground that it was untimely filed. The question of timeliness is largely committed to the district court's discretion; therefore, we review the court's action only for an abuse of discretion. Howse v. S/V "Canada Goose I", 641 F.2d 317, 320 (5th Cir. Unit B 1981); Stallworth v. Monsanto Co., 558 F.2d 257, 263 (5th Cir.1977).
A district court must consider four factors in assessing timeliness, namely (1) the length of time during which the would-be intervenor knew or reasonably should have known of his interest in the case before he petitioned for leave to intervene; (2) the extent of prejudice to the existing parties as a result of the would-be intervenor's failure to apply as soon as he knew or reasonably should have known of his interest; (3) the extent of prejudice to the would-be intervenor if his petition is denied; and (4) the existence of unusual circumstances militating either for or against a determination that the application is timely. Stallworth, 558 F.2d at 264-66. This analysis applies whether intervention of right or permissive intervention under Fed.R.Civ.P. 24 is claimed. Id., citing United Airlines, Inc. v. McDonald, 432 U.S. 385, 387, 97 S.Ct. 2464, 2466, 53 L.Ed.2d 423 (1977); NAACP v. New York, 413 U.S. 345, 366, 93 S.Ct. 2591, 2602-03, 37 L.Ed.2d 648 (1973); Smith Petroleum Service, Inc. v. Monsanto Chemical Co., 420 F.2d 1103, 1115 (5th Cir.1970).

Under the first factor of the timeliness test, the district court correctly concluded that the BFA members did not act seasonably. The BFA members contend that their motion was timely because they filed it just as soon as they discovered that they might be adversely affected by a final adjudication of the plaintiffs' claims in these cases. It is true, as we said in Stallworth, that mere knowledge of the pendency of an action, without appreciation of the potential adverse effect an adjudication of that action might have on one's interests, does not preclude intervention. The BFA members, however, knew at an early stage in the proceedings that their rights could be adversely affected, as was evidenced by their conversations with the City regarding the tactics the City should take in defending the action; yet they failed to seek intervention.
The BFA members contend that their failure to move to intervene was justified, and therefore should have been excused, because they were entitled to assume that the City and the Board would protect their interests. There are, of course, certain circumstances under which one is entitled to assume that a party will protect one's interests. The Supreme Court made this clear in United Airlines, which the BFA members argue controls this case. There, a stewardess filed a class action contesting a no-marriage rule that United applied only to female employees. The district court refused to certify a class, and the stewardess failed to appeal. Another stewardess moved the district court for leave to intervene in order to file the appeal. The district court denied her motion, and she appealed from that denial. The Court of Appeals reversed, with instructions to permit intervention on remand, and the Supreme Court affirmed. The Supreme Court justified the failure of the second stewardess to move to intervene earlier because "as soon as it became clear to [her] that the interests of the unnamed class members would no longer be protected by the named class representative, she promptly moved to intervene...." Id. 432 U.S. at 394, 97 S.Ct. at 2470. The Court thus recognized that the second stewardess had the right to rely on the first to represent her.
The BFA members had no identity of interest with the City in the way that the unnamed class member shared an interest with the named class representative in United Airlines. From the beginning, the Board and the City represented a wide range of occupations in the public sector and had different cost-benefit settlement interests, and incentives, from those of the BFA members. Thus, the mere fact that the Board and the City made a settlement allegedly adverse to the interests of BFA members does not mean that they "changed their position 1517 and became adverse" as the *1517 BFA members alleged in their motion to intervene. Rather, it underscores the variance in interest that existed when the litigation commenced. BFA members, having made an apparently illadvised decision to rely on others to advance their interests, knowing that they could be adversely affected, cannot now be heard to complain.
Under the second factor of the timeliness test, the district court was required to consider "how much prejudice would result [to the existing parties] from the would-be intervenor's failure to request intervention as soon as he knew or should have known of his interest in the case." Stallworth, 558 F.2d at 267. The BFA members knew of their interest in these cases prior to the first trial. They could have moved to intervene then, but chose to wait until after two trials and a long complex negotiation process had taken place. The court's grant of their motion to intervene would plainly have prejudiced the existing parties, since it would have nullified these negotiations with the Board and allowed a pattern of past discriminatory practices to continue.
The third factor of the test required the court to consider whether the BFA members would be prejudiced if denied intervention. Prejudice, as the term is used in this context, originally referred to a consideration of whether the would-be intervenor sought intervention under Fed.R.Civ.P. 24(a) (intervention of right) or rule 24(b) (permissive intervention). Stallworth, 558 F.2d at 265, 266. Rule 24(a) expresses a concern for the extent to which a nonparty risks his interest in the property or transaction involved in the action unless his interest is adequately represented by existing parties. Rule 24(b) expresses a similar concern where the nonparty may have a common question of law or fact determined to his disadvantage. Stallworth expands the rule 24(a) or rule 24(b) inquiry to allow "varying degrees of harm among intervenors of the same type to be taken under consideration." 558 F.2d at 266. However, the discussion in Stallworth still indicates that the thrust of the inquiry must be the extent to which a final judgment in the case may bind the movant even though he is not adequately represented by an existing party. We note that this third factor thus has weight only in the situation where (a) the judge cannot anticipate the extent to which a final judgment will bind the movant, or (b) the judge finds that although the movant has an identical interest with a party, he has a sufficiently greater stake than the party that the party's representation may

be inadequate to protect the movant's interest. Otherwise, where the movant has no identity of interest with a party and thus could not be bound, or where his interest is identical with a party and consequently he is adequately represented, we would find no prejudice sufficient to give weight to the third factor.[13]
We therefore proceed to consider the extent to which it appeared to the district court that the BFA members might be bound by the consent decrees in these cases. We have not yet been called upon to rule on the preclusive effect a consent decree in a Title VII case might have on one subsequently claiming reverse discrimination.[14] Other circuits have faced the issue,[15] but the results of these cases are sufficiently unclear to warrant careful discussion here.
The principles of res judicata and collateral estoppel apply to consent decrees as well as to ordinary judgments 1518 entered by a court.[16] These doctrines prevent the attack *1518 of a prior judgment by parties to the
proceedings or by those with sufficient identity of interests with such parties that their interests are deemed to have been litigated in those proceedings. A final judgment may not, however, bind a nonparty when his interests were not represented; thus, situations can arise where a judgment purporting to affect a nonparty must not be applied to him. There are, additionally, limitations on the extent to which a nonparty can undermine a prior judgment. A nonparty may not reopen the case and relitigate the merits anew; neither may he destroy the validity of the judgment between the parties.
In applying these principles to consent decrees, some courts have raised a specter that any action having a burden, financial or otherwise, on a consent decree is an "impermissible collateral attack" on the decree.[17] We do not follow this path to the extent that it deprives a nonparty to the decree of his day in court to assert the violation of his civil rights. If we refuse to hear a discrimination claim by a person whose interests are not represented in the decree, we create an exception to the limitations we presently place on res judicata and collateral estoppel. We should not undertake such action lightly. Naturally, that the employer undertook the challenged action pursuant to a court-approved consent decree or a valid affirmative action plan (see, e.g. United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979)), would be evidence of nondiscriminatory intent by the employer, and the nonparty could not seek to relitigate the merits or reasonableness of the decree vis-a-vis the parties to the decree.
In their motion to intervene, the BFA members could not have alleged that they had suffered any reverse discrimination as a result of the Board's or the City's implementation of the affirmative action plan prescribed by the consent decrees, because the court had not yet approved those decrees. BFA members could present such a claim now, however, since the decrees have been approved and entered. For example, they could do so by instituting an independent Title VII suit, asserting the specific violations of their rights. The consent decrees would only become an issue if the defendant attempted to justify its conduct by saying that it was mandated by consent decree.[18] If this were the defense, the trial judge would have to determine whether the defendant's action was mandated by the decree and, if so, whether that fact alone would relieve the defendant of liability that would otherwise attach. This is, indeed, a difficult question. One of the prime reasons why a trial judge must proceed with caution and circumspection in approving consent decrees,[19] especially when the interests of all who may 1519 be affected by the decree are not adequately represented, is to avoid this very question. We should not, *1519 however, preclude potentially wronged parties from raising such a question merely because it is perplexing. Since we assume that the forum hearing any future suit by the would-be intervenors alleging discrimination would consider their claims carefully, we hold that the district court was justified in finding no prejudice to the BFA members' rights in denying intervention.[20]
Finally, under the fourth timeliness factor, there are no mitigating circumstances as were present in Stallworth. There, when the defendants sought permission to inform the would-be intervenors of their rights at an earlier point in the litigation, the plaintiffs thwarted the attempt. When the would-be intervenors ultimately did move to intervene, plaintiffs complained that intervention should not be allowed because the motion was untimely. The court found the plaintiffs' problem to be partly of their own making and considered this as a factor in allowing intervention.

Considering the interests under the four-part test articulated in Stallworth, we find ample justification for the trial court's determination that intervention should be denied as untimely. The interests of finality of the litigation, the prejudice intervention would have caused the parties to the consent decrees, and the BFA members' early knowledge that their rights could be affected combined to support the trial judge's exercise of his discretion to deny the intervention here. The possibility that the BFA members might be prejudiced by the consent decrees in these cases does not outweigh these considerations. Because we conclude that the district judge did not abuse his discretion, and because the proper denial of a motion to intervene is not a final judgment, United States v. United States Steel Corp., 548 F.2d 1232, 1236 (5th Cir.1977), we dismiss the BFA members' appeal for lack of jurisdiction. We now consider the Firefighters' appeal from the district court's denial of their application for a preliminary injunction.
II.
The grant or denial of a preliminary injunction is a matter within the discretion of the district court, reviewable only for abuse of discretion or if contrary to some rule of equity. Shatel Corp. v. Mao Ta Lumber and Yacht Corp., 697 F.2d 1352, 1354 (11th Cir.1983). That discretion is guided by four prerequisites: the movant must show (1) a substantial likelihood that he will ultimately prevail on the merits; (2) that he will suffer irreparable injury unless the injunction issues; (3) that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) that the injunction, if issued, would not be adverse to the public interest. Id. at 1354-5. The preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant "clearly carries the burden of persuasion" as to the four prerequisites. Canal Authority v. Callaway, 489 F.2d 567 (5th Cir.1974). "The burden of persuasion in all of the four requirements is at all times upon the plaintiff." Id. at 573. Because the Firefighters did not carry the burden as to irreparable harm and, thus, were not entitled to a preliminary injunction, it is unnecessary to address the other prerequisites to such relief.[21]
1520 *1520 While this court has indicated that it will presume irreparable harm in a Title VII case in which the employee has exhausted his administrative remedies (Middleton-Keirn v. Stone, 655 F.2d 609 (5th Cir.1981)), Firefighters have not pursued such administrative remedies here. Hence, the presumption cannot apply. Moreover, Firefighters have made no showing of possible irreparable injury. Even if they eventually prevail on the merits, they will have suffered no injury that could not adequately be compensated through an award of back pay and seniority points along with compelled future promotion. As the Supreme Court stated in Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 953, 39 L.Ed.2d 166 (1974) (citation omitted) (emphasis in original):
The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.
We find no abuse of discretion in the district court's denial of the preliminary injunction.
The appeal in No. 81-7761 is DISMISSED; in No. 82-7129, the district court is AFFIRMED.
[1] The Ensley Branch of the NAACP is a membership organization of black citizens of Birmingham, Alabama. It, along with three black males who had applied for positions with the City of Birmingham, Alabama, and taken tests administered by the Jefferson County, Alabama, Personnel Board, filed a class action complaint against the City, George Seibels, Jr., then Mayor of Birmingham, the Board, the three members of the Board and the director of the Board. Of these parties, only the plaintiffs, the City, the Mayor (now Richard Arrington), and the Board are parties in this appeal. See infra notes 7 & 8.
[2] John Martin is a black male who applied for a position with the City of Birmingham and was certified by the Jefferson County Personnel Board but rejected by the City. He and six other black applicants for employment with the City, or City employees denied promotion, filed a class action against the defendants named in the suit brought by the Ensley Branch of the NAACP, and three Jefferson County Commissioners who plaintiffs alleged

were responsible for Board activities. Only the plaintiffs, the City, the Mayor, and the Board are parties in this appeal. See infra notes 7 & 8.
[3] The plaintiffs alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2000e-17 (1976 & Supp. V 1981), as amended by the Equal Employment Opportunity Act of 1972 (Pub.L. 92-261, March 24, 1972); 42 U.S.C. § 1981 (1976), providing for equal rights for all persons within the United States to make contracts; 42 U.S.C. § 1983 (1976 & Supp. V 1981), to redress deprivation under color of law of rights, privileges and immunities secured by the equal protection clause of the fourteenth amendment.
[4] The Board and the City share responsibility for public sector hiring in the City in the following manner. The Board administers examinations to applicants for classified City employee positions, adopts rules and regulations governing the operation of the civil service system, and administers the system in Jefferson County. The Board certifies to the appointing authority, the City, the names of three eligible applicants for an open position. The City then chooses an employee. Classified positions include all full-time City jobs except common laborers, judicial officers, elected officials, and a few executive positions.
[5] The United States in its suit added to the claims stated in the other cases violations of the State and Local Fiscal Assistance Act of 1972, as amended, 31 U.S.C. § 1221 (1976), and Omnibus Crime Control and Safe Streets Act of 1968, as amended, former 42 U.S.C. § 3766(c)(1) (1976).
[6] In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
[7] The Board was the only defendant executing the consent decree. The plaintiffs abandoned their claims against the other county defendants. See supra notes 1 and 2.
[8] The City was the only defendant executing the consent decree although the Mayor was referred to in the decree as a party to the settlement.
[9] The consent decrees set forth an extensive scheme of remedies: injunctions against further discrimination on the basis of race or sex and against retaliatory measures by the defendants against members of the plaintiff classes; goals for the recruitment and hiring of blacks and women to correct the effects of past discrimination; and some awards of back pay to class members allegedly discriminated against during a several year period prior to the entry of the decrees.
[10] The Birmingham Firefighters Association 117 is a labor association of firefighters employed by the City. It represents the interests of the majority of the City-employed firefighters and negotiates on their behalf with the City.
[11] The white male firefighters, none of whom were in the BFA members group, also named as defendants Richard Arrington, Mayor of the City, the members of the Board, and the Director of the Board. None of these additional defendants are parties in this appeal.
[12] Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir.1977) sets forth our rule:
Under this circuit's "anomalous rule" 7 governing the appealability of orders denying intervention, we have provisional jurisdiction to determine whether the district court erroneously concluded that the appellants were not entitled to intervene of right under section (a) of Rule 24, or clearly abused its discretion in denying their application for permissive intervention under section (b) of Rule 24. If we find that the district court's disposition of the petitions was correct, or within the ambit of its discretion, then our jurisdiction evaporates because the proper denial of leave to intervene is not a final decision, and we must dismiss these appeals for want of jurisdiction. But if we find that the district court was mistaken or clearly abused its discretion, then we retain jurisdiction and must reverse. In either event, we are authorized to decide whether the petitions for leave to intervene were properly denied.
(Citations omitted.) Footnote 7 in the above statement cites criticism of this rule, advocating a simple review of the denial of intervention as a final order. 7A C. Wright & A. Miller, Federal Practice and Procedure § 1923 (1972).

[13] The burdens of cost and delay the would-be intervenor would suffer if required to bring a future lawsuit do not constitute prejudice under the third Stallworth factor. He would have those burdens at any time he sought to enforce his rights in court. He is merely getting a free ride if the court allows intervention. Naturally, the court can order the intervenor to pay his share of costs if it grants the motion, so the financial "gain" of intervening is by no means certain.
[14] The opinions in Thaggard v. City of Jackson, 618 F.2d 272 (5th Cir.1980), and United States v. City of Miami, 614 F.2d 1322 (5th Cir.1980), which dealt with these issues, were both later vacated on other grounds.
[15] See infra note 17.
[16] This discussion assumes that consent decrees and judgments are equivalent for res judicata and collateral estoppel purposes. Some courts give consent decrees such preclusive effects; others do not. For a discussion of the rationales for giving consent decrees less preclusive effect than an ordinary judgment, namely, that the merits are not fully litigated, see 1B Moore on Federal Practice § 444(3) (2d ed. (1983)).
[17] This idea arose from a spate of cases finding, in specific circumstances, that the plaintiff's collateral attack on the prior judgment was impermissible. See, e.g., Black and White Children of the Pontiac School System v. School Dist., 464 F.2d 1030 (6th Cir.1972) (stating that a suit seeking injunction against enforcement of a busing order on the ground of unforeseen difficulty should have been brought as a suit to modify the order in the original court.); Prate v. Freedman, 430 F.Supp. 1373 (W.D.N.Y.) aff'd 573 F.2d 1294 (2d Cir.1977) (refusing to allow an attack on the merits of the judgment); Oburn v. Shapp, 70 F.R.D. 549 (E.D.Pa.) aff'd 546 F.2d 417 (3d Cir.1976) cert. denied 430 U.S. 968, 97 S.Ct. 1650, 52 L.Ed.2d 359 (1977). At some point, these cases began to be cited for the proposition that all collateral burdens on a consent decree are per se impermissible. See, e.g., Dennison v. City of Los Angeles, 658 F.2d 694 (9th Cir.1981).
[18] It should be clear from this discussion that it is not necessary for the BFA members to make a frontal attack on the validity of the decrees between the parties in order to assert a discrimination claim against their employers.
[19] The judge must be cautious in approving consent decrees only to the extent that he should be aware the decree is more likely to be of little effect the fewer parties there are in the suit to be bound. The consent decree by definition only binds those who consent (either expressly or impliedly).
[20] For a discussion paralleling this analysis, see Ashley v. City of Jackson, ___ U.S. ___, 104 S.Ct. 255, 78 L.Ed.2d 241 (1983) (Rehnquist, J. dissenting from denial of certiorari).
[21] The Firefighters argue that we should be deciding their appeal on the merits because "the validity of the consent decrees is a legal question, as is the question of whether a collateral attack [on the consent decrees] will lie. The only conclusion of law entered by the district court on these issues was a finding that the attack is `without merit.'" The only appealable judgment that has been entered in the case, however, is the denial of the preliminary injunction. While we may have the power in certain circumstances to consider a preliminary injunction appeal as if on the merits, Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430, 435 n. 6 (5th Cir.1981), here, as in Piedmont, there was no agreement by the parties to consolidate this appeal with an appeal on the merits; indeed, appellants have not even expressly terminated their presentation of evidence. The judge considered his order a decision only on the preliminary injunction motion; it states that beyond the injunction, "the case is continued for further development and potential trial." Therefore we decline to reach the merits.
Firefighters, in their attempt to have us decide the merits of their case, point to cases in which the appellate court overturned a trial court's decision as to a preliminary injunction where the denial was based entirely on an erroneous view of the law. Whether the court's conclusion of law as to success on the merits is correct or not, we cannot review it in this case because Firefighters have not carried their burden to show irreparable harm. See infra, slip op. at 792-793. In this context, any pronouncement on Firefighters' chances of success on the merits would be gratuitous.

Obviously, where a preliminary injunction has been granted based on an error of law even as to only one of the four prerequisites, the injunction must fall because the movant has not met his burden of persuasion on all four counts. Where the injunction is denied, the error of law would have to extend to every prerequisite on which the trial court found against the movant to warrant reversal. Firefighters should note that the trial judge's conclusions of law as well as his findings of fact at the preliminary injunction stage are not binding on him in his determination of the merits. University of Texas v. Camenisch, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981).
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 Birmingham Fire Fighters Ass’n 117 v. Jefferson County, 54 Fed.Appx. 693 (Table) (2002)

54 Fed.Appx. 693 (Table) (The decision of the Court is referenced in an Eleventh Circuit Table of Denials of Rehearing En
Banc appearing in the Federal Reporter.) United States Court of Appeals, Eleventh Circuit.
Birmingham Fire Fighters Association 117, Wilks Class v.
Jefferson County, ben L. Erdreich, Thomas W. Gloor, Chriss H. Doss, Jefferson County Personnel
Board
NO. 01-10544 | November 21, 2002
N.D.Ala., 290 F.3d 1250

Opinion

	  

DENIALS OF REHEARING EN BANC.

1

 
 290 F.3d 1250 (2002)
BIRMINGHAM FIRE FIGHTERS ASSOCIATION 117, et al., Plaintiffs, Wilks Class, Plaintiffs-Appellants, v.
JEFFERSON COUNTY, Ben L. Erdreich, Thomas W. Gloor, Chriss H. Doss, Jefferson County Personnel Board, et al., Defendants-Appellees,
No. 01-10544.
United States Court of Appeals, Eleventh Circuit.
May 6, 2002.
1251*1251 Raymond P. Fitzpatrick, Jr., Gary L. Brown, Fitzpatrick, Cooper & Clark, LLP, Birmingham, AL, for Plaintiffs-Appellants.
Albert L. Jordan, Wallace, Jordan, Ratliff & Brandt, L.L.C., Charlie D. Waldrep, 1252*1252Virginia Michelle Obradovic, Gorham & Waldrep, P.C., Scott B. Smith, Anne R. Yuengert, Bradley, Arant, Rose & White, Birmingham, AL, Andrea Picciotti-Bayer, Rebecca K. Troth, Dept, of Justice/ App. Section/ Civ. Rights Div., Washington, DC, Rowan D. Wilson, Cravath, Swaine & Moore, New York City, for Defendants-Appellees.
Before CARNES and FAY, Circuit Judges, and MARTIN[*], District Judge.
CARNES, Circuit Judge:
This appeal is another installment in the long-running story involving the consent decrees governing the hiring and promotion procedures of the City of Birmingham. The first quarter of a century of the litigation is summarized in Ensley Branch N.A.A.C.P. v. Seibels, 31 F.3d 1548, 1552 (11th Cir.1994) (Ensley II). See alsoBirmingham Fire Fighters Ass'n 117 v. Jefferson County, 280 F.3d 1289 (11th Cir.2002)(our most recent opinion stemming from the case). Rather than fill up pages repeating what we have said before, we will assume familiarity with the background set out in our earlier opinions, especially the 1994 Ensley II one, and focus here on the more recent events that relate to this appeal.
I. BACKGROUND
Our 1994 decision required the district court to modify the original decree so that the City would be ordered to implement "valid job selection procedures forthwith." Ensley II, 31 F.3d

at 1552. (The decision required the same of the Personnel Board insofar as its job selection procedures were concerned, see id., but the Board and the decree aimed at it is not involved in this appeal, so we will confine our discussion to the City decree.) The result on remand was a debate over exactly how the decree should be modified to comply with our decision. The Wilks class (consisting of non-black males) moved the district court to modify the decree to require the City to conduct job validation studies for all of its selection procedures, even those for which no adverse impact was found. The United States, the City, and the Martin/Bryant class (consisting of black persons and non-black females), however, took the position that our 1994 decision required that the City be ordered to validate as job related only those procedures which have an adverse impact.
The district court decided that the United States, the City, and the Martin/Bryant class were right and the Wilks class was wrong about what our Ensley II decision required. In December of 1995, the district court issued an order modifying the City decree in response to our decision. One of the key terms of that modification order, and the only one relevant to this appeal, required the City to put in place job selection procedures that "either: (1) have no adverse impact on the basis of race or sex ...; or (2) be job related for the job classification(s) in question and consistent with business necessity, in accordance with Title VII...."[1]
1253*1253 No one appealed that or any other aspect of the 1995 modification order. Instead, as required by another part of the order, the parties exchanged information so that compliance with the decree as modified could be monitored. By agreement of the parties, several hundred job classifications were dropped from further consideration under the decrees for one reason or another. From 1996 until May of 1998, the only filings relevant to this appeal were those of both the Wilks class and the Martin/Bryant class, consisting of reports filed in 1996 identifying jobs with selection procedures they contended had an adverse impact based on race or sex. Then, in May of 1998, the Wilks class filed a motion seeking to have the City held in contempt on the ground that its promotional practices relating to the police department violated the modified decree. After conducting an evidentiary hearing, the district court found that no adverse impact had been shown from the promotion procedures for any positions in the police department except those for police captain. The district court ordered the City to validate the promotion selection procedures for that one position.
Two years later in November of 2000 — nearly five years after the 1995 modification order had been entered — the Wilks class filed a motion asking the district court to modify the decree further so that it would require the City to validate the selection procedures governing hiring and promotion for all positions, not just those procedures identified as

having disparate impact. The Wilks class presented no evidence that those job selection procedures which had not been found to have an adverse impact were anything other than race-neutral, although that is what the class suspects. As it explained to the district court, "[s]imply requiring the avoidance of adverse impact is tantamount to an order to continue a program of racial balancing." The Wilks Class stated that "the experience of the past five years confirms that the 1995 City Order is inadequate to meet the Eleventh Circuit's finding that new race-neutral City selection procedures are necessary."
In December of 2000, the district court summarily denied the Wilks' Class motion to modify the City decree any further. It is that order the class has appealed.
II. DISCUSSION
The opening, and as it turns out closing, issue in this appeal is one of appellate jurisdiction. We have jurisdiction under 28 U.S.C. § 1292(a)(1) over orders "granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions...." For these purposes, consent decrees are injunctions. SeeUnited States v. City of Miami, 664 F.2d 435, 445 (5th Cir.1981). If one of the parties is the United States, as is the case here, all of the parties have sixty days in which to file an appeal of an order modifying or refusing to modify a consent decree or other type of injunction. See Fed.R.App.P. 4(a)(1)(B).
If a party whose motion for an injunction, or to dissolve or modify an injunction, is denied fails to file an appeal within the prescribed time-frame, it may not file a successive motion requesting the same relief "simply to revisit the initial injunction decision or resurrect an expired time for appeal." 16 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3924.2 (2d ed.1996). Our decision on that point came in Winfield v. St. Joe Paper Co., 663 F.2d 1031, 1032 (11th Cir.1981), where we held that we lacked jurisdiction over an appeal of an interlocutory order denying a 1254*1254 motion for a preliminary injunction, because the motion was identical to one that the district court had denied two years earlier and from which no appeal had been taken. The latest motion we characterized as simply "a refiling of a motion which had been denied two years earlier," and we noted there was a "total absence of additional factual submissions to the record or even allegations of changed circumstances since the previous district court ruling." Id. at 1032. We explained that finding appellate jurisdiction in those circumstances circumvents the policy of Rule 4 of the Federal Rules of Appellate Procedure, which requires in the interests of efficiency and finality that a timely appeal be filed. See id.

The same is true here. The issue of whether the City should be permitted to use job selection procedures that have not been job-validated, if those procedures do not have an adverse impact on race or sex, was raised and fought out by the parties after our 1994 remand. That issue was decided by the district court, and its decision about the issue is embodied in the key terms of the court's December 1995 modification order. The Wilks Class could have had the decision of that issue reviewed by appealing the modification order then. It did not. A party cannot undo its failure to timely appeal an earlier order by the simple expedient of asking the district court to undo that order years later. The time limits of Rule 4 have more steel in them than that.
It is said that there is an exception to the rule against appealing from a successive motion if there are changed circumstances, new evidence, or a change in the law.See 16 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3924.2 (2d ed.1996). We do not doubt that, provided the new circumstances, evidence, or law is important enough that the latest motion is a viable being in its own right instead of merely a re-packaging in new garb of the corpse of an old motion in an attempt to resurrect it. To protect the integrity of the rule that prohibits using successive motions to extend the time for appeal, at a minimum there should be a close nexus between the change in circumstances, evidence, or law and the issues raised on appeal. The exception should be limited so that any appeal from the failure to modify further a decree or injunction starts with the proposition that the original, unappealed order was correct when entered. Only if the appeal contends that changes over time mean the district court abused its discretion by failing to modify an order that was not an abuse of discretion when entered should the appeal be permitted, and it should be permitted only to the extent necessary to consider whether the changed circumstances, evidence, or law requires modification of the order which is presumed to have been correct when issued. By restricting the exception to those tight confines, we can ensure that the claim of intervening change is not used as a ruse to circumvent the time requirements for filing an appeal.
The exception, as properly confined, does not apply in this case. The thrust of the Wilks Class' contention in this appeal is that the district court's 1995 modification order misinterpreted our 1994 Ensley II decision. The class argues that our decision mandated that each selection procedure be shown to be job related, while the district court's 1995 modification order requires that only those procedures having an adverse impact be job related. The meaning of our decision is not subject to evidence, so there is no new evidence on the issue. Nor has there been any material change in circumstances or new legal developments relating to the issue. If the district court's 1995 modification order is wrong, it was wrong from the get go, and1255*1255 the Wilks Class should have filed a notice of appeal within sixty days after that order was entered six years ago.

The Wilks Class points to the fact that since the 1995 order was entered the City has not created valid selection procedures for every job classification, and argues that delay is a changed circumstance which justifies excepting this appeal from the general rule and relieving the class from its failure to appeal the 1995 order. That argument simply ignores the central and undisputed point that the 1995 order did not require the City to validate all of its job selection procedures, only those that have an adverse impact.
The Wilks Class also seems to contend that the City's delay in complying with the 1995 order by adopting job selection procedures that either have no adverse impact or are job related is a circumstance that requires further modification of the order to restrict the City to just one of those two alternative means of compliance. If the class is arguing that, its argument is nonsensical because the premises point away from the conclusion. It makes no sense to say that delay in compliance requires a reduction in the number of ways in which compliance can be shown. If it has taken the City an inordinately long time to comply with the 1995 order, restricting the means of compliance will not speed up the process but just the contrary. The Wilks Class could not win by arguing that delay in compliance requires making compliance more difficult, and it does not really advance that as an argument on the merits. Instead, the class offers that suggestion of changed circumstance — years have passed and the City has not complied — to excuse the lateness of the appeal, and then shifts on the merits to the argument that the 1995 order has been wrong all along in permitting the City two avenues of compliance instead of just one. There is no logical nexus between the claimed change, which is the delay in complying through either of two avenues, and the argument that it was legally wrong to permit one of those avenues to begin with. That argument could just as easily and just as forcefully have been raised in an appeal filed within sixty days after entry of the 1995 order.
Finally, we come to the Wilks Class' last and most unusual reason for not timely appealing the 1995 order. Counsel for the class says that in view of all the time and effort that our 1994 Ensley II decision took, and given our heavy docket, he was reluctant to bring us another appeal in the same case so soon after the first one. He did not immediately seek review of the 1995 order, he says, in part because he did not want to burden us with another appeal on the heels of the earlier burdensome one. We are touched, but not moved. Rule 4's requirements for timely filing an appeal admit of no exception for kindness to the judiciary. Even if there were such an exception, it would not apply here. During the years since the 1995 order was entered, the district court and the parties have labored to implement it secure in the knowledge that the key terms of the order were not in jeopardy of being overturned on appeal. It would not be kind to the district court or to the other parties in this case to upset their justifiable reliance, which was born of the failure of the Wilks Class to appeal the order and was nurtured by the clear requirements of Rule 4.

III. CONCLUSION
The appeal is DISMISSED for lack of jurisdiction.
[*] Honorable Beverly B. Martin, U.S. District Judge for the Northern District of Georgia, sitting by designation.
[1] The term "job related" means job related and business necessitated, which requires — where tests are used to rank job applicants according to scores and to select only the highest test scorers for job placement — a showing of a statistically significant correlation between applicants' test scores and their later job performance. Ensley II, 31 F.3d at 1554-55; Ensley Branch, N.A.A.C.P. v. Seibels, 616 F.2d 812, 816-22 (5th Cir.1980) (Ensley I). "`Validation' is the process of determining whether a selection device is sufficiently job-related to comply with the requirements of Title VII."Ensley I, 616 F.2d at 816 n. 11.

 
 280 F.3d 1289 (2002)
BIRMINGHAM FIRE FIGHTERS ASSOCIATION 117, et al., Plaintiffs, Wilks Class, Plaintiff-Appellant, v.
JEFFERSON COUNTY, Ben L. Erdreich, Thomas W. Gloor, Chriss H. Doss, Jefferson County Personnel Board, et al., Defendants-Appellees.
No. 01-14262.
United States Court of Appeals, Eleventh Circuit.
January 7, 2002.
1290*1290 Gary L. Brown, Raymond P. Fitzpatrick, Jr., Fitzpatrick, Cooper & Clark, LLP, Birmingham, AL, for Plaintiff-Appellant.
Albert L. Jordan, Wallace Jordan, Ratliff & Brandt, L.L.C., Birmingham, AL, for Jefferson County.
Anne R. Yuengert, Scott B. Smith, Bradley, Arant, Rose & White, Shirley I. McCarty, Birmingham, AL, Andrea M. Picciotti-Bayer, U.S. Dept. of Justice, Washington, DC, for Defendants-Appellees.
Before ANDERSON, Chief Judge, and DUBINA and CARNES, Circuit Judges.
CARNES, Circuit Judge:
This appeal is the latest round in the protracted litigation over the procedures used by the Jefferson County Personnel Board and the City of Birmingham to hire and promote City employees — litigation that would have recently celebrated its 25th birthday, if such a thing were cause for celebration.
The original suit was brought by black plaintiffs who claimed that the City's hiring practices discriminated against them. In 1981, the district court entered two consent decrees, one between the City and the original plaintiffs ("City consent decree"), and the other between the Board and the original plaintiffs. Then the Wilks class, a class of all present and future male, nonblack city employees, attempted to collaterally challenge the consent decrees on the ground that they unlawfully discriminated on the basis of race in favor 1291*1291 of blacks. Ultimately, the Supreme Court decided that the Wilks class was entitled to bring its collateral challenge. Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989).

After that decision, the Wilks class was allowed to intervene in the underlying litigation, and the consent decrees were modified.
In 1995, the decrees were modified again pursuant to instructions given by this Court in Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d 1548, 1552, 1583-84 (11th Cir.1994). According to our instructions, the City consent decree was modified to require the City to remove all race- and gender-conscious selection procedures from its employment policies. Ensley Branch, N.A.A.C.P. v. Seibels, Nos. 74-Z-12-S, 74-Z-17-S, 75-P-0666-S (N.D.Ala. Dec. 20, 1995) ("1995 Order Modifying Consent Decree"). After the remand in Ensley Branch, the parties clarified their differences, narrowing to fourteen the number of positions that some or all parties contended were being filled by selection procedures that had an adverse impact.[1] The City decree was modified yet again in December 2000 to direct the City to provide data as to the impact of its selection procedures upon hiring for those jobs.[2] Ensley Branch, N.A.A.C.P. v. Seibels, Nos. CV-74-12-S, CV-74-S-17-S, CV75-S-666-S (N.D.Ala. Dec. 18, 2000) ("2000 Order Modifying Consent Decree"). At that same time, it was extended until June 2002. Id.
The City and the Wilks class each had experts analyze the data provided pursuant to the December 2000 modification of the consent decree. When the dust had settled, both sides agreed that the selection procedures for the position of Fire Lieutenant do not have an adverse impact. They disagreed, however, as to whether the procedures for seven of the other positions have an adverse impact — the Wilks class said they do, while the City said they do not.[3] The City then asked the district court to determine whether the City's selection procedures for the disputed positions have an adverse impact on race and gender. The City contended that the Wilks class could not show adverse impact,[4] while the Wilks class contended it did not have to show adverse impact because the 1995 Order Modifying Consent Decree put on the City the burden of showing the absence of adverse impact. To support its contention, the Wilks class relied on paragraph 8 of the 1995 Order Modifying Consent Decree, which states:
It shall be the City's responsibility to ensure that each selection procedure required or used by the City shall either: (1) have no adverse impact on the basis of race or sex as defined by the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607 et seq. (1994),1292*1292 (hereinafter "the Uniform Guidelines"); or (2) be job related for the job classification(s) in question and consistent with business necessity, in accordance with Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Uniform Guidelines and other applicable Federal law.
Mem. Op. at 9 (quoting 1995 Order Modifying Consent Decree (footnote omitted)).

After a hearing, the district court determined that the Wilks class, as the complaining party, had the burden of persuasion on the issue of adverse impact, stating that "despite the wording of that particular paragraph or the interpretation assigned to it, statutory and judicial authorities relating to employment discrimination place the burden of persuasion squarely on the party complaining that a selection procedure has adverse impact, i.e., the Wilks class." Mem. Op. at 10. Further, the district court, having considered the expert opinions presented by both sides, found that the Wilks class had failed to meet its burden, and therefore it ruled that the City had satisfied the requirements of paragraph 8 of the 1995 Order Modifying Consent Decree as to six of the challenged job classifications and as to the challenged post-job screening procedures of another position.[5] Id. at 35-41.
The Wilks class has appealed that ruling. In response, the City has moved to dismiss the appeal, asserting that the district court order is an interlocutory decision that does not qualify for appeal under 28 U.S.C. § 1292(a)(1). Section 1292(a)(1) allows appeal from "[i]nterlocutory orders of the district courts of the United States ... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions...." The City argues that the district court's order merely interpreted paragraph 8 of the existing 1995 Order Modifying Consent Decree, and therefore that it does not fall within the purview of § 1292(a)(1). The Wilks class responds that the district court's interpretation of paragraph 8 runs so contrary to that paragraph's plain language that it actually constitutes a modification of the decree, and thus it is the proper subject of an interlocutory appeal under the statute.
In order to decide whether the district court's order is ripe for appeal under § 1292(a)(1), a reviewing court must first examine "whether there [is] an underlying decree of an injunctive character," and then decide whether the ruling appealed from has "changed the underlying decree in a jurisdictionally significant way." Sierra Club v. Marsh, 907 F.2d 210, 212 (1st Cir.1990). In this case, there is no dispute that there is an underlying decree of an injunctive character — the 1995 Order Modifying Consent Decree is that. The question is whether the order now being appealed by the Wilks class — the 2000 Order Modifying Consent Decree — has altered the decree in a jurisdictionally significant way.
Of course, we are not governed by the district court's own characterization of the order as an "interpretation" or "clarification," as distinguished from a "modification."See Gautreaux v. Chicago Hous. Auth., 178 F.3d 951, 956-57 (7th Cir.1999) ("This court has repeatedly held that it will look beyond labels such as `clarification' or `modification' to consider 1293*1293 the actual effect of the order."). Instead, we make our own determination, and in doing so we take a "functional approach, looking not to the form of the district court's order but to its actual effect." Marsh, 907 F.2d at 213. Functionally, an order

modifies the original decree when it actually changes the legal relationship of the parties to the decree. Gautreaux, 178 F.3d at 957. Our underlying task, then, is to decide whether the order has changed the legal relationship of the parties. Their legal relationship does not change merely because the district court finds that one party has satisfied some of the preexisting requirements of the decree; instead, to effect a change in the legal relationship of the parties, the order must "change the command of the earlier injunction, relax its prohibitions, or release any respondent from its grip." Marsh, 907 F.2d at 213.
In attempting to discern interpretation from modification, however, we should not analyze the injunction and the order in detail. To plunge into the details would collapse the jurisdictional inquiry into a decision on the merits, thwarting the purpose of § 1292(a)(1). The statute is deliberately careful in limiting the availability of interlocutory review of orders concerning injunctions. And with good reason. The Supreme Court, this Court, and our sister circuits all have warned of the dangers of piecemeal appeals and have emphasized that, to guard against this danger, § 1292(a)(1) must be construed narrowly so as to limit the availability of interlocutory appeals in cases involving injunctions. See Switzerland Cheese Ass'n v. E. Horne's Market, Inc., 385 U.S. 23, 24, 87 S.Ct. 193, 195, 17 L.Ed.2d 23 (1966) ("[W]e approach this statute somewhat gingerly lest a floodgate be opened that brings into the exception many pretrial orders."); United States v. City of Hialeah, 140 F.3d 968, 973 (11th Cir.1998) ("Congress did not intend for the injunction exception to open the floodgates to piecemeal appeals."); Marsh, 907 F.2d at 214 (allowing "an interlocutory appeal at every succeeding step after an injunction had been granted" would be "opening Pandora's jar"). If we were to answer the jurisdictional question — whether the district court's order "modified" the original injunction — by analyzing in detail the language of the injunction and how it is affected by the order, we would be letting piecemeal appeals, cloaked in the guise of jurisdictional inquiries, come in through the back door.
Therefore, in deciding whether the district court's order has modified the injunction, our inquiry is circumscribed. We ask not whether the district court's reading of the consent decree is in error, but whether it is a gross misinterpretation of the decree's original command. In adopting this standard in order to constrain our inquiry, we follow the lead of the Seventh Circuit, as set out in Bogard v. Wright, 159 F.3d 1060 (7th Cir.1998), and Gautreaux, 178 F.3d 951. As that circuit explained, "an analysis [that] aim[s] to uncover subtle rather than blatant misinterpretations ... is ... too searching for a preliminary jurisdictional inquiry." Id. at 958. Limiting our inquiry to a search for only blatant misinterpretations "blocks the statute's `modification' provision from serving as a back door to appellate review of every administrative clarification the district court makes, while it simultaneously retains this court's authority to look behind labels when those labels obviously mischaracterize the order." Id. at 957. We agree with that approach and

accordingly hold that a district court's interpretation of an injunction modifies it for interlocutory appellate jurisdiction purposes only when that interpretation is blatantly or obviously wrong. To clear the jurisdictional hurdle, the misinterpretation must be such that it leaps from the page.
1294*1294 Applying the test to the case at hand, it is evident that the order the Wilks class seeks to appeal did not "modify" the injunction, and thus we have no jurisdiction under § 1292(a)(1) to hear this interlocutory appeal. The Wilks class argues that paragraph 8, with its statement that "[i]t shall be the City's responsibility to ensure" its selection procedures do not have an adverse impact, places on the City the evidentiary burden of showing the absence of adverse impact. That reading of paragraph 8 may be correct; it is certainly plausible. But the district court's different reading of that paragraph is plausible as well, and certainly not so implausible as to amount to a blatant misinterpretation of the consent decree. That the decree requires the City to shoulder the responsibility of ensuring its procedures are fair does not necessarily mean that, when the Wilks class claims that responsibility has not been carried out, the City must prove that it has. As the district court pointed out, the general rule in discrimination cases is that the party challenging a procedure or practice has the burden of showing adverse impact. Paragraph 8 of the consent decree conceivably may have shifted that burden, but it does not unmistakably express an intention to do so. The error in the district court's interpretation, if any, does not leap from the page.
It is important to stress that we are not holding that the Wilks class's interpretation of paragraph 8 is incorrect. The district court's interpretation might be reversed if the issue were before us on appeal from a final judgment, but it is not. What we hold, and all that we hold, is that the district court's interpretation of the key language does not so blatantly misinterpret the decree as to "modify" it and thereby create interlocutory appellate jurisdiction under § 1292(a)(1). Compare Bogard, 159 F.3d at 1064-65 (7th Cir. 1999) (holding that an order extending the term of a monitor appointed pursuant to an injunction did not "modify" the original injunction), and Marsh, 907 F.2d at 212, 213 (holding that an injunction was not "modified" by a district court's order finding the party subject to the injunction had satisfied two of its three conditions); with United States v. Bd. of Sch. Comm'rs, 128 F.3d 507, 509 (7th Cir.1997) (holding that an order subjecting an entire class of previously unincluded students to the dictates of the underlying injunction is a modification, not an interpretation).
Finally, we find it worthwhile to note that this case epitomizes the wisdom of the policy animating the decisions that instruct us to narrowly construe § 1292(a)(1). There are twelve positions covered by the injunction, meaning that there is the potential for twelve separate

interlocutory appeals — one each time the district court finds, with respect to a given position, that the City has or has not complied with the requirements of paragraph 8 of the decree.[6] Allowing an interlocutory appeal 1295*1295every time the district court approves selection procedures for a position would invite inefficiency, redundancy, and delay. The prospect of further delay is especially undesirable in a case already older than the average college student.
The district court order did not blatantly misinterpret the 1995 consent decree. Therefore, we have no jurisdiction under 28 U.S.C. § 1292(a)(1) to review the order at this time. Accordingly, the appeal is dismissed for lack of jurisdiction.
DISMISSED.
[1] Two of those positions, Labor Supervisor and Zoo Keeper, have been eliminated in the interim and are therefore no longer subjects of the litigation.
[2] On May 20, 1998, the Police Captain classification became subject to a different schedule, and it is therefore no longer at issue in this litigation.
[3] They disagreed as to whether the selection procedures for six positions — Fire Apparatus Operator, Fire Captain, Fire Battalion Chief, Engineering Aide, Gardener, and Heavy Equipment Operator — have an adverse impact based on race, and as to whether the procedures for one of those — Heavy Equipment Operator — have an adverse impact based on gender. They also disagreed about whether the post-job task screening process for one other position, Firefighter, has an adverse impact on race and gender.
[4] The City was joined in this position by the other parties in the litigation: the United States, the Martin (original) plaintiffs, and the Bryant intervenors.
[5] The court found the City had satisfied the requirements of paragraph 8 as to the six positions — Fire Apparatus Operator, Fire Captain, Fire Battalion Chief, Engineering Aide, Gardener, and Heavy Equipment Operator — and in addition found the City had satisfied those requirements as to the post-job screening portion of its selection procedures for the position of Firefighter. Id. at 40-41.
[6] The Fire Lieutenant position has already been vetted by both parties, and in the challenged order the procedures for six other positions, and part of the procedures for one more, have been cleared by the district court, so only the procedures for four positions and part of the procedures for one more are left to be cleared. If the district court separately approves pre- and post-job selection procedures for each position, then two interlocutory appeals for every position would be possible. Additionally, there is the possibility that the procedures for each position might separately be cleared for adverse gender impact and adverse racial impact, meaning that four interlocutory appeals might arise out of the process of approving the procedures for one position. Four appeals for each of the four remaining uncleared positions, plus two for the pre-job selection procedures not yet cleared for the position of Firefighter, would mean 18 interlocutory appeals in addition to the one we are considering today.

 
 60 F.3d 720 (1994)
In re BIRMINGHAM REVERSE DISCRIMINATION EMPLOYMENT LITIGATION
James A. BENNETT, Plaintiff, Floyd E. Click; James D. Morgan; Joel Alan Day; Gene E. Northington; Vincent Joseph Vella; and Lane L. Denard, Plaintiffs-Appellants, Cross
Appellees, v.
Richard ARRINGTON, Jr., as Mayor of the City of Birmingham; City of Birmingham; James B. Johnson; Henry P. Johnston; and Hiram Y. McKinney, as Members of the Jefferson County Personnel Board;
Joseph W. Curtin, as Director of the Jefferson County Personnel Board; and Jefferson County Personnel Board, Defendants-Appellees,
John W. Martin, Major Florence, Ida McGruder, Sam Coar, Eugene Thomas, Charles Howard, Defendants-Intervenors-Appellees-Cross
Appellants, United States of America, Defendant-Intervenor-Appellee. BIRMINGHAM ASSOCIATION OF CITY EMPLOYEES, an unincorporated labor association, and Kenneth O. Ware, Plaintiffs-Appellants, Cross
Appellees, Gerald L. Johnson; Phillip H. Whitley; David H. Woodall; Danny R.
Laughlin; Marshall G. Whitson; Dudley L. Greenway, Plaintiffs, v.
Richard ARRINGTON, Jr., as Mayor of the City of Birmingham; City of Birmingham; James B. Johnson; Henry P. Johnston; and Hiram Y. McKinney, as Members of the Jefferson County Personnel Board;
Joseph W. Curtin, as Director of the Jefferson County Personnel Board; Jefferson County Personnel Board; and the United States of America, Defendants-Appellees, John W. Martin, Major Florence, Ida McGruder, Sam Coar, Wanda
Thomas, Eugene Thomas and Charles Howard, Defendants-IntervenorsAppellees-Cross Appellants.
Robert K. WILKS; Carlice E. Payne; Ronnie J. Chambers; John E. Garvich, Jr., James W. Henson; Robert Bruce Millsap, Plaintiffs-
Appellants, Cross Appellees, United States of America, Plaintiff-Intervenor, Howard E. Pope, Charles E. Carlin, Plaintiffs-Intervenors-Appellants,
v.

Henry P. JOHNSTON, Defendant, John W. Martin, Major Florence, Ida McGruder, Sam Coar, Eugene Thomas and Charles Howard, Defendants-Intervenors-Appellees-Cross
Appellants, Wanda Thomas, Defendant-Intervenor.
No. 92-6778.
United States Court of Appeals, Eleventh Circuit.
December 14, 1994.
Raymond P. Fitzpatrick, Jr., Whiteside & Fitzpatrick, Birmingham, AL, for appellants.
Robert D. Joffe, Cravath, Swaine & Moore, New York City, for Martin, Florence, McGruder, Coar, Thomas & Howard.
James P. Alexander, Anne R. Yuengert, James Walker May, Bradley, Arant, Rose & White, Birmingham, AL, for Arrington & City of Birmingham.
Sharon R. Vinick, Richard T. Seymour, Lawyers' Committee For Civil Rights, Washington, DC, for Martin, et al.
Rebecca K. Troth, Dept. of Justice, Appellate Section, Civil Rights Div., Washington, DC, for U.S. as amicus curiae.
LaVeeda Morgan Battle, Gorham & Waldrep, P.C., Birmingham, AL, for Personnel Bd. of Jefferson County, AL & Bd. Members.
Before TJOFLAT, Chief Judge, KRAVITCH, HATCHETT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
The Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), the Suggestion(s) of Rehearing En Banc are DENIED.
HATCHETT, Circuit Judge, dissenting:

I respectfully dissent from the court's failure to grant en banc rehearing for this case. This case raises important issues meriting en banc review. The en banc worthy issues that the court has declined to rehear include:
(1) What factual changes must occur before a district court is justified in modifying a consent decree involving racial discrimination, where the discrimination results from the effects of past discrimination?
(2) Should consent decrees ending litigation be treated the same as voluntary, race conscious, local government affirmative action programs?
(3) What weight must a district court give to statistical disparities between the proportion of minorities a public employer hires and the proportion of minorities willing and able to do the work?
(4) To what extent are long term goals allowable in consent decrees between public bodies and minority citizens?
(5) Who are "innocents" in terms of a consent decree that provides a remedy for past and present racial discrimination?
722*722 (6) Do "innocents" have standing to attack the provisions of a consent decree involving remedies for public body racial discrimination?
(7) May a consent decree in a public body lawsuit set an annual affirmative action goal greater than the proportion of minorities in the qualified labor pool?
(8) May intervenors require the plaintiffs to show, five or ten years after a consent decree has been entered, that the plaintiff class still suffers the effects of racial discrimination?
(9) May intervenors challenge a consent decree ordering affirmative action for minorities, five to ten years later, based upon current law?
To fully resolve these issues I believe en banc review is necessary. In addition, I believe the court erred in the following respects:
1. The record evidence contradicts the panel's characterization of the fifty percent annual goals as a rigid, inflexible quota.

The panel ignored both the flexibility built into the consent decree and the City's actual promotional practices under the decree. First, the decree does not require that any positions be set aside for black or white employees. Instead, for the position of fire lieutenant, the decree provides that subject to the availability of qualified black applicants, the City shall establish and attempt to achieve an annual goal of making promotional appointments to vacancies in permanent full-time positions in the classified service of black applicants at the rate of fifty percent. That goal was eliminated once the long-term goal of the decree was met: that is, once twenty-eight percent of the fire lieutenants were black. While the goal was in place, the decree provided that it did not require the City to hire unnecessary personnel or to hire, transfer, or promote a person who was not qualified. The long-term goal has been met. The panel should not have considered the long-term goal.
Second, the implementation of the decree did not rigidly result in alternate promotions. Perhaps the clearest indication of operation of the interim goal is that during the operation of the consent decrees, approximately sixty percent of the fire lieutenant promotions were awarded to white employees while forty percent were awarded to black employees. This fact confirms that the goals were not inflexible and rigid quotas.
2. In concluding that the city's consent decree unnecessary trammels the rights of white firefighters in violation of Title VII, the panel erroneously assumed that white firefighters are entitled to promotions based upon current unlawful selection procedures.
The panel held "that the city's affirmative action plan violates Title VII because it unnecessarily trammels the rights of non-black firefighters by establishing a rigid, arbitrarily selected quota of fifty percent annual black promotions to fire lieutenant." The panel opinion does not suggest that evidence in the record indicates the white intervenors would have been promoted if the City had used lawful selection procedures. Indeed, the district court found the intervening white firefighters had not demonstrated that any of them were, at the time of the promotions, demonstrably better qualified than any of the blacks certified from the same eligible register based on the result of a valid job-related selection procedure. In re. Birmingham Reverse Discrimination Employment Litigation, 39 Fair Empl.Prac.Cas. (BNA) 1431, 1444 ¶ 97, 1985 WL 56690 (N.D.Ala.1985), rev'd on other grounds, 833 F.2d 1492 (11th Cir.1987), affirmed sub nom. Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989). The panel's holding that the impact of this affirmative action system on the white intervenors constituted unnecessary trammeling on their rights overlooks the fact, which the district court recognized, that the white firefighters have no entitlement to the way

things would have been absent the consent decrees because the selection procedures the board and City used discriminated unlawfully against black firefighters.
Moreover, the consent decree did not prevent the promotion of white firefighters, but723*723 at worst only delayed the promotions — promotions to which they had no true entitlement. The average delay in the promotion of white firefighters approximated seven and one-half months. Nevertheless, the panel reversed the district court's findings and held that the delay unnecessarily trammeled the rights of white firefighters. The precedent of this circuit and of the Supreme Court does not condone such a view of the import of promotional delays. See United States v. Paradise, 480 U.S. 149, 183, 107 S.Ct. 1053, 1072-73, 94 L.Ed.2d 203 (1987) (plurality opinion)("promotional goal only postpones the promotion of qualified whites.... Denial of a future employment opportunity is not as intrusive as loss of an existing job and plainly postponement imposes a lesser burden still."); Howard v. McLucas, 871 F.2d 1000, 1009 (11th Cir.1989) ("the [promotional] relief does not prevent white employees from being promoted.... White employees are at most delayed in receiving a promotion to a limited number of specified positions").
The panel also improperly speculated as to the possible harm the white firefighters would experience. For instance, the panel conjectured that the "promotion figure no doubt impacted the earnings of appellants who are likely heavily dependent on wages for their day-to-day living.... The failure to be promoted or even the delay in receiving a promotion also likely impacts earnings long into the future under whatever retirement program the city provides for BFRS employees." The panel substituted conjecture for the findings of the district court.
3. The panel's holding that accelerated race conscious relief is unconstitutional unless tied to minority representation in the labor pool clashes with Supreme Court precedent.
The panel held that the "arbitrarily selected fifty percent figure for annual black promotions to fire lieutenant unnecessarily trammels the rights of non-black firefighters" because it is unrelated to the percentage of black people in the relevant labor pool. The Supreme Court, however, has encouraged accelerated promotional remedies unrelated to the percentage of minorities in the underlying labor pools in order to counter the effects of egregious past discrimination. See Paradise, 480 U.S. at 179-82, 107 S.Ct. at 1070-72 (plurality opinion); United Steelworkers of America v. Weber, 443 U.S. 193, 208-09, 99 S.Ct. 2721, 2729-30, 61 L.Ed.2d 480 (1979). The panel's assertion that this is not a case

like Paradise where the district court ordered a remedy to combat an egregious refusal to ... end discriminatory practices" is a distinction without a substantive difference. Attaining a racial balance through accelerated hiring is not unconstitutional; the law only prohibits maintaining such a balance. Weber, 443 U.S. at 209, 99 S.Ct. at 2730 (approving an affirmative action plan that "is not intended to maintain racial balance; but simply to eliminate a manifest racial imbalance"); Johnson, 480 U.S. at 639, 107 S.Ct. at 1455 (upholding plan intended to "attain a balanced work force, not to maintain one").
4. An affirmative action plan need not be the least intrusive means to remedy prior discrimination.
An affirmative action plan need not be the absolute minimum, as the panel implies, In re Birmingham Reverse Discrimination, 20 F.3d at 1549 ("the impact of the decree on nonblack firefighters in this case was not relatively diffuse, but was instead quite pointed"), to make a difference in redressing past discrimination. Paradise, 480 U.S. at 184, 107 S.Ct. at 1073 (plurality opinion) (remedial plans not limited to least intrusive means of implementation); see also Fullilove v. Klutznick, 448 U.S. 448, 508, 100 S.Ct. 2758, 2790, 65 L.Ed.2d 902 (1980) ("this Court has not required remedial plans to be limited to least restrictive means of implementation"). Innocents may properly bear some of the burden of redressing past discrimination. Wygant v. Jackson Bd. of Education, 476 U.S. 267, 280-81, 106 S.Ct. 1842, 1849-51, 90 L.Ed.2d 260 (1986).
CONCLUSION
Based on the significance of these issues, the full court should have granted en bancconsideration.

 
 20 F.3d 1525 (1994)
In re BIRMINGHAM REVERSE DISCRIMINATION EMPLOYMENT LITIGATION.
James A. BENNETT, Plaintiff, Floyd E. Click; James D. Morgan; Joel Alan Day; Gene E. Northington; Vincent Joseph Vella; and Lane L. Denard, Plaintiffs-Appellants, Cross
Appellees, v.
Richard ARRINGTON, Jr., as Mayor of the City of Birmingham; City of Birmingham; James B. Johnson; Henry P. Johnston; and Hiram Y. McKinney, as Members of the Jefferson County Personnel Board;
Joseph W. Curtin, as Director of the Jefferson County Personnel Board; and Jefferson County Personnel Board, Defendants-Appellees,
John W. Martin, Major Florence, Ida McGruder, Sam Coar, Eugene Thomas, Charles Howard, Defendants-Intervenors-Appellees-Cross
Appellants, United States of America, Defendant-Intervenor-Appellee. BIRMINGHAM ASSOCIATION OF CITY EMPLOYEES, an unincorporated labor association, and Kenneth O. Ware, Plaintiffs-Appellants, Cross-
Appellees, Gerald L. Johnson; Phillip H. Whitley; David H. Woodall; Danny R.
Laughlin; Marshall G. Whitson; Dudley L. Greenway, Plaintiffs, v.
Richard ARRINGTON, Jr., as Mayor of the City of Birmingham; City of Birmingham; James B. Johnson; Henry P. Johnston; and Hiram Y. McKinney, as Members of the Jefferson County Personnel Board;
Joseph W. Curtin, as Director of the Jefferson County Personnel Board; Jefferson County Personnel Board; and the United States of America, Defendants-Appellees, John W. Martin, Major Florence, Ida McGruder, Sam Coar, Wanda
Thomas, Eugene Thomas and Charles Howard, Defendants-IntervenorsAppellees, Cross Appellants.
Robert K. WILKS; Carlice E. Payne; Ronnie J. Chambers; John E. Garvich, Jr., James W. Henson; Robert Bruce Millsap, Plaintiffs-
Appellants, Cross Appellees, United States of America, Plaintiff-Intervenor, Howard E. Pope, Charles E. Carlin, Plaintiffs-Intervenors-Appellants,
v.

Henry P. JOHNSTON, Defendant, John W. Martin, Major Florence, Ida McGruder, Sam Coar, Eugene Thomas and Charles Howard, Defendants-Intervenors-Appellees-Cross
Appellants, Wanda Thomas, Defendant-Intervenor.
No. 92-6778.
United States Court of Appeals, Eleventh Circuit.
May 4, 1994.
1526*1526 1527*1527 1528*1528 1529*1529 Raymond P. Fitzpatrick, Jr., Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, AL, for appellants.
Robert D. Joffe, Cravath, Swaine & Moore, New York City, for Martin, Florence, McGruder, Coar, Thomas and Howard.
1530*1530 James P. Alexander, Anne R. Yuengert, James Walker May, Bradley, Arant, Rose & White, Birmingham, AL, for Arrington and City of Birmingham.
Sharon R. Vinick, Richard T. Seymour, Lawyers' Committee For Civil Rights, Washington, DC, for Martin and others.
Rebecca K. Troth, Dept. of Justice, Appellate Section Civil Rights Div., Washington, DC, for U.S. as amicus curiae.
LaVeeda Morgan Battle, Gorham & Waldrep, P.C., Birmingham, AL, for Personnel Board of Jefferson County, AL and Board Members.
Before EDMONDSON and BLACK, Circuit Judges, and HENDERSON, Senior Circuit Judge.
BLACK, Circuit Judge:
In the latest chapter of this ongoing litigation we determine whether certain provisions of a 1981 consent decree mandating that the City of Birmingham (City) select employees for promotion based upon their race can withstand scrutiny under Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. We hold that they cannot.[1]

I. Background
Appellants are fourteen male, non-black employees of the Birmingham fire rescue service (BFRS) and one male, non-black employee of the City engineering department.[2] Appellants assert that the City, acting pursuant to a consent decree it entered in 1981 to resolve then-pending litigation, violated their rights under Title VII and the Equal Protection Clause when it made promotion decisions based upon the race of the person to be promoted. To place the City's use of race in promoting candidates under the consent decree in context, we first review the pertinent events that led to the consent decree and brought us to this stage of the litigation.
A. Events Leading to the Consent Decree
In the mid-1970s, the United States, the Ensley Branch of the NAACP, and seven black individuals (Martin plaintiffs) sued the City and the Personnel Board of Jefferson County (Board) in three separate class actions. The suits charged that the City and the Board had unlawfully discriminated against blacks and women in their hiring and promotion decisions.[3] The district court consolidated the three original cases and held two trials. The first trial, in 1976, was held on the limited issue of the validity of the Board's screening tests for entry-level police and firefighter applicants. The district court found that the tests violated Title VII and ordered the Board to certify a number of black applicants for employment with the City. In re Birmingham Reverse Discrimination Employment Litig., 833 F.2d 1492, 1494 & n. 4 (11th Cir.1987), aff'd sub nom. Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989)(BRDEL I). In 1979, the district court held a second trial on the validity of other testing and screening devices used by the Board. Id.
While awaiting the outcome of the second trial, the parties entered settlement negotiations. Eventually, two consent decrees resulted, one between the plaintiffs and the 1531*1531 Board and the other between the plaintiffs and the City. The City's negotiation process was not without its puzzling aspects. As in any negotiation, the City and the United States exchanged proposals several times. The City initially proposed for itself a fixed quota of 35% across-the-board black appointments to all job openings in the City for five years. The United States, the party pressing the discrimination claim against the City, countered with a proposal that addressed certain job categories individually. With respect to BFRS promotions, the United States' response set a lower standard than that initially proposed by the City for promotions of blacks to the lieutenant ranks: it proposed promoting blacks from entry-level firefighter to fire lieutenant at a rate equal to two times the percentage of blacks in the entry-level position.[4] That is, because at that time blacks comprised 9% of entry-level firefighters, blacks would receive 18%, not the City's proposed

35%, of all promotions to fire lieutenant. In response, the City accepted the two-timesrepresentation language, but added for itself a more stringent minimum requirement of 25% black promotions in all job categories, regardless of black representation in the job classification immediately below the promotional job. Under the City's counter-proposal, then, blacks would receive 25%, rather than the United States' proposed 18%, of all promotions to fire lieutenant.
After additional negotiation and cross-submission of draft decrees, the City's attorneys presented a settlement proposal to the Birmingham City Council for approval.[5] The decree as it read when presented to the City Council set a long-term objective for the City to employ blacks in all jobs within the City in proportion to the representation of blacks in the surrounding Jefferson County labor market, which was 28% at the time. There was no fixed annual percentage for black promotions to fire lieutenant. Instead, the decree presented to the City Council mandated that two of the next four lieutenant promotions would be filled by blacks; thereafter, the City would promote blacks to lieutenant at two times the rate of black representation among firefighters.[6] The decree as presented also provided for back pay relief in an unspecified amount to individuals who were the victims of alleged past employment discrimination by the City.[7] The City Council 1532*1532 passed Resolution 547-81 at its regular meeting the following day, authorizing entry into the consent decree.
Resolution 547-81 notes that the parties had reached substantial agreement on the content of a consent decree designed to end the pending litigation. As we read the resolution, it authorized the City Attorney, with approval of the Mayor, to enter into a decree "embodying such terms" as those that were presented to the Council. Following passage of Resolution 547-81, negotiations continued and produced the final version of the decree, which was subsequently approved by the district court and is still in effect today.[8]
In the final decree, the City did not admit to "any violation of law, executive order or regulation," but adopted the following plan to remedy past underrepresentation of blacks and women in City employment:
In order to correct the effects of any underrepresentation of blacks and women in the City's workforce caused by any alleged prior discriminatory employment practices, the City agrees to adopt as a long term goal, subject to the availability of qualified applicants, the employment of blacks and women in each job classification in each department of the City of Birmingham in percentages which approximate their respective percentages in the civilian labor force of Jefferson County as defined by the 1970 Federal Census.
Decree ¶ 5. The final decree also sets a specific annual percentage for black promotions to fire lieutenant different from the one contained in the version presented to the City Council.

Instead of setting black fire lieutenant promotions at two times the percentage of black firefighters, the final decree establishes that, each year, 50% of all promotions to lieutenant in the BFRS will be filled by qualified blacks. Decree ¶ 6. Under the decree, for every two lieutenant positions that come open, one must be filled by a black candidate, as long as there are qualified black applicants.[9]
The decree contains no termination date. Rather, it provides that the district court will retain jurisdiction over the decree and that, after the decree operates for a minimum of six years, any party may move to modify or dissolve it.[10]
1533*1533 Before giving its final approval to the decree, the district court held a hearing to consider objections of interested parties. BRDEL I, 833 F.2d at 1494. The Birmingham Firefighters Association filed objections and, along with two of its members, moved to intervene as of right in each of the three pending cases, contending that the proposed decree would adversely affect members' rights. Id. at 1495. The district court denied the motion to intervene and, on August 18, 1981, approved the decree. Id. The City has promoted fire lieutenants in the manner prescribed by the final decree since that time. See infra part I.D.
Following denial of the motion to intervene, seven non-black male firefighters sought a preliminary injunction to enjoin operation of the decree, asserting that the promotion provisions would discriminate against them based upon their race, in violation of Title VII. The district court denied the injunction. The district court's refusal to permit intervention and its denial of the application for a preliminary injunction were consolidated on appeal to this Court. Id. We affirmed the denial of injunctive relief and dismissed the appeal of the denial of intervention, noting that the complaining firefighters would not be prejudiced by that denial because they could file a separate Title VII action against the City to address whatever harm they might suffer as a result of the operation of the decree. United States v. Jefferson County, 720 F.2d 1511 (11th Cir. 1983).
B. Post-decree History
The non-black male firefighters then brought suit in the district court against the City and the Board, under both the Equal Protection Clause and Title VII, charging reverse discrimination. They asserted that they were being denied promotions because of their race and that the City was promoting allegedly less qualified black firefighters to lieutenant solely on the basis of race, while claiming the City and Board consent decrees protected its actions from scrutiny. BRDEL I, 833 F.2d at 1495. The City and the Board admitted making "`numerous race conscious promotion and employment decisions pursuant to [the City

decree's] terms.'" Id. at 1496 (alteration in original). They contended that the plaintiffs, although not signatories, were bound by the City and Board decrees and that the promotions in question were lawful because they were made pursuant to the decrees. Id.
In BRDEL I we noted that, when the non-black firefighters' claims were tried in 1985, the district court "treated the plaintiffs as if they were bound by the consent decrees and as if they were alleging solely that the City had violated [the terms of] the City decree." Id. As a result, the district court focused on whether the City had violated paragraph 2 of the decree, which provided that nothing in the decree required the City to promote a person who was less qualified "`in preference to a person who is demonstrably better qualified based upon the results of a job related selection procedure.'" Id. at 1497. The issue tried in 1985 thus was whether the City had complied with the terms of the decree, not the legality of the consent decree itself.
The district court found that the City did not use a job related selection procedure to evaluate candidates referred to it by the Board and that it had made no effort to develop any such procedure. Id. On appeal, we noted that this finding prevented the plaintiffs from establishing a violation of paragraph 2: "since the City did not use a job-related selection procedure, the court apparently reasoned, paragraph 2 imposed no obligations on it." Id. We held that the district court erred in finding the individual plaintiffs bound by the consent decree and remanded the case for trial on the merits of the claims of unlawful discrimination under Title VII and the Equal Protection Clause. Id. The Supreme Court affirmed. Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989). Thus, in 1991, more than ten years after the City consent decree was entered, the district court held a trial on the Appellants' claim that the City's use of race when making promotions in the BFRS 1534*1534 violated both Title VII and the Equal Protection Clause.
C. The 1991 Trial
In BRDEL I, we perceived "no reason for treating a consent decree entered pursuant to a voluntary settlement differently from a voluntary affirmative action plan" and rejected "any notion that the memorialization of that voluntary undertaking in the form of a consent decree somehow provides the employer with extra protection against charges of illegal discrimination." BRDEL I, 833 F.2d at 1501 (footnote omitted).[11]We therefore instructed the district court on remand to treat the consent decree as a voluntary affirmative action plan and evaluate it under Title VII, using the analysis articulated in Johnson v. Transportation Agency, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), and under the Equal Protection Clause using the analysis ofWygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986). Id. at 1501 & n. 23.

Noting that this case involved race-based employment decisions made by a government employer, the district court recognized that it should apply a strict scrutiny review to the decree. Bennett v. Arrington, 806 F.Supp. 926, 928 (N.D.Ala.1992); see City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989); Peightal v. Metropolitan Dade County, 940 F.2d 1394, 1399 (11th Cir.1991) ("In Croson, a majority of the Court finally agreed that the constitutionality of a state or local public minority preference program must satisfy a strict scrutiny standard."), cert. denied, ___ U.S. ___, 112 S.Ct. 969, 117 L.Ed.2d 134 (1992). The district court found that the City was justified in entering the decree because it had a strong basis in evidence for believing that it had discriminated against minorities in the past. Bennett, 806 F.Supp.at 928-29. The district court further found that the City's use of race under the decree was "limited and tailored to the relief necessary to overcome the employment effects of past discrimination by the City," while placing an "acceptable burden" on third parties like the Appellants. Id.at 929, 931. Accordingly, it denied the Appellants' claims. Id. at 931.
The district court did not separately evaluate Appellants' Title VII and Equal Protection Clause claims. Rather, it analyzed the City decree using the approach announced inJohnson, a Title VII case, and applied that analysis to all claims raised. We have previously recognized the struggle that district courts face in extracting guidance from the various multi-part Supreme Court opinions on the constitutionality of voluntary, governmentsponsored affirmative action programs developed in various contexts. See Peightal, 940 F.2d at 1399 (noting the diversity of views expressed in Supreme Court opinions leading up to Croson).[12] We believe, however, that in the interest of clarity our analysis must separately address Appellants' Title VII and Equal Protection claims. In order to assist our analysis, we first describe in greater detail the way in which the City uses race to determine candidates for promotion under the consent decree. Our understanding of the operation of the consent decree is informed by the City's brief on appeal and by 1535*1535 the district court's findings of fact and conclusions of law entered at the close of the first trial on the Appellants' claims in 1985. See In re Birmingham Reverse Discrimination Employment Litig., 39 Fair Empl. Prac. Cas. (BNA) 1431, 1985 WL 56690 (N.D.Ala. 1985).
D. Operation of the City Decree
When a City department has a vacancy in a job classification to be filled by promotion, it sends a "request for certification" of promotional candidates to the Board. Id. at 1438, ¶ 27. The City's personnel office reviews the request to determine whether the department is in compliance with the City's affirmative action plan. Id. If the department is not in compliance, the request is stamped with a notation indicating that the City requests that the Board certify qualified blacks (or females) for the open position. Id.

The Board administers written promotional examinations and tracks employee seniority in City jobs. Id. ¶ 25. It grades promotional examinations, establishes a passing score, and calculates a converted score on a standardized scale for persons who pass an exam. Id. The Board then adds one point to each employee's converted score for each year of service with the City, up to a maximum of twenty years' service, to determine a final score. Employees of all races are then ranked on a single eligible register according to their final score. Id.[13]
The Board follows a "rule of three" when it supplies the City with names of candidates for promotional openings, providing a number of candidates equal to the number of openings plus two. Id. ¶ 27.[14] That is, if there is one opening, the Board provides three names; if there are four openings, the Board provides six names. If the City indicates on the request for certification that blacks are needed to meet the requirements of the decree, the Board reviews the eligible register and provides the necessary number of names on separate lists of black and non-black eligible candidates. Black candidates and non-black candidates are listed separately in the order in which they are ranked on the eligible register. Id. at 143738, ¶¶ 17, 27. For example, if the Board supplies names of four blacks and four non-blacks for promotional openings, the black list contains the four highest-ranked blacks on the eligible register and the non-black list contains the four highest-ranked non-blacks on the eligible register, regardless of how high or low they actually rank on the register relative to each other.
When the black and non-black candidate lists arrive in the BFRS, the Chief reviews the personnel files of the certified individuals and consults with the deputy chief about the candidates to determine whether any candidates are unqualified. Id. at 1437, ¶ 16. The Chief does not compare the relative qualifications of black and non-black candidates for promotion prior to making his selection from the lists. Nor does he compare the relative qualifications of the individuals certified as eligible against others of the same race certified on the same list. Id. This is because he believes he must promote the highest ranked individual on each list unless he can "prove that the highest ranked individual of either race is unqualified for the promotional position." Id.at 1437-38, ¶ 18. Therefore, he typically promotes in the order in which candidates appear on the respective lists. Id. at 1437, ¶ 16. The Chief alternates selections between the top name on the black list and the top name on the non-black list until all available openings are filled. Id. ¶ 17.[15]
Under this system, then, employees who will eventually fill an opening in the BFRS are preselected by race. If four fire lieutenant positions are open, two of those will be1536*1536 filled by blacks and two by non-blacks. Among employees certified by the Board as eligible candidates, promotions are awarded solely by race. No black employee

ever competes for the two openings designated in advance to be filled by non-blacks. No non-black employee can compete for the two openings designated for blacks.
The impact of this system on the Appellants was such that, in the words of the district court:
Each of the plaintiffs who complains in this litigation against the failure to be appointed as a fire lieutenant or fire captain or civil engineer[,] or who claims that he was delayed in such an appointment[,] was adversely affected because he was white. Those persons[,] in the absence of the consent decree and in the absence of any affirmative action plan adopted by the City as mandated by the decree would, as I interpret the evidence, have been appointed to the positions they desired and about which they here complain. Each of those individuals ranked higher on the certification list provided by the Personnel Board than the blacks who were appointed by the City pursuant to the consent decree.
Id. at 1433. Thus, the question we must determine here is whether an affirmative action plan that continuously segregates employees in this manner, and has the above-described impact on the promotional opportunities of employees who are not beneficiaries of its provisions, is permissible under both Title VII and the Equal Protection Clause.
II. Method of Analysis
The Supreme Court established in Croson that strict scrutiny is the standard of review to be applied to all claims of race-based discrimination by state government entities, regardless of the race of the complaining party. 488 U.S. at 493, 518-21, 109 S.Ct. at 722, 735-36. Accordingly, we apply strict scrutiny to the claims before us. Our analysis of the Appellants' claims, however, does not begin and end withCroson. Although informing our analysis, Croson is distinguishable from this case in at least two ways. First, Croson did not present a Title VII claim for review. Second,Croson did not involve race-based decisions made by a state governmental entity attempting to remedy its own history of prior employment discrimination.[16] Indeed,Johnson, a Title VII case, is more analogous to this case in some respects. Johnsonnotes that the obligations of a public employer under Title VII and the Constitution are not identical. 480 U.S. at 628 n. 6, 107 S.Ct. at 1449 n. 6 ("The fact that a public employer must also satisfy the Constitution does not negate the fact that thestatutory prohibition with which that employer must contend was not intended to extend as far as that of the Constitution."); id., 480 U.S. at 632, 107 S.Ct. at 1452 ("[W]e do not regard as identical the constraints of Title VII and the Federal Constitution on voluntarily adopted affirmative action plans."). Because this case presents both Title VII and Equal Protection Clause claims, we must reconcile the case law developed in both areas with the

direction a divided Supreme Court provided inCroson. To maintain clarity, we separately consider the City decree under both Title VII and the Equal Protection Clause.
III. Title VII Claim
Title VII reads in pertinent part:
(a) It shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire ... or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race ...; or
(2) to ... classify his employees ... in any way which would deprive or tend to 1537*1537 deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race....
42 U.S.C. § 2000e-2. It is now well established that employers may develop affirmative action plans designed to "further[] Title VII's purpose of eliminating the effects of discrimination in the workplace." Johnson, 480 U.S. at 630, 107 S.Ct. at 1451.[17] An employer's decision to account for race in an affirmative action plan is "consistent with Title VII's objective of break[ing] down old patterns of racial segregation and hierarchy." Id. at 628, 107 S.Ct. at 1450. Yet, an employer implementing a race-conscious affirmative action plan must assure that race will be considered "consistent with Title VII's purpose ... and that the interests of those employees not benefiting from the plan will not be unduly infringed." Id. at 632, 107 S.Ct. at 1452.
Determining whether the affirmative action plan embodied in the City decree was implemented consistent with Title VII's purpose and without unduly infringing the interests of Appellants involves a two-part test. We must first determine whether the City's consideration of the race of promotional candidates was justified by a manifest racial imbalance that reflected under-representation of blacks in traditionally segregated job categories. Id. If such a justification was present when the plan was developed, we must then determine whether the plan itself provides a proper remedy for that imbalance. A remedy is proper if the plan does not unnecessarily trammel the rights of non-black employees or create an absolute bar to their advancement. Id. at 637, 107 S.Ct. at 1455.
A. Justification — Manifest Racial Imbalance

When a job requires no special expertise, determining whether a manifest imbalance exists that would justify race-conscious decisionmaking by the employer involves a comparison of the percentage of minority employees in that job with the percentage of minorities in the general area labor market. Id. at 632, 107 S.Ct. at 1452. When a job requires special skills or training, however, the appropriate comparison is to those in the labor market who possess that special skill or training. Id.; see also United States v. City of Miami, 2 F.3d 1497, 1509 (11th Cir.1993) ("It is well established that, in determining whether there is a work force imbalance that justifies affirmative action remedies, the proper comparison is between the minority composition of the work force in question and the qualified minority population in the relevant labor market.").
This case presents for review those aspects of the City plan relating to promotions of firefighters to fire lieutenant in the BFRS. Training and experience as a firefighter are special skills required of those who would become fire lieutenants. As such, to determine if an imbalance existed that would justify race-conscious promotion decisions by the City, the appropriate comparison is between black representation in the BFRS lieutenant ranks and black representation among entry-level firefighters.See Stuart v. Roache, 951 F.2d 446, 450-51 (1st Cir.1991) (comparing percentage of minorities in sergeant rank with percentage of minorities in the rank immediately below having years of service necessary to become sergeants), cert. denied, ___ U.S. ___, 112 S.Ct. 1948, 118 L.Ed.2d 553 (1992).[18]
1538*1538 This comparison is consistent with the comparison used in Johnson, where the Supreme Court addressed a Title VII challenge to an affirmative action plan developed by a county transportation agency (agency). Johnson, a male, brought suit after Joyce, a female, was promoted to road dispatcher instead of him. Joyce and Johnson were among seven applicants certified as eligible for selection after the initial round of applicant interviews. Three agency supervisors conducted a second round of interviews and recommended Johnson for the position. The agency's affirmative action coordinator, however, acting under a duty to keep the agency's director informed of opportunities for the agency to accomplish its objectives under its affirmative action plan, recommended to the director that Joyce be promoted. The director heeded the coordinator's recommendation and selected Joyce over Johnson.
The agency in Johnson had developed an affirmative action plan that authorized it to consider as one factor the sex of a qualified applicant when making promotions within a traditionally segregated job classification where women were significantly underrepresented. The agency adopted its plan believing "mere prohibition of discriminatory practices is not enough to remedy the effects of past practices and to permit attainment of

an equitable representation of minorities, women and handicapped persons" in the agency's work force. Johnson, 480 U.S. at 620, 107 S.Ct. at 1446.
The Supreme Court observed without comment that the agency plan adopted as a longterm objective achieving an agency workforce that mirrored in each major job classification the percentage of women in the area labor market. Id. at 633, 107 S.Ct. at 1453. "Even as it did so, however, the Agency acknowledged that such a figure could not by itself necessarily justify taking into account the sex of applicants for positions in all job categories." Id. Therefore, the agency developed short-term goals for placing women in certain positions, not to be construed "as quotas that must be met, but as reasonable aspirations in correcting the imbalance in the Agency's work force." Id. The Court noted that the agency plan did not "dictate mere blind hiring by the numbers [or] hold supervisors to achievement of a particular percentage of minority employment ... regardless of circumstances such as economic conditions or the number of available qualified minority applicants."[19] Id. Under the plan, women competed directly with all other qualified applicants: "[n]o persons are automatically excluded from consideration; all are able to have their qualifications weighed against those of other applicants." Id. at 638, 107 S.Ct. at 1455. The plan "posed no danger that personnel decisions would be made by reflexive adherence to a numerical standard." Id. at 635, 107 S.Ct. at 1454.
The agency plan recognized that women were severely under-represented in the skilled craft job category, the category that included the road dispatcher position Johnson desired. In fact, there were no women among the 238 workers in that category. The Court noted that, with this type of imbalance in a category, and given the agency's desire to eliminate such imbalances, it was reasonable to consider Joyce's sex as one factor among many in the promotion decision. 1539*1539 Id. at 635, 107 S.Ct. at 1454. Thus, Joyce's promotion satisfied the first element for Title VII scrutiny because it was made under an affirmative action plan designed to remove imbalances that existed in traditionally segregated job categories. Id. at 637, 107 S.Ct. at 1455.
1. Findings of Manifest Racial Imbalance Required. As a preliminary matter, we must first determine what effect the Court's opinion in Croson has on Johnson's requirement that a manifest racial imbalance must exist before a government entity can use race as a criteria in its employment decisions. Appellants assert that, in order for this Court to determine the validity of the decree and avoid the danger that its provisions were simply acts of racial politics rather than proper remedies for past discrimination, the City is required under Croson to have made particularized findings of its own past discrimination prior to entering the decree. Appellants maintain that when the City approved entry into the decree

it made no such finding, and they claim that the lack of a formal finding of past discrimination by the City causes its decree to fail.
On the surface, Appellants' position is supported to an extent by the plain language of the decree itself. The decree, in typical settlement agreement language, specifically provides that the City admits to no "violation of law, executive order or regulations," but goes on to provide a remedy for its "alleged prior discriminatory employment practices." In essence, the City, speaking through the decree, refuses to admit that it has discriminated in the past while setting about to remedy the discrimination its adversaries in litigation asserted to have actually occurred. Nonetheless, we believe that in these circumstances the City was not required to make formal findings about its own past discrimination — it merely had to have a strong basis in evidence, as we demonstrate below.
Our application of the Johnson manifest imbalance test here is informed by Croson's discussion of the necessity for a government entity to identify with specificity the discrimination it seeks to remedy through race conscious measures. See generallyCroson, 488 U.S. at 492-505, 109 S.Ct. at 721-28. The Supreme Court has recognized that "[e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees." Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277, 106 S.Ct. 1842, 1849, 90 L.Ed.2d 260 (1986). There must be sufficient evidence to allow a trial court to "make a factual determination that the employer had a strong basis in evidence for its conclusion that remedial action was necessary." Id. Unless such a finding is made, an appellate court has no basis upon which to determine whether race-based action was justified as a remedy for prior discrimination by the City. Id.
Appellants' assertion that Croson requires the City to have made specific findings of its own past discrimination before entering the consent decree ignores one of the important differences between Croson and this case. In Croson, the city was not acting to remedy its own history of discrimination, but was acting to remedy discrimination it claimed had occurred in private industry. The Court found the city council's justifications for the use of race to be "an amorphous claim that there has been past discrimination in a particular industry [that] cannot justify the use of an unyielding racial quota." Croson, 488 U.S. at 497, 109 S.Ct. at 724. It makes a great deal of sense to require a city to describe with particularity the findings that led it to conclude that an entire industry had engaged in discrimination before setting about to fashion a race-conscious remedy for that perceived problem. The circumstances of this case, however, do not compel a similar requirement. See Wygant, 476 U.S. at 289, 106 S.Ct. at 1855 (O'Connor, J., concurring) ("The imposition of a requirement that public employers make findings that they

have engaged in illegal discrimination before they engage in affirmative action programs would severely undermine public employers' incentive to meet voluntarily their civil rights obligations.").
We do not read Croson to require that a city settling litigation by consent decree declare itself to have violated the law 1540*1540 by discriminating in employment, detailing the elements of a potential plaintiff's complaint in the process, before adopting an affirmative action plan designed to remedy the effects of its own past discrimination.See Croson, 488 S.Ct. at 497-505, 109 S.Ct. at 724-28; cf. Cone Corp. v. Hillsborough County, 908 F.2d 908, 913 (11th Cir.) (noting that the Croson plurality intimated that local governments could enact race-conscious remedies "to redress clear instances of discrimination"), cert. denied, 498 U.S. 983, 111 S.Ct. 516, 112 L.Ed.2d 528 (1990). It is, however, a necessity that some finding be made that the City engaged in past discrimination, in order to allow for proper judicial review of the City's use of race in its affirmative action plan. See Wygant, 476 U.S. at 278 & n. 5, 106 S.Ct. at 1849 & n. 5. (if "race-based state action is taken to remedy prior discrimination by the governmental unit involved ... the very nature of appellate review requires that a factfinder determine whether the employer was justified in instituting a remedial plan"). In this case, the necessary finding of past discrimination was provided by the district court.
In the opinion from which this appeal arises, the district court found that there was a strong basis in evidence that the City had discriminated against blacks prior to implementing the affirmative action plan embodied in the consent decree. Bennett,806 F.Supp. at 929. It noted that blacks were not represented at all in the BFRS lieutenant ranks as a direct result of discriminatory testing for entry-level positions. Id.Further, it noted that there was a significant imbalance between the number of black lieutenants and the number of black firefighters, the jobs from which lieutenants were typically drawn. Id. at 930. At the conclusion of the 1985 trial, the district court found significant evidence of discrimination prior to the time the City entered into the decree. Id. Additional evidence presented in the 1991 trial confirmed those findings.Id. The district court also noted that, at the time the decree was adopted, it had already found certain tests administered by the Board to have an adverse impact on blacks and to be insufficiently job related to be valid under Title VII. Id. at 929. Finally, the district court found that the City entered into the consent decree only when faced with the imminence of another adverse decision by the district court related to "a further trial, with voluminous evidence, attacking scores of other tests and selection devices ... as having a similar adverse impact and insufficient job-relatedness." Id. As a result, the district court found that the City was justified in using race to remedy its prior discrimination. Id. We conclude that these findings satisfy Croson and permit thorough appellate review.

2. Sufficiency of the Findings and Conclusions of Law. We review the district court's factual findings under the clearly erroneous standard. Newell v. Prudential Ins. Co.,904 F.2d 644, 649 (11th Cir.1990). The district court's legal conclusions are subject to de novo review. Id.
The district court found that when the City decree was entered in 1981 there were 453 firefighters in the BFRS, 42 of whom were black. Bennett, 806 F.Supp. at 930 n. 6. There were also 94 lieutenants, 31 captains, and 15 battalion chiefs, none of whom were black. Id. Further, the district court had already found that tests administered by the Board for entry-level City jobs in both the police and fire departments were invalid under Title VII because they had a significant adverse impact on blacks and were not sufficiently job related. Id. at 929 (citing Ensley Branch, NAACP v. Seibels, 616 F.2d 812 (5th Cir.), cert. denied, 449 U.S. 1061, 101 S.Ct. 783, 66 L.Ed.2d 603 (1980)). The district court found that, against this background, coupled with the advice of counsel that the likelihood of victory in the pending litigation was poor, the City was justified in adopting an affirmative action plan. The parties do not dispute these findings, and we do not hold them to be clearly erroneous.
While the Court in Croson criticized the findings made there for only supporting amorphous and generalized claims of societal discrimination, 488 U.S. at 498, 109 S.Ct. at 724, the findings by the district court here demonstrate that the City had strong evidence before it to believe it had engaged in past racial discrimination when it entered the consent decree. The City was aware that 1541*1541 the district court had disapproved the hiring tests used by the Board because they had an adverse impact on blacks. The City knew, through counsel, that voluminous evidence attacking other employment tests and selection procedures had been introduced in pending litigation and was advised by counsel that settlement would be a preferred alternative to another adverse decision. The City also knew of the gross statistical disparity between the number of blacks it employed as firefighters and as officers in the BFRS. Given these facts as determined by the district court, the City was justified in implementing an affirmative action plan that provided for the use of race as a remedy for past discrimination. Therefore, the City's affirmative action plan satisfies the first element of the two-part test established in Johnson. We next consider whether the specific provisions of the City decree provide a proper remedy to address the identified imbalances in traditionally segregated job categories.
B. Remedy — Unnecessarily Trammeling Rights of Non-black Employees
This element of the Johnson test necessarily involves balancing the use of race to secure opportunities for blacks in traditionally segregated jobs against the impact of the plan on non-blacks. As we stated earlier, a proper remedy cannot unnecessarily trammel the rights

of non-black employees or create an absolute bar to their advancement. Johnson, 480 U.S. at 637-638, 107 S.Ct. at 1455. On its face, the decree does not create an absolute bar to advancement for non-black employees because it sets aside a fixed percentage of promotions for blacks, leaving the remainder to be filled by all other employees. Our inquiry is thus confined to whether the decree provisions unnecessarily trammel the rights of the non-black employees who do not benefit from the plan.
Unlike the affirmative action plan approved in Johnson, the City decree does not use race as one factor among several that could be considered when making promotion decisions. Rather, the decree makes a Board-certified firefighter's race the sole factor used to determine eligibility for all fire lieutenant promotions in the BFRS. Promotion-eligible employees are listed separately by race and promotions are made from those separate lists to fill openings allocated by race. The decree, therefore, embodies exactly the sort of "danger that personnel decisions would be made by reflexive adherence to a numerical standard" the Court cautioned against in Johnson.480 U.S. at 637, 107 S.Ct. at 1454. Unlike the plan approved in Johnson, in which "[n]o persons are automatically excluded from consideration; all are able to have their qualifications weighed against those of other applicants," id. at 638, 107 S.Ct. at 1455, the City decree specifically excludes all non-black firefighters from consideration for one-half of all fire lieutenant promotions and all black firefighters from consideration for the other half of lieutenant promotions, based solely on their race. And, unlike the plan approved in Johnson, the City's annual fire lieutenant promotion quota is not a "reasonable aspiration" designed to correct the imbalance in the City's workforce without unnecessarily trammeling the rights of the Appellants. It is, instead, a racial quota that must be met whenever openings occur.
There is no precise formula for determining whether an affirmative action plan unnecessarily trammels the rights of non-beneficiaries. When reviewing affirmative action plans involving race based entry-level hiring goals, the Supreme Court has noted that the impact of the use of race on non-beneficiaries is diffused, spread across all those in society who might desire the entry-level position. See, e.g.,Wygant, 476 U.S. at 281, 106 S.Ct. at 1851. Entry-level hiring goals, while burdening some innocent persons, do not impose the same type of injury on non-beneficiaries as that imposed by the use of race to determine employee layoffs. Id. "[L]ayoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in serious disruption of their lives." Id. at 284, 106 S.Ct. at 1852. The Supreme Court has determined that the burden imposed through race-based layoffs is too intrusive. Id.
This case involves neither hirings nor layoffs, but instead concerns promotions made under the City's affirmative action 1542*1542 plan. We view the promotion situation as lying

somewhere between entry-level hiring and layoffs in terms of the burden permitted on nonbeneficiaries. The burden imposed by the City's plan on non-beneficiaries in the promotion context is not widely diffused like the burden imposed in a hiring situation. It resembles layoffs in that only specific persons are burdened — those who can reasonably aspire to promotions within the BFRS because they are already employed there and are qualified for promotion. When race is used under the City's affirmative action plan to determine promotions, it is the non-black employees excluded from consideration for half of all promotion opportunities, and not society in general, who bear the entire burden of the remedy for the City's past discriminatory behavior. On the other hand, failure to receive a promotion is not as serious a disruption in an employee's life as that caused by an impermissible race based layoff program. In determining whether the City's plan unnecessarily trammels the rights of non-black employees, our analysis necessarily recognizes the difference in impact between hiring, layoff, and promotion provisions in affirmative action plans.
Appellees assert that no Supreme Court case dealing with affirmative action hiring and promotion goals has ever found unnecessary trammeling where the plan did not require firings or layoffs of nonminority employees. In effect, Appellees would have us read part two of the Johnson test to say that any affirmative action plan that does not require firings or layoffs of nonminority employees or create an absolute bar to their advancement passes scrutiny under Title VII. We are unwilling to define "unnecessary trammeling" as nothing short of firings and layoffs; an affirmative action plan can unnecessarily trammel the rights of nonminority employees without requiring firings or layoffs. Such is the case with the promotion provisions of the City's affirmative action plan under review here.
When the plan was created, the City employed 42 black firefighters and 411 non-black firefighters. The decree set aside half of all future promotions to fire lieutenant for those among the 42 black firefighters who became Board-certified as eligible. By virtue of the rigid manner in which the City has used race to determine promotions under the decree, see supra part I.D, 42 black firefighters, because of their race, gained an exclusive claim to half of all fire lieutenant promotions made under the plan, but lost any possibility of competing for the other half. On the other hand, the remaining 411 non-black firefighters saw the number of promotions to which they might aspire, absent the consideration of their race, cut from 100% to half of all lieutenant promotions. The 50% promotion quota was to continue for the duration of the decree, subject to future modification, without regard to the number of lieutenant openings in any given year, the number of black firefighters eligible to become lieutenants at any particular time, or any factor other than race. As the decree operates, no non-black firefighter can even be considered for a promotional job reserved for blacks unless no blacks remain on the Board's eligible register.

We discern no legitimate basis for the 50% figure ultimately chosen for the annual fire lieutenant promotion quota. The 50% figure selected is completely uninfluenced by the percentage representation of blacks in the firefighter ranks, the feeder job from which lieutenant promotions are filled. The 50% figure appears entirely arbitrary, set at 50% through the settlement bargaining process after the parties failed to agree on the initially proposed 35%, or the subsequently proposed 25%, or on any other arbitrary figure that might have been proposed as the decree was developed by the attorneys for various involved parties.
In our view, the City decree fails under Title VII because the indefinitely-lasting, arbitrarilyselected 50% figure for annual black promotions to fire lieutenant unnecessarily trammels the rights of non-black firefighters by unduly restricting their promotional opportunities through establishment of an arbitrary fixed quota. Had the promotion figure been tied in some reasonable manner to the percentage of blacks in the firefighter ranks, significantly more non-black employees would have received promotions to fire lieutenant. The district court determined in 1543*1543 1985 that the Appellants, absent the consent decree, "would ... have been appointed to the positions they desired and about which they here complain." 39 Fair Emp.Prac.Cas. (BNA) at 1433. The failure to be promoted, caused by the arbitrarily selected 50% promotion figure, no doubt impacted the earnings of Appellants, who are likely heavily dependent on wages for their day-to-day living. See Wygant, 476 U.S. at 281, 106 S.Ct. at 1851. The failure to be promoted, or even a delay in receiving a promotion, also likely impacts earnings long into the future under whatever retirement program the City provides for BFRS employees.
It bears repeating that this case does not involve entry-level affirmative action where the impact of race-based decisionmaking for remedial purposes is minimized as it is spread across society as a whole; we decide nothing about that kind of affirmative action. Because non-black firefighters bear the entire burden of the race-based fire lieutenant promotion remedy in the decree, and because of the immediate and future ramifications of that burden, it is imperative that the remedy be related in some reasonable manner to the representation of blacks among firefighters. We see no such relationship in this case. We recognize that a governmental entity should take immediate steps to remedy its history of discrimination by awarding victims of that discrimination their rightfully earned promotions. See Howard v. McLucas, 871 F.2d 1000, 1003 & n. 5 (11th Cir.) (approving consent decree providing back pay relief and 240 promotions to black civilian Air Force Base employees into "most likely jobs lost by blacks" due to discrimination), cert. denied 493 U.S. 1002, 110 S.Ct. 560, 107 L.Ed.2d 555 (1989). It is not permissible, however, for a government to implement a rigid quota of race-based promotions, to continue indefinitely, with no basis at all for the quota figure selected.

Our review has located no cases approving a state government affirmative action plan where the promotion remedy was not tied in some manner to the representation of minorities in the pool of candidates for promotion. See, e.g., Wilson v. Bailey, 934 F.2d 301, 303 (11th Cir.1991) (approving, in a case involving some of the same parties present in this litigation, use of race as one factor among many considered when consent decree called for promotion of blacks and females to certain jobs at rates "at least equivalent to their percentage representation in the applicant pool from which such promotions are made"); Davis v. City of San Francisco, 890 F.2d 1438, 1449 (9th Cir.1989) (approving consent decree providing preferential promotions for minorities based on the percentage of minorities in the relevant labor force), cert. denied 498 U.S. 897, 111 S.Ct. 248, 112 L.Ed.2d 206 (1990). Indeed, within the City decree itself there are examples of promotion provisions that are tied to the representation of blacks in the feeder job category. There is no legitimate reason for the annual fire lieutenant promotion figure to be completely unrelated to the population of black firefighters.
Promotional remedies for past discrimination using percentages not tied to the percentage of minorities in the job immediately below the promotion position have withstood scrutiny only when ordered by a court to combat a state government's steadfast refusal to obey that court's long-standing order to develop non-discriminatory promotion procedures. See United States v. Paradise, 480 U.S. 149, 163, 107 S.Ct. 1053, 1063, 94 L.Ed.2d 203 (1987) (upholding district court order mandating 50% black representation in next group to be promoted to state trooper corporal to provide relief for state's failure to develop acceptable promotion procedures eleven years after first ordered to do so by the district court). This, however, is not a case like Paradise, where the district court ordered a remedy to combat an egregious refusal to follow its prior orders to end discriminatory practices. This is a case where, to end pending litigation, the City voluntarily entered into a consent decree containing a quota-based affirmative action plan that cannot withstand scrutiny.
We hold that the fire lieutenant promotion provision of the City's affirmative action plan violates Title VII because it unnecessarily trammels the rights of non-black firefighters by establishing a rigid, arbitrarily selected quota of 50% annual black promotions to fire lieutenant.
1544*1544 IV. Equal Protection Clause Claim
We turn next to Appellants' Equal Protection Clause challenge to the City's affirmative action plan. Appellants assert that they were denied promotions to fire lieutenant because of their race in violation of the Equal Protection Clause.[20]Appellees maintain that the use of race in determining fire lieutenant promotions should survive an equal protection challenge

because the City had a compelling interest in adopting the decree and the provisions of the decree are narrowly tailored to achieve that interest.
"`Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.'" Wygant, 476 U.S. at 273, 106 S.Ct. at 1846(quoting Bakke, 438 U.S. at 291, 98 S.Ct. at 2748). This strict scrutiny is employed even though the racial classification challenged operates against a group not historically subject to discrimination by government. Id.; see also Croson, 488 U.S. at 494, 109 S.Ct. at 722 ("We thus reaffirm the view ... that the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification."). To assure a proper balance between the individual rights secured by the Fourteenth Amendment and the permissible burden placed on innocent persons, the use of race in government decisionmaking is subject to strict judicial scrutiny "to `smoke out' illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool." Croson, 488 U.S. at 493, 109 S.Ct. at 721.
To survive a challenge under the Equal Protection Clause, the City's use of race in making fire lieutenant promotion decisions must be justified by a compelling interest and must be narrowly tailored to achieve that interest. See Wygant, 476 U.S. at 274, 106 S.Ct. at 1847; Cone Corp., 908 F.2d at 913 ("Under strict scrutiny analysis, the racial classifications must be necessary and must be narrowly tailored to achieve the goal of remedying the effects of past discrimination."). The City must show that a compelling governmental purpose justified the use of a racial preference and that the means chosen — in this case, the selection of candidates for promotions solely because of their race — was narrowly tailored to achieve that purpose. See Hayes v. North State Law Enforcement Officer Ass'n, 10 F.3d 207, 212-13 (4th Cir.1993). For the reasons set forth below, we hold that the City had a compelling interest in providing a remedy for its prior discriminatory employment practices, but that the City's use of race in its affirmative action plan is not narrowly tailored to achieve that interest as required under the Equal Protection Clause.
A. Compelling Government Interest
Public employers operate under a clear command from the Supreme Court to eliminate the vestiges of prior racial segregation and discrimination. Wygant, 476 U.S. at 276, 106 S.Ct. at 1848. At the same time, public employers must "`do away with all governmentally imposed discriminations based on race.'" Id. (quotingPalmore v. Sidoti, 466 U.S. 429, 43033, 104 S.Ct. 1879, 1881-82, 80 L.Ed.2d 421 (1984)). The Supreme Court has noted that these two commands must be reconciled with great care, because they are not always harmonious. Id. That is, while attempting to eliminate the vestiges of past discrimination

against persons of one race, government must minimize the imposition of new discriminations on persons of other races. Therefore, the Court requires a showing that the governmental unit involved engaged in prior discrimination, and requires a strong basis in evidence that remedial action is warranted, before allowing that governmental unit to execute an affirmative action plan remedying prior discrimination by using race in a narrowly tailored manner. Croson, 488 U.S. at 499, 109 S.Ct. at 725.
As an initial matter, then, we must decide whether there was a strong basis in evidence that remedial action was warranted 1545*1545 before the City entered the consent decree embodying its affirmative action plan.[21] As noted previously, the district court found strong evidence that the City had engaged in prior discrimination in the BFRS. See supra part III.A.2. We accept the district court's findings and will not repeat them here. We also accept the district court's findings and conclusion that action to remedy the effects of prior discrimination in the BFRS was warranted. But even when a city is justified in implementing an affirmative action plan, only a plan that is "carefully constructed" will do. See Wygant, 476 U.S. at 286, 106 S.Ct. at 1853 (O'Connor, J., concurring) ("The Court is in agreement that ... remedying past or present racial discrimination by a state actor is a sufficiently weighty state interest to warrant the remedial use of a carefully constructed affirmative action program.").
B. Narrowly Tailored Means
Classifications based upon race carry a very real danger of harm because they "threaten to stigmatize individuals by reason of their membership in a racial group."Shaw v. Reno, ___ U.S. ___, ___, 113 S.Ct. 2816, 2824, 125 L.Ed.2d 511 (1993). "[E]ven in the pursuit of remedial objectives, an explicit policy of assignment by race may serve to stimulate our society's latent race consciousness, suggesting the utility and propriety of basing decisions on a factor that ideally bears no relationship to an individual's worth or needs." United Jewish Orgs., Inc. v. Carey, 430 U.S. 144, 173, 97 S.Ct. 996, 1014, 51 L.Ed.2d 229 (1977) (Brennan, J., concurring in part and dissenting in part). Preferences based on race "may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth."Bakke, 438 U.S. at 298, 98 S.Ct. at 2752. As a result, a race conscious government policy justified by a compelling purpose — remedying past racial discrimination — must also use race in as limited a manner as possible to accomplish that compelling purpose.
Several factors determine whether race-based promotional relief is narrowly tailored to accomplish a compelling purpose, including: "the necessity for the relief and the efficacy of alternative remedies, the flexibility and duration of the relief, including the availability of

waiver provisions, the relationship of numerical goals to the relevant labor market, and the impact of the relief on the rights of [the Appellants]." Howard v. McLucas, 871 F.2d 1000, 1008 (11th Cir.) (internal quotations omitted), cert. denied,493 U.S. 1002, 110 S.Ct. 560, 107 L.Ed.2d 555 (1989). We address each of these in turn.
1. Necessity for the Relief Granted and Efficacy of Alternative Remedies. In Howard,we explored in detail the provisions of a consent decree using race to provide relief to victims of past discrimination by a government employer. The consent decree provided promotions for 240 specified plaintiffs who likely were previously denied promotions because of their race. The decree identified 38 target positions, based upon historical career progression patterns, to determine the jobs most likely lost by the plaintiffs and limited the race-conscious promotions to those positions. Id. at 1003. The 240 discrimination victims were listed on special promotion registers and alternated with persons on a general promotion register to fill openings as they occurred in each of the 38 target positions. Id. at 1008. In reviewing a challenge to the decree, we rejected the argument that promotional relief was unnecessary because other alternatives were available. Id. at 1009. We found that the proposed alternatives were not feasible because they did not place the plaintiffs, who were identified victims of prior discrimination, in their rightful place as expeditiously as did the relief contained in the decree. Id.
Where relief is not provided to identified victims of discrimination, given the odious nature of race-based decisionmaking, race-neutral alternatives should be considered before a government implements an 1546*1546 affirmative action plan using race as the sole criteria upon which promotions are based. See Croson, 488 U.S. at 507, 109 S.Ct. at 729 (faulting the city for failing to consider the use of race-neutral means to increase minority business participation in city contracting); Paradise, 480 U.S. at 171, 107 S.Ct. at 1066 (describing the need to consider the efficacy of alternative remedies when determining whether raceconscious remedies are appropriate). In examining this requirement in this case, the district court found that the City "did attempt to correct its past discrimination in or around 1974, prior to the entry of the consent decree" in 1981. Bennett, 806 F.Supp. at 929. The district court noted that an affirmative action ordinance designed to increase minority hiring by the City was enacted by the City Council in 1974, but was later vetoed by the Mayor. Id. at 92930. The district court also noted that a subsequent measure was enacted which placed responsibility on various department heads to set and achieve minority employment goals. Id. at 930. The district court found that "[t]hese alternative measures were not effective, as evidenced by the hiring of only two blacks in the Fire Department by 1974" and by the fact that, as of the month before the consent decree was formally entered in 1981, "only 9.3% of the firefighters were black." Id.

The district court's finding that alternative measures to the race-based promotion plan in the City decree were not effective is clearly erroneous. First, the fact that only two blacks were hired in the BFRS by 1974 has no bearing on the effectiveness of affirmative action efforts implemented after 1974. Second, post-1974 hiring data indicate that the City had made significant progress in adding blacks to the firefighter ranks prior to entering the consent decree.[22] The effectiveness of the City's pre-decree efforts in hiring blacks as firefighters appears in the chart below:

-------------------------------------------------------------------

--------

Black

Non-Black

Total

Percent

Year

Firefighters

Firefighters

Firefighters

Black

-------------------------------------------------------------------

--------

1974

2

n/a

n/a

n/a

-------------------------------------------------------------------

--------

1978

8

429

437

1.89%

===================================================================

========

1981

42

411

453

9.3%

-------------------------------------------------------------------

--------

As the chart demonstrates, between 1978 and 1981, the City increased the number of black firefighters from eight to forty-two — a five-fold increase that was achieved in the absence of the race-based affirmative action plan embodied in the consent decree. We regard this progress as encouraging, not ineffective. Unlike the situation in Croson, where there was no evidence in the record that the city had even considered alternatives to race-based quotas, Croson, 488 U.S. at 507, 109 S.Ct. at 729, there is strong evidence in the record of this case that the City had implemented effective alternatives to race-based quotas to remedy its prior discriminatory behavior. While the district court correctly concluded that, when the decree was entered, no black had as yet become a fire lieutenant, we believe

that, given the City's progress at the entry-level, alternative measures designed to increase black representation in the fire lieutenant ranks were feasible.
Appellants suggest several feasible alternatives to the race-based promotion remedy implemented by the City that could have made a significant difference in the representation of blacks among fire lieutenants. For 1547*1547 example, Appellants propose eliminating the addition of seniority points to the test score when determining the final score that dictates an employees' place on the eligible register. See suprapart I.D. This race-neutral alternative would prevent non-black firefighters from benefiting in the promotion context from the City's prior discrimination against blacks in entry-level hiring. The non-black status quo in the fire lieutenant ranks would not be preserved as a result of a seniority system that is a vestige of the City's prior discrimination against blacks. Under such a system, recentlyhired blacks who score higher on promotion exams than more senior non-blacks would rank higher on the eligibility register and be promoted sooner than their lower ranking but more senior non-black co-workers. Appellants also suggest that, if the Board's promotion exams had an adverse impact on blacks, a race-neutral alternative to those exams would be implementation of another test that has no such adverse impact. In addition, we note that the City could have implemented an affirmative action plan, like the one approved in Johnson, that accounted for the race of a candidate as one factor among many to be considered. The record indicates that, in spite of its progress at the entry level, the City considered no feasible alternatives to the race-based promotional quota system for fire lieutenants before it implemented this system as a remedy for prior discrimination. Considering the efficacy of alternative remedies, the relief provided in the decree cannot be reconciled with the requirement that a government's use of race must be narrowly tailored.
2. Flexibility and Duration of Race-Based Relief. In Howard, we identified several aspects of the consent decree that readily demonstrated its flexibility, short duration, and minimal adverse effects on non-beneficiaries. Howard, 871 F.2d at 1009. First, the Howard decree did not prevent non-black employees from being promoted because promotions to the target positions from the special promotion roster alternated with those from the general roster, while leaving most positions to be filled by open competition. Id. Second, the plaintiffs had to meet certain qualification criteria in order to be promoted. Id. Third, the government was not required to make unnecessary promotions simply for the sake of providing relief to the plaintiffs. Id.Fourth, the relief was not intended "to set employment percentage goals or ensure a racially balanced workforce, and it evaporate[d] when the 240 promotions [were] made." Id. A comparison of the decree we approved in Howard with the City decree in this case reveals some similarities, but some more significant differences.

Like the Howard decree, the City decree does not require unnecessary promotions in providing relief. The City decree also requires that persons who benefit from the race-based promotional relief must be Board-certified as eligible for promotion. Further, the City decree does not prevent non-black firefighters from being promoted to fire lieutenant, calling instead for alternating promotions between blacks and non-blacks. In Howard, however, the burden of the promotion plan on non-black employees was more diffused than the burden on non-black firefighters in this case. There were numerous promotion opportunities in Howard for which black and non-black employees might compete, irrespective of race, beyond the 38 positions targeted by the decree. By comparison, in this case the only promotional position for which a firefighter might reasonably compete is fire lieutenant. A firefighter would be unlikely to compete for promotions outside the career path of the BFRS. Therefore, although the City decree does not prevent promotions of non-black employees, it places a greater burden on a smaller number of non-black firefighters than theHoward decree placed on larger numbers of non-black Air Force Base employees.
There is absolutely no similarity, however, between the decree approved in Howardand the City decree in the overall objective and operation of the two decrees. TheHoward decree was intended to provide specific relief to victims of past discrimination. It did not attempt to ensure a racially balanced workforce through "blind hiring by the numbers ... amount[ing] to a rigid and impermissible quota system." Id. The overall objective of the City decree, on the other hand, is for the City to employ blacks in each job classification 1548*1548 in each of its departments in percentages which approximate the percentage of blacks in the civilian labor force of the surrounding county. Decree ¶ 5.
To achieve that objective among fire lieutenants, the City decree sets a 50% annual quota for promotions of blacks. As we explained earlier, in order to meet both its overall objective and its annual quota, the City classifies firefighters by race and makes promotion decisions based solely upon the race of the candidate. For every two promotions to fire lieutenant, one is made from the list of eligible black firefighters and one is made from the list of eligible non-black firefighters. Such use of race by the City is not narrowly tailored to provide a proper remedy for past discrimination. Rather, it is designed to achieve the unconstitutional objective of outright racial balancing.
The Supreme Court has determined that it is "`completely unrealistic' [to assume] that minorities will choose a particular trade in lockstep proportion to their representation in the local population." Croson, 488 U.S. at 507, 109 S.Ct. at 729; see also Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 493, 106 S.Ct. 3019, 3059, 92 L.Ed.2d 344 (1986) (O'Connor, J., concurring in part and dissenting in part)("[I]t is completely unrealistic to assume that individuals of each race will gravitate with mathematical exactitude to each

employer or union absent unlawful discrimination."). This determination comes despite the Court's acknowledgment that "absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired." International Bhd. of Teamsters v. United States, 431 U.S. 324, 340 n. 20, 97 S.Ct. 1843, 1856 n. 20, 52 L.Ed.2d 396 (1977). There is, however, a considerable difference between expecting to find a balanced work force, absent discrimination, and a governmentally imposed plan using race to ensure a racially balanced work force. See id. at 340 n. 20, 1856 & n. 20 (noting that, while statistics showing racial imbalance are a probative evidentiary tool often demonstrating telltale signs of racial discrimination, they cannot support "an erroneous theory that Title VII requires an employer's work force to be racially balanced").
The City's use of the 50% annual quota to establish a work force of fire lieutenants reflecting black employment in lockstep proportion to the proportion of blacks in the local labor force cannot withstand strict scrutiny. See Croson, 488 U.S. at 507, 109 S.Ct. at 729 (finding that a city's 30% contract set-aside for minority businesses "cannot be said to be narrowly tailored to any goal, except perhaps outright racial balancing"); Cone Corp., 908 F.2d at 914 (defining narrow tailoring in the context of a minority business enterprise plan to "mean[] that the plan must be designed to further some goal other than outright racial balancing"); Mann v. City of Albany, 883 F.2d 999, 1005 (11th Cir.1989) (noting that a majority of the Supreme Court has "expressed clear hostility toward government affirmative-action programs that distribute opportunities woodenly and inflexibly on the basis of an applicant's race"). The City decree institutionalizes race as the sole criteria by which the City selects certified candidates for promotion to fire lieutenant.
The City's rigid approach, while administratively convenient, is not a narrowly tailored means to remedy prior discrimination. It is instead an approach designed to achieve government-mandated racial balancing — the perpetuation of discrimination by government. We can imagine nothing less conducive to eliminating the vestiges of past discrimination than a government separating its employees into two categories, black and non-black, and allocating a rigid, inflexible number of promotions to each group, year in and year out. We conclude that the City's use of race in its affirmative action plan is not narrowly tailored to achieve a compelling government interest. Instead, it provides for "blind hiring by the numbers ... amount[ing] to a rigid and impermissible quota system." Howard, 871 F.2d at 1009.
3. Relationship of Numerical Goals to the Relevant Labor Market. We explained above that fire lieutenants are promoted from the ranks of firefighters, making 1549*1549firefighters the

relevant comparison group to which the numerical goals of the decree must be related. See supra part III.A. We have also determined that there is no relationship between the numerical goal for fire lieutenant promotions and the representation of blacks among firefighters. As such, the City's affirmative action plan does not use race in a narrowly tailored manner.
4. Impact of the Relief on Appellants. The relief provided by the decree in Howard had a limited impact on non-black employees. Certain promotions of non-black employees were delayed while the victims of past discrimination were afforded relief. This impact was limited to the length of time it took to achieve the legitimate objective of providing promotional relief to discrimination victims and the decree evaporated after the 240 promotions were made. Howard, 871 F.2d at 1009-10. In addition, non-black employees remained eligible for and experienced no delay in pursuing promotions to any of the multitude of jobs outside the 38 targeted by the decree. In fact, in the twenty-month period during which the decree operated, promotions made pursuant to the decree amounted only to slightly more than 4% of all promotions made. Id. at 1010. Under those circumstances, we determined that the burden of the race-based promotion decisions imposed on non-black employees did not "fall upon a narrow segment of the work force" and was "relatively diffuse." Id. at 1009-10.
The impact of the City decree on the non-black Appellants in this case is much more focused than that of the Howard decree. First, the alternating promotion aspect of theHoward decree delayed some promotions only until the legitimate objective of providing relief to identified discrimination victims was met. The provisions of the City decree, on the other hand, continue in place until the City achieves its unconstitutional racial balancing objective or until the district court terminates the decree. Second, while the non-black intervenors in Howard had open to them many other promotion opportunities beyond those affected by the decree, in this case non-black firefighters with more than two years' experience could only reasonably expect to compete for promotions in the BFRS to fire lieutenant. When the City decree was implemented, those among the 42 black firefighters who had two years' experience found half of all promotions to lieutenant immediately reserved for competition between them and only them, as a result of their race. Those among the 411 non-black firefighters with two years' experience were consigned by their races to competing for the other half of promotions to lieutenant. Thus, the impact of the decree on non-black firefighters in this case was not "relatively diffuse," but was instead quite pointed.
In Howard, we found that race was used by the government to provide affirmative remedies for prior discrimination in as narrow a manner as possible under the circumstances. In this case, however, as we concluded above, the City did not use race as a narrowly tailored

remedy for prior discrimination. "Under strict scrutiny the means chosen to accomplish the State's asserted purpose must be specifically and narrowly framed to accomplish that purpose." Wygant, 476 U.S. at 280, 106 S.Ct. at 1850. The use of race by government in its decision-making is "simply too pernicious to permit any but the most exact connection between justification and classification."Fullilove v. Klutznick, 448 U.S. 448, 536, 100 S.Ct. 2758, 2805, 65 L.Ed.2d 902 (1980) (Stevens, J., dissenting). The City decree uses race as an overbroad remedy, categorizing BFRS employees by race and promoting them woodenly and reflexively in rigid adherence to a quota system. This broad brush approach, designed to achieve outright racial balancing through an inflexible but administratively convenient quota system, and implemented without consideration of feasible, race-neutral alternatives designed to remedy prior discrimination, is unconstitutional. The decree violates the Appellants' rights under the Equal Protection Clause of the Fourteenth Amendment.
V. Conclusion
We hold that the fire lieutenant promotion provisions of the affirmative action plan embodied in the 1981 City decree violate both Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth 1550*1550 Amendment. We affirm the district court's holding that the Civil Rights Act of 1991 does not bar Appellants' claims. On remand, the district court should provide appropriate relief consistent with this opinion. Accordingly, the judgment of the district court is
AFFIRMED in part, REVERSED in part, and REMANDED.
[1] We affirm without discussion the district court's holding that § 108 of the Civil Rights Act of 1991 is inapplicable because the conditions for application of that section, even if retroactive application is appropriate, are not present in this case.
[2] The engineering department employee has been included among the Appellants since the original trial of Appellants' case in 1985. No material aspect of the claims relating to the engineering department is discussed in the district court opinion that is the subject of this appeal. We will, therefore, confine our analysis to the claims raised regarding the BFRS. On remand, the district court should apply our analysis and holdings to all Plaintiffs with pending claims.
[3] The Board and the City share responsibility for hiring and promoting City employees. The Board administers tests, tracks employee seniority points, and develops lists of certified candidates for various job openings within City government. When a job opening occurs, the Board certifies candidates it deems qualified for the position to the City and the appropriate City official selects a candidate from the Board-certified list. See infra part I.D.
[4] Throughout this opinion, we refer to the pyramid-type hierarchy of the BFRS as follows: firefighter is the entry-level position within the department; fire lieutenant is the first significant promotion level to which a firefighter might aspire; fire captain is the next promotion following service as a fire lieutenant; battalion chief is the position to which a fire captain might be promoted; and fire chief is the top officer within the BFRS. We mean by the term firefighter only those BFRS employees occupying entry-level positions. Firefighter does not include fire lieutenants, captains, and battalion chiefs.

[5] Testimony indicates that the Mayor called the City Council to a special meeting the day before its regularly scheduled meeting to hear a presentation by attorneys for the City regarding a proposed settlement. It is unclear from the record whether Council members were given copies of the draft consent decree at that meeting. It is clear that two City attorneys involved in the litigation and settlement negotiations discussed the general terms of the decree with the Council and recommended settlement as the preferred course over continuing to defend the City's record regarding employment opportunities for blacks and women.
[6] In 1981, when the decree was negotiated, approximately 9% of BFRS firefighters were black. This provision, therefore, meant that approximately 18% of annual promotions to lieutenant would be filled by blacks. The decree, however, also contained provisions designed to increase the number of black firefighters hired by the City. Therefore, as the percentage of black firefighters increased, the percentage of lieutenant promotions annually reserved for blacks would also increase.
[7] The record regarding back pay relief is somewhat confusing. At one stage in the negotiations, the United States was demanding that the City pay $500,000 in back pay relief to alleged victims of discrimination. The final decree provides for payment of $265,000 to settle all claims against the City. Whether the total amount of back pay relief to be provided by the City had been agreed upon when the decree was presented to the City Council is uncertain. Defense exhibit 39, the draft of the decree as it stood when the City Council met, contains a provision that "[t]he City agrees to pay the sum of $____ in full and complete settlement of the claims against the City of Birmingham for monetary relief of the blacks identified on Appendices — and — of this Decree." The Appellees maintain that attorneys for the City told the City Council that $265,000 would be paid to settle the claims.
James Baker, City Attorney when the decree was entered, testified at the 1991 trial. Baker's testimony indicates that the City Council approved a settlement sum of $265,000 when it passed Resolution 547-81. Baker testified on cross examination as follows:
Q: And you prepared Resolution 547 which authorized entry into the consent decree?
A: Yes, sir.
Q: And did Resolution 547 talk about the amount of money or just the entry into the decree?
A: My recollection is that — let me look at it and discuss the money because the City would have not been able to settle this case without council approving that sum of money being paid.
Q: Well, not only did the council approve the sum of money but the council approved entry into the decree by Resolution 547?
A: It did. Yes.
(Emphasis added.) Resolution 547-81, however, contains no reference to any sum of money to be appropriated for settlement. It simply authorizes the City Attorney, following consultation with the Mayor, to enter into a consent decree to settle pending litigation. We are unable to tell at what point the parties reached agreement on a dollar figure to settle outstanding claims. It is clear that no figure was approved in Resolution 547-81 and that the City desired to keep its financial obligations to a minimum.
[8] Certain aspects of the decree were modified by the district court in 1991. An appeal from the modification order is before another panel of this Court. See Birmingham Firefighters v. Seibels, 11th Cir., 1994, 20 F.3d 1489.
[9] The decree also provides that, subject to the availability of qualified black candidates, at least one of the next two captain vacancies in the BFRS would be filled by a black, with subsequent captain and battalion chief openings filled at the rate of two times the percentage representation of blacks in the job category from which captains and battalion chiefs are usually drawn. Decree ¶ 8. It is unclear exactly how this provision was intended to work given that, at the time the decree was entered, there were no black lieutenants from which to select a black captain. Another provision of the decree, however, provides some insight: "Employees who have obtained permanent status as fire lieutenant or fire captain shall not be deemed ineligible for promotion to the next higher rank based upon any minimum length of service or time in rank." Decree ¶ 19b. This allows black firefighters to progress rapidly through the ranks of lieutenant and captain to battalion chief.

[10] A district court need not await a party's motion to terminate a consent decree over which the court retains supervisory jurisdiction. When the remedy prescribed in the consent decree is accomplished, the district court may sua sponte terminate the decree. United States v. City of Miami, 2 F.3d 1497, 1506 (11th Cir.1993). The district court has not yet acted to terminate the City decree.
[11] See also Local Number 93 v. City of Cleveland, 478 U.S. 501, 515, 106 S.Ct. 3063, 3072, 92 L.Ed.2d 405 (1986) (finding, for purposes of Title VII analysis, no need to distinguish between an employer's actions taken pursuant to a consent decree and voluntary action taken outside the litigation context); but see United States v. Paradise, 480 U.S. 149, 193-195, 107 S.Ct. 1053, 1078-79, 94 L.Ed.2d 203 (1987) (Stevens, J., concurring) (comparing the presumption against race-conscious decisionmaking a government must overcome when fashioning an affirmative action plan with the duty that a district court has to fashion a race-conscious remedy after finding a government guilty of racial discrimination and suggesting greater deference to the court ordered remedy).
[12] See also Mary C. Daly, Some Runs, Some Hits, Some Errors — Keeping Score in the Affirmative Action Ballpark from Weber to Johnson, 30 B.C.L.Rev. 1 (1988). Daly describes the opinions in the nine Supreme Court affirmative action cases preceding Croson as "lengthy, incohesive, contradictory, and ambiguous.... occupy[ing] over five hundred fifty-four pages in the official reporters and consist[ing] of forty-six majority, plurality, concurring, and dissenting opinions." Id. at 5. Daly notes further that "[e]ven within a single case, it is often impossible to discern the Court's holding because not every Justice in the majority will endorse the entire majority opinion" and frequently no majority opinion was produced at all. Id.
[13] This necessarily means that an employee with less seniority must have a higher converted score than a more senior employee in order to attain a higher final score and a higher ranking on the eligible register.
[14] The "rule of three" was in effect at all times pertinent to this appeal.
[15] This method was employed by the BFRS from the inception of the consent decree through 1988. In 1988, the BFRS began to use internal review panels to interview and evaluate the promotion candidates certified as eligible by the Board. This review panel system is not relevant to our inquiry because the City's actions about which Appellants here complain occurred before 1988 under the system described above.
[16] In Croson, a city attempted to remedy alleged discrimination in the construction industry by establishing minority business subcontractor set-asides for general contractors bidding on city construction projects. 488 U.S. at 476, 109 S.Ct. at 713. The city was not attempting to develop a remedy for its own past discrimination. Id. at 497, 109 S.Ct. at 724. This case, however, involves a city attempting to remedy under-representation of blacks and women that, the district court found, arose from the City's own previous discriminatory employment practices, the evidence of which was before the City when it acted.
[17] See also United Steelworkers v. Weber, 443 U.S. 193, 204, 99 S.Ct. 2721, 2728, 61 L.Ed.2d 480 (1979) (observing, in a case involving a private employer, that "[i]t would be ironic indeed if a law triggered by a Nation's concern over centuries of racial injustice and intended to improve the lot of those who had been excluded from the American dream for so long, constituted the first legislative prohibition of all voluntary, private, raceconscious efforts to abolish traditional patterns of racial segregation and hierarchy") (citation omitted); id. at 200, 99 S.Ct. at 2726 (noting the "`familiar rule that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers'" (quoting Holy Trinity Church v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892)).
[18] We address only the promotion provisions of the City plan in this appeal. Promotions, by their very nature, involve elevating a current employee to a higher position. Status as a department employee, therefore, is a prerequisite to promotion within a City department. Simply put, an employee must first be a firefighter before becoming a fire lieutenant, a fire lieutenant before becoming a captain, and so forth.
Under the terms of the decree, the City cannot require a firefighter to serve longer than two years in that position before becoming eligible to take a promotional exam for fire lieutenant. Decree ¶ 19b. Further, the decree specifically removes all length of service and time-in-grade requirements for promotions to captain or above. Id. So, fire lieutenants promoted under the decree must have a minimum of two years' experience as a firefighter, but there is no minimum experience as a lieutenant required to become a captain, or as a captain in order to become a battalion chief.

[19] The Court noted that the agency director testified that Joyce's sex was only one of numerous factors he considered in reaching the decision to promote her instead of Johnson. The Court likened the agency plan to the "Harvard Plan" approvingly discussed by Justice Powell in Regents of University of California v. Bakke, 438 U.S. 265, 315-318, 98 S.Ct. 2733, 2761-63, 57 L.Ed.2d 750 (1978) (approving consideration of an applicant's race in a college admission program as a plus in the applicant's favor while not insulating the applicant from comparison with all other candidates for admission).
[20] The Equal Protection Clause provides, in relevant part, that "[n]o State shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1.
[21] We discussed above and rejected Appellants' assertion that, under Croson, the City was required to articulate specific findings of its past discrimination before entering the consent decree.See supra part III.A.1.
[22] We are unable to determine from the record how much of this progress to attribute to the effect of the City Council measure ordering department heads to set and achieve minority employment goals and how much to attribute to the curative measures the district court ordered the Board to take after finding that its entry-level tests had an adverse impact on blacks. We presume that the two worked in concert.

 
 806 F.Supp. 926 (1992)
James A. BENNETT, et al., Plaintiffs, v.
Richard ARRINGTON, et al., Defendants. B'HAM ASS'N OF CITY EMPLOYEES, et al., Plaintiffs,
v. Richard ARRINGTON, et al., Defendants.
Robert L. WILKS, et al., Plaintiffs, v.
Richard ARRINGTON, et al., Defendants. In re BIRMINGHAM REVERSE DISCRIMINATION EMPLOYMENT
LITIGATION.
Nos. CV 82-P-0850-S, CV 82-P-1852-S, CV 83-P-2116-S and CV 84-P-0903-S.
United States District Court, N.D. Alabama, S.D.
August 14, 1992.
Barbara Thawley, Washington, D.C., for U.S. Dept. of Justice, Civ. Rights Div.
Jack Selden, U.S. Atty., Caryl Privett, Asst. U.S. Atty., Birmingham, Ala., for U.S. Atty.
Thomas L. Stewart, Laveeda Morgan Battle, Birmingham, Ala., Personnel Bd. of Jefferson County.
James Alexander, Robert Spotswood, Birmingham, Ala., for City of Birmingham and Arrington.
Demetrius Newton, City Atty., Birmingham, Ala., for Birmingham.
927*927 Raymond Fitzpatrick, Birmingham, Ala., for plaintiff intervenors in consolidated cases.
Susan Reeves, Birmingham, Ala., Robert D. Joffe, New York City, St. John Barrett, Washington, D.C., for defendant intervenors.
OPINION
POINTER, Chief Judge.

The City of Birmingham ("the City") and the Jefferson County Personnel Board ("the Board"), after prolonged litigation in the 1970s over discriminatory hiring and promotion of blacks and females, entered into settlement negotiations with a class of black plaintiffs ("the Martin Intervenors") and the United States. The negotiations resulted in separate proposed consent decrees with the City and the Board. A fairness hearing was held in August 1981 to consider objections from all interested parties. The Birmingham Firefighters Association ("BFA"), as amicus curiae, presented arguments opposing the consent decrees. Their opposition focused on the proposed affirmative action goals, which would impact adversely on white males in the Fire Department.
The court approved the consent decrees on August 18, 1981. The following day the BFA and two white firefighters moved to intervene in the suit. Their motion was denied as untimely, a ruling that was later upheld by the Eleventh Circuit in United States v. Jefferson County, 720 F.2d 1511, 1520 (11th Cir.1983). A separate suit (CA 82-P-850-S) was then filed by seven white firefighters against the City and the Board, claiming "reverse discrimination" would result from enforcement of the consent decrees. An application for a preliminary injunction was denied, and the Eleventh Circuit affirmed, ruling that the white firefighters were unable to show irreparable harm if the decrees were enforced. United States v. Jefferson County, 720 F.2d at 1520, 1519-20 n. 21. Similar cases were later filed by other white employees of the City.
These cases were consolidated as the "Birmingham Reverse Discrimination Employment Litigation." Once the Martin Intervenors intervened as party defendants to defend the decrees, a motion for partial summary judgment was brought by the City and the intervening parties. The motion for partial summary judgment was denied, and a trial was held in December 1985 on the merits of three test cases.[1]Following the trial, the court denied the plaintiffs' claims.[2] An appeal followed, and the Eleventh Circuit held that the white plaintiffs were not bound by the consent decrees since they were not a party to them. In re: Birmingham Reverse Discrimination Employment Litigation, 833 F.2d 1492 (11th Cir.1987). The Supreme Court agreed with the Court of Appeals. Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989). The case was remanded to the district court for a further trial on the merits of the plaintiffs' reverse discrimination claims. Following additional discovery, the trial was held October 21, 1991, and post-trial briefs and reply briefs were submitted by the parties. Upon consideration of the evidence before the court, the court concludes that plaintiffs' claims must be denied.
928*928 STANDARD OF REVIEW

Since this case is founded on race-based employment decisions by a public employer, although pursuant to a court-approved remedial action plan, the court must apply a strict standard of review, or strict scrutiny, to the city's decision-making process. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S.Ct. 706, 720, 102 L.Ed.2d 854 (1989) (O'Connor, J., separate opinion).
CIVIL RIGHTS ACT OF 1991
An initial matter to be addressed is the applicability of section 108 of the Civil Rights Act of 1991. Section 108 amends 42 U.S.C. § 2000e-2 to provide that employment decisions made pursuant to a valid consent decree which is entered under claims of public employment discrimination may not be challenged on a constitutional basis (i) by a person who, prior to the entry of decree, had actual notice of the decree sufficient to advise him that it could adversely affect him and that he could challenge it, and an opportunity to object, or (ii) "by a person whose interests were adequately represented by another person who had previously challenged the [decree] on the same legal grounds and with a similar factual situation, unless there has been an intervening change in law or fact." It is unnecessary to step into the mire of possible retroactive application of this section, since neither of the conditions was satisfied. The court's decision therefore is grounded in the constitutional analysis developed in recent Supreme Court rulings.
ANALYSIS
The central issue is whether the constitutional rights of the white firefighters were violated by the promotional decisions made by the City pursuant to the consent decree entered into by the City, the United States, and the Martin Intervenors.[3] The Eleventh Circuit directed this court to evaluate whether the consent decree, while not binding on the white firefighters, nevertheless provided the basis for a defense by the City to charges of discrimination when making promotional decisions pursuant to this decree. This directive involves basic consideration of a two-pronged inquiry underJohnson v. Transportation Agency, 480 U.S. 616, 631, 637-38, 107 S.Ct. 1442, 1451, 1454-55, 94 L.Ed.2d 615 (1987). The first inquiry is whether the adoption of a race-based promotional plan "was justified by the existence of a `manifest imbalance' that reflected underrepresentation of [blacks] in `traditionally segregated job categories'."Id. at 631, 107 S.Ct. at 1451 (quoting Steelworkers v. Weber, 443 U.S. 193, 197, 99 S.Ct. 2721, 2724, 61 L.Ed.2d 480 (1979)). The second consideration is whether the plan "unnecessarily trammeled the rights of [white] employees or created an absolute bar for their advancement." Id. at 637-38, 107 S.Ct. at 1454-55. The court concludes that the first condition is met and that the plan did not unnecessarily

trammel the rights of whites, nor did it create an absolute bar to their opportunity for advancement.
Was the City justified in entering the consent decree?
Since the City's promotional decisions were clearly race-conscious in that they were mandated by a race-conscious consent decree, the burden is on the City to show its adherence to the decree provides a valid defense for the plaintiffs' claims. The City has met that burden.
First, the City must show that before entering into the consent decree it had a "strong basis in evidence" for believing that it had discriminated against minorities. It does not have to prove that there was an actual finding, either judicial or otherwise, that it discriminated in order to show that it was justified in entering the consent decree.[4]Although Croson did affect the way 929*929 the court evaluates a claim of reverse discrimination, it did not overrule the Supreme Court's earlier holding that statistical evidence can support a finding of discrimination: "Where gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination." Hazelwood School District v. United States, 433 U.S. 299, 307-08, 97 S.Ct. 2736, 2741, 53 L.Ed.2d 768 (1977), quoted in Peightal v. Metropolitan Dade County, 940 F.2d 1394, 1401-02 (11th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 969, 117 L.Ed.2d 134 (1992). In the 1985 trial of these cases, the court found that there was significant evidence of prior discrimination at the time the City entered into the consent decrees. See In re: Birmingham Reverse Discrimination Employment Litigation, 39 F.E.P.C. (BNA) 1431, 1437, ¶¶ 12-13 (N.D.Ala.1985); see also United States v. Jefferson County, 28 F.E.P.C. (BNA) 1834 (N.D.Ala.1981). The additional evidence presented in the 1991 trial confirms those findings.
It should be emphasized that, prior to the City's entering the consent decrees, there had been a district court decision — affirmed in pertinent parts by the Court of Appeals — holding that the tests used by the Personnel Board to determine persons eligible for entrylevel positions in the City's police and fire departments had a severe adverse impact on blacks and were not sufficiently job-related to pass muster under Title VII. See Ensley Branch of N.A.A.C.P. v. Seibels, 616 F.2d 812 (5th Cir.1980). The discriminatory restrictions on these entry-level positions also meant, of course, that blacks had been denied the opportunity to hold higher level positions in these departments. There then had been — again before the consent decree was entered — a further trial, with voluminous evidence, attacking scores of other tests and selection devices administered by the Personnel Board as having a similar adverse impact and insufficient job-relatedness. It was only when faced

with the imminence of a decision by the district court concerning these tests and devices that the consent decrees were entered.
Was the consent decree narrowly tailored?
The closer question seems to be the second prong of this inquiry: Whether the consent decree was sufficiently limited and tailored to the appropriate relief. An initial consideration in determining whether the relevant decrees were narrowly tailored is whether the City pursued other means to increase the representation of minorities in the Department. Other factors utilized by the Supreme Court in United States v. Paradise, 480 U.S. 149, 171, 107 S.Ct. 1053, 1066, 94 L.Ed.2d 203 (1987) (Brennan, J., plurality opinion) (citing Sheet Metal Workers v. EEOC, 478 U.S. 421, 481, 486, 106 S.Ct. 3019, 3052, 3055, 92 L.Ed.2d 344 (1986)), in evaluating whether race-conscious employment measures by a public employer are narrowly tailored, are "the necessity for the relief and the efficacy of alternative remedies; the flexibility and duration of the relief, including the availability of waiver provisions; the relationship of the numerical goals to the relevant labor market; and the impact of the relief on the rights of third parties." Id. at 171, 107 S.Ct. at 1066.
These factors, applied to the facts of this litigation, show that the decree is limited and tailored to the relief necessary to overcome the employment effects of past discrimination by the City. The City did attempt to correct its past discrimination in or around 1974, prior to the entry of the consent decree. City Mayor Richard Arrington testified that an affirmative action 930*930 ordinance was proposed and submitted to the City Council which would have "establish[ed] some goals for minority hiring" and "would have permitted the City to carry out certain efforts in recruitment to try to increase the pool in which [the City] hired people.... It was aimed at trying to increase minority hiring in the City of Birmingham." Trial Trans. at 96.[5] The ordinance was adopted by the City Council, but later vetoed by the then Mayor Seibels. A subsequent ordinance was later passed which placed the responsibility on various City department heads to set and achieve minority employment goals. Trial Trans. at 97-98. These alternative measures were not effective, as evidenced by the hiring of only two blacks in the Fire Department by 1974. Indeed, the employment records offered at trial show that as of July 21, 1981, only 9.3% of the firefighters were black, and none of the fire lieutenants, captains, or battalion chiefs were black.[6]
The City decree also satisfies considerations of flexibility and duration. It does not require the City to promote unqualified blacks in the Fire Department. Instead, it requires that, when both black and white firefighters are certified to the Fire Department as qualified applicants for a promotion, the Department will alternate between blacks and whites, selecting the

white or black applicant who is ranked highest according to the Board's ranking procedure.[7]
The consent decree is also tailored to the relief sought by its limitation in time to achievement of the long term goal of attaining employment representation of blacks and women in the City's work force in approximate relation to their respective percentages in the civilian labor force of Jefferson County as shown in the 1970 federal census. It provided for modification in the long term goal in accordance with any changes in the appropriate work force reflected in the 1980 census. City of Birmingham Consent Decree, para. 5. Annual goals were established to meet that long term goal. Specifically in regard to promotion in the Fire Department, an interim goal was established, subject to the availability of qualified blacks, of the promotion of one black for the next two captain positions that were vacant. Thereafter, until the long term goal in the Department was met, blacks should be promoted to captain vacancies "at twice the black percentage representation in the job classification from which promotional candidates are traditionally selected for [that] job." Id. at para. 8. The decree further provided for direct recruitment of blacks when insufficient numbers of blacks to fill the interim goals were certified to the City by the Board. Id. at para. 10b(i). The decree also provided that reduction of the underrepresentation of blacks and females would be pursued through departmental affirmative action plans,id. at para. 11; through an affirmative job recruitment program administered through, but not limited to, local high schools, vocational schools, colleges and organizations aimed at obtaining job opportunities for minorities, id. at para. 14; 931*931 through advertising for qualified minorities, id.; and through job posting, id. at para. 15. In addition, the decree provided that any party could move the court for dissolution of the decree after six years from the date it was entered. Id. at para. 55. In fact, upon motion, the decree was modified in May 1991 by this court based on its continuing jurisdiction over the decree.[8]
The decree was also tailored to an appropriate relevant labor market when the City agreed to it. The decree provides for hiring goals for blacks in proportion to their representation in the labor force of Jefferson County.[9] Since the position of firefighter is an unskilled position, this is an appropriate correlation under Johnson v. Transportation Agency, 480 U.S. 616, 631-32, 107 S.Ct. 1442, 1451-52, 94 L.Ed.2d 615 (1987). The promotions within the Fire Department to captain and battalion chief were tied to the black representation within that Department, albeit accelerated by the original interim goal to twice the representation of blacks in the Department.
In earlier litigation of this case, the court found that "[s]ince the entry of the Decree, some [whites] have been promoted immediately upon certification, others after only a delay, and those not promoted have had or will have an opportunity to compete as each new exam is

given and an eligible register (which is valid for only a year) is created." See 39 F.E.P.C. (BNA) 1431 (N.D.Ala.1985) (Findings of Fact No. 14). These findings show that the effect on third parties, specifically the white firefighters complaining of racial discrimination in this case, is an acceptable burden. There were no provisions to use layoffs as a means for favoring junior black employees over more senior white employees, nor was there an absolute bar to promotions for white Department members, since half of the promotions would be whites. See Johnson v. Transportation Agency, 480 U.S. 616, 631-32, 107 S.Ct. 1442, 1451-52, 94 L.Ed.2d 615 (1987).
CONCLUSION
This court concludes that the City's actions, taken pursuant to the consent decree constituted valid, constitutional decisions. See, e.g., Stuart v. Roache, 951 F.2d 446 (1st Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1948, 118 L.Ed.2d 553 (1992). The various claims, counterclaims, and crossclaims in CV 82-P-850-S, CV 82-P-1852-S, and CV 83-P2116-S must be denied. In the absence of any just reason for delay, the order accompanying this opinion also directs final judgment in CV 84-P-0903-S pursuant to Fed.R.Civ.Proc. 54(b) to the extent these matters have previously been incorporated as part of that case.
Order and Final Judgment
In accordance with the accompanying Opinion, it is ORDERED and ADJUDGED as follows:
1. All claims, counterclaims, and crossclaims in CV 82-P-850-S are DISMISSED with prejudice, and each party shall bear its own costs.
2. All claims, counterclaims, and crossclaims in CV 82-P-1852-S are DISMISSED932*932 with prejudice, and each party shall bear its own costs.
3. All claims, counterclaims, and crossclaims in CV 83-P-2116-S are DISMISSED with prejudice, and each party shall bear its own costs.
4. All claims for attorneys fees in CV 82-P-850-S, CV 82-P-1852-S, and CV 83-P-2116-S under 42 U.S.C. § 1988, Title VII of the Civil Rights Act of 1964 and 28 U.S.C. § 2412(d) are DENIED.
Pursuant to Fed.R.Civ.P. 54(b), the Court determines that there is no just reason for delay, and expressly directs that judgment in CV 84-P-903-S be entered to the extent the claims,

counterclaims, and crossclaims described in paragraphs 1-4 of this order have otherwise been incorporated as part of CV 84-P-903-S.
[1] The three test cases were CV 83-P-2116-S, involving the claims of plaintiffs Robert K. Wilks, Ronnie J. Chambers, Carlice E. Payne, John E. Garvich, Jr., Robert Bruce Millsap, James W. Henson, Howard E. Pope, and Charles E. Carlin; CV 82-P-850-S, involving the claims of plaintiffs Floyd E. Click, James D. Morgan, Joel Alan Day, Gene E. Northington, Vincent Joseph Vella and Lane L. Denard; and CV 82-P-1852-S, involving the claims of plaintiffs Kenneth O. Ware and the Birmingham Association of City Employees. The plaintiffs in the first two cases listed here were employees of the Birmingham Fire Department; Kenneth O. Ware, an individual plaintiff in the third listed case, was a City Civil Engineer. There have been other members of the fire and engineering departments allowed to intervene in CV 84-P-0903-S.
[2] Numerous findings of fact were made by the district court. See 39 F.E.P.C. 1431-46 (BNA) (N.D.Ala.1985). There is no need to repeat these findings, which were not set aside on the appeal and under the law of the case remain as determinations for purposes of this decision.
[3] The court had decided at the December 1985 trial that these promotional decisions had been made pursuant to the decree. 39 F.E.P.C. 1431 (BNA) (N.D.Ala.1985). These findings were not disturbed on appeal by the Eleventh Circuit or the Supreme Court.
[4] The burden on the defendants in this action is not to prove at trial the existence of past discrimination by the City. Instead, the issue is whether at the time it agreed to the consent decree the City had a strong basis in evidence for believing that there had been discrimination against blacks (and women). See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (plurality opinion); Howard v. McLucas, 871 F.2d 1000 (11th Cir. 1989). Indeed, actual "findings" of discrimination need not be made by the City at all. See Wygant, 476 U.S. at 289, 106 S.Ct. at 1854 (O'Connor, J., concurring in part and concurring in the judgment); Howard v. McLucas,871 F.2d at 1006.
[5] Mayor Arrington, then a member of the City Council, in 1974 supported the City's adoption of the ordinance.
[6] According to the Birmingham Personnel Board's July 21, 1981, affirmative action report, 42 of 453 firefighters in the Birmingham Fire Department were black, 2 of the 10 fire communications operators were black, and zero out of 94 fire lieutenants, 31 fire captains and 15 fire battalion chiefs were black.
[7] The Board ranks individuals according to two factors. The first factor is the applicant's score on a job-related test administered by the Board. The second factor is the number of seniority points achieved by the individual. Seniority points are accumulated according to the number of years of service, with a maximum of 20 points available to an individual.
The court made specific findings of fact regarding seniority points in the 1985 trial of these consolidated cases. In short, it found that there was "no evidence demonstrating a relationship between [Department] seniority and job performance as an officer." Since blacks were effectively barred from employment in the Department, as evidenced by the presence of only two black hires before the first discrimination suit in 1974, seniority points were found to have an "obvious adverse impact." Thus, seniority was found not to be a factor that the Fire Department could use in choosing between black and white candidates for promotion. 38 F.E.P.C. (BNA) 1431 (N.D.Ala.1985) (Findings of Fact Nos. 58-60).
[8] The May 1991 modifications were amended by order of the district court dated September 25, 1991, to provide, in relevant part, that the promotional goals set for blacks in paragraph 8 of the decree "shall not apply if all testing and screening procedures utilized by the Personnel Board and by the City with respect to a job classification either have no adverse impact upon such persons or are demonstrated to be valid under applicable law." September 25, 1991, order amending the consent decree with the City of Birmingham. Furthermore, the decree modification was amended to provide that the interim goals for promotions in the Fire Department would change to reflect promotions "in approximately the same proportion as the percentage of black applicants for such positions" once the hiring goals for blacks in the Department were met. Id.

[9] Expert witness testimony regarding the City's selection of the relevant labor force shows that the City did not select the labor force which would have reflected the highest percentage of blacks. The labor force of the City of Birmingham proper, according to the 1980 federal census, consisted of 49.9% blacks and 50.1% whites, while the labor force of Jefferson County was 28.1% blacks and 71.9% whites. Use of the City's relevant labor force in fashioning the City's goals would have resulted in significantly higher goals for black employment.

 
 20 F.3d 1489 (1994)
ENSLEY BRANCH, N.A.A.C.P.; Donald Nixon; William Moss; Alvin Mahaffey, Jr.; et al., Plaintiffs,
Birmingham Fire Fighters Association 117; Birmingham Association of City Employees; et al., Intervenors, v.
George SEIBELS, individually and as Mayor of the City of Birmingham, et al., Defendants.
John W. MARTIN; Major Florence; Ida McGruder; Sam Coar; et al., Plaintiffs,
Birmingham Fire Fighters Association 117; Birmingham Association of City Employees; Billy Gray; et al., Intervenors, v.
CITY OF BIRMINGHAM; George C. Seibels, Jr.; Mayor of Birmingham; Jefferson County Personnel Board; et al., Defendants. UNITED STATES of America, Plaintiff-Appellant,
Birmingham Fire Fighters Association 117; et al., Intervenors, Robert K. Wilks; James A. Bennett; Floyd E. Click; James D. Morgan;
Joel Alan Day; et al., Plaintiffs-Intervenors-Appellants, v.
JEFFERSON COUNTY, et al., Defendants, City of Birmingham; and George G. Seibels; et al., Defendants-
Appellees.
No. 91-7799.
United States Court of Appeals, Eleventh Circuit.
May 4, 1994.
1490*1490 1491*1491 1492*1492 Raymond P. Fitzpatrick, Jr., Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, AL, Miriam R. Eisenstein, Civ. Rights
Div., Dept. of Justice, Marie K. McElderry, Dennis J. Dimsey, U.S. Dept. of Justice, Washington, DC, Frank W. Donaldson, U.S. Atty., Birmingham, AL, for U.S.
Mark T. Waggoner, LaVeeda M. Battle, Gorham, Waldrep, Stewart, Kendrick, Bryant, Battle & Alfano, P.C., Birmingham, AL, for Jefferson County Personnel Bd.

James P. Alexander, Bradley, Arant, Rose & White, Birmingham, AL, for Richard Arrington, Jr. and City of Birmingham.
Robert D. Joffe, Cravath, Swaine & Moore, New York City, for Bryant.
Before EDMONDSON and CARNES, Circuit Judges, and HILL, Senior Circuit Judge.
CARNES, Circuit Judge:
This litigation began more than twenty years ago when the United States and private parties filed civil rights complaints against the City of Birmingham, the Personnel Board of Jefferson County, and other local governmental agencies and officials.[1]The City and the Board share responsibility for hiring and promoting local government employees. The Board, pursuant to state law, administers written tests and other job selection procedures that produce a pool of qualified, or "certified," candidates for a particular position. See Act of July 6, 1945, No. 248, §§ 2, 16, 1945 Ala.Acts 376, 377-79, 391-92 ("Act of 1945"). The Board ranks the passing applicants and then forwards a list of the top candidates to the City for final selection. See id., § 18, 1945 Ala.Acts at 392-94 (regulating civil service appointments), amended, Act of May 4, 1989, No. 89-467, § 1, 1989 Ala.Acts 967, 967-70 ("Amendments of 1989"). The original complaints alleged, first, that the Board used discriminatory tests to determine eligibility for hiring and promotion, and second, that the City and other "employing agencies engaged in still 1493*1493 further discrimination when selecting individuals from [the Board's] already tainted lists." In re Birmingham Reverse Discrimination Employment Litig., 37 Fair Empl.Prac.Cas. (BNA) 1, 2, 1985 WL 1415 (N.D.Ala.1985). Over the past twenty years, the resulting litigation has prompted three decisions of this Court and one of the Supreme Court.
This appeal stems from a recent proceeding to modify two consent decrees negotiated thirteen years ago by the original parties. In the present appeal, none of the original parties contends that the district court's modifications were inappropriate—as far as those modifications went. Instead, the United States, joined by an intervening class of male, nonblack employees of the City (the "Wilks class"), contends that the district court failed to go far enough in modifying the consent decrees to address changed circumstances. Because we agree that the Constitution requires further modifications, we reverse a portion of the district court's order and remand for further proceedings.
More specifically, we hold that the district court should: determine whether the City and the Board have a strong basis in evidence for their conclusion that race-based affirmative action is necessary in departments other than the police and fire departments, and if not, terminate the race-based goals with respect to those other departments; order the City and Board to

implement valid job-selection procedures forthwith; prohibit appointments based on race or gender after valid procedures are in place, unless the district court specifically finds that further affirmative action is needed to remedy the lingering effects of discrimination; revise the decrees' annual appointment goals for blacks to reflect the proportion of blacks in the pool of qualified applicants; and award appropriate attorneys' fees to the Wilks class.
Part I of this opinion sets forth the factual and procedural background of the present litigation. Part II sets forth our standards of review. Part III concerns the decree modification issues: subpart A discusses the applicable law; subpart B applies that law to the decrees' race-conscious affirmative action provisions; and subpart C applies the law to the decrees' gender-conscious affirmative action provisions. Part IV involves an attorneys' fees issue. Part V concludes.
I. BACKGROUND
The size and complexity of this case require that we consider its history in some detail. Whenever possible, we draw on our prior decisions to summarize what has come before.
A. THE COMPLAINTS, FIRST TRIAL, AND APPEAL
The first six years of litigation began with a series of lawsuits against the City and Board alleging discriminatory employment practices:
On January 4, 1974, the Ensley Branch of the National Association for the Advancement of Colored People, together with certain named individuals, for themselves and on behalf of others similarly situated, filed a complaint in the United States District Court for the Northern District of Alabama, against George Seibels (then Mayor of Birmingham, Alabama), the City of Birmingham, the members of the Personnel Board of Jefferson County, and the Personnel Director of that Board, alleging that the defendants engage in discriminatory hiring practices against blacks in violation of the Fourteenth Amendment, 42 U.S.C. §§ 1981, 1983, and 2000e et seq. (Title VII). A suit raising the same constitutional and statutory allegations was filed on January 7, 1974, by John W. Martin and other named plaintiffs [the "Martin class"] against the City of Birmingham, Jefferson County, and the Personnel Board of Jefferson County. On May 27, 1975, the United States brought suit against the Jefferson County Personnel Board and the municipal and other governmental jurisdictions within Jefferson County alleging a pattern or practice of discriminatory employment practices against blacks and women in violation of Title VII, the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 42 U.S.C. § 3766(c), the State and Local Fiscal Assistance Act of 1494*14941972, as amended, 31 U.S.C. § 1242, the

Fourteenth Amendment and 42 U.S.C. § 1981. On February 20, 1976, Lucy Walker filed suit challenging the employment practices of the Jefferson County nursing home under Title VII and 42 U.S.C. § 1981. All four cases were consolidated for trial.
On December 20-22, 1976, trial was held on the merits of the limited issue of whether the two tests used by the Personnel Board to screen and rank applicants for positions as police officers and firefighters [were] discriminatory and violative of the constitutional or statutory rights of blacks. All other issues under the complaints were reserved until a later date.
Ensley Branch, NAACP v. Seibels, 616 F.2d 812, 814-15 (5th Cir.) (footnotes omitted), cert. denied, 449 U.S. 1061, 101 S.Ct. 783, 66 L.Ed.2d 603 (1980).
The police officer and firefighter tests at issue were written examinations consisting of 120 multiple-choice aptitude and knowledge questions. Ensley Branch, NAACP v. Seibels, 13 Empl.Prac.Dec. (CCH) ¶ 11,504, at 6797 & n. 16 (N.D.Ala.1977), aff'd. in part and rev'd in part, 616 F.2d 812 (5th Cir.), cert. denied, 449 U.S. 1061, 101 S.Ct. 783, 66 L.Ed.2d 603 (1980). The score required to pass each test varied with the number of vacancies and other factors. Ensley Branch, 616 F.2d at 816 n. 10. Under procedures still in place today, the Board ranks passing applicants on an eligibility list according to their score. Id. at 816. For promotional positions, an applicant's score is increased by one point for each year of seniority. See Act of 1945, § 20, 1945 Ala.Acts at 394-95; accord In re Birmingham Reverse Discrimination Employment Litig., 37 Fair Empl.Prac. Cas. (BNA) 1, 5 (N.D.Ala.1985). When a vacancy arises, the Board forwards the top three names from the eligibility list to the City for final selection. See Act of 1945, § 18, 1945 Ala.Acts at 392-94, amended, Amendments of 1989, § 1, 1989 Ala.Acts at 967-70;[2] accord 37 Fair Empl.Prac.Cas. (BNA) at 5 & n. 12. As discussed below, the district court in 1981 approved a pair of consent decrees requiring the City and Board to modify their procedures to take into account race and gender as well.
Ironically, the firefighter and police officer tests challenged in the original trial were themselves adopted, or at least modified, for the specific purpose of hiring more blacks. As the district court explained:
In late 1965, following an independent study as to why no blacks were then employed as police officers in the City of Birmingham, the Personnel Board decided to replace its police and firefighter exams with tests developed by the Public Personnel Association, now known as the International Personnel Management Association. IPMA tests were being widely used in other parts of the country and were considered by the Board as superior to other tests then available. The change was part of a multi-faceted program intended to increase black participation in governmental positions.

Ensley Branch, 13 Empl.Prac.Dec. (CCH) ¶ 11,504, at 6795. On the advice of consultants that some test questions were more predictive than others of blacks' future job performance, the Board in 1974 began to use a new scoring key that was designed to "increase validity of the [police officer] test for black applicants."[3] Id. The Board also began actively to encourage blacks to apply, to waive examination fees, to experiment with reducing the passing score for the police officer test, and to eliminate priority for applicants residing within the employing agency's jurisdiction. Id.at 6795-96.
After assessing these efforts to increase black employment, the district court concluded that the Board's "selection, administration and use" of the two tests had not been 1495*1495 motivated by a "design or intent ... to discriminate on the basis of race or color" and therefore did not violate the Equal Protection Clause.[4] Id. at 6796. The plaintiffs did not appeal that finding. Ensley Branch, 616 F.2d at 815 n. 5.
The district court also found, however, that the police officer and firefighter tests violated Title VII. The court noted that both tests had a significant adverse impact on black applicants, a phenomenon defined as a passing rate "less than four-fifths ... of the rate for [whites]." Ensley Branch, 13 Empl.Prac. Dec. (CCH) ¶ 11,504, at 6796-97 (internal quotation marks omitted). The court ruled that the tests could be used only if, despite their adverse impact, they were sufficiently "job related" to predict effectively test takers' future job performance. Id. at 6796 nn. 10-11, 6806. After reviewing testing data, the court concluded that the tests failed to meet this standard.Id. at 6798-6808.
The court found no statistically significant correlation between the applicants' scores on the firefighter test and their later job performance. Although there was a significant positive correlation between test scores and job performance during the first three years of a firefighter's service, the court found a significant negative correlation between test scores and job performance after the first three years. Id. at 6803. To the court, these findings "suggest[ed] that over time the lower scoring applicants made the better employees." Id. Thus, "one is hard pressed to conclude that the higher scoring [firefighter] applicants are in fact the better persons to hire." Id.
The district court analyzed the police officer test somewhat differently. Operating under the assumption that supervisor bias had not influenced black officers' performance ratings, id. at 6802, the district court found a statistically significant correlation between black police officers' test scores and their later job performance,id. at 6803. Nevertheless, the district court concluded that "the magnitude of the positive prediction is so low that the test is worthless for all practical purposes."Ensley Branch, 616 F.2d 812, 818 n. 16 (5th Cir.), cert. denied, 449 U.S. 1061, 101 S.Ct. 783, 66 L.Ed.2d 603 (1980). Among its many

detailed findings, the district court determined that "use of the test predicts [job performance] with a margin of error that is only 2% smaller than it would be without the test." Ensley Branch, 13 Empl.Prac.Dec. (CCH) ¶ 11,504, at 6804. The court also found the test could not predict with a reasonable degree of certainty whether any one applicant would actually perform better than any other. Id. at 6805. The district court therefore concluded that the tests were not sufficiently "job-related" to satisfy Title VII, 42 U.S.C. § 2000e-2(h). Id. at 6806-08; see generally Albemarle Paper Co. v. Moody,422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975) ("Title VII forbids the use of employment tests that are discriminatory in effect unless the employer meets `the burden of showing that any given requirement [has] ... a manifest relationship to the employment in question.'" (quoting Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971))).
As a remedy for the Board's use of illegal tests, the district court ordered race-conscious relief "[p]ending adoption of some selection procedure which either has no adverse effect upon black applicants or is sufficiently job-related." Ensley Branch, 13 Empl.Prac.Dec. (CCH) ¶ 11,504, at 6808. The district court:
ordered that blacks be referred for openings on the police and firefighter forces at the rate at which they took the tests when most recently administered. To accomplish this, the Court ordered that the names of a sufficient number of blacks be added to the current police and firefighter eligibility lists [which included passing applicants from the most recent test administration] so that the lists shall be representative of the racial composition of the testtakers [at that most recent test administration], i.e., 28 and 14 percent black for police and firefighter lists, respectively; that, one-third of future certifications, i.e., referrals from the [existing eligibility] lists 1496*1496 for actual employment, are to be black until, considering all certifications since the relevant 1975 and 1976 dates [when the Title VII violations began], the numbers of certifications become representative of the racial composition of the test-takers [at the most recent test administration]. Thereafter, blacks are to be certified in accordance with their representation on the lists, i.e., 28 and 14 percent of certifications for policemen and firefighters, respectively, will be black. Similarly, referrals from future [eligibility] lists [created by future test administrations] will be a function of the rate at which blacks take the examinations on which the lists are based, until or unless defendants develop valid tests.
Ensley Branch, 616 F.2d at 815 n. 6.
An appeal and cross-appeal ensued. The Board appealed the district court's decision that the police and firefighter exams violated Title VII. Id. at 815. In doing so, the Board did not

contest the district court's finding that the two tests had an adverse impact, but contended that the tests were in fact job-related. Id. at 816. We upheld the district court's finding that the Board had failed to validate either exam, and affirmed the district court's holding that use of the two exams violated Title VII. Id. at 818, 822.
The United States and the Martin class of black plaintiffs jointly cross-appealed the district court's holding that use of the tests did not begin to violate Title VII until the dates on which the negative results of the test validation studies were reported to the Board. Id. at 815, 823. The district court had reasoned that, until the final results were reported, the Board was justified in using the tests in anticipation of favorable results from the validation studies. Id. at 823. On appeal, we inferred that the district court had relied on an Equal Employment Opportunity Commission guideline that, in "`very limited circumstances,'" authorized a local government to use tests pending the results of a validation study. Id. (quoting Albermarle Paper Co., 422 U.S. at 436, 95 S.Ct. at 2380). However, because we could not determine from the district court's findings whether the case presented one of those "very limited circumstances," we remanded for additional fact finding. Subsequent events obviated the need for those findings, which were therefore never made.
B. THE SECOND TRIAL, CONSENT DECREES, AND APPEAL
While the first appeal was pending, the district court conducted a second trial. That trial involved challenges to other Board practices, including: written tests for eighteen more positions; various rules affecting promotional opportunities; the imposition of height, weight, and educational requirements for certain jobs; and the restriction of some job announcements and certifications to persons of a particular sex. United States v. Jefferson County, 28 Fair Empl.Prac.Cas. (BNA) 1834, 1835 (N.D.Ala.1981), aff'd, 720 F.2d 1511 (11th Cir.1983). The Board defended on the grounds that these practices either had no adverse impact upon blacks or women, or were sufficiently job-related to be effective predictors of future job performance. Id.As in the first trial, the City did not participate. In fact, the original plaintiffs' claims against the City never reached trial.
While the first proceeding was on remand and the second was at trial, the parties entered settlement talks that eventually suspended both proceedings. Once again, we resort to our summary of the facts from a prior decision:
After we ruled on the district court's decision concerning the written [police officer and firefighter] tests, [Ensley Branch, 616 F.2d at 812], the plaintiffs, in all three cases, entered

into extensive negotiations with the Board and the City which culminated in two proposed consent decrees, one with the Board and one with the City. The former disposed of all of the plaintiffs' claims against the Board; the latter disposed of all the plaintiffs' claims against the City.
United States v. Jefferson County, 720 F.2d 1511, 1514-15 (11th Cir.1983)(footnotes omitted). Thus, before the district court ruled on the remand of the first case or rendered a decision in the second case, the parties submitted proposed consent decrees that settled 1497*1497 all claims against the City and the Board, including allegations of gender discrimination raised by the United States. Although these decrees provided retrospective relief such as back pay for some individuals, their keystone was an extensive regime of affirmative action for blacks and women.
At the heart of the Board decree was a requirement, subject to the availability of qualified applicants, that the Board annually certify blacks and women either according to racial and gender quotas set forth in the decree or in proportion to their representation in the applicant pool, whichever was higher. The decree's minimum certification rates ranged from ten to fifty percent, depending on the position involved and whether the goal applied to blacks or women. The Board agreed to continue to certify according to these annual "goals" until satisfaction of the long-term "goal"; i.e., until the proportion of blacks and women employed by the City in any given job classification "approximate[d] the respective percentages [of blacks and women] in the civilian labor force of Jefferson County." These provisions did not govern appointment of blacks to entry-level police and firefighter positions, with respect to which the Board decree simply adopted the remedies established by the district court's 1977 order on that subject. Nor did the decree state that the development of lawful selection procedures would terminate race- and gender-conscious certification requirements, which could potentially have continued forever.[5]
The Board decree established several other significant obligations. First, the Board committed itself "periodically" to review its hiring and promotion procedures to ensure that the procedures either had no adverse impact or were sufficiently job-related to pass muster under Title VII. Second, so long as the Board's procedures—whether job related or not— had a disparate impact on blacks or women, the Board agreed to "mak[e] a good faith effort to determine whether there [were] any alternative [testing procedures] ... which [would] reduce any adverse impact." Third, the decree prohibited the Board's prior practice of restricting job announcements on the basis of gender. Fourth, the decree mandated continued aggressive recruitment of blacks and women.

In broad outline, the City decree was quite similar to the Board decree. It too established annual "goals" for hiring and promoting blacks and women and a "long term goal" of parity between the proportion of blacks and women in any City job classification and the proportion of blacks and women in the civilian labor force. With a few exceptions,[6] the annual goals required the City to hire and promote blacks and women either according to racial and gender quotas set forth in the decree, or at the rate of black and female representation in the applicant pool, whichever was higher. The City also agreed to request the Board "selectively to certify ... qualified blacks and females whenever ... necessary to provide the City with a certification list that contains sufficient numbers 1498*1498 of blacks and females to meet the [decree's] goals."
As with the Board decree, the City decree's annual goals were "subject to the availability of qualified ... applicants." In addition, the parties reserved the right:
to adjust, through agreement and subject to the approval of the Court, any of the goals provided by this Decree where it can be shown that a professional degree, license or certificate is required to perform the duties of any particular job or jobs in the City's workforce and that blacks and/or women hold such degrees, licenses or certificates in percentage terms which are inconsistent with the goals provided.
The decree also stated that "[n]othing herein shall be interpreted as requiring the City ... to hire, transfer, or promote a person who is not qualified, or to hire, transfer or promote a less qualified person, in preference to a person who is demonstrably better qualified based upon the results of a job related selection procedure." Other provisions obligated the City to strengthen its recruitment of blacks and women, prohibited any restriction of jobs by gender, and eliminated time-in-grade requirements for some promotional positions.
Although the consent decrees resolved the issues as between the parties to the original cases, several interested non-parties soon appeared to challenge the decrees, claiming that the decrees would adversely affect their employment opportunities. Chief among the objectors was the Birmingham Firefighters' Association ("BFA"), a labor association representing a majority of City firefighters, most of whom were white males. We return to our previous narrative for a description of the ensuing conflict:
The [district] court provisionally approved these consent decrees in June 1981, but reserved final approval until it convened a fairness hearing to consider the objections of all interested parties. The court held that hearing in August 1981, at which it considered, among others, the objections filed by the Birmingham Firefighters Association 117 (BFA), as amicus curiae. The day after the hearing, BFA and two of its members (BFA members) moved ... to intervene of right in each of the three cases, contending that the proposed consent decrees

would have a substantial adverse impact upon them. The court denied their motions as untimely, and approved, and entered, both consent decrees.
Jefferson County, 720 F.2d at 1515 (footnote omitted).
Before approving the decrees, the district court rejected the merits of the objections raised at the fairness hearing by the would-be intervenors. The district court reasoned that the decrees "[did] not preclude the hiring or promotion of whites or males," Jefferson County, 28 Fair Empl.Prac.Cas. (BNA) at 1836, and that the City's hiring goals were "expressly made subject to the caveat that the [City] decree is not to be interpreted as requiring the hiring or promotion of a person who is not qualified or of a person who is demonstrably less qualified according to a job-related selection procedure," id. at 1837. The court further noted that the "provisions for potentially preferential treatment [were] limited both in time and in effect" because they would expire on their own terms when the work-force parity goals were met and because either decree could "be dissolved after a period of six years" if the purposes of the decree had been substantially achieved. Id.; see also In re Birmingham Reverse Discrimination Employment Litig., 37 Fair Empl.Prac.Cas. (BNA) 1, 3 n. 5 (N.D.Ala. 1985) (describing the circumstances in which the decrees may be dissolved). In addition, the court reviewed the evidence of past discrimination against blacks and women and concluded that "there is more than ample reason for the Personnel Board and the City of Birmingham to be concerned that they would be in time held liable for discrimination" against blacks seeking promotional positions in the police and fire departments and against woman at all levels of hiring and promotion in those departments. Jefferson County, 28 Fair Empl.Prac.Cas. (BNA) at 1838. On appeal, this Court affirmed the district court's denial of the BFA's intervention motion.Jefferson County, 720 F.2d at 1516-19.
Shortly after the district court approved the decrees and denied leave to intervene:
1499*1499 [S]even individual white male firefighters ... filed a complaint in the district court against the Board and the City to enjoin the enforcement of the consent decrees on the ground that the operation of the decrees would discriminate against them in violation of Title VII of the Civil Rights Act. They applied for a preliminary injunction, which, after a hearing, the district court denied.
Jefferson County, 720 F.2d at 1515 (footnote omitted). In the same opinion in which we affirmed the denial of the BFA's motion to intervene, we also upheld the district court's denial of the preliminary injunctive relief sought by the seven individual white male firefighters. Id. at 1520.

C. THE REVERSE DISCRIMINATION LITIGATION
The district court's approval of the consent decrees, and our refusal to allow the BFA to intervene, brought forth to a collection of cases that has come to be known as the "Birmingham Reverse Discrimination Employment Litigation." In these cases, a number of male, non-black City employees collaterally attacked the decrees and the affirmative action programs adopted under them. See In re Birmingham Reverse Discrimination Employment Litig., 833 F.2d 1492, 1495 (11th Cir.1987), aff'd sub nom. Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989). The United States, despite its status as a signatory of the consent decrees, also brought suit against the City, lodging allegations similar to those of the individual plaintiffs. Id.at 1496; cf. In re Birmingham Reverse Discrimination Employment Litig., 37 Fair Empl.Prac.Cases (BNA) 1, 8 (N.D.Ala.1985) (permitting the United States to side with the reverse discrimination plaintiffs on the issue of whether the City was violating the decree). These cases were heard by the same judge who had heard the earlier consent-decree cases.
Prior to trial, the district court rejected the reverse discrimination plaintiffs' collateral challenge to the legality of the decrees. See In re Birmingham Reverse Discrimination Employment Litig., 37 Fair Empl.Prac. Cases (BNA) at 3 & n. 6. Instead, the district court restricted the plaintiffs' action to the questions of whether the City or the Board had violated the decrees or had granted illegal preferences that were not required by the decrees. Id. at 3-4. At the close of the plaintiffs' case, the court further limited the action by dismissing for lack of evidence all claims against the Board. See Martin v. Wilks, 490 U.S. 755, 779 n. 16, 109 S.Ct. 2180, 2194 n. 16, 104 L.Ed.2d 835 (1989) (Stevens, J., dissenting). This left the City as the only defendant.
At trial, the plaintiffs had claimed that some blacks were promoted over more-qualified nonblacks despite the fact that the City decree specifically did not require the City to "promote a less qualified person, in preference to a person who is demonstrably better qualified based upon the results of a job related selection procedure." After trial, the district court found for the City, holding that the City had shown that its employment actions were required by the decrees. Id. at 780-81, 109 S.Ct. at 2194-95. The district court in effect decided that the provision quoted by the plaintiffs applied only if job related selection procedures were in place. In re Birmingham Reverse Discrimination Employment Litig., 833 F.2d at 1497. Although the district court agreed that "[m]ost but not all of those whites who were not selected for [the challenged promotions] had higher test scores" than the blacks who were selected, the court pointed out that the tests on which these scores were based had never been shown to be valid predictors of future job performance. The court further noted that the City "`does not use a job-related selection procedure in evaluating the qualifications of

certified candidates [and] has made no effort to develop ... such a procedure.'" In re Birmingham Reverse Discrimination Employment Litig., 833 F.2d at 1497 (quoting the district court's December 26, 1985, order (emphasis and alteration added)). Accordingly, the district court rejected the plaintiffs' assertion thatdemonstrably better qualified whites had been passed over.
On appeal, this Court reversed. We observed that "the district judge treated the plaintiffs as if they were bound by the consent 1500*1500 decrees," rendering the plaintiffs unable to challenge the decrees' validity, and limiting their action to a claim that the City had granted racial preferences beyond those mandated by the City decree. Id. at 1496. This limitation was unfair to the male, non-black plaintiffs, we reasoned, because they had not participated in the negotiation or signing of the consent decrees. Id. at 1498-99. To give the reversediscrimination plaintiffs their day in court, we ruled that they must be allowed to bring an action challenging the validity of the decrees. Id. at 1499-1500. We therefore directed the district court to re-examine the legality of the decrees under the heightened scrutiny applicable to voluntary government affirmative actions plans. Id. at 1500-01. Finally, we ruled that the United States was estopped from collaterally attacking the decrees by its status as a signatory. Id. at 1501. "[I]f the United States believes that the decrees should be modified based on changed circumstances, its remedy ... is to seek modification in the court which retained jurisdiction over the cases in which the decrees arose." Id.at 1501.
Our decision was upheld by the Supreme Court in Martin v. Wilks, 490 U.S. at 769, 109 S.Ct. at 2188. In affirming our reasoning, the Wilks Court implicitly suggested that plaintiffs in future cases could avoid such collateral challenges by insuring that all interested parties were joined from the outset. See id. at 765-67, 109 S.Ct. at 2187.
The district court subsequently held a new trial on the reverse discrimination plaintiffs' challenge. At the conclusion of that trial, the district court again ruled in favor of the City. Bennett v. Arrington, 806 F.Supp. 926, 931 (N.D.Ala.1992). Applying strict scrutiny, id. at 928, the district court found that the City had "significant evidence" of past discrimination to support its affirmative action program. Id. at 929. The court further found the affirmative action provisions were narrowly tailored because the City had first tried alternative measures, and because these provisions were both flexible and temporary. Id. at 929-30. An appeal from the district court's ruling is currently pending before another panel of this Court. See In re Birmingham Reverse Discrimination Employment Litig., 20 F.3d 1525 (11th Cir. 1994).
D. THIS DECREE MODIFICATION PROCEEDING

After we suggested that the United States could not collaterally challenge the decrees but could seek modifications, see In re Birmingham Reverse Discrimination Employment Litig., 833 F.2d at 1501, the parties began discussing modification as a possible means of resolving their outstanding differences. With that prospect in mind, the plaintiffs from the reverse-discrimination case moved to intervene in this, the original consent-decree, case and to consolidate this case with the reverse-discrimination case. On May 25, 1990, the district court denied the reverse-discrimination plaintiffs' motion to consolidate, but allowed them to intervene in this case "for the limited purpose of participating in any litigation regarding potential modification of the consent decrees." Subsequently, in an effort to gather all interested parties in a single proceeding, the district court certified both a class of "[a]ll present and future black and female employees ... [and] applicants for employment with the City" (the "Bryant class"), and a class, represented by several of the plaintiffs from the parallel reverse-discrimination case, of "[a]ll present and future male, non-black employees ... [and] applicants for employment with the City of Birmingham" (the "Wilks class").
On May 3, 1990, the United States moved to modify the consent decrees. The United States urged the district court:
(1) "[t]o replace the existing long-term goals (which [were] ... based on civilian labor force figures) with the long-term goal of developing lawful selection procedures";
(2) "[t]o replace the current interim goals with interim goals based on applicant flow data" that would terminate upon the implementation of lawful selection procedures;
(3) "[t]o require the Personnel Board to develop nondiscriminatory selection procedures in a timely manner ...";
1501*1501 (4) "[t]o require the City of Birmingham to cooperate with the Board in the Board's efforts to develop nondiscriminatory selection procedures and for the City to demonstrate that any selection procedures it has implemented in addition to those of the Personnel Board, are lawful"; and
(5) "[t]o strengthen the current recruitment mechanisms."
In an accompanying proposed order, the United States requested the court to give the Board three years to develop lawful tests and to require the Board to stop crediting applicants with seniority points to the extent that use of such points violated Title VII. The United States asserted that "[t]hese modifications are appropriate in light of changed circumstances, emerging case law, and the experience of the parties under the decrees

over the past nine years, and to move this matter toward a conclusion where continuing court jurisdiction will no longer be required."
The Wilks class soon submitted its own modification proposals, which requested the court:
(1) to vacate all long-term and annual goals;
(2) to enjoin the City and Board from making employment decisions based solely on race or gender; and
(3) to terminate both the decrees and all court supervision of City and Board employment practices within four years.
The City, the Bryant class of blacks and women, and the Board filed responses to these modification motions in July 1990. For its part, the City "acknowledge[d] that limited modification ... [was] appropriate because of changed circumstances," including the City's achievement of some of its long-term goals and the fact that "the selection procedures employed by the Personnel Board continue to have an adverse impact upon blacks and have not been demonstrated to be valid selection procedures." With these developments in mind, the City proposed the following modifications:
(1) "Where long term goals have been met, but selection devices which create an adverse impact on blacks remain ..., replace the current interim annual goals [based on fixed percentages set out in the City decree] with interim annual goals based on representation in the qualified applicant pool."
(2) "Modify long term goals which are demonstrated to be inconsistent with the qualified applicant pool to reflect representation of the qualified pool," rather than representation in the general labor force.
(3) Terminate the Decree, "in whole, or in part by job classification[], upon motion of any party, and a finding by the Court that a lawful selection procedure is in place for appointment to that job classification and the long term goal for such classification(s) has been achieved."
The Bryant class of blacks and women joined in these recommendations and also agreed with the United States that "a reasonable timetable should be established" for the development of lawful selection procedures by the Board.
The Board, too, accepted the need to develop lawful tests, but vehemently opposed the United States' proposed three-year timetable as both unrealistic and unnecessary. The Board rested its contention that a timetable was unnecessary on its assertion that it had

already made significant progress toward eliminating adverse impact from its selection procedures. The Board also opposed the United States' call for an end to seniority-point enhancements, noting that the federal guidelines on enforcement of Title VII do not disallow the use of seniority points. Cf. 42 U.S.C.A. § 2000e-2(h) (1981 & Supp.1993) ("[I]t shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system....").
After holding a hearing on these issues, the district court ordered several modifications to the decrees. The court began by noting that the decrees had,
in conjunction with a city administration whose ... leaders have reflected the majority-black voting population within the city, served to reduce, if not eliminate, 1502*1502 discriminatory employment practices against blacks and females and, indeed, to enhance the opportunities of such persons for employment and promotion. Nor can it be denied that, in so doing, the decrees have impaired some employment or promotional opportunities of whites and males....
In the police and fire departments, the two departments at the core of the original litigation, black employment had more than doubled, from twenty to forty-one percent in the Police Department and from ten to twenty-six percent in the Fire Department. The percentage of blacks and females in many promotional positions had also increased significantly. Overall, forty-five percent of the City's full-time employees were black and twenty-three percent were female as of September 1990. Blacks and women held jobs in approximate proportion to their presence in the general labor force for about half of the City's classified positions.
After reciting these facts, the district court noted that "[a]ll parties agree that some modifications have become appropriate." Guided by its view of the underlying purposes of the decrees, remedying past and preventing future discrimination, the district court ordered the following modifications to the City decree:
(1) The City must stop using annual goals for any particular job classification once the longterm goal for that classification is met.
(2) The City must stop using annual goals for any promotional position once the long-term goal is met for the position from which the promotional candidates are normally chosen, except that the City should continue to promote blacks and women to high-level police and fire positions in proportion to those groups' representation in the position from which promotions are normally made until the long-term goal is reached with respect to the highlevel positions.

(3) The City must stop using annual goals for any particular job classification once the Board develops lawful screening procedures for that job.
(4) The City should group similar jobs together for the purpose of determining whether a particular goal has been met.
(5) The district court will, in 1996, reconsider the appropriateness of continuing the City decree.
The district court made only one modification to the Board decree. This modification requires that, until the Board develops a lawful test for a particular position, it must, at the City's request and subject to the availability of qualified applicants, certify black and female candidates for that position in proportion to their representation among applicants — even after the City has met its long-term goal (and thus has stopped following the annual goal) for that position. The district court viewed this modification as necessary to avoid a situation in which the City would be obligated to "appoint or promote only on the basis of certifications made from [the] discriminatory testing devices employed by the Personnel Board."[7]
The district court acknowledged that long-term goals tied to black and female representation in the general labor force "do[] not provide an accurate estimate of the pool of persons potentially qualified" for particular City jobs. As a result, the court conceded that these goals "would not pass muster under current legal standards as a valid measure of a discrimination-free job force." However, noting that the long-term goals were "largely hortatory," the court said that the consequences of this "potentially inappropriate measure" would be "partly reduced" by other modifications to the City decree. The court therefore declined to rewrite the decrees' "inherently suspect" long-term goals to reflect the proportion of qualified blacks and women in the relevant labor pool. The court also refused to impose deadlines on the Board for the development of lawful selection 1503*1503 procedures that would displace the long-term goals. The court agreed that the "use of such testing procedures would be desirable," but reasoned that specific development and review requirements "would be unrealistic, unworkable, and unwise" — "particularly if accompanied by a judicially-imposed timetable." Finally, the district court rejected the United States' request for an order mandating strengthened recruitment of blacks and women because the parties were already "in general agreement" that recruitment efforts should be increased.
After the district court issued its initial modification order, the Wilks class moved for an interim award of attorneys' fees for its efforts in both the parallel, reverse-discrimination case and the modification proceeding. The class argued that the court's modification order meant that the class had, in part, prevailed in both cases. The district court denied the

request, but expressly permitted the class to renew its application in the reversediscrimination case.
Both the United States and the Wilks class now appeal. The United States claims that the district court abused its discretion in rejecting any requirement that the City and Board develop lawful, nondiscriminatory selection procedures to replace the existing numerical goals. The Wilks class takes a bolder position, arguing that there is insufficient evidence of past discrimination to give the City and Board a compelling interest in any affirmative action plan. In addition, both the Wilks class and the United States argue that the decrees' appointment goals fail the narrowly tailored test, established by City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), because these goals are tied to general labor force statistics rather than to a more accurate measure of the pool of qualified applicants. Finally, the Wilks class challenges the district court's denial of fees and its refusal to accept certain deposition testimony in evidence. The City, the Board, and the Bryant class contend on appeal that the district court orders were within the district court's discretion and should be affirmed in their entirety.
II. STANDARDS OF REVIEW
We review for abuse of discretion a district court's modification of, or refusal to modify, a consent decree. System Fed'n No. 91 v. Wright, 364 U.S. 642, 648, 81 S.Ct. 368, 371, 5 L.Ed.2d 349 (1961); Jacksonville Branch, NAACP v. Duval County Sch. Bd., 978 F.2d 1574, 1578 (11th Cir.1992). At the very least, a district court abuses its discretion if it refuses to make modifications required by applicable law.See Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 573-83, 104 S.Ct. 2576, 2585-90, 81 L.Ed.2d 483 (1984); cf. Rufo v. Inmates of Suffolk County Jail,___ U.S. ___, ___, 112 S.Ct. 748, 762, 116 L.Ed.2d 867 (1992) ("A consent decree must of course be modified if, as it later turns out, one or more of the obligations placed upon the parties has become impermissible under federal law."). We also review for abuse of discretion a district court's exclusion of evidence and denial of attorneys' fees. U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986, 993 (11th Cir.1993) (evidentiary rulings); Church of Scientology Flag Serv., Org. v. City of Clearwater, 2 F.3d 1509, 1513 (11th Cir.1993) (attorneys' fees).
III. THE CONSENT DECREE MODIFICATION ISSUES
A. CONSENT DECREE MODIFICATION LAW
The Supreme Court has articulated a two-pronged approach to determining when, and to what extent, an institutional-reform consent decree that "arguably relates to the vindication

of a constitutional right" should be modified. Rufo v. Inmates of Suffolk County Jail, ___ U.S. ___, ___ n. 7, 112 S.Ct. 748, 760 n. 7, 116 L.Ed.2d 867 (1992). The first prong requires the party seeking modification to "establish that a significant change in facts or law warrants revision of the decree." Id. ___, 112 S.Ct. at 765. If the moving party satisfies this requirement, then the second prong requires the court to make modifications that are "suitably tailored" to address the new factual or legal environment. Id. We now elaborate on this dual inquiry.
1504*1504 1. Rufo's First Prong: Prerequisites for Modification
Rufo normally permits modification of a consent decree only to accommodate new factual or legal circumstances. The sorts of factual changes that may qualify include unanticipated developments that render continuation of the decree "inequitable,"Jacksonville Branch, NAACP v. Duval County Sch. Bd., 978 F.2d 1574, 1582 (11th Cir.1992), or that, "for reasons unrelated to past discrimination or to the fault of the parties," make it extremely difficult or impossible to satisfy obligations that, while imposed by the decree, are not part of its fundamental purpose, United States v. City of Miami, 2 F.3d 1497, 1509 (11th Cir.1993). However, a district court should not modify "long-standing goals in consent decrees merely because the goals have not been achieved." Id. at 1509.
Rufo similarly provides for flexibility in the face of changing legal standards, but does not mandate modifications in response to every legal development. For example, a court need not necessarily "rewrite a consent decree so that it conforms to the constitutional floor" just because that floor drops after entry of the decree. Rufo, ___ U.S. at ___, 112 S.Ct. at 764. On the other hand, a rising constitutional floor — or, as in this case, a falling constitutional ceiling — may make modifications necessary. Above all, "[a] consent decree must ... be modified if ... one or more of the obligations placed upon the parties has become impermissible under federal law," id. at ___, 112 S.Ct. at 762, and that is the aspect of Rufo with which we grapple in the present case.
2. Rufo's Second Prong: Suitably Tailored Modifications
Once a court has determined that some modification is warranted because of a significant change in law or fact, the second prong of the Rufo analysis comes into play. This prong requires the court to determine the appropriate scope of the changes, accepting only proposals that are "suitably tailored" to address significant factual developments or conflicts between new legal standards and the requirements of the decree. Rufo, ___ U.S. at ___,

112 S.Ct. at 765. This determination requires a flexible "exercise of that court's equitable power," City of Miami, 2 F.3d at 1509, but the district court's discretion is not unlimited. The Court may not modify a decree in a way that would "violate the basic purpose of the decree," and must under no circumstances "create or perpetuate a constitutional violation." Rufo, ___ U.S. at ___, 112 S.Ct. at 762-63.
We now turn to the question of whether the district court properly exercised its equitable discretion when it rejected some of the appellants' proposed modifications. This inquiry will require us to decide whether the court modified the consent decrees' race- and genderbased remedies sufficiently to make them permissible under current constitutional standards. Because racial and gender classifications attract different levels of scrutiny under the Equal Protection Clause, we analyze separately the decrees' race- and genderconscious provisions.
B. MODIFICATION OF THE RACE-CONSCIOUS AFFIRMATIVE ACTION PROVISIONS IN THIS CASE
1. Rufo's First Prong: Prerequisites for Modification
The district court approved the City and Board decrees in 1981, thirteen years ago. The Supreme Court had, at that time, just begun to address the constitutionality of affirmative action. See Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978); Califano v. Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977). Since then, the Court has repeatedly revisited this issue, substantially changing affirmative action jurisprudence. Most significantly, City of Richmond v. J.A. Croson Co., 488 U.S. 469, 498508, 109 S.Ct. 706, 724-30, 102 L.Ed.2d 854 (1989),established that voluntary, raceconscious, local-government affirmative action programs are subject to strict scrutiny. Prior to Croson, "a majority of the Supreme Court had never joined in one opinion on the constitutionality" of such programs.Peightal v. Metropolitan Dade County, 940 F.2d 1394, 1398-99 (11th Cir. 1505*1505 1991)(footnote omitted), cert. denied, ___ U.S. ___, 112 S.Ct. 969, 117 L.Ed.2d 134 (1992). Croson sufficiently altered the legal landscape to warrant modifications to the present decrees under Rufo. As we discuss later in this opinion, Croson has rendered parts of the decrees unconstitutional.
2. Rufo's Second Prong: Suitably Tailored Modifications

Rufo's second prong requires that consent decrees be modified to avoid any violations of governing constitutional standards. The relevant constitutional standard in this case is Croson's strict scrutiny test. While it is true that Croson applies only to voluntary affirmative action programs, see Croson, 488 U.S. at 491-93, 109 S.Ct. at 720-21, we have previously held that, because of their peculiar procedural history, the present decrees should be treated as "a voluntary affirmative action plan for purposes of equal protection analysis." In re Birmingham Reverse Discrimination Employment Litig., 833 F.2d 1492, 1501 n. 23 (11th Cir.1987), aff'd sum nom., Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989).
Under strict scrutiny, an affirmative action plan must be based upon a "compelling governmental interest" and must be "narrowly tailored" to achieve that interest. S.J. Groves & Sons Co. v. Fulton County, 920 F.2d 752, 767 (11th Cir.), cert. denied, 500 U.S. 959, 111 S.Ct. 2274, 114 L.Ed.2d 725 and cert. denied, ___ U.S. ___, 111 S.Ct. 2893, 115 L.Ed.2d 1057 (1991); see also Croson, 488 U.S. at 498-508, 109 S.Ct. at 724-30. We address separately those two requirements as they apply to this decree.
a. Croson's Compelling Government Interest Requirement
Strict scrutiny's compelling government interest requirement was designed "to `smoke out' illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool." Croson, 488 U.S. at 493, 109 S.Ct. at 721 (plurality opinion of O'Connor, J.). In practice, the interest that is alleged in support of racial preferences is almost always the same — remedying past or present discrimination. United States v. City of San Francisco, 696 F.Supp. 1287, 1301 (N.D.Cal. 1988), aff'd in part and modified in part on other grounds sub nom. Davis v. City of San Francisco, 890 F.2d 1438 (9th Cir.1989), cert. denied, 498 U.S. 897, 111 S.Ct. 248, 112 L.Ed.2d 206 (1990). That interest is widely accepted as compelling. See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 286, 106 S.Ct. 1842, 1853, 90 L.Ed.2d 260 (1986) (O'Connor, J., concurring); Cone Corp. v. Hillsborough County, 908 F.2d 908, 916 (11th Cir.), cert. denied, 498 U.S. 983, 111 S.Ct. 516, 112 L.Ed.2d 528 (1990); Howard v. McLucas, 871 F.2d 1000, 1006-08 (11th Cir.), cert. denied, 493 U.S. 1002, 110 S.Ct. 560, 107 L.Ed.2d 555 (1989). As a result, the true test of an affirmative action program is usually not the nature of the government's interest, but rather "the adequacy of the evidence of discrimination" offered to show that interest. City of San Francisco, 696 F.Supp. at 1301. Without an adequate showing of discrimination, the government's assertion that affirmative action is necessary lacks credibility. See Croson, 488 U.S. at 505, 109 S.Ct. at 728.

Therefore, when a consent decree providing race-conscious relief is challenged as unconstitutional, the district court must make a factual determination that the public employer has "`a strong basis in evidence for its conclusion that'" racial discrimination necessitates affirmative action. Howard, 871 F.2d at 1007 (quotingWygant, 476 U.S. at 277, 106 S.Ct. at 1849). Certain aspects of this inquiry are well established. A local-government employer cannot rest on an "amorphous claim" of societal discrimination, Croson, 488 U.S. at 499, 109 S.Ct. at 724, on "simple legislative assurances of good intention," id. at 500, 109 S.Ct. at 725, or on congressional findings of discrimination in the national economy, id. at 504, 109 S.Ct. at 727. Public employers may, however, justify affirmative action by demonstrating "gross statistical disparities" between the proportion of minorities hired by the public employer and the proportion of minorities willing and able to do the work. Id. at 501, 109 S.Ct. at 725 (internal quotation marks omitted); see 1506*1506 also Cone Corp., 908 F.2d at 916 (finding a prima facie case of discrimination sufficient to justify race-conscious relief where minorities owned 12% of the contracting businesses but received only 1.2% of the local government's contracting dollars); Howard, 871 F.2d at 1007 (upholding a finding of discrimination based on statistical evidence, including the fact that black employees spent an average of three times longer than white employees in low-grade wage jobs). Anecdotal evidence may also be used to document discrimination, especially if buttressed by relevant statistical evidence.Cone Corp., 908 F.2d at 916.
Although Croson requires that a public employer show strong evidence of discrimination when defending an affirmative action plan, the Supreme Court has never required that, before implementing affirmative action, the employer must have already proved that it has discriminated. On the contrary, formal findings of discrimination need neither precede nor accompany the adoption of affirmative action. Wygant, 476 U.S. at 286, 106 S.Ct. at 1853 (O'Connor, J., concurring)(rejecting any formal findings requirement); id. at 305, 106 S.Ct. at 1863 (Marshall, J., dissenting, joined by Brennan and Blackmun, JJ.) (stating that "[t]he Court is correct to recognize, as it does at least implicitly today, that formal findings of past discrimination are not a necessary predicate to the adoption of affirmative-action policies"); id. at 313, 106 S.Ct. at 1867 (Stevens, J., dissenting) (arguing that a showing of past discrimination is not necessary to finding a compelling interest in racial classifications with purely prospective effect); Howard, 871 F.2d at 1007(specifically rejecting the intervenor white employees' argument "that a showing of past discrimination must precede the implementation of the promotional relief and that this showing may be made only through the employer's own admittance of such discrimination or through a judicial finding of past discrimination"); cf. Contractors Ass'n v. City of Philadelphia, 6 F.3d 990, 1004 (3d Cir.1993) (noting that federal courts have admitted evidence that supports affirmative action, even when that evidence was developed after the affirmative action plan); Harrison

& Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50, 60 (2d Cir.1992) ("The law is plain that the constitutional sufficiency of a state's proffered reasons necessitating an affirmative action plan should be assessed on whatever evidence is presented, whether prior to or subsequent to the program's enactment."). This is because, as Justice O'Connor has explained,
A violation of federal statutory or constitutional requirements does not arise with the making of a finding; it arises when the wrong is committed. Contemporaneous findings serve solely as a means by which it can be made absolutely certain that the governmental actor truly is attempting to remedy its own unlawful conduct when it adopts an affirmative action plan.... Such findings, when voluntarily made by a public employer, obviously are desirable in that they provide evidentiary safeguards. ... If contemporaneous findings were required of public employers in every case as a precondition to the constitutional validity of their affirmative action efforts, however, the relative value of these evidentiary advantages would diminish, for they could be secured only by the sacrifice of other vitally important values.
The imposition of a requirement that public employers make findings that they have engaged in illegal discrimination before they engage in affirmative action programs would severely undermine public employers' incentive to meet voluntarily their civil rights obligations....
... [P]ublic employers are trapped between the competing hazards of liability to minorities if affirmative action is not taken to remedy apparent employment discrimination and liability to nonminorities if affirmative action is taken. Where these employers, who are presumably fully aware both of their duty under federal law to respect the rights of all their employees and of their potential liability for failing to do so, act on the basis of information which gives them a sufficient basis for concluding that remedial action is necessary, a contemporaneous findings requirement should not be necessary.
1507*1507 Wygant, 476 U.S. at 289-91, 106 S.Ct. at 1855-56 (O'Connor, J., concurring). For these and related reasons, the Supreme Court has required a public employer defending an affirmative action plan to show only that it has "a `strong basis in evidence for its conclusion that remedial action was necessary.'" Croson, 488 U.S. at 500, 109 S.Ct. at 725 (quoting Wygant, 476 U.S. at 277, 106 S.Ct. at 1849 (plurality opinion)).
At the time the City and the Board accepted the present consent decrees, they already had a "strong basis in evidence" for concluding that race-based relief was needed to correct discrimination in the police and fire departments. When it approved the consent decrees, the district court noted that the City and the Board had good reason to believe that they had discriminated in those two departments. United States v. Jefferson County, 28 Fair

Empl.Prac.Cas. (BNA) 1834, 1838 (N.D.Ala.1981), aff'd, 720 F.2d 1511 (11th Cir.1983). The district court evaluated an extensive record that supported this conclusion. Most importantly, the district court stated:
This court at the first trial found — and the Fifth Circuit agreed — that blacks applying for jobs as police officers and firefighters were discriminated against by the tests used by the Personnel Board to screen and rank applicants. The evidence presented at the second trial established, at the .01 level of statistical significance, that blacks were adversely affected by the exam used by the Personnel Board to screen and rank applicants for the position of police sergeant. Since governmental employers such as the City of Birmingham have been limited by state law to selecting candidates from among those certified by the Board, one would hardly be surprised to find that the process as a whole has had an adverse effect upon blacks seeking employment as Birmingham police officers, police sergeants, or firefighters — regardless of whether or not there was any actual bias on the part of selecting officials of the City. A natural consequence of discrimination against blacks at entry-level positions in the police and fire departments would be to limit their opportunities for promotion to higher levels in the departments.
Id. at 1837-38. The district court concluded that:
While the only judicial finding of discrimination thus far entered has been with respect to the effect upon black applicants of the Personnel Board's tests for police officer and firefighter, it can hardly be doubted that there is more than ample reason for the Personnel Board and the City of Birmingham to be concerned that they would be in time held liable for discrimination against blacks at higher level positions in the police and fire departments and for discrimination against women at all levels in those departments. The proposed consent decrees, by way of settlement for such potential liability, provide appropriate corrective measures reasonably commensurate with the nature and extent of the indicated discrimination.
Id. at 1838 (emphasis added). As the district court's analysis demonstrates, the City and the Board had strong reason to believe that employment discrimination in the police and fire departments justified race-based relief. The Board's discrimination against blacks seeking entry-level police and firefighter jobs made it almost inevitable that the effects of discrimination had worked their way up to taint City and Board promotional positions, too. This fact gave the City and the Board an adequate basis for implementing affirmative action in those two departments, which are at the core of this litigation. Further findings with respect to those departments are unnecessary.

However, the parties apparently have not yet fully litigated, nor has the district court decided, whether there is sufficient evidence of past or present discrimination to justify continued use of race-conscious remedies in the other departments covered by these decrees.[8] In their briefs, some of the parties attempt to demonstrate either the 1508*1508 existence of, or lack of, discrimination in city and county employment. The district court declined to consider these issues as part of the modification proceeding. Instead, the court ruled that a showing of discrimination was relevant only to the original validity of the decrees, and that the decrees' original validity could not be challenged in this modification proceeding. The district court apparently considered a showing of discrimination irrelevant to the present proceeding.
That ruling was an abuse of the district court's discretion. As we have already discussed, Rufo requires that these decrees comply with Croson, and Crosonrequires that the City and the Board show a basis for concluding that public employment discrimination against blacks necessitates affirmative action. Croson,488 U.S. at 500, 109 S.Ct. at 725. A showing of discrimination is relevant to the decree's present validity, which is very much at issue here. We must therefore remand the case to the district court for findings on whether the public employers here have a strong basis in evidence for their conclusion that past or present discrimination in departments other than the police and fire departments warrants race-based relief.[9]
The City and Board may defend their programs by showing enough evidence of discrimination to create a strong basis for the conclusion that past or present discrimination warrants race-based remedies in departments in addition to the police and fire departments. It is not necessary (but would of course be sufficient) for the City and Board to show that, when they approved the decrees, they already had strong evidence of such discrimination. This case concerns only the prospective validity of the decrees, and prospective validity can be established just as well with new evidence as with old. If the City and Board can now show strong evidence of the need for affirmative action in a department, then future affirmative action in that department is justified. Cf. Contractors Ass'n v. City of Philadelphia, 6 F.3d 990, 1004 (3d Cir.1993) (holding that consideration of evidence developed after adoption of an affirmative action plan is "especially appropriate" where the relief sought is "prospective only"); Concrete Works, Inc. v. City of Denver, 823 F.Supp. 821, 837 (D.Colo.1993) ("[I]t would make little sense to strike down the [affirmative action plan]solely because the evidence of discrimination before the City Council was insufficient without the postenactment evidence only to watch the City Council reconvene immediately, incorporate the new evidence into a new ordinance, and arrive at a constitutionally adequate factual predicate.").

On remand, the district court should give the City and the Board a chance to make the requisite showing. Without intending to foreclose the issue, we note that in the parallel but narrower reverse-discrimination proceeding, the district court upheld race-based relief in the engineering department, although it never discussed the evidence on which it based its decision as to that department. Bennett v. Arrington,806 F.Supp. 926, 929 (N.D.Ala.1992).[10] As recently as 1985, when discussing an engineering department promotion, the district court made the 1509*1509 following observation about continuing racial prejudice:
[T]he chief engineer in his deposition testimony indicated candidly that he considered the race of Mr. Thomas, [the] person ultimately chosen, being black, as a negative feature. And that he would have so considered that as a negative feature, but for the fact that the consent decree required him to look otherwise at the candidate.
These indications suggest that the compelling interest prong will likely be satisfied as to at least some of the departments besides the police and fire departments. If, however, the City and Board fail to present strong evidence justifying race-based relief in a department, the district court must forthwith terminate the race-based affirmative action provisions as to that department.
Because we have held that Croson's first requirement is satisfied with respect to the police and fire departments, and may on remand be satisfied with respect to the other departments, we proceed to discuss Croson's second requirement. The next section assumes, without deciding, that race-based affirmative action in the other departments is allowable because there has been an adequate showing of evidence of racial discrimination by the City and the Board.
b. Croson's "Narrow Tailoring" Requirement
Croson's second requirement is that the affirmative action provided be narrowly tailored to the discrimination to be remedied. This requirement, like the "compelling interest" requirement, applies to the present case through the interaction of Rufo andCroson. Rufo commands district courts to modify consent decrees to avoid "perpetuat[ing] a constitutional violation." Rufo v. Inmates of Suffolk County Jail, ___ U.S. ___, ___, 112 S.Ct. 748, 763, 116 L.Ed.2d 867 (1992). For its part, Crosonestablishes the controlling constitutional standard that cannot be violated. Taken together, these decisions mandate that the present decrees' affirmative action provisions be "narrowly tailored" to serve the compelling government interest of ending racial discrimination. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 507, 109 S.Ct. 706, 728, 102 L.Ed.2d 854 (1989). The district

court failed to make the modifications necessary narrowly to tailor the decrees to that interest.
A local government wishing to use racial preferences must strike a difficult balance between an admirable ambition to overcome this nation's "sorry history of ... private and public discrimination," Croson, 488 U.S. at 499, 109 S.Ct. at 724, and the sometimes contrary goal of making race irrelevant to public decisionmaking. "These related constitutional duties are not always harmonious; reconciling them requires public employers to act with extraordinary care." Wygant v. Jackson Bd. of Educ.,476 U.S. 267, 277, 106 S.Ct. 1842, 1848, 90 L.Ed.2d 260 (1986) (plurality opinion).
Carefully tailored affirmative action programs can be a legitimate means of reconciling these aims, and "`innocent persons may be called upon to bear some of the burden of the remedy'" for past discrimination. Metro Broadcasting, Inc. v. Federal Communications Comm'n, 497 U.S. 547, 596, 110 S.Ct. 2997, 3025-26, 111 L.Ed.2d 445 (1990) (quoting Wygant, 476 U.S. at 281, 106 S.Ct. at 1850 (opinion of Powell, J.)); accord Peightal v. Metropolitan Dade County, 940 F.2d 1394, 1410 (11th Cir.1991) (opinion of Brown, J.), cert. denied, ___ U.S. ___, 112 S.Ct. 969, 117 L.Ed.2d 134 (1992). Croson itself noted that local governments may in some circumstances consciously and affirmatively hire minorities in approximate proportion to their representation in the qualified pool of applicants. Croson, 488 U.S. at 501-02, 109 S.Ct. at 725-26; accord Cone Corp. v. Hillsborough County, 908 F.2d 908, 916-17 (11th Cir.), cert. denied, 498 U.S. 983, 111 S.Ct. 516, 112 L.Ed.2d 528 (1990). To ensure that affirmative action programs do not go too far, however, they must be scrutinized strictly. In making this evaluation, we consider: (1) "the `necessity for the relief and the efficacy of alternative remedies'"; (2) "the `flexibility and duration of the relief, including the availability of waiver provisions'"; (3) "the `relationship of numerical goals to the relevant labor market'"; and (4) "the `impact of the relief on the rights of [innocent third parties].'" Howard v. McLucas, 1510*1510 871 F.2d 1000, 1008 (11th Cir.) (quoting United States v. Paradise, 480 U.S. 149, 171, 107 S.Ct. 1053, 1066, 94 L.Ed.2d 203 (1987) (plurality opinion)), cert. denied, 493 U.S. 1002, 110 S.Ct. 560, 107 L.Ed.2d 555 (1989). Special vigilance is required against unyielding racial quotas that "rest[] upon the completely unrealistic assumption that minorities will choose a particular trade in lockstep proportion to their representation in the local population." Croson, 488 U.S. at 507, 109 S.Ct. at 729 (internal quote marks omitted).
Since Croson, this Court has twice rejected an equal protection challenge to governmentsponsored racial preferences. In Howard v. McLucas, 871 F.2d at 1006,we applied strict scrutiny to a consent decree provision that reserved a certain number of promotions for blacks. The number of promotions reserved matched the number of promotions that had

been lost by blacks due to past discrimination. Id. at 1003. The "set aside" was thus narrowly tailored to correct the precisely identified effects of past discrimination.
In Cone Corp., we upheld a minority business enterprise plan that had been carefully crafted to minimize the burden on innocent third parties. 908 F.2d at 910. Under this program, persons who bid for certain county contracts had to make a good faith effort to subcontract a stated percentage of the job to minority businesses. Id. at 911. Although the program included a goal of twenty-five percent minority participation, the county would grant a waiver if qualified minority businesses were uninterested, unavailable, or significantly more expensive than non-minority businesses. Id. at 910-11. In the first year of the program's operation, the county had, after investigation, granted good-faith waivers to each of the bidders who had failed to reach the twenty-five percent target for minority participation. Id. at 911. Despite the plan's flexibility, the district court entered summary judgment against the county. This Court reversed, holding that the plan was sufficiently likely to pass constitutional muster to warrant a trial. Id. at 917.
The affirmative action provisions at issue in the present case lack both the extreme specificity of the Howard plan and the generous flexibility of the Cone Corp. plan. They are not narrowly tailored. Thus, the district court must re-write the decrees to make them narrowly tailored to the compelling interest they are intended to serve.
The decrees contain two sets of affirmative action provisions: "long-term goals" and "annual goals." The long-term goals are intended to reflect the basic purpose of the decree — they are the final destination. As the long-term goals are reached, affirmative action ends. By contrast, the annual appointment goals are the means of getting to the long-term goals; they guide year-to-year personnel decisions. We will discuss the flaws in the long-term goals first, and then turn to the short-term goals.
i. Long-Term Goals
As written, the long term racial goals are fundamentally flawed. The flaw is that they are designed to create parity between the racial composition of the labor pool and the race of the employees in each job position. The Constitution does not guarantee racial parity in public employment; instead, it forbids racial discrimination. A public employment consent decree's raceconscious provisions are valid only to the extent that they promote the compelling government interest, anchored in the Constitution, of ending discrimination. We stressed in United States v. City of Miami, 2 F.3d 1497, 1506 (11th Cir.1993), that the intent of consent decrees like those in this case cannot be to maintain employment quotas. Instead, the proper goals of such a decree are to end discrimination and eliminate the

effects of past discrimination. Id.; see alsoBrunet v. City of Columbus, 1 F.3d 390, 412 (6th Cir. 1993) ("`Title VII does not require employers to equalize the probabilities of hiring of the average members of two groups. Rather, it requires that actual individuals enjoy opportunities for employment free from discriminatory barriers.'") (quoting Brunet v. City of Columbus,642 F.Supp. 1214, 1228 (S.D.Ohio 1986)).
By striving for racial parity rather than an end to racial discrimination, these decrees actually promote racial discrimination in contravention of the Constitution. Some might 1511*1511 argue that an end to discrimination requires parity between the racial composition of the labor pool and the racial composition in each job position. The Supreme Court, however, has rejected that contention, because it "rests upon the completely unrealistic assumption that minorities will choose a particular profession in lockstep proportion to their representation in the local workforce." Croson, 488 U.S. at 507, 109 S.Ct. at 729 (internal quotation marks omitted).
Conceding that the decrees' long-term racial parity goals violate Croson, the district court stated: "There can be little doubt that the civilian labor force data would not pass muster under current legal standards as a valid measure of a discrimination-free job force for all city jobs...." Nevertheless, the district court believed that this admittedly "inappropriate measure" did not need to be altered because other modifications to the decrees would "partly reduce[]" any "adverse consequences" arising from use of labor force data, and because the long-term goals "have proved in practice to be largely hortatory." Courts should not be satisfied with partly reducing the effects of unconstitutional aspects of their decrees. Instead, they must modify decrees to prevent them from operating unconstitutionally in whole or in part.
Moreover, the long-term goals play a significant role in the operation of this decree. These goals may not determine the annual level of appointments, but they serve more than a hortative function. As the district court explained, "[t]heir primary effect has been to set a[n] expiration date for the annual goals." This role is significant because the Constitution demands that race-conscious affirmative action programs end as soon as their purposes are accomplished. Until the long-term goals are met, these goals maintain race-conscious selection procedures. Thus, it is important to ensure that the longterm goals "pass muster under current legal standards as a valid measure of a discrimination-free job force."
On remand, the district court must rewrite the decrees to reflect that their true long-term purpose is to remedy past and present discrimination, not to achieve workforce parity. The goal of eliminating discrimination may justify some interim use of affirmative action, but affirmative action selection provisions are themselves a form of discrimination that cannot

continue forever. An end to racial discrimination demands the development of valid, nondiscriminatory selection procedures to replace race-conscious selection procedures. We hesitate to label this essential object "long-term," because it should be pursued with a sense of urgency.
The Constitution allows local governments to adopt affirmative action programs only if necessary to remedy discrimination that cannot be cured by less suspect means.See Croson, 488 U.S. at 509-10, 109 S.Ct. at 730; see also Hayes v. North State Law Enforcement Officers Ass'n, 10 F.3d 207, 217 (4th Cir.1993) ("The essence of the `narrowly tailored' inquiry is the notion that explicit racial preferences ... must be only a `last resort' option."). While "strict scrutiny does not require exhaustion of every possible ... alternative," it does require "serious, good faith consideration of race-neutral alternatives," either prior to or in conjunction with implementation of an affirmative action plan. Coral Constr. Co. v. King County, 941 F.2d 910, 923 (9th Cir.1991), cert. denied, ___ U.S. ___, ___, 112 S.Ct. 875, 116 L.Ed.2d 780 (1992);see also Cone Corp. v. Hillsborough County, 908 F.2d 908, 917 (11th Cir.)(upholding a minority set-aside program that implemented race-neutral alternatives in conjunction with, rather than prior to, racial preferences), cert. denied, 498 U.S. 983, 111 S.Ct. 516, 112 L.Ed.2d 528 (1990). Unfortunately, race-neutral alternatives have not been pursued diligently enough in this case.
True, the City and the Board have engaged in several race-neutral efforts to cure past and present discrimination. In the 1960s, the Board actively encouraged blacks to apply for jobs, and either waived or eliminated certain application fees. The consent decrees themselves required strengthened recruitment of blacks and women, eliminated certain time-in-grade and size requirements that may have hindered the promotion of blacks or women, and mandated education of supervisors in their responsibility to prevent discrimination against blacks and women. 1512*1512 No party has alleged on appeal that these obligations have not been met.
However, the single most important race-neutral alternative contained in the decrees was the requirement that the Board develop and put in place non-discriminatory selection procedures — a requirement that the Board has not satisfied. The Board was quite properly ordered to implement selection procedures that either had no disparate impact on blacks and women or that, despite having disparate impact, were "job related" as that term is used in Title VII. Moreover, if the Board chose the second approach, adopting procedures that were job-related despite having some disparate impact, then the Board was required to search for selection procedures that were equally job-related but with less adverse impact. These decree provisions roughly parallel the requirements of Title VII, which mandates that

an employer use either a selection procedure with no adverse impact or a job-related selection procedure that has no more adverse impact than other, equally job-related selection procedures. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975). Although the decree ordered the Board to comply with Title VII by developing valid tests, it provided no deadlines or formal review mechanism to ensure that the Board actually did so. That omission turned out to be a serious flaw.
The development of valid selection procedures, in conjunction with the other race-neutral measures, would in time have ended race-conscious hiring. By minimizing and ultimately ending the need for racial preferences, implementation of race-neutral selection procedures would have gone far toward making sure that these decrees satisfied constitutional requirements. But little or no progress in this direction has been made. In 1991, the Board administered thirty-five different tests, none of which had been validated. Thirteen years after the consent decrees took effect, the Board is still unable or unwilling to demonstrate the legality of a single exam.[11] For its part, the City has never tried to validate the selection procedures it uses to choose from among qualified candidates; nor does the City decree presently require that it do so. Thirteen years of experience teach that the decrees as written are simply too weak to make the City and the Board develop non-discriminatory selection procedures. The district court should remedy this defect. The provisions requiring valid selection procedures must be given teeth and extended to cover the City, too.
Under its present decree, the Board may indefinitely administer racially discriminatory tests and then attempt to cure the resulting injury to blacks with race-conscious affirmative action. Federal courts should not tolerate such institutionalized discrimination. See Billish v. City of Chicago, 989 F.2d 890, 894 (7th Cir.1993) (en banc) ("[A] public employer cannot be allowed to justify reverse discrimination by the bootstrap method of an alternating sequence of racial promotions (or hires). That is, the city cannot get points for 1513*1513 first using a presumptively biased eligibility list to make a string of white promotions and then turning around and trying to do some rough racial justice by promoting two blacks from the bottom of the list."). Use of racial hiring quotas to mask the effects of discriminatory selection procedures places grievous burdens on blacks as well as whites. Whatever they measure, tests that are not job-related do not predict future job performance, yet they may nevertheless convince some persons that those who score lower are less qualified. As Justice Brennan once explained, "even in the pursuit of remedial objectives, an explicit policy of assignment by race may serve to stimulate our society's latent race consciousness, suggesting the utility and propriety of basing decisions on a factor that ideally bears no relationship to an individual's worth or needs." United Jewish Orgs. v. Carey, 430 U.S. 144, 173, 97 S.Ct. 996, 1014, 51 L.Ed.2d 229 (1977) (Brennan, J., concurring in part). Blacks who do not make top marks on the flawed exams, but who

nevertheless are appointed through affirmative action, may discover that their colleagues mistakenly consider them less able. Croson, 488 U.S. at 493, 109 S.Ct. at 722 (plurality opinion) ("Classifications based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility.");Hayes v. North State Law Enforcement Ass'n, 10 F.3d 207, 212 (4th Cir.1993)("`While the inequities and indignities visited by past discrimination are undeniable, the use of race as a reparational device risks perpetuating the very race-consciousness such a remedy purports to overcome.'") (quoting Maryland Troopers Ass'n v. Evans, 993 F.2d 1072, 1076 (4th Cir.1993)). For these reasons, it is not surprising that the class of black employees argued in the district court that a reasonable timetable for adoption of valid tests should be imposed. The failure of the consent decrees to force the City and the Board to develop race-neutral selection procedures that are fair to blacks and whites has caused both to suffer the effects of discrimination.
By permitting the continued use of discriminatory tests, the decrees compound the very evil they were designed to eliminate. The Constitution will not allow such a discriminatory construct. One color of discrimination has been substituted for another in an effort to mask the peeling remnants of prejudice past, leaving a new and equally offensive discoloration rather than a clean canvas. The time has long passed for the Board and the City to strip away the past and adopt fresh, race-neutral selection procedures. Court-enforced racial preferences must end as soon as possible.
The district court declined to set deadlines for the development of valid selection procedures. The court agreed that "use of such testing procedures would be desirable," but nevertheless summarily decided "that specific requirements for development and review [of lawful tests], particularly if accompanied by a judicially-imposed timetable, would be unrealistic, unworkable, and unwise." That decision was an abuse of discretion.
While it may be difficult to develop valid selection procedures, that task is far from impossible. Other public employment cases prove that it can be done. See, e.g.,Hamer v. City of Atlanta, 872 F.2d 1521, 1532 (11th Cir.1989) (upholding the district court's finding that a written test used to determine promotions from firefighter to fire lieutenant was properly validated); Brunet v. City of Columbus, 1 F.3d 390, 411 (6th Cir.1993) (upholding use of professionally-developed firefighter exam); Bridgeport Guardians, Inc. v. City of Bridgeport, 933 F.2d 1140, 1148 (2d Cir.) (affirming the use of a job-related exam in conjunction with "banding," a technique designed to reduce the test's disparate impact), cert. denied, ___ U.S. ___, 112 S.Ct. 337, 116 L.Ed.2d 277 (1991); Police Officers for Equal Rights v. City of Columbus, 916 F.2d 1092, 1101-02 (6th Cir. 1990) (affirming a district court's finding that the challenged portion of a police lieutenant exam was job-

related); Bernard v. Gulf Oil Corp., 890 F.2d 735, 746 (5th Cir.1989) (affirming the district court's determination "that the tests Gulf used to determine which employees were eligible for promotion were job related, based upon the validation studies and expert testimony"), cert. denied, 497 U.S. 1003, 110 S.Ct. 3237, 111 L.Ed.2d 748 (1990); 1514*1514 Berkman v. City of New York,812 F.2d 52, 59-60 (2d Cir.) (approving the district court's conclusion that physical examinations used by the city to select entry-level firefighters were valid), cert. denied, 484 U.S. 848, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987); Clady v. County of Los Angeles, 770 F.2d 1421, 1430-32 (9th Cir.1985) (affirming the district court's conclusion that a written examination used by the county to hire firefighters was valid), cert. denied, 475 U.S. 1109, 106 S.Ct. 1516, 89 L.Ed.2d 915 (1986); Rivera v. City of Wichita Falls, 665 F.2d 531, 538 (5th Cir. Unit A 1982) (affirming a district court finding that a police officer exam was job-related); Contreras v. City of Los Angeles, 656 F.2d 1267, 1281, 1284 (9th Cir.1981) (concluding that an auditor exam was job-related), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 140 (1982);United States v. Las Vegas Metropolitan Police Dep't., D.Nev. (No. CV-S-84-809-RDF (LRL), June 11, 1991) (report and recommendation of magistrate judge) (finding a professionallydeveloped police officer exam to be lawful); cf. Guardians Ass'n v. Civil Serv. Comm'n, 630 F.2d 79, 103 (2d Cir.1980) (holding that an employer "faces a substantial task in demonstrating" the job-relatedness of a test, "[b]ut the task is by no means impossible"), cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981); Craig v. County of Los Angeles, 626 F.2d 659, 664-66 (9th Cir.1980)(upholding the district court's determination that success on a written exam was predictive of success at the police academy, but remanding for a determination of whether success at the academy correlated to job performance), cert. denied, 450 U.S. 919, 101 S.Ct. 1364, 67 L.Ed.2d 345 (1981); United States v. City of San Francisco, 696 F.Supp. 1287, 1297 (N.D.Cal.1988) (approving a consent decree that set out a schedule of test-development deadlines), aff'd in part and modified in part on other grounds sub nom. Davis v. City of San Francisco, 890 F.2d 1438 (9th Cir.1989), cert. denied, 498 U.S. 897, 111 S.Ct. 248, 112 L.Ed.2d 206 (1990).
Moreover, the conclusion that job selection procedures cannot be brought into compliance with Title VII necessarily implies that Congress set up a legal requirement that is impossible to meet. We are loath to impute such a gross error to our nation's elected representatives. Had Congress shared the district court's belief that validation of selection procedures was "unrealistic, unworkable, and unwise," then Congress "would not have made a specific exception to Title VII for the proper use of professionally designed tests." Guardians Ass'n v. Civil Serv. Comm'n, 630 F.2d 79, 89 (2d Cir.1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981). Valid tests may prove administratively burdensome to design and validate, but minimizing inconvenience is not a constitutional value. It certainly does not

outweigh the importance of ending racial discrimination. See, e.g., Hayes v. North State Law Enforcement Ass'n, 10 F.3d 207, 216 (4th Cir.1993). As Judge Frank M. Johnson, Jr., has explained, "[t]he Constitution does not put a price on constitutional rights, in terms either of time or money. The rights guaranteed by the Constitution are to be made effective in the present." Jack Bass, Taming the Storm 398 (1993) (quoting written statement made by Judge Johnson during confirmation proceedings regarding his appointment to the Court of Appeals). If the process of approving selection procedures places undue strain on the district court's resources, it may appoint a special master to assist with the task.
Our conclusion that the development of valid job-selection procedures is feasible is buttressed by the fact that, even while complaining about the burdens of test-development, the Board claims that approximately two-thirds of the thirty-five exams it administered in 1991 had no disparate impact on the passing rate of blacks. The Board does not purport to claim that its tests are sufficiently "job-related" to satisfy Title VII. But its alleged success at developing tests with no disparate impact puts us at a loss to understand the Board's refusal to subject even a single exam to judicial scrutiny and its vigorous opposition to any deadline for doing so. The Board's self-professed capacity for designing non-discriminatory tests belies its 1515*1515 contention that test-development is too tricky for deadlines.[12]
As Judge Clark recently noted for this Court, "our experience teaches us that on some occasions public employers prefer the supervision of a federal court to confronting directly [their] employees and the public." United States v. City of Miami,2 F.3d 1497, 1507 (11th Cir.1993). The Constitution was not designed to ease the lot of public officials, and it is not the role of federal courts to insulate public officials from the people. Instead, woven throughout the Constitution is a commitment to democratic self-rule, making public officials answerable to the people. While one of the most important duties of federal courts is to protect the constitutional and statutory rights of minorities, interference in the processes of another branch of government should be as narrow and short-lived as fulfilling that constitutional duty allows. Remedial decrees should require the responsible officials to end their unconstitutional action posthaste. Remedial decrees should not foster prolonged oversight and management by the least representative branch. Federal court supervision of local government has always been "intended as a temporary measure" and should "`not extend beyond the time required to remedy the effects of past intentional discrimination.'" Board of Educ. v. Dowell, 498 U.S. 237, 248, 111 S.Ct. 630, 637, 112 L.Ed.2d 715 (1991) (school desegregation case) (quotingSpangler v. Pasadena City Bd. of Educ., 611 F.2d 1239, 1245 n. 5 (9th Cir.1979) (Kennedy, J., concurring)).

Valid selection procedures are both possible in practice and constitutionally necessary. Therefore, on remand, the district court should set prompt deadlines for the City and the Board to develop and implement valid job-selection procedures.[13]
ii. Annual Goals
We now turn to a discussion of the decree's annual goals, which guide the year-to-year actions of the City and Board. Such annual hiring goals may serve the ultimate purpose of eliminating discrimination in two different ways. First, affirmative action may be needed to remedy present discrimination where less-suspect means are unavailable or inadequate. Second, hiring preferences may be essential to cure the lingering effects of past discrimination. We first consider the extent 1516*1516 to which these two purposes justify continued use of the annual goals; we then discuss how the annual goals should be modified to make their interim use narrowly tailored.
Until valid job-selection procedures are in place, some use of racial preferences is necessary to counteract the ongoing effects of racially discriminatory testing. Were such race-conscious decisionmaking not allowed prior to the implementation of race-neutral selection devices, the City and the Board would find themselves in the impossible position of trying to comply with Title VII on the basis of discrimination-tainted procedures. The Wilks class implicitly conceded as much at the modification hearing, and argues on appeal only that "supplemental" affirmative action should be disallowed in the absence of "a firm schedule for adoption of lawful tests." We have already decided that adoption of such a schedule is necessary. Therefore, pending prompt implementation of valid selection procedures, the Board may continue to make race-conscious certifications to the City and the City may continue to take race into account when hiring and promoting. We will discuss later the character of race-conscious decisionmaking that is permitted.
In addition, even after valid selection procedures are in place, affirmative action may be needed to cure past discrimination by the City and the Board. However, we refuse simply to assume that the effects of past discrimination in public employment have endured or will endure indefinitely. For the past thirteen years, the decrees have mandated that the City and Board affirmatively hire blacks as a remedy for past wrongs. This court-approved remedy has apparently had substantial impact.
On remand, the district court must determine from evidence whether the effects of past City and Board discrimination persist. As long as significant specified effects linger, affirmative action may be justified despite the implementation of valid selection procedures. Public employers cannot escape their constitutional responsibilities merely by adopting facially-

neutral policies that institutionalize the effects of prior discrimination and thus perpetuate de facto discrimination. See United States v. Fordice, ___ U.S. ___, ___ - ___, 112 S.Ct. 2727, 2735-36, 120 L.Ed.2d 575 (1992) (school desegregation case). Here, however, it is not at all clear that broad affirmative action is still needed to cure past discrimination by the City and the Board. After thirteen years of racial preferences — and even longer with respect to firefighters and police officers — the district court should consider the retrospective, remedial purpose of affirmative action satisfied except where it finds that past discrimination continues to taint a particular position. Absent such findings, and once valid selection procedures have been adopted, affirmative action will no longer be legitimate; the goals of rectifying past and present discrimination will have been achieved.
Having discussed the circumstances in which the City and the Board may continue to use annual affirmative action goals, we now discuss the form that any further affirmative action must take. Affirmative action, when allowed, must be flexible, closely tied to the relevant labor market, and impose no undue burden on innocents.See Howard v. McLucas, 871 F.2d 1000, 1008 (11th Cir.), cert. denied, 493 U.S. 1002, 110 S.Ct. 560, 107 L.Ed.2d 555 (1989). As presently written, the City and Board decrees' affirmative action provisions do not satisfy these requirements.
The present annual "goals" for blacks lack flexibility. These goals have been set, apparently arbitrarily, at figures ranging from twenty-five to fifty percent, depending on the position. We might allow such fixed-percentage "goals," under the theory that they represented an estimate of the speed with which past discrimination could be eradicated, if they were in fact treated as goals rather than absolute commandments. The Cone Corp. Court, for example, upheld a plan that set a goal of twenty-five percent minority participation because the county granted waivers whenever that goal could not be achieved. Cone Corp. v. Hillsborough County, 908 F.2d 908, 916-17 (11th Cir.), cert. denied, 498 U.S. 983, 111 S.Ct. 516, 112 L.Ed.2d 528 (1990). Here, by contrast, the annual appointment "goals" have been applied as rigid quotas. In the early 1980s, the City mechanically 1517*1517 appointed equal numbers of blacks and whites to fire department positions without any consideration of relative qualifications in order to meet the stated fiftypercent "goal." In 1989, the City promoted to fire lieutenant seven blacks previously found by a City review board to be unqualified — despite the competing candidacy of several whites found by the review panel to be more qualified "(although still unqualified)". The City apparently viewed its annual fifty-percent "goal" as mandatory, and believed that if it did not promote blacks and whites in approximately equal numbers, then it could make no appointments at all. As implemented, these goals lack the flexibility that the Constitution requires.

Despite its rigid application of the annual goals, the City contends that two provisions in its decree create sufficient flexibility to satisfy strict scrutiny. The City chiefly relies on paragraph two of its decree, which provides:
Nothing herein shall be interpreted as requiring the City to hire unnecessary personnel, or to hire, transfer, or promote a person who is not qualified, or to hire, transfer or promote a less qualified person, in preference to a person who is demonstrably better qualified based upon the results of a job-related selection procedure.
According to the City, this paragraph allows the City to adjust its "goals" when there is an insufficient pool of qualified black applicants.
We find the City's interpretation unpersuasive. On its own terms, paragraph two does not permit departure from the "goals" unless and until the Board develops "a job-related selection procedure" — i.e., a test that can accurately determine the relative qualifications of candidates. See In re Birmingham Reverse Discrimination Employment Litig., 833 F.2d 1492, 1497 (11th Cir.1987) (discussing the district court's understanding that paragraph two does not apply until validated exams are in place), aff'd sub nom. Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989). While paragraph two may underscore the need for valid selection procedures, absent such procedures it does not help the City survive strict scrutiny.
The City also suggests that paragraph five of its decree infuses significant flexibility into the City's hiring and promotion goals. That paragraph provides, in relevant part:
The parties also preserve the right to adjust, through agreement and subject to the approval of the Court, any of the goals provided by this Decree where it can be shown that a professional degree, license or certificate is required to perform the duties of any particular job or jobs in the City's workforce and that blacks and/or women hold such degrees, licenses or certificates in percentage terms which are inconsistent with the goals provided.
This clause mitigates the rigidity of the City decree's "goals" in some situations, but it does not go far enough. First, while paragraph five allows the City to take account of the unavailability of sufficient blacks with degrees and licenses, it imposes no duty to do so. The requirement of "narrow tailoring" is obligatory, not permissive. Second, the clause focuses only on "degrees, licenses, and certificates." Such an unnecessarily limited scope is improper. When determining the proportion of blacks in the qualified labor pool, the City and Board should also take into account other objective prerequisites for employment, such as age or experience requirements, for which data is reasonably available. Where the City always makes promotions to a particular senior position from among individuals holding a

particular junior position, the relative proportion of blacks in the junior position will generally be the most significant determinant of the proportion of blacks in the qualified applicant pool. Finally, paragraph five of the City decree applies only to the City, not to the Board.
Thus, in their present form, the annual goals are unconstitutionally unrefined. On remand, the district court should re-write both decrees to require adjustment of hiring, promotion, and certification goals to reflect the proportion of blacks in the relevant, objectively-qualified labor pool, calculated with reasonably available data. Unless the court finds that past or present City or Board discrimination continues to taint the pool of candidates for a particular job and temporarily 1518*1518 necessitates more substantial affirmative action, neither the City nor the Board may set annual affirmative action goals higher than the proportion of blacks in the qualified pool. Where the district court specifically finds that unlawful discrimination by the City or Board has reduced the proportion of blacks in the qualified labor pool, the district court may remedy the situation by increasing the relevant affirmative action goal in a reasonable and flexible manner. Under no circumstances may the City hire or promote, or the Board certify, candidates who are demonstrably unqualified, or less qualified than other candidates based upon the results of valid, job-related selection procedures unless the district court specifically finds that such appointments are necessary to cure discrimination by the Board or the City that has tainted the pool of qualified applicants for the position in question. Furthermore, both decrees should make it clear that annual goals cannot be used indefinitely. Absent specific proof of ongoing racial discrimination or specific proof of the lingering effects of past racial discrimination, neither the City nor the Board may continue to hire or promote according to race-conscious "goals" for any position for which a valid selection procedure has been developed. These revisions will fairly balance the competing social interests in rectifying past discrimination and in avoiding undue burdens to innocent third parties.
The Constitution tolerates race-based remedies only when they are necessary either to remedy past discrimination or to correct present discrimination until valid selection procedures are in place. Affirmative action is at most a temporary treatment; a cure for discrimination requires more fundamental and more even-handed reform. We cannot allow stop-gap remedies to turn into permanent palliatives. Therefore, the district court is directed to order the City and the Board to develop race-neutral selection procedures forthwith, not at the casual pace the Board has passed off as progress for thirteen years. The Board's decree is not a security blanket to be clung to, but a badge of shame, a monument to the Board's past and present failure to treat all candidates in a fair and non-discriminatory manner. Federal judicial oversight should provide public employers no refuge from their responsibilities. We are confident that, on remand, the district court will modify and enforce the decrees in a way that will bring that truth home.

C. Modification of the Gender-Conscious Affirmative Action Provisions
We now consider what modifications are required to the decrees' gender-based affirmative action provisions. We first consider the prerequisites for modification, and then discuss the nature of the required modifications.
1. Rufo's First Prong and Its Adaptation: Prerequisites for Modification
As previously discussed, Rufo normally permits modification only to accommodate "a significant change in facts or law." Rufo v. Inmates of Suffolk County Jail, ___ U.S. ___, ___, 112 S.Ct. 748, 765, 116 L.Ed.2d 867 (1992). However, we must adapt that general rule to the peculiar procedural posture of the present case. Rufoinvolved, and envisions, a typical consent decree modification proceeding in which all the participants are parties to the original decree. Cf. Fed.R.Civ.P. 60(b) (allowing parties to seek decree modifications). Parties to a consent decree are estopped by their status as signatories from challenging the decree's validity under law existing when they accepted the decree. In re Birmingham Reverse Discrimination Employment Litig., 833 F.2d 1492, 1501 (11th Cir.1987), aff'd sub nom. Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989). As a result, where a modification proceeding involves only parties to the original decree, a change in law or fact is a prerequisite to modification or termination of the decree.
That was Rufo, but this case is different. Consistent with the Supreme Court's decision in Martin v. Wilks, the district court allowed the Wilks class, which was not a party to the original decrees, to intervene in the present modification proceeding. The Wilks intervenors, unlike the original parties, are not estopped from collaterally attacking 1519*1519 the validity of the decree as originally adopted. Martin v. Wilks, 490 U.S. at 761-62, 109 S.Ct. at 2184. In fact, they are doing just that in the parallel reverse-discrimination case.
This atypical situation raises the question whether intervenors, like parties, may challenge a consent decree's validity based on changes in the law alone, or instead may seek modifications even if there has been no change in the law.[14] Rufo does not consider or answer this question, which should not recur often.[15]
Common sense demands that intervenors be allowed to challenge the constitutional validity of a consent decree under the law that exists at the time of the challenge, irrespective of whether that law has changed since the decree was entered. Because intervenors may seek to alter or dissolve a consent decree through a collateral attack, In re Birmingham

Reverse Discrimination Employment Litig., 833 F.2d 1492, 1496 & n. 13, 1498-99 (11th Cir.1987), aff'd sub nom. Martin v. Wilks,490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989), it is pointless to prohibit a similar challenge in a modification proceeding. It is far better to resolve all of the modification questions at one time rather than to split those questions between two or more proceedings.
We hold that, in the unusual circumstances of this case, the intervenors may bring challenges based on current law, regardless of whether that law has changed. Accordingly, modifications are warranted if necessary to prevent the decrees from violating governing constitutional standards — whether or not those standards had already been announced at the time the decrees were entered. Only by so adaptingRufo's prerequisite to the unusual posture of the present case can we adhere toRufo's spirit: a call for "flexible," prospective reconsideration of aging consent decrees to ensure their continuing validity. Moreover, although our holding may at first appear to make consent decrees more vulnerable, it should have just the opposite effect. A modification proceeding may, to the extent outlined above, be used to make constitutional an otherwise unconstitutional decree — saving it from continuing collateral attack.
We now consider whether existing constitutional standards require modification of these decrees' gender preferences. When the district court entered the decrees, the Supreme Court had recently decided that gender-based classifications were subject to intermediate scrutiny under the Equal Protection Clause. Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397 (1976). In addition, the Supreme Court had specifically employed an intermediate scrutiny standard in upholding a gender-conscious government program designed to "[reduce] the disparity in economic condition between men and women caused by the long history of discrimination against women." Califano v. Webster, 430 U.S. 313, 317, 97 S.Ct. 1192, 1194, 51 L.Ed.2d 360 (1977). The decision in Mississippi University for Women v. Hogan, 458 U.S. 718, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982), clarified that a classification must pass intermediate scrutiny even if the state's 1520*1520 asserted purpose is benign. Id. at 728, 102 S.Ct. at 3338.
It has been suggested that Croson changed the rule established by Craig, Califano,and Hogan, so that gender-based affirmative action is now subject to strict scrutiny just like race-based affirmative action. See John Galotto, Note, Strict Scrutiny for Gender, Via Croson, 93 Colum.L.Rev. 508, 508 (1993) ("Croson compels the application of strict scrutiny to all forms of gender discrimination."); but see Peter Lurie, Comment, The Law as They Found It: Disentangling Gender-Based Affirmative Action Programs from Croson, 59 U.Chi.L.Rev. 1563, 1564 (1992) ("One standard, intermediate scrutiny, must apply to all gender classifications."). Indeed, several post-Croson cases have, with little or no

discussion, followed this approach.See Brunet v. City of Columbus, 1 F.3d 390, 404 (6th Cir.1993) ("Under the precedent in this Circuit, gender based affirmative action plans are subject to strict scrutiny when challenged under the Equal Protection Clause."); Long v. City of Saginaw, 911 F.2d 1192, 1196 (6th Cir.1990) ("The strict scrutiny standard was adopted by a majority of the Court in [Croson] as the standard by which `affirmative action' cases are to be reviewed."); Conlin v. Blanchard, 890 F.2d 811, 816 (6th Cir.1989) (applying strict scrutiny, without discussion, to a gender-conscious affirmative action program); American Subcontractors Ass'n v. City of Atlanta, 376 S.E.2d 662, 664 (Ga.1989) (striking down a race- and gender-conscious affirmative action program under "a strict scrutiny standard, the appropriateness of which is conceded by the parties").
We find those cases unpersuasive. Nothing in Croson suggests that the Supreme Court intended sub silentio to strike down its own decisions applying intermediate scrutiny to gender classifications. While it may seem odd that it is now easier to uphold affirmative action programs for women than for racial minorities, Supreme Court precedent compels that result. Compare Croson, 488 U.S. at 498-508, 109 S.Ct. at 724-30 (applying strict scrutiny to race-based affirmative action) withCalifano, 430 U.S. at 317, 97 S.Ct. at 457 (applying intermediate scrutiny to gender-based affirmative action). We may not, of course, disobey the Supreme Court.
We also note that each post-Croson case that has considered in detail whetherCroson applies to gender classifications has concluded that it does not. Contractors Ass'n v. City of Philadelphia, 6 F.3d 990, 1000-01 (3d Cir.1993); Coral Constr. Co. v. King County, 941 F.2d 910, 930-31 (9th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 875, 116 L.Ed.2d 780 (1992); cf. Milwaukee County Pavers Ass'n v. Fiedler,922 F.2d 419, 422 (7th Cir.) ("Croson is about favoritism toward racial and ethnic groups, not about favoritism toward women. The Supreme Court does not consider discrimination against women to be as invidious ... as discrimination against blacks or other racial minorities; nor ... does it consider discrimination against men to be as invidious as racial discrimination."), cert. denied, 500 U.S. 954, 111 S.Ct. 2261, 114 L.Ed.2d 714 (1991); see also Lamprecht v. Federal Communications Comm'n, 958 F.2d 382, 391 (D.C.Cir.1992) (majority opinion of Thomas, Circuit Justice). A year after Croson, we recognized that intermediate scrutiny still applied in gender discrimination cases: "For a considerable time now, the law has been quite clear that [discrimination] on the basis of sex is unconstitutional, unless that conduct is ... substantially related to the furtherance of an important government interest."Nicholson v. Georgia Dep't of Human Resources, 918 F.2d 145, 148 (11th Cir. 1990).
Our decision in Cone Corp. v. Hillsborough County, 908 F.2d 908 (11th Cir.), cert. denied, 498 U.S. 983, 111 S.Ct. 516, 112 L.Ed.2d 528 (1990), says nothing to the contrary.

There, we held that a race- and gender-conscious "minority business enterprise" program survived strict scrutiny. Id. at 914-17. We did not consider whether a less-exacting standard applied to the gender-conscious provisions of the program. We did not need to do so, given our holding that the plan satisfied even the searching Croson test. Intermediate scrutiny remains the applicable constitutional standard in gender discrimination cases.
1521*1521 Although there has been no significant change in the governing constitutional standard since the gender-conscious provisions of the decrees were adopted, for reasons we have discussed relating to the presence of intervenors, those provisions nevertheless must comply with present constitutional standards. We next explain why the genderconscious provisions of the decree are unconstitutional and require further modification.
2. Rufo's Second Prong: Suitably Tailored Modifications
"A consent decree must of course be modified if ... one or more of the obligations placed upon the parties has become impermissible under federal law." Rufo v. Inmates of Suffolk County Jail, ___ U.S. ___, ___, 112 S.Ct. 748, 762, 116 L.Ed.2d 867 (1992). This rule requires us to evaluate the gender-conscious provisions of the consent decree under the equal protection standard articulated by Craig and Califanoand clarified by Hogan. Under this standard, no gender preference can survive unless it is substantially related to an important government interest. Hogan, 458 U.S. at 724, 102 S.Ct. at 3336.
a. Intermediate Scrutiny's First Requirement: An Important Government Interest in Gender-Based Relief
We are convinced that the City and Board have established a sufficiently important government interest to justify gender-conscious affirmative action. Under the intermediate scrutiny test, a local government must demonstrate some past discrimination against women, but not necessarily discrimination by the government itself. One of the distinguishing features of intermediate scrutiny is that, unlike strict scrutiny, the government interest prong of the inquiry can be satisfied by a showing of societal discrimination in the relevant economic sector. See, e.g., Hogan, 458 U.S. at 728-29, 102 S.Ct. at 3338 (comparing the social security preference upheld inCalifano, which "took into account" that women had been hindered from earning as much as men, with the all-female nursing program in Hogan, struck down in part because the state had made "no showing that women lacked opportunities" in the field of nursing); cf. Coral Constr. Co. v. King County, 941 F.2d 910, 932 (9th Cir.1991) (noting that "[s]ome degree of discrimination must have occurred in a particular field before a gender-specific remedy may be instituted in that

field," but that "intermediate scrutiny does not require any showing of governmental involvement ... in the discrimination it seeks to remedy"), cert. denied, ___ U.S. ___, 112 S.Ct. 875, 116 L.Ed.2d 780 (1992). The principal purpose of intermediate scrutiny is not so much to make sure that gender-based classifications are used only as a "last resort," Hayes v. North State Law Enforcement Ass'n, 10 F.3d 207, 217 (4th Cir.1993) (racial discrimination case), as it is to ensure that gender classifications are based on reasoned analysis rather than archaic stereotypes, seeContractors Ass'n v. City of Philadelphia, 6 F.3d 990, 1010 (3d Cir.1993) ("The Supreme Court has stated that an affirmative action program survives intermediate scrutiny if the proponent can show it was `a product of analysis rather than a stereotyped reaction based on habit.'") (quoting Metro Broadcasting, Inc. v. Federal Communications Comm'n, 497 U.S. 547, 582-83, 110 S.Ct. 2997, 3018-19, 111 L.Ed.2d 445 (1990)); Lamprecht v. Federal Communications Comm'n, 958 F.2d 382, 393 n. 3 (D.C.Cir.1992) (majority opinion of Thomas, Circuit Justice) (noting that intermediate scrutiny is intended to ensure reasoned analysis of classifications, and commenting that "analysis" is never "reasoned" when it rests on stereotypes rather than facts); Recent Case, 106 Harv.L.Rev. 804, 808 (1993). In a case such as this, in which there is no allegation that gender-based affirmative action was adopted because of "archaic and overbroad assumptions about the relative needs and capacities of the sexes," Roberts v. United States Jaycees, 468 U.S. 609, 625, 104 S.Ct. 3244, 3253, 82 L.Ed.2d 462 (1984), the "important government interest" inquiry turns on whether there is evidence of past discrimination in the economic sphere at which the affirmative action program is directed.
1522*1522 The record before us contains substantial anecdotal and statistical evidence of past discrimination against women, including discrimination by both the City and the Board. For example, "[f]or many years announcements for positions as police patrolman and firefighters were restricted to males only." United States v. Jefferson County, 28 Fair Empl.Prac.Cas. (BNA) 1834, at 1838 (N.D.Ala.1981), aff'd, 720 F.2d 1511 (11th Cir.1983). Coupled with that, women were grossly underrepresented in a variety of City positions at the time the consent decrees were negotiated. Id. These and related findings by the district court, see id., justify the district court's finding that "there is more than ample reason for the Personnel Board and the City of Birmingham to be concerned that they would be in time held liable for discrimination."Id. We are satisfied that the City and Board have demonstrated an important government interest: eradicating gender discrimination against women in public employment.
b. Intermediate Scrutiny's Second Requirement: A Substantial Relation to the Important Interest

The present decree is not substantially related to the goal of eliminating gender discrimination in public employment. That goal requires, at a minimum, the development of gender-neutral selection procedures — whether or not developed in conjunction with a program of affirmative female appointments designed to remedy discrimination against women. Otherwise, both discriminatory selection procedures and remedial gender-based appointments would likely continue forever. While the present decrees mandate appointment of women, for thirteen years these decrees have done little or nothing to promote the development of selection procedures that are fair to women. In fact, as with race, the Board has yet to demonstrate the gender-neutrality or job-relatedness of a single employment exam. This glaring failure suggests that the decrees have, in a very real sense, perpetuated gender discrimination by allowing the Board and the City to use biased tests coupled with gender preferences.
It was an abuse of discretion for the district court to permit such a potentially indefinite cycle of discrimination to continue. Perpetual use of affirmative action may foster the misguided belief that women cannot compete on their own. That notion is just "as pernicious and offensive as its converse, that women ought to be excluded from all enterprises because their place is in the home." Coral Constr., 941 F.2d at 932 (quoting Associated General Contractors v. City of San Francisco, 813 F.2d 922, 941 (9th Cir.1987)). When affirmative action outlives the pressing necessity that justifies its use, it begins to breed the very "archaic and overbroad assumptions about the relative needs and capacities of the sexes" that it was designed to erase.Roberts v. United States Jaycees, 468 U.S. 609, 625, 104 S.Ct. 3244, 3253, 82 L.Ed.2d 462 (1984). In view of that phenomenon, it is not surprising that the class of female employees in this case urged the district court to impose a timetable for adoption of valid, job-related selection procedures.
On remand, the district court should modify the decree to impose a set of prompt deadlines on the City and the Board for the development of gender-neutral selection procedures. As these procedures are developed and put into place, the City and Board must stop employing any affirmative "goals" or quotas for female appointments unless further affirmative action is needed to eradicate lingering effects of discrimination against women. However, because gender goals need be only "substantially related" (rather than "narrowly tailored") to their goal, compare, e.g.Kahn v. Shevin, 416 U.S. 351, 356 n. 10, 94 S.Ct. 1734, 1737 n. 10, 40 L.Ed.2d 189 (1974) (rejecting Justice Brennan's dissenting opinion that a Florida property-tax exemption for widows that was intended to reduce the economic disparity between men and women should have been crafted as narrowly as possible to achieve that goal) with Croson, 488 U.S. at 507, 109 S.Ct. at 729 (requiring narrow tailoring), the decrees need not tie gender goals to the proportion of qualified female applicants.

1523*1523 IV. THE ATTORNEYS' FEES ISSUE
Following the district court's modification order, the Wilks class moved for an interim award of attorneys' fees and expenses pursuant to 42 U.S.C.A. § 1988(b) (Supp.1993) ("In any action or proceeding to enforce ... [§ 1983], the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee...."). The Wilks class sought fees in this modification proceeding for work performed by its counsel both in this proceeding and in the parallel, reverse discrimination case. The district court summarily denied the fee request "without prejudice to refiling at a later date" in the reverse discrimination case. The Wilks class contends that the district court's denial constituted an abuse of discretion.
"It is well-settled that a [civil rights] plaintiff is a prevailing party [under 42 U.S.C. § 1988] and thus ordinarily entitled to a fee award of `some kind' if the plaintiff has succeeded on `any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'" Church of Scientology Flag Serv. Org. v. City of Clearwater, 2 F.2d 1509, 1513 (11th Cir.1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (footnote omitted)). However, "no fee award is permissible until the plaintiff has crossed the `statutory threshold' of prevailing party status." Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789, 109 S.Ct. 1486, 1492, 103 L.Ed.2d 866 (1989) (citing 42 U.S.C. § 1988). "[A]t a minimum," the party claiming fees "must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant." Id. at 792, 109 S.Ct. at 1493.
In light of our decision in this appeal, the Wilks class is a prevailing party under section 1988 insofar as this modification proceeding case is concerned, and it is entitled to an award of attorneys' fees for the modification proceeding work. The class originally asked the district court to vacate the goals in the consent decrees as unconstitutional. On appeal, the class urged this Court to order the goals rewritten so that they would be narrowly tailored and to require that they be adequately founded on a compelling state interest. We have instructed the district court to determine whether the City and Board can show a strong basis in evidence for their conclusion that race-based affirmative action is needed for positions in departments other than the police and fire department. If the district court concludes that there is insufficient evidence to establish a compelling interest in race-based relief, then it must terminate the racial goals for those other departments. We have also held that the affirmative action provisions of the consent decrees are not narrowly tailored; we have accordingly remanded the case to the district court with instructions to rewrite those provisions. These rulings give the Wilks class a substantial part of the relief it originally sought and alter the legal relationship between the parties to this litigation.

That we have not granted the identical relief originally sought by the class — complete elimination of all goals — is not dispositive. To have prevailed, a party "need not obtain relief identical to the relief [that it] specifically demanded, as long as the relief obtained is of the same general type." Ashley v. Atlantic Richfield Co., 794 F.2d 128, 131 (3d Cir.1986) (internal quotation marks omitted); cf. Ruffin v. Great Dane Trailers, 969 F.2d 989, 992-93 (11th Cir.1992) (reversing a denial of attorneys' fees where the district court granted an injunction different from that sought by the plaintiff), cert. denied, ___ U.S. ___, 113 S.Ct. 1257, 122 L.Ed.2d 655 (1993). The party seeking fees need only have received "actual relief on the merits of [the party's] claim [that] materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the [party]." Farrar v. Hobby,___ U.S. ___, ___, 113 S.Ct. 566, 573, 121 L.Ed.2d 494 (1992). The Wilks class had sought the elimination of all race- and gender-conscious affirmative action. Our holdings move toward the elimination of race- and gender-conscious personnel decisions by restricting the scope and duration of the affirmative action provisions of the 1524*1524 decrees. The Wilks class has thus obtained relief on the merits of the same general type as it originally sought, even if to a lesser extent than it might have liked.Cf. Texas State Teachers, 489 U.S. at 793, 109 S.Ct. at 1494 ("[T]he degree of the plaintiff's overall success goes to the reasonableness of the award ... not to the availability of a fee award vel non."). The legal relationship between the Wilks class and the defendants has been materially altered in the direction sought by the class. The Wilks class is therefore a prevailing party insofar as the modification proceedings case is concerned. The district court's denial of attorneys' fees for the Wilks class is vacated and remanded with instructions that the class be awarded reasonable attorneys' fees for work in this modification proceeding case.[16]
V. CONCLUSION
The district court's modification orders are REVERSED in part. On remand, the district court should determine whether the City and the Board have a strong evidentiary basis for their conclusion that race-based remedies are necessary to cure public employment discrimination in departments other than the police and fire departments. If not, the racebased affirmative action provisions that apply to those other departments are unconstitutional and must be terminated. With respect to the police and fire departments, and all other departments for which race-based remedies are found to be justified, the district court must re-write the decrees' affirmative action provisions to make them narrowly tailored. The court is therefore directed to establish a schedule of reasonably prompt deadlines for the City and the Board to develop and implement race-neutral selection procedures. In addition, the district court should restrict the decrees' use of race-based preferences to circumstances in which race-based relief is necessary either to remedy the

lingering effects of public employment discrimination against blacks, or until the City and the Board have implemented valid selection procedures.
The decrees' gender-based preferences must be re-written to make them substantially related to the objective of ending discrimination against women. To that end, we direct the district court to establish a schedule of reasonably prompt deadlines for the City and the Board to develop and implement gender-neutral selection procedures. Unless needed to remedy lingering discrimination against women, gender preferences should be phased out as gender-neutral selection procedures are implemented.
In all other respects consistent with this opinion, the district court's modification orders are AFFIRMED.[17]
We VACATE the district court's order denying attorneys' fees to the Wilks class, and REMAND for determination of an appropriate award in light of this opinion.
As outlined in this conclusion and explained in this opinion, the district court's orders are AFFIRMED in part, REVERSED in part, VACATED in part, and REMANDED for further proceedings consistent with this opinion.
[1] The claims against these other government officials and agencies are not involved in this appeal.
[2] The 1989 amendment specifically allows the Personnel Board to certify, at the City's request, as many as five applicants for any entry-level police officer or firefighter vacancy. See Amendments of 1989, § 1, 1989 Ala.Acts at 970.
[3] Statistical analysis later showed that the new scoring key had made direct comparison of black and white applicants' scores even less accurate at predicting black and white applicants' relative job performance. See Ensley Branch, 13 Empl. Prac.Dec. (CCH) ¶ 11,504, at 6802.
[4] The Equal Protection Clause provides: "[N]or shall any State ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const.Amend. 14, § 1.
[5] There is one possible, partial, exception to this statement. The Board decree allowed the Board to continue to administer the police officer and firefighter tests previously found illegal, "provided that certifications [were] in compliance with" the district court's January 1977 order from the trial on those illegal tests. The 1977 order required race-conscious hiring "[p]ending adoption of some selection procedure which either has no adverse effect upon black applicants or is sufficiently job-related."Ensley Branch, NAACP v. Seibels, 13 Empl.Prac.Dec. (CCH) ¶ 11,504, at 6808 (N.D.Ala.1977), aff'd in part and rev'd in part, 616 F.2d 812 (5th Cir.), cert. denied, 449 U.S. 1061, 101 S.Ct. 783, 66 L.Ed.2d 603 (1980). However, it is not clear that the Board decree incorporated the 1977 order's termination clause; none of the parties have suggested that it did so.
[6] The decree created special provisions for promotion of blacks to the more senior positions in the police and fire departments, and for promotion of women to police positions above the rank of sergeant. After a set number of blacks had been promoted to specified senior police positions, further promotions were to be made "at twice the black percentage representation in the job classifications from which promotional candidates are traditionally selected for those jobs." Women were to be promoted to police positions above the rank of sergeant "in percentages which are approximately equivalent to their percentage representation in the job classification from which promotional candidates are traditionally selected."

[7] This is the only modification made that any party contends on appeal went too far. The Wilks class argues that "[t]he district court's imposition of supplemental Personnel Board referral goals without a firm schedule for adoption of lawful tests should be vacated." We address the Wilks class' argument at page 1515, infra.
[8] As another circuit court said in a similar context, "[i]t may be that in the voluminous record [from two decades of litigation] this issue was addressed, but we are unable to find it." Brunet v. City of Columbus, 1 F.3d 390, 412 n. 10 (6th Cir.1993). This issue certainly was not addressed during the modification proceedings in the present case.
[9] The district court excluded certain evidence proffered by the Wilks class regarding the City's negotiation of its consent decree. This evidence is purportedly relevant to the compelling interest inquiry. Because we have held that the City and the Board had a compelling interest in affirmative action in the police and fire departments, the Wilks class' appeal on the evidentiary issue is moot with respect to those departments. As regards the other departments, "[d]istrict judges have broad discretion" to admit or exclude evidence, BankAtlantic v. Blythe Eastman Paine Webber, Inc., 955 F.2d 1467, 1476 (11th Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 966, 122 L.Ed.2d 122 (1993),and "[a] district court's evidentiary rulings are not disturbed unless there is a clear showing of abuse of discretion," U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986, 993 (11th Cir.1993). We are not convinced that the district court abused its broad discretion by excluding the Wilks class' proffered evidence. The district court may, but is not required to, revisit that ruling on remand.
[10] The district court's finding in the parallel case of past discrimination is not fully transferable to this proceeding. The Wilks class in this proceeding includes many persons who are not parties to the parallel case, persons who therefore cannot be bound by the result of that case. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n. 7, 99 S.Ct. 645, 649 n. 7, 58 L.Ed.2d 552 (1979) ("It is a violation of due process for a judgment to be binding on a litigant who was not a party or a privy....").
[11] In February 1991, the district court engaged in the following colloquy with Ms. Battle, counsel for the Board:
THE COURT: I suppose my assumption ... is that there would be some acknowledgement that whatever the Board has done with respect to redefining or refining tests since 1981, it has not yet gotten to the point where there is a presentation that the tests would be shown and demonstrated as of this time to be job related. MS. BATTLE: Well, Your Honor, we do not intend at this hearing to put on specific evidence at all of job validity of any particular test. As I understand it, the only involvement that the Board has with respect to this hearing for changes to be augmented is what needs to be done for the City and, likewise, a timetable for winding down the process of the Board. THE COURT: ... [I]t seems to me one aspect of evaluating the City's consent decree is to take into account that since '81 and to the present date, there really has not been developed and presented for some kind of validation new testing procedures, and that is a part of the backdrop of looking at whether there should be any modifications....
MS. BATTLE: ... [B]ut the actual request [sic] of whether or not a particular test is valid is not something that the Board thinks is relevant.
THE COURT: Well, wouldn't it be fair to say that the Board has not gotten to the position of wanting to demonstrate the validity at this point of any of the tests?
MS. BATTLE: That may be true.
THE COURT: And that is a factor that the Court has to be aware of in looking at the modification.
[12] Of course, the Board's reluctance to validate its exams may reveal that it has not been as successful as it suggests at developing race-neutral selection procedures. The Board claims only that blacks and women pass many of its exams in close proportion to their representation in the applicant pool — not that blacks and women score as well as others. It may be that the Board's present exams are accurate enough to determine which applicants are qualified, but are not accurate enough to rank fairly those who pass. See Guardians Ass'n, 630 F.2d at 100 ("A test may have enough validity for making gross distinctions between those qualified and unqualified for a job, yet may be totally inadequate to yield passing grades that show positive correlation with job performance."); Ensley Branch, NAACP v. Seibels, 13 Empl.Prac.Dec. (CCH) ¶ 11,504, at 6804 (N.D.Ala.1977) (noting that many tests may be accurate enough "to determine which individuals will exceed a given minimum standard of performance" but unable "to predict individuals' relative standing"), aff'd in part and rev'd in part on other grounds, 616 F.2d 812 (5th Cir.), cert. denied, 449 U.S. 1061, 101 S.Ct. 783, 66 L.Ed.2d 603 (1980). Even if this hypothesis is correct, it would not justify further race-conscious employment actions. Continued use of an exam to rank applicants, when the exam cannot

predict applicants' relative merits, offers nothing but a false sense of assurance based on a misplaced belief that some criterion — no matter how arbitrary — is better than none. Arbitrary, race-conscious hiring should not be tolerated after the Board has had thirteen years to come up with something better. If the Board cannot rank passing applicants in a valid manner because its tests are inadequate, then the Board could be ordered to use time-ofapplication, a lottery, or some other race-neutral device to select from among those who are qualified. See Guardians Ass'n, 630 F.2d at 104; cf. Brunet v. City of Columbus, S.D.Ohio (No. C2-84-1973, March 18, 1992) ("A lottery would be one example of a gender neutral selection device."). At least then the racially discriminatory hiring would end.
[13] Under the present appointment system, the City selects its final choice for any given job vacancy from among a very small number of candidates certified to it by the Board. In making its final choice, the City appears to rely not only on the candidate's race, but also in part on interviews, evaluations of candidate experience, and other subjective criteria. By requiring the City of validate its procedures, we do not mean to condemn subjective screening tools. Nevertheless, Title VII applies to both the City and the Board.
[14] This question did not arise during our analysis of the consent decrees' racial preferences because Croson, the controlling precedent, was handed down years after the entry of the consent decrees. Croson sufficiently changed the constitutional standards applicable to race to require modification under Rufo. Therefore, in the context of the racial preferences, we had no need to consider whether the Wilks class could challenge the decrees under constitutional standards in place when the decrees were written. This question is relevant in the context of gender, however, because the equal protection standards applicable to gender classifications have changed little these past thirteen years.
[15] There are two reasons this atypical situation is unlikely to recur. First, Martin v. Wilks should ensure from the outset that all interested parties participate in, and are thus bound by, consent decree proceedings that occur after that decision. Second, Congress has recently barred collateral, reverse-discrimination challenges to consent decrees by persons who fail to intervene in the original consent decree case despite having had actual notice. See 42 U.S.C.A. § 2000e-2(n) (Supp.1993). No one has argued that this statutory change undoes the Supreme Court's Martin v. Wilks decision as it affects the present litigation. We do not believe that it does, because section 2000e-2(n)(2) specifically provides that "[n]othing in this subsection shall be construed to ... apply to the rights of parties who have successfully intervened ... in the proceeding in which the parties intervened."
[16] Whether the Wilks class is entitled to attorneys fees for work done in the reverse-discrimination case is an issue that should be decided in that case.
[17] In addition, we note that the district court may revisit the decrees, in 1996 as it had planned, or at any other time, to decide whether these decrees should be terminated. The district court may also make any additional decree modifications appropriate for compliance with this Court's decision in the parallel, reverse-discrimination case.

 
 833 F.2d 1492 (1987)
In re BIRMINGHAM REVERSE DISCRIMINATION EMPLOYMENT LITIGATION.
No. 86-7108.
United States Court of Appeals, Eleventh Circuit.
December 15, 1987. Rehearing and Rehearing Denied January 25, 1988.
1493*1493 Raymond P. Fitzpatrick, Jr., Fitzpatrick & Jordan, Birmingham, Ala., for Click, et al.
Mary E. Mann, Sp. Litigation Counsel, U.S. Dept. of Justice, Civ. Rights Div., James S. Angus, Senior Trial Atty., William B. Reynolds, David Kevin Flynn, Michael A. Carvin, Dennis J. Dimsey, Washington, D.C., Frank W. Donaldson, U.S. Atty., Birmingham, Ala., for U.S.
James P. Alexander, George Hawley, Robert K. Spotswood, Eldridge D. Lacy, Richard H. Walston, Birmingham, Ala., for City of Birmingham & Arrington, appellee/cross appellant.
Robert D. Joffe, Cravath, Swaine & Moore, New York City (co-counsel), Stephen Spitz, Lawyers Committee for Civ. Rights Under Law, William L. Robinson, Richard T. Seymour, Washington, D.C., for Martin, et al., appellees/cross appellants.
Judson E. Tomlin, Jr., Haskell, Slaughter, Young & Lewis, Charles A. McCallum, III, Thomas Drake Samford, IV, Mark Ezell, A. Lee Martin, Jr., Frank M. Young, III, Birmingham, Ala., for The Personnel Bd. of Jefferson County, appellees.
Before TJOFLAT and ANDERSON, Circuit Judges, and HENDERSON, Senior Circuit Judge.
Rehearing and Rehearing En Banc Denied January 25, 1988.
1494*1494 TJOFLAT, Circuit Judge:
I.

This litigation has its origin in three employment discrimination actions filed in 1974 and 1975 against the City of Birmingham (the City), the Jefferson County, Alabama Personnel Board (the Board),[1] and various other defendants.[2] In January 1974, the Ensley Branch of the NAACP and seven black individuals filed separate class action complaints in the district court alleging that the City and the Board had violated, among other things, Title VII of the Civil Rights Act through racially discriminatory hiring and promotion practices.[3] In May 1975, the United States brought suit against the same defendants, also alleging a pattern or practice of discrimination in several areas of public service employment.
The district court consolidated the three cases. In December 1976, it held a bench trial on the limited issue of the validity of entry-level tests the City and the Board used to screen applicants for firefighting and police officer positions. The district court concluded that the tests were discriminatory in violation of Title VII.[4] In January 1977, the district court entered a final judgment on this limited issue, and the defendants appealed. This court affirmed the district court's determination of liability. Ensley Branch of NAACP v. Seibels, 616 F.2d 812 (5th Cir.), cert. denied, 449 U.S. 1061, 101 S.Ct. 783, 66 L.Ed.2d 603 (1980).
The district court held a second trial in August 1979 on the issue of the validity of other testing and screening devices the Board employed. The plaintiffs' independent claims against the City, however, were not tried.
While awaiting the district court's decision in connection with the August 1979 trial, the parties entered into settlement negotiations which resulted in two proposed consent decrees: one between the City and the black plaintiffs, the Ensley Branch of the NAACP, and the United States (the City decree), and one between the Board and the black plaintiffs, the Ensley Branch of the NAACP, and the United States (the Board decree). The consent decrees set forth an extensive remedial scheme, including long-term and interim annual goals for the hiring of blacks as firefighters and the promotion of blacks to the position of fire lieutenant.[5] Each decree specifically provided that it did not constitute an adjudication or admission of liability by the Board or the City.
After entering an order provisionally approving the decrees, the district court conducted a fairness hearing to consider the objections of interested parties. At that1495*1495 hearing, the Birmingham Firefighters Association 117 (BFA)[6] filed objections as amicus curiae. After the fairness hearing but before final approval of the consent decrees, the BFA and two of its members moved, pursuant to Fed.R.Civ.P. 24(a), to intervene as of right in each of the three cases, contending that the proposed consent decrees would adversely affect their rights. The court denied the motions as untimely, and, on August 18, 1981, entered an order approving the fairness of the two decrees. Although noting that the only judicial finding of

discrimination to that point had been with respect to the entry-level screening tests, the court stated that "it can hardly be doubted that there is more than ample reason for [the Board and the City] to be concerned that they would be in time held liable for discrimination against blacks at higher level positions in the police and fire departments."[7] The court concluded that "[w]hether or not the proposed decree would in each instance correspond to some finding of discrimination which this court might make ... is not the question. The settlement represents a fair, adequate and reasonable compromise of the issues between the parties to which it is addressed and is not inequitable, unconstitutional, or otherwise against public policy." The court retained jurisdiction to enforce the decrees.
After the district court denied the motion to intervene and approved the decrees, seven white male firefighters brought suit in the district court against the City and the Board. They asked the court to enjoin the enforcement of the two consent decrees on the ground that the decrees would operate to discriminate against them in violation of Title VII. The plaintiffs applied for a preliminary injunction, but the court denied it.
The court's orders denying the motion to intervene and the preliminary injunction were appealed, and the appeals were consolidated. This court dismissed the appeal of the order denying the motion to intervene, concluding that the district judge had not abused his discretion. We pointed out that the white firefighters would not be prejudiced by the denial of intervention because they could file a separate Title VII action on their own behalf. We also affirmed the order denying preliminary injunctive relief, concluding that the individual firefighters had not carried the burden of showing irreparable harm. United States v. Jefferson County, 720 F.2d 1511 (11th Cir.1983).
After having been denied preliminary injunctive relief, the seven white firefighters brought suit in the district court against the City and the Board. They alleged that they were being denied promotions in favor of certain black firefighters whom they asserted were less qualified, and asked the court to enjoin the City from making those promotions. Maintaining that "[t]he defendants are certifying candidates and making promotions on the basis of race under the assumed protection of the consent settlements," the seven white firefighters alleged that the City and the Board were engaged in a practice or pattern of discrimination and were intentionally favoring blacks over whites in violation of Title VII and the equal protection clause of the fourteenth amendment.[8]
Several other City employees who had been denied promotions subsequently brought similar suits in the district court 1496*1496 against the City and the Board.[9] In addition, the United States, notwithstanding its status as a signatory of the consent decrees, brought suit

against the City and the Board,[10] lodging essentially the same allegations as the various individual plaintiffs.[11]
In its answers to the complaints in these cases, the Board admitted that it had made "race conscious certifications pursuant to [the] Consent Decree, as is required by the Consent Decree." The City likewise admitted that it had made "numerous race conscious promotion and employment decisions pursuant to [the City decree's] terms." Both the City and the Board, however, denied that they had violated Title VII or the equal protection clause. Both contended that the plaintiffs were bound by the consent decrees and that the promotions were therefore lawful as a matter of law because they had been made pursuant to those decrees.
Seven black individuals moved both in their individual capacities and as class representatives to intervene as parties defendant in the several suits.[12] The movants sought, pursuant to Fed.R.Civ.P. 23, to represent the class of black applicants and employees that had negotiated and signed the consent decrees in 1981. Because the relief requested by the plaintiffs, if granted, would foreclose future promotions of blacks under the decrees, and perhaps result in the demotion of blacks already promoted, the movants urged that they were entitled to intervene as of right under Fed.R.Civ.P. 24(a). The district court denied the motion to intervene under Rule 24(a), but granted it under Rule 24(b) (permissive intervention).[13] The court also ruled that the movants could intervene only in their individual capacities.[14]
In April 1984 the district court consolidated the several suits for all purposes under the caption "In re Birmingham Reverse Discrimination Employment Litigation." After the parties joined issue, they engaged in extensive discovery concerning the criteria the City used when making the challenged promotions. The court then held a series of pretrial conferences in an effort to settle issues for trial. At those conferences, the plaintiffs[15] made repeated requests for guidance as to what they would have to prove to make out a case of unlawful discrimination.
Without expressly so stating, the district judge treated the plaintiffs as if they were bound by the consent decrees and as if they were alleging solely that the City had violated the City decree. Specifically, the district judge treated the plaintiffs as if they were contending that the City had violated paragraph 2 of the City decree, which provides as follows:
1497*1497 Nothing herein shall be interpreted as requiring the City to hire unnecessary personnel, or to hire, transfer, or promote a person who is not qualified, or to hire, transfer, or promote a less qualified person, in preference to a person who is demonstrably better qualified based upon the results of a job related selection procedure.

By narrowing its attention to paragraph 2, the district court effectively transformed the plaintiffs' position from that of asserting unlawful discrimination under Title VII and the equal protection clause to that of requesting the court to enforce a specific provision of the City decree.[16] Given this characterization of the case, the plaintiffs' claims against the Board became irrelevant.[17]
At trial, the parties focused on the extent to which the City had complied with paragraph 2. The plaintiffs' case consisted of three elements: (1) whether the individual plaintiffs were "demonstrably better qualified" within the meaning of paragraph 2, (2) whether the criteria that plaintiffs proposed for comparing qualifications were based on "job related selection procedures" within the meaning of paragraph 2, and (3) whether the City had in fact been aware of those criteria when it made the challenged promotions.[18]
At the conclusion of plaintiff's case, the court granted the Board's motion to dismiss. After further proceedings, the court entered an order in favor of the City and the defendant intervenors. The court held that the plaintiffs — both the United States and the individual plaintiffs — were bound by the consent decrees. It further held that the plaintiffs had failed in their effort to show a violation of paragraph 2 of the City decree. In fact, the court expressly found that the City "does not use a job-related selection procedure in evaluating the qualifications of certified candidates [and] has made no effort to develop ... such a procedure." (Emphasis added.) Thus, the court in effect held that the City had unilaterally foreclosed the plaintiffs from establishing a violation of paragraph 2: since the City did not use a job-related selection procedure, the court apparently reasoned, paragraph 2 imposed no obligations on it. Having thus disposed of the issue whether the City had violated paragraph 2, the court did not decide the plaintiffs' Title VII and equal protection claims.
Following entry of partial final judgment for the defendants pursuant to Fed.R.Civ.P. 54(b),[19] several of the individual plaintiffs appealed, as did the United States. Because the district court erred in holding that the individual plaintiffs were bound by the consent decrees, we reverse and remand with instructions that the district court try their claims of unlawful discrimination. We affirm the district court's dismissal of the United States' claims.
II.
With respect to the individual plaintiffs, the issue on appeal is whether they are precluded by the consent decrees from bringing an independent Title VII suit 1498*1498against the City and the Board asserting that actions taken pursuant to those decrees have resulted in unlawful discrimination against them. Because we conclude that these plaintiffs were

neither parties nor privies to the consent decrees, we hold that their independent claims of unlawful discrimination are not precluded.
As the district court recognized, the parties to a consent decree cannot attack the decree after it has been entered. With respect to the preclusive effect of a consent decree on nonparties, however, the same principles of res judicata and collateral estoppel that govern ordinary judgments come into play. United States v. Jefferson County, 720 F.2d 1511, 1517 (11th Cir.1983). An examination of those principles is thus essential to our analysis.
It is a fundamental premise of preclusion law that "[a] nonparty to a prior decision cannot be bound by it unless he had sufficient identity of interest with a party that his interests are deemed to have been litigated." Wilson v. Attaway, 757 F.2d 1227, 1237 (11th Cir.1985). As the Supreme Court has emphasized, this premise is required by due process: "[i]t is a violation of due process for a judgment to be binding on a litigant who was not a party or a privy and therefore has never had an opportunity to be heard." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n. 7, 99 S.Ct. 645, 649 n. 7, 58 L.Ed.2d 552 (1979).
Some courts, however, have seen fit not to apply this aspect of preclusion law to consent decrees in Title VII cases. See, e.g., Thaggard v. City of Jackson, 687 F.2d 66 (5th Cir.1982), cert. denied, 464 U.S. 900, 104 S.Ct. 255, 78 L.Ed.2d 241 (1983);Dennison v. City of Los Angeles, 658 F.2d 694 (9th Cir.1981); EEOC v. McCall Printing Corp., 633 F.2d 1232 (6th Cir.1980). Instead, these courts have decided to clothe consent decrees with the doctrine of "impermissible collateral attack," thereby immunizing parties to a consent decree from charges of discrimination by nonparties, provided the allegedly discriminatory acts were taken pursuant to the consent decree. Courts taking this approach have emphasized the need to encourage voluntary agreements intended to eradicate race discrimination, and have reasoned that to permit third party attacks would discourage parties from negotiating such agreements.
Although we also recognize the strong public policy in favor of voluntary affirmative action plans, we have rejected the "impermissible collateral attack" doctrine "to the extent that it deprives a non-party to the decree of his day in court to assert the violation of his civil rights." Jefferson County, 720 F.2d at 1518. A contrary rule would amount to an exception to the res judicata and collateral estoppel law that we presently apply. Id. It would also contravene the strong public policy of including all interested parties in settlement negotiations in order to avoid subsequent suits and dissatisfaction caused by exclusion. In light of the due process underpinnings of preclusion law, and in light of public policy considerations, we are unwilling to recognize such an exception. Thus, even if a consent decree purports to affect the rights of third parties, those parties are not bound by the terms

of the decree unless their interests were adequately represented by a party to the decree. See Local No. 93 v. City of Cleveland, 478 U.S. 501, 106 S.Ct. 3063, 3079, 92 L.Ed.2d 405 (1986)("A court's approval of a consent decree between some of the parties ... cannot dispose of the valid claims of nonconsenting [parties]; if properly raised, these claims remain and may be litigated by the [nonconsenting parties]."). The policy of encouraging voluntary affirmative action plans must yield to the policy against requiring third parties to submit to bargains in which their interests were either ignored or sacrificed. See Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 589 n. 4, 104 S.Ct. 2576, 2593 n. 4, 81 L.Ed.2d 483 (1984) (O'Connor, J., concurring)("The policy favoring voluntary settlement does not, of course, countenance unlawful discrimination against existing employees.").
The individual plaintiffs were parties to neither the City decree nor the Board decree. Indeed, their Title VII claims did not accrue until after the decrees became effective1499*1499 and the challenged promotions were made; that is, their claims did not accrue until they were denied promotions.
Nor did the individual plaintiffs have an identity of interest with a party to the consent decrees such that they should be treated as parties for preclusion purposes. The BFA, an organization to which the plaintiffs in the fire department belong, did attempt with two of its members[20] to intervene in the original suits, but the court denied intervention as untimely.[21] The BFA also filed objections as amicus curiae at the fairness hearing the district court held before approving the decrees. That participation, however, hardly made the BFA a party to the consent decrees. As we have indicated above, a consent decree by definition binds only those who explicitly or implicitly consent to it. See Jefferson County, 720 F.2d at 1518 n. 19.
Of course, the City did consent to the decrees, and one might argue that the individual plaintiffs as City employees shared an identity of interest with the City such that they are now bound. However, the record fails to indicate that the City mounted a vigorous defense to the allegations leveled against it before entering into settlement negotiations. Indeed, the district court never tried the independent claims against the City. Consequently, it is far from clear that the City in any way adequately represented the individual plaintiffs' interests in the events leading up to the entry of the decrees. Moreover, it is not clear that the plaintiffs and the City shared any identity of interest at all. The City's various interests in this dispute conceivably may have conflicted in part with the plaintiffs' single interest in preserving preexisting promotion opportunities. Indeed, the City's interests were antagonistic in that it had every reason to avoid a determination of liability and little reason to object to the promotion aspect of the settlement. The settlement did not require the City to make any

additional promotions, but only to reallocate the promotions that it would have made in any event. In real terms, the relief contemplated by the decrees was to come not from the hands of the City, but from the hands of the employees who would have otherwise received the promotions. At the very least, the City was in the position of a disinterested stakeholder with respect to the contested promotions. Given the disparate interests of the City and the individual plaintiffs, it is clear that the City could not have served as an effective surrogate for the individual plaintiffs' interests when it negotiated the plan incorporated into the consent decrees. Accordingly, it would be impossible to conclude that these plaintiffs are in any way bound by those decrees.
As we have stated before, "[t]he judge must be cautious in approving consent decrees only to the extent that he should be aware the decree is more likely to be of little effect the fewer parties there are in the suit to be bound." Jefferson County, 720 F.2d at 1518 n. 19; see City of Cleveland, ___ U.S. ___, 106 S.Ct. at 3079 ("Of course, parties who choose to resolve litigation through settlement may not dispose of the claims of a third party, and a fortiori may not impose duties or obligations on a third party, without that party's agreement."). Thus, to avoid claims such as those that have arisen in the present case, it is incumbent upon the district judge to ensure before entering a consent 1500*1500 decree that the interests of all real parties in interest have been adequately represented. See Stotts, 467 U.S. at 588 n. 3, 104 S.Ct. at 2593 n. 3 (O'Connor, J., concurring) ("[I]f innocent employees are to be required to make any sacrifices in the final consent decree, they must be represented and have had full participation rights in the negotiation process."). If the plan affects promotion practice so as to alter or abolish the promotion opportunities of existing employees, those employees must be represented as parties to the decree if they are to be bound by it.
III.
Having concluded that the individual plaintiffs are not bound by the consent decrees, we remand with instructions that the district court try the plaintiffs' claims of unlawful discrimination. Because the defendants concede that the challenged promotions were made in a race conscious manner, and because the defendants seek to use the consent decrees to justify their actions, we feel compelled to provide the district court with some guidance as to the legal significance of a consent decree in Title VII litigation when, as in this case, an employer seeks to interpose it as a defense against employees who were neither parties nor privies to it.
The Supreme Court's interpretation of Title VII's application in reverse discrimination suits was recently articulated in Johnson v. Transportation Agency, 480 U.S. ___, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987). In Johnson, the Court upheld against Title VII attack a

county's promotion of a woman over a marginally better qualified man pursuant to a voluntary affirmative action plan. Under the plan, which set as a long-range goal the creation of a workforce in which women and minorities were proportionately represented according to their representation in the area labor market, the county authorized its officials to consider, among other factors, race and gender when making promotion decisions. Following the promotion of a woman pursuant to the plan, a male employee who had been passed over filed a Title VII suit.
Guided by its decision in United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), the Court set forth a two-part inquiry to be used when a Title VII defendant seeks to use a voluntary affirmative action plan to justify a race or gender conscious employment decision. First, consideration of the race or gender of promotion candidates must be "justified by the existence of a `manifest imbalance' that reflected underrepresentation of women [or minorities] in `traditionally segregated job categories.'" Id., ___ U.S. at ___, 107 S.Ct. at 1452 (quoting Weber,443 U.S. at 197, 99 S.Ct. at 2724 (1979)). The manifest imbalance "need not be such that it would support a prima facie case [of discrimination] against the employer." Id.With respect to the specific facts before it, the Johnson Court concluded that women had been "egregiously underrepresented" in the relevant job categories, noting that "none of the 238 positions was occupied by a woman." Id. at ___, 107 S.Ct. at 1454.
Second, to withstand Title VII scrutiny, the voluntary affirmative action plan must not "unnecessarily trammel[]" the rights of nonminority employees or "create[] an absolute bar to their advancement." Id. at ___, 107 S.Ct. at 1455. In holding that the plan before it was tailored narrowly enough to meet this second requirement, the Court emphasized that "the Plan merely authorizes that consideration be given to affirmative action concerns when evaluating qualified applicants." Id. The Court concluded that "[t]he Plan thus resembles the `Harvard Plan' approvingly noted by Justice POWELL in University of California Regents v. Bakke, 438 U.S. 265, 316-319, 98 S.Ct. 2733, 2761-63, 57 L.Ed.2d 750 (1978), which considers race along with other criteria in determining admission to the college." Id. The Court also noted that the petitioner remained eligible for other promotions when they came open.
On remand, we direct the district court to evaluate the defendants' justification for the challenged promotions under the standards 1501*1501 articulated in Johnson. In an analytical sense, this case differs from Johnson only to the extent that defendants point to a consent decree, rather than a voluntary affirmative action plan, to justify their race conscious promotion decisions. We perceive no reason for treating a consent decree entered pursuant to a voluntary settlement[22] differently from a voluntary affirmative action

plan. In both instances, the employer has embarked on a voluntary undertaking; we reject any notion that the memorialization of that voluntary undertaking in the form of a consent decree somehow provides the employer with extra protection against charges of illegal discrimination. A contrary conclusion would fly in the face of our earlier observations about the preclusive effect of such decrees.[23]
The reasons for according a consent decree no more weight than a voluntary affirmative action plan when the consent decree is offered as justification for a race conscious employment decision are especially strong where, as here, vitally interested parties are not parties to the plan incorporated into the decree. The City decree does contain a provision — paragraph 2 — that facially serves to protect the interests of nonminority employees. In light of the district court's interpretation of paragraph 2, however, that protection is illusory at best. The district court's interpretation of the City decree permits the City to make race conscious promotions without using any job-related selection procedure. Given the natural potential that such an arrangement will trammel the interests of nonminority employees, we are compelled to the conclusion that the district court should subject the consent decrees to heightened scrutiny under the second prong of the Johnson analysis when it tries the individual plaintiffs' claims.
IV.
Our disposition of the United States' appeal involves a separate analysis. As the district court correctly observed, the United States is estopped from collaterally attacking the consent decrees because it is a party to them. Moreover, we hold that the United States, as a party to the decrees, may not pursue its claims as plaintiff intervenors in the present cases. The court that entered the consent decrees retains jurisdiction over the cases out of which the decrees arose, and the United States' remedy, if it believes that the City has violated the terms of the decrees, is to seek an order to show cause why the City should not be held in civil contempt. See Newman v. State, 683 F.2d 1312, 1318 (11th Cir.1982), cert. denied, 460 U.S. 1083, 103 S.Ct. 1773, 76 L.Ed.2d 346 (1983). Likewise, if the United States believes that the decrees should be modified based on changed circumstances, its remedy as a party to the decrees is to seek modification in the court which retained jurisdiction over the cases in which the decrees arose. Id. at 1318 n. 15. Accordingly, the United States' status in the present litigation is in effect merely that of an amicus curiae.
V.
To summarize, the district court correctly dismissed the United States' claims. The district court erred, however, in holding that the individual plaintiffs were bound by the consent

decrees. Accordingly, 1502*1502 it must on remand try those plaintiffs' claims of illegal discrimination.
AFFIRMED in part, REVERSED in part and REMANDED.
ANDERSON, Circuit Judge, dissenting:
Respectfully, I dissent. In my judgment, the opinion for the court ignores an important holding in United States v. Jefferson County, 720 F.2d 1511 (11th Cir.1983). InJefferson County, the BFA and two white firefighters, who are probably in privity with the individual plaintiffs in the instant case, sought to intervene in the litigation which resulted in the consent decree at issue in this case. This court affirmed the district court's denial of intervention, holding that those intervenors "knew at an early stage in the proceedings that their rights could be adversely affected, as was evidenced by their conversations with the City regarding the tactics the City should take in defending the action," id. at 1516. In analyzing the prejudice prong of the intervention question, this court addressed the preclusive effect of the consent decree on the intervenors and held:
Naturally, that the employer undertook the challenged action pursuant to a court-approved consent decree ... would be evidence of nondiscriminatory intent by the employer.
Id. at 1518. I dissent because the opinion for the court in this case ignores the holding just quoted from the previous litigation in Jefferson County. In determining whether the City has discriminated against the instant plaintiffs, Jefferson County requires that the trial judge consider as evidence of nondiscriminatory intent[1] the fact that the City's action was taken pursuant to the consent decree. Ignoring this mandate fromJefferson County, the opinion for the court instructs the district judge on remand merely to evaluate the validity of the consent decree.
In my judgment, the appropriate resolution of this case would distinguish between the individual plaintiffs' claim for back pay and their claim for prospective relief. With respect to their back pay claim, they will have to establish that the City intentionally discriminated against them, and their attempt will probably be defeated under theJefferson County rationale by the evidence that the City was merely implementing the consent decree. This result is consistent with the demands of equity. It would be anomalous for the City to be liable to the instant plaintiffs for actions that the City was required to take on pain of being held in contempt at the hands of the black employees who were parties to and beneficiaries of the consent decree. This result is especially appropriate here in light of Jefferson County's holding that parties in privity with or situated similarly to the instant plaintiffs knew at an early stage in the original litigation that their rights could be adversely

affected, consulted with the City regarding defensive tactics, but made an "ill-advised decision" not to intervene in timely fashion deciding instead to rely on the City to advance their interests. 720 F.2d at 1516-17.
This result also is supported by an analysis of § 713(b) of Title VII, 42 U.S.C. § 2000e12(b)(1) and the applicable EEOC regulations. Section 713(b) provides that no Title VII liability results from an employer's good faith reliance on or adherence to "any written interpretation or opinion of the Commission."[2] The relevant "written interpretation" of the EEOC[3] is 29 C.F.R. 1503*1503 § 1608.8, which provides, in part, that "[t]he Commission interprets Title VII to mean that actions taken pursuant to the direction of a court order [including a consent decree] cannot give rise to liability under Title VII."[4] Thus, the City could rely upon the written interpretation of the EEOC to the effect that the City is precluded from retrospective Title VII liability because of its compliance with the consent decree.[5]
On the other hand, plaintiffs' claim for prospective relief will not be affected in the same way by the existence of the consent decree. In their claim for prospective relief, the validity of the consent decree is itself at issue. I agree with the opinion for the court that these plaintiffs were not parties to the prior litigation which resulted in the consent decree, and that the instant plaintiffs are not bound by the consent decree and should be free on remand to challenge the consent decree prospectively and test its validity against the recent Supreme Court precedent. See Johnson v. Transportation Agency, ___ U.S. ___, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987).
[1] The Board is an independent public agency that administers the civil service system in Jefferson County. One of its functions is to recruit, screen, and test applicants for classified City employee positions. Employees holding classified positions include all full-time City employees except common laborers, judicial officers, elected officials, and certain executives. When a classified position opens, the Board certifies to the City a list of three eligible applicants, from which the City makes its choice.
[2] The complaints also named as defendants the mayor of Birmingham and several officials associated with the Board. Unless otherwise indicated, we shall throughout this opinion refer to these parties collectively as "the City and the Board."
[3] The plaintiffs alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to 2000e-17 (1982); 42 U.S.C. § 1981 (1982); and 42 U.S.C. § 1983 (1982).
[4] As a remedial measure, the court ordered the Board to certify a certain number of black applicants for employment.
[5] Under the proposed City decree, which the district court ultimately approved, the City was to be enjoined permanently from engaging in discriminatory employment practices. The decree required the City to adopt as a longterm goal the employment of women and blacks in each City job classification "in percentages which approximate their respective percentages in the civilian labor force of Jefferson County." The decree set forth specific interim annual goals for the hiring of blacks in specified job classifications, including a 50% annual goal for firefighter, a 50% annual goal for fire lieutenant, and a 25% annual goal for engineering department positions. The proposed Board decree, which the district court ultimately approved as well, required the Board to certify blacks in numbers sufficient to meet the goals set forth in the City decree.

[6] The BFA is a labor association of City firefighters. It represents a majority of the firefighters and negotiates with the City on their behalf.
[7] The district court recited the following statistics for the police and fire departments as of July 21, 1981: "79 of the 480 police officers are black, 3 of the 131 police sergeants are black, and none of the 40 police lieutenants and captains are black. In the fire department, 42 of the 453 firefighters are black, and none of the 140 lieutenants, captains, and battalion chiefs are black." The parties to the present litigation stipulated that in 1980 the civilian labor force of the City of Birmingham was approximately 49.9% black and 50.1% white.
[8] The complaint also alleged violations of the Omnibus Crime Control and Safe Streets Act of 1968, the State and Local Fiscal Assistance Act of 1972, and the fifth amendment of the United States Constitution. The plaintiffs did not pursue these claims at trial and, accordingly, they are not involved in this appeal.
[9] Suits were filed by City engineering department employees as well as fire department employees. Members of both departments are among the parties to this appeal.
[10] The United States, as a signatory of the consent decrees, was originally named as a defendant in two of the reverse discrimination suits. It then moved the district court to intervene as party plaintiff in the remaining cases. The court granted the motion, and also granted the United States' motion to realign itself as plaintiff in the two suits in which it had been named as defendant.
[11] The United States' complaint, however, contained no mention of the consent decrees.
[12] These were the same individuals who had filed a class action against the City and the Board in 1974. At that time, they alleged that they had been denied employment or promotion due to discriminatory employment practices by the City and the Board.
[13] In light of our discussion in Part II of this opinion, these individuals were entitled to intervene as of right because they represented the interests of persons whose jobs were directly at stake given the relief sought by the plaintiffs.
[14] The court held that "[n]either Rule 23 nor Rule 24 contemplates that a class determined to exist in one case can intervene, as such class, in another case.... If [the movants] wish the adjudication in this case to be binding upon a class, they must seek class certification as a defendant class under the procedures and requirements of Rule 23." The defendant-intervenors have not challenged this ruling.
[15] We use "plaintiffs" to refer to both the United States as plaintiff intervenor and the individuals who filed the reverse discrimination suits. When we refer to the latter group alone, we shall use "individual plaintiffs."
[16] In effect, the court treated the plaintiffs as if they were parties to the City decree seeking an order to show cause why the City should not be held in civil contempt for violating the terms of the decree.
[17] The Board, therefore, is only a nominal party to this appeal.
[18] While the first two elements were derived directly from the language of paragraph 2, the third element was implied by the district judge. The judge had informed plaintiffs' counsel at pretrial conference that "you ... better be prepared to deal with the demonstrably better qualified issue and establish that blacks were promoted when there were demonstrably better qualified whites there on the list that the decision makers knew to be demonstrably better qualified."
[19] The order of partial final judgment provided that it did not affect the counterclaims pending against the United States. These counterclaims, lodged by the City and the defendant-intervenors, alleged that the United States had failed to fulfill its obligation as a signatory of the consent decrees to "defend the lawfulness of ... remedial measures [under the decrees] in the event of challenge by any other party." The City and the defendant-intervenors requested the court to dismiss the United States' complaint in intervention and enter an order in the earlier cases directing the United States to comply with its obligation to defend the consent decrees.

[20] The two BFA members who unsuccessfully sought to intervene in the original employment discrimination suits are not named as plaintiffs in any of the reverse discrimination suits. The individual reverse discrimination plaintiffs who are firefighters belong to the BFA. Their counsel, Mr. Fitzpatrick, represented the BFA when it filed objections as amicus curiae at the fairness hearing.
[21] At first blush, it may appear anomalous that we now hold that the individual plaintiffs are not bound by the decrees while we earlier affirmed the district court's denial of the BFA members' motion to intervene in the cases from which the decrees arose. As our opinions here and in Jefferson County demonstrate, however, the issues of intervention and preclusion involve entirely different analyses. Indeed, as we took pains to point out in Jefferson County, the denial of the motion to intervene was not prejudicial to the movants partly because they were not precluded from instituting an independent Title VII suit. Jefferson County, 720 F.2d at 1518.
[22] It should be emphasized that there has been no judicial determination that the City is liable for past discrimination with respect to its promotion practices. The only finding of discrimination related to the adverse impact of entry-level screening examinations. See supra note 4 and accompanying text. Thus, with respect to the promotion practices upon which plaintiffs base their claims, we are not presented with a case in which the defendant was required by law to implement an affirmative action program designed to remedy the effects of past discrimination.
[23] Likewise, the consent decree in this case must be considered equivalent to a voluntary affirmative action plan for purposes of equal protection analysis. The Supreme Court addressed the equal protection obligations of an employer who has instituted a voluntary affirmative action plan inWygant v. Jackson Bd. of Educ., 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986).
[1] Because I write only in dissent, I need not resolve the question reserved in Jefferson County as to whether the fact that the City merely followed the consent decree would conclusively establish that the City is not liable under Title VII.
[2] Section 713(b) of Title VII, 42 U.S.C. § 2000e-12(b)(1) provides in relevant part:
In any action or proceeding based on any alleged unlawful employment practice, no person shall be subject to any liability or punishment for or on account of (1) the commission by such person of an unlawful employment practice if he pleads and proves that the act or omission complained of was in good faith, in conformity with, and in reliance on any written interpretation or opinion of the Commission....
[3] A "written interpretation or opinion of the Commission," as defined by the EEOC procedural regulations, includes "[m]atter published and specifically designated as such in the F[ederal] R[egister]...." 29 C.F.R. § 1601.33(b). Here, the relevant EEOC regulation, 29 C.F.R. § 1608.8, was published in the Federal Register as part of a set of guidelines promulgated by the EEOC to "clarify and harmonize the principles of Title VII...." 29 C.F.R. § 1603.1(a). Section 1608.2 of the guidelines specified that the guidelines "constitute `a written interpretation and opinion' of the Equal Employment Opportunity Commission as the term is used in [Section 713(b) of Title VII] and § 1601.33 of the procedural regulations of the Equal Employment Opportunity Commission...." 29 C.F.R. § 1608.2. Consequently, Section 1608.8 constitutes a "written interpretation" under Section 713(b) of Title VII.
[4] 29 C.F.R. § 1608.8 provides:
Parties are entitled to rely on orders of courts of competent jurisdiction. If adherence to an Order of the United States District Court or other court of competent jurisdiction, whether entered by consent or after contested litigation, in a case brought to enforce a federal, state, or local equal employment opportunity law regulation, is the basis of a complaint filed under Title VII or is alleged to be the justification for an action which is challenged under Title VII, the Commissioner will investigate to determine: (a) whether such an order exists and (b) whether adherence to the affirmative action plan which is part of the order was the basis of the complaint or justification. If the Commission so finds, it will issue a determination of no reasonable cause. The Commission interprets Title VII to mean that actions taken pursuant to the direction of a court order cannot give rise to liability under Title VII.
Emphasis supplied.
[5] I note that the Seventh Circuit has held that a consent order does not constitute a "written interpretation or opinion of the Commission" within the meaning of § 713(b) of Title VII. Eirhart v. Libbey-Owens Ford Co., 616 F.2d 278 (7th Cir.1980). That court, however, apparently overlooked the provision of the regulation upon which I rely. Instead, it

evaluated the consent order under subsection (a) of 29 C.F.R. § 1601.33. My analysis is based upon subsection (b) of 29 C.F.R. § 1601.33; therefore the conclusion in Eirhart is inapposite to this case.

 
 60 F.3d 717 (1994)
ENSLEY BRANCH, N.A.A.C.P.; Donald Nixon; William Moss; Alvin Mahaffey, Jr.; et al., Plaintiffs,
Birmingham Fire Fighters Association 117; Birmingham Association of City Employees; et al., Intervenors, v.
George SEIBELS, individually and as Mayor of the City of Birmingham, et al., Defendants.
John W. MARTIN; Major Florence; Ida McGruder; Sam Coar; et al., Plaintiffs,
Birmingham Fire Fighters Association 117; Birmingham Association of City Employees; Billy Gray; et al., Intervenors, v.
CITY OF BIRMINGHAM; George C. Seibels, Jr.; Mayor of Birmingham; Jefferson County Personnel Board; et al., Defendants. UNITED STATES of America, Plaintiff-Appellant,
Birmingham Fire Fighters Association 117; et al., Intervenors, Robert K. Wilks; James A. Bennett; Floyd E. Click; James D. Morgan;
Joel Alan Day; et al., Plaintiffs-Intervenors-Appellants, v.
JEFFERSON COUNTY, et al., Defendants, City of Birmingham; and George G. Seibels; et al., Defendants-
Appellees.
No. 91-7799.
United States Court of Appeals, Eleventh Circuit.
December 14, 1994.
Raymond P. Fitzpatrick, Jr., Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, AL, for appellant.
Mark T. Waggoner, LaVeeda M. Battle, Gorham, Waldrep, Stewart, Kendrick, Bryant, Battle & Alfano, P.C., Birmingham, AL, for Jefferson County Personnel Bd.
James P. Alexander, Bradley, Arant, Rose & White, Birmingham, AL, for Richard Arrington, Jr. and the City of Birmingham.

Miriam R. Eisenstein, Civ. Rights Div., Dept. of Justice, Washington, D.C., Marie K. McElderry, Dennis J. Dimsey, U.S. Dept. of Justice, Frank W. Donaldson, U.S. Atty., Birmingham, AL, for U.S.
Robert D. Joffe, Cravath, Swaine & Moore, New York City, for Bryant.
Before TJOFLAT, Chief Judge, KRAVITCH, HATCHETT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
The Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), the Suggestions of Rehearing En Banc are DENIED.
HATCHETT, Circuit Judge, dissenting:
I respectfully dissent from the court's failure to grant en banc rehearing for this case. This case raises many important issues meriting en banc review, such as:
718*718 (1) What factual changes must occur before a district court is justified in modifying a consent decree involving racial discrimination, where the discrimination results from the effects of past discrimination?
(2) Should consent decrees ending litigation be treated the same as voluntary, race conscious, local government affirmative action programs?
(3) What weight must a district court give to statistical disparities between the proportion of minorities a public employer hires and the proportion of minorities willing and able to do the work?
(4) To what extent are long term goals allowable in consent decrees between public bodies and minority citizens?
(5) Who are "innocents" in terms of a consent decree that provides a remedy for past and present racial discrimination?
(6) Do "innocents" have standing to attack the provisions of a consent decree involving remedies for public body racial discrimination?

(7) May a consent decree in a public body lawsuit set an annual affirmative action goal greater than the proportion of minorities in the qualified labor pool?
(8) May intervenors require the plaintiffs to show, five or ten years after a consent decree has been entered, that the plaintiff class still suffers the effects of racial discrimination?
(9) May intervenors challenge a consent decree ordering affirmative action for minorities, five to ten years later, based upon current law?
(10) To what degree must a plaintiff class's lawyer change the legal relationship between the plaintiff and the defendant in order to qualify for an award of attorney's fees?
In addition, I believe the court has erred in the following respects:
1. The Panel's Characterization of the Decrees' Longterm and Annual Goals as Unconstitutional Relies Upon a Misconstruction of Supreme Court Precedent and a Misleading Depiction of the Facts.
The panel opinion holds that the district court's modification of the consent decrees' longterm and annual goals is unconstitutionally infirm. But, this finding is based upon an improper construction of Supreme Court precedent and a possible misconstruction of the facts of this case.
2. The Pursuit of Racial Parity in the Work Force is not Unconstitutional.
The panel concludes that the consent decrees' long-term goals are unconstitutional because they seek "racial parity" based upon the "completely unrealistic assumption that minorities will choose a particular profession in lockstep proportion to their representation in the work force." Ensley Branch, 20 F.3d at 1511, (quoting City of Richmond v. J.A. Croson Co., 488 U.S. 469, 507, 109 S.Ct. 706, 729, 102 L.Ed.2d 854 (1989)). The panel's conclusion is incorrect. Although the City's work force is over fifty percent black, the annual hiring goals automatically terminate once twenty-eight percent of the employees in a particular job classification are black. Alternative conditions, such as the development of lawful employment tests, or the satisfaction of the hiring goals for feeder positions, can similarly terminate the annual hiring goals. In any event, the pursuit of a racially balanced work force is not an unconstitutional endeavor. See Johnson v. Transportation Agency, 480

U.S. 616, 639, 107 S.Ct. 1442, 1455-56, 94 L.Ed.2d 615 (1987) (Supreme Court upholds promotion pursuant to affirmative action plan implemented to achieve a balanced work force); United Steelworkers of Am. v. Weber, 443 U.S. 193, 198, 99 S.Ct. 2721, 2724, 61 L.Ed.2d 480 (1979) (Supreme Court upholds fifty percent hiring goal in order to accelerate hiring of black workers in proportion to their percentage in the local labor pool).[*]
719*719 To support its conclusion, the panel relies upon City of Richmond v. J.A. Croson, 488 U.S. 469, 507, 109 S.Ct. 706, 729, 102 L.Ed.2d 854 (1989), where the Supreme Court stated that a minority set-aside program was not narrowly-tailored because it sought no other goal than "racial balancing" and rested "upon the `completely unrealistic' assumption that minorities will choose a particular trade in lockstep proportion to their representation in the local population."
This response misses the mark in several respects. First, the Croson Court expressly noted during its analysis of narrow tailoring "it is almost impossible to assess whether the [minority set-aside plan] is narrowly tailored to remedy prior discrimination since it is not linked to identified discrimination in any way." 488 U.S. at 507, 109 S.Ct. at 729 (emphasis added). Thus, it was in this light that the Supreme Court determined that the only apparent goal of the plan was "outright racial balancing." In this case, no dispute exists that extensive evidence demonstrated discrimination in the City and County's hiring practices. Moreover, the Croson Court also was swayed because of the fact "the city's only interest in maintaining a quota system rather than investigating the need for remedial action in particular cases would seem to be administrative convenience." Croson, 488 U.S. at 508, 109 S.Ct. at 729. Clearly, the Croson decision is readily distinguishable; it involves a situation where the court could not properly find that a set-aside program was narrowly tailored because it was "not linked to identified discrimination in any way." Croson,488 U.S. at 507, 109 S.Ct. at 729.
Second, Croson involved a legislative enactment rather than a court ordered consent decree. In United States v. Paradise, 480 U.S. 149, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987) the Supreme Court noted that "in determining whether this order was narrowly tailored we must acknowledge the respect owed a district judge's judgement that specified relief is essential to cure a violation of the Fourteenth Amendment. A district court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Paradise, 480 U.S. at 183, 107 S.Ct. at 1072. Moreover, in Croson the Court emphasized that the civil war amendments embodied in the Fourteenth Amendment were oriented towards limiting the power of the states in acknowledgement of their tendency towards discrimination against blacks. The federal government was charged with enforcing

this mandate. See Croson, 488 U.S. at 490-91, 109 S.Ct. at 720 (focusing on the enhanced powers of the federal government in comparison to the states in combating racial discrimination).
Thus, the panel erred in holding that the decrees' accelerated relief was unconstitutional.
3. The Record Refutes the Panel's Determination that the City Applied the Annual Goals as Rigid Inflexible Quotas.
The panel concluded that the decrees' short-term "annual appointment goals have been applied as rigid quotas" and "lack flexibility." Ensley Branch, 20 F.3d at 1516. Again, the record belies this conclusion. The appellees' recount their experience with the decrees as follows:
[T]he 50% fire lieutenant goal was in effect for nine calendar years. However, in only two of those years were promotions to fire lieutenant split evenly between blacks and whites. In one year there were no promotions., in two years the 50% goal was exceeded and in four years the City fell short of the 50% annual goal — without consequence. In 1983, for example, the City promoted six whites and three blacks to fire lieutenant, even though the 50% goal was in effect.
John W. Martin, et al. and Gwendolyn Bryant, et al.'s Rehearing Petition at 11 (citations omitted).
So, the decrees' fifty percent annual hiring goals have indeed been applied flexibly and apparently have in certain situations been waived.
720*720 Nevertheless, the panel grounded its conclusion that the City implemented its annual goals as "rigid quotas" is an inadvertent mischaracterization of the record. The panel's opinion mistakenly implied that in 1989 the City promoted seven unqualified blacks to fire lieutenant despite the competing candidacy of several "more qualified" whites. This description, however, obfuscates the true facts. Contrary to the panel's inference that demonstrably unqualified black firefighters were promoted, the City simultaneously promoted seventeen white and eleven black firefighters, all of whom the Personnel Board certified as "qualified" for the position. The panel's mistaken assumption that unqualified black employees were promoted over qualified white employees derives from the evaluations of an experimental "Promotional Review Panel" the City developed to rate the relative qualifications of Board-certified candidates for promotion. The City promoted seven

black firefighters the Board certified as qualified, but the Review Panel rated the firefighters as marginal at best. Yet, the ratings of the Review Panel were never validated as jobrelated or without adverse impact. Consequently, the ratings lacked sufficient reliability for a determination of the true relative qualifications of the black and white candidates.
CONCLUSION
Full court consideration would help to authoritatively resolve these issues of exceptional importance.
[*] Once achieved, however, a racial balance may not be maintained. Weber, 443 U.S. at 208-09, 99 S.Ct. at 272930; Johnson, 480 U.S. at 639, 107 S.Ct. at 1455.

 
 31 F.3d 1548 (1994)
ENSLEY BRANCH, N.A.A.C.P.; Donald Nixon; William Moss; Alvin Mahaffey, Jr.; et al., Plaintiffs,
Birmingham Fire Fighters Association 117; Birmingham Association of City Employees; et al., Intervenors, v.
George SEIBELS, individually and as Mayor of the City of Birmingham, et al., Defendants.
John W. MARTIN; Major Florence; Ida McGruder; Sam Coar; et al., Plaintiffs,
Birmingham Fire Fighters Association 117; Birmingham Association of City Employees; Billy Gray; et al., Intervenors, v.
CITY OF BIRMINGHAM; George C. Seibels, Jr.; Mayor of Birmingham; Jefferson County Personnel Board; et al., Defendants. UNITED STATES of America, Plaintiff-Appellant,
Birmingham Fire Fighters Association 117; et al., Intervenors, Robert K. Wilks; James A. Bennett; Floyd E. Click; James D. Morgan;
Joel Alan Day; et al., Plaintiffs-Intervenors-Appellants, v.
JEFFERSON COUNTY, et al., Defendants, City of Birmingham; and George G. Seibels; et al., Defendants-
Appellees.
No. 91-7799.
United States Court of Appeals, Eleventh Circuit.
August 25, 1994.
1549*1549 1550*1550 1551*1551 Raymond P. Fitzpatrick, Jr., Johnston, Barton, Proctor, Swedlaw & Naff Birmingham, AL, Miriam R. Eisenstein, Civ. Rights Div., Marie K. McElderry, Dennis J. Dimsey, U.S. Dept. of Justice, Washington, DC, Frank W. Donaldson, U.S. Atty., Birmingham, AL, for U.S.
Mark T. Waggoner, LaVeeda M. Battle, Gorham, Waldrep, Stewart, Kendrick, Bryant, Battle & Alfano, P.C., Birmingham, AL, for Jefferson County Personnel Bd.

1552*1552 James P. Alexander, Bradley, Arant, Rose & White, Birmingham, AL, for Richard Arrington, Jr. & The City of Birmingham.
Robert D. Joffe, Cravath, Swaine & Moore, New York City, for Bryant.
Before EDMONDSON and CARNES, Circuit Judges, and HILL, Senior Circuit Judge.
CARNES, Circuit Judge:
The panel hereby grants rehearing, withdraws the previous panel opinion dated May 4, 1994, and published at 20 F.3d 1489, and substitutes the following opinion:
This litigation began more than twenty years ago when the United States and private parties filed civil rights complaints against the City of Birmingham, the Personnel Board of Jefferson County, and other local governmental agencies and officials.[1]The City and the Board share responsibility for hiring and promoting local government employees. The Board, pursuant to state law, administers written tests and other job selection procedures that produce a pool of qualified, or "certified," candidates for a particular position. See Act of July 6, 1945, No. 248, §§ 2, 16, 1945 Ala. Acts 376, 377-79, 391-92 ("Act of 1945"). The Board ranks the passing applicants and then forwards a list of the top candidates to the City for final selection. See id., § 18, 1945 Ala. Acts at 392-94 (regulating civil service appointments), amended, Act of May 4, 1989, No. 89-467, § 1, 1989 Ala. Acts 967, 967-70 ("Amendments of 1989"). The original complaints alleged, first, that the Board used discriminatory tests to determine eligibility for hiring and promotion, and second, that the City and other "employing agencies engaged in still further discrimination when selecting individuals from [the Board's] already tainted lists." In re Birmingham Reverse Discrimination Employment Litig., 37 Fair Empl.Prac.Cas. (BNA) 1, 2, 1985 WL 1415 (N.D.Ala.1985). Over the past twenty years, the resulting litigation has prompted three decisions of this Court and one of the Supreme Court.
This appeal stems from a recent proceeding to modify two consent decrees negotiated thirteen years ago by the original parties. In the present appeal, none of the original parties contends that the district court's modifications were inappropriate — as far as those modifications went. Instead, the United States, joined by an intervening class of male, nonblack employees of the City (the "Wilks class"), contends that the district court failed to go far enough in modifying the consent decrees to address changed circumstances. Because we agree that the Constitution requires further modifications, we reverse a portion of the district court's order and remand for further proceedings.

More specifically, we hold that the district court should: determine whether the City and the Board have a strong basis in evidence for their conclusion that race-based affirmative action is necessary in departments other than the police and fire departments, and if not, terminate the race-based goals with respect to those other departments; order the City and Board to implement valid job-selection procedures forthwith; prohibit appointments based on race or gender after valid procedures are in place, unless the district court specifically finds that further affirmative action is necessary to remedy the lingering effects of discrimination; revise the decrees' annual appointment goals for blacks to make them flexible and reasonably related to the pool of qualified black applicants; and award appropriate attorneys' fees to the Wilks class.
Part I of this opinion sets forth the factual and procedural background of the present litigation. Part II sets forth our standards of review. Part III concerns the decree 1553*1553modification issues: subpart A discusses the applicable law; subpart B applies that law to the decrees' race-conscious affirmative action provisions; and subpart C applies the law to the decrees' gender-conscious affirmative action provisions. Part IV involves an attorneys' fees issue. Part V concludes.
I. BACKGROUND
The size and complexity of this case require that we consider its history in some detail. Whenever possible, we draw on our prior decisions to summarize what has come before.
A. THE COMPLAINTS, FIRST TRIAL, AND APPEAL
The first six years of litigation began with a series of lawsuits against the City and Board alleging discriminatory employment practices:
On January 4, 1974, the Ensley Branch of the National Association for the Advancement of Colored People, together with certain named individuals, for themselves and on behalf of others similarly situated, filed a complaint in the United States District Court for the Northern District of Alabama, against George Seibels (then Mayor of Birmingham, Alabama), the City of Birmingham, the members of the Personnel Board of Jefferson County, and the Personnel Director of that Board, alleging that the defendants engage in discriminatory hiring practices against blacks in violation of the Fourteenth Amendment, 42 U.S.C. §§ 1981, 1983, and 2000e et seq. (Title VII). A suit raising the same constitutional and statutory allegations was filed on January 7, 1974, by John W. Martin and other named plaintiffs [the "Martin class"] against the City of Birmingham, Jefferson County, and the Personnel Board of Jefferson County. On May 27, 1975, the United States brought suit

against the Jefferson County Personnel Board and the municipal and other governmental jurisdictions within Jefferson County alleging a pattern or practice of discriminatory employment practices against blacks and women in violation of Title VII, the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 42 U.S.C. § 3766(c), the State and Local Fiscal Assistance Act of 1972, as amended, 31 U.S.C. § 1242, the Fourteenth Amendment and 42 U.S.C. § 1981. On February 20, 1976, Lucy Walker filed suit challenging the employment practices of the Jefferson County nursing home under Title VII and 42 U.S.C. § 1981. All four cases were consolidated for trial.
On December 20-22, 1976, trial was held on the merits of the limited issue of whether the two tests used by the Personnel Board to screen and rank applicants for positions as police officers and firefighters [were] discriminatory and violative of the constitutional or statutory rights of blacks. All other issues under the complaints were reserved until a later date.
Ensley Branch, NAACP v. Seibels, 616 F.2d 812, 814-15 (5th Cir.) (footnotes omitted), cert. denied, 449 U.S. 1061, 101 S.Ct. 783, 66 L.Ed.2d 603 (1980).
The police officer and firefighter tests at issue were written examinations consisting of 120 multiple-choice aptitude and knowledge questions. Ensley Branch, NAACP v. Seibels, 13 Empl.Prac.Dec. (CCH) ¶ 11,504, at 6797 & n. 16, 1977 WL 806 (N.D.Ala.1977), aff'd. in part and rev'd in part, 616 F.2d 812 (5th Cir.), cert. denied,449 U.S. 1061, 101 S.Ct. 783, 66 L.Ed.2d 603 (1980). The score required to pass each test varied with the number of vacancies and other factors. Ensley Branch, 616 F.2d at 816 n. 10. Under procedures still in place today, the Board ranks passing applicants on an eligibility list according to their score. Id. at 816. For promotional positions, an applicant's score is increased by one point for each year of seniority.See Act of 1945, § 20, 1945 Ala.Acts at 394-95; accord In re Birmingham Reverse Discrimination Employment Litig., 37 Fair Empl.Prac.Cas. (BNA) 1, 5, 1985 WL 1415 (N.D.Ala.1985). When a vacancy arises, the Board forwards the top three names from the eligibility list to the City for final selection. See Act of 1945, § 18, 1945 Ala. Acts at 392-94, amended, Amendments of 1554*1554 1989, § 1, 1989 Ala. Acts at 96770;[2] accord 37 Fair Empl.Prac.Cas. (BNA) at 5 & n. 12. As discussed below, the district court in 1981 approved a pair of consent decrees requiring the City and Board to modify their procedures to take into account race and gender as well.
Ironically, the firefighter and police officer tests challenged in the original trial were themselves adopted, or at least modified, for the specific purpose of hiring more blacks. As the district court explained:
In late 1965, following an independent study as to why no blacks were then employed as police officers in the City of Birmingham, the Personnel Board decided to replace its police

and firefighter exams with tests developed by the Public Personnel Association, now known as the International Personnel Management Association. IPMA tests were being widely used in other parts of the country and were considered by the Board as superior to other tests then available. The change was part of a multi-faceted program intended to increase black participation in governmental positions.
Ensley Branch, 13 Empl.Prac.Dec. (CCH) ¶ 11,504, at 6795. On the advice of consultants that some test questions were more predictive than others of blacks' future job performance, the Board in 1974 began to use a new scoring key that was designed to "increase validity of the [police officer] test for black applicants."[3] Id. The Board also began actively to encourage blacks to apply, to waive examination fees, to experiment with reducing the passing score for the police officer test, and to eliminate priority for applicants residing within the employing agency's jurisdiction. Id.at 6795-96.
After assessing these efforts to increase black employment, the district court concluded that the Board's "selection, administration and use" of the two tests had not been motivated by a "design or intent ... to discriminate on the basis of race or color" and therefore did not violate the Equal Protection Clause.[4] Id. at 6796. The plaintiffs did not appeal that finding. Ensley Branch, 616 F.2d at 815 n. 5.
The district court also found, however, that the police officer and firefighter tests violated Title VII. The court noted that both tests had a significant adverse impact on black applicants, a phenomenon defined as a passing rate "less than four-fifths ... of the rate for [whites]." Ensley Branch, 13 Empl. Prac.Dec. (CCH) ¶ 11,504, at 6796-97 (internal quotation marks omitted). The court ruled that the tests could be used only if, despite their adverse impact, they were sufficiently "job related" to predict effectively test takers' future job performance. Id. at 6796 nn. 10-11, 6806. After reviewing testing data, the court concluded that the tests failed to meet this standard.Id. at 6798-6808.
The court found no statistically significant correlation between the applicants' scores on the firefighter test and their later job performance. Although there was a significant positive correlation between test scores and job performance during the first three years of a firefighter's service, the court found a significant negative correlation between test scores and job performance after the first three years. Id. at 6803. To the court, these findings "suggest[ed] that over time the lower scoring applicants made the better employees." Id. Thus, "one is hard pressed to conclude that the higher scoring [firefighter] applicants are in fact the better persons to hire." Id.
The district court analyzed the police officer under the assumption that supervisor bias had not influenced black officers' performance 1555*1555 ratings, id. at 6802, the district court

found a statistically significant correlation between black police officers' test scores and their later job performance, id. at 6803. Nevertheless, the district court concluded that "the magnitude of the positive prediction is so low that the test is worthless for all practical purposes." Ensley Branch, 616 F.2d 812, 818 n. 16 (5th Cir.), cert. denied, 449 U.S. 1061, 101 S.Ct. 783, 66 L.Ed.2d 603 (1980). Among its many detailed findings, the district court determined that "use of the test predicts [job performance] with a margin of error that is only 2% smaller than it would be without the test." Ensley Branch, 13 Empl.Prac.Dec. (CCH) ¶ 11,504, at 6804. The court also found the test could not predict with a reasonable degree of certainty whether any one applicant would actually perform better than any other. Id. at 6805. The district court therefore concluded that the tests were not sufficiently "job-related" to satisfy Title VII, 42 U.S.C. § 2000e-2(h). Id. at 6806-08; see generally Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975)("Title VII forbids the use of employment tests that are discriminatory in effect unless the employer meets `the burden of showing that any given requirement [has] ... a manifest relationship to the employment in question.'" (quoting Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971)).
As a remedy for the Board's use of illegal tests, the district court ordered race-conscious relief "[p]ending adoption of some selection procedure which either has no adverse effect upon black applicants or is sufficiently job-related." Ensley Branch, 13 Empl.Prac.Dec. (CCH) ¶ 11,504, at 6808. The district court:
ordered that blacks be referred for openings on the police and firefighter forces at the rate at which they took the tests when most recently administered. To accomplish this, the Court ordered that the names of a sufficient number of blacks be added to the current police and firefighter eligibility lists [which included passing applicants from the most recent test administration] so that the lists shall be representative of the racial composition of the testtakers [at that most recent test administration], i.e., 28 and 14 percent black for police and firefighter lists, respectively; that, one-third of future certifications, i.e., referrals from the [existing eligibility] lists for actual employment, are to be black until, considering all certifications since the relevant 1975 and 1976 dates [when the Title VII violations began], the numbers of certifications become representative of the racial composition of the testtakers [at the most recent test administration]. Thereafter, blacks are to be certified in accordance with their representation on the lists, i.e., 28 and 14 percent of certifications for policemen and firefighters, respectively, will be black. Similarly, referrals from future [eligibility] lists [created by future test administrations] will be a function of the rate at which blacks take the examinations on which the lists are based, until or unless defendants develop valid tests.

Ensley Branch, 616 F.2d at 815 n. 6.
An appeal and cross-appeal ensued. The Board appealed the district court's decision that the police and firefighter exams violated Title VII. Id. at 815. In doing so, the Board did not contest the district court's finding that the two tests had an adverse impact, but contended that the tests were in fact job-related. Id. at 816. We upheld the district court's finding that the Board had failed to validate either exam, and affirmed the district court's holding that use of the two exams violated Title VII. Id. at 818, 822.
The United States and the Martin class of black plaintiffs jointly cross-appealed the district court's holding that use of the tests did not begin to violate Title VII until the dates on which the negative results of the test validation studies were reported to the Board. Id. at 815, 823. The district court had reasoned that, until the final results were reported, the Board was justified in using the tests in anticipation of favorable results from the validation studies. Id. at 823. On appeal, we inferred that the district court had relied on an Equal Employment Opportunity Commission guideline that, in "`very limited circumstances,'" authorized a local government to use tests pending the 1556*1556results of a validation study. Id. (quoting Albemarle Paper Co., 422 U.S. at 436, 95 S.Ct. at 2380). However, because we could not determine from the district court's findings whether the case presented one of those "very limited circumstances," we remanded for additional fact finding. Subsequent events obviated the need for those findings, which were therefore never made.
B. THE SECOND TRIAL, CONSENT DECREES, AND APPEAL
While the first appeal was pending, the district court conducted a second trial. That trial involved challenges to other Board practices, including: written tests for eighteen more positions; various rules affecting promotional opportunities; the imposition of height, weight, and educational requirements for certain jobs; and the restriction of some job announcements and certifications to persons of a particular sex. United States v. Jefferson County, 28 Fair Empl.Prac.Cas. (BNA) 1834, 1835, 1981 WL 27018 (N.D.Ala. 1981), aff'd, 720 F.2d 1511 (11th Cir.1983). The Board defended on the grounds that these practices either had no adverse impact upon blacks or women, or were sufficiently jobrelated to be effective predictors of future job performance. Id. As in the first trial, the City did not participate. In fact, the original plaintiffs' claims against the City never reached trial.

While the first proceeding was on remand and the second was at trial, the parties entered settlement talks that eventually suspended both proceedings. Once again, we resort to our summary of the facts from a prior decision:
After we ruled on the district court's decision concerning the written [police officer and firefighter] tests, [Ensley Branch, 616 F.2d at 812], the plaintiffs, in all three cases, entered into extensive negotiations with the Board and the City which culminated in two proposed consent decrees, one with the Board and one with the City. The former disposed of all of the plaintiffs' claims against the Board; the latter disposed of all the plaintiffs' claims against the City.
United States v. Jefferson County, 720 F.2d 1511, 1514-15 (11th Cir.1983)(footnotes omitted). Thus, before the district court ruled on the remand of the first case or rendered a decision in the second case, the parties submitted proposed consent decrees that settled all claims against the City and the Board, including allegations of gender discrimination raised by the United States. Although these decrees provided retrospective relief such as back pay for some individuals, their keystone was an extensive regime of affirmative action for blacks and women.
At the heart of the Board decree was a requirement, subject to the availability of qualified applicants, that the Board annually certify blacks and women either according to racial and gender quotas set forth in the decree or in proportion to their representation in the applicant pool, whichever was higher. The decree's minimum certification rates ranged from ten to fifty percent, depending on the position involved and whether the goal applied to blacks or women. The Board agreed to continue to certify according to these annual "goals" until satisfaction of the long-term "goal"; i.e., until the proportion of blacks and women employed by the City in any given job classification "approximate[d] the respective percentages [of blacks and women] in the civilian labor force of Jefferson County." These provisions did not govern appointment of blacks to entry-level police and firefighter positions, with respect to which the Board decree simply adopted the remedies established by the district court's 1977 order on that subject. Nor did the decree state that the development of lawful selection procedures would terminate race- and gender-conscious certification requirements, which could potentially have continued forever.[5]
1557*1557 The Board decree established several other significant obligations. First, the Board committed itself "periodically" to review its hiring and promotion procedures to ensure that the procedures either had no adverse impact or were sufficiently job-related to pass muster under Title VII. Second, so long as the Board's procedures — whether job related or not — had a disparate impact on blacks or women, the Board agreed to "mak[e] a good

faith effort to determine whether there [were] any alternative [testing procedures] ... which [would] reduce any adverse impact." Third, the decree prohibited the Board's prior practice of restricting job announcements on the basis of gender. Fourth, the decree mandated continued aggressive recruitment of blacks and women.
In broad outline, the City decree was quite similar to the Board decree. It too established annual "goals" for hiring and promoting blacks and women and a "long term goal" of parity between the proportion of blacks and women in any City job classification and the proportion of blacks and women in the civilian labor force. With a few exceptions,[6] the annual goals required the City to hire and promote blacks and women either according to racial and gender quotas set forth in the decree, or at the rate of black and female representation in the applicant pool, whichever was higher. The City also agreed to request the Board "selectively to certify ... qualified blacks and females whenever ... necessary to provide the City with a certification list that contains sufficient numbers of blacks and females to meet the [decree's] goals."
As with the Board decree, the City decree's annual goals were "subject to the availability of qualified ... applicants." In addition, the parties reserved the right:
to adjust, through agreement and subject to the approval of the Court, any of the goals provided by this Decree where it can be shown that a professional degree, license or certificate is required to perform the duties of any particular job or jobs in the City's workforce and that blacks and/or women hold such degrees, licenses or certificates in percentage terms which are inconsistent with the goals provided.
The decree also stated that "[n]othing herein shall be interpreted as requiring the City ... to hire, transfer, or promote a person who is not qualified, or to hire, transfer or promote a less qualified person, in preference to a person who is demonstrably better qualified based upon the results of a job related selection procedure." Other provisions obligated the City to strengthen its recruitment of blacks and women, prohibited any restriction of jobs by gender, and eliminated time-in-grade requirements for some promotional positions.
Although the consent decrees resolved the issues as between the parties to the original cases, several interested non-parties soon appeared to challenge the decrees, claiming that the decrees would adversely affect their employment opportunities. Chief among the objectors was the Birmingham Firefighters' Association ("BFA"), a labor association representing a majority of City firefighters, most of whom were white males. We return to our previous narrative for a description of the ensuing conflict:

The [district] court provisionally approved these consent decrees in June 1981, but reserved final approval until it convened a fairness hearing to consider the objections of all interested parties. The court held that hearing in August 1981, at 1558*1558 which it considered, among others, the objections filed by the Birmingham Firefighters Association 117 (BFA), as amicus curiae. The day after the hearing, BFA and two of its members (BFA members) moved ... to intervene of right in each of the three cases, contending that the proposed consent decrees would have a substantial adverse impact upon them. The court denied their motions as untimely, and approved, and entered, both consent decrees.
Jefferson County, 720 F.2d at 1515 (footnote omitted).
Before approving the decrees, the district court rejected the merits of the objections raised at the fairness hearing by the wouldbe intervenors. The district court reasoned that the decrees "[did] not preclude the hiring or promotion of whites or males,"Jefferson County, 28 Fair Empl.Prac.Cas. (BNA) at 1836, and that the City's hiring goals were "expressly made subject to the caveat that the [City] decree is not to be interpreted as requiring the hiring or promotion of a person who is not qualified or of a person who is demonstrably less qualified according to a job-related selection procedure," id. at 1837. The court further noted that the "provisions for potentially preferential treatment [were] limited both in time and in effect" because they would expire on their own terms when the work-force parity goals were met and because either decree could "be dissolved after a period of six years" if the purposes of the decree had been substantially achieved. Id.; see also In re Birmingham Reverse Discrimination Employment Litig., 37 Fair Empl.Prac.Cas. (BNA) 1, 3 n. 5, 1985 WL 1415 (N.D.Ala.1985) (describing the circumstances in which the decrees may be dissolved). In addition, the court reviewed the evidence of past discrimination against blacks and women and concluded that "there is more than ample reason for the Personnel Board and the City of Birmingham to be concerned that they would be in time held liable for discrimination" against blacks seeking promotional positions in the police and fire departments and against woman at all levels of hiring and promotion in those departments. Jefferson County, 28 Fair Empl. Prac.Cas. (BNA) at 1838. On appeal, this Court affirmed the district court's denial of the BFA's intervention motion.Jefferson County, 720 F.2d at 1516-19.
Shortly after the district court approved the decrees and denied leave to intervene:
Seven individual white male firefighters ... filed a complaint in the district court against the Board and the City to enjoin the enforcement of the consent decrees on the ground that the operation of the decrees would discriminate against them in violation of Title VII of the Civil Rights Act. They applied for a preliminary injunction, which, after a hearing, the district court denied.

Jefferson County, 720 F.2d at 1515 (footnote omitted). In the same opinion in which we affirmed the denial of the BFA's motion to intervene, we also upheld the district court's denial of the preliminary injunctive relief sought by the seven individual white male firefighters. Id. at 1520.
C. THE REVERSE DISCRIMINATION LITIGATION
The district court's approval of the consent decrees, and our refusal to allow the BFA to intervene, brought forth a collection of cases that has come to be known as the "Birmingham Reverse Discrimination Employment Litigation." In these cases, a number of male, non-black City employees collaterally attacked the decrees and the affirmative action programs adopted under them. See In re Birmingham Reverse Discrimination Employment Litig., 833 F.2d 1492, 1495 (11th Cir.1987), aff'd sub nom. Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989). The United States, despite its status as a signatory of the consent decrees, also brought suit against the City, lodging allegations similar to those of the individual plaintiffs. Id.,833 F.2d at 1496; cf. In re Birmingham Reverse Discrimination Employment Litig.,37 Fair Empl.Prac. Cas. (BNA) 1, 8, 1985 WL 1415 (N.D.Ala. 1985) (permitting the United States to side with the reverse discrimination plaintiffs on the issue of whether the City was violating the decree). These cases were heard by the same judge who had heard the earlier consent-decree cases.
1559*1559 Prior to trial, the district court rejected the reverse discrimination plaintiffs' collateral challenge to the legality of the decrees. See In re Birmingham Reverse Discrimination Employment Litig., 37 Fair Empl.Prac. Cas. (BNA) at 3 & n. 6. Instead, the district court restricted the plaintiffs' action to the questions of whether the City or the Board had violated the decrees or had granted illegal preferences that were not required by the decrees. Id. at 3-4. At the close of the plaintiffs' case, the court further limited the action by dismissing for lack of evidence all claims against the Board. See Martin v. Wilks, 490 U.S. 755, 779 n. 16, 109 S.Ct. 2180, 2194 n. 16, 104 L.Ed.2d 835 (1989) (Stevens, J., dissenting). This left the City as the only defendant.
At trial, the plaintiffs had claimed that some blacks were promoted over more-qualified nonblacks despite the fact that the City decree specifically did not require the City to "promote a less qualified person, in preference to a person who is demonstrably better qualified based upon the results of a job related selection procedure." After trial, the district court found for the City, holding that the City had shown that its employment actions were required by the decrees. Id. at 780-81, 109 S.Ct. at 2194-95. The district court in effect decided that the provision quoted by the plaintiffs applied only if job related selection procedures were in place. In re Birmingham Reverse Discrimination Employment Litig., 833 F.2d at 1497.

Although the district court agreed that "[m]ost but not all of those whites who were not selected for [the challenged promotions] had higher test scores" than the blacks who were selected, the court pointed out that the tests on which these scores were based had never been shown to be valid predictors of future job performance. The court further noted that the City "`does not use a job-related selection procedure in evaluating the qualifications of certified candidates [and] has made no effort to develop ... such a procedure.'" In re Birmingham Reverse Discrimination Employment Litig., 833 F.2d at 1497 (quoting the district court's December 26, 1985, order (emphasis and alteration added)). Accordingly, the district court rejected the plaintiffs' assertion thatdemonstrably better qualified whites had been passed over.
On appeal, this Court reversed. We observed that "the district judge treated the plaintiffs as if they were bound by the consent decrees," rendering the plaintiffs unable to challenge the decrees' validity, and limiting their action to a claim that the City had granted racial preferences beyond those mandated by the City decree. Id. at 1496. This limitation was unfair to the male, nonblack plaintiffs, we reasoned, because they had not participated in the negotiation or signing of the consent decrees. Id. at 1498-99. To give the reversediscrimination plaintiffs their day in court, we ruled that they must be allowed to bring an action challenging the validity of the decrees. Id. at 1499-1500. We therefore directed the district court to re-examine the legality of the decrees under the heightened scrutiny applicable to voluntary government affirmative actions plans. Id. at 1500-01. Finally, we ruled that the United States was estopped from collaterally attacking the decrees by its status as a signatory. Id. at 1501. "[I]f the United States believes that the decrees should be modified based on changed circumstances, its remedy ... is to seek modification in the court which retained jurisdiction over the cases in which the decrees arose." Id.at 1501.
Our decision was upheld by the Supreme Court in Martin v. Wilks, 490 U.S. at 769, 109 S.Ct. at 2188. In affirming our reasoning, the Wilks Court implicitly suggested that plaintiffs in future cases could avoid such collateral challenges by insuring that all interested parties were joined from the outset. See id. at 765-67, 109 S.Ct. at 2187.
The district court subsequently held a new trial on the reverse discrimination plaintiffs' challenge. At the conclusion of that trial, the district court again ruled in favor of the City. Bennett v. Arrington, 806 F.Supp. 926, 931 (N.D.Ala.1992). Applying strict scrutiny, id. at 928, the district court found that the City had "significant evidence" of past discrimination to support its affirmative action program. Id. at 929. The court further found the affirmative action provisions were narrowly tailored because the City had first 1560*1560 tried alternative measures, and because these provisions were both flexible and temporary. Id. at 929-30. That ruling was recently reversed by another panel of this

Court. See In re Birmingham Reverse Discrimination Employment Litig.,20 F.3d 1525 (11th Cir.1994).
D. THIS DECREE MODIFICATION PROCEEDING
After we suggested that the United States could not collaterally challenge the decrees but could seek modifications, see In re Birmingham Reverse Discrimination Employment Litig., 833 F.2d at 1501, the parties began discussing modification as a possible means of resolving their outstanding differences. With that prospect in mind, the plaintiffs from the reverse-discrimination case moved to intervene in this, the original consent-decree, case and to consolidate this case with the reverse-discrimination case. On May 25, 1990, the district court denied the reverse-discrimination plaintiffs' motion to consolidate, but allowed them to intervene in this case "for the limited purpose of participating in any litigation regarding potential modification of the consent decrees." Subsequently, in an effort to gather all interested parties in a single proceeding, the district court certified both a class of "[a]ll present and future black and female employees ... [and] applicants for employment with the City" (the "Bryant class"), and a class, represented by several of the plaintiffs from the parallel reverse-discrimination case, of "[a]ll present and future male, non-black employees ... [and] applicants for employment with the City of Birmingham" (the "Wilks class").
On May 3, 1990, the United States moved to modify the consent decrees. The United States urged the district court:
(1) "to replace the existing long-term goals (which [were] ... based on civilian labor force figures) with the long-term goal of developing lawful selection procedures";
(2) "to replace the current interim goals with interim goals based on applicant flow data" that would terminate upon the implementation of lawful selection procedures;
(3) "to require the Personnel Board to develop nondiscriminatory selection procedures in a timely manner ...";
(4) "to require the City of Birmingham to cooperate with the Board in the Board's efforts to develop nondiscriminatory selection procedures and for the City to demonstrate that any selection procedures it has implemented in addition to those of the Personnel Board, are lawful"; and
(5) "to strengthen the current recruitment mechanisms."

In an accompanying proposed order, the United States requested the court to give the Board three years to develop lawful tests and to require the Board to stop crediting applicants with seniority points to the extent that use of such points violated Title VII. The United States asserted that "[t]hese modifications are appropriate in light of changed circumstances, emerging case law, and the experience of the parties under the decrees over the past nine years, and to move this matter toward a conclusion where continuing court jurisdiction will no longer be required."
The Wilks class soon submitted its own modification proposals, which requested the court:
(1) to vacate all long-term and annual goals;
(2) to enjoin the City and Board from making employment decisions based solely on race or gender; and
(3) to terminate both the decrees and all court supervision of City and Board employment practices within four years.
The City, the Bryant class of blacks and women, and the Board filed responses to these modification motions in July 1990. For its part, the City "acknowledge[d] that limited modification ... [was] appropriate because of changed circumstances," including the City's achievement of some of its long-term goals and the fact that "the selection procedures employed by the Personnel Board continue to have an adverse impact upon blacks and have not been demonstrated to be valid selection procedures." With these developments in mind, the City proposed the following modifications:
1561*1561 (1) "Where long term goals have been met, but selection devices which create an adverse impact on blacks remain ..., replace the current interim annual goals [based on fixed percentages set out in the City decree] with interim annual goals based on representation in the qualified applicant pool."
(2) "Modify long term goals which are demonstrated to be inconsistent with the qualified applicant pool to reflect representation of the qualified pool," rather than representation in the general labor force.
(3) Terminate the Decree, "in whole, or in part by job classification[], upon motion of any party, and a finding by the Court that a lawful selection procedure is in place for appointment to that job classification and the long term goal for such classification(s) has been achieved."

The Bryant class of blacks and women joined in these recommendations and also agreed with the United States that "a reasonable timetable should be established" for the development of lawful selection procedures by the Board.
The Board, too, accepted the need to develop lawful tests, but vehemently opposed the United States' proposed three-year timetable as both unrealistic and unnecessary. The Board rested its contention that a timetable was unnecessary on its assertion that it had already made significant progress toward eliminating adverse impact from its selection procedures. The Board also opposed the United States' call for an end to seniority-point enhancements, noting that the federal guidelines on enforcement of Title VII do not disallow the use of seniority points. Cf. 42 U.S.C.A. § 2000e-2(h) (1981 & Supp.1993) ("[I]t shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system ....").
After holding a hearing on these issues, the district court ordered several modifications to the decrees. The court began by noting that the decrees had:
in conjunction with a city administration whose ... leaders have reflected the majority-black voting population within the city, served to reduce, if not eliminate, discriminatory employment practices against blacks and females and, indeed, to enhance the opportunities of such persons for employment and promotion. Nor can it be denied that, in so doing, the decrees have impaired some employment or promotional opportunities of whites and males ....
In the police and fire departments, the two departments at the core of the original litigation, black employment had more than doubled, from twenty to forty-one percent in the Police Department and from ten to twenty-six percent in the Fire Department. The percentage of blacks and females in many promotional positions had also increased significantly. Overall, forty-five percent of the City's full-time employees were black and twenty-three percent were female as of September 1990. Blacks and women held jobs in approximate proportion to their presence in the general labor force for about half of the City's classified positions.
After reciting these facts, the district court noted that "[a]ll parties agree that some modifications have become appropriate." Guided by its view of the underlying purposes of the decrees, remedying past and preventing future discrimination, the district court ordered the following modifications to the City decree:
(1) The City must stop using annual goals for any particular job classification once the longterm goal for that classification is met.

(2) The City must stop using annual goals for any promotional position once the long-term goal is met for the position from which the promotional candidates are normally chosen, except that the City should continue to promote blacks and women to high-level police and fire positions in proportion to those groups' representation in the position from which promotions are normally made until the long-term goal is reached with respect to the highlevel positions.
1562*1562 (3) The City must stop using annual goals for any particular job classification once the Board develops lawful screening procedures for that job.
(4) The City should group similar jobs together for the purpose of determining whether a particular goal has been met.
(5) The district court will, in 1996, reconsider the appropriateness of continuing the City decree.
The district court made only one modification to the Board decree. This modification requires that, until the Board develops a lawful test for a particular position, it must, at the City's request and subject to the availability of qualified applicants, certify black and female candidates for that position in proportion to their representation among applicants — even after the City has met its long-term goal (and thus has stopped following the annual goal) for that position. The district court viewed this modification as necessary to avoid a situation in which the City would be obligated to "appoint or promote only on the basis of certifications made from [the] discriminatory testing devices employed by the Personnel Board."[7]
The district court acknowledged that long-term goals tied to black and female representation in the general labor force "do[] not provide an accurate estimate of the pool of persons potentially qualified" for particular City jobs. As a result, the court conceded that these goals "would not pass muster under current legal standards as a valid measure of a discrimination-free job force." However, noting that the long-term goals were "largely hortatory," the court said that the consequences of this "potentially inappropriate measure" would be "partly reduced" by other modifications to the City decree. The court therefore declined to rewrite the decrees' "inherently suspect" long-term goals to reflect the proportion of qualified blacks and women in the relevant labor pool. The court also refused to impose deadlines on the Board for the development of lawful selection procedures that would displace the long-term goals. The court agreed that the "use of such testing procedures would be desirable," but reasoned that specific development and review requirements "would be unrealistic, unworkable, and unwise" — "particularly if accompanied by a judicially-imposed timetable." Finally, the district court rejected the United States' request for an order mandating strengthened recruitment of blacks and women because the parties were already "in general agreement" that recruitment efforts should be increased.

After the district court issued its initial modification order, the Wilks class moved for an interim award of attorneys' fees for its efforts in both the parallel, reverse-discrimination case and the modification proceeding. The class argued that the court's modification order meant that the class had, in part, prevailed in both cases. The district court denied the request, but expressly permitted the class to renew its application in the reversediscrimination case.
Both the United States and the Wilks class now appeal. The United States claims that the district court abused its discretion in rejecting any requirement that the City and Board develop lawful, nondiscriminatory selection procedures to replace the existing numerical goals. The Wilks class takes a bolder position, arguing that there is insufficient evidence of past discrimination to give the City and Board a compelling interest in any affirmative action plan. In addition, both the Wilks class and the United States argue that the decrees' appointment goals fail the narrowly tailored test, established by City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), because these goals are tied to general labor force statistics rather than to a more accurate measure of the pool of qualified applicants. Finally, the Wilks class challenges the district court's denial of fees and its refusal to accept certain deposition testimony in evidence. The City, the Board, and the Bryant class contend on appeal that the district court orders were within the district 1563*1563 court's discretion and should be affirmed in their entirety.
II. STANDARDS OF REVIEW
We review for abuse of discretion a district court's modification of, or refusal to modify, a consent decree. System Fed'n No. 91 v. Wright, 364 U.S. 642, 648, 81 S.Ct. 368, 371, 5 L.Ed.2d 349 (1961); Jacksonville Branch, NAACP v. Duval County Sch. Bd., 978 F.2d 1574, 1578 (11th Cir.1992). At the very least, a district court abuses its discretion if it refuses to make modifications required by applicable law.See Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 573-83, 104 S.Ct. 2576, 2585-90, 81 L.Ed.2d 483 (1984); cf. Rufo v. Inmates of Suffolk County Jail,___ U.S. ___, ___, 112 S.Ct. 748, 762, 116 L.Ed.2d 867 (1992) ("A consent decree must of course be modified if, as it later turns out, one or more of the obligations placed upon the parties has become impermissible under federal law."). We also review for abuse of discretion a district court's exclusion of evidence and denial of attorneys' fees. U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986, 993 (11th Cir.1993) (evidentiary rulings); Church of Scientology Flag Serv., Org. v. City of Clearwater, 2 F.3d 1509, 1513 (11th Cir.1993) (attorneys' fees).
III. THE CONSENT DECREE MODIFICATION ISSUES

A. CONSENT DECREE MODIFICATION LAW
The Supreme Court has articulated a two-pronged approach to determining when, and to what extent, an institutional-reform consent decree that "arguably relates to the vindication of a constitutional right" should be modified. Rufo v. Inmates of Suffolk County Jail, ___ U.S. ___, ___ n. 7, 112 S.Ct. 748, 760 n. 7, 116 L.Ed.2d 867 (1992). The first prong requires the party seeking modification to "establish that a significant change in facts or law warrants revision of the decree." Id. at ___, 112 S.Ct. at 765. If the moving party satisfies this requirement, then the second prong requires the court to make modifications that are "suitably tailored" to address the new factual or legal environment. Id. We now elaborate on this dual inquiry.
1. Rufo's First Prong: Prerequisites for Modification
Rufo normally permits modification of a consent decree only to accommodate new factual or legal circumstances. The sorts of factual changes that may qualify include unanticipated developments that render continuation of the decree "inequitable,"Jacksonville Branch, NAACP v. Duval County Sch. Bd., 978 F.2d 1574, 1582 (11th Cir.1992), or that, "for reasons unrelated to past discrimination or to the fault of the parties," make it extremely difficult or impossible to satisfy obligations that, while imposed by the decree, are not part of its fundamental purpose, United States v. City of Miami, 2 F.3d 1497, 1509 (11th Cir.1993). However, a district court should not modify "long-standing goals in consent decrees merely because the goals have not been achieved." Id. at 1509.
Rufo similarly provides for flexibility in the face of changing legal standards, but does not mandate modifications in response to every legal development. For example, a court need not necessarily "rewrite a consent decree so that it conforms to the constitutional floor" just because that floor drops after entry of the decree. Rufo, ___ U.S. at ___, 112 S.Ct. at 764. On the other hand, a rising constitutional floor — or, as in this case, a falling constitutional ceiling — may make modifications necessary. Above all, "[a] consent decree must ... be modified if ... one or more of the obligations placed upon the parties has become impermissible under federal law," id. at ___, 112 S.Ct. at 762, and that is the aspect of Rufo with which we grapple in the present case.
2. Rufo's Second Prong: Suitably Tailored Modifications
Once a court has determined that some modification is warranted because of a significant change in law or fact, the second prong of the Rufo analysis comes into play. This prong

requires the court to determine the appropriate scope of the changes, accepting 1564*1564 only proposals that are "suitably tailored" to address significant factual developments or conflicts between new legal standards and the requirements of the decree. Rufo, ___ U.S. at ___, 112 S.Ct. at 765. This determination requires a flexible "exercise of that court's equitable power," City of Miami, 2 F.3d at 1509, but the district court's discretion is not unlimited. The court may not modify a decree in a way that would "violate the basic purpose of the decree," and must under no circumstances "create or perpetuate a constitutional violation." Rufo, ___ U.S. at ___ - ___, 112 S.Ct. at 762-63.
We now turn to the question of whether the district court properly exercised its equitable discretion when it rejected some of the appellants' proposed modifications. This inquiry will require us to decide whether the court modified the consent decrees' race- and genderbased remedies sufficiently to make them permissible under current constitutional standards. Because racial and gender classifications attract different levels of scrutiny under the Equal Protection Clause, we analyze separately the decrees' race- and genderconscious provisions.
B. MODIFICATION OF THE RACE-CONSCIOUS AFFIRMATIVE ACTION PROVISIONS IN THIS CASE
1. Rufo's First Prong: Prerequisites for Modification
The district court approved the City and Board decrees in 1981, thirteen years ago. The Supreme Court had, at that time, just begun to address the constitutionality of affirmative action. See Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978); Califano v. Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977). Since then, the Court has repeatedly revisited this issue, substantially changing affirmative action jurisprudence. Most significantly, City of Richmond v. J.A. Croson Co., 488 U.S. 469, 498508, 109 S.Ct. 706, 724-30, 102 L.Ed.2d 854 (1989),established that voluntary, raceconscious, local-government affirmative action programs are subject to strict scrutiny. Prior to Croson, "a majority of the Supreme Court had never joined in one opinion on the constitutionality" of such programs.Peightal v. Metropolitan Dade County, 940 F.2d 1394, 1398-99 (11th Cir. 1991)(footnote omitted), cert. denied, ___ U.S. ___, 112 S.Ct. 969, 117 L.Ed.2d 134 (1992). Croson sufficiently altered the legal landscape to warrant modifications to the present decrees under Rufo. As we discuss later in this opinion, Croson has rendered parts of the decrees unconstitutional.

2. Rufo's Second Prong: Suitably Tailored Modifications
Rufo's second prong requires that consent decrees be modified to avoid any violations of governing constitutional standards. The relevant constitutional standard in this case is Croson's strict scrutiny test. While it is true that Croson applies only to voluntary affirmative action programs, see Croson, 488 U.S. at 491-93, 109 S.Ct. at 720-21, we have previously held that, because of their peculiar procedural history, the present decrees should be treated as "a voluntary affirmative action plan for purposes of equal protection analysis." In re Birmingham Reverse Discrimination Employment Litig., 833 F.2d 1492, 1501 n. 23 (11th Cir.1987), aff'd sub nom., Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989).
Under strict scrutiny, an affirmative action plan must be based upon a "compelling governmental interest" and must be "narrowly tailored" to achieve that interest. S.J. Groves & Sons Co. v. Fulton County, 920 F.2d 752, 767 (11th Cir.), cert. denied, 500 U.S. 959, 111 S.Ct. 2274, 114 L.Ed.2d 725, and cert. denied, 501 U.S. 1252, 111 S.Ct. 2893, 115 L.Ed.2d 1057 (1991); see also Croson, 488 U.S. at 498-508, 109 S.Ct. at 724-30. We address separately those two requirements as they apply to this decree.
a. Croson's Compelling Government Interest Requirement
Strict scrutiny's compelling government interest requirement was designed "to `smoke out' illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect 1565*1565 tool." Croson, 488 U.S. at 493, 109 S.Ct. at 721 (plurality opinion of O'Connor, J.). In practice, the interest that is alleged in support of racial preferences is almost always the same — remedying past or present discrimination. United States v. City of San Francisco,696 F.Supp. 1287, 1301 (N.D.Cal. 1988), aff'd in part and modified in part on other grounds sub nom. Davis v. City of San Francisco, 890 F.2d 1438 (9th Cir.1989),cert. denied, 498 U.S. 897, 111 S.Ct. 248, 112 L.Ed.2d 206 (1990). That interest is widely accepted as compelling. See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 286, 106 S.Ct. 1842, 1853, 90 L.Ed.2d 260 (1986) (O'Connor, J., concurring);Cone Corp. v. Hillsborough County, 908 F.2d 908, 916 (11th Cir.), cert. denied, 498 U.S. 983, 111 S.Ct. 516, 112 L.Ed.2d 528 (1990); Howard v. McLucas, 871 F.2d 1000, 1006-08 (11th Cir.), cert. denied, 493 U.S. 1002, 110 S.Ct. 560, 107 L.Ed.2d 555 (1989). As a result, the true test of an affirmative action program is usually not the nature of the government's interest, but rather "the adequacy of the evidence of

discrimination" offered to show that interest. City of San Francisco, 696 F.Supp. at 1301. Without an adequate showing of discrimination, the government's assertion that affirmative action is necessary lacks credibility. See Croson, 488 U.S. at 505, 109 S.Ct. at 728.
Therefore, when a consent decree providing race-conscious relief is challenged as unconstitutional, the district court must make a factual determination that the public employer has "`a strong basis in evidence for its conclusion that'" racial discrimination necessitates affirmative action. Howard, 871 F.2d at 1007 (quotingWygant, 476 U.S. at 277, 106 S.Ct. at 1849). Certain aspects of this inquiry are well established. A local-government employer cannot rest on an "amorphous claim" of societal discrimination, Croson, 488 U.S. at 499, 109 S.Ct. at 724, on "simple legislative assurances of good intention," id. at 500, 109 S.Ct. at 725, or on congressional findings of discrimination in the national economy, id. at 504, 109 S.Ct. at 727. Public employers may, however, justify affirmative action by demonstrating "gross statistical disparities" between the proportion of minorities hired by the public employer and the proportion of minorities willing and able to do the work. Id. at 501, 109 S.Ct. at 725 (internal quotation marks omitted); see also Cone Corp., 908 F.2d at 916 (finding a prima facie case of discrimination sufficient to justify raceconscious relief where minorities owned 12% of the contracting businesses but received only 1.2% of the local government's contracting dollars); Howard, 871 F.2d at 1007(upholding a finding of discrimination based on statistical evidence, including the fact that black employees spent an average of three times longer than white employees in lowgrade wage jobs). Anecdotal evidence may also be used to document discrimination, especially if buttressed by relevant statistical evidence. Cone Corp.,908 F.2d at 916.
Although Croson requires that a public employer show strong evidence of discrimination when defending an affirmative action plan, the Supreme Court has never required that, before implementing affirmative action, the employer must have already proved that it has discriminated. On the contrary, formal findings of discrimination need neither precede nor accompany the adoption of affirmative action. Wygant, 476 U.S. at 286, 106 S.Ct. at 1853 (O'Connor, J., concurring)(rejecting any formal findings requirement); id. at 305, 106 S.Ct. at 1863 (Marshall, J., dissenting, joined by Brennan and Blackmun, JJ.) (stating that "[t]he Court is correct to recognize, as it does at least implicitly today, that formal findings of past discrimination are not a necessary predicate to the adoption of affirmative-action policies"); id. at 313, 106 S.Ct. at 1867 (Stevens, J., dissenting) (arguing that a showing of past discrimination is not necessary to finding a compelling interest in racial classifications with purely prospective effect); Howard, 871 F.2d at 1007(specifically rejecting the intervenor white employees' argument "that a showing of past discrimination must precede the implementation of the promotional relief and that this showing may be made only through the employer's own admittance of such discrimination or through a judicial finding of

past discrimination"); cf. Contractors Ass'n v. City of Philadelphia, 6 F.3d 990, 1004 (3d Cir.1993) (noting that federal courts have 1566*1566 admitted evidence that supports affirmative action, even when that evidence was developed after the affirmative action plan); Harrison & Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50, 60 (2d Cir.1992) ("The law is plain that the constitutional sufficiency of a state's proffered reasons necessitating an affirmative action plan should be assessed on whatever evidence is presented, whether prior to or subsequent to the program's enactment."). This is because, as Justice O'Connor has explained
A violation of federal statutory or constitutional requirements does not arise with the making of a finding; it arises when the wrong is committed. Contemporaneous findings serve solely as a means by which it can be made absolutely certain that the governmental actor truly is attempting to remedy its own unlawful conduct when it adopts an affirmative action plan .... Such findings, when voluntarily made by a public employer, obviously are desirable in that they provide evidentiary safeguards .... If contemporaneous findings were required of public employers in every case as a precondition to the constitutional validity of their affirmative action efforts, however, the relative value of these evidentiary advantages would diminish, for they could be secured only by the sacrifice of other vitally important values.
The imposition of a requirement that public employers make findings that they have engaged in illegal discrimination before they engage in affirmative action programs would severely undermine public employers' incentive to meet voluntarily their civil rights obligations....
... [P]ublic employers are trapped between the competing hazards of liability to minorities if affirmative action is not taken to remedy apparent employment discrimination and liability to nonminorities if affirmative action is taken. Where these employers, who are presumably fully aware both of their duty under federal law to respect the rights of all their employees and of their potential liability for failing to do so, act on the basis of information which gives them a sufficient basis for concluding that remedial action is necessary, a contemporaneous findings requirement should not be necessary.
Wygant, 476 U.S. at 289-91, 106 S.Ct. at 1855-56 (O'Connor, J., concurring). For these and related reasons, the Supreme Court has required a public employer defending an affirmative action plan to show only that it has "a `strong basis in evidence for its conclusion that remedial action was necessary.'" Croson, 488 U.S. at 500, 109 S.Ct. at 725 (quoting Wygant, 476 U.S. at 277, 106 S.Ct. at 1849 (plurality opinion)).
At the time the City and the Board accepted the present consent decrees, they already had a "strong basis in evidence" for concluding that race-based relief was needed to correct

discrimination in the police and fire departments. When it approved the consent decrees, the district court noted that the City and the Board had good reason to believe that they had discriminated in those two departments. United States v. Jefferson County, 28 Fair Empl.Prac.Cas. (BNA) 1834, 1838, 1981 WL 27018 (N.D.Ala.1981), aff'd, 720 F.2d 1511 (11th Cir.1983). The district court evaluated an extensive record that supported this conclusion. Most importantly, the district court stated:
This court at the first trial found — and the Fifth Circuit agreed — that blacks applying for jobs as police officers and firefighters were discriminated against by the tests used by the Personnel Board to screen and rank applicants. The evidence presented at the second trial established, at the .01 level of statistical significance, that blacks were adversely affected by the exam used by the Personnel Board to screen and rank applicants for the position of police sergeant. Since governmental employers such as the City of Birmingham have been limited by state law to selecting candidates from among those certified by the Board, one would hardly be surprised to find that the process as a whole has had an adverse effect upon blacks seeking employment as Birmingham police officers, police sergeants, or firefighters — regardless of whether or not there was any actual bias on the part of selecting officials of the City. A natural consequence of discrimination against blacks at entry-level positions in 1567*1567 the police and fire departments would be to limit their opportunities for promotion to higher levels in the departments.
Id. at 1837-38. The district court concluded that:
While the only judicial finding of discrimination thus far entered has been with respect to the effect upon black applicants of the Personnel Board's tests for police officer and firefighter, it can hardly be doubted that there is more than ample reason for the Personnel Board and the City of Birmingham to be concerned that they would be in time held liable for discrimination against blacks at higher level positions in the police and fire departments and for discrimination against women at all levels in those departments. The proposed consent decrees, by way of settlement for such potential liability, provide appropriate corrective measures reasonably commensurate with the nature and extent of the indicated discrimination.
Id. at 1838 (emphasis added). As the district court's analysis demonstrates, the City and the Board had strong reason to believe that employment discrimination in the police and fire departments justified race-based relief. The Board's discrimination against blacks seeking entry-level police and firefighter jobs made it almost inevitable that the effects of discrimination had worked their way up to taint City and Board promotional positions, too. This fact gave the City and the Board an adequate basis for implementing affirmative action

in those two departments, which are at the core of this litigation. Further findings with respect to those departments are unnecessary.
However, the parties apparently have not yet fully litigated, nor has the district court decided, whether there is sufficient evidence of past or present discrimination to justify continued use of race-conscious remedies in the other departments covered by these decrees.[8] In their briefs, some of the parties attempt to demonstrate either the existence of, or lack of, discrimination in city and county employment. The district court declined to consider these issues as part of the modification proceeding. Instead, the court ruled that a showing of discrimination was relevant only to the original validity of the decrees, and that the decrees' original validity could not be challenged in this modification proceeding. The district court apparently considered a showing of discrimination irrelevant to the present proceeding.
That ruling was an abuse of the district court's discretion. As we have already discussed, Rufo requires that these decrees comply with Croson, and Crosonrequires that the City and the Board show a basis for concluding that public employment discrimination against blacks necessitates affirmative action. Croson,488 U.S. at 500, 109 S.Ct. at 725. A showing of discrimination is relevant to the decree's present validity, which is very much at issue here. We must therefore remand the case to the district court for findings on whether the public employers here have a strong basis in evidence for their conclusion that past or present discrimination in departments other than the police and fire departments warrants race-based relief.[9]
The City and Board may defend their programs by showing enough evidence 1568*1568 of discrimination to create a strong basis for the conclusion that past or present discrimination warrants race-based remedies in departments in addition to the police and fire departments. It is not necessary (but would of course be sufficient) for the City and Board to show that, when they approved the decrees, they already had strong evidence of such discrimination. This case concerns only the prospective validity of the decrees, and prospective validity can be established just as well with new evidence as with old. If the City and Board can now show strong evidence of the need for affirmative action in a department, then future affirmative action in that department is justified. Cf. Contractors Ass'n v. City of Philadelphia, 6 F.3d 990, 1004 (3d Cir.1993) (holding that consideration of evidence developed after adoption of an affirmative action plan is "especially appropriate" where the relief sought is "prospective only"); Concrete Works, Inc. v. City of Denver, 823 F.Supp. 821, 837 (D.Colo.1993) ("[I]t would make little sense to strike down the [affirmative action plan]solely because the evidence of discrimination before the City Council was insufficient without the post-enactment evidence only to watch the City Council reconvene immediately,

incorporate the new evidence into a new ordinance, and arrive at a constitutionally adequate factual predicate.").
On remand, the district court should give the City and the Board a chance to make the requisite showing. Without intending to foreclose the issue, we note that in the parallel but narrower reverse-discrimination proceeding, the district court upheld race-based relief in the engineering department, although it never discussed the evidence on which it based its decision as to that department. Bennett v. Arrington,806 F.Supp. 926, 929 (N.D.Ala.1992).[10] As recently as 1985, when discussing an engineering department promotion, the district court made the following observation about continuing racial prejudice:
[T]he chief engineer in his deposition testimony indicated candidly that he considered the race of Mr. Thomas, [the] person ultimately chosen, being black, as a negative feature. And that he would have so considered that as a negative feature, but for the fact that the consent decree required him to look otherwise at the candidate.
These indications suggest that the compelling interest prong will likely be satisfied as to at least some of the departments besides the police and fire departments. If, however, the City and Board fail to present strong evidence justifying race-based relief in a department, the district court must forthwith terminate the race-based affirmative action provisions as to that department.
Because we have held that Croson's first requirement is satisfied with respect to the police and fire departments, and may on remand be satisfied with respect to the other departments, we proceed to discuss Croson's second requirement. The next section assumes, without deciding, that race-based affirmative action in the other departments is allowable because there has been an adequate showing of evidence of racial discrimination by the City and the Board.
b. Croson's "Narrow Tailoring" Requirement
Croson's second requirement is that the affirmative action provided be narrowly tailored to the discrimination to be remedied. This requirement, like the "compelling interest" requirement, applies to the present case through the interaction of Rufo andCroson. Rufo commands district courts to modify consent decrees to avoid "perpetuat[ing] a constitutional violation." Rufo v. Inmates of Suffolk County Jail, ___ U.S. ___, ___, 112 S.Ct. 748, 763, 116 L.Ed.2d 867 (1992). For its part, Crosonestablishes the controlling constitutional standard that cannot be violated. Taken together, these decisions mandate

that the present decrees' affirmative action 1569*1569provisions be "narrowly tailored" to serve the compelling government interest of ending racial discrimination. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 507, 109 S.Ct. 706, 728 (1989). The district court failed to make the modifications necessary to tailor the decrees narrowly to that interest.
A local government wishing to use racial preferences must strike a difficult balance between an admirable ambition to overcome this nation's "sorry history of ... private and public discrimination," Croson, 488 U.S. at 499, 109 S.Ct. at 724, and the sometimes contrary goal of making race irrelevant to public decisionmaking. "These related constitutional duties are not always harmonious; reconciling them requires public employers to act with extraordinary care." Wygant v. Jackson Bd. of Educ.,476 U.S. 267, 277, 106 S.Ct. 1842, 1848, 90 L.Ed.2d 260 (1986) (plurality opinion).
Carefully tailored affirmative action programs can be a legitimate means of reconciling these aims, and "`innocent persons may be called upon to bear some of the burden of the remedy'" for past discrimination. Metro Broadcasting, Inc. v. Federal Communications Comm'n, 497 U.S. 547, 596, 110 S.Ct. 2997, 3025-26, 111 L.Ed.2d 445 (1990) (quoting Wygant, 476 U.S. at 281, 106 S.Ct. at 1850 (opinion of Powell, J.)); accord Peightal v. Metropolitan Dade County, 940 F.2d 1394, 1410 (11th Cir.1991) (opinion of Brown, J.), cert. denied, ___ U.S. ___, 112 S.Ct. 969, 117 L.Ed.2d 134 (1992). Croson itself noted that local governments may in some circumstances use affirmative action to eradicate the effects of public discrimination.Croson, 488 U.S. at 49193, 109 S.Ct. at 720-21; accord Cone Corp. v. Hillsborough County, 908 F.2d 908, 916-17 (11th Cir.), cert. denied, 498 U.S. 983, 111 S.Ct. 516, 112 L.Ed.2d 528 (1990). To ensure that affirmative action programs do not go too far, however, they must be scrutinized strictly. In making this evaluation, we consider: (1) "the `necessity for the relief and the efficacy of alternative remedies'"; (2) "the `flexibility and duration of the relief, including the availability of waiver provisions'"; (3) "the `relationship of numerical goals to the relevant labor market'"; and (4) "the `impact of the relief on the rights of [innocent third parties].'" Howard v. McLucas, 871 F.2d 1000, 1008 (11th Cir.) (quoting United States v. Paradise, 480 U.S. 149, 171, 107 S.Ct. 1053, 1066, 94 L.Ed.2d 203 (1987) (plurality opinion)), cert. denied, 493 U.S. 1002, 110 S.Ct. 560, 107 L.Ed.2d 555 (1989). Special vigilance is required against unyielding racial quotas that "rest[] upon the completely unrealistic assumption that minorities will choose a particular trade in lockstep proportion to their representation in the local population." Croson, 488 U.S. at 507, 109 S.Ct. at 729(internal quote marks omitted).
Since Croson, this Court has twice rejected an equal protection challenge to governmentsponsored racial preferences. In Howard v. McLucas, 871 F.2d at 1006,we applied strict scrutiny to a consent decree provision that reserved a certain number of promotions for

blacks. The number of promotions reserved matched the number of promotions that had been lost by blacks due to past discrimination. Id. at 1003. The "set aside" was thus narrowly tailored to correct the precisely identified effects of past discrimination.
In Cone Corp., we upheld a minority business enterprise plan that had been carefully crafted to minimize the burden on innocent third parties. 908 F.2d at 910. Under this program, persons who bid for certain county contracts had to make a good-faith effort to subcontract a stated percentage of the job to minority businesses. Id. at 911. Although the program included a goal of twenty-five percent minority participation, the county would grant a waiver if qualified minority businesses were uninterested, unavailable, or significantly more expensive than non-minority businesses. Id. at 910-11. In the first year of the program's operation, the county had, after investigation, granted good-faith waivers to each of the bidders who had failed to reach the twenty-five percent target for minority participation. Id. at 911. Despite the plan's flexibility, the district court entered summary judgment against the county. This Court reversed, holding that the plan was sufficiently likely to pass constitutional muster to warrant a trial. Id. at 917.
The affirmative action provisions at issue in the present case lack both the extreme1570*1570 specificity of the Howard plan and the generous flexibility of the Cone Corp.plan. They are not narrowly tailored. Thus, the district court must re-write the decrees to make them narrowly tailored to the compelling interest they are intended to serve.
The decrees contain two sets of affirmative action provisions: "long-term goals" and "annual goals." The long-term goals are intended to reflect the basic purpose of the decree; they are the final destination. As the long-term goals are reached, affirmative action ends. By contrast, the annual appointment goals are the means of getting to the long-term goals; they guide year-to-year personnel decisions. We will discuss the flaws in the long-term goals first, and then turn to the short-term goals.
i. Long-Term Goals
As written, the long-term racial goals are fundamentally flawed. The flaw is that they are designed to create parity between the racial composition of the labor pool and the race of the employees in each job position. The Constitution does not guarantee racial parity in public employment; instead, it forbids racial discrimination. A public employment consent decree's raceconscious provisions are valid only to the extent that they promote the compelling government interest, anchored in the Constitution, of ending discrimination. We stressed in United States v. City of Miami, 2 F.3d 1497, 1506 (11th Cir.1993), that the intent of consent decrees like those in this case cannot be to maintain employment quotas.

Instead, the proper goals of such a decree are to end discrimination and eliminate the effects of past discrimination. Id.; see alsoBrunet v. City of Columbus, 1 F.3d 390, 412 (6th Cir. 1993) ("`Title VII does not require employers to equalize the probabilities of hiring of the average members of two groups. Rather, it requires that actual individuals enjoy opportunities for employment free from discriminatory barriers.'" (quoting Brunet v. City of Columbus,642 F.Supp. 1214, 1228 (S.D.Ohio 1986)).
By striving for racial parity rather than an end to racial discrimination, these decrees actually promote racial discrimination in contravention of the Constitution. Some might argue that an end to discrimination requires parity between the racial composition of the labor pool and the racial composition in each job position. The Supreme Court, however, has rejected that contention, because it "rests upon the completely unrealistic assumption that minorities will choose a particular profession in lockstep proportion to their representation in the local workforce." Croson, 488 U.S. at 507, 109 S.Ct. at 729 (internal quotation marks omitted).
Conceding that the decrees' long-term racial parity goals violate Croson, the district court stated: "There can be little doubt that the civilian labor force data would not pass muster under current legal standards as a valid measure of a discrimination-free job force for all city jobs ...." Nevertheless, the district court believed that this admittedly "inappropriate measure" did not need to be altered because other modifications to the decrees would "partly reduce[]" any "adverse consequences" arising from use of labor force data, and because the long-term goals "have proved in practice to be largely hortatory." Courts should not be satisfied with partly reducing the effects of unconstitutional aspects of their decrees. Instead, they must modify decrees to prevent them from operating unconstitutionally in whole or in part.
Moreover, the long-term goals play a significant role in the operation of this decree. These goals may not determine the annual level of appointments, but they serve more than a hortative function. As the district court explained, "[t]heir primary effect has been to set a[n] expiration date for the annual goals." This role is significant because the Constitution demands that race-conscious affirmative action programs end as soon as their purposes are accomplished. Until the long-term goals are met, these goals maintain race-conscious selection procedures. Thus, it is important to ensure that the long-term goals "pass muster under current legal standards as a valid measure of a discrimination-free job force."
On remand, the district court must rewrite the decrees to reflect that their true long-term purpose is to remedy past and 1571*1571 present discrimination, not to achieve workforce parity. The goal of eliminating discrimination may justify some interim use of affirmative action, but affirmative action selection provisions are themselves a form of discrimination

that cannot continue forever. An end to racial discrimination demands the development of valid, non-discriminatory selection procedures to replace race-conscious selection procedures. We hesitate to label this essential object "long-term," because it should be pursued with a sense of urgency.
While "strict scrutiny does not require exhaustion of every possible ... alternative," it does require "serious, good faith consideration of race-neutral alternatives," either prior to or in conjunction with implementation of an affirmative action plan. Coral Constr. Co. v. King County, 941 F.2d 910, 923 (9th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 875, 116 L.Ed.2d 780 (1992); see also Cone Corp. v. Hillsborough County, 908 F.2d 908, 917 (11th Cir.) (upholding a minority setaside program that implemented race-neutral alternatives in conjunction with, rather than prior to, racial preferences), cert. denied, 498 U.S. 983, 111 S.Ct. 516, 112 L.Ed.2d 528 (1990). "[R]ace-neutral means are to be favored." Peightal v. Metropolitan Dade County, 26 F.3d 1545, 1557 (11th Cir.1994). Unfortunately, race-neutral alternatives have not been pursued diligently enough in this case.
True, the City and the Board have engaged in several race-neutral efforts to cure past and present discrimination. In the 1960s, the Board actively encouraged blacks to apply for jobs, and either waived or eliminated certain application fees. The consent decrees themselves required strengthened recruitment of blacks and women, eliminated certain time-in-grade and size requirements that may have hindered the promotion of blacks or women, and mandated education of supervisors in their responsibility to prevent discrimination against blacks and women. No party has alleged on appeal that these obligations have not been met.
However, the single most important race-neutral alternative contained in the decrees was the requirement that the Board develop and put in place non-discriminatory selection procedures — a requirement that the Board has not satisfied. The Board was quite properly ordered to implement selection procedures that either had no disparate impact on blacks and women or that, despite having disparate impact, were "job related" as that term is used in Title VII. Moreover, if the Board chose the second approach, adopting procedures that were job-related despite having some disparate impact, then the Board was required to search for selection procedures that were equally job-related but with less adverse impact. These decree provisions roughly parallel the requirements of Title VII, which mandates that an employer use either a selection procedure with no adverse impact or a job-related selection procedure that has no more adverse impact than other, equally job-related selection procedures. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975). Although the decree ordered the Board to comply with

Title VII by developing valid tests, it provided no deadlines or formal review mechanism to ensure that the Board actually did so. That omission turned out to be a serious flaw.
The development of valid selection procedures, in conjunction with the other race-neutral measures, would in time have ended race-conscious hiring. By minimizing and ultimately ending the need for racial preferences, implementation of race-neutral selection procedures would have gone far toward making sure that these decrees satisfied constitutional requirements. But little or no progress in this direction has been made. In 1991, the Board administered thirty-five different tests, none of which had been validated. Thirteen years after the consent decrees took effect, the Board is still unable or unwilling to demonstrate the legality of a single exam.[11] For its part, the City has never 1572*1572 tried to validate the selection procedures it uses to choose from among qualified candidates; nor does the City decree presently require that it do so. Thirteen years of experience teach that the decrees as written are simply too weak to make the City and the Board develop nondiscriminatory selection procedures. The district court should remedy this defect. The provisions requiring valid selection procedures must be given teeth and extended to cover the City, too.
Under its present decree, the Board may indefinitely administer racially discriminatory tests and then attempt to cure the resulting injury to blacks with race-conscious affirmative action. Federal courts should not tolerate such institutionalized discrimination. See Billish v. City of Chicago, 989 F.2d 890, 894 (7th Cir.1993) (en banc) ("[A] public employer cannot be allowed to justify reverse discrimination by the bootstrap method of an alternating sequence of racial promotions (or hires). That is, the city cannot get points for first using a presumptively biased eligibility list to make a string of white promotions and then turning around and trying to do some rough racial justice by promoting two blacks from the bottom of the list."). Use of racial hiring quotas to mask the effects of discriminatory selection procedures places grievous burdens on blacks as well as whites. Whatever they measure, tests that are not job-related do not predict future job performance, yet they may nevertheless convince some persons that those who score lower are less qualified. As Justice Brennan once explained, "even in the pursuit of remedial objectives, an explicit policy of assignment by race may serve to stimulate our society's latent race consciousness, suggesting the utility and propriety of basing decisions on a factor that ideally bears no relationship to an individual's worth or needs." United Jewish Orgs. v. Carey, 430 U.S. 144, 173, 97 S.Ct. 996, 1014, 51 L.Ed.2d 229 (1977) (Brennan, J., concurring in part). Blacks who do not make top marks on the flawed exams, but who nevertheless are appointed through affirmative action, may discover that their colleagues mistakenly consider them less able. Croson, 488 U.S. at 493, 109 S.Ct. at 722 (plurality opinion) ("Classifications based on race carry a danger of stigmatic harm. Unless they are

strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility."); Hayes v. North State Law Enforcement Ass'n, 10 F.3d 207, 212 (4th Cir.1993) ("`While the inequities and indignities visited by past discrimination are undeniable, the use of race as a reparational device risks perpetuating the very race-consciousness such a remedy purports to overcome.'" (quoting Maryland Troopers Ass'n v. Evans, 993 F.2d 1072, 1076 (4th Cir.1993))). For these reasons, it is not surprising that the class of black employees argued in the district court that a reasonable timetable for adoption of valid tests should be imposed. The failure of the consent decrees to force the City and the Board to develop race-neutral selection procedures that are fair to blacks and whites has caused both to suffer the effects of discrimination.
By permitting the continued use of discriminatory tests, the decrees compound the very evil they were designed to eliminate. The Constitution will not allow such a discriminatory construct. One color of discrimination has been painted over another in an effort to mask the peeling remnants of prejudice past, leaving a new and equally offensive 1573*1573 discoloration rather than a clean canvas. The time has long passed for the Board and the City to strip away the past and adopt fresh, race-neutral selection procedures. And court-approved racial preferences must end as soon as possible.
The district court declined to set deadlines for the development of valid selection procedures. The court agreed that "use of such testing procedures would be desirable," but nevertheless summarily decided "that specific requirements for development and review [of lawful tests], particularly if accompanied by a judicially-imposed timetable, would be unrealistic, unworkable, and unwise." That decision was an abuse of discretion.
While it may be difficult to develop valid selection procedures, that task is far from impossible. Other public employment cases prove that it can be done. See, e.g.,Hamer v. City of Atlanta, 872 F.2d 1521, 1532 (11th Cir.1989) (upholding the district court's finding that a written test used to determine promotions from firefighter to fire lieutenant was properly validated); Brunet v. City of Columbus, 1 F.3d 390, 411 (6th Cir.1993) (upholding use of professionally-developed firefighter exam); Bridgeport Guardians, Inc. v. City of Bridgeport, 933 F.2d 1140, 1148 (2d Cir.) (affirming the use of a job-related exam in conjunction with "banding," a technique designed to reduce the test's disparate impact), cert. denied, ___ U.S. ___, 112 S.Ct. 337, 116 L.Ed.2d 277 (1991); Police Officers for Equal Rights v. City of Columbus, 916 F.2d 1092, 1101-02 (6th Cir. 1990) (affirming a district court's finding that the challenged portion of a police lieutenant exam was jobrelated); Bernard v. Gulf Oil Corp., 890 F.2d 735, 746 (5th Cir.1989) (affirming the district court's determination "that the tests Gulf used to determine which employees were eligible for promotion were job related, based upon the validation studies and expert

testimony"), cert. denied, 497 U.S. 1003, 110 S.Ct. 3237, 111 L.Ed.2d 748 (1990); Berkman v. City of New York, 812 F.2d 52, 59-60 (2d Cir.) (approving the district court's conclusion that physical examinations used by the city to select entry-level firefighters were valid), cert. denied, 484 U.S. 848, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987); Clady v. County of Los Angeles, 770 F.2d 1421, 1430-32 (9th Cir.1985) (affirming the district court's conclusion that a written examination used by the county to hire firefighters was valid), cert. denied, 475 U.S. 1109, 106 S.Ct. 1516, 89 L.Ed.2d 915 (1986); Rivera v. City of Wichita Falls, 665 F.2d 531, 538 (5th Cir. Unit A 1982) (affirming a district court finding that a police officer exam was job-related); Contreras v. City of Los Angeles, 656 F.2d 1267, 1281, 1284 (9th Cir.1981) (concluding that an auditor exam was job-related), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 140 (1982);United States v. Las Vegas Metropolitan Police Dep't, D.Nev. (No. CV-S-84-809-RDF (LRL), June 11, 1991) (report and recommendation of magistrate judge) (finding a professionally-developed police officer exam to be lawful); cf. Guardians Ass'n v. Civil Serv. Comm'n, 630 F.2d 79, 103 (2d Cir.1980) (holding that an employer "faces a substantial task in demonstrating" the job-relatedness of a test, "[b]ut the task is by no means impossible"), cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981); Craig v. County of Los Angeles, 626 F.2d 659, 664-66 (9th Cir.1980)(upholding the district court's determination that success on a written exam was predictive of success at the police academy, but remanding for a determination of whether success at the academy correlated to job performance), cert. denied, 450 U.S. 919, 101 S.Ct. 1364, 67 L.Ed.2d 345 (1981); United States v. City of San Francisco, 696 F.Supp. 1287, 1297 (N.D.Cal.1988) (approving a consent decree that set out a schedule of testdevelopment deadlines), aff'd in part and modified in part on other grounds sub nom. Davis v. City of San Francisco, 890 F.2d 1438 (9th Cir.1989), cert. denied, 498 U.S. 897, 111 S.Ct. 248, 112 L.Ed.2d 206 (1990).
Moreover, the conclusion that job selection procedures cannot be brought into compliance with Title VII necessarily implies that Congress set up a legal requirement that is impossible to meet. We are loath to impute such a gross error to our nation's elected representatives. Had Congress shared the district court's belief that validation of selection procedures was "unrealistic, unworkable, and unwise," then Congress "would not have made a specific exception to Title VII for the 1574*1574proper use of professionally designed tests." Guardians Ass'n v. Civil Serv. Comm'n, 630 F.2d 79, 89 (2d Cir.1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981). Valid tests may prove administratively burdensome to design and validate, but minimizing inconvenience is not a constitutional value. It certainly does not outweigh the importance of ending racial discrimination. See, e.g., Hayes v. North State Law Enforcement Ass'n, 10 F.3d 207, 216 (4th Cir.1993). As Judge Frank M. Johnson, Jr., has explained, "[t]he Constitution does not put a price on constitutional rights, in terms either of time or money. The rights guaranteed

by the Constitution are to be made effective in the present." Jack Bass, Taming the Storm398 (1993) (quoting written statement made by Judge Johnson during confirmation proceedings regarding his appointment to the Court of Appeals). If the process of approving selection procedures places undue strain on the district court's resources, it may appoint a special master to assist with the task.
Our conclusion that the development of valid job-selection procedures is feasible is buttressed by the fact that, even while complaining about the burdens of test-development, the Board claims that approximately two-thirds of the thirty-five exams it administered in 1991 had no disparate impact on the passing rate of blacks. The Board does not purport to claim that its tests are sufficiently "job-related" to satisfy Title VII. But its alleged success at developing tests with no disparate impact puts us at a loss to understand the Board's refusal to subject even a single exam to judicial scrutiny and its vigorous opposition to any deadline for doing so. The Board's self-professed capacity for designing non-discriminatory tests belies its contention that test-development is too tricky for deadlines.[12]
As Judge Clark recently noted for this Court, "our experience teaches us that on some occasions public employers prefer the supervision of a federal court to confronting directly [their] employees and the public." United States v. City of Miami,2 F.3d 1497, 1507 (11th Cir.1993). The Constitution was not designed to ease the lot of public officials, and it is not the role of federal courts to insulate public officials from the people. Instead, woven throughout the Constitution is a commitment to democratic self-rule, making public officials answerable to the people. While one of the most important duties of federal courts is to protect the constitutional and statutory rights of minorities, interference in the processes of another branch of government should be as narrow and short-lived as fulfilling that constitutional duty allows. Remedial decrees should require the responsible officials to end their unconstitutional action posthaste. Remedial decrees 1575*1575 should not foster prolonged oversight and management by the least representative branch. Federal court supervision of local government has always been "intended as a temporary measure" and should "`not extend beyond the time required to remedy the effects of past intentional discrimination.'" Board of Educ. v. Dowell, 498 U.S. 237, 248, 111 S.Ct. 630, 637, 112 L.Ed.2d 715 (1991) (school desegregation case) (quotingSpangler v. Pasadena City Bd. of Educ., 611 F.2d 1239, 1245 n. 5 (9th Cir.1979) (Kennedy, J., concurring)).
Valid selection procedures are both possible in practice and constitutionally necessary. Therefore, on remand, the district court should set prompt deadlines for the City and the Board to develop and implement valid job-selection procedures.[13]
ii. Annual Goals

We now turn to a discussion of the decree's annual goals, which guide the year-to-year actions of the City and Board. Such annual hiring goals may serve the ultimate purpose of eliminating discrimination in two different ways. First, affirmative action may be needed to remedy present discrimination where less-suspect means are unavailable or inadequate. Second, hiring preferences may be essential to cure the lingering effects of past discrimination. We first consider the extent to which these two purposes justify continued use of the annual goals; we then discuss how the annual goals should be modified to make their interim use narrowly tailored.
Until valid job-selection procedures are in place, some use of racial preferences is necessary to counteract the ongoing effects of racially discriminatory testing. Were such race-conscious decisionmaking not allowed prior to the implementation of race-neutral selection devices, the City and the Board would find themselves in the impossible position of trying to comply with Title VII on the basis of discrimination-tainted procedures. The Wilks class implicitly conceded as much at the modification hearing, and argues on appeal only that "supplemental" affirmative action should be disallowed in the absence of "a firm schedule for adoption of lawful tests." We have already decided that adoption of such a schedule is necessary. Therefore, pending prompt implementation of valid selection procedures, the Board may continue to make race-conscious certifications to the City and the City may continue to take race into account when hiring and promoting. We will discuss later the character of race-conscious decisionmaking that is permitted.
In addition, even after valid selection procedures are in place, affirmative action may be needed to cure past discrimination by the City and the Board. However, we refuse simply to assume that the effects of past discrimination in public employment have endured or will endure indefinitely. For the past thirteen years, the decrees have mandated that the City and Board affirmatively hire blacks as a remedy for past wrongs. This court-approved remedy has apparently had substantial impact.
On remand, the district court must determine from evidence whether the effects of past City and Board discrimination persist. As long as significant specified effects linger, affirmative action may be justified despite the implementation of valid selection procedures. Public employers cannot escape their constitutional responsibilities merely by adopting faciallyneutral policies that institutionalize the effects of prior discrimination and thus perpetuate de facto discrimination. See United States v. Fordice, ___ U.S. ___, ___ - ___, 112 S.Ct. 2727, 2735-36, 120 L.Ed.2d 575 (1992) (school desegregation case). Here, however, it is not at all clear that broad affirmative action is still needed to cure past discrimination by the City and the Board. After thirteen years of racial preferences — and even longer with respect to firefighters and police officers — the district court should consider the

retrospective,1576*1576 remedial purpose of affirmative action satisfied except where it finds that past discrimination continues to taint a particular position. Absent such findings, and once valid selection procedures have been adopted, affirmative action will no longer be legitimate; the goals of rectifying past and present discrimination will have been achieved.
Having discussed the circumstances in which the City and the Board may continue to use annual affirmative action goals, we now discuss the form that any further affirmative action must take. Affirmative action, when allowed, must be flexible, reasonably related to the pool of qualified minorities, and impose no undue burden on innocents. See Howard v. McLucas, 871 F.2d 1000, 1008 (11th Cir.), cert. denied,493 U.S. 1002, 110 S.Ct. 560, 107 L.Ed.2d 555 (1989). As presently written, the City and Board decrees' affirmative action provisions do not satisfy these requirements.
The present annual "goals" for blacks lack flexibility. These goals have been set, apparently arbitrarily, at figures ranging from twenty-five to fifty percent, depending on the position. We might allow such fixed-percentage "goals," under the theory that they represented an estimate of the speed with which past discrimination could be eradicated, if they were in fact treated as goals rather than absolute commandments. The Cone Corp. Court, for example, upheld a plan that set a goal of twenty-five percent minority participation because the county granted waivers whenever that goal could not be achieved. Cone Corp. v. Hillsborough County, 908 F.2d 908, 916-17 (11th Cir.), cert. denied, 498 U.S. 983, 111 S.Ct. 516, 112 L.Ed.2d 528 (1990). Here, by contrast, the annual appointment "goals" have been applied as rigid quotas. In the early 1980s, the City mechanically appointed equal numbers of blacks and whites to fire department positions without any consideration of relative qualifications in order to meet the stated fifty-percent "goal." In 1989, the City promoted to fire lieutenant seven blacks previously found by a City review board to be unqualified — despite the competing candidacy of several whites found by the review panel to be more qualified. The City apparently viewed its annual fifty-percent "goal" as mandatory, and believed that if it did not promote blacks and whites in approximately equal numbers, then it could make no appointments at all. As implemented, these goals lack the flexibility that the Constitution requires.
Despite its rigid application of the annual goals, the City contends that two provisions in its decree create sufficient flexibility to satisfy strict scrutiny. The City chiefly relies on paragraph two of its decree, which provides:
Nothing herein shall be interpreted as requiring the City to hire unnecessary personnel, or to hire, transfer, or promote a person who is not qualified, or to hire, transfer or promote a less

qualified person, in preference to a person who is demonstrably better qualified based upon the results of a job-related selection procedure.
According to the City, this paragraph allows the City to adjust its "goals" when there is an insufficient pool of qualified black applicants.
We find the City's interpretation unpersuasive. On its own terms, paragraph two does not permit departure from the "goals" unless and until the Board develops "a job-related selection procedure" — i.e., a test that can accurately determine the relative qualifications of candidates. See In re Birmingham Reverse Discrimination Employment Litig., 833 F.2d 1492, 1497 (11th Cir.1987) (discussing the district court's understanding that paragraph two does not apply until validated exams are in place), aff'd sub nom., Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989). While paragraph two may underscore the need for valid selection procedures, absent such procedures it does not help the City survive strict scrutiny.
The City also suggests that paragraph five of its decree infuses significant flexibility into the City's hiring and promotion goals. That paragraph provides, in relevant part:
The parties also preserve the right to adjust, through agreement and subject to the approval of the Court, any of the goals provided by this Decree where it can be shown that a professional degree, license 1577*1577or certificate is required to perform the duties of any particular job or jobs in the City's workforce and that blacks and/or women hold such degrees, licenses or certificates in percentage terms which are inconsistent with the goals provided.
This clause mitigates the rigidity of the City decree's "goals" in some situations, but it does not go far enough. First, while paragraph five allows the City to take account of the unavailability of sufficient blacks with degrees and licenses, it imposes no duty to do so. The requirement of "narrow tailoring" is obligatory, not permissive. Second, the clause focuses only on "degrees, licenses, and certificates." Such an unnecessarily limited scope is improper. When determining the proportion of blacks in the qualified labor pool, the City and Board should also take into account other objective prerequisites for employment, such as age or experience requirements, for which data is reasonably available. Where the City always makes promotions to a particular senior position from among individuals holding a particular junior position, the relative proportion of blacks in the junior position will generally be the most significant determinant of the proportion of blacks in the qualified applicant pool. Finally, paragraph five of the City decree applies only to the City, not to the Board.

Thus, in their present form, the annual goals are unconstitutionally unrefined. On remand, the district court must re-write the decrees to make clear that the annual goals cannot last indefinitely. Once a valid selection procedure is in place for a particular position, neither the City nor the Board may continue to certify, hire, or promote according to a race-conscious "goal" absent proof of ongoing racial discrimination, or of the lingering effects of past racial discrimination, with respect to that position. Under no circumstances may the City hire or promote, or the Board certify, candidates who are demonstrably less qualified than other candidates, based upon the results of valid, job-related selection procedures, unless the district court finds that such appointments are necessary to cure employment discrimination by the City or Board.
In addition, the district court must re-write the decrees to relate the annual goals to the proportion of blacks in the relevant, objectively-qualified labor pool, calculated with reasonably available data. The district court may set an annual affirmative action goal that is greater than the proportion of blacks in the qualified labor pool if the district court finds that unlawful employment discrimination by the City or Board has reduced the proportion of blacks either in the qualified pool or in the position itself. In such circumstances, the district court may set a flexible goal that does not unduly burden the interests of innocent third parties and that is reasonably related to the pool of qualified blacks. See, e.g., Cone Corp. v. Hillsborough County, 908 F.2d 908, 916-17 (11th Cir.1990) (approving a flexible affirmative action goal set at approximately twice the proportion of minorities in the qualified pool); Howard v. McLucas, 871 F.2d 1000, 1008 (11th Cir.) (approving a flexible, 50% affirmative action goal in order "expeditious[ly]" to remedy the identified effects of unlawful discrimination), cert. denied, 493 U.S. 1002, 110 S.Ct. 560, 107 L.Ed.2d 555 (1989); cf. In re Birmingham Reverse Discrimination Employment Litig., 20 F.3d 1525, 1542-43 (11th Cir.1994)(suggesting that affirmative action goals must be flexible and "tied in some reasonable manner" to the proportion of blacks in the qualified pool). Appropriately designed, such increased goals may hasten the end to judicial oversight by expeditiously remedying past discrimination.
The Constitution tolerates race-based remedies only when they are necessary either to remedy past discrimination or to correct present discrimination until valid selection procedures are in place. Affirmative action is at most a temporary treatment; a cure for discrimination requires more fundamental and more even-handed reform. We cannot allow stop-gap remedies to turn into permanent palliatives. Therefore, the district court is directed to order the City and the Board to develop race-neutral selection procedures forthwith, not at the casual pace the Board has passed off as progress for thirteen years. The Board's decree is not a security blanket to be clung to, but a badge of shame, a 1578*1578 monument to the Board's past and present failure to treat all candidates in a

fair and non-discriminatory manner. Federal judicial oversight should provide public employers no refuge from their responsibilities. We are confident that, on remand, the district court will modify and enforce the decrees in a way that will bring that truth home.
C. MODIFICATION OF THE GENDER-CONSCIOUS AFFIRMATIVE ACTION PROVISIONS
We now consider what modifications are required to the decrees' gender-based affirmative action provisions. We first consider the prerequisites for modification, and then discuss the nature of the required modifications.
1. Rufo's First Prong and Its Adaptation: Prerequisites for Modification
As previously discussed, Rufo normally permits modification only to accommodate "a significant change in facts or law." Rufo v. Inmates of Suffolk County Jail, ___ U.S. ___, ___, 112 S.Ct. 748, 765, 116 L.Ed.2d 867 (1992). However, we must adapt that general rule to the peculiar procedural posture of the present case. Rufoinvolved, and envisions, a typical consent decree modification proceeding in which all the participants are parties to the original decree. Cf. Fed.R.Civ.P. 60(b) (allowing parties to seek decree modifications). Parties to a consent decree are estopped by their status as signatories from challenging the decree's validity under law existing when they accepted the decree. In re Birmingham Reverse Discrimination Employment Litig., 833 F.2d 1492, 1501 (11th Cir.1987), aff'd sub nom., Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989). As a result, where a modification proceeding involves only parties to the original decree, a change in law or fact is a prerequisite to modification or termination of the decree.
That was Rufo, but this case is different. Consistent with the Supreme Court's decision in Martin v. Wilks, the district court allowed the Wilks class, which was not a party to the original decrees, to intervene in the present modification proceeding. The Wilks intervenors, unlike the original parties, are not estopped from collaterally attacking the validity of the decree as originally adopted. Martin v. Wilks, 490 U.S. at 761-62, 109 S.Ct. at 2184. In fact, they are doing just that in the parallel reverse-discrimination case.
This atypical situation raises the question whether intervenors, like parties, may challenge a consent decree's validity based on changes in the law alone, or instead may seek modifications even if there has been no change in the law.[14] Rufo does not consider or answer this question, which should not recur often.[15]

Common sense demands that intervenors be allowed to challenge the constitutional validity of a consent decree under the law that exists at the time of the challenge, irrespective of whether that law has changed since the decree was entered. Because intervenors may seek to alter or dissolve a 1579*1579 consent decree through a collateral attack, In re Birmingham Reverse Discrimination Employment Litig., 833 F.2d 1492, 1496 & n. 13, 149899 (11th Cir.1987), aff'd sub nom., Martin v. Wilks,490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989), it is pointless to prohibit a similar challenge in a modification proceeding. It is far better to resolve all of the modification questions at one time rather than to split those questions between two or more proceedings.
We hold that, in the unusual circumstances of this case, the intervenors may bring challenges based on current law, regardless of whether that law has changed. Accordingly, modifications are warranted if necessary to prevent the decrees from violating governing constitutional standards — whether or not those standards had already been announced at the time the decrees were entered. Only by so adaptingRufo's prerequisite to the unusual posture of the present case can we adhere toRufo's spirit: a call for "flexible," prospective reconsideration of aging consent decrees to ensure their continuing validity. Moreover, although our holding may at first appear to make consent decrees more vulnerable, it should have just the opposite effect. A modification proceeding may, to the extent outlined above, be used to make constitutional an otherwise unconstitutional decree — saving it from continuing collateral attack.
We now consider whether existing constitutional standards require modification of these decrees' gender preferences. When the district court entered the decrees, the Supreme Court had recently decided that gender-based classifications were subject to intermediate scrutiny under the Equal Protection Clause. Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397 (1976). In addition, the Supreme Court had specifically employed an intermediate scrutiny standard in upholding a gender-conscious government program designed to "[reduce] the disparity in economic condition between men and women caused by the long history of discrimination against women." Califano v. Webster, 430 U.S. 313, 317, 97 S.Ct. 1192, 1194, 51 L.Ed.2d 360 (1977). The decision in Mississippi University for Women v. Hogan, 458 U.S. 718, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982), clarified that a classification must pass intermediate scrutiny even if the state's asserted purpose is benign. Id. at 728, 102 S.Ct. at 3338.
It has been suggested that Croson changed the rule established by Craig, Califano,and Hogan, so that gender-based affirmative action is now subject to strict scrutiny just like race-based affirmative action. See John Galotto, Note, Strict Scrutiny for Gender, Via Croson, 93 Colum.L.Rev. 508, 508 (1993) ("Croson compels the application of strict

scrutiny to all forms of gender discrimination."); but see Peter Lurie, Comment, The Law as They Found It: Disentangling Gender-Based Affirmative Action Programs from Croson, 59 U.Chi.L.Rev. 1563, 1564 (1992) ("One standard, intermediate scrutiny, must apply to all gender classifications."). Indeed, several post-Croson cases have, with little or no discussion, followed this approach.See Brunet v. City of Columbus, 1 F.3d 390, 404 (6th Cir.1993) ("Under the precedent in this Circuit, gender based affirmative action plans are subject to strict scrutiny when challenged under the Equal Protection Clause."); Long v. City of Saginaw, 911 F.2d 1192, 1196 (6th Cir.1990) ("The strict scrutiny standard was adopted by a majority of the Court in [Croson] as the standard by which `affirmative action' cases are to be reviewed."); Conlin v. Blanchard, 890 F.2d 811, 816 (6th Cir.1989) (applying strict scrutiny, without discussion, to a gender-conscious affirmative action program); American Subcontractors Ass'n v. City of Atlanta, 259 Ga. 14, 376 S.E.2d 662, 664 (1989) (striking down a race- and gender-conscious affirmative action program under "a strict scrutiny standard, the appropriateness of which is conceded by the parties").
We find those cases unpersuasive. Nothing in Croson suggests that the Supreme Court intended sub silentio to strike down its own decisions applying intermediate scrutiny to gender classifications. While it may seem odd that it is now easier to uphold affirmative action programs for women than for racial minorities, Supreme Court precedent compels that result. Compare Croson, 488 U.S. at 498-508, 109 S.Ct. at 724-30 (applying strict scrutiny to race-based affirmative 1580*1580 action) withCalifano, 430 U.S. at 317, 97 S.Ct. at 457 (applying intermediate scrutiny to gender-based affirmative action). We may not, of course, disobey the Supreme Court.
We also note that each post-Croson case that has considered in detail whetherCroson applies to gender classifications has concluded that it does not. Contractors Ass'n v. City of Philadelphia, 6 F.3d 990, 1000-01 (3d Cir.1993); Coral Constr. Co. v. King County, 941 F.2d 910, 930-31 (9th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 875, 116 L.Ed.2d 780 (1992); cf. Milwaukee County Pavers Ass'n v. Fiedler,922 F.2d 419, 422 (7th Cir.) ("Croson is about favoritism toward racial and ethnic groups, not about favoritism toward women. The Supreme Court does not consider discrimination against women to be as invidious ... as discrimination against blacks or other racial minorities; nor ... does it consider discrimination against men to be as invidious as racial discrimination."), cert. denied, 500 U.S. 954, 111 S.Ct. 2261, 114 L.Ed.2d 714 (1991); see also Lamprecht v. Federal Communications Comm'n, 958 F.2d 382, 391 (D.C.Cir.1992) (majority opinion of Thomas, Circuit Justice). A year after Croson, we recognized that intermediate scrutiny still applied in gender discrimination cases: "For a considerable time now, the law has been quite clear that [discrimination] on the basis of sex is unconstitutional, unless that conduct

is ... substantially related to the furtherance of an important government interest."Nicholson v. Georgia Dep't of Human Resources, 918 F.2d 145, 148 (11th Cir. 1990).
Our decision in Cone Corp. v. Hillsborough County, 908 F.2d 908 (11th Cir.), cert. denied, 498 U.S. 983, 111 S.Ct. 516, 112 L.Ed.2d 528 (1990), says nothing to the contrary. There, we held that a race- and gender-conscious "minority business enterprise" program survived strict scrutiny. Id. at 914-17. We did not consider whether a less-exacting standard applied to the gender-conscious provisions of the program. We did not need to do so, given our holding that the plan satisfied even the searching Croson test. Intermediate scrutiny remains the applicable constitutional standard in gender discrimination cases.
Although there has been no significant change in the governing constitutional standard since the gender-conscious provisions of the decrees were adopted, for reasons we have discussed relating to the presence of intervenors, those provisions nevertheless must comply with present constitutional standards. We next explain why the gender-conscious provisions of the decrees are unconstitutional and require further modification.
2. Rufo's Second Prong: Suitably Tailored Modifications
"A consent decree must of course be modified if ... one or more of the obligations placed upon the parties has become impressible under federal law." Rufo v. Inmates of Suffolk County Jail, ___ U.S. ___, ___, 112 S.Ct. 748, 762, 116 L.Ed.2d 867 (1992). This rule requires us to evaluate the gender-conscious provisions of the consent decree under the equal protection standard articulated by Craig and Califanoand clarified by Hogan. Under this standard, no gender preference can survive unless it is substantially related to an important government interest. Hogan, 458 U.S. at 724, 102 S.Ct. at 3336.
a. Intermediate Scrutiny's First Requirement: An Important Government Interest in Gender-Based Relief
We are convinced that the City and Board have established a sufficiently important government interest to justify gender-conscious affirmative action. Under the intermediate scrutiny test, a local government must demonstrate some past discrimination against women, but not necessarily discrimination by the government itself. One of the distinguishing features of intermediate scrutiny is that, unlike strict scrutiny, the government interest prong of the inquiry can be satisfied by a showing of societal discrimination in the relevant economic sector. See, e.g., Hogan, 458 U.S. at 728-29, 102 S.Ct. at 3338 (comparing the social security preference upheld inCalifano, which "took into account"

that women had been hindered from earning as much as men, with the all-female nursing program in Hogan, struck down in part because the state had made "no showing 1581*1581 that women lacked opportunities" in the field of nursing); cf. Coral Constr. Co. v. King County, 941 F.2d 910, 932 (9th Cir.1991) (noting that "[s]ome degree of discrimination must have occurred in a particular field before a gender-specific remedy may be instituted in that field," but that "intermediate scrutiny does not require any showing of governmental involvement ... in the discrimination it seeks to remedy"), cert. denied, ___ U.S. ___, 112 S.Ct. 875, 116 L.Ed.2d 780 (1992). The principal purpose of intermediate scrutiny is not so much to make sure that gender-based classifications are used only as a "last resort," Hayes v. North State Law Enforcement Ass'n, 10 F.3d 207, 217 (4th Cir.1993) (racial discrimination case), as it is to ensure that gender classifications are based on reasoned analysis rather than archaic stereotypes, seeContractors Ass'n v. City of Philadelphia, 6 F.3d 990, 1010 (3d Cir.1993) ("The Supreme Court has stated that an affirmative action program survives intermediate scrutiny if the proponent can show it was `a product of analysis rather than a stereotyped reaction based on habit.'" (quoting Metro Broadcasting, Inc. v. Federal Communications Comm'n, 497 U.S. 547, 582-83, 110 S.Ct. 2997, 3018-19, 111 L.Ed.2d 445 (1990))); Lamprecht v. Federal Communications Comm'n, 958 F.2d 382, 393 n. 3 (D.C.Cir.1992) (majority opinion of Thomas, Circuit Justice) (noting that intermediate scrutiny is intended to ensure reasoned analysis of classifications, and commenting that "analysis" is never "reasoned" when it rests on stereotypes rather than facts); Recent Case, 106 Harv.L.Rev. 804, 808 (1993). In a case such as this, in which there is no allegation that gender-based affirmative action was adopted because of "archaic and overbroad assumptions about the relative needs and capacities of the sexes," Roberts v. United States Jaycees, 468 U.S. 609, 625, 104 S.Ct. 3244, 3253, 82 L.Ed.2d 462 (1984), the "important government interest" inquiry turns on whether there is evidence of past discrimination in the economic sphere at which the affirmative action program is directed.
The record before us contains substantial anecdotal and statistical evidence of past discrimination against women, including discrimination by both the City and the Board. For example, "[f]or many years announcements for positions as police patrolman and firefighter were restricted to males only." United States v. Jefferson County, 28 Fair Empl.Prac.Cas. (BNA) 1834, at 1838, 1981 WL 27018 (N.D.Ala.1981), aff'd, 720 F.2d 1511 (11th Cir.1983). Coupled with that, women were grossly underrepresented in a variety of City positions at the time the consent decrees were negotiated. Id. These and related findings by the district court, see id.,justify the district court's finding that "there is more than ample reason for the Personnel Board and the City of Birmingham to be concerned that they would be in time held liable for discrimination." Id. We are satisfied that the City and Board have

demonstrated an important government interest: eradicating gender discrimination against women in public employment.
b. Intermediate Scrutiny's Second Requirement: A Substantial Relation to the Important Interest
The present decree is not substantially related to the goal of eliminating gender discrimination in public employment. That goal requires, at a minimum, the development of gender-neutral selection procedures — whether or not developed in conjunction with a program of affirmative female appointments designed to remedy discrimination against women. Otherwise, both discriminatory selection procedures and remedial gender-based appointments would likely continue forever. While the present decrees mandate appointment of women, for thirteen years these decrees have done little or nothing to promote the development of selection procedures that are fair to women. In fact, as with race, the Board has yet to demonstrate the gender-neutrality or job-relatedness of a single employment exam. This glaring failure suggests that the decrees have, in a very real sense, perpetuated gender discrimination by allowing the Board and the City to use biased tests coupled with gender preferences.
It was an abuse of discretion for the district court to permit such a potentially indefinite cycle of discrimination to continue. Perpetual 1582*1582 use of affirmative action may foster the misguided belief that women cannot compete on their own. That notion is just "as pernicious and offensive as its converse, that women ought to be excluded from all enterprises because their place is in the home." Coral Constr., 941 F.2d at 932 (quoting Associated General Contractors v. City of San Francisco, 813 F.2d 922, 941 (9th Cir.1987)). When affirmative action outlives the pressing necessity that justifies its use, it begins to breed the very "archaic and overbroad assumptions about the relative needs and capacities of the sexes" that it was designed to erase. Roberts v. United States Jaycees, 468 U.S. 609, 625, 104 S.Ct. 3244, 3253, 82 L.Ed.2d 462 (1984). In view of that phenomenon, it is not surprising that the class of female employees in this case urged the district court to impose a timetable for adoption of valid, job-related selection procedures.
On remand, the district court should modify the decree to impose a set of prompt deadlines on the City and the Board for the development of gender-neutral selection procedures. As these procedures are developed and put into place, the City and Board must stop employing any affirmative "goals" or quotas for female appointments unless further affirmative action is needed to eradicate lingering effects of discrimination against women. However, because gender goals need be only "substantially related" (rather than "narrowly tailored") to their goal, compare, e.g.,Kahn v. Shevin, 416 U.S. 351, 356 n. 10, 94 S.Ct.

1734, 1737 n. 10, 40 L.Ed.2d 189 (1974) (rejecting Justice Brennan's dissenting opinion that a Florida property-tax exemption for widows that was intended to reduce the economic disparity between men and women should have been crafted as narrowly as possible to achieve that goal) with Croson, 488 U.S. at 507, 109 S.Ct. at 729 (requiring narrow tailoring), the decrees need not tie gender goals to the proportion of qualified female applicants.
IV. THE ATTORNEYS' FEES ISSUE
Following the district court's modification order, the Wilks class moved for an interim award of attorneys' fees and expenses against the City pursuant to 42 U.S.C.A. § 1988(b) (Supp.1993) ("In any action or proceeding to enforce ... [§ 1983], the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee ...."). The Wilks class sought fees against the City in this modification proceeding for work performed by its counsel both in this proceeding and in the parallel, reverse-discrimination case. The district court summarily denied the fee request "without prejudice to refiling at a later date" in the reversediscrimination case.
"It is well-settled that a [civil rights] plaintiff is a prevailing party [under 42 U.S.C. § 1988] and thus ordinarily entitled to a fee award of `some kind' if the plaintiff has succeeded on `any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'" Church of Scientology Flag Serv., Org. v. City of Clearwater, 2 F.3d 1509, 1513 (11th Cir.1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (footnote omitted)). However, "no fee award is permissible until the plaintiff has crossed the `statutory threshold' of prevailing party status." Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789, 109 S.Ct. 1486, 1492, 103 L.Ed.2d 866 (1989) (citing 42 U.S.C. § 1988). "[A]t a minimum," the party claiming fees "must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant." Id. at 792, 109 S.Ct. at 1493. Moreover, a party cannot win fees on the basis of an interlocutory judgment that will not necessarily result in "some action (or cessation of action)" by the party against whom fees are sought. Hewitt v. Helms,482 U.S. 755, 761, 107 S.Ct. 2672, 2676, 96 L.Ed.2d 654 (1987).
Under the law of this Circuit, we may decide, rather than remanding the issue to the district court, whether the Wilks class is now a prevailing party entitled to an interim award of attorneys' fees and costs. See Jones v. Diamond, 636 F.2d 1364, 1381-83 (5th Cir. Jan. 29, 1981) (en banc). In light of our decision in this appeal, the Wilks class is a prevailing party under section 1988 insofar as this modification proceeding case is concerned, and it is entitled to an appropriate 1583*1583 interim award of attorneys' fees and costs against the

City for that portion of its modification proceeding work on which it has succeeded. The class originally asked the district court to find the goals in the consent decrees to be unconstitutional. On appeal, the class urged this Court to order the goals rewritten so that they would be narrowly tailored and to require that they be adequately founded on a compelling state interest. The class urged both the district court and this Court to modify the decrees to ensure the rapid development of race-neutral selection procedures. See Transcript of Conference, Feb. 19, 1991, at pp. 24-27. We have held that the affirmative action provisions of the consent decrees are not narrowly tailored; we have accordingly remanded the case to the district court with instructions to rewrite those provisions. We have specifically directed the district court to eliminate the City's present long-term goals, which are based on the proportion of blacks in the civilian labor-force, and to replace those goals with a schedule of reasonably prompt deadlines under which the City must develop race-neutral selection procedures. That ruling will result in "some action" by the City that is beneficial to the Wilks class, see Hewitt, 482 U.S. at 761, 107 S.Ct. at 2676, and effectively means that the Wilks class has succeeded on a "significant issue in [the] litigation which achieves some of the benefit [it] sought in bringing suit." City of Clearwater, 2 F.3d at 1513 (internal quote marks omitted).
That we have not granted the identical relief originally sought by the class — complete elimination of all goals — is not dispositive. To have prevailed, a party "need not obtain relief identical to the relief [that it] specifically demanded, as long as the relief obtained is of the same general type." Ashley v. Atlantic Richfield Co., 794 F.2d 128, 131 (3d Cir.1986) (internal quotation marks omitted); cf. Ruffin v. Great Dane Trailers, 969 F.2d 989, 992-93 (11th Cir.1992) (reversing a denial of attorneys' fees where the district court granted an injunction different from that sought by the plaintiff), cert. denied, ___ U.S. ___, 113 S.Ct. 1257, 122 L.Ed.2d 655 (1993). The party seeking fees need only have received "actual relief on the merits of [the party's] claim [that] materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the [party]." Farrar v. Hobby,___ U.S. ___, ___, 113 S.Ct. 566, 573, 121 L.Ed.2d 494 (1992). The Wilks class had sought the elimination of all race- and gender-conscious affirmative action. Our holdings move toward the elimination of race- and gender-conscious personnel decisions by restricting the scope and duration of the affirmative action provisions of the decrees. The Wilks class has thus obtained relief on the merits of the same general type as it originally sought, even if to a lesser extent than it might have liked.Cf. Texas State Teachers, 489 U.S. at 793, 109 S.Ct. at 1494 ("[T]he degree of the plaintiff's overall success goes to the reasonableness of the award ... not to the availability of a fee award vel non."). The legal relationship between the Wilks class and the defendants has been materially altered in the direction sought by the class. The Wilks class is therefore a prevailing party insofar as the modification proceedings case is concerned. The district court's denial of

attorneys' fees for the Wilks class is vacated and remanded with instructions that the class be awarded reasonable attorneys' fees for work in this modification proceeding case.[16]
V. CONCLUSION
The district court's modification orders are REVERSED in part. On remand, the district court should determine whether the City and the Board have a strong evidentiary basis for their conclusion that race-based remedies are necessary to cure public employment discrimination in departments other than the police and fire departments. If not, the racebased affirmative action provisions that apply to those other departments are unconstitutional and must be terminated. With respect to the police and fire departments, and all other departments for which race-based remedies are found to be justified, 1584*1584 the district court must re-write the decrees' affirmative action provisions to make them narrowly tailored. The court is therefore directed to establish a schedule of reasonably prompt deadlines for the City and the Board to develop and implement raceneutral selection procedures. In addition, the district court should restrict the decrees' use of race-based preferences to circumstances in which race-based relief is necessary either to remedy the lingering effects of public employment discrimination against blacks, or until the City and the Board have implemented valid selection procedures.
The decrees' gender-based preferences must be re-written to make them substantially related to the objective of ending discrimination against women. To that end, we direct the district court to establish a schedule of reasonably prompt deadlines for the City and the Board to develop and implement gender-neutral selection procedures. Unless needed to remedy lingering discrimination against women, gender preferences should be phased out as gender-neutral selection procedures are implemented.
In all other respects consistent with this opinion, the district court's modification orders are AFFIRMED.[17]
We VACATE the district court's order denying attorneys' fees to the Wilks class, and REMAND for determination of an appropriate award in light of this opinion.
As outlined in this conclusion and explained in this opinion, the district court's orders are AFFIRMED in part, REVERSED in part, VACATED in part, and REMANDED for further proceedings consistent with this opinion.
[1] The claims against these other government officials and agencies are not involved in this appeal.

[2] The 1989 amendment specifically allows t Personnel Board to certify, at the City's request, as many as five applicants for any entry-level police officer or firefighter vacancy. See Amendments of 1989, § 1, 1989 Ala.Acts at 970.
[3] Statistical analysis later showed that the new scoring key had made direct comparison of black and white applicants' scores even less accurate at predicting black and white applicants' relative job performance. See Ensley Branch, 13 Empl. Prac.Dec. (CCH) ¶ 11,504, at 6802.
[4] The Equal Protection Clause provides: "[N]or shall any State ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const.Amend. 14, § 1.
[5] There is one possible, partial, exception to this statement. The Board decree allowed the Board to continue to administer the police officer and firefighter tests previously found illegal, "provided that certifications [were] in compliance with" the district court's January 1977 order from the trial on those illegal tests. The 1977 order required race-conscious hiring "[p]ending adoption of some selection procedure which either has no adverse effect upon black applicants or is sufficiently job-related."Ensley Branch, NAACP v. Seibels, 13 Empl.Prac.Dec. (CCH) ¶ 11,504, at 6808, 1985 WL 1415 (N.D.Ala.1977), aff'd in part and rev'd in part, 616 F.2d 812 (5th Cir.), cert. denied, 449 U.S. 1061, 101 S.Ct. 783, 66 L.Ed.2d 603 (1980). However, it is not clear that the Board decree incorporated the 1977 order's termination clause; none of the parties have suggested that it did so.
[6] The decree created special provisions for promotion of blacks to the more senior positions in the police and fire departments, and for promotion of women to police positions above the rank of sergeant. After a set number of blacks had been promoted to specified senior police positions, further promotions were to be made "at twice the black percentage representation in the job classifications from which promotional candidates are traditionally selected for those jobs." Women were to be promoted to police positions above the rank of sergeant "in percentages which are approximately equivalent to their percentage representation in the job classification from which promotional candidates are traditionally selected."
[7] This is the only modification made that any party contends on appeal went too far. The Wilks class argues that "[t]he district court's imposition of supplemental Personnel Board referral goals without a firm schedule for adoption of lawful tests should be vacated." We address the Wilks class' argument at page 1575, infra.
[8] As another circuit court said in a similar context, "[i]t may be that in the voluminous record [from two decades of litigation] this issue was addressed, but we are unable to find it." Brunet v. City of Columbus, 1 F.3d 390, 412 n. 10 (6th Cir.1993). This issue certainly was not addressed during the modification proceedings in the present case.
[9] The district court excluded certain evidence proffered by the Wilks class regarding the City's negotiation of its consent decree. This evidence is purportedly relevant to the compelling interest inquiry. Because we have held that the City and the Board had a compelling interest in affirmative action in the police and fire departments, the Wilks class' appeal on the evidentiary issue is moot with respect to those departments. As regards the other departments, "[d]istrict judges have broad discretion" to admit or exclude evidence, BankAtlantic v. Blythe Eastman Paine Webber, Inc., 955 F.2d 1467, 1476 (11th Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 966, 122 L.Ed.2d 122 (1993),and "[a] district court's evidentiary rulings are not disturbed unless there is a clear showing of abuse of discretion," U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986, 993 (11th Cir.1993). We are not convinced that the district court abused its broad discretion by excluding the Wilks class' proffered evidence. The district court may, but is not required to, revisit that ruling on remand.
[10] The district court's finding in the parallel case of past discrimination is not fully transferable to this proceeding. The Wilks class in this proceeding includes many persons who are not parties to the parallel case, persons who therefore cannot be bound by the result of that case. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n. 7, 99 S.Ct. 645, 649 n. 7, 58 L.Ed.2d 552 (1979) ("It is a violation of due process for a judgment to be binding on a litigant who was not a party or a privy ....").
[11] In February 1991, the district court engaged in the following colloquy with Ms. Battle, counsel for the Board:
THE COURT: I suppose my assumption ... is that there would be some acknowledgement that whatever the Board has done with respect to redefining or refining tests since 1981, it has not yet gotten to the point where there is a presentation that the tests would be shown and demonstrated as of this time to be job related.

MS. BATTLE: Well, Your Honor, we do not intend at this hearing to put on specific evidence at all of job validity of any particular test. As I understand it, the only involvement that the Board has with respect to this hearing for changes to be augmented is what needs to be done for the City and, likewise, a timetable for winding down the process of the Board. THE COURT: ... [I]t seems to me one aspect of evaluating the City's consent decree is to take into account that since '81 and to the present date, there really has not been developed and presented for some kind of validation new testing procedures, and that is a part of the backdrop of looking at whether there should be any modifications ....
MS. BATTLE: ... [B]ut the actual request of whether or not a particular test is valid is not something that the Board thinks is relevant. THE COURT: Well, wouldn't it be fair to say that the Board has not gotten to the position of wanting to demonstrate the validity at this point of any of the tests?
MS. BATTLE: That may be true.
THE COURT: And that is a factor that the Court has to be aware of in looking at the modification.
[12] Of course, the Board's reluctance to validate its exams may reveal that it has not been as successful as it suggests at developing race-neutral selection procedures. The Board claims only that blacks and women pass many of its exams in close proportion to their representation in the applicant pool — not that blacks and women score as well as others. It may be that the Board's present exams are accurate enough to determine which applicants are qualified, but are not accurate enough to rank fairly those who pass. See Guardians Ass'n, 630 F.2d at 100 ("A test may have enough validity for making gross distinctions between those qualified and unqualified for a job, yet may be totally inadequate to yield passing grades that show positive correlation with job performance."); Ensley Branch, NAACP v. Seibels, 13 Empl.Prac.Dec. (CCH) ¶ 11,504, at 6804, 1977 WL 806 (N.D.Ala.1977) (noting that many tests may be accurate enough "to determine which individuals will exceed a given minimum standard of performance" but unable "to predict individuals' relative standing"), aff'd in part and rev'd in part on other grounds, 616 F.2d 812 (5th Cir.), cert. denied,449 U.S. 1061, 101 S.Ct. 783, 66 L.Ed.2d 603 (1980). Even if this hypothesis is correct, it would not justify further race-conscious employment actions. Continued use of an exam to rank applicants, when the exam cannot predict applicants' relative merits, offers nothing but a false sense of assurance based on a misplaced belief that some criterion — no matter how arbitrary — is better than none. Arbitrary, race-conscious hiring should not be tolerated after the Board has had thirteen years to come up with something better. If the Board cannot rank passing applicants in a valid manner because its tests are inadequate, then the Board could be ordered to use time-ofapplication, a lottery, or some other race-neutral device to select from among those who are qualified. See Guardians Ass'n, 630 F.2d at 104; cf. Brunet v. City of Columbus, S.D.Ohio (No. C2-84-1973, 1992 WL 540716, March 18, 1992) ("A lottery would be one example of a gender neutral selection device."). At least then the racially discriminatory hiring would end.
[13] Under the present appointment system, the City selects its final choice for any given job vacancy from among a very small number of candidates certified to it by the Board. In making its final choice, the City appears to rely not only on the candidate's race, but also in part on interviews, evaluations of candidate experience, and other subjective criteria. By requiring the City to validate its procedures, we do not mean to condemn subjective screening tools. Nevertheless, Title VII applies to both the City and the Board.
[14] This question did not arise during our analysis of the consent decrees' racial preferences because Croson, the controlling precedent, was handed down years after the entry of the consent decrees. Croson sufficiently changed the constitutional standards applicable to race to require modification under Rufo. Therefore, in the context of the racial preferences, we had no need to consider whether the Wilks class could challenge the decrees under constitutional standards in place when the decrees were written. This question is relevant in the context of gender, however, because the equal protection standards applicable to gender classifications have changed little these past thirteen years.
[15] There are two reasons this atypical situation is unlikely to recur. First, Martin v. Wilks should ensure from the outset that all interested parties participate in, and are thus bound by, consent decree proceedings that occur after that decision. Second, Congress has recently barred collateral, reverse-discrimination challenges to consent decrees by persons who fail to intervene in the original consent decree case despite having had actual notice. See 42 U.S.C.A. § 2000e-2(n) (Supp.1993). No one has argued that this statutory change undoes the Supreme Court's Martin v. Wilks decision as it affects the present litigation. We do not believe that it does, because section 2000e-2(n)(2) specifically provides that "[n]othing in this subsection shall be construed to ... apply to the rights of parties who have successfully intervened ... in the proceeding in which the parties intervened."

[16] Whether the Wilks class is entitled to attorneys' fees for work done in the reverse-discrimination case is an issue that should be decided in that case.
[17] In addition, we note that the district court may revisit the decrees, in 1996 as it had planned, or at any other time, to decide whether these decrees should be terminated. The district court may also make any additional decree modifications appropriate for compliance with this Court's decision in the parallel, reverse-discrimination case.

 
 616 F.2d 812 (1980)
ENSLEY BRANCH OF the N. A. A. C. P. et al., Plaintiffs-Appellees, v.
George SEIBELS et al., Defendants, Personnel Board of Jefferson County, Defendant-Appellant. John W. MARTIN et al., Plaintiffs-Appellees, Cross Appellants,
v. CITY OF BIRMINGHAM et al., Defendants, Personnel Board of Jefferson County, Defendant-Appellant Cross
Appellee. UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant,
v. JEFFERSON COUNTY et al., Defendants, Personnel Board of Jefferson County, Defendant-Appellant, Cross-
Appellee. Lucy WALKER et al., Plaintiffs-Appellees,
v. JEFFERSON COUNTY HOME et al., Defendants, Personnel Board of Jefferson County, Defendant-Appellant.
No. 77-1819.
United States Court of Appeals, Fifth Circuit.
May 8, 1980. Rehearing Denied June 16, 1980.
813*813 814*814 Hubert A. Grissom, Jr., David P. Whiteside, Jr., Birmingham, Ala., for defendant-appellant.
Howard P. Willens, Jay F. Lapin, David R. Johnson, Washington, D. C., for Educational Testing Service.
Susan Williams Reeves, Birmingham, Ala., Michael A. Middleton, Jackson, Miss., Caryl P. Privett, Asst. U. S. Atty., Birmingham, Ala., for plaintiffs-appellees.
Deborah M. Seymour, Joshua D. Rosenberg, Dept. of Justice, Ed. Section, Civil Rts. Div., Washington, D. C., for Lucy Walker.

Robert T. Moore, Employment Section Civil Rts. Div., Dept. of Justice, Washington, D. C., J. R. Brooks, Jr., U. S. Atty., Birmingham, Ala., Richard M. Sharp, William R. Galeota, Washington, D. C., for John W. Martin et al.
Before GODBOLD, RONEY and ANDERSON, Circuit Judges.
R. LANIER ANDERSON, III, Circuit Judge:
This case is a consolidation of four separate actions brought by the United States and private parties against the Personnel Board of Jefferson County, Alabama, and other local government agencies. The district court held that the Personnel Board's use of two examinations in screening and certifying candidates for jobs as police officers and firefighters violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. The court ordered certain remedies, the remedies being tailored to its conclusion that use of the police officer test did not violate Title VII until April 25, 1975, and that use of the firefighter test did not violate Title VII until July 8, 1976. We agree with the district court that the Personnel Board's use of both tests abridges Title VII; however, we believe that the court failed to make essential findings in determining the time at which liability commenced. Accordingly, we affirm in part and reverse and remand in part with instructions.
On January 4, 1974, the Ensley Branch of the National Association for the Advancement of Colored People, together with certain named individuals, for themselves and on behalf of others similarly situated, filed a complaint in the United States District Court for the Northern District of Alabama, against George Seibels (then Mayor of Birmingham, Alabama), the City of Birmingham, the members of the Personnel Board of Jefferson County, and the Personnel Director of that Board, alleging that the defendants engage in discriminatory hiring practices against blacks in violation of the Fourteenth Amendment, 42 U.S.C. §§ 1981, 1983, and 2000e et seq. (Title VII). A suit raising the same constitutional and statutory allegations was filed on January 7, 1974, by John W. Martin and other named plaintiffs against the City of Birmingham, Jefferson County, and the Personnel Board of Jefferson County.[1] On May 27, 1975, the United States brought suit against the Jefferson County Personnel Board and the municipal and other governmental jurisdictions 815*815 within Jefferson County[2] alleging a pattern or practice of discriminatory employment practices against blacks and women in violation of Title VII, the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 42 U.S.C. § 3766(c), the State and Local Fiscal Assistance Act of 1972, as amended, 31 U.S.C. § 1242, the Fourteenth Amendment and 42 U.S.C. § 1981. On February 20, 1976, Lucy Walker filed suit challenging the employment practices of the Jefferson County nursing home under Title VII and 42 U.S.C. § 1981. All four cases were consolidated for trial.

On December 20-22, 1976, trial was held on the merits of the limited issue of whether the two tests used by the Personnel Board to screen and rank applicants for positions as police officers and firefighters are discriminatory and violative of the constitutional or statutory rights of blacks.[3] All other issues under the complaints were reserved until a later date.
On January 10, 1977, pursuant to Fed.R.Civ.P. 54(b), the district court entered a final order on this limited issue.[4] The court held that the police and firefighter tests do not violate the Constitution,[5] but do violate Title VII. The court determined that the Title VII violation commenced on April 25, 1975, with respect to the police test and on July 8, 1976, with respect to the firefighter test. The Court ordered certain remedies to correct the discrimination caused by use of the tests since those dates.[6] From this judgment, the Personnel Board filed a notice of appeal, and the United States and the plaintiffs in the Martin action filed a joint notice of cross-appeal. The Personnel Board contends that the tests do not violate Title VII; the United States and the Martinplaintiffs contest the court's determination as to when Title VII liability commenced.
This case has been ably argued on appeal by counsel for both sides,[7] and we also have the benefit of a well-reasoned and comprehensive opinion by Judge Pointer of the court below.
FACTS
The Personnel Board of Jefferson County is required under Alabama law to administer examinations to applicants for positions with local government agencies. Two such examinations are at issue here: the 10-C test administered to applicants for positions with the police department, and the 20-B test administered to applicants for positions with the fire department. Both tests were 816*816 developed by the International Personnel Management Association.[8] Each test is a paper and pencil instrument consisting of 120 multiple choice questions.[9]
Applicants who pass[10] the 10-C or 20-B are placed on an eligibility list for positions with the police or fire department, and are ranked on the list in the order of their scores. If a single vacancy occurs, the three persons at the top of the list are certified to the appropriate department for final selection. If multiple vacancies occur, the number of persons certified is two more than the number of vacancies to be filled. Thus, merely passing the tests, and thereby being entered on the relevant eligibility list, is not nearly so important as obtaining a score sufficiently high to be placed high enough on the list to be actually certified to the police or fire department.

ADVERSE IMPACT
A prima facie Title VII case against an employment test may be built with statistics showing that use of the test has an adverse racial impact. This showing shifts to the employer the burden of proving that the test is job-related. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975); Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971); Scott v. City of Anniston, 597 F.2d 897, 901 (5th Cir. 1979).
The district court found that use of the 10-C and 20-B has an adverse impact upon blacks. The evidence shows that since March 24, 1972, the date Title VII became applicable to public employers such as the Personnel Board, only 51 blacks (6.6%) have been hired out of a total of 768 blacks who took the police test. The comparable figure for whites is 455 whites hired (23.3%) out of the total of 1,953 whites who took the police test. Similarly, only 9 black firefighters have been hired, which represents 3.2% of the black applicants, as compared to 215 white firefighters hired, which represents 14.1% of the white applicants. With respect to the number of blacks and whites who passed the exam, the court found that the pass rates for blacks (48.6% for the police test and 24.2% for the firefighter test) are substantially less than the pass rates for whites (90.2% for the police test and 82.5% for the firefighter test). The Personnel Board does not in this appeal contest the district court's finding that the two tests have an adverse impact; the Board argues only that it has carried its burden of showing that the tests are job-related.
JOB-RELATEDNESS
To prove the job-relatedness of the police and firefighter tests, the Personnel Board employed criterion-related validity studies.[11] The district court held that the studies failed to validate either test.[12]
817*817 The studies used three criterion measures: academy grades, i. e., relative class rank among students who successfully complete academy training; efficiency ratings of incumbent employees (police and firefighters) by their supervisors; and experimental ratings of incumbent employees by their supervisors, based on 12 categories, the categories relating to personality characteristics, job knowledge and job-related abilities.
Academy Grades. The district court found that the scores on the 10-C and 20-B tests bear statistically significant[13] correlation to grades in the training academies and it further found that the training academies furnished skills or knowledge needed for performance on the job. However, the district court also found that academy grades are not valid predictors of

job performance.[14] The court concluded from these findings that while completion of the academy is a valid criterion measure, academy 818*818 grades are not. Finally, the court found that even though completion of the training academies is a valid criterion measure, neither test predicts successful completion of the academies; even extremely low test scores do not predict failure at the academies.
Efficiency Ratings. Drs. Farrar and McLaurian, the experts who conducted the validation studies, testified that the efficiency ratings are not trustworthy assessments of the employees' actual performance. Largely based on this testimony, the court held that the efficiency ratings are not a valid criterion measure.
Experimental Ratings. Although determining that the experimental ratings system is an appropriate criterion measure for determining job-relatedness, the court discovered fatal deficiencies in the relationship between the test scores and the ratings. With respect to the 20-B test, the court found that while there is a statistically significant positive correlation between test scores and the experimental ratings for firefighters having less than three years' experience, there is a significant negative correlation for firefighters having more than three years' experience, thus "suggesting that over time the lower scoring applicants may be better employees." Accordingly, the court held that the 20-B is not a valid predictor of the experimental ratings. With respect to the 10-C test, the court found that there is a statistically significant correlation between test scores and experimental ratings, but that the correlation is of very low magnitude and lacks practical significance.[15] Accordingly, the court held that the correlation between the 10-C and the experimental ratings does not validate the 10-C for operational use in screening or ranking applicants.
The Personnel Board raises numerous objections to the above findings by the district court respecting the validity studies. We have reviewed these findings under the clearly erroneous standard. See Wade v. Mississippi Cooperative Extension Service, 528 F.2d 508, 516 (5th Cir. 1976); United States v. City of Chicago, 549 F.2d 415, 429 (7th Cir.), cert. denied, 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d 155 (1977); Bridgeport Guardians, Inc. v. Members of Bridgeport Civil Service Commission, 482 F.2d 1333, 1337 (2d Cir. 1973), cert. denied, 421 U.S. 991, 95 S.Ct. 1997, 44 L.Ed.2d 481 (1975); Washington v. Davis, 426 U.S. 229, 256, 96 S.Ct. 2040, 2055, 48 L.Ed.2d 597 (1976) (Stevens, J., concurring). Because we are not left with a "definite and firm conviction" that the court committed a mistake in holding that the studies do not demonstrate job-relatedness, Wade v. Mississippi Cooperative Extension Service, supra, 528 F.2d at 516, we reject the Board's objections.[16]
819*819 APPLICATION OF WASHINGTON V. DAVIS

The Personnel Board's principal argument on appeal is based on the Supreme Court's opinion in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). The Board focuses on the district court's finding that both the police test and the firefighter test bear a statistically significant correlation to training academy grades. With that focus the Board argues that the Davis case compels a decision in its favor. The Board contends that the Davis case stands for the general proposition that a test can be validated by showing that it predicts grades in a job-relevant training program, without regard to the test's ability to predict job performance.[17] As discussed below, the Davis case held that the test there was properly validated because it was shown to predict whether those tested had the minimum reading and verbal skills necessary to complete a job-relevant training program. We do not believe the Davis[18] rationale can be extended, as the Board urges, to the general proposition that any test can be validated by showing a relationship to training. More specifically, we reject the Board's suggested extension of the Davis holding to this case, where the 820*820 tests were not used to ascertain the minimum skills necessary to complete job-relevant training[19], but rather were used to rank job applicants according to their test scores and to select only the highest test scorers for job placement.
In Washington v. Davis, two blacks (respondents in the Supreme Court but referred to here as plaintiffs), whose applications to become police officers in the District of Columbia Police Department had been rejected, claimed, inter alia, that a written test ("Test 21") used by the Department for recruiting purposes violated their rights under the due process clause of the Fifth Amendment, 42 U.S.C. § 1981, and D.C.Code § 1-320. Test 21, developed by the Civil Service Commission and administered throughout the federal service, was designed to test the verbal ability, vocabulary, reading and comprehension of potential recruits for the police department. In order to gain entry into the training program, a grade of at least 40 out of 80 was required on Test 21. Plaintiffs moved for summary judgment seeking a declaration that Test 21 unlawfully discriminated in violation of the Fifth Amendment. The defendants filed a counter-motion for summary judgment, asserting that plaintiffs were entitled to relief on neither constitutional nor statutory grounds.
The district court granted defendants' and denied plaintiffs' motions. Davis v. Washington, 348 F.Supp. 15 (D.D.C.1972). The district court found, among other things, that a higher percentage of blacks failed Test 21 than whites, and that the test had not been validated to establish its reliability for measuring subsequent job performance. These findings were held sufficient to shift the burden of proof to defendants. Id. at 16. The district court found that defendants had met their burden by proving that "the Test is directly related to a determination of whether the applicant possesses sufficient skills requisite to the demands of the curriculum a recruit must master at the police academy." Id. at 17

(emphasis added).[20] Given its relationship to the training program, the court held that the lack of job performance validation did not defeat the test.
The Court of Appeals reversed on constitutional grounds. 512 F.2d 956 (D.C.Cir.1975). Applying the Title VII principles developed in Griggs v. Duke Power Co., supra, 401 U.S. at 424, 91 S.Ct. at 849, to the Fifth Amendment claim, it held,inter alia, that without proof by defendants that Test 21 had been validated in regard to job performance, defendants had not rebutted plaintiffs' prima facie case of discriminatory impact. Id. at 961-65.
The Court of Appeals was in turn reversed by the Supreme Court. After holding that the D. C. Circuit had erred in applying Title VII standards to the Fifth Amendment claim of discrimination, the Supreme Court considered the statutory issues raised by the summary judgment motion. The Court approved the use of Test 21 to determine the minimum skills necessary for satisfactory progress in the training program. For the majority, Justice White wrote:
The advisability of the police recruit training course informing the recruit about his upcoming job, acquainting him with its demands, and attempting to impart a modicum of required skills seems conceded. It is also apparent to us, as it was to the District Judge, that some minimum verbal and communicative skill would be very useful, if not essential, to satisfactory progress in the training regimen. Based on the evidence before him, the District Judge concluded that Test 21 821*821 was directly related to the requirements of the police training program and that a positive relationship between the test and training-course performance was sufficient to validate the former, wholly aside from its possible relationship to actual performance as a police officer. This conclusion of the District Judge that trainingprogram validation may itself be sufficient is supported by regulations of the Civil Service Commission, by the opinion evidence placed before the District Judge, and by the current views of the Civil Service Commissioners who [are] parties to [this] case. Nor is the conclusion foreclosed by either Griggs or Albemarle Paper Company v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); and it seems to us the much more sensible construction of the job-relatedness requirement.
426 U.S. at 250-251, 96 S.Ct. at 2052-2053 (emphasis added). Earlier in the opinion Justice White discussed the various ways a test could be validated:
It is necessary, in addition, that they be `validated' in terms of job perform ance in any one of several ways, perhaps by ascertaining theminimum skill, ability, or potential necessary for the position at issue.

426 U.S. at 247, 96 S.Ct. at 2051 (emphasis added). Similarly, Justice Stevens, concurring, stated:
The test serves the neutral and legitimate purpose of requiring all applicants to meet a uniform minimum standard of literacy. Reading ability is manifestly relevant to the police function, there is no evidence that the required passing grade was set at an arbitrarily high level.
426 U.S. at 254, 96 S.Ct. at 2054 (emphasis added). And, later in his concurring opinion:
As a matter of law, it is permissible for the police department to use a test for the purpose of predicting ability to master a training program even if the test does not otherwise predict ability to perform on the job. I regard this as a reasonable proposition and not inconsistent with the Court's prior holdings.
426 U.S. at 256, 96 S.Ct. at 2055. Further explaining his own opinion for the Davismajority, Justice White, in his dissent from the summary affirmance of United States v. South Carolina, 434 U.S. 1026, 98 S.Ct. 756, 54 L.Ed.2d 775 (1977), stated:
Washington v. Davis ... was thought by the District Court to have warranted validating the test in terms of the applicant's training rather than against job requirements; but Washington v. Davis, in this respect, held only that the test there involved, which sought to ascertain whether the applicant had the minimum communication skills necessary to understand the offerings in a police training course, could be used to measure eligibility to enter that program. The case did not hold that a training course, the completion of which is required for employment, need not itself be validated in terms of job relatedness. Nor did it hold that a test that a job applicant must pass and that is designed to indicate his mastery of the materials or skills taught in the training course, can be validated without reference to the job. Tests supposedly measuring an applicant's qualifications for employment, if they have differential racial impact, must bear `some manifest relationship to the employment in question,' Griggs v. Duke Power Co., 401 U.S. 424, 432 [, 91 S.Ct. 849, 854, 28 L.Ed.2d 158] (1971) ...
434 U.S. at 1027-28, 98 S.Ct. at 757 (emphasis added).
Thus, Washington v. Davis holds that a selection device may be validated if it is shown to predict whether an applicant has the minimum amount of reading and verbal skills necessary to complete a job-relevant training program. We decline the Personnel Board's invitation to extend the Davis rationale by holding that any test can be validated against training, without respect to the test's ability to predict job performance.[21] Such an extension

would 822*822 violate the requirement of job performance validation enunciated in Griggs and Albemarle, as well as the agency guidelines[22] elaborating upon that requirement.
Unlike the test upheld in Washington v. Davis, the tests used by the Personnel Board are not used to predict whether an applicant has the minimum amount of knowledge necessary to complete training[23]; rather, the tests are used to rank applicants according to their scores. Only those at the top of the eligibility list, those with the highest test scores, are certified for job placement. Even those who score a passing grade, and are deemed by the Personnel Board to possess the capacity to complete training, are not hired unless they are among the highest scorers. Use of a test for such ranking purposes,[24] rather than as a Davis-like device to screen out candidates without minimum skills, is justified only if there is evidence showing that those with a higher test score do better on the job than those with a lower test score. Such evidence is utterly lacking here. The Board's validation studies show that higher test scores do not predict better job performance.[25]
Having accepted the district court's finding that the Personnel Board did not carry its burden of showing that the two tests are job-related, and having rejected the Board's suggestion that the Davis case can be extended to justify validation of these tests against training grades without regard to job performance, we affirm the district court's holding that the Personnel Board's use of the two tests violates Title VII. We turn next to the remedy issue and the subsidiary question of when the Board's Title VII liability commenced.
COMMENCEMENT OF LIABILITY
The Personnel Board became-subject to the requirements of Title VII on March 24,823*823 1972. Equal Employment Opportunity Act of 1972, Pub.L. No. 92-261, 86 Stat. 103. On that date, and for several years earlier[26], the Board was using the 10-C and 20-B to screen and rank applicants. However, the district court held that use of the police test did not begin to violate Title VII until April 25, 1975, and that use of the firefighter test did not constitute a violation until July 8, 1976. Those were the dates on which the final results of the validation studies for the two tests (the studies were started in late 1972) were reported to the Board. The court explained:
The preliminary reports from the consultants, made while more trustworthy measures of job performance were being developed [i. e.,the experimental ratings], contained signs of potential validity and recommended continued usage of the test pending the additional studies. Not until April 25, 1975, with respect to the 10-C, and July 8, 1976, with respect to the 20-B were the studies using these new criterion measures completed and reported to

the Board. It was on these respective dates that, in the court's opinion, it should have been concluded that provisional use of the tests was no longer permissible. Prior thereto, the Board was, in the court's opinion, justified in continuing to use the tests (and the eligibility lists generated therefrom) in anticipation of favorable results from those studies.
13 E.P.D. at 6807.
It appears from the court's reference to "provisional use" that Judge Pointer was relying on § 1607.9 of the EEOC Guidelines in holding the Board free from liability pending its receipt of the final validation studies report.[27] Section 1607.9 "authorize[s] provisional use of tests, pending new validation efforts, in certain very limited circumstances." Albemarle Paper Co. v. Moody, supra, 422 U.S. at 436, 95 S.Ct. at 2380. Section 1607.9 reads in full:
§ 1607.9 Continued use of tests.
Under certain conditions, a person may be permitted to continue the use of a test which is not at the moment fully supported by the required evidence of validity. If, for example, determination of criterion-related validity in a specific setting is practicable and required but not yet obtained, the use of the test may continue: Provided: (a) The person can cite substantial evidence of validity as described in § 1607.7(a) and (b); and (b) he has in progress validation procedures which are designed to produce, within a reasonable time, the additional data required. It is expected also that the person may have to alter or suspend test cutoff scores so that score ranges broad enough to permit the identification of criterion-related validity will be obtained.
Section 1607.7 of the EEOC Guidelines provides that where it is not feasible to conduct a proper validation study,
evidence from validity studies conducted in other organizations, such as that reported in test manuals and professional literature, may be considered acceptable when: (a) The studies pertain to jobs which are comparable (i. e., have basically 824*824 the same task elements), and (b) there are no major differences in contextual variables or sample composition which are likely to significantly affect validity. Any person citing evidence from other validity studies as evidence of test validity for his own jobs must substantiate in detail job comparability and must demonstrate the absence of contextual or sample differences cited in paragraphs (a) and (b) of this section.
To justify use of the 10-C and 20-B under § 1607.9, the Personnel Board should have shown (1) that validation studies done elsewhere, as described in § 1607.7, provided substantial evidence of validity[28] and, (2) that at all relevant times the Board had in

progress validation procedures designed to produce, within a reasonable time, the additional data required. The district court did not determine whether either of these conditions was satisfied. Because we believe that this determination "is a matter best decided in the first instance by the District Court," Albemarle Paper Co. v. Moody, supra, 422 U.S. at 436, 95 S.Ct. at 2380, we remand to the district court to ascertain whether the conditions were met.
If the district court, upon remand, finds that use of the tests was permissible under § 1607.9 until the Board received the final results of the validation studies, and if the court also finds that the Board in good faith relied upon § 1607.9, then the district court would be correct in starting Title VII liability on April 25, 1975 (police test), and July 8, 1976 (firefighter test). The natural reading of EEOC Guideline § 1607.9 (as it was in effect at all times relevant to this proceeding[29]), especially when read in light of Title VII, § 713(b), is that an employer will be immune from liability during the period of permissible provisional use of an unvalidated test. Section 713(b) of Title VII provides a defense to an employer who complies with, and relies in good faith upon, EEOC Guidelines, such as § 1607.9.[30] Section 713(b) provides:
In any action or proceeding based on any alleged unlawful employment practice, no 825*825 person shall be subject to any liability or punishment for or on account of (1) the commission by such person of an unlawful employment practice if he pleads and proves that the act or omission complained of was in good faith, in conformity with, and in reliance on any written interpretation or opinion of the [EEOC].[31]
If, however, the district court, upon remand, finds that the conditions for § 1607.9 provisional use were not satisfied or that the Board did not in good faith rely upon that section while awaiting the final results of the validation studies, then the court must mark March 24, 1972, as the date of violation of Title VII, with respect to both tests. A new remedy must then be fashioned by the court to correct the discrimination caused by use of the tests from that date forward.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
[1] Also named as defendants in the Martin suit are the Director of the Jefferson County Personnel Board and three Jefferson County Commissioners.
[2] Defendants in the government's suit other than the Personnel Board are Jefferson County, the County Depar tment of Public Health, and the cities of Bessemer, Birmingham, Fairfield, Fultondale, Gardendale, Homewood, HueyTown, Midfield, Mountainbrook, Pleasant Grove, Tarrant, and Vestavia Hills.
[3] At trial, plaintiffs dropped their attack on the Office Worker test administered bythe Personnel Board and also dropped their claim that the police and fire tests discrim inate on the basis of sex.
[4] The district court's opinion and order is reported at 13 Empl.Prac.Dec. (E.P.D .) ¶ 11, 504

[5] The district court found that the Personnel Board's use of the tests in issue is not motivated by intentional discrimination. The parties do not dispute this finding. This appeal, therefore, is restricted to Title VII issues.
[6] Specifically, the Court ordered that blacks be referred for openings on the police and firefighter forces at the rate at which they took the tests when most recently administered. To accomplish this, the Court ordered that the names of a sufficient number of blacks be added to the current police and firefighter eligibilitylists so that the lists shall be representative of the racial composition of the test-takers, i. e., 28 and 14 percent black for police and firefighter lists, respectively; that, one-third of future certifications, i. e., referrals from the lists for actual employment, are to be black until, considering all certifications since the relevant 1975 and 1976 dates, the numbers of certifications become representative of the racial composition of the test-takers. Thereafter, blacks are to be certified in accordance with their representation on the lists, i. e., 28 and 14 percent of certifications for policemen and firefighters, respectively, will be black. Similarly, referrals from future lists will be a function of the rate at which blacks take the examinations on which the lists are based, until or unless defendants develop valid tests. 13 E.P.D. at 6807 -08.
[7] The Educational Testing Service, Inc. filed a brief as amicus curiae urging reversal of the district court's holding that the tests violate Title VII.
[8] The International Personnel Management Association was formerlythe Public Personnel Association.
[9] Since April 10, 1974, only 80 of the 120 questions have been used in grading the 10 -C test. We have examined the tests and note in passing that a very substantial number of the questions seem to be aimed primarilyat verbal or mathematical ability.
[10] The raw score which constitutes a passing grade fluctuates, depending on the number of vacancies anticipated and other factors.
[11] "Validation" is the process of determining whether a selection device is sufficientlyjob -related to comply with the requirements of Title VII. See Uniform Guidelines on Employee Selection Procedure [hereinafter referred to as Uniform Guidelines], 43 Fed.Reg. 38290, 38291 (August 25, 1978). There are three basic methods of validation: "`criterion' validity (demonstrated byidentifying criteria that indicate successful job performance and then correl ating test scores and the criteria so identified); `construct' validity (demonstrated byexaminations structured to measure the degree to which job applicants have identifiable characteristics that have been determined to be important in successful job performance); and `content' validity (demonstrated bytests whose content closelyapproximate tasks to be performed on the job by the applicant)." Washington v. Davis, 426 U.S. 229, 247, 96 S.Ct. 2040, 2051, 48 L.Ed.2d 597 n.13 (1976); see Uniform Guidelines, § 5, 43 Fed.Reg. at 38298.
The Uniform Guidelines cited in this footnote were adopted on August 25, 1978, by the Equal Employment Opportunity Commission (EEOC), the Civil Service Commission (CSC), the Department of Labor (DOL), and the Department of Justice (DOJ), and are codified in the 1979 editions of 29 C.F.R. § 1607 (EEOC); 5 C.F.R. § 300.103(c) (CSC); 41 C.F.R. § 60-3 (DOL); and 28 C.F.R. § 50.14 (DOJ). The Guidelines, effective September 25, 1978, supersede the guidelines on employee selection procedure previouslyissued bythe EEOC and the DOJ (the DOJ Guidelines were issued jointlywith the DOL and CSC). With the exception of its provision on interim use of unvalidated tests, discussed below, the Uniform Guidelines are consistent, in all matters pertinent to this case, with the EEOC and DOJ Guidelines. This opinion shall refer to the EEOC and DOJ Guidelines as well as to the Uniform Guidelines; citations to the former will be to the 1978 C.F.R., citations to the latter will be to the Federal Register.
[12] The Personnel Board, in 1970, initiated a preliminary, in-house, validation studyof the 10-C police officer test. This study, developed by Eugene Williams, Chief Examiner of the Board, was not designed to meet the validation requirements of Title VII and was not relied upon by the district court in assessing the validity of the 10 -C.
The studies upon which the district court based its holding of no job -relatedness, and which are the subjects of our review, were conducted by Drs. William McLaurian and William Farrar, psychologyprofessors at the University of Alabama in Birmingham. The McLaurian-Farrar studies examined both the 10-C police officer test and the 20-B firefighter test. The final results of these studies , (the studies began in 1972) were reported to the Personnel Board on August 25, 1975, with respect to the 10-C and on July 8, 1976, with respect to the 20-B.
[13] Explanation of a few statistical concepts is in order. We quote at length from the government's brief:

Statistically, the degree of correlation between two variables (e. g., entrance exam scores and s ubsequent school grades) is expressed as a `correlation coefficient' on a scale running from + 1.0 to -1.0. A perfect positive correlation (e. g., entrance exam scores exactly predict subsequent school grades, with the higher exam scores predicting the best grades) would be expressed as + 1.0, and a perfect negative correlation (e. g., entrance exam scores exactly predict subsequent school grades, except in reverse, with the lower exam scores predicting the best grades) would be expressed as -1.0. Where the two variables had absolutelyno relationship to each other, the correlation coefficient would be .0. The closer a correlation coefficient is to either + 1.0 or -1.0, the `higher the magnitude' of the correlation; and the closer it is to .0, the `lower the magnitude.' Mueller, Schuessler & Castner,Statistical Reasoning in Sociology, 2d Ed., at p. 315.
Because a purely random drawing of a sample is liable to produce a correlation coefficient which is somewhat off an absolute .0, the concept of statistical significance becomes relevant. The concept is tied to the statistical theoryof probabilityand is dependent upon the number of people in the sample. Generally, if a correlation coefficient is so low that, on the basis of the sample size involved, more than 1 in 20 random drawings could be expected to produce a correlation at least as great, that correlation coefficient is considered not to be statisticallysignificant, or simplyto b e the same as a correlation coefficient of .0. On the other hand, if the obtained coefficient could be expected to reoccur no more than once in 20 random drawings, it is considered statisticallysignificant, the statistical indication for which is p<.05. A correlation coefficient of the obtained magnitude which could not be exp ected to occur by chance more than once in 100 random drawings is expressed as p<.01. Mueller, et al., pp. 394, et seq.
[14] The court pointed out that "for the most part the correlation between academygrades and measures of job performance are not significant and, in the few instances where significant correlations are found, the findings are mixed, some being positive and others being negative. A negative correlation, of course, indicates that the higher the academygrades, the lower the performance ratings tend to be." 13 E.P.D. at 6802.
[15] Practical or operational significance is required bythe guidelines. Uniform Guidelines, § 14B(6), 43 Fed.Reg. at 38301; EEOC Guidelines, 29 C.F.R. § 1607.5(c)(2); DOJ Guideli nes 28 C.F.R. Part 50.14 § 12B(5). Judge Pointer's finding that the 10-C lacks practical significance was reached through painstaking application of several different statistical approaches, see 13 E.P.D. at 6803-06; additionally, as permitted by the guidelines, the judge's inquiryinto practical significance considered,inter alia, the degree of adverse impact of the 10-C. Id. at 6806.
[16] The Board's principal criticism of the findings below is the alleged failure of Judge Pointer to apply a "corrected coefficient," which would make the statistics relating to the police test more favorable to the Board. The Boa rd has not convinced us that the district court failed to give proper consideration to the "corrected coefficient." A careful reading of Judge Pointer's opinion makes it apparent that the judge recognized that the "corrected coefficient" is based on several assumptions, and the judge, accordinglyand properly, used the "corrected coefficient" with due regard for its dependence on these assumptions. The crucial finding of the district court, which was reached after careful and comprehensive consideration of all the facts and circumstances, is that the validation study showed that the police test is predictive of better job performance, but that the magnitude of the positive prediction is so low that the test is worthless for all practical purposes. We cannot conclude that this finding is clearly erroneous.
The Board's only other significant attack on the district court's findings is its suggestion that several of the statistical approaches used byJudge Pointer in analyzing the operational utilityof the polic e test were inappropriate. The Board has not convinced us in this regard. However, even if we should eliminate from our consideration all of the statistical approaches used bythe district judge except the two approved by the Board, namely, the Taylor -Russell approach and the Anastasi approach, we still could not label as clearly erroneous the district court's finding that the police test is not appropriate for operational use.
[17] The Board contends that this interpretation of Washington v. Davis was adopted by the Supreme Court in its summaryaffirmance of the three-judge District Court decision in United States v. South Carolina, 445 F.Supp. 1094 (D.S.C.) aff'd. 434 U.S. 1026, 98 S.Ct. 756, 54 L.Ed.2d 775 (1978). The Board's reliance on United States v. South Carolina is misplaced for three reasons. (1) "[T]he precedential effect of a summaryaffirmance can extend no farther than `the precise issues presented [in the jurisdictional statement required bySupreme Court Rule 15] and necessarilydecided by those actions.'" Illinois State Board of Elections v. Socialist Workers' Party, 440 U.S. 173, 182, 99 S.Ct. 983, 990, 59 L.Ed.2d 230 (1979); Washington v. Confederated Bands and Trib es of the Yakima Indian Nation, 439 U.S. 463, 477 n.20, 99 S.Ct. 740, 750 n.20, 58 L.Ed.2d 740 (1979);Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199 (1977). We have examined the jurisdictional statement filed with the Supreme Court in United States v. South Carolinaand determined that neither of the two issues presented specifically addresses the Washington v. Davis question of validation against training. (2) A summaryaffirmance affirms onlythe judgment and not the reasoning of the court below. Illinois State Board of Elections v. Socialist Workers' Party,

supra, 440 U.S. at 182-83, 99 S.Ct. at 989-990; Washington v. Confederated Bands and Trib es of the Yakima Indian Nation, supra, 439 U.S. at 477 n.20, 99 S.Ct. at 750 n.20; Mandel v. Bradley, supra,432 U.S. at 176, 97 S.Ct. at 2240. Therefore, the three-judge District Court's interpretation ofWashington v. Davis, to the extent that interpretation differs from our own, is not binding on this Court. (3) United States v. South Carolina is factually distinguishable from the instant case. The State of South Carolina used minimum score requirements on the National Teachers Examination to certify and determine the pay levels of teachers within the State. A content validity study demonstrated that the content of the exam matched the content of teacher training programs in South Carolina, and that the minimum score requirement correlated to the minimum amount of knowledge necessaryto effective teaching. 445 F.Supp. at 1112-14. See also id. at 1107. After a certain date, examinees who did not achieve the minimum score, and thus lacked the minimum amount of knowledge to teach effectively, were not certified. Before that date, most examinees who did not achieve the minimum score were certified, but their compensation was less than those who scored the minimum. Id. at 1105-06 & n.12. Thus, the test in South Carolina was used solelyas a measure of minimal competence to teach, much as the test in Washington v. Davis was used to determine a minimum level of required competence. In contrast, the instant tests were used not to determine minimum competence to perform as policemen or firefighters, but for ranking purposes unrelated to minimum competence.
[18] Some authorities suggest that Washington v. Davis has no application to Title VII because the action in Davis was brought under the due process clause of the Fifth Amendment, 42 U.S.C. § 1981, and D.C.Code § 1 320, and not Title VII. See, e. g. Guardians Association of the New York City Police Department, Inc. v. Civil Service Commission of the City of New York, 431 F.Supp. 526 (S.D.N.Y.),vacated and remanded on other grounds, 562 F.2d 38 (2nd Cir. 1977). See also Davis, 426 U.S. at 255, 96 S.Ct. at 2054 (Stevens, J., concurring). Since we conclude that Washington v. Davis is factually distinguishable, we do not reach the question of its application to Title VII.
[19] In this case, Judge Pointer found that neither test predicts successful completion of the training programs. See n.23, infra.
[20] Defendants' argument to the district court was that, "Undeniably, a police recruit must have the minimum reading skills in order to complete the curriculum at the Training Academy ... Test 21 merelymakes certain that a potential recruit has the minimum skills in reading and verbal ability." Memorandum in Support of Defendants Ham pton, Spain and Andolsek's Motion for SummaryJudgment, U.S. Supreme Court Records, Briefs at 97, FO-0097-75 (1975).
[21] Other courts similarlyrefuse to read Washington v. Davis as establishing that selection devices maybe validated for Title VII purposes without regard to job performance. See, e. g., Blake v. City of Los Angeles, 595 F.2d 1367, 1382 n.17 (9th Cir. 1979), petition for cert. filed, 48 U.S.L.W. 3125 (U.S. July 12, 1979) (No. 79-54); Guardians Association of the New York City Police Department, Inc. v. Civil Service Commission of the City of New York, 431 F.Supp. 526, 548-49 (S.D.N.Y.), vacated and remanded on other grounds, 562 F.2d 38 (2d Cir. 1977). But see, United States v. Virginia, 454 F.Supp. 1077, 1100-01 (E.D.Va.1978).
[22] The agency guidelines require that a criteria-related validity study, such as the one at bar, show a positive relationship between the challenged test and job performance. Uniform Guidelines, § 5B, 43 Fed.Reg. at 38298. These guidelines, while not binding on the courts, are entitled to great deference.Alb emarle Paper Company v. Moody, 422 U.S. 405, 431, 95 S.Ct. 2362, 2378, 45 L.Ed.2d 280 (1975); Thomas v. E.I. duPont de Nemours & Company, 574 F.2d 1324, 1331 n.9 (5th Cir. 1978);Pettway v. American Cast Iron Pipe Company, 494 F.2d 211, 221 (5th Cir. 1973), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979); United States v. Georgia Power Company, 474 F.2d 906, 913 (5th Cir. 1973).
[23] Indeed, the district court found the tests inappropriate even for the limited purpose of determining whether an applicant has the minimum capacityto complete training. The court found that neither test is a valid predictor of ability to pass the training curriculum. 13 E.P.D. at 6802-03. It should also be noted that the Personnel Board has not contended on this appeal for such limited, Davis—sanctioned, use of the tests.
[24] The guidelines also distinguish tests used for screening from tests used for ranking. To validate the latter under a criterion-related study, "the user need show mathematical support for the proposition that persons who receive higher scores on the [selection] procedure are likely to perform better on the job." Questions and Answers to Clarifyand Provide a Common Interpretation of the Uniform Guidelines on Employee Selection Procedures, 44 Fed.Reg. 11996, 12005 (Question & Answer 62).
[25] As previouslynoted, the Board's validation studies do show that the tests predict a cadamygrades. However, acadamygrades cannot be used as the criterion with which the tests are compared, because the district court found

that acadamygrades do not themselves predict job performance. See Blake, supra, 595 F.2d at 1382; Vulcan Society of the New York City Fire Department, Inc. v. Civil Service Commission, 490 F.2d 387, 396 n.11 (2d Cir. 1973). "`The entire rationale of a criterion-related study requires that the criterion with which the test results are compared b e a good measure of job performance.'" James v. Stockham Valves and Fittings Co., 559 F.2d 310, 340 (5th Cir. 1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978), quoting United States v. City of Chicago, supra, 549 F.2d at 433.
[26] The Board started using the police and fire tests on August 18, 1967, and October 23, 1968, respectively.
[27] It appears also that in fixing the date of Title VII liability, the district court considered the good faith and lack of discriminatoryintent of the Board in adopting and using the 10 -C and 20-B. The court observed that the Board was compelled bystate law to administer employment tests to screen and rank applicants; that the Board selected the 10 C and 20-B in the late 1960's "as the best tests then available, with the hope that black applicants would fare better than under previous tests"; that the Board conducted a preliminary, in -house, validitystudy of the tests even before it became subject to Title VII; and that, "at least since 1965 the Board has not intentionallydiscriminated against black applicants." 13 E.P.D. at 6806-6807. We do not question the court's finding that the Board acted in good faith and without discriminatoryintent. However, to the extent that this finding influenced the court's determination as to when liabilitycommenced, error was committed. Absence of discriminatoryintent is no defense in a Title VII disparate impact case. Griggs v. Duke Power Co., supra, 401 U.S. at 432, 91 S.Ct. at 854; Alb emarle Paper Co. v. Moody, supra, 422 U.S. at 422, 95 S.Ct. at 2373.
[28] The first condition for interim use under § 1607.9 is that "(a) The person can cite substantial evid ence of validity as describ ed in § 1607.7(a) and (b )." (Emphasis supplied). Thus, unless an employer cites to other validity studies which meet the requirements of § 1607.7, he has not satisfied § 1607.9(a). This condition lends objectivityto § 1607.9(a)'s substantial evidence requirement, and does not place an onerous burden on employers. Compare Friend v. Leidinger, 446 F.Supp. 361, 370 (E.D.Va.1977) (alternative holding sustained the City of Richmond's use of firefighter tests under § 1607.9 where tests had been proven job -related in a California validity study), aff'd. 588 F.2d 61 (4th Cir. 1978); Buckner v. Goodyear Tire and Rub ber Co., 339 F.Supp. 1108, 1115 (N.D.Ala.1972), aff'd.(and district court opinion adopted), 476 F.2d 1287 (5th Cir. 1973) (provisional use of tests permitted where validation studies at another Goodyear plant were a vailable). § 1607.9's incorporation of the requirements of § 1607.7 is especiallyreasonable in light of the fact that § 1607.9 permits use of a test, possibly under the cloak of immunityas discussed below, which has a discriminatoryimpact.
[29] After the dates fixed by the district court for the commencement of Title VII liability, two new sets of guidelines on employee selection procedure were issued: the Department of Justice Guidelines (effective November 17, 1976) and the Uniform Guidelines (effective September 25, 1978). See supra, n.11. Both the DOJ Guidelines and the Uniform Guidelines contain provisions on interim use which expresslydeny an employer immunityin the event his pending validation study does not ultimately establish validity. See DOJ Guidelines § 5(h), 28 C.F.R. Part 50.14 ("If the additional studies do not produce the data required to dem onstrate validity, the user is not relieved of or protected against any obligations arising under federal law."); Uniform Guidelines, supra, n.11, § 5J, 43 Fed.Reg. at 38298 ("If the study does not demonstrate validity, this provision of these guidelines for interim use shall not constitute a defense in any action, nor shall it relieve the user of any obligations arising under Federal law."). Had the DOJ or Uniform Guidelines been in effect during the pendencyof the Personnel Board's validation studies, a different issue would be presented. However, at all times relevant to the instant proceedings, onlythe EEOC Guidelines, as they were in effect before the adoption of the Uniform Guidelines, were in force. The EEOC Guidelines do not contain a disclaimer of immunitysimilar to that contained in the DOJ and Uniform Guidelines.
[30] Friend v. Leidinger, 446 F.Supp. 361, 370 (E.D.Va.1977), aff'd. 588 F.2d 61 (4th Cir. 1978) (Title VII, § 713(b) extends immunityduring § 1607.9 interim use).
[31] By holding that the Board would not be subject to liabilityduring the period it satisfied and relied u pon § 1607.9, we are not, as plaintiffs contend, assuming that a grace period should be implied for public employers similar to the one-year grace period expresslyaccorded private employers (Title VII, § 716(a)), when Title VII was first enacted. See Blake v. City of Los Angeles, supra, 595 F.2d at 1376-77 (refusing to implygrace period for public employers). Rather, our holding is based on the immunitywhich Title VII, § 713(b) extends to an employer who complies with, and relies in good faith upon, the EEOC Guidelines.

 
 N.A.A.C.P., Ensley Branch v. Seibels, Not Reported in F.Supp. (1977)
1977 WL 806 United States District Court, N.D. Alabama, Southern Division.
Ensley Branch of the N.A.A.C.P., Plaintiff v.
George Seibels et al., Defendants. John W. Martin et al., Plaintiffs
v. City of Birmingham et al., Defendants.
United States of America, Plaintiff v.
Jefferson County et al., Defendants. Lucy Walker et al., Plaintiffs v.
Jefferson County Home et al., Defendants.
Civil Action No. CA 74-2-12-S | Civil Action No. CA 74-Z-17-S | Civil Action No. CA 75-P-0666-S | Civil Action No. CA 76-M-2047-S | January 10, 1977
Opinion
POINTER, D.J.
Memorandum of Opinion
*1 Since 1945 the Personnel Board of Jefferson County has been charged under state law with the duty of periodically administering examinations to “fairly test the relative capacity and fitness” of applicants for positions with local governmental agencies.1 1940 Ala. Code Appx. §§ 645, et seq. (Recomp. 1958). Those who pass are ranked on an eligibility list in the order of their exam scores.2 As vacancies occur, the three persons then at the top of the list are certified to the employing agency for final selection, the appointments being probationary in nature for the first twelve months.3 An applicant’s name may be removed from the eligibility list after having three times been certified and refused employment.
This litigation challenges the employment practices of the governmental agencies as discriminatory on the basis of race, color, and sex, and includes an attack upon the examinations administered by the Personnel Board. Presently at issue, following a trial held December 20-22, 1976, are the tests currently used to screen applicants for positions as police officers, deputy sheriffs,4 and firefighters.5
An attack upon the police and firefighters exams is certainly understandable when one considers that, although the relevant labor pool is over 25% black, yet on June 30, 1976, only 56 (or 6.5%) of the 860 police officers were black and only 9 (or 1.4%) of the 630 firefighters were black. These statistics may, however, be misleading for purposes of this lawsuit because they include the historical results of hiring practices employed long before passage of the Equal Employment Opportunity Act of 1972 or, indeed, before utilization of the tests under scrutiny at this time.
The principal focus should rather be upon the events of more recent years, with particular attention upon practices subsequent to March 24, 1972, when Title VII of the Civil Rights Act of 1964 was made applicable to the Personnel Board and the governmental agencies which it serves. Likewise, information as to the general labor pool in the area is of only marginal importance when one has, as we do, extensive data as to actual applicants for positions and there is no evidence that minority applications have been depressed by prior employment practices.
Adoption of the Current Tests
1

N.A.A.C.P., Ensley Branch v. Seibels, Not Reported in F.Supp. (1977)
*2 In late 1965, following an independent study as to why no blacks were then employed as police officers in the City of Birmingham, the Personnel Board decided to replace its police and firefighter exams with tests developed by the Public Personnel Association, now known as the International Personnel Management Association. IPMA tests were being widely used in other parts of the country and were considered by the Board as superior to other tests then available. The change was part of a multi-faceted program intended to increase black participation in governmental positions. (See Appendix C to X-342). Policeman Test 10-C and Firefighter Test 20-B have been in use since August 18, 1967, and October 23, 1968, respectively, as the screening examinations for these positions under the state-mandated selection procedure,6 although at times other tests have been administered for experimental purposes or for validation studies. Since April 10, 1974, a modified scoring key (based upon only 80 of the 120 test items) has been employed in grading the 10-C test for purposes of the eligibility list. This modification was made at the recommendation of qualified independent consultants who, after study, concluded that the scoring change would increase validity of the test for black applicants.
Intent
It is clear that the Personnel Board, in performing its functions as an employment agency for the various local governments, has not intentionally discriminated against blacks. Indeed, at least since 1965, the Board has not only sought to provide non-discriminatory opportunities for black applicants, but also attempted, within the limits of its statutory duties, to rectify the racial imbalances in local government employment. Some mention of these aims and efforts is appropriate.
It was the Board’s hope that adoption of the tests now in issue would benefit black applicants, while nevertheless providing a fair “test of the relative capacity and fitness” of all applicants, as required by state law. Immediately, a study was undertaken to ascertain whether the IPMA policeman test, although a paper and pencil test, would correlate positively and significantly with a widely used non-verbal performance test of general intelligence, the Revised Beta Examination–and it did. As successful applicants were employed by the city of Birmingham, were trained at the police academy, and entered performance of their duties, information was incorporated into the Board’s on-going validation studies–which, while lacking sufficient blacks in the sample (only 6 in the 10-C sample) to permit full analysis, were considered by the Board as justifying further usage of the 10-C.7 These studies are presented by the Board not as satisfying the requirements of the EEOC or Department of Justice guidelines on tests, but rather as indicating its efforts to see that its examinations were fair predictors of job performance even at a time when it was not subject to the provisions of Title VII. As already noted, when, in 1974, it was advised by independent consultants that a modification of the scoring of the 10-C exam would improve the validity for black applicants, it immediately put that change into effect.
*3 Since 1965 the Board, with the cooperation of local civic groups and some of the employing agencies, has been actively engaged in recruitment efforts to attract black applicants. In 1966 it began assuming the $10.00 medical examination costs for newly hired persons; and in 1967 it was successful in sponsoring legislation to eliminate the $1.50 examination fee previously required and to eliminate the priority previously given applicants who resided within an employing agency’s jurisdiction.8 It has experimented with a lowering of the raw score used to measure a “passing” grade on the exams where it could justify that approach on the basis of “supply” and “demand”.
In short, in its selection, administration and use of the 10-C and 20-B tests, there has been no design or intent on the part of the Board to discriminate on the basis of race or color. However, the standard under Title VII of the Civil Rights Act of 1964 is not so limited9–rather, if the operational effect of test usage is to discriminate against blacks, then it is proscribed unless it is shown to be a “job related” requirement,10 with a “manifest relation to the employment in question.”11 See U.S.C.A. § 2000e-2(h). In this inquiry the court is to follow the guidelines adopted by the EEOC and, more recently (November 17, 1976), by the Department of Justice (DOJ), absent some “cogent reason.”12 See Watkins v. Scott Paper Co., 530 F.2d 1159 (CA5 1976). Also instructive are the 1974 A.P.A. Standards for Educational & Psychological Tests and the 1975 Principles for the Validation and Use of Personnel Selection Procedures of the A.P.A.’s Division 14.
Adverse Impact
Where the total selection process has an adverse impact upon a substantial racial group in the labor market, the individual components of that process–such as a screening test–are also to be evaluated for adverse impact. DOJ Guidelines § 4b. For
2

N.A.A.C.P., Ensley Branch v. Seibels, Not Reported in F.Supp. (1977)
purpose of this two-step analysis, data can be extracted from the evidence pertaining to administrations of the 10-C and 20-B tests which have been used for employment decisions after March 24, 1972:13
TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE *4 According to the DOJ Guidelines, § 4b, “A selection rate for any racial * * * group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded as evidence of adverse impact * * *. Greater differences in selection rate would not necessarily be regarded as constituting adverse impact where the differences are based on small numbers and are not statistically significant, or where special recruiting or other programs cause the pool of minority * * * candidates to be atypical of the normal pool of applicants from that group.”
So far as the total selection process is concerned, one finds from the above data that the hiring rates for blacks (6.6% of the black applicants on 10-C and 3.2% of the black applicants on 20-B) are substantially less than eighty percent of the hiring rates for whites (23.3% and 14.1%, respectively). These greater differences in selection rates cannot be explained on the basis of inadequate numbers and, according to the court’s calculations, are statistically significant: the phi coefficient for the 10-C test is .193 and for the 20-B is .121, both of which are significant at rho < .001.
Looking at the data pertinent to the test component of the selection process, one finds again that the pass rates for blacks (48.6% for 10-C and 24.2% for 20-B) are substantially less than eighty percent of the pass rates for whites (90.2% and 82.5%, respectively). And again, according to the court’s calculations, these greater differences in pass rates, which are based upon samples of adequate size, are statistically significant: the phi coefficient for the 10-C test is .46 and for the 20-B is .48, both being significant at rho < .001. Also of importance is the fact that, of the blacks who did pass the tests, 85.4% placed in the lower half of the initial eligibility lists for police officers and 89.9% placed in the lower half of the firefighter lists.14
Some concern can justifiably be expressed that the special recruiting efforts undertaken by the Personnel Board and other groups to attract black applicants–while commendable as an affirmative action to overcome racial imbalance in the police and firefighter forces–may at the same time have resulted in an atypical pool of blacks taking the test, producing distortion in the test performances of the black applicants. For example, the black applicants may have included many who were not seriously interested or motivated with respect to the jobs in question, thereby affecting their test performances. Absent, however, any hard data to support such an hypothesis or to indicate its magnitude, the court, impressed with the substantial differences in hire rates and pass rates for the two racial groups, must conclude that the overall selection procedures in effect since March 24, 1972, and as a component part thereof the tests used for those purposes, have had an adverse impact on blacks.
Validation Studies
*5 According to EEOC Guidelines § 1607.3, “the use of any test which adversely affects hiring * * * of classes protected by Title VII constitutes discrimination unless (a) the test has been validated and evidences a high degree of utility as hereinafter described * * *.” For the purpose of making such validation studies of its many tests, the Board in 1972 contracted with Drs. William E. Farrar and William A. McLaurin, Professors in the Psychology Department of the University of Alabama at Birmingham. Both had experience with personnel selection procedures in public employment systems. Priority, but not exclusive attention, was to be given to the police and firefighter tests, and their work on these tests began in late 1972. Their studies respecting the two tests continued even to the time of trial, with various reports being made in each of the years 1973, 1974, 1975 and 1976. That their work was not complete before trial does not suggest inattention; rather, it is indicative that their studies were intended to be thorough and were directed to numerous tests.15
Psychometric Analyses
The 10-C and 20-B tests are paper-and-pencil instruments, each consisting of 120 multiple choice items.16 The initial concern of Drs. Farrar and McLaurin was directed to the reliability,17 item difficulty,18 and item discrimination19 of the tests. The following findings were made:
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N.A.A.C.P., Ensley Branch v. Seibels, Not Reported in F.Supp. (1977)
*6 Inquiry into reliability is a proper first step, because, while no test is perfectly reliable, a test which is not reliable is not valid for any purpose. The consultants found the reliability coefficients for both tests to be of sufficient magnitude to indicate satisfactory reliability. They did acknowledge that the methods selected for this purpose were essentially measures of internal consistency (and with the KR-20 formula, of content homogeneity), but apparently believed it either not feasible or not necessary to investigate error variance due to time sampling. The court agrees as to reliability and notes that possible lack of stability over time is, in a sense, mitigated by the fact that applicants may take an exam on more than one administration.
Analyses of item difficulty and discrimination have no direct bearing upon the validation studies before the court. However, they do reflect an investigation into possible modification or supplementation of the tests to improve their utility and reduce the extent of adverse impact, which is a recommended procedure.20 See DOJ Guidelines, § 3c.
Documentation and Methodology
The EEOC Guidelines, at §§ 1607.5(b)(2,3,5) and 1607.6, require that various items of information (e.g. copies of tests, manuals, rating forms and instructions and representations of statistical data) be included in the report of the study or otherwise available for inspection. Following the 1974 A.P.A. Standards, a more extensive list of documentation requirements is specified in the DOJ Guidelines at §§ 4a and 13b, involving some twenty-four “essential” items and several other desirable items. The Farrar-McLaurin studies satisfy the EEOC requirements, which were the only ones in effect when their studies were conducted and (so far as then feasible) completed and, indeed, when supplemented by evidence presented immediately before and during trial, they also substantially satisfy the DOJ requirements, which became effective on November 23, 1976.21
*7 The studies include presentations of the following statistics:
For the 10-C test:
?? intercorrelation coefficients, r and rc, for 109 Birmingham police officers (without separation by race) respecting their 10-C scores, police academy scores (school average and course grades) and latest efficiency ratings.
?? means, standard deviations, and t tests for difference in means for 10-C scores of 38 black and 101 white Birmingham police officers.
?? means, standard deviations, and r coefficients for 59 Birmingham police officers (without separation by race) respecting their 10-C scores, academy scores (average and courses) and latest efficiency ratings.
?? means, standard deviations, r coefficients, and t tests for the following:
?? 20 black and 76 white Birmingham police officers respecting their 10-C scores, academy averages, and latest efficiency ratings.
?? 8 black and 140 white Birmingham police officers respecting their 10-C scores, academy scores (average and courses), latest efficiency ratings (overall and by sub-parts), and experimental ratings weighted average and by components.
?? 49 black and 140 white police officers respecting their 10-C scores and academy scores (average and courses). (Also included are data for analyzing significance of differences in correlation coefficients through z transformations.)
?? 83 Jefferson County deputy sheriffs (without separation by race) respecting their 10-C scores and academy averages.
?? 77 police officers (without separation by race) from other cities served by the Personnel Board respecting their 10-C scores and academy averages.
For the 20-B test: means, standard deviations, and r coefficients for the following:
?? 162 Birmingham firefighters (without separation by race) respecting the 20-B scores, training academy average, and latest efficiency ratings (overall and by sub-parts).
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?? 196 Birmingham firefighters (without separation by race) respecting their 20-B scores, academy averages, latest efficiency ratings, and experimental ratings (overall and by components). Statistics are reported separately for short-tenure and long-tenure firefighters, using three years of experience as the point of division. Statistics found to be significant at rho < .05 and rho < .01 are so identified in the report.
Some comment should be made about selection and composition of the different samples. Each sample contained all the persons for whom, so far as was known at the time by the consultants, the data needed for that study was available. The different studies were, however, conducted over a period of several years as either the need was recognized or the particular inquiry became technically feasible; and during the time intervals the work force had changed. Some of the studies involved concern with additional factors (e.g., performance on the Raven and PAS tests, which have been under consideration for use as supplemental or alternative screening instruments), for whom the data existed only for a limited number of applicants or employees. The result is that a particular sample may contain some, but not necessarily all, of the persons in another sample and may also contain some persons who were not in the other sample. This lack of autonomy or consistency complicates somewhat the process of analysis, but, under the circumstances, is acceptable. There is no hint of contrivance in selection of the samples or of lack of representativeness of the sample subjects.22
Criteria
*8 The several criterion-measures (academy grades, efficiency ratings, and experimental ratings) have certain common factors: (1) None appears to be “contaminated” (i.e., affected by knowledge by the rater or scorer of prior score on the 10-C or 20-B). (2) None has been subjected to special statistical scrutiny to detect or control possible bias among raters or graders.23 (3) None has been subjected to special statistical scrutiny for reliability.24 (4) Each has been analyzed by the consultants for relevancy (i.e., the extent to which it may be considered as a measure of critical or important work behaviors). Each of the measures has, of course, its own special characteristics and limitations, which will be described separately. It must be emphasized that, in a criterion-related validation study, one is attempting to estimate the extent to which a score on a “predictor” (e.g., 10-C test) can predict job performance (i.e., as a police officer) through evaluating its ability to predict scores or ratings on a “criterion” (e.g., academy average)–and hence the study is subject to any limitations which those same criteria have in either predicting or assessing job performance.
(1) Academy Grades.–Where, as here, new employees are required to complete special training before performing their duties, successful completion of that training may properly be used as a criterion-measure, if, that is, the training is intended to, and does, provide skills or knowledge needed for performance of the job. Based upon the evidence presented, including testimony of the directors of the Birmingham police and fire academies, the court finds that the two schools do serve that purpose and function.
*9 Relative standing or ranking among students who successfully complete such training is not, however, as such, an appropriate criterion.25 Rather, to be relevant as a criterion, such measures must be shown, empirically or otherwise, to be themselves appropriate predictors of job performance. This, in essence, means a two-step correlation study; and, in a situation where one has data on test scores, academy grades, and measures of job performance for the same group of persons, the more direct inquiry (correlation between test scores and measures of job performance) would be preferred to the two-step approach. Grades on particular courses in the academy must also be analyzed for compatibility with findings respecting grades on other courses.
So far as the evidence indicates, academy grades–provided they are passing scores–have no impact on job opportunities, benefits, etc. If this be the case, then, while helpful in preventing “contamination” during validity studies, academy grades are likely to be influenced by motivational considerations not present in actual job performance. The emphasis in the academies on paper-and-pencil multiple choice items, while providing objectivity, may also reflect a relationship to the paper-and-pencil screening exam not found in job performance. These concerns should cause one to be cautious in making non-empirical judgments about the usefulness of relative academy grades as a criterion-measure.
(2) Efficiency Ratings.–The efficiency ratings given periodically on all employees by their supervisors are direct and, ostensibly, appropriate measures of job performance. Drs. Farrar and McLaurin have, however, acknowledged that these ratings are not trustworthy assessments of the employees’ actual performance. In addition to other problems, the ratings must be discussed between the rating supervisor and the employee and can have important consequences for the employee. These
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ratings were, it seems, used in the early studies because of their availability, in the anticipation that other measures could be developed and administered in due course.
(3) Experimental Ratings.–By review of existing job descriptions, by interviews to determine “critical incidents” of the jobs, and by technical assistance and consultation with advisory committees consisting of representative incumbents and supervisory personnel, new “experimental” rating forms were developed for use in the Farrar-McLaurin studies. The forms consist of twelve rating categories for each of the two jobs, the categories relating to personality characteristics, job knowledge, and abilities found through the process to be relevant to job performance. Each is rated on a seven-point scale (poor = 1 to outstanding = 7), with 3 being fixed as adequate. For the police form, weights were developed by the advisory committee to indicate relative importance of the categories to overall job performance.
*10 Raters–the employes’ supervisors–were given, in person and in writing, standardized instructions for use of the forms. To prevent the “halo” effect, supervisors rated all their subordinates on one category before proceeding to rate them on the next, etc. The raters were told that their evaluations were confidential and would not be used for any purpose other than the evaluation of the tests.
The court is impressed that the experimental rating method so developed represents an appropriate criterion measure for the jobs in question. These jobs are not ones which lend themselves to some objective measure, such as the sales produced by a sales representative. The principal limitations with the ratings so obtained are the lack of evidence as to reliability and the lack of special steps to detect or control possible bias.
Study Findings
Key findings from the Farrar-McLaurin studies are tabulated below. Correlations are shown only where presented in the body or exhibits of their reports. Statistically significant differences in means between two sub-groups (blacks and whites; short-tenure and long-tenure firefighters) are indicated by so designating the lower of the two means.
TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE
Fairness and Differential Validity
If members of one racial group generally obtain lower test scores than members of another group and those differences are not reflected in differences in measures of job performance, there is a need, where technically feasible, to investigate for possible unfairness of the test to the first group. See DOJ Guidelines, § 12b(7) (noting that this need increases the greater the severity of the adverse impact on the lowerscoring group). As the tabulation indicates, the Farrar-McLaurin studies do show that blacks as a group have scored lower on the 10-C than have whites. Indeed, in each of their studies where those scores are reported separately for the two racial groups, the differences are significant at rho < .01.
One possibility is that the predictive validity of the test for one racial group is significantly different than for the other group. The inquiry here, as emphasized in A.P.A. Standard E9, is not whether there are differences in the correlation coefficients or whether one coefficient is statistically significant while the other is not. Rather, the proper statistical procedure is to test for significant differences in the coefficients.
In the one study in which a sufficient26 number of both blacks and whites are involved, Drs. Farrar and McLaurin have performed such an analysis. Using the report of test scores and academy scores for 140 white and 49 black police officers, they tested the correlation coefficients (where the coefficient for either subgroup was significant at rho < .05), after z transformations, for significance of difference. None was significant at rho < .05, and with respect to only one course (accident investigation) was the coefficient significant even at rho < .10.
*11 Failure, however, to reject the hypothesis that the correlation coefficients are the same for both groups is not by itself sufficient to demonstrate fairness. Where, as in the present case, test scores by two groups are used in the same manner for members of both groups, it is on the assumption that in general an individual’s test score will appropriately predict his
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standing on the criterion whether he is a member of one group or the other. The predictive relationship between the test score and the criterion can be represented by a regression line27 formula for converting a test score into a predicted criterion score. While regression lines can be calculated separately for the two groups and will almost always be somewhat different, it is important to know whether the slopes or intercepts (or both) of the lines are sufficiently different to call for abandonment of a common line for the two groups. Otherwise, the common regression line (which is the effect of using test scores in the same way for both groups) may systematically underpredict for members of one group (while overpredicting for the other) their criterion score from a particular test score. The method for this inquiry, called analysis of variance, involves use of the F distribution tables for statistical significance. If desired, one can determine for what test scores the common regression line should, and should not, be abandoned.
Significantly different regression lines may have the same or similar correlation coefficients. In such a situation comparison of the coefficients will not reveal the inappropriateness of using a common regression line. Thus, with the sample containing 76 white and 2028 black police officers, comparison of the coefficients respecting 10-C scores (and modified 10-C scores) and either academy averages or efficiency ratings does not, as to any comparison, lead to rejection of the hypothesis of the coefficients being the same. Yet, when the same data are reviewed by analysis of covariance, as the court has done,29 for the hypothesis that a common regression line fits both whites and blacks, the obtained F ratios are 18.38 (10-C and academy average), 3.97 (10-C and efficiency rating), 26.91 (modified 10-C and academy average), and 4.18 (modified 10-C and efficiency rating), each of which (with n1 = 1 and n2 = 93) is significant at rho < .05. It is interesting that in the development of the modified 80-item scoring key for the 10-C, adopted to increase the validity coefficient for blacks, the evidence becomes stronger that a common regression line should not be used for both groups.
*12 In view of the fact that covariance analysis suggests rejection of a common regression line for both racial groups, one is tempted–since the differences between white and black means appear to be far greater on test scores than on the criterion-measures–to conclude that the performance of blacks is being underpredicted by the 10-C. However, if regression lines are computed separately for blacks and whites using the results of any of the studies where their test scores and criterion scores are reported separately, it will be found that the lines cross and that for test scores below that crossing point the criterion scores thereby predicted for blacks are less than for whites for the same test scores. Above that point there would be underprediction for blacks, but the intersections occur at such high test scores (the lowest point from any of the data is at a raw test score of 87) that few blacks would actually be affected. If one looks to see where any overprediction or underprediction is statistically significant, it is found that the only significant range of scores is for lower scores, where blacks are being overpredicted by the 10-C.30
The net result is that use of 10-C test scores in the same manner for both blacks and whites does not appear to be underpredicting the performance of blacks at the academy or on efficiency ratings. This analysis does not, of course, deal with the possibility of bias affecting the scores blacks obtain at the academy or on efficiency ratings; it only serves as a foundation for concluding that the 10-C is not to be criticized on the basis of differential validity inquiries. The 20-B cannot be subjected to these inquiries at the present time for lack of sufficient blacks in any study group.
Operational Utility
It is not, however, sufficient that, as here, a test is shown to have a statistically significant relationship to one or more criteria and not to be differentially unfair to the adversely affected racial group. In addition, in the words of the EEOC Guidelines, § 1607.5(c), the relationship between the test and the criterion must have “practical significance” or, in the words of the DOJ Guidelines, § 12b(5), the usage of the test must be evaluated “to assure that it is appropriate for operational use.” With different words, the two Guidelines are raising the same concern.
In concluding that the 10-C and 20-B tests are valid screening instruments, Drs. Farrar and McLaurin have emphasized their significant relationship to grades in the training academies, and this relationship cannot be doubted. However, as already indicated, it is the court’s conclusion that relative standing in the academies, as distinguished from successful completion of academy training, is not an appropriate criterion unless it also be demonstrated that those academy grades are themselves valid predictors of job performance. The studies reflect, however, that for the most part the correlation between academy grades and measures of job performance are not significant and, in the few instances where significant correlations are found, the findings are mixed–some being positive and others being negative. A negative correlation, of course, indicates that the higher the academy grades, the lower the performance ratings tend to be. Although an employer is permitted to select the best person for the job despite resulting impact on a racial group, it is not permitted to engage in such selection procedures merely
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to employ the best person for training.
*13 Nor has it here been demonstrated that either test is a valid predictor of successful completion of the required training courses. According to the director of the policy academy, only 11 of the 733 cadets attending the academy since 1962 have failed to complete the training because of inadequate grades–and no data has been presented as to their 10-C test scores. According to the director of the firefighters academy, no student has failed because of poor grades, of course, since historical use of screening tests (whether the present ones or their predecessors) has imposed a restriction of range, the conclusion does not necessarily follow that every applicant could complete the training no matter how low his 10-C or 20-B score. However, it should be noted that on occasion the raw test scores used to determine hiring eligibility have been substantially reduced, without apparent impact on their successful completion of the academies. And–while recognizing that, as noted by Dr. McLaurin, this is not a recommended practice31–use of the regression lines developed from any of the studies would predict passing academy averages even for persons scoring zero on the 10-C and 20-B tests.
As earlier discussed, the regular efficiency ratings are not trustworthy criterion-measures of actual job performance. Even if they were, the studies provide inconclusive findings with respect to the 20-B (a significant correlation with a group of 196 firefighters, though only of a magnitude of .20, and an insignificant correlation of .12 with a group of 162 firefighters), and even more dubious results with respect to the 10-C.32
The experimental ratings are, as previously indicated, considered by the court as an appropriate criterion measure. The correlation, however, between the 20-B and these ratings is found to be .08, which is, of course, not significant; and, while a significant positive correlation is found with respect to the 103 firefighters having less than 3 years service, a significant negative correlation is found for the 93 having at least 3 years of tenure. Presumably, higher scores on the 20-B (which carried over to higher scores during academy training) resulted in better job performance for the first few years. Had this advantage merely been erased after more time on the job, this would be one matter–but, as stated, the findings actually showed a significant negative correlation for the longer tenured firefighters, suggesting that over time the lower scoring applicants made the better employees. Absent any indication that during the first few years the lower scoring applicants had been inadequate on the job, one is hard pressed to conclude that the higher scoring 20-B applicants are in fact the better persons to hire. Further study might, of course, lead to other interpretations, such as a determination that recent improvements in the training given at the firefighters academy will result in better employees not only initially but also over time–but no such conclusions can be supported on the present evidence.
*14 The correlation between the 10-C and the experimental ratings is, with 148 in the sample, significant at rho < .05, but has a magnitude of only .21. What do these figures mean? To begin with, it should be understood that for a correlation coefficient to be found significant at rho < .05 is equivalent to saying that, if in fact no relationship between the two variables exists for the “population”, the obtained results could be expected to occur only once in twenty such samples–and that therefore one can be 95% confident that for the population (of applicants) there is some correlation (or relationship) between the two variables. It does not mean that one can be 95% confident that the population coefficient is .21. Indeed, to state the population coefficient with only a 5% chance of error (i.e., pi < .05) requires use of a confidence interval: here, with a sample of 148, that the true coefficient lies somewhere between .0504 and .3592. The coefficient obtained from the sample is but an estimate of that true population coefficient.
A second consideration is to look at the test scores in the particular sample in comparison with the scores of all persons in the population. Where, as here, there is a restriction in the range of test scores of those in the sample because of prior use of the test, a statistical technique, called correction for restriction of range, may be appropriate for determining the magnitude of the correlation. This “corrected” coefficient, as reported by Drs. Farrar and McLaurin, is .36. It may be noted that utilization of the correction involves the assumption that the two variables (test scores and experimental ratings) are for the total population “normally distributed;” and, insofar as rating scores are concerned, it is just that–an assumption. Hence, it involves the same type of risk as does the use of a regression formula for values beyond the sample on which based–a technique which, during the trial, provoked Dr. McLaurin’s criticism.
In general, other factors remaining the same, the greater the magnitude of the coefficient the more likely it is that the test will be appropriate for use. See DOJ Guidelines, § 12b(5). The importance of the size of the correlation coefficient can perhaps best be understood by reference to certain basic statistical concepts. The square of the correlation coefficient, called the “coefficient of determination,” gives the proportion of the variance of the criterion scores which is accountable by reference to variance of scores on the predictor test. Thus, with a correlation coefficient of .21, the study indicates that 4.4% of the variance among experimental ratings is explainable by reference to the variance in test scores, while 95.6% is not. Using the “corrected” coefficient of .36, still only 13% of the variance among experimental ratings could be accounted for by test score variance. By another formula, the correlation coefficient can be converted into a “coefficient of alienation”, which gives the
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size of the error in attempting to predict experimental rating scores from test scores relative to the error that would result from a mere guess, i.e., by not using the test. This calculation, based on a correlation coefficient of .21, reflects that use of the test predicts experimental rating scores with a margin of error that is only 2% smaller than it would be without the test, and, if based on the “corrected” coefficient of .36, indicates that the margin of error is only 6.7% less than what would occur by mere guess.
*15 Anastasi comments, and quite properly so, that evaluation of a test in terms of the error of estimate will for many testing purposes be unrealistically stringent. Anastasi, PSYCHOLOGICAL TESTING, p. 166 (4th Ed. 1976).33 She notes that even tests with an unusually high validity of .80 would appear to be inefficient if used to predict individuals’ relative standing on some criterion, but that most tests are merely used to determine which individuals will exceed a given minimum standard of performance or cutoff point in the criterion. The 10-C, of course, is utilized here both to screen applicants (cutoff scores) and to rank those passing applicants.
While the magnitude of the correlation coefficient is obviously of great importance, there is no minimum coefficient applicable to all employment situations. See DOJ Guidelines § 12b(5). “Under certain circumstances, even validities as low as .20 or .30 may justify inclusion of the test in a selection program.” Anastasi, op. cit., p. 166.
Another approach towards evaluation of the relationship found is to investigate the meaning of differences in test scores in relation to the differences in criterion scores thereby predicted. This involves use of the regression formula, which can be calculated from the correlation coefficient and the means and standard deviations of the two variables. Thus, Dr. Roland Ramsey, the plaintiffs’ expert witness, questioned the practical value of the 10-C by noting, from the Farrar-McLaurin study involving 140 whites and 49 blacks, that an increase in raw test scores of 40 points produced, under the regression lines given, less than 5 points increase in predicted academy averages.
The common regression line computed for the 148 officers with both test scores and experimental ratings is ?? = 300 + .162x, where x represents a given test score and ?? is the rating predicted thereby. At first glance, this regression line does not appear to be subject to the criticism made by Dr. Ramsey respecting the other study, for it will be seen that, for example, a test score difference of 10 will predict an experimental rating difference of 16. However, it should be understood that the linear regression formula (as well as the criterion mean and criterion standard deviation, although not the correlation coefficient) varies in direct proportion to any factor by which criterion scores in the sample have been multiplied. The Farrar-McLaurin study reports the overall experimental rating as the summation of weighted components which comprise the rating. For example, a sample subject rated as 5 (very good) on each of the 12 rating components would, because of the method, be reported as having a rating score of 499, while another subject identically rated except for scores of 4 (good) on the appearance and dependability components would receive an overall rating of 483, with 698 representing a “perfect” score of 7’s on all components.
*16 To prevent potential misinterpretation, it is well to consider the regression line not only in the form in which expressed in the Farrar-McLaurin studies, but also in a form which does not contain the inflation caused by the weighting procedure. This can be done, while still retaining the concept of the components having differing weights, by expressing the weights in a manner in which the average weight is 1. That is, instead of the “communication” component having a weight of 8.78 (as reported in the study), of “problem solving” a weight of 9.44, of “learning” a weight of 8.22, etc., they can be shown as having weights of 1.056, 1.136, and .989, etc., respectively. Then, a summation of weighted component scores for a “perfect” score of 7 on all 12 components would result in 84, identical with a “perfect” score if not weighted. Not only does this method retain the concept of weighing the different components, but the transformation (whether of means, standard deviations, or regression line) can simply be made by dividing the reported results by a constant, here 8.31333. The obtained regression line is ?? = 36.087 + .195x, where x represents the test score and ?? is the predicted rating (using the new method of expressing weights). It will now be seen that, as with the other studies criticized by Dr. Ramsey, a large difference in test scores produces only a small difference in predicted (un-inflated) experimental rating scores, e.g., a 40 point raw score difference on the test gives less than 8 points difference on the rating score.
Another method for evaluation, which is not complicated by the weighting procedure, is to consider the “standard error of estimate”, which, for the data analyzed, is computed to be 92.63. Use of this statistic is demonstrated as follows: while a raw test score of 70 through the regression formula predicts an experimental rating of 413, one can through use of the standard error of estimate determine, at rho < .05, the experimental rating actually to lie within the range of 231 to 595. Similarly, the predicted experimental rating, at rho < .05, from a raw test score of 40 is found to be in the range of 183 to 547. Obviously, there is a potential overlap, where persons with raw scores of 40 and 70 on the test may nevertheless obtain the same experimental rating score. It is, furthermore, possible to determine how much of a difference in test scores is required for one to be able to predict, at rho < .05, that the higher-scoring applicant will receive an experimental rating which also is
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higher34–and this calculation results in a finding that a difference in test scores of over 86 raw points is necessary for such a conclusion to be reached. It should be noted that the total range of raw test scores to this date used to rank successful applicants (i.e., from a low raw score of 48 to the perfect score of 120, which has not been obtained by any) is yet too limited to enable one to say, at the .05 level, that the highest-scoring applicant would be predicted to obtain a higher experimental rating than the lowest-scoring applicant.
*17 Since the 10-C is utilized not only in an attempt to rank the successful candidates, but also to screen the unsuccessful, it is appropriate to analyze the study results with respect to minimum experimental ratings and to predictions for persons scoring at, and below, the test cut-off scores. A test score of 48, the lowest used as a cutoff, yields a predicted experimental rating of 378, or an average unweighted rating on each component of the experimental rating of 3.78 (3 = adequate, 4 = good).35 Common regression lines can, of course, also be computed separately for each of the twelve components of the rating. When this is done, one finds that a test score of 48 will as to each component predict an unweighted rating of 3 or above, i.e., at least “adequate.” While recognizing the risk in extrapolation beyond the range of sample scores,36 but having little else available for comparable analysis, one can look to estimates of experimental ratings predicted by the regression lines for test scores below 48. If this is done, it appears that even with a test score of 0 the predicted rating is “adequate” or above for the rating as a whole and for seven of the twelve components. Even as to the five components for which the estimated unweighted experimental rating from a 0 test score would be less than 3, the predicted rating cannot be said to be less than “adequate” at rho < .05.
A technique for evaluating tests which employ cut-off scores for screening purposes is to consider “false positives” (persons scoring below the cutoff but nevertheless scoring above the acceptable level of performance on the criterion) in relation to “false acceptances” (persons scoring above the cutoff but below the acceptable level of performance), thereby leading to a comparison between the relative percentage of successful employees above and below the cut-off scores. However, neither this method nor the Taylor-Russell tables (used to estimate net gain in selection accuracy through test usage) can be directly used in the present case because all employees for whom “success” data are available have been screened by the test. It is possible to project the “base rate” (through use of the regression line, standard error of estimate, and normal distribution curves) and then to conduct such inquiries; and, if this be done, one finds any incremental validity to be negligible.
Still another approach is to estimate the effect of the test not on the percentage of persons exceeding minimum performance, but on overall performance of the selected persons. A table given by Anastasi, op cit. at p. 173, gives the expected rise in criterion scores through test usage in relation to its validity coefficient and the selection ratio. In the present case, with a .21 coefficient and a selection rate of .19 (506 officers hired from 2721 applicants), and with a standard deviation of known criterion scores of 94.74, one finds from the table that use of the test (had the applicants actually been hired in the order of the test scores) would probably have produced an average gain of 27 points in the total weighted experimental rating (over the rating expected had the test not been used). This gain is equivalent to being rated one point higher on three of the 12 rating components. The average unweighted rating on each of the components would, without the test, have been 4.07 (4 = good), which compares to 4.35, using the test.
*18 The assessment of utility of a test which, like the 10-C, has a statistically significant validity, albeit of very low magnitude, must include certain value judgments. One of these involves consideration of the nature of the job in question and the consequences of a faulty hiring decision. There can be little dispute that police officers perform a vital, and sensitive, function in our society. The desirability of “upgrading” of law enforcement has been emphasized in two reports received in evidence, the 1967 Task Force Report on the Police, issued by the President’s Commission on Law Enforcement and the Administration of Justice, and the 1973 Report on Police, issued by the National Advisory Commission on Criminal Justice Standards and Goals. Economic costs are also involved, particularly in view of the cost of academy training of officers and the restraints placed upon discharge of marginal officers under the civil service laws.
Without demeaning the importance of law enforcement officials, however, it can hardly be said that the possibility of occasional selection of an inept officer presents the same type of daily economic and human risk factors as is involved, for example, in the employment of airline pilots or bus-drivers. Cf. Spurlock v. United Airlines, Inc., [5 EPD P 7996] 475 F.2d 216, 219 (CA7 1972); Usery v. Tamiami Trail Tours, Inc., [11 EPD P 10,916] 531 F.2d 224 (CA5 1976) (Age Discrimination in Employment Act case, with somewhat related question). A twelve months’ probationary period is provided, during which time the occasional incompetent may be detected and dismissed and during part of which time the employee is undergoing training rather than being “on the street”. The principal public concern, it would appear, is not so much that the most able officers be employed (though that, certainly, would be desirable) as that the emotionally unfit not be employed. In this context, it is perhaps noteworthy that the 1967 Presidential Commission’s report contained a recommendation for use of psychological tests to detect applicants with personality defects (but no such recommendation respecting aptitude tests); and the 1973 National Advisory Commission’s report, while acknowledging the desirability of valid aptitude tests, was skeptical
10

N.A.A.C.P., Ensley Branch v. Seibels, Not Reported in F.Supp. (1977)
as to the results of research to that date. So far as the court has been informed, the 10-C was not designed, and has not been validated, for use in detecting emotional disorders or defects.
The DOJ Guidelines § 12b(b), provide that, in determining operational appropriateness, one should consider “the degree of adverse impact of the procedure, the availability of other selection procedures of greater or substantially equal validity, and the need of an employer, required by law or regulation to follow merit principles, to have an objective system of selection.” Obviously this latter factor (requirement under civil service law to give some objective test) cannot by itself suffice as justification for a test which has, as here, substantial adverse impact on a racial group. While it can be said that no other available37 selection with greater validity than the 10-C has been found, yet it must also be said–considering the minimal benefits resulting from the 10-C in the context of this employment situation–that no-test-at-all has “substantially” the same practical validity as the 10-C.
*19 In summary, the 20-B Firefighter test has not been shown to be a valid predictor of a job-relevant criterion measure and the 10-B Policeman test, while having a statistically significant relationship of a very low magnitude with a job-relevant criterion measure, has not been shown to be appropriate for operational use in screening or ranking applicants.38
Violation and Remedy
Having concluded that use of the 10-C and 20-B has had an adverse impact upon black applicants and that the studies presented fail to demonstrate job-relatedness, the court must nevertheless determine when the requirements of law were violated and what relief is appropriate therefor. This inquiry should involve no less care than consideration of the tests themselves.
The requirements of Title VII first became applicable to the Personnel Board in March 1972. At that time, and for many years earlier, the Board was required by state law to administer appropriate tests to screen and rank applicants–a requirement which continues to the present time, subject to any over-riding proscriptions of Title VII. It had several years earlier selected the 10-C and 20-B tests as the best tests then available, with the hope that black applicants would fare better than under previous tests. By March 1972 a preliminary, in-house validity study had been conducted, which reflected some improvement in hiring of blacks and the indication of appropriate validity based upon relationship with existing criterion measures. An in-depth independent validation study was immediately undertaken, including investigation of alternative or supplemental selection procedures to improve the predictive validity or decrease adverse impact upon blacks. At least since 1965 the Board has not intentionally discriminated against black applicants but, to the contrary, has attempted to increase black employment within the options available under state law, including modification of the scoring key for the 10-C when recommended by the consultants as a method for increasing validity of the test for black applicants.
The preliminary reports from the consultants, made while more trustworthy measures of job performance were being developed, contained signs of potential validity and recommended continued usage of the test pending the additional studies. Not until April 25, 1975, with respect to the 10-C, and July 8, 1976, with respect to the 20-B, were the studies using these new criterion measures completed and reported to the Board. It was on these respective dates that, in the court’s opinion, it should have been concluded that provisional use of the tests was no longer permissible. Prior thereto, the Board was, in the court’s opinion, justified in continuing to use the tests (and the eligibility lists generated therefrom) in anticipation of favorable results from those studies. Use of the tests (or of the eligibility lists therefrom) was thereafter, however, contrary to the requirements of Title VII, which override state law inconsistent therewith.
*20 The remedy should be appropriate to the violation found. In this case, from X-11, it is found that, for the two administrations of the 10-C from which eligibility lists used after April 25, 1975, were formed, 658 (or 88%) of the 747 white applicants were placed on the eligibility lists. Had a like percentage of black applicants been so placed, a total of 252 would have been on the lists–128 more than actually placed on the list. Accordingly, to the extent they are still interested, an additional 128 blacks from the prior administrations of the test should be added to the present eligibility lists. This remedy only relates to prohibited use of the 10-C as a screening instrument. An additional measure is needed to correct for the improper use of the test as ranking procedure. Had the eligibility lists been representative of the applicant group and had certifications from the list likewise been representative of the racial composition of the list, approximately 28% of the persons certified would have been black. It is clear that there has been “under-certification” of blacks by this standard, although the precise degree cannot be determined from evidence before the court, which gives such information only by calendar years. The Board is directed to ascertain the extent of such under-certification and in future certifications to include
11

N.A.A.C.P., Ensley Branch v. Seibels, Not Reported in F.Supp. (1977)
at least 1 black candidate for every 3 certified until such time that, considering the certifications after April 25, 1975, total number of blacks certified becomes 28% of the total number of persons certified. Thereafter (and until some new selection procedures are adopted which are sufficiently job-related or which have no adverse impact upon blacks) at least 2 of every 7 persons certified by the Board from the revised present list shall be black, provided there be a sufficient number of black applicants interested.
A similar investigation of X-11 with respect to the 20-B, where only one eligibility list has been in effect since July 8, 1976 (the date of the report involving the experimental ratings), results in a conclusion that 91 black applicants should be added to the present eligibility list for firefighters, that at least 1 of every 3 persons hereafter certified shall be black until such time that (considering certifications after July 8, 1976) the total number of blacks certified becomes 14%39 of the total number of persons certified, and that thereafter (pending adoption of some other valid or non-discriminatory selection instrument) at least 1 of every 7 certified by the Board from the revised current list shall be black.
This order does not preclude use of the 10-C or 20-B as a device for ranking one white as against another white, or one black as against another black. Such a use may be made by the Board, if it so desires, without any discriminatory impact on a racial group. The order does not prevent the Board from new administrations of the 10-C or 20-B (or other tests) or from forming new eligibility lists from time to time; provided, however, that, unless and until a selection instrument is found which either has no adverse impact racially or is sufficiently valid, the test results shall be used in a manner consistent with this opinion, i.e., the eligibility list and certifications to be representative racially of the applicant group regardless of test scores.
Order
*21 Pursuant to the findings and conclusions contained in the Memorandum of Opinion filed herewith, unavoidably protracted because of the need to detail the findings of fact and the reasons therefor, it is ordered as follows:
1. Use by the Personnel Board of Jefferson County of the 30-B Office Workers test has not violated Title VII or other applicable law.
2. Use by the Personnel Board of Jefferson County of the 10-C Policeman Test and the 20-B Firefighter Test has violated Title VII since April 25, 1975, and July 8, 1976, respectively.
3. To the current eligibility list for police officers and deputy sheriffs the Personnel Board shall add the names of 128 black applicants from prior administrations of the 10-C to the extent such number are still interested. In future certifications, at least 1 black on the revised eligibility list shall be certified for each 3 persons certified until such time that the total number of blacks certified after April 25, 1975, shall be 28% of the total number so certified. Thereafter during use of the current eligibility list as so revised, at least two persons of every seven certified shall be black. Pending adoption of some selection procedure which either has no adverse effect upon black applicants or is sufficiently job-related, the number of blacks on any new eligibility list (and certified therefrom) shall be representative of the number of the black applicants.
4. To the current eligibility list for firefighters, the Personnel Board shall add the names of 91 black applicants from prior administrations of the 20-B to the extent such number are still interested. In future certifications, at least 1 black on the revised eligibility list shall be certified for each 3 persons certified until such time that the total number of blacks certified after July 8, 1976, shall be 14% of the total number so certified. Thereafter, during use of the current eligibility list as so revised, at least one person of every seven certified shall be black. Pending adoption of some selection procedure which either has no adverse impact upon black applicants or is sufficiently job-related, the number of blacks on any new eligibility list (and certified therefrom) shall be representative of the number of black applicants.
5. In accordance with F.R.Civ.P. Rule 55(b), the court expressly determines that there is no just reason for delay and expressly directs entry of judgment as to the issues here involved, namely, whether use by the Personnel Board of the 10-C, 20-B, and 30-B tests are proscribed by law and, if so, the appropriate remedy therefor.
Parallel Citations
12

N.A.A.C.P., Ensley Branch v. Seibels, Not Reported in F.Supp. (1977)

14 Fair Empl.Prac.Cas. (BNA) 670, 13 Empl. Prac. Dec. P 11,504

Footnotes

1

Fourteen separate county and municipal employers are covered by the law. Cities with a population of under 5,000 are excluded.

2

With multiple vacancies, the number of persons certified is two more than the number of vacancies to be filled.

3

Not presently at issue are requirements (such as age or education) which may be imposed as conditions to taking an examination,

nor are specifications (such as residence within Jefferson County) which may give preference to certain applicants.

4

Unless otherwise noted, reference to police officers in the balance of this opinion will also refer to deputy sheriffs.

5

Under F.R.Civ.P. Rule 42, the four actions were consolidated with respect to challenges to Personnel Board tests and a separate

trial was scheduled respecting the attacks on the Policeman 10-C, Firefighter 20-B, and Office Worker 30-B tests. At the trial the

plaintiffs indicated that the attack on the Office Worker 30-B test was dropped for lack of evidence of adverse impact and that any

attack on the 10-C and 20-B tests based on sex was likewise dropped for lack of evidence.

6

The 10-C and 20-B tests were adopted by the Board after initially experimenting, commencing in January 1966, with alternate

forms of the IPMA tests.

7

The Board’s studies resulted in selection of the 10-C form because of its significant and positive correlation with a greater number

of the selected criteria measures than did the alternate IPMA form. The study indicated a significant and positive correlation

between 10-C scores and training academy average (as well as several course grades in the academy) and between the training

academy average and the officers’ latest efficiency ratings.

8

Not until 1968 was the residency requirement of the City of Birmingham removed by the city ordinance. A Jefferson County

preference remains in effect, but this can hardly disadvantage blacks, who constitute a larger portion of the Jefferson County

population than of neighboring counties.

9

An intent to discriminate would presumably be required for there to be a violation of 42 U.S.C. § 1983, if not of 42 U.S.C. § 1981.

See Washington v. Davis,.– U.S. – (June 7, 1976).

10

Albermarle Paper Co. v. Moody, [9 EPD P 10,230] 422 U.S. 405, 425 (1975).

11

Griggs v. Duke Power Co., [3 EPD P 8137] 401 U.S. 424, 432 (1971).

12

There are some conflicts between the EEOC and the DOJ Guidelines. However, it is not necessary as to the issues presently before

the court that a choice be made between the two.

13

Information for this table has been taken from X-11 and from data respecting hires supplied by the parties at the court’s request

following formal close of the evidence. Certain caveats should be noted: The results of the 10-C exam administered on April

29-30, 1971, have been eliminated because it was not used for employment decisions after March 24, 1972. The results of the 10-C

exam administered on September 30 and October 1, 1971 and of the 20-B exam administered on May 26-27, 1971, have been

included in the tabulation, even though in part the eligibility lists taken therefrom would have been used prior to March 24, 1972.

The number of hires includes those hired in 1972 prior to March 24, 1972. As the Board points out, the number of hires is affected

by voluntary choices of the candidates (such as declining job offers or waiving consideration), but, lacking reliable data on such

matters for both whites and blacks, the court has looked to actual hires as the measure of the overall selection ratios. Finally, it

should be noted that, since persons are permitted to take exams more than once, the applicant figures do not completely accurately

reflect the number of different individuals involved. These limitations do not, in the court’s opinion, prevent meaningful usage of

the data for the purposes indicated.

14

These figures are derived from X-12 and are subject to the appropriate caveats indicated in fn. 13, supra. Moreover, X-12 does not

have any information for one eligibility list and does not contain percentile information as to several lists. In a very real sense,

“passing” an exam is measured not by obtaining a derived score of at least 70 (and thereby being entered on the eligibility list), but

by obtaining a score sufficiently high to be placed on the eligibility list at a position where, during use of that list, the candidate

will actually be certified to an employing agency.

15

Until a couple of months prior to trial, the litigation was being prepared with the anticipation that all tests under challenge were to

be considered at a single hearing. When the decision was made by the court that the first trial would only concern the 10-C, 20-B,

and 30-B tests, counsel and witnesses were freed to shift their attention to “loose-ends” on these three tests.

13

N.A.A.C.P., Ensley Branch v. Seibels, Not Reported in F.Supp. (1977)

16

Some items on each test elicit knowledge which apparently would be needed for performance of job functions; others do not. Some

effort has been made by the test developer to give “face validity”, as by expressing an item involving numerical problem solving in

the context of information with which job occupants would be dealing. Face validity does not affect validity for usage as a

selection procedure so much as it may overcome motivational resistance by those taking the test.

17

“Reliability refers to the consistency of scores obtained by the same persons when reexamined on the same test on different

occasions, or with different sets of equivalent items, or under other variable examining conditions.” Anastasi, PSYCHOLOGICAL

TESTING, p. 103 (4th Ed. 1976). The methods used in this study to estimate reliability were the split-half technique (corrected by

the Spearman-Brown prophecy formula) and the Kuder-Richardson formula 20.

18

A test item correctly answered by too high a proportion of the applicants is considered not difficult enough; correctly answered by

too low a proportion, it is considered too difficult. In this study items correctly answered by 30 to 70% of the applicants were

considered satisfactorily difficult.

19

Item “discrimination” is in essence a comparison between scores made on an individual test item and scores made on the total test,

thereby ascertaining whether particular items “discriminate” significantly in predicting success on the test as a whole. In the study,

significance was established at rho < .05.

20

As previously indicated, the 10-C exam was in fact modified through use, effective April 10, 1974, of an 80-item answer key,

which had the effect of eliminating for scoring purposes 40 of the items. This particular change was done to improve correlation

with an academy average criterion for blacks (rather than to improve item difficulty or discrimination levels), but it indicates the

search for increased test utility. The consultants also recommended consideration of possible modification (or supplementation) of

20-B to improve levels of item difficulty and discrimination. Only one administration of the 20-B was given after this

recommendation, and that was done when the existing eligibility list had almost been exhausted but mass administration of an

additional test (the PAS) had not yet become feasible.

21

Neither the EEOC nor the DOJ Guidelines require reporting of raw data statistics for SIGMAx, SIGMAx2, SIGMAy, SIGMAy2, or

SIGMAxy. Such information would, however, be helpful, permitting application of statistical measures not chosen by authors of

the report without the loss of accuracy which results from derivation of such items from means, standard deviations and correlation

coefficients.

22

The study of the sample of 59 police officers for whom Raven and PAS test scores were available is subject to question for

voluntarism. See A.P.A. Standard E6.1.2.

23

The possibility of bias is of particular concern where subjective evaluations are used as criteria and there are significant differences

in those measures for different racial groups. See DOJ § 12b(2). In each study where means and standard deviations are presented

separately for blacks and whites with respect to one or more of the basic criterion-measures (academy average, efficiency rating, or

experimental rating), the means for blacks is less than for whites, and only in the study which involved but 8 blacks were any of

these differences not statistically significant at least at rho < .05. It may be argued that the academy grades should be treated as

objective (being based in major part upon multiple-choice exams), but a substantial part of those grades is apparently dependent

upon instructors’ subjective appraisal of students’ performance. (This latter comment is not intended to suggest that more

paper-and-pencil tests should be used in the academies, but rather that even academy grades are at least in part subjective

measures.)

24

See fn. 17, supra. Inquiry into the reliability of a criterion is not a trivial consideration. See A.P.A. Standards E4.4. That the

various techniques for estimating such reliability have their own limitations affects the interpretation to be reached, not the

desirability of making the effort.

25

Of course, relative standing or grades in the academy may, depending upon the statistical technique employed, be of use in

correlating test scores with successful completion of the training.

26

The DOJ Guidelines, § 12b(7)(v)(1), do not require analysis where less than thirty persons are in either of the subgroups.

27

Scattergrams in the present case do indicate, within the ranges of scores available, that relationships between the predictors and

criteria for both racial groups are essentially linear.

28

One should view with caution differential studies where either group has less than 30 members. However, the principal concern is

that true differences will not appear to be significant with smaller sample numbers.

29

The court has analyzed the 96-subject sample rather than the 189-subject sample because the report of the former includes

deviation and correlation data not only for the two racial groups but also for the sample as a whole, facilitating analysis. It should

be recognized that analysis from such statistics are subject to rounding errors which could have been avoided had raw data

summations been provided.

14

N.A.A.C.P., Ensley Branch v. Seibels, Not Reported in F.Supp. (1977)

30

Absent “adverse impact” on whites as a whole, the “underpredicted” whites cannot challenge the test under Title VII.

31

Regression lines should not generally be used for prediction based on predictor scores which are beyond the range of predictor

scores found in the sample, for beyond such known scores the relationship may cease to be significant, may cease to be linear, or

may have a slope change. Of course the same possibilities exist when one attempts to justify non-selection based upon correlation

coefficients developed through the subjects selected or when one attempts to modify coefficients for restriction of range, such as

Drs. Farrar and McLaurin have done.

32

The correlations between the 10-C and efficiency ratings were significant only with respect to the volunteer group of 59 officers.

33

The Anastasi volume was qualified during trial as a recognized treatise under F.R.E. 803(18). Additional standard texts used by the

court for the purpose of taking judicial notice of basic statistical formulae are Guilford & Fruchter, Fundamental Statistics in

Psychology and Education (5th Ed. 1973); Walker & Lev, Statistical Ineference (1953); Burrington & May, Handbook of

Probability and Statistics (2nd Ed. 1970); and Mehrens & Lehmann, Standardized Tests in Education (2nd Ed. 1975).

34

A note should be made of this technique since not directly given in most texts [sic]. Using the normal curve, the possibility of

scores

exceeding

/?? sigma

=

+

.76

is

.2236

and

likewise

the

possibility

of

scores

being

less

than

/?? sigma

=

-

.76

is

.2236.

The

possibility

of

both events occurring is .22362, or .05. Accordingly, there must be a separation of 2(.76) X standard error of estimate for two

predicted scores to be different at rho < .05. One can then determine the difference in predictor scores necessary to produce this

separation in predicted scores.

35

By comparison, a raw-test score of 106 (the highest reported in the study for any subject) yields a predicted experimental rating of

472, or an average unweighted rating on each component of 4.73 (5 = very good).

36

See fn. 31, supra, and the discussion on page 21 of this opinion respecting assumption of normal distribution when a correlation

coefficient is corrected for restriction of range.

37

Studies of the PAS, developed by Drs. Farrar and McLaurin, show extremely high correlations with experimental ratings, as well

as with academy training and efficiency ratings. Ironically, the results are so promising as to cause some concern as to a spurious

relationship which may not be replicated. In any event, technical difficulties, unresolved to date, have prevented its administration

on a wide-scale basis such as for all applicants, so that for practical purposes it is not “available”.

38

Correlation studies respecting efficiency ratings and “experimental” ratings were conducted only for officers employed by the City

of Birmingham. However, the evidence is persuasive that job requirements for deputy sheriffs and for police officers employed by

other municipalities are essentially the same as for Birmingham officers. The higher correlations found with respect to academy

training are not of themselves sufficient to justify a conclusion as to operational validity for these officers different from that

reached respecting Birmingham.

39

Blacks constituted only 14% of the applicants on the only administration of the 20-B involved.

15

 
 United States of America v. Jefferson County, 1981 WL 27018 (1981)
1981 WL 27018 (N.D.Ala.) United States District Court, N.D. Alabama.
UNITED STATES OF AMERICA v.
JEFFERSON COUNTY, ET AL.
No. 75-P-0666-S,*. | Aug. 18, 1981.
Attorneys and Law Firms
Richard J. Ritter and Theodore Merrit, U.S. Department of Justice, for plaintiff United States.
Susan W. Reeves and Stephen L. Spitz, Washington, D.C., for plaintiff Martin.
Oscar W. Adams, III, Birmingham, Ala., for Ensley Branch plaintiffs.
David P. Whiteside, Birmingham, Ala., for defendant Jefferson County Personnel Board.
James K. Baker, City Attorney for the City of Birmingham, and James P. Alexander, Birmingham, Ala., for defendant city.
Opinion
POINTER, District Judge: -
*1 This litigation involves various charges of racial and sexual discrimination in governmental employment in Jefferson County, Alabama. Charged with engaging in a pattern and practice of discrimination are the Jefferson County Personnel Board and some fourteen separate county and municipal employers which participate in the multi-unit civil service system administered by the Personnel Board.
In January 1977, the court found that tests used by the Personnel Board to screen and rank applicants for employment as police officers and firefighters discriminated against blacks and were not shown to be job related under criterion-related validity studies. Those rulings, sub nom. Ensley Branch of the N.A.A.C.P. v. Seibels, 13 EPD ¶ 11,504, 14 FEP Cases 670, were upheld by the Fifth Circuit. See 616 F.2d 812, 22 FEP Cases 1207 (1980). The basic features of the civil service system are described in those opinions and will not be repeated here.
A second trial was held in August and October, 1979. At issue under F.R.Civ.P. Rule 42(b) were a number of other claims directed against practices of the Personnel Board. Under attack by the plaintiffs were eighteen other tests; various rules affecting promotional opportunities; the imposition of height, weight or educational requirements for certain jobs; and the restriction of some job announcements and certifications to persons of a particular sex. The Personnel Board defended by asserting that the challenged practices either had no adverse impact upon blacks or women or were nevertheless permissible under the employment discrimination laws.
During the period that the court was preparing its decision following the second trial, it was advised that the parties had commenced serious negotiations in an effort to resolve by settlement not only those issues already submitted to the court but also additional issues relating to the practices of some of the governmental employers, which had been severed under Rule 42(b) for yet an additional trial. The court was kept generally advised over the course of the following months - for the negotiations proved far more time-consuming than the parties had originally anticipated - of the general progress of the discussions, although not the details of any proposed settlement. Completion of the court’s decision, many pages of which had already been drafted, was deferred in view of the prospect of settlement.
In June 1981 the parties tendered to the court two proposed consent decrees which would, if approved, settle the plaintiffs’ claims against both the Personnel Board and the City of Birmingham.1 Tentative settlement classes for purposes of these decrees were formed, and notice of the proposed settlement and of the rights to be heard in opposition was given both by publication and by individual mailing to certain individuals. Objections to the proposed decrees were timely filed on behalf
1

United States of America v. Jefferson County, 1981 WL 27018 (1981)
of three groups. A fourth objection by an individual, although untimely, was by consent also considered by the court at a fairness hearing under F.R.Civ.P. Rule 23 held on August 3, 1981.
For decision at this time is the question whether the proposed settlements should be approved. At the outset it should be noted that there is no contention or suggestion that the settlements are fraudulent or collusive. Rather, the issue is whether considering the terms of the proposed decrees, the nature of the objections, the status of judicial proceedings, and the evidence before the court - the settlements should under the current state of the law be held to be unreasonable, unfair, inadequate, inequitable, illegal, unconstitutional, or against public policy. See United States v. City of Alexandria, 614 F.2d 1358, 22 FEP Cases 872 (5th Cir. 1980).
Although the decrees, which with attachments exceed 100 typewritten pages, would affect many employment practices and jobs, the objections are focused upon provisions relating to the certification, hiring, and promotion of persons in the police and fire departments of the City of Birmingham. Billy Gray, a white male lieutenant in the fire department, joined by the Birmingham Firefighters Association, objects to various segments of the decrees designed to increase the number of blacks and women in that department. Johnny Morris and six other individuals, who presumably are white police officers,2 object to provisions intended to increase the employment and promotion of minorities in the police department, while the Guardian Association - a group largely comprised of black officers - asserts that the decrees provide an inadequate remedy for past discrimination against blacks. James Miller, a white male, complains that his opportunities for employment as a police officer are unfairly curtailed by the present and proposed rules regarding that position. No other objections were made to the proposed decrees.
Gray, Morris, and those who joined in their objections assert that the settlements may accord preferential treatment to blacks and women with respect to future vacancies in the city’s police and fire departments - a contention that can hardly be disputed. What is controverted is their argument that such favoritism would constitute an impermissible “reverse discrimination” in the absence of a finding or admission of prior discrimination by the city against those groups, particularly insofar as it might operate to benefit individuals who personally never were the victims of any discrimination by the city or to disadvantage those who personally never were the beneficiaries of such discrimination. Cf. University of California Regents v. Bakke, 438 U.S. 265, 17 FEP Cases 1000 (1978). Also in controversy is the position of Gray and the Firefighters that certain of the rules to be altered should be deemed as equivalent to the terms of a collectively bargained seniority system, which could not be modified without their consent. See Myers v. Gilman Paper Corp., 554 F.2d 837, 14 FEP Cases 218 (5th Cir. 1977); but cf. United States v. City of Miami, 614 F.2d 1322, 22 FEP Cases 846 (5th Cir. 1980), pet. for reh’g en banc granted and opinion vacated, 625 F.2d 1310, 23 FEP Cases 1510 (5th Cir. 1980).
The objectors are certainly correct in their underlying premise - that not all forms of “affirmative action” to aid minorities can be defended against an assertion of “reverse discrimination” and that the principal focus for remedial measures upon proof of discrimination is to provide appropriate relief for those who were the harmed by those acts or practices. The Supreme Court has, however, upheld as against an attack under Title VII of the Civil Rights Act of 1964 the voluntary adoption by a non-governmental employer of hiring goals and preferential treatment for minorities, even though these procedures would benefit persons never discriminated against by the employer and even though indeed there had been no showing of any discrimination by that employer. United Steelworkers of America v. Weber, 443 U.S. 193, 20 FEP Cases 1 (1979), rev’g 563 F.2d 216, 16 FEP Cases 1 (5th Cir. 1977). The Courts of Appeals have moreover upheld the use of goals and quotas for governmental and non-governmental employers, both in the context of judicial remedies after proof of discrimination and in the form of settlement of unproven claims of discrimination, not only when attacked under Title VII but also when challenged under the Fourteenth Amendment and 42 U.S.C. §§ 1981 and 1983. See United States v. City of Alexandria, 614 F.2d 1358, 22 FEP Cases 872 (5th Cir. 1980); Detroit Police Officers’ Ass’n v. Young, 608 F.2d 671, 20 FEP Cases 1728 (6th Cir. 1979), cert. denied, 452 U.S. 938, 25 FEP Cases 1683 (June 15, 1981); Valentine v. Smith, 654 F.2d 503, 50 LW 2066, 26 FEP Cases 518 (8th Cir., July 21, 1981); Setser v. Novack Investment Co., 657 F.2d 962, 50 LW 2066, 26 FEP Cases 513 (8th Cir., July 21, 1981) (en banc); Local Union No. 35 v. City of Hartford, 625 F.2d 416, 22 FEP Cases 1786 (2nd Cir. 1980); cf. Talbert v. City of Richmond, 648 F.2d 925, 25 FEP Cases 953 (4th Cir. 1981). Also see pre-Bakke cases cited in the City of Miami opinion, 614 F.2d at 1335-36.
The goals and quotas here under attack are well within the limits upheld as permissible in these decisions. First, they do not preclude the hiring or promotion of whites and males even for a temporary period of time.3 Rather, the relevant parts of the proposed decrees provide, in summary, as follows: (1) the Personnel Board will certify black applicants for entry-level positions as police officers and firefighters as earlier directed by this court after trial (and as affirmed by the Fifth Circuit), i.e., basically at a rate commensurate with the relative percentage of black applicants; (2) the Board will attempt to certify women for these entry-level positions at a rate commensurate with the relative percentage of women applicants or, if higher, at the rate of 1 woman to 3 men for police officer and of 1 woman to 9 men for firefighter; (3) the Board will attempt to
2

United States of America v. Jefferson County, 1981 WL 27018 (1981)
certify black and female candidates for higher-level positions in the departments in a manner as will permit the city to attain its own goals and, where necessary for this purpose, can certify more than the top three candidates found eligible by it; (4) subject to the availability of qualified candidates, the city agrees to hire into these entry-level positions blacks and women at a rate commensurate with the percentage of black and female applicants or, if higher, at the rate of 1 black to 1 white, at the rate of 1 woman to 3 men for police officer, and at the approximate rate of 1 woman to 6 men for firefighter; (5) subject to the availability of qualified candidates, the city agrees to promote blacks to police sergeant and fire lieutenant at the rate of 1 black to 1 white, to promote blacks to two of the next four police lieutenant vacancies, to promote a black to one of the next two police captain vacancies and to one of the next two fire captain vacancies, and to promote blacks to subsequent vacancies in the higher level positions in the departments at twice the percentage of blacks in the positions from which promotions are traditionally made; and, (6) subject to the availability of qualified candidates, the city agrees to promote women to police sergeant at the rate of 1 woman to 3 men and to promote women to higher level positions in the police department at the percentage of women in the positions from which such promotions are traditionally made. For purposes of these provisions, the certification, hiring, or promotion of a black woman is counted both towards the goal for blacks and towards that for women.
Study of these provisions indicates that, while comprehensive, they nevertheless preserve a substantial opportunity for whites and males to be hired or promoted in the two departments. Moreover, the goals of the city are in the settlement expressly made subject to the caveat that the decree is not to be interpreted as requiring the hiring or promotion of a person who is not qualified or of a person who is demonstrably less qualified according to a job-related selection procedure.
Secondly, these provisions for potentially preferential treatment are limited both in time and in effect. They are to expire when the percentage of blacks or women in a particular job approximates the percentage of blacks or women, respectively, in civilian labor force in Jefferson County, Alabama. Additionally, provisions of the settlement provide a mechanism for the decrees to be dissolved after a period of six years. It will be noted that the four criteria for approval of an affirmative action program set forth by the Eighth Circuit in Valentine v. Smith, 654 F.2d 503, 50 LW 2066, 26 FEP Cases 518 (July 21, 1981), are clearly met in the present case.
The objectors treat this case as one in which discrimination on the basis of race or sex has not been established. That is only partially true, at least as it relates to positions in the police and fire departments. This court at the first trial found - and the Fifth Circuit agreed - that blacks applying for jobs as police officers and firefighters were discriminated against by the tests used by the Personnel Board to screen and rank applicants. The evidence presented at the second trial established, at the .01 level of statistical significance, that blacks were adversely affected by the exam used by the Personnel Board to screen and rank applicants for the position of police sergeant. Since governmental employers such as the City of Birmingham have been limited by state law to selecting candidates from among those certified by the Board, one would hardly be surprised to find that the process as a whole has had an adverse effect upon blacks seeking employment as Birmingham police officers, police sergeants, or firefighters - regardless of whether or not there was any actual bias on the part of selecting officials of the City. A natural consequence of discrimination against blacks at entry-level positions in the police and fire departments would be to limit their opportunities for promotion to higher levels in the departments.
Employment statistics for Birmingham’s police and fire departments as of July 21, 1981, certainly lend support to the claim made in this litigation against the City - that, notwithstanding this court’s directions in 1977 with respect to certifications by the Personnel Board for the entry-level police officer and firefighters positions and despite the City’s adoption of a “fair hiring ordinance” and of affirmative action plans, the effects of past discrimination against blacks persist. According to those figures, 79 of the 480 police officers are black, 3 of the 131 police sergeants are black, and none of the 40 police lieutenants and captains are black. In the fire department, 42 of the 453 firefighters are black, and none of the 140 lieutenants, captains, and battalion chiefs are black.
There has been no judicial finding of discrimination against female candidates for positions in Birmingham’s police and fire departments, nor indeed was there at the first trial any contention that the examinations administered by the Personnel Board for those positions had any adverse impact upon women to whom the tests were administered. However, evidence at the second trial - as to which no findings have yet been entered - reflected a more immediate form of discrimination against women who might be interested in such positions, rendering them ineligible for appointment to the basic entry-level positions without regard to examination scores. Disqualification from the key entry-level positions also resulted in foreclosing the opportunities for departmental promotions.
For many years announcements for positions as police patrolman and firefighter were restricted to males only. A separate position of traffic citation officer, restricted to females, was created for the City of Birmingham; but it provided no promotional opportunities within the department. In 1970 the separate classification of policewoman was established for
3

United States of America v. Jefferson County, 1981 WL 27018 (1981)
Birmingham. Not until late 1974 - over two years after Title VII became applicable to governmental employment - did the Personnel Board delete the male-only restriction for firefighters and combine the positions of patrolman and policewoman. Minimum height and weight requirements for police officers and firefighters continued to be specified by the Board to the time of the second trial of this case. Presumably in view of the intervening Supreme Court decision in Dothard v. Rawlinson, 433 U.S. 321, 15 FEP Cases 10 (1977), the Personnel Board did not at the second trial, at which these explicit and implicit barriers to employment of women were challenged, seek to defend these practices.
The impact of these restrictions can be seen in the employment statistics for Birmingham’s police and fire departments as of July 21, 1981. According to these figures, women constitute 53 of the 480 police officers, 3 of the 131 police sergeants, none of the 40 police leiutenants and captains, none of the 453 firefighters, and none of the 140 lieutenants, captains, and battalion chiefs in the fire department.
While the only judicial finding of discrimination thus far entered has been with respect to the effect upon black applicants of the Personnel Board’s tests for police officer and firefighter, it can hardly be doubted that there is more than ample reason for the Personnel Board and the City of Birmingham to be concerned that they would be in time held liable for discrimination against blacks at higher level positions in the police and fire departments and for discrimination against women at all levels in those departments. The proposed consent decrees, by way of settlement for such potential liability, provide appropriate corrective measures reasonably commensurate with the nature and extent of the indicated discrimination. Moreover, as earlier noted, the remedial steps are limited in duration, expiring as particular positions generally reflect the racial and sexual composition of the labor market in the county as a whole; they provide substantial opportunity for employment and advancement of whites and males; they do not require the selection of blacks or women who are unqualified or who are demonstrably less qualified than their competitors. The goals for certification, employment, and promotion as outlined in the proposed decrees, together with various related changes which complement those objectives - such as elimination of height and weight requirements, and the elimination or reduction of certain time-in-grade requirements for promotions - are due to be approved by this court under the teaching of United States v. City of Alexandria, 614 F.2d 1358, 22 FEP Cases 872 (5th Cir. 1980).
The Firefighters Association has argued that, given the vacating by the Fifth Circuit of the panel decision in the City of Miami case, 614 F.2d 1322, 22 FEP Cases 846, no changes in the civil service rules should be approved without its consent as a union, citing Myers v. Gilman Paper Corp., 544 F.2d 837, 14 FEP Cases 218 (5th Cir. 1977). The point, however, is that - unlike the situation in the City of Miami case - none of the rules to be altered under the proposed consent decree is a matter of contract with the union. Rather, the case sub judice is like that involved in the City of Alexandria, a decision left intact when rehearing was granted in the City of Miami decision. One may reasonably assume that en banc rehearing was granted to consider the consequences upon a proposed settlement of non-concurrence of a union which was party to collectively-bargained rules, and not for the purpose of reconsidering the basic rules governing judicial approval of proposed settlements.
The Firefighters Association has also attacked the portions of the proposed decrees that would eliminate the requirement that applicants for the firefighter position have a high school diploma (or GED equivalent) and the provision under which the City of Birmingham would agree that applicants would not automatically be disqualified by virtue of a prior criminal conviction or arrest. The Association has not, however, demonstrated why this court should prevent the Personnel Board or Birmingham from making those changes if - whether to aid in settling this litigation or otherwise - they want to do so. Moreover, it should be noted that the elimination of the educational requirement for firefighters is not absolute - under the decree such a requirement can be imposed by the Personnel Board upon proof that it has no adverse impact because of race or sex or that it is valid under the Uniform Guidelines. Nor does the proposed decree prohibit Birmingham from considering for particular positions, such as that of firefighter or police officer, the effect of a criminal record - it rather states that in such circumstances the city shall consider the nature of the position, the nature and age of the crime, and the success or failure of rehabilitation efforts.
The court has reviewed with care the provisions of the proposed settlements to which objections have been raised, as well as those portions to which no objection has been raised. Whether or not the proposed decree would in each instance correspond to some finding of discrimination which this court might make or provide the same remedial relief which this court might order is not the question. The settlement represents a fair, adequate and reasonable compromise of the issues between the parties to which it is addressed and is not inequitable, unconstitutional, or otherwise against public policy. Accordingly, the court’s approval will be manifested by appropriate orders adopting the decrees tendered.
One further matter should be addressed: the motion to intervene filed by the Firefighters Association, Gray, and Sullivan subsequent to the hearing on the settlement. This litigation has been pending for over five years and has been vigorously
4

United States of America v. Jefferson County, 1981 WL 27018 (1981)
contested by the existing parties through two trials and one appeal. While the Firefighters and Gray were permitted to be heard in opposition to the settlement, and the court fully considered their objections, intervention at this time as parties to the litigation is clearly untimely and must be denied.

Parallel Citations

28 Fair Empl.Prac.Cas. (BNA) 1834

Footnotes

*

This opinion also covers two other cases consolidated for trial with 75-P-0666-S: Ensley Branch of the N.A.A.C.P. et al. v. Seibels

et al., CA 74-Z-12-S; John W. Martin et al v. City of Birmingham et al., CA 74-Z-17-S. Attorneys for the Department of Justice

have taken the principal role in presenting the various claims against the defendants.

1

Claims against other governmental employers serviced by the Personnel Board are not resolved by the proposed decrees but remain

subject to further proceedings and trial.

2

Although written objections were timely filed on their behalf, Morris and the other six persons named in the document did not

appear in person or by counsel to be heard in opposition to the settlement. The brief of the City of Birmingham suggests that these

objectors are city police officers, and the nature of the objections filed under their name supports that inference.

3

The proposal of the Guardian Association would freeze all promotions of whites in the police department until blacks were

appointed to 4 positions as captain, 8 as lieutenant, and to 25% of the sergeants. It would also call for the hiring of 3 blacks for

each white as police officer. Such draconian measures, even if permissible as a part of a judicial remedy, can hardly be viewed as

necessary ingredients of a fair and adequate settlement.

5

 
 In re Birmingham Reverse Discrimination Employment Litigation, Not Reported in...
1985 WL 1415 United States District Court, N.D. Alabama, Southern Division. IN Re: BIRMINGHAM REVERSE DISCRIMINATION EMPLOYMENT LITIGATION
No. CV 84–P–0903–S. | February 19, 1985.
Attorneys and Law Firms Raymond Fitzpatrick, Jr. 1009 Park Place Tower Birmingham, Alabama 35203, for plaintiff. May Mann Special Litigation Counsel Civil Rights Division Dept. of Justice 10th ??, Av. N.W. ?? 5533, Wash. DC. 20530, for plaintiff. Robert Wiggins 716 Brown Marx Building Birmingham, Alabama 35203, for plaintiff; Frank Donaldson, U. S. Atty. Caryl Privett. Charles Cooper Wm. Bradford Reynolds U.S. Justice Dept. Civil Rights Division Washington, D.C. 20530, for plaintiff. William Worthen Richard Ritter Civil Rights Division U.S. Justice Dept. Washington, D.C. 20530, for plaintiff. Ralph E. Coleman 2175 11th Court, South Birmingham, Alabama 35205, for defendant. Alden L. Atkins/JoAnne Gentile Roy E. Noffinger/Fred Medlin Robert Joffe/Daniel Leffell/Gary Francione/George Wipple/Thomas Barr/Steve Bundy/Ellen Oron/Kathleen Beggs CRAVATH SWAINE & MOORE One Chase Manhattan Plaza New York, New York 10005, for defendant. St. John Barrett Suite 510, 1819 ‘H’ St., NW Washington, D.C. 20006, for defendant. Susan Reeves REEVES & STILL 714 29th St. So. 35233–2892 Birmingham, Alabama 35233, for defendant. William Robinson/Stephen Spitz LAWYERS COMMITTEE FOR CIVIL RIGHTS 1400 Eye Street, N.W.—#400 Washington, D.C. 20005, for defendant. James Alexander 1400 Park Place Tower Birmingham, Alabama 35203, for defendant. James Baker City Hall Birmingham, Alabama 35203, for defendant. David Whiteside/Michael Hall JOHNSTON BARTON PROCTOR SWEDLAW & NAFF 1100 Park Place Tower Birmingham, Alabama 35203, for defendant. Opinion
OPINION
??, United States District Judge. *1 The defendants in these ‘reverse discrimination’ cases have moved for partial summary judgment, seeking to dismiss portions of the plaintiffs’ claims predicated upon the plaintiffs’ higher rankings and test scores on selection procedures of the Personnel Board. The court concludes that, although the motions in their present form should be denied, an order should be entered which will likely have the same practical effect on further proceedings.
1

In re Birmingham Reverse Discrimination Employment Litigation, Not Reported in...
I. Background.
The present litigation stems from three cases instituted in 1974 and 1975 against the Jefferson County Personnel Board and various governmental agencies served by the Board, including the City of Birmingham. Two of these earlier suits were brought as class actions, charging racial discrimination against blacks in hiring and promotions; the third was brought by the United States, charging a pattern and practice of discrimination against both blacks and women. Among other allegations, the plaintiffs contended that the registers used to determine persons eligible for hiring or promotion were the product of discriminatory tests administered by the Board to screen and rank applicants and that the employing agencies engaged in still further discrimination when selecting individuals from these already tainted lists.
The cases were consolidated for trial in 1976 on the initial issue of the validity of tests used to screen and rank police and firefighter applicants. The court found that the tests had a severe adverse impact on blacks and were not sufficiently job related to be valid under 42 U.S.C. § 2000e–2(h). The Board was directed to include in its future certifications to the employers a sufficient number of black applicants to avoid any adverse impact caused by these tests. This decision was affirmed in all major aspects. Ensley Branch of NAACP v. Seibels, 616 F.2d 812 (5th Cir.), cert. denied sub nom. Personnel Board v. United States, 449 U.S. 1061 (1980).
A second consolidated trial was held in 1979 regarding many other examinations and screening devices of the Board that likewise appeared to have an adverse impact on blacks or women. Experts for both sides presented extensive evidence regarding the effect and validity of these tests and procedures. While awaiting the court’s decision, the parties engaged in extensive settlement negotiations that ultimately culminated in proposed consent decrees to resolve the litigation.1 The settlements with the Board and with the City of Birmingham included both provisions benefiting specific plaintiffs or class members—such as back pay and preferential hiring or promotion—and provisions benefiting the entire class—such as goals for certification and selection of minority candidates in future hiring and promotional decisions.
On August 18, 1981, after a fairness hearing to consider the objections of all interested parties, the court approved the consent decrees with the Personnel Board and the City of Birmingham. The following day, the Birmingham Firefighters Association #117 and two of its members moved to intervene, contending that the decrees would adversely affect their rights. The court denied their request as untimely. This ruling was later upheld by the Court of Appeals. United States v. Jefferson County, 720 F.2d 1511 (11th Cir. 1984).
*2 Several white male firefighters then filed an independent action against the Board and the City of Birmingham, attacking the consent decree as discriminatory. Although denying their application for a preliminary injunction against enforcement of the decrees,2 the court recognized that the consent decrees might not bar all claims of ‘reverse discrimination’ since they had not been parties to the prior suits. Several other suits were subsequently filed as individual or class actions by white males, contending that promotions made by Birmingham purportedly to comply with the consent decree discriminated against them because of their race or sex. These cases have been consolidated for pretrial purposes under the master caption of the ‘Birmingham Reverse Discrimination Employment Litigation.’
II. Scope of Pending Motions.
The City and the intervening defendants3 have moved for partial summary judgment as to those portions of the plaintiffs’ claims that are premised on the plaintiffs’ higher test scores or ranking on the Board’s eligibility register. Many, although not all, of the facts that may have some bearing on this motion are not genuinely in dispute.
Paragraph 5 of the Consent Decree with Birmingham provides as follows:
‘In order to correct the effects of any underrepresentation of blacks and women in the City’s workforce caused by any alleged prior discriminatory employment practices, the City agrees to adopt as a long term goal, subject to the availability of qualified applicants, the employment of blacks and women in each job classification . . . in percentages which approximate their respective percentages4 in the civilian labor force of Jefferson County . . ..’
In paragraphs 6–8 of the decree the City agreed that in order to achieve these long term employment goals it would attempt, ‘subject to the availability of qualified [minority] applicants,’ to fill a specified percentage of vacancies on an annual basis
2

In re Birmingham Reverse Discrimination Employment Litigation, Not Reported in...
with such applicants, this percentage ranging from 15% to 50% depending on the particular job or department. In short, qualified minority applicants were to be given a preference for a portion of the subsequent job vacancies until the long range employment goals were reached or the decrees expired.5
The plaintiffs in these cases contend that they would have been selected for post-decree promotions but for their race or sex. They assert that Birmingham’s obligations under the consent decree cannot be relied upon by it in defense and that, indeed, employment decisions made in order to comply with the requirements of paragraphs 5–8 would necessarily constitute impermissible discrimination. As has been discussed with counsel earlier in these proceedings, the court is persuaded that the defendants can, however, defend these reverse discrimination claims if they establish that the challenged promotions were made because of the requirements of the consent decree.6 See Palmer v. District Board of Trustees, 748 F.2d 595 (11th Cir. 1984).7
*3 As a secondary contention, the plaintiffs argue that the decree cannot be used to justify a race-conscious or gender-conscious promotion if that action is not required by the decree.8 They then note the provisions of paragraph 2 of Birmingham’s consent decree:
‘Nothing herein shall be interpreted as requiring the City to hire unnecessary personnel, or to hire, transfer, or promote a person who is not qualified, or to hire, transfer or promote a less qualified person in preference to a person who is demonstrably better qualified based on the results of a job related selection procedure.’
Plaintiffs contend that by virtue of this provision the decree does not require, and hence provides no protection against a claim of reverse discrimination based on, the selection of a less qualified black or woman. Plaintiffs propose to establish that they were demonstrably better qualified than the successful minority applicants and for this purpose will cite the higher scores they received on the Board’s promotional tests, which they assert are job related selection procedures.
The City and the intervening defendants assert that promotions of qualified minority candidates to meet the remedial goals established in the consent decree would not constitute unlawful discrimination, whether such promotions be mandated by the decree or merely permitted by it. They further contend that, even if their defense based on the decree is limited to employment decisions mandated by it, scores by applicants on the Board’s tests—and in turn the position of such persons on the Board’s eligibility register—would be immaterial in ascertaining whether the decree did or did not require particular promotions of minority applicants.
The pending summary judgment motions are focused on this latter contention; namely, that scores on the Board’s promotional tests should not be considered in deciding whether particular applicants were demonstrably better or less qualified for purposes of paragraph 2. The ruling on these motions9 has potentially great significance not only on the ultimate merits of the controversy, but also on the scope and length of further discovery and trial. Indeed, if test scores will be relevant in deciding the applicability of paragraph 2, one may expect a substantial controversy between the parties regarding the validity of each test as a ‘job related selection procedure’ for purposes of that paragraph.10
III. Discussion.
The basic facts regarding the procedures by which applicants are certified by the Board to the employing agencies have been stated in earlier decisions and need not be repeated in detail. In order to fulfill its responsibilities under state law, the Board develops and periodically administers tests to persons interested in civil service positions who satisfy any prerequisites for appointment established by the Board. For very practical reasons, these tests only purport to measure a sample of the knowledge, skills, and abilities that may be needed for successful performance of a particular job.11
*4 An applicant’s raw test score—which for some jobs is a composite of weighted scores on different segments of the examination—is converted by the Board into a single numerical score. Applicants scoring below the minimum established by the Board are eliminated from further consideration. To the converted test score of any ‘passing’ applicant, the Board adds (as required by state law) one point for each year of the applicant’s classified service, up to a maximum of 20 points. These individuals are placed on the Board’s ‘Eligible Register’ in the order of their combined total of test points and seniority points. The Board does not disclose this Register to the employing agencies or to the applicants. It does, however, provide to each applicant information about his or her own score and position number on the Register; to the extent they share this
3

In re Birmingham Reverse Discrimination Employment Litigation, Not Reported in...
information, applicants are able to construct the equivalent of the Register.
When advised that a governmental employer wishes to make a promotion, the Board submits to the employer a ‘Certification of Eligibles,’ which contains the top three names then remaining on the Register.12 Under the consent decrees the Board may certify the names of additional qualified minority applicants from further down on the Register ‘whenever such action is necessary to provide the City with a certification list that contains sufficient numbers of blacks and females to meet the goals’ of the decrees.
The certification sent by the Board does not reflect the test scores or Register ranking of the persons so certified. Birmingham acknowledges however that those making employment decisions ‘assume’ that the order of names on the certification indicates their relative standing on the register—that is, that the second name on the certification is lower on the Register than the first name and higher on the Register than the third name.13 Plaintiffs do not contend that the relative placement on the Register of the applicants establishes in and of itself that the higher ranked applicants are demonstrably better qualified for promotion.14 Rather, they argue that the tests are job related selection procedures and accordingly that under paragraph 2 of its decree the city would not be required to promote applicants with lower test scores. They assert that city officials either know these scores or by inference from the certification can determine the relative scores of the various candidates. Alternatively they argue that, regardless of the knowledge the city may have about test scores when deciding whom to promote, they—the plaintiffs—should be entitled in a subsequent claim of discrimination to demonstrate their superior qualifications by reference to the test scores and thereby show that the city could have promoted them without violating the consent decree. This latter contention should be addressed first because, if plaintiffs succeed on this point, there would be no need to determine what information city officials may have had about test scores when deciding on promotions.
*5 Paragraph 2 provides in relevant part as follows: ‘Nothing herein shall be interpreted as requiring the City . . . to promote a person who is not qualified or . . . to promote a less qualified person in preference to a person who is demonstrably better qualified based upon the results of a job related selection procedure.’ The obvious purpose of the paragraph was to relieve the city from responsibility under the decree if, although otherwise mandated by the decree, it should reject a minority candidate because of the results of a job related selection procedure showing that person to be unqualified or demonstrably less qualified. In evaluating any failure by the city to meet its obligations under the decree, the court would focus its attention on the information the city had when it declined to appoint the minority candidates and not on subsequently obtained information that played no part in those appointments. Such a proceeding might well include further studies regarding the job-relatedness of the selection procedures upon which the city relied in making its employment decisions; however, there would be no need to determine whether promotional criteria not considered by the city might have been valid.
Although the context is different in this litigation involving claims of reverse discrimination, the answer is the same. In short, the effort by plaintiffs to show that promotions of minority candidates were not mandated by the decree because of paragraph 2 will depend upon their establishing, at a minimum, that when making those selections the city had information demonstrating that such candidates were less qualified. Consideration must therefore be given on these Rule 56 motions to the question of what information regarding test scores city officials may have had when deciding whom to promote from the Board’s ‘Certification of Eligibles.’
It cannot be genuinely disputed that the city officials have not been provided by the Board with test scores or ranking, seniority points, final scores or ranking, or position number on Register.15 This is not to say, however, that city officials have absolutely no knowledge about such matters.
First, the appointing officials may be provided by or through the applicants themselves information about test scores or rankings. As earlier noted, applicants are provided information about their own scores and Register position and by sharing this information they can develop an approximation of the Register.16 According to depositions and affidavits submitted by plaintiffs, these unofficial listings are sometimes posted at fire stations or other locations where they are viewed by supervisors who may be involved in deciding on appointments when vacancies occur. It is unclear whether these posted listings disclose merely the projected positions on the eligibility register or also the final grade based on test scores and seniority.
Second, the appointing officials can draw some inferences about test scores from the Certification of Eligibles provided by the Board. Since the officials ‘assume’—an assumption which, to the extent pertinent, appears consistent with the actual practice of the Board—that the eligibles are listed on the certificate in the same order in which they appear on the Eligibility Register, the total of the converted test score and seniority points of the individual who, for example, is second on the certificate may be assumed to be higher than those for individuals lower on the certificate but less than that for the individual highest on the certificate. Appointing officials may already know or be able to determine from city records how many
4

In re Birmingham Reverse Discrimination Employment Litigation, Not Reported in...
seniority points various individuals on the certificate would have been awarded. By considering these seniority points, an appointing official could infer that a person would have had a higher converted test score than those individuals lower on the certificate with the same or a greater number of seniority points, and a lower converted test score than those higher on the certificate with the same or a lesser number of seniority points.17 No such inference, however, could be drawn when comparing an individual with those lower on the certificate having fewer seniority points or with those higher on the certificate having more seniority points.
*6 Knowledge of relative test scores, whether inferred from the certificate of eligibles or learned from information supplied by applicants, would not however establish that a particular applicant would be ‘demonstrably better qualified’ than another with a lower score. That a test may be valid for both screening and ranking purposes does not mean that as between two individuals the one with the higher score is better qualified than the one with the lower score. Rather, the validity of a test is assessed in the context of its ability to make job-related measurements that are reliable and valid for groups of individuals. Any attempt to assess the relative qualifications of two individuals on the basis of their test scores is a risky process, and at a minimum requires knowledge of the magnitude of the difference in their scores if not also the significance of that difference given the characteristics of the measuring device. The need for such information under paragraph 2 of the consent decree is highlighted by the language of that paragraph relieving the city from its minority employment goals only if such minority applicants are ‘demonstrably’ less qualified.18 (Emphasis added.)
The ‘Rule of Three’—under which employing agencies have been empowered by state law to select any of the three names submitted by the Board—implicitly recognizes this fundamental concept that the Board’s tests, even if sufficiently job related when considered for a group of applicants, are not necessarily a proper measurement of relative qualifications of particular individuals. Under this rule, the city has been free to select the person on the certification with the lowest test score, and this has been true even though that person’s test score may have been significantly lower than those of others certified. Moreover, given the role of seniority points, the persons certified for consideration might have converted test scores as much as twenty points below those of persons not certified for consideration and those with the highest test scores may not receive consideration until after many persons with lower scores have been selected.19
What this means is that the certification would not have provided city officials with sufficient information to relieve it from its obligation to meet the employment goals established by the decree. In turn, the plaintiffs in this reverse discrimination case cannot prevail on a claim that minority appointments were not required under paragraph 2 by relying on the limited knowledge about test results that could be derived from the Board’s certifications.
The materials submitted by plaintiffs in opposition to the Rule 56 motion do, however, create a genuine issue as to the extent of knowledge that city officials may have had about actual test scores as a result of information provided by the employees themselves. It may be—although this appears very doubtful—that the city officials making (or recommending) promotions did on some occasions have sufficient reliable information about these test scores and about the significance of the differences in these scores to have been justified in not promoting a minority applicant. In such a circumstances, the unsuccessful white male may be able to establish, subject to providing additional proof regarding the validity of the test,20 that the promotion of the minority applicant was not required by the decree and was in turn discriminatory. The court therefore cannot say at this time that the defendants are entitled to summary judgment against all efforts of plaintiffs to show information regarding test scores or that information regarding validity of these tests will necessarily be irrelevant.21
*7 Although the pending motion for summary judgment is therefore due to be denied, the fact remains that the plaintiffs are not likely to prevail on this part of their reverse discrimination claims, in which event the validity of the Board’s tests will not be relevant. Considering the substantial time and expense of discovery and trial that might be wasted on exploration of the validity of these tests, the court concludes (1) that under Fed. R. Civ. P. 42(b) issues regarding the validity of such tests should be severed for subsequent trial, as necessary, after resolution of the other issues in this litigation and (2) that under Fed. R. Civ. P. 26 further discovery into such issues should be deferred until after this initial trial.
As earlier noted, the United States has asked for permission to realign itself with the plaintiffs. The defendants oppose this request, noting that the decree (to which the United States was a party) provides as follows:
‘3. Remedial actions and practices required by the terms of, or permitted to effectuate and carry out the purposes of, this Consent Decree shall not be deemed discriminatory . . . and the parties hereto agree that they shall individually and jointly the defend the lawfulness of such remedial measures in the event of challenge by any other party to this litigation or by any other person or party who may seek to challenge such remedial measures through intervention or collateral attack.
. . . .
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‘54. Compliance with the terms and conditions of this Consent Decree shall constitute compliance by the City with all obligations arising under Title VII . . . as raised by the plaintiffs’ complaints. Insofar as any of the provisions of this Consent Decree or any actions taken pursuant to such provisions may be inconsistent with any state or local civil service statute, law or regulation, the provisions of this Consent Decree shall prevail in accordance with the constitutional supremacy of federal substantive and remedial law.’
To the extent the United States in good faith believes that actions of the city are discriminatory against the plaintiffs and are neither required nor permitted by the Consent Decree, it may support the plaintiffs’ position in this litigation without violating the terms of the consent decree and accordingly may be allowed to align itself as a party plaintiff.
In its brief supporting the plaintiffs on these pending summary judgment motions, the United States has advanced arguments that appear to be contrary to its obligations under the Decree and inconsistent with positions it pressed so vigorously in the earlier litigation. It seems to be contending that promotion of a minority candidate with lower test scores would never be required by the Decree and would constitute a prima facie case of impermissible reverse discrimination and, indeed, that the city would have a duty to seek such information before considering appointment of a minority candidate. Such a position could hardly be consonant with its obligations to uphold the decree, which clearly contemplated that a portion of new appointments would go to minority candidates lower on the eligibility registers. Its apparent change in position is particularly questionable in view of the fact that it has contended—and documented with extensive evidence in the earlier litigation—that the tests have discriminatory impact against minority candidates and are not sufficiently job related to be valid ranking devices under 42 U.S.C. § 2000e–2(h).22 Although permitting the United States to align itself with the plaintiffs, the court will insist that the United States act in accord with its obligations under the Decrees.

ORDER *8 In accordance with the accompanying Opinion, it is hereby ORDERED as follows:
1. The Motions for Partial Summary Judgment filed by the defendants are DENIED.
2. Pursuant to Fed. R. Civ. P. 42(b), issues regarding the effect and validity of Personnel Board tests are severed for subsequent trial after resolution of the other issues in this case.
3. All discovery pertaining to the effect and validity of such tests is deferred until completion of the initial trial.
4. The United States’ Motion to Strike Affidavits or Portions Thereof is DENIED.
5. The United States’ Motion to Realign as a Party-Plaintiff in Bennett v. Arrington, CV 82–P–0850–S is GRANTED, subject however, to the limitations discussed in the accompanying Opinion.

Parallel Citations

37 Fair Empl.Prac.Cas. (BNA) 1, 36 Empl. Prac. Dec. P 35,022

Footnotes

1

The parties recognized that, regardless of the decision on the second trial, a protracted third trial would be needed regarding the

particular practices of the various governmental employers. Although some evidence concerning these practices had already been

obtained and indeed introduced in evidence, extensive additional discovery was likely. The settlement discussions were pursued

with the objective of avoiding the time and expense of further discovery and trial and in recognition of the inherent risks of

litigation regarding both the issues under submission and those remaining to be tried.

2

This ruling was upheld by the Court of Appeals in United States v. Jefferson County, 720 F.2d 1511 (11th Cir. 1984).

3

The persons who represented the class of blacks in one of the earlier actions and were parties to the consent decrees were allowed,

on timely motion, to intervene as additional defendants in these ‘reverse discrimination’ cases. Similarly, the United States, as a

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In re Birmingham Reverse Discrimination Employment Litigation, Not Reported in...

party to the earlier consent decrees, was allowed to intervene; in January 1985 it requested permission to realign itself with the plaintiffs, with whose interests its own position regarding ‘reverse discrimination’ was more compatible.

4

For blacks the appropriate percentage is approximately 28%; for women, approximately 39%. The consent decree provides a

mechanism for adjusting these goals with court approval for jobs requiring professional degrees, licenses, or certificates.

5

Under paragraph 55 of the city’s decree, the court is authorized to dissolve the decree after six years from its entry—approximately

2–½ years from now. Any of the parties, including the United States (which now appears to oppose at least some aspects of the

decree), may make such a motion, and the court is to consider whether the purposes of the decree ‘have substantially been

achieved.’

6

The Court of Appeals had pretermitted ruling on this issue in the intervention proceedings. See United States v. Jefferson County,

720 F.2d 1511, 1518 (11th Cir. 1983): ‘The consent decree would only become an issue [in an independent action asserting

specific violation of their rights] if the defendant attempted to justify its conduct by saying that it was mandated by the consent

decree. If this were the defense, the trial judge would have to determine whether the defendant’s action was mandated by the

decree and, if so, whether that fact alone would relieve the defendant of liability that would otherwise attach. This is, indeed, a

difficult question. . . . We should not, however, preclude potentially wronged parties from raising such a question merely because it

is perplexing. Since we assume that the forum hearing any future suit by the would-be intervenors alleging discrimination would

consider their claims carefully, we hold that the district court was justified . . . in denying intervention.’

7

The affirmative action aspects of the decrees regarding employment and promotion of blacks in the police and fire departments can

be justified on the basis of the judicial findings—affirmed on appeal—that such persons had been unlawfully discriminated against

in testing for entry level positions in those departments. The other affirmative action aspects of the decrees, although not based on

judicial findings of discrimination, pass muster under the standards set in Valentine v. Smith, 654 F.2d 503, 510 (8th Cir.), cert.

denied, 454 U.S. 1124 (1981), cited with approval in the Palmer case, 748 F.2d at 600.

8

This position stems from language in United States v. Jefferson County, 720 F.2d 1511, 1518 (11th Cir. 1983), in which the

appellate court noted that an element in a defense based upon the consent decree would be ‘whether the defendant’s action was

mandated by the decree.’ (Emphasis added.) The later decision of that court (by a panel with two of the judges who were on the

Jefferson County case) in Palmer, supra, suggests a test more favorable to the defendants. In the present litigation the court has

deferred its ruling as to the proper standard until the factual basis of the claims and defenses have been more fully developed.

9

Despite plaintiffs’ arguments to the contrary, a motion under Fed. R. Civ. P. 56 is not an inappropriate vehicle for presenting this

issue to the court. A defendant ‘against whom a claim . . . is asserted’ may move under Rule 56(b) for summary judgment in its

favor ‘as to . . . any part thereof;’ and under Rule 56(d) the court may determine what ‘material’ facts are controverted. Moreover,

the motion may, to the extent appropriate, be treated as one for a protective order under Rule 26(c) against discovery that would be

an ‘undue expense or burden’ or as one under Fed. R. Evid. 104 for a pretrial motion on the admissibility of evidence.

10

In such a controversy the position of two of the major parties might be the reverse of that in the earlier litigation. The United

States, which previously had attacked the various tests as not sufficiently job related, may attempt to support their validity; on the

other hand, the City may seek to challenge the validity of the tests.

11

For example, although the position of police sergeant may require both the ability to accurately shoot a firearm and knowledge of

constitutional law, the Board does not attempt to measure applicants’ abilities with firearms and attempts to measure their

knowledge of constitutional law by asking some representative questions.

12

If multiple appointments to the same job are contemplated, the Board certifies an additional name from the top of the Register for

each additional position.

13

The United States makes a curious attack upon the inclusion of such ‘assumptions’ in the affidavits of the city’s officials, asserting

that such represents matters beyond their personal knowledge and hence impermissible under Fed. R. Civ. P. 56. These objections

are without merit, for these ‘assumptions’ are not being presented as evidence of what the Board actually does in making

certifications, but only as evidence of the state of mind of the officials in using the certifications.

14

Although the validity of bona fide seniority systems is recognized under Title VII, it could hardly be contended that because of

longer city service an individual would be demonstrably better qualified for promotion.

15

No dispute arises from the fact that at an earlier stage in these proceedings a city official did have this information regarding a

particular position (Fire Lieutenant Examination, January 26, 1982). The official has explained by affidavit when and how this

information was obtained and for what purpose it was used. In short, these items were procured by the city from the Board through

discovery requests after a claim of reverse discrimination was made and were used only in the course of that proceeding.

16

These informal compilations are not necessarily reliable. As indicated in these same depositions, information may not be obtained

from all applicants and the information provided by the applicants is not always accurate.

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In re Birmingham Reverse Discrimination Employment Litigation, Not Reported in...

17

A limited additional inference could be drawn in such circumstances as to the magnitude of the difference; namely, the difference

in converted test scores would have been no less than the difference in seniority points.

18

Of the common meanings of the word ‘demonstrably,’ the ones most suitable in this context are ‘obviously’ or ‘clearly.’

19

As an example, the person who received the highest test score on the January 1982 fire lieutenant exam had only 4 seniority points

and was ranked 19th on the eligibility register.

20

The court disagrees with the defendant’s contention that paragraph 2 could apply only if the city officials at the time of making

their selections also had detailed information supporting the validity of the tests.

21

Plaintiffs contend that, irrespective of its relevance on the city’s defense premised on the consent decree, the validity of the tests

may also be material in the plaintiffs’ establishment of a prima facie case of discrimination (that test scores, if the tests were valid,

would help prove they were qualified for the position filled by a minority applicant) or to show that any defense based on selection

of the better qualified candidate would have been pretextual. While this may be true, it does not appear that the defendants in this

litigation will be challenging the plaintiffs’ qualifications or claiming that they selected the better qualified candidate.

22

The United States might, of course, be justified in changing its position regarding the impact and validity of these tests if it had

obtained new evidence demonstrating its earlier views were incorrect. There is no indication that any such new evidence has

surfaced.

8

 
 In re: Birmingham Reverse Discrimination Employment Litigation, 1985 WL 56690 (1985)
1985 WL 56690 (N.D.Ala.) United States District Court, N.D. Alabama.
IN RE: BIRMINGHAM REVERSE DISCRIMINATION EMPLOYMENT LITIGATION
No. CV 84-P-0903-S. | Dec. 20, 1985.
Attorneys and Law Firms
Raymond P. Fitzpatrick, Jr., and Albert L. Jordan (Fitzpatrick & Jordan), Birmingham, Ala., for plaintiffs.
Ralph E. Coleman, Birmingham, Ala., for plaintiff William L. Garner.
James K. Baker, City Attorney, Birmingham, Ala., and James P. Alexander, Robert K. Spotswood, Eldridge D. Lacey, Richard H. Walston, and Greg Hawley (Bradley, Arant, Rose & White), Birmingham, Ala., for defendants Richard Arrington, Jr., and City of Birmingham.
David P. Whiteside, Jr., Michael L. Hall, and Anne P. Wheeler, Birmingham, Ala., and Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, Ala., for defendant Jefferson County Personnel Board.
W. Bradford Reynolds, Assistant Attorney General, and Mary E. Mann, William R. Worthen, and James S. Angus, U.S. Department of Justice, for plaintiff-intervenor United States.
William L. Robinson and Stephen L. Spitz, Washington, D.C., Robert D. Joffe, George C. Whipple, III, Roy E. Hoffinger, and Alden L. Atkins (Cravath, Swaine & Moore), New York, N.Y., and Susan W. Reeves (Reeves & Still), Birmingham, Ala., for defendants-intervenors John W. Martin, et al.
Opinion
POINTER, Chief Judge: -
*1 The Court will now dictate its findings of fact and conclusions of law. These findings of fact are based upon the evidence that has been presented over the past four and a half days, consisting of the testimony of various witnesses and the reception into evidence of voluminous documents.
I state at the outset that the conclusion that I reach is to be favorable to the defendants.
Basically the issue, the legal issue, which, as I view it, is determinative of this case is one that was stated in an order entered back in February of this year.
The conclusions there expressed either explicitly or implicitly were that under appropriate circumstances, a valid consent decree appropriately limited can be the basis for a defense against a charge of discrimination, even in the situation in which it is clear that the defendant to the litigation did act in a racially conscious manner.
In that February order, it was my view as expressed then, that if the City of Birmingham made promotions of blacks to positions as fire lieutenant, fire captain and civil engineer, because the City believed it was required to do so by the consent decree, and if in fact the City was required to do so by the consent decree, then they would not be guilty of racial discrimination, either under Title 7, Section 1981, 1983 or the 14th Amendment. That remains my conclusion given the state of the law as I understand it.
Counsel have amply noted that the law is not clear, however, in this regard. And that this decision is being made at a time when there is uncertainty as to the state of the law.
In the effort to determine what the state of the law is, as best I can determine it, I have considered no single decision. As I evaluate the decisions particularly out of the Supreme Court, it becomes apparent to me that if you look at any one given
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In re: Birmingham Reverse Discrimination Employment Litigation, 1985 WL 56690 (1985)
decision, you can come up with a conclusion as to what the law is which is different from the decision you reach if you look at some other decision. And is required as a result somehow attempting to synthesize what I view to be a development in the law as yet not fully and finally defined.
Much argument has been made as this case came to trial about the burden of proof. I declined in advance of trial to rule definitively on certain hypothetical issues, because I wish to see the state of the evidence as it was presented. I am persuaded that at least in that respect my earlier decision was proper. Because it has become clear to me from the evidence in this case that it is not necessary for the Court to determine whether some action apparently permitted by the consent decree but not mandated by it would be protected against claims of discrimination.
In this case, under the evidence as presented here, I find that even if the burden of proof be placed on the defendants, they have carried that proof and that burden of establishing that the promotions of the black individuals in this case were in fact required by the terms of the consent decree.
I reach that decision on the basis that the language that has become the focus of these proceedings, namely language in paragraph two of the consent decree, would require or would allow an exception to the goals otherwise stated for the City in other provisions of the decree only if the decision-makers at the time of making the decision had information demonstrating that a black, although qualified, was demonstrably less qualified than a white on the basis of a job-related selection device.
During the presentation of evidence here, the only possible job-related selection device that has been presented is that of the test that the Personnel Board uses. Many other criterion have been selected, none have been in any way indicated or demonstrated as being job related. Job related in this sense must be addressed in the context of the regulations under Title 7, which were in force at the time the consent decree was adopted, and indeed continued in force.
In this particular case, the tests used by the Personnel Board have simply been assumed to be valid, that is, job related. However, the evidence demonstrates that the decision-makers on the part of the city did not have the information available to them on which they could have made any kind of judgment that the blacks scoring lower on those exams scored sufficiently lower to be demonstrably less qualified than the whites who were higher ranked.
I had anticipated until this morning that at the conclusion of the case and while still attending to the case I would attempt at the conclusion of the case to dictate findings of fact in my normal manner. That is, I had anticipated that I would simply from my own memory and recollection go through the various items of evidence and make the appropriate findings with respect to the variety of issues and persons involved.
I am varying from that today in doing something that I have done only once before that I can recall. The reason for doing so is that I have received this morning some findings of fact proposed by the defendants that I find to be ninety-eight percent objective, fair and the same findings I would make.
The appellate decisions have cautioned trial courts against simply adopting proposed findings submitted by parties. I am aware of that admonition. I have, however, gone through these proposed findings and will in just a few minutes indicate certain changes that I would make in them. To the extent I do not make changes, I adopt them as my own individual findings. This is both as to findings of fact and conclusions of law. There are in addition a few facts not contained in the findings of fact proposed by the defendants that I will recite as findings of fact by the Court.
First, I will attend to several matters that were not covered by the defendants’ proposed findings of fact. Each of the plaintiffs who complains in this litigation against the failure to be appointed as a fire lieutenant or fire captain or civil engineer or who claims that he was delayed in such an appointment was adversely affected because he was white. Those persons in the absence of the consent decree and in the absence of any affirmative action plan adopted by the City as mandated by the decree would, as I interpret the evidence, have been appointed to the positions they desired and about which they here complain. Each of those individuals ranked higher on the certification list provided by the Personnel Board than the blacks who were appointed by the City pursuant to the consent decree.
Most but not all of those whites who were not selected for those positions had higher test scores on the test administered by the Personnel Board. Although the scores, as I have already indicated, were not known by the decision-makers at least with a sufficient degree of accuracy and completeness to make any judgment concerning the significance of those differences.
Several of the whites who were unsuccessful in their promotional efforts or who were delayed in those promotional efforts not only had higher test scores than the blacks who were selected but had scores which were sufficiently higher on the test
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In re: Birmingham Reverse Discrimination Employment Litigation, 1985 WL 56690 (1985)
that using the techniques of statistical inference would have indicated that the true test score of the white was statistically significantly greater than the true test score of the black. I state that that is true for some of the whites involved but certainly not all.
I make particular mention, although it is contained in the proposed findings of fact submitted by the defendants, that the practice of the fire department both before and after the consent decree was to not consider qualifications in making promotions but instead is to follow willfully the certification list submitted by the Personnel Board, simply selecting the higher ranked person, whether qualified or not.
Only since the consent decree has that been changed one occasion, and that was at a time at deciding that a black who otherwise would have been mandated for promotion under the decree was not qualified. This Court upheld the decision by the City that under the particular facts of that case and that situation the black was not qualified.
With respect to the vacancy in the engineering office, the Court makes the following conditional matter that is perhaps not that explicit in the proposed findings submitted by the defendant. The white who would have been appointed to the position of civil engineer and who certainly was qualified for that position did score higher on the test than did the black who was selected. He, I am referring to Mr. Ware, is the individual who would have been selected by the chief engineer for that position had it not been for the consent decree. In noting, however, that the rankings and test scores coming from the Personnel Board were not in the engineering department deemed to be particularly valuable or useful, the chief engineer would have selected that individual Mr. Ware, even though he scored much lower than another white individual, that is the difference between his score and another white was even greater than the difference between Mr. Ware’s score and the black.
Furthermore, the chief engineer in his deposition testimony indicated candidly that he considered the race of Mr. Thomas, person ultimately chosen, being black, as a negative feature. And that he would have so considered that as a negative feature, but for the fact that the consent decree required him to look otherwise at the candidate. He also noted in his deposition that although he would have preferred because of his view of the experience factor and certain other characteristics, the appointment of Mr. Ware, he could not say that Mr. Ware was to any significant degree better qualified than the person he chose, namely the black Mr. Thomas.
Now, with those additional matters being recited as findings of the Court, I will go through the proposed findings of fact submitted by the defendants and make certain revisions.
On page five, paragraph thirteen, [39 FEP Cases 1437], the last - starting with the words and similar underrepresentation, at that point the paragraph will simply read underrepresentation continues even with the actions taken under the consent decree to this day. And the following sentence will be deleted.
On page thirteen, paragraph forty-five, [39 FEP Cases 1439], that item will be revised to read as follows: Dr. Siskin did not in view of the Court’s limitations as to the scope of trial conduct any studies to attempt to determine whether the Personnel Board’s examinations are job related.
On the same page, paragraph forty-seven, [39 FEP Cases 1440] it should read as follows: Dr. Siskin concluded that at the 0-5 level of significance several non-selected whites’ true test scores exceeded the true test scores of selected blacks by four or more SEM’s.
On page fifteen, paragraph fifty-four, in the third line, [39 FEP Cases 1440, fourth and fifth lines], the word rank or, r-a-n-k space o-r, those two words are deleted.
On page seventeen, paragraph number sixty, [39 FEP Cases 1441], the second sentence is revised to read as follows: This underrepresentation resulted at least in part from discrimination against blacks. On page eighteen, paragraph sixty-three, [39 FEP Cases 1441], that paragraph is deleted. On page twenty-two, paragraph seventy-eight, [39 FEP Cases 1442], the first sentence should read as follows: Moreover the evidence reflects that over the history of this program blacks have had excuse me, whites have had a somewhat greater opportunity than blacks to achieve medic status. On that same page, the parenthetical sentences at the bottom of the page are deleted.
On page twenty-three, in paragraph seventy-nine, [39 FEP Cases 1442], the third sentence it should read a lead worker assist his or her lieutenant. The words “or her” being added.
In paragraph eighty-one on the same page, [39 FEP Cases 1442], that is rewritten to state the lead worker position is usually 3

In re: Birmingham Reverse Discrimination Employment Litigation, 1985 WL 56690 (1985)
assigned on the basis of station seniority. On the next page, page twenty-four, paragraph eighty-four, [39 FEP Cases 1443], that first sentence should read as follows: Additionally, as is the case with all criteria based substantially on seniority, blacks have not, as a whole had the same opportunities as white to meet this proposed criterion.
On page twenty-seven, paragraph ninety-six, [39 FEP Cases 1444], is simply a typographical correction in the spelling of the word “selection.” On page twenty-eight, paragraph ninety-eight, [39 FEP Cases 1444], the last sentence, a typographical correction, the spelling of the word “consider.” On page thirty, paragraph one hundred and ten, [39 FEP Cases 1444-1445], that paragraph is deleted.
On page thirty-three paragraph one hundred and twenty-three [39 FEP Cases 1445], the figures twenty-five percent are changed to fifty percent. On paragraph thirty - excuse me, on page thirty-five, paragraph one thirty-five [39 FEP Cases 1446], that should read in appropriate part, a selection procedure which relies in substantial part on subjective criteria is not a related selection procedure within the meaning of paragraph two within the City decree.
On page thirty-eight, in paragraph one forty-three [39 FEP Cases 1447], the footnote is deleted. On page forty, paragraph one forty-nine [39 FEP Cases 1447-1448], that paragraph is deleted. On page forty-one paragraph one fifty [39 FEP Cases 1448] the following shall stand as paragraph one fifty: The City decree entered by this Court immunizes the City from liability for actions required by it. Any questions concerning this proposition should be dispelled in this Circuit under the present state of the law by the decision of the Court in Palmer versus District Board. That will stand in place of what was written in paragraph one fifty.
In paragraph one fifty-two on page one forty-one and going over to page forty-two [39 FEP Cases 1448] is deleted. On page forty-two paragraph one fifty-three [39 FEP Cases 1448] the following is substituted: Information or opinions not known to the decisionmaker may not be utilized to establish that the individual selected - excuse me, that there were job related selection devices showing one candidate demonstrably better qualified than another.
In paragraph one fifty-four on the same page, the third line [39 FEP Cases 1448], the word “subject” is eliminated and substituted in its place the word “suspect, s-u-s-p-e-c-t. Two lines below that, the word “contemplated,” that word is to be eliminated and instead the word “affected” is substituted for that word.
These findings and conclusions are entered at this time along with the findings and conclusions indicated at the outset of this recitation.
Entry of judgment should not be delayed or deferred. However, I am going to call upon counsel to submit to me on Monday an appropriate form of judgment that simply indicates that in accordance with the findings and conclusions dictated or incorporated by the Court in its oral charge that certain cases or claims are dismissed and directing under Rule 54-B that those findings and resolutions be made final.
I say that I ask this because there is some difficulty - I believe this case fully disposes of or resolves at the trial level the Bennett decision. But I don’t believe that is so with respect to the case in which Mr. Ware had his claims, or at least I am not sure it does, and so there would have to be a 54-B finding in that case. Also since these cases were a part of a larger group of cases consolidated under the name Birmingham Reverse Employment Discrimination Case, it is for safety’s sake appropriate to use 54-B to make sure that there is no question as to finality by virtue of those other cases not having been resolved at this time.
It is for that reason that I call upon counsel to make some analysis to present me with an appropriate one-page order is all it requires which clarifies which cases are due to be resolved as a result of this decision favorable to the defendants.
Cost but no attorneys’ fees are taxed against the plaintiffs in this case. It is clear that there is sufficient merit in these cases to justify the pursuit of them. I say that both on a subjective and objective basis and that claims by a prevailing defendant under the Christian, Burg, Garment case [Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 16 FEP Cases 502 (1978)] would not justify an award of attorneys’ fees against the plaintiffs even though the defendants have prevailed. There may be some question as to whether some change in the standards when you are talking about a reverse discrimination case, but at the present time I am persuaded that Christian, Burg, Garment is the applicable standard to be applied here, even though the with the defendants having prevailed.
Let me stop at this point and see if counsel - I am obviously not asking for - but if counsel has any questions about the Court’s ruling, the nature of it and what you are called upon to do and if you think I have totally left out a subject area that
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perhaps should be included in the findings. Of course, it’s not to cut off a request post-judgment for additional findings, I am not asking for a waiver in that. It may be since I am sure plaintiff’s counsel have not had the opportunity to fully go through these items and compare them with ones that you might want a finding on, I didn’t want to place in those findings that I think are particularly favorable to the plaintiffs to help put this case in the appropriate context which had not been included in the defendant’s proposal.
Does counsel know of anything that - at the present time they would ask me to consider?
Mr. FITZPATRICK: Your Honor, you are correct that we have not had an opportunity to read this which was served at, I guess about twelve noon.
With respect to the other consolidated cases, I think it would be appropriate that if there is an appeal, that some mechanism be provided for keeping those matters on hold in the event there are additional claims filed during the process in which these matters are ultimately resolved on appeal, if appealed, we also set up a mechanism for that.
THE COURT: As to those other cases, I really was not suggesting anything at the moment other than to make sure the presence of those other cases did not affect the appealability of this decision.
MR. ALEXANDER: Your Honor, from the City, I think one concern we would have in trying to avoid a repetition of the expense attended to this matter. And perhaps we can work out some way to keep the other cases in a state of limbo until this is resolved.
THE COURT: Either that or could even be that the ultimate findings that I made here are sufficiently - some of the ones are going to be involved that something in the nature of a summary judgment could be done so that those cases get to be reviewed at the very same time. That’s simply something for y’all to discuss. Certainly there seem to be several possible ways of addressing this. But certainly many of the issues -
MR. ALEXANDER: The one thing I don’t want to do is start police depositions Monday.
MR. FITZPATRICK: Me too.
THE COURT: I am sure of it.
MS. MANN: One point of clarification, do you want to meet with counsel on Monday or do you just want a written -
THE COURT: I would assume that there is some one plaintiff’s lawyer that is in Birmingham and some one defendant’s lawyer that is in Birmingham that can come to me with a one-page document and say Judge, this I think is what you are looking for. We don’t agree with it, we as plaintiffs, but this is what you were trying to do in order to permit the appealability decision. I am not looking for counsel to be around, other than somebody on behalf of the plaintiffs and somebody on behalf of defendants. Thank you very much.
DEFENDANTS RICHARD ARRINGTON, JR., THE CITY OF BIRMINGHAM AND DEFENDANT-INTERVENORS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
Defendants Richard Arrington, Jr., the City of Birmingham, and Defendant-Intervenors (“defendants”) submit the following Proposed Findings of Facts and Conclusions of Law to assist the Court in considering defendants’ Motion for Involuntary Dismissal at the close of plaintiffs’ case.
FINDINGS OF FACT
1. The individual plaintiffs are white males, employed by the City of Birmingham in its Engineering Department or the Birmingham Fire and Rescue Service (“BFRS”), who contend that they have been unlawfully denied promotions on the basis
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In re: Birmingham Reverse Discrimination Employment Litigation, 1985 WL 56690 (1985)
of their race.
2. Also a plaintiff is the United States Department of Justice, an intervenor on the side of the plaintiffs. (“Plaintiffs” will hereafter refer to the individual plaintiffs and the United States collectively. When collective use is inappropriate, the Court will refer to “individual plaintiffs” and “United States” or “government”.)
3. Defendants Richard Arrington, Jr., and the City of Birmingham (collectively the “City”) admit that the Engineering Department and the BFRS have considered race in making promotions, but deny discriminatory intent, and proffer as their legitimate, non-discriminatory motive compliance with a Consent Decree entered in United States v. Jefferson County, 28 FEP Cases 1834 (N.D. Al. 1981) (the “City Decree”); discussed more fully below.
4. Defendant-intervenors represent the interests of the original black plaintiffs (“Martin plaintiffs”) in Martin v. the City of Birmingham, as well as those of the beneficiaries of the relief won by the Martin plaintiffs and their certified classes. They join in the City’s defense that the preferential promotion of blacks was legal pursuant to the City Decree.
5. On August 21, 1981, this Court entered an Order in United States v. Jefferson County approving as fair two consent decrees: one (heretofore designated as the “City Decree) between the City, the Martin plaintiffs, and the United States, executed May 19, 1981; and one between the Jefferson County Personnel Board (the “Board”), the Martin plaintiffs, and the United States (the “Board Decree”), also executed May 19, 1981.
6. Resolution 547-81 authorized the Mayor to enter into the City Decree (United States Exhibit 3 to Gordon Graham 1985 Deposition.)
7. The decrees generally required the City to attempt to meet certain long term and short term goals set forth in the City Decree, and the Board to “certify” to the City (as required by Alabama law under the Civil Service System (“Enabling Act”)) sufficient numbers of black applicants to enable the City to meet its goals.
8. The individual plaintiffs contend that the City Decree is illegal and does not relieve the City from liability to whites who were “passed over” for promotion on account of their race. The government does not join the individual plaintiffs in their contention that the Decree is unlawful.
9. The individual plaintiffs and the government both contend that the City has exceeded the requirements of the City Degree and is hence not protected thereby. That argument consists of two necessary premises: that only employment decisions “mandated” in the sense of being required by the City Decree can provide the City with immunity for its race-conscious promotions; and that the City Decree does not require the promotion of less qualified blacks over demonstrably better qualified whites. The latter contention is grounded on ¶2 of the City Decree, which provides, in relevant part, that the City is not required to promote a less qualified black in preference to a demonstrably better qualified white, as determined by the results of a job related selection procedure. They thus contend that the promotion of a demonstrably less qualified black is not protected by the City Decree.
10. The individual plaintiffs contend that all blacks promoted in the Engineering Department and the BFRS since the entry of the City Decree are demonstrably less qualified than the white plaintiffs; the United States contends that only some of the white plaintiffs are demonstrably better qualified than some of the black promotees. Additionally, both the individual plaintiffs and the United States contend that some of the black promotees were unqualified for promotion at the time of their promotion.
11. In response, the City and Defendant-Intervenors contend that any action contemplated by, or made as a direct consequence of, the City Decree is lawful, and that the promotion of qualified, but demonstrably less qualified, blacks is contemplated and permitted by the City Decree. They further contend that in order to meet the goals provisions of the City Decree, the City is required to promote any black individual whom the City could not prove to be demonstrably less qualified according to the results of a job related, validated, selection procedure. Finally, the City and defendant-intervenors contend that, in any event, none of the blacks promoted are unqualified, or demonstrably less qualified, according to the results of a job related selection procedure.
12. In United States v. Jefferson County, supra, this Court found the City and Board Decrees to be warranted by the evidence of discrimination by the City, based on the factors set forth in United States v. Alexandria, 614 F.2d 1358, 22 FEP Cases 872 (5th Cir. 1980), and the other applicable decisions of the several courts of appeals. Plaintiffs have demonstrated no facts demonstrating that the previous conclusion of the Court was in any way in error.
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In re: Birmingham Reverse Discrimination Employment Litigation, 1985 WL 56690 (1985)
13. To the contrary, the employment statistics reflect that blacks were seriously underrepresented in City employment, specifically in the Engineering Department and BFRS, at the time the City Decree was entered (during the 1950’s, there was a period of time where blacks were not allowed to take the firefighter (Tr. (Pope)) or the civil engineer (Ex. 1982, 1983 examinations), and similar underrepresentation continues to this day. The evidence further reflects that, absent the Consent Decree, the record of the BFRS with respect to the employment of blacks throughout the department would be as abysmal as its record when the City entered into the Decree (see generally Ex. 23, I.A-H).
14. Nor are the interest of whites trammeled by the Decree. Since the entry of the Decree, some have been promoted immediately upon certification, others after only a delay, and those not promoted have had or will have an opportunity to compete as each new exam is given and an eligible register (which is valid for only a year) is created. (See generally, certifications of eligibles.)
15. It is uncontested that the City, in its Engineering Department (compare Duncan 1982 dep. 46-47 with Duncan 1985 dep. 42) and the BFRS (Gallant dlep. 663), has followed the same general promotional practices since the entry of the City Decree as were in place before the entry of the City Decree, the only material difference being that the City now considers the goals of the City Decree in making promotional decisions.
16. In the BFRS, it was Chief Gallant’s pre-City Decree practice to review the personnel file of the certified individuals (Gallant dep. 488-89; Laughlin dep. 165), consult with Deputy Chief Laughlin, consider any other information he had received concerning the “certified eligibles” (Gallant dep. 214, 278, 529) (although he did not actively seek such information), and promote the eligibles in the order in which they appeared on the certification, absent a reason to believe they were not qualified to perform the duties of the position for which they were being considered (Gallant dep. 476-78; Laughlin dep. 141, 253, 328, 343, 452). The Chief made no effort to compare the qualifications of the certified individuals; the only decisions he made were whether he could prove that they were not qualified (Gallant dep. 140-41, 476; Laughlin dep. 361, 646).
17. The general procedure Gallant followed before the entry of the City Decree has not changed (Gallant dep. 663). The only material change in Chief Gallant’s procedure since the entry of the Decree is that he now alternates between blacks and whites, selecting in each case the highest ranked white or black, as appropriate under the City Decree (Gallant dep. 368, 391-92, 489-90, 818).
18. Chief Gallant’s procedure of selecting the highest ranked individual is based on his belief that, as a practical matter, if not a legal matter, he is required to promote in rank order absent an ability to prove that the highest ranked individual of either race is unqualified for the promotional position (Gallant dep. 140-41, 329-40). Gallant bases his belief on experience (id., 327) the strong civil service system (id., 480, 633-34, 813-14), the expectation of administrative appeals and/or lawsuits by a passed over candidate (id., 635-36), morale (id., 894), long-standing custom and tradition (id., 339, 634), and his inability to make comparison of qualifications (id., 498).
19. In Chief Gallant’s view, the Board certifies the candidates as qualified for promotion, and he must assume the Board is correct unless he can prove otherwise (id., 140-41, 894).
20. Gallant does not base his practice of following rank order on any belief that the Board’s certification procedure is effective in ranking candidates according to relative abilities. He has no knowledge of whether the Board examination tests the knowledge necessary for promotion (Gallant dep. 219), and he does not believe the highest ranked candidates are the best qualified (id., 659, 871). He does not believe the Board’s procedure is the best possible system (id., 236).
21. Neither Chief Gallant nor Chief Laughlin are aware of any meaningful, job related method by which to compare the relative qualifications of candidates for promotion (id., 498; Laughlin dep. 137, 190, 298, 300). Laughlin is not aware of any way in which to quantify the value of diverse or competing varieties of experience (Laughlin dep. 156, 450, 672).
22. Gallant would, however, reject any candidate he could show is unqualified (id., 476) and has in fact rejected a black firefighter certified for promotion to Fire Lieutenant (id., ____).
23. The United States (and, apparently, the individual plaintiffs) have suggested that the following criteria could and should have been considered by Chief Gallant to compare the qualifications for promotion of the individual plaintiffs to the promoted blacks: 1) the raw, converted, and final scores achieved on the Board administered promotional exam, together with the rank of the individual on the “eligible register”; 2) the BFRS seniority (length of service on the department) of each
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In re: Birmingham Reverse Discrimination Employment Litigation, 1985 WL 56690 (1985)
candidate for promotion; 3) the highest formal station assignment held by a candidate; 4) whether a candidate has been “certified” by the BFRS as a driver or assistant driver of an apparatus; 5) the number of months each candidate served as a leadworker or medic; 6) the number of shifts served by an individual as an acting officer; 7) any educational pay incentive received by the individual; and 8) other firefighting experience (aside from that gained in the BFRS) (See, Exhibits 139-159).
TEST SCORE AND RANK
24. Under state law, the Board has the authority and duty to “certify” candidates to the City for all positions, entry level or promotional, in the Classified Service (Enabling Act, §16).
25. In fulfilling this obligation, the Board administers written examinations. The Board then grades the examinations, first determining a “raw score,” or simply the number of questions an individual answers correctly. The Board then sets a passing point and calculates a “converted score” on a scale of seventy (70) to one hundred (100), for those who passed the exam. A “final score” is determined by adding to the converted score one point for each year of service in the classified service in the City up to twenty (20) years. Finally, the Board ranks the candidates on an “eligible register” based on the final scores.
26. Plaintiffs contend that the City should have considered test and rank information in comparing candidates for promotion. The City and Defendant-Intervenors respond that, assuming a duty to compare qualifications, the information was not reliably available to the City, nor was information necessary to enable the City to determine the significance of any differences in test scores. (The issue of the validity, vel non, of the examinations has been severed. In light of the Court’s disposition of the case, that issue need not be reached.)
27. When a department has promotional vacancies, it prepares a “request for certification” of promotional candidates. (Graham 1985 dep. 159). Prior to forwarding the request to the Personnel Board, the City Office of Personnel reviews the Request for Certification to determine, inter alia, whether the department is in compliance with its affirmative action plan. If not, a notation is stamped on the request, indicating that the City requests that qualified blacks and/or females be certified. (Graham 1985 dep. 161-162). The City then receives a certification of the names of individuals eligible for promotion. Prior to the entry of the Decree, the City received a number of names equal to the number of vacancies plus two additional names (“Rule of 3”). (Graham 1985 dep. 169). Since the entry of the City Decree, when the City indicates on its request for certification that its promotional goals have not been met, the Board certifies ranking individuals pursuant to the rule of three, plus the names of a sufficient number of black individuals to enable the City to meet its City Decree goals. (Graham 1985 dep. 170-71).
28. The Board forwards the certification to the City Office of Personnel which, after reviewing the certification to determine that a sufficient number of names have been identified, forwards the certificate to the department. (Graham 1985 dep. 180-81).
29. The department head selects a candidate from the certification and submits a recommendation for the Mayor’s approval. (Graham 1985 dep. 180-81).
30. The only entity which can verify test score and ranking data is the Personnel Board. (Graham 1985 dep. 223-24).
31. The Certification contains only a list of names, with no reference to any score or rank (the rank of white individuals can be inferred, at least initially, by the order in which they are certified; the rank of selectively certified blacks is not reflected, nor can it be ascertained from the face of the certification.) (Paragraph 5 Supplemental affidavit of Gordon Graham, U.S. Exhibit 5 to Gordon Graham 1985 Dep).
32. The City has never received test score information from the Board and has never relied on test scores in making promotions (except for a single interval, the circumstances surrounding which render it irrelevant to the instant controversy.) (Graham 1985 dep. 229-231; Arrington dep. 111, 113) In re: Birmingham Reverse Discrimination Employment Litigation, 37 Fair Emp. Prac. Cas. 1, 6 n. 15.
33. The Board Rules and Regulations provide that test scores are confidential by reason of public policy. (PX2, Board Rule 1.11).
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In re: Birmingham Reverse Discrimination Employment Litigation, 1985 WL 56690 (1985)
34. The testimony concerning whether the Board would have provided test scores to the City had the City requested was inconclusive. The Court concludes that plaintiffs have not demonstrated that the test scores were available to the City from the Board. (Arrington dep. 111, 113).
35. Plaintiffs contend that the City could have acquired rank and test score information from “informal lists”, reflecting rank and test score information, created by individual promotional candidates and frequently posted, as a matter of general interest, at the stations (Tr. 851). The lists do not include descriptive statistics, such as standard error of measurement (Tr. 119, 851, 1024-25).
36. The informal lists are created through a “grapevine” process of calling various test-takers to ascertain their rank (and sometimes score) as well as the rank of any other individuals of which they may claim knowledge (Tr. 1024).
37. The informal lists are rarely complete beyond the first ten (10) to fifteen (15) positions (if complete to that point), and reflect the scores of between zero and fifty (50%) percent of the individuals listed. (Tr. 851, 1025).
38. The City considers efforts by the City employees to compile score and ranking data unreliable. (Graham 1985 dep. 223).
39. Due to problems with clerical errors, the City does not consider the Personnel Board card sent to examinees to be a reliable source of score and rank information. (Graham 1985 dep. 224).
40. The lists are generally, though not entirely, accurate with respect to the rank of the top ten (10) to fifteen (15) individuals, where listed, but are not as accurate with regard to the test scores listed, if any. (See exhibits 162-165; stipulation).
41. The Court concludes that the informal lists do not provide sufficiently complete or reliable information to enable the City to make any meaningful judgment regarding relative qualifications of promotional candidates.
42. The plaintiffs also contend that the City could have acquired test score information from the Board Consent Decree reports filed with the Court. Comparison of the filing dates of the Board’s report with dates of promotions reveals that Woodrow Laster was the only black whose score could have been ascertained prior to his promotion and the Court had previously determined that Mr. Laster was promotable at a hearing on April 23, 1982. Moreover, there is no evidence suggesting that these reports were contemplated as a source of test score data and were not, under the terms of the Personnel Board Consent Decree, required to be furnished to the City.
43. Dr. Bernard Siskin is an expert qualified to testify concerning statistics. (Tr. 753-54).
44. Dr. Siskin analyzed the probability that the difference between two individuals’ test scores would be as observed if their true test scores were a given number of standard errors of measurement (“SEMs”) apart. (Tr. 756-57; 762-68).
45. Dr. Siskin’s analysis does not show whether the Personnel Board’s examinations are job related or valid. (Tr. 773-74; 793-94).
46. Dr. Siskin compared the test scores of selected (i.e., promoted) blacks with the test scores of certain nonselected (i.e., nonpromoted) whites. He used test scores from the 1982, 1983 and 1984 fire lieutenant’s exam and for the 1983 fire captain’s exam. (Tr. 755; PX 23; PX 101).
47. Dr. Siskin concluded that, at the .05 level of significance, several nonselected white’s true test scores were 4 or more SEMs apart. (Tr. 768-71; PX 101).
48. The SEMs used by Dr. Siskin for the examinations he considered had been calculated by the Personnel Board and provided to him by counsel for the United States. (Tr. 771-778; PX 23). The SEMs had been calculated based on the Kuder-Richardson 20 reliability coefficient (“KR20”). (Tr. 787). He used raw examination scores, (Tr. 754-55), and, given the data he had, converted scores could not be used. (Tr. 772). However, he testified that he did not believe that there would be much difference in the results if converted scores were used rather than raw scores. (Tr. 773).
49. If the City had had all of the converted scores for a particular examination, it could calculate the standard deviation. (Tr. 781). The reliability coefficient which he used for raw scores could reasonably be used to calculate the SEMs for converted scores. (Tr. 782).
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In re: Birmingham Reverse Discrimination Employment Litigation, 1985 WL 56690 (1985)
50. To calculate the SEMs, the City would have had to have the reliability coefficient and the standard deviation of the test being considered. (Tr. 783).
51. To calculate the standard deviation, the City would have had to have all of the examinees’ scores on a particular examination. (Tr. 785-86).
52. To calculate the KR20, the reliability coefficient Dr. Siskin used, the City would have had to have the number of correct responses given to each question on the exam. (Tr. 786). Without the pass/fail rates for any of the questions, the KR20 could not have been determined. (Tr. 786-88).
53. Dr. Siskin’s analysis could not have been done by the City if the only information available to the City were the informal lists of examinee’s ranks and scores reflected in PX 162, PX 163, PX 164 and PX 165. (Tr. 788-90). There is no evidence that any of the informal lists contained enough information to conduct Dr. Siskin’s analysis.
54. The Court concludes that the City had no source from which it could reliably obtain sufficient information to consider in any manner on the rank or test score of a candidate on a promotional exam in comparing competing candidates. The City officials making (or recommending) candidates for promotions did not on any occasion have sufficient reliable information about the test scores and about the significance of the differences in these scores to have been justified in not promoting a minority candidate. See, In Re Birmingham Reverse Discrimination Employment Litigation, 37 Fair Empl. Prac. Cas. 1, 7 (N.D. Ala. 1985).
BFRS SENIORITY
55. Plaintiffs appear to rely on seniority as a proxy of sorts for experience gained in the BFRS. It is basically agreed that experience as a firefighter with the BFRS is valuable in terms of performing the duties of lieutenant or captain. However, the amount of experience necessary or desirable, a manner in which to quantify experience for purposes of comparing the experience of the individuals, and the relationship of years of service to experience gained appears to be largely matters of personal opinion.
56. Several witnesses, including a Battalion Chief, take the view that the quality and quantity of experience gained in a given amount of time varies widely depending on the activity of a station and the general nature of the emergencies in its territory (e.g., industrial or commercial firefighting versus residential firefighting) (Tr. 79, 103-04). Other witnesses, including a Battalion Chief, testified that the station assignment is of little significance. (Tr. 178). Yet other witnesses fall between the two extremes, agreeing that station assignment can make a difference, but assigning varying degrees of significance to that difference.
57. No witness was able to state a manner in which the difference in experience could be meaningfully measured or quantified in any fashion (tr. 103), much less one that would reasonably measure the job relatedness of that criterion. To the contrary, those questioned on the matter professed an inability to quantify or compare experience. The Court thus finds it unnecessary to adopt any opinion as to the degree to which experience may vary, due to the Court’s finding that experience cannot be measured or compared for purposes of predicting job performance as lieutenant or captain.
58. It appears clear that experience does vary to some undetermined and undeterminable extent from station to station, and hence the Court concludes that time in service is not a reliable or uniform measure of experience.*
59. Most importantly, there is no evidence demonstrating a relationship between BFRS seniority and job performance as an officer.
60. Additionally, the first black was not hired on the department until 1968 (PX 27, Tr. Bolin, 221), and only one additional black was hired prior to the initiation of the Martin suit in 1974. (Ex. 23). This underepresentation has already been found by this Court to have resulted from discrimination against blacks. In light of the obvious adverse impact on blacks which results from considering seniority, together with the absence of any suggestion that seniority predicts job performance, the Court finds that seniority is not a factor which can be considered under the City Decree in selecting between black and white candidates.
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In re: Birmingham Reverse Discrimination Employment Litigation, 1985 WL 56690 (1985)
HIGHEST FORMAL STATION ASSIGNMENT
61. Within the general classification of firefighter, various positions exist. For example, on the engine, the positions from lowest to highest are plugman, back-up man, nozzleman/assistant driver, and driver (the driver is also frequently a “leadworker” position, recognized by the Board in the form of 5remium pay - the leadworker position will be addressed separately, below)
62. The general rule, which appears to be followed the vast majority of the time, is that station positions are assigned based on station or department seniority. (Tr. 89-90). While there was testimony that the captain, who assigns positions, has the discretion to appoint a less senior firefighter to a position “above” a more senior firefighter (e.g., Tr. 290-91), that appears to occur very rarely, and then usually due only to the preference of the senior firefighter not to take the higher position.
63. The only case testified to in which a junior firefighter was assigned (in this case on a temporary basis) a station assignment above a more senior employee involved a junior white and senior black. (Tr. 456).
64. While there was testimony that the leadworker position provides valuable experience for the rank of lieutenant, there was no testimony suggesting that serving in one of the remaining positions, as opposed to another, had any bearing on the qualifications of an individual to serve as lieutenant or captain. (Tr. 108-109). The only testimony in that regard was from Battalion Chief Bolin, who stated that he “certainly wouldn’t want to make a statement that a plugman wouldn’t be eligible to be a lieutenant.” (Tr. 106). While each position carries with it a specific responsibility upon arriving at a fire, the evidence reflects that once these responsibilities are fulfilled, every firefighter assists in any manner necessary or helpful at the fire scene.
65. Most significantly, there is no evidence that the specific position(s) held as firefighter are predictive of performance as lieutenant or captain.
66. Because there is no evidence that position assignment as a firefighter is predictive of performance as a lieutenant or captain, and because position assignment is tainted by reliance on seniority, the Court concludes that highest formal station assignment held is not a permissible criterion on which to base promotional decisions, particularly in light of the underlying intent of the City Decree.
CERTIFICATION AS DRIVER
67. The policy of the BFRS is to require that drivers and assistant drivers be “certified” as qualified to drive an apparatus by passing an “examination” of skills administered by Captain Smith (Tr. 188) at the drills and training field (Tr. 189). The BFRS prefers that anyone in a position which makes it likely that he or she will need to fill in as driver also be certified, though that is not always possible, and hence, not always the case. (Tr. 878).
68. In order to take the driver’s test, an individual must successfully acquire a letter from his captain to Captain Smith, requesting that Smith administer the test and stating the Captain’s belief that the individual is prepared for the test. (Tr. 878-79; Ex. 75). It is the obligation of the individual’s officer to prepare him for the driver’s exam (Tr. 214, 222) who hence bears partial responsibility for a firefighter’s test result (Tr. 215). One of the blacks testified that the reason why he was not certified as a driver was that at his station only those one level below the driver could take the driver test.
69. The driver’s exam is administered by Smith and includes knowledge of the equipment and the apparatus, use of that equipment, hydraulics, and a road test. (Tr. 188-191) The individual is tested on the apparatus he usually rides. If he does not ride an engine, he is tested on the engine at his station as well (Tr. 191-92). A firefighter need pass the driver’s test only once, regardless of whether he transfers to an apparatus on which he has never been tested (Tr. 213).
70. The test is oral, rather than written (Tr. 192), and there apparently exists no document reflecting the questions to be asked (Tr. 209). Though the test in each case seems to be fairly uniform and exhaustive, there are no guarantees of consistency (see Tr. 193). The grading also appears to be flexible (see, Tr. 210, 212).
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In re: Birmingham Reverse Discrimination Employment Litigation, 1985 WL 56690 (1985)
71. The first black to pass the test was Leslie Garner, who did so in 1972 (Tr. 215-16). Only 16 blacks have since passed the driver’s test (Tr. 216-218).
72. Records of those passing the test are forwarded to the Chief’s office; records of those failing are not. (Tr. 200-201).
73. While Smith testified that the driver’s test is job related to the job of driving a fire apparatus (Tr. 219), he testified only that the knowledge covered by the driver’s test was “useful” to a fire lieutenant in the performance of his duties (Tr. 222).
74. The Court concludes that the right to take the test, the test itself, and the scoring thereof, involve too much latitude left to be exercised at the discretion of superior officers. This makes the criterion of certification as driver the kind which has been found to be particularly suspect as likely to be affected by the biases of the superior. Moreover, there is no evidence on which to base a finding that passage of the driver’s test is predictive of performance as a lieutenant or captain. It is not a permissible criterion on which to base promotional decisions.
MONTHS SERVED AS MEDIC
75. A “medic” is a state licensed paramedic capable of performing advanced life support procedures. The training of a medic is extensive (Tr. 135-39), and in light of the fact that 60% (Tr. 140) of all of the BFRS runs are for emergency medical service, it certainly appears to be valuable experience for an employee of the BFRS of any rank.
76. While there was testimony that being a medic was beneficial to a Lieutenant, there was also evidence that it should not be considered (Tr. 356), and there is no evidence suggesting that whatever benefit it confers can be quantified. (Tr. 824-25).
77. More significantly, there is no evidence showing that qualifying as a medic is predictive of job performance as a lieutenant or captain.
78. Moreover, the evidence reflects that blacks have been excluded from the opportunity to achieve medic status, except at their own time and expense, a burden not imposed on many of the white medics. (Tr. 100-01) The medic program was established in 1973. (Tr. 158). No black firefighters of the BFRS were in either of the first two medic classes attended by employees of the BFRS (Tr. 161-162); the department paid the tuition for that training and allowed the selected employees to receive the training, in part, on company time (Tr. 163-64). Witnesses have been able to name only a few black paramedics out of 120 in the department as a whole. (See, Tr. 183). Whether this was based on the intentional exclusion of blacks from the medic program or, as is more likely, resulted from the earlier exclusion of blacks from the department as a whole is irrelevant. The fact remains that blacks as a group are substantially underrepresented in the medic ranks, a status which is likely to continue since the BFRS in 1982 stopped paying tuition and allowing time off for paramedic training. (Tr. 165). Reliance on medic status cannot be validated and is an impermissible criterion for comparing promotional qualifications.
(The Court notes that plaintiffs organized their criteria with months served as medic/months served as leadworker as one category and shifts served as acting officer as another. Because the evidence shows that the job of a medic is not comparable to the job of a leadworker, TR. 171, and further, that the value of leadworker experience, if any, is due to a leadworker’s service as acting, the Court has rearranged plaintiffs’ categories to conform to the evidence.)
MONTHS SERVED AS LEADWORKER AND SHIFTS AS ACTING OFFICER
79. Leadworker status is the highest position which can be obtained by a firefighter in the BFRS. The position of leadworker carries with it responsibilities beyond those of other firefighters. (Tr. 67-68) A leadworker assists his Lieutenant in the performance of supervisory duties and can be called upon to serve as acting officer in the absence of the regularly assigned officer. (Tr. 67-68) An acting officer has the duties, responsibilities and privileges of an officer.
80. The evidence reflects the leadworker position can give a firefighter valuable experience for serving as an officer. (Tr. 67-68)
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In re: Birmingham Reverse Discrimination Employment Litigation, 1985 WL 56690 (1985)
81. The leadworker position is generally assigned on the basis of station or BFRS seniority (usually station seniority). (Tr. 91, 94, 102, 148).
82. Assignment to leadworker is based on the discretion of the captain. In cases when the most senior firefighter is not promoted to leadworker, the captain chooses the leadworker based on his subjective opinion of who is most qualified. Criteria which are influenced by the subjective evaluations of supervisors are, obviously, in this context suspect.
83. However, the evidence does not support a conclusion that the mere fact of service as leadworker or acting officer predicts successful job performance as an officer. (See, Tr. 1021) While it is self-evident that leadworker and acting officer experience is valuable, and the record so reflects, there has been no testimony concluding that serving as leadworker or acting officer will necessarily make an individual a good officer. To the contrary, Battalion Chief Wood notes that the value of acting officer experience is determined by how well the individual performs as an acting officer. (Tr. 177). The mere fact of service does not reveal enough.
84. Additionally, as is the case with all criteria based substantially on seniority, blacks have been barred from meeting this proposed criteria. (Tr. 91) The testimony indicates that only one black has ever served as leadworker.
85. Due to the clear adverse impact on blacks and the absence of evidence that service as leadworker or acting officer will successfully predict job performance, leadworker and acting officer status are not permissible criteria on which to base promotional decisions.
EDUCATIONAL PAY INCENTIVE
86. Pursuant to the Board rules, incentive pay is awarded for certain educational accomplishments. An individual who obtains an AAS degree in Fire Science (offered at Jefferson State Junior College) will receive a 5% pay increase. (Tr. 964, 984) An additional 5% may be obtained if an individual earns a four year degree in certain, specified fields (e.g., Business Administration). (Tr. 47).
87. The Fire Science Curriculum at Jefferson State consists of approximately twenty-six (26) courses, thirteen (13) fire related courses and thirteen (13) liberal arts courses. (Tr. 46).
88. As with the other criteria heretofore discussed, opinions as to the value of fire science course work cover a broad range. A Fire Science degree was considered highly significant by some witnesses, yet relatively unimportant to others. Those who thought it should be considered in promotional decisions were unable to assign a weight to its value relative to other criteria. Others thought it should not be considered at all in making promotional decisions.
89. More significantly, there was no evidence that lieutenants or captains with a Fire Science degree perform better than lieutenants or captains without such a degree, or that a Fire Science degree predicts to any demonstrable extent the performance of an individual as an officer. Having a Fire Science degree, hence, has not been shown to be a job related selection criterion.
90. As to credit for non-fire-related degrees, there has been little or no explanatory testimony that such a degree is related to the responsibilities of a fire officer. The Court finds that any possible connection is tenuous at best and whether a candidate has a liberal arts degree is not an appropriate measure of comparison.
OTHER FIREFIGHTING EXPERIENCE
91. The testimony reflects that firefighting experience gained outside the BFRS may be helpful, but again may not. (Tr. 358, 386). It would certainly appear to depend on the extent and complexity of the prior experience, factors not taken into account by the United States. (See, Exhibits 139-159). It appears that the BFRS’s extensive training subsumes all but extensive, sophisticated prior experience. (Tr. 748).
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In re: Birmingham Reverse Discrimination Employment Litigation, 1985 WL 56690 (1985)
92. More importantly, there is no evidence demonstrating a relationship between outside firefighting experience and performance as a lieutenant or captain. It is not a job related selection criterion.
93. The Court finds that prior fire experience is not a permissible criterion on which to base promotional decisions in the Fire Department.
SELECTION PROCEDURE
94. The United States and plaintiffs have suggested that the foregoing criteria should have been considered collectively to compare promotional candidates. The City and Defendant-Intervenors have responded, not unfairly, that the factors are a “hodgepodge” of unvalidated criteria.
95. Irrespective of the value of any individual criterion standing alone, the Court recognizes that there has been no testimony explaining, or even suggesting, how each of the criteria should or could have been weighed and evaluated against other criteria. Those who testified on the subject were unable to suggest an analysis; and the record reflects that each individual questioned had a different notion of whether, and to what degree, a particular factor was of significance or should be considered in making promotions.
96. While plaintiffs presented a great deal of evidence suggesting that meeting certain criteria could be useful to an officer, this Court has heard not an iota of evidence that officers who meet any or all of those criteria actually perform better as officers than those who do not. Plaintiffs, in short, have not presented evidence that their proposed criteria can be combined to create a job related selectin procedure, i.e., a method of evaluating candidates which will accurately predict their future performance as officers.
97. Therefore, the plaintiffs have not demonstrated that any of the individual plaintiffs, were at the time of their promotion demonstrably better qualified than any of the blacks certified from the same eligible register based on the results of a job related selection procedure.
ENGINEERING DEPARTMENT
98. John Duncan recommends candidates for promotion in the Engineering Department. Because Duncan is personally familiar with most of the people in the Engineering Department, his promotional practice, both pre-and post-Decree, is to base his recommendation for promotion on his assessment of the job duties of the position in question, and his knowledge of the past experience, job performance and training of the candidates for promotion. (Duncan 1982 dep. 46-47; Duncan 1985 dep. 42). Hobson Riley, Assistant City Engineer, assists Duncan in selecting candidates for promotion by interviewing the candidates and making recommendations to Duncan. (Duncan 1982 dep. 37). Of course, Duncan considered the requirements of the City Decree (See, Duncan 1982 dep. 95).
99. In Duncan’s view, the Personnel Board determines whether an individual is qualified; Duncan also evaluates the individual and makes an independent determination. (Duncan 1982 dep. 83-84).
100. Neither Duncan nor Riley were aware of the test score or rank of Lucious Thomas prior to his promotion. (Riley dep. 99; Duncan 1982 dep. 104-05).
101. Riley and Duncan discussed the promotional list and recommended Lucious Thomas for the position of civil engineer based on the requirements of the City Decree. (Riley dep. 38; Duncan 1982 dep. 91-92).
102. Lucious Thomas was qualified for the civil engineer position (Duncan 1982 dep. 96; John Duncan 1985 dep. 98; Riley dep. 37-38).
103. The reasons Duncan considered Ware better qualified than Lucious Thomas were: his higher rank on the certification of
14

In re: Birmingham Reverse Discrimination Employment Litigation, 1985 WL 56690 (1985)
eligibles, his seniority, the fact that his job performance was slightly better (Duncan 1985 dep. 114) (though he also testifies that they were “about equal” (id. 113)), and the fact that Mr. Thomas was black. (id. 191-92).
104. Duncan considered the fact that Ware was white to be a positive factor which would have supported the selection of Ware. (Duncan 1985 Dep. 191-192)
105. Though Jack Dunlap, a former supervisor of Thomas, had certain criticisms of Thomas’ past performance (Tr. 1162-63), Dunlap did not discuss these criticisms with Duncan prior to Thomas’s promotion to civil engineer. (Id. 1176-77) Dunlap had also recommended Thomas for promotion to Chief of Party based on his job performance (Tr. 1176).
106. Duncan believes that Lucious Thomas was not demonstrably less qualified than Kenneth Ware (Duncan 1982 Dep. 97; Duncan 1985 Dep. 97-98, 113-114), and the Court so finds.
107. The promotion of Thomas was made pursuant to (Tr. 1112, 1114, 1167), and was required by the City Decree (1982 Duncan dep. 95, 97; 1985 Duncan Dep. 97-98, 113-114).
INVOLVEMENT OF CITY ADMINISTRATION AND PROMOTIONS
108. Aside from the selection of department heads, the Mayor of the City of Birmingham and the Mayor’s office have very little involvement in making promotional recommendations in the Engineering and Fire Department. (Deposition of Mayor Arrington at p. 104). Typically, the City’s Office of Personnel reviews all personnel matters with the exception of Department head promotions without the involvement of the Mayor’s Office. (Arrington Dep. 104; Graham 1985 Dep. 192).
109. The Mayor’s view is that the certification of an individual for promotion by the Personnel Board creates a presumption that the individual is qualified. (Deposition of Richard Arrington at p. 94; pp. 33-38, 428-429, Gordon Graham 1985 Deposition). The information provided to the City by the Board relative to individuals’ qualifications is scanty. The Mayor has never seen test scores of individuals certified as eligible for a position with the City of Birmingham - even of those candidates for department head positions (Deposition of Richard Arrington at p. 111), despite the Mayor’s having requested the Personnel Board to allow him to see all the information that was available on candidates for the position of Police Chief. (Deposition of Richard Arrington at 113).
110. The Court finds that the City’s ability to determine relative qualifications is hindered further by the Personnel Board policy against allowing the City to take further action that the Personnel Board deems to be “additional testing.” The Personnel Board’s refusal to allow the Mayor to establish a three-member committee of engineers to interview candidates for the position of City Engineer is an example of the limitations imposed by the Board on the City in making employment selections and promotions. (Deposition of Dr. Ed Lamonte at p. 94, 96-97; deposition of Richard Arrington at p. 172).
111. The Court finds further that the Mayor’s involvement in reviewing promotions within the Fire Department and the Engineering Department of the City of Birmingham is so slight that it merits no further attention by this Court. (Deposition of Dr. Edward Lamonte at p. 27, p. 59; deposition of Richard Arrington at p. 104, p. 356).
112. Gordon Graham, the Chief Personnel Officer of the City of Birmingham, is responsible for directing the activities of the Office of Personnel which includes supervision of personnel records, affirmative action responsibilities, benefits administration, administering the occupational safety and health plan and labor relations. (p. 33 Gordon Graham 1982 Deposition). Pursuant to the Consent Decree, the Mayor further designated Mr. Graham as the City’s Affirmative Action Officer. (p. 141 Gordon Graham 1985 Deposition).
113. When the City rejects a certified candidate on the basis that the individual is not qualified, the Personnel Board recertifies the rejected candidate. (p. 391-394 Gordon Graham 1985 deposition).
114. The only factors department heads are required to consider in making promotional recommendations are the individuals certified by the Personnel Board, the requirements of the Consent Decree and the City’s preferential policy toward City residents. (p. 196 Graham 1985 Deposition)
115. All applicants certified by the Personnel Board are presumed qualified unless a candidate lacks some essential skill that
15

In re: Birmingham Reverse Discrimination Employment Litigation, 1985 WL 56690 (1985)
the Personnel Board did not test. (p. 428-429 Gordon Graham 1985 deposition).
116. As Affirmative Action Officer of the City, Mr. Graham is responsible for reviewing, prior to final selection, a department head’s written justification for failure to select certified black or female applicants in jobs in which blacks or females are underrepresented under the terms of the Consent Decree. (Paragraph 3 Supplemental Affidavit of Gordon Graham, U.S. Exhibit 5 to Graham 1985 dep.).
117. The City has no formal promotional criteria. Department heads have been instructed to recommend candidates who in their judgment are qualified. (Graham 1985 dep. 423-24).
118. On occasions the Office of Personnel has accepted explanations of the failure to recommend a certified black or female pursuant to a determination by the department head that the female or black was less qualified. (Graham 1985 dep. 173-75).
119. If a department fails to recommend a certified black or female and the Consent Decree goals have not been met, when the Office of Personnel receives the recommendation from the department head he reviews the recommendation to determine if there was sufficient written justification for the failure to select a black or female. (Graham 1985 dep. 61-62, 100-101).
CITY DECREE INTERPRETATION
120. One purpose of the City Decree was to insure that any disadvantages to blacks and women that may have resulted from past discrimination against them are eliminated. City Decree at 2.
121. One purpose of the City Decree was to avoid the burdens and expense of litigation. City Decree at 2.
122. Paragraph 5 of the City Decree obligates the City to adopt as a long term goal the employment of blacks and women to each job classification in each department of the City in percentages which approximate their respective percentages in the civilian labor force of Jefferson County as defined by the 1970 Federal Census.
123. Paragraph 6 of the City Decree obligates the City to establish and attempt to achieve an annual goal of making probational appointments of blacks to vacancies in the position of Fire Lieutenant at a rate of 25% or at the rate of black representation among applicants, whichever is higher.
124. Paragraph 8 of the City Decree obligates the City to promote at least one black to the next two captain vacancies in the Fire Department.
125. The goals referred to above and set out in paragraphs 5, 6 and 8 of the City Decree are expressly made subject to the availability of qualified black applicants; the aforementioned goals are not expressly made subject to the availability of black candidates who are not demonstrably less qualified than competing white candidates based upon the results of a job related selection procedure.
126. The purpose of the aforementioned goals is to correct the effects of any underrepresentation of blacks and women in the City’s work force.
127. Paragraph 10a of the City Decree obligates the City to request the Personnel Board to certify selectively to the City for appointment qualified blacks and females, whenever such action is necessary to enable the City to meet the aforementioned goals.
128. Paragraph 3 of the City Decree provides that “remedial actions and practices required by the terms of or permitted to effectuate and carry out the purposes of the Decree shall not be deemed discriminatory within the meaning of ... the provisions of 42 U.S.C. §2000e-2(h), (j)”
129. Paragraph 2 of the City Decree provides that nothing in the City Decree shall be interpreted as requiring the City to hire or promote a less qualified person in preference to a person who is “demonstrably better qualified based upon the results of a job related selection procedure”.
16

In re: Birmingham Reverse Discrimination Employment Litigation, 1985 WL 56690 (1985)
130. The purpose of paragraph 2 was to relieve the City from liability under the Decree if, although otherwise required by the Decree, it should reject a minority candidate because the results of a job related selection procedure show that person to be demonstrably less qualified.
131. The hiring and promotion by the City of less qualified blacks in preference to competing white candidates who are demonstrably better qualified based upon the results of a job related selection procedure is permitted to effectuate and carry out the purposes of the Decree.
132. The City Decree authorizes the City, in order to meet the aforementioned goals, to hire and promote black candidates who are certified as qualified by the Personnel Board, even if such candidates are demonstrably less qualified than competing white candidates based upon the results of a job related selection procedure.
133. The Phrase “job related selection procedure”, as used in paragraph 2 of the City Decree, means a selection procedure which is validated or capable of being validated.
134. The word “demonstrably”, as used in paragraph 2 of the City Decree, means both clearly and measurably.
135. A selection procedure which relies in whole or in part on subjective criteria is not a job related selection procedure within the meaning of paragraph 2 of the City Decree.
136. The use of a selection procedure which has a component that would perpetuate the effects of past discrimination would be contrary to the express purposes of the City Decree; such selection procedure is not a “job related selection procedure” within the meaning of paragraph 2.
137. The City Decree does not obligate the City to compare the relative qualifications of black and white candidates for promotion prior to hiring or promotion blacks.
138. The City Decree does not obligate the City to adopt a job related selection procedure.
139. The City Decree does not obligate the City to compare scores achieved on promotional examinations by black and white candidates prior to promoting blacks.
CONCLUSIONS OF LAW
140. The City Decree is lawful. It was approved by this Court in United States v. Jefferson County, 28 Fair Empl. Prac. Cas. (BNA) 1834 (N.D. Ala. 1981) and plaintiffs cannot collaterally attack the Decree’s validity. See Thaggard v. City of Jackson, 687 F.2d 66, 32 FEP Cases 228 (5th Cir. 1982); Dennison v. Los Angeles Department of Water & Power, 658 F.2d 694, 26 FEP Cases 1739 (9th Cir. 1981); Austin v. County of DeKalb, 572 F.Supp. 479, 39 FEP Cases 1561 (N.D. Ga. 1983). [Joint Pretrial Memorandum of Defendants, the City of Birmingham, Richard Arrington, Jr. and Defendant-Intervenors, “Pretrial Mem.,” at 65-68.] The United States has conceded it is not attacking the Decree’s lawfulness and as a signatory it cannot. City Decree ¶3. The only avenue of attack open to the private plaintiffs is to show that challenged action was not taken pursuant to the Decree. United States v. Jefferson County, 720 F.2d 1511, 1518, 33 FEP Cases 829 (11th Cir. 1983). Furthermore, under all the relevant case law of the Eleventh Circuit and the Supreme Court, it is a proper remedial device, designed to overcome the effects of prior, illegal discrimination by the City of Birmingham. United States v. Jefferson County, 28 Fair Emp. Prac. Cas. (BNA) 1834 (N.D. Ala. 1981). See United States Steelworkers v. Weber, 443 U.S. 193, 20 FEP Cases 1 (1979); Palmer v. District Board of Trustees, 748 F.2d 595, 36 FEP Cases 778 (11th Cir. 1984); United States v. City of Alexandria, 614 F.2d 1358, 22 FEP Cases 872 (5th Cir. 1980); Paradise v. Prescott, 767 F.2d 1514, 38 FEP Cases 1094 (11th Cir. 1985). [Pretrial Mem. at 69-84.]
141. The burden of proof is on plaintiffs. Once defendants show that promotions were made pursuant to a consent decree, the burden shifts to the plaintiffs to prove by a preponderance of the evidence either that the promotions were not undertaken to meet the goals of the decree or that the decree is invalid. Palmer v. District Board; Setser v. Novack Investment Co., 657 F.2d 962, 26 FEP Cases 513 (8th Cir. 1981); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 25 FEP Cases 113 (1981). Evidence that race was considered in an affirmative action context is not the equivalent of the finding of direct discrimination that shifts the burden of persuasion to the defendants. Dougherty v. Barry, 607 F.Supp. 1271, 37 FEP Cases
17

In re: Birmingham Reverse Discrimination Employment Litigation, 1985 WL 56690 (1985)
1201 (D.D.C. 1985).
142. In light of the City Decree, plaintiffs cannot prevail if they do not establish that the City acted with unlawful discriminatory intent. That an action was taken pursuant to a valid affirmative action plan or consent decree is proof that it was not taken with the requisite discriminatory intent. United States v. Jefferson County, 720 F.2d at 1518; Palmer v. District Board, 748 F.2d at 601. [Pretrial Mem. at 22-25.]
143. “Job related selection procedure,” as the term is used in paragraph two of the Decree, refers to a validated employees selection procedure.† See Blake v. City of Los Angeles, 595 F.2d 1367, 19 FEP Cases 1441 (9th Cir. 1979); Craig v. County of Los Angeles, 626 F.2d 659, 24 FEP Cases 1105 (9th Cir. 1980); United States v. Georgia Power Co., 474 F.2d 906, 5 FEP Cases 587 (5th Cir. 1973). [Pretrial Mem. at 30-37.]
144. “Any attempt to assess the relative qualifications of two individuals on the basis of their test scores is a risky process, and at a minimum requires knowledge of the magnitude of the difference in their scores if not also the significance of that difference given the characteristics of the measuring device. The need for such information under paragraph 2 of the consent decree is highlighted by the language of that paragraph relieving the city from its minority employment goals only if such minority applicants are ‘demonstrably’ less qualified.**
*23 ** Of the common meanings of the word “demonstrably,” the ones most suitable in this context are “obviously” or “clearly.”
In re: Birmingham Employment Litigation, 37 Fair Emp. Prac. Cas. 1, 6-7 (N.D. Ala. 1985).
145. The criteria upon which plaintiffs are relying to prove comparative qualifications have not been shown to be valid; furthermore, they are the kind of criteria that have been viewed suspiciously by courts because of their subjectivity and tendency to perpetuate the effects of past discrimination. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 10 FEP Cases 1181 (1975); Miles v. M.N.C. Corp., 750 F.2d 867, 36 FEP Cases 1289 (11th Cir. 1985); Walker v. Jefferson County Home, 726 F.2d 1554, 34 FEP Cases 465 (11th Cir. 1984); Ensley Branch, NAACP v. Seibles, 616 F.2d 812, 22 FEP Cases 1207 (5th Cir. 1980). [Pretrial Mem. at 37-46.] Any selection procedure which utilizes subjective criteria or length of service - or other criteria which have been tainted by subjectivity or consideration of length of service -- cannot be reconciled with the City Decree, which was expressly intended to ensure an end to discrimination against blacks, and to remedy any disadvantage to blacks resulting from past discrimination.
146. The hodge-podge of “criteria” proposed by plaintiffs do not constitute a selection procedure. No formula has been offered, let alone proven valid, to assess the relative importance of the “criteria” offered by the plaintiffs. The overall approach is wholly subjective and is as invalid as its individual components. [Pretrial Mem. at 46-47.]
147. Paragraph two of the Decree does not require the City to develop or use a job related selection procedure. It gives the City a limited option and limited defense should the City fail to meet the Decree’s goals. This conclusion is compelled by the Decree’s language and purpose, and is supported by the pre-Decree practices of the City and the Personnel Board. [Pretrial Mem. at 47-57.]
148. Plaintiffs have not established that any of the white plaintiffs are demonstrably better qualified than any of the black promotees based on the results of a valid, job related selection procedure. The failure of plaintiffs to identify a selection procedure, let alone one that is valid and job related, compels that conclusion.
149. The City Decree and the affirmative action plan for the promotion of blacks it created, clearly contemplate the promotion of blacks who are demonstrably less qualified than competing whites. This conclusion is compelled by the wording and purposes of the Decree. United States v. Jefferson County, 28 Fair Emp. Prac. Cas. (BNA) 1834 (N.D. Ala. 1981). The 1981 statements of the parties to the Decree and the proceedings at the Fairness Hearing make clear that was also the contemporaneous understanding of the parties. United States v. Jefferson County, CA-75-P-0666-S, Fairness Hearing on August 2, 1981, Transcript at 63. [Pretrial Mem. at 8-21.]
150. The City Decree entered by this Court, immunizes the City from liability for actions taken pursuant to it. See City Decree, ¶3, United States v. Jefferson County, 720 F.2d 1511, 33 FEP Cases 829 (11th Cir. 1983), recognizes that proposition. If there has been any doubt about that after Jefferson County, the Eleventh Circuit’s subsequent decision in Palmer v. District Board, made clear that an action taken pursuant to a consent decree, not just one absolutely required by it,
18

In re: Birmingham Reverse Discrimination Employment Litigation, 1985 WL 56690 (1985)
is not an act of discrimination under Title VII. [Defendants’ Memorandum Addressed to the Burden of Proof and the “Mandated” Language in Jefferson County, “Burden of Proof Mem.,” at 21-30.]
151. Race-conscious actions taken by an employer pursuant to a valid affirmative action plan are legal. United States v. Jefferson County, 720 F.2d 1511, 1518, 33 FEP Cases 829 (11th Cir. 1983); Palmer v. District Board of Trustees, 748 F.2d 595, 601, 36 FEP Cases 778 (11th Cir. 1984). [Pretrial Mem. at 22-25.]
152. The United States has consistently taken positions in this litigation inconsistent with positions it pressed so vigorously in the litigation leading up to this Consent Decree. It has repeatedly breached its obligations to uphold the Decree and this Court’s instructions, In Re: Birmingham Employment Litigation, 37 Fair Emp. Prac. Cas. 1, 8 (1985), that it act in accord with its obligations under the Decree. Its actions in these proceedings have been tantamount to an attack on the Decree’s validity.

SUBSIDIARY CONCLUSIONS OF LAW
153. Information or opinions not known to the decisionmaker are inadmissible as irrelevant.
154. Evidence of prior discrimination by the City of Birmingham is admissible to establish the factual basis for the legality of the City Decree, to show that seniority based criteria are subject as a result of prior underrepresentation, and that subjective criteria for evaluating promotions may be contemplated by the vestiges of such discrimination or the attitudes of those hired during such period.
155. Selection criteria which incorporate seniority or which are based on the subjective discretion or opinions of supervisors may not be considered in comparing black and white candidates under paragraph two of the City Decree.

Parallel Citations

39 Fair Empl.Prac.Cas. (BNA) 1431

Footnotes

*

“[I]t could hardly be contended that because of longer city service an individual would be demonstrably better qualified for

promotion.” In re: Birmingham Reverse Discrimination Employment Litigation, 37 Fair Empl.Prac.Cas. at 5 n.14.

†

Indeed, more than three years ago and only one year after entry of the City Decree, Mr. Fitzpatrick, counsel for the private

plaintiffs, interpreted paragraph two to require a “validated” procedure:

“Whether the City uses [statistics pertaining to test scores] in making their decisions or not, we don’t claim is relevant to the

question of whether or not in fact one person possesses superior job related qualifications in accordance with a validating (sic)

procedure and that is our interpretation and understanding of paragraph 2.” (Emphasis added.)

B.A.C.E. v. Arrington, CV 82-P-1852-S, T.R.O. Hearing on September 21, 1982, Transcript at 49.

19

 
 In re Birmingham Reverse Discrimination Employment Litigation, 841 F.2d 399 (Table)...

841 F.2d 399 (Table) (The decision of the Court is referenced in an Eleventh Circuit Table of Denials of Rehearing En
Banc appearing in the Federal Reporter.) United States Court of Appeals, Eleventh Circuit.
In re Birmingham Reverse Discrimination Employment Litigation

NO. 86-7108 | JAN 25, 1988 Appeal From: N.D.Ala., 833 F.2d 1492
Opinion DENIALS OF REHEARING EN BANC.
	  

1

 
 Personnel Bd. of Jefferson County, Ala. v. U.S., 449 U.S. 1061 (1980)

101 S.Ct. 783 Supreme Court of the United States
PERSONNEL BOARD OF JEFFERSON COUNTY, ALABAMA, petitioner, v. UNITED STATES et al
No. 80-406 | December 15, 1980
Facts and opinion, Ensley Branch of N.A.A.C.P. v. Seibels, 616 F.2d 812.

Opinion Petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit. Denied.
Parallel Citations 101 S.Ct. 783 (Mem), 24 Fair Empl.Prac.Cas. (BNA) 827, 24 Empl. Prac. Dec. P 31,375, 66 L.Ed.2d 603
	  

1

 
 U.S. v. Jefferson County, 724 F.2d 978 (Table) (1984)
724 F.2d 978 (Table) (The decision of the Court is referenced in an Eleventh Circuit Table of Denials of Rehearing En
Banc appearing in the Federal Reporter.) United States Court of Appeals, eleventh Circuit.
U.S. v.
Jefferson County

NOS. 82-7129, 81-7761 | JAN 20, 1984 Appeal From: N.D.Ala., 720 F.2d 1511
Opinion Denials of Rehearing En Banc.
	  

1

 
 Martin v. Wilks, 487 U.S. 1204 (1988)

108 S.Ct. 2843
John W. MARTIN, et al., petitioners, v.
Robert K. WILKS, et al.
PERSONNEL BOARD OF JEFFERSON COUNTY, ALABAMA, et al., petitioners, v. Robert K. WILKS, et al.
Supreme Court of the United States
Richard ARRINGTON, Jr., et al., petitioners, v.
Robert K. WILKS, et al.
No. 87-1614No. 87-1639No. 87-1668 | June 20, 1988

Case below, In re Birmingham Reverse Discrimination Employment Litigation, 833 F.2d 1492; 841 F.2d 399.
Opinion
Petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit granted limited to Question 1 presented by each petition. The cases are consolidated and a total of one hour is allotted for oral argument.
Parallel Citations
108 S.Ct. 2843 (Mem), 47 Empl. Prac. Dec. P 38,199, 101 L.Ed.2d 881
	  

1

 
 Martin v. Wilks, 490 U.S. 755 (1989)

109 S.Ct. 2180 Supreme Court of the United States
John W. MARTIN, et al., Petitioners, v.
Robert K. WILKS et al. PERSONNEL BOARD OF JEFFERSON COUNTY,
ALABAMA, et al., Petitioners v.
Robert K. WILKS et al. Richard ARRINGTON, Jr., et al., Petitioners
v. Robert K. WILKS et al.
Nos. 87-1614, 87-1639 and 87-1668. | Argued Jan. 18, 1989. | Decided June 12, 1989. | Rehearings
Denied Aug. 11, 1989. | See 492 U.S. 932, 110 S.Ct. 11.
White fire fighters brought suit alleging that they were being denied promotions in favor of less qualified blacks. The United States District Court for the Northern District of Alabama, Sam C. Pointer, Jr., Chief Judge, granted defendants’ motion to dismiss. On appeal, the United States Court of Appeals for the Eleventh Circuit, 833 F.2d 1492, reversed, and certiorari was granted. The Supreme Court, Chief Justice Rehnquist, held that white fire fighters, who had failed to intervene in earlier employment discrimination proceedings in which consent decrees were entered, could challenge employment decisions taken pursuant to those decrees.
Affirmed.
Justice Stevens filed dissenting opinion in which Justices Brennan, Marshall and Blackmun joined.

**2181 Syllabus*

*

The syllabus constitutes no part of the opinion of the

Court but has been prepared by the Reporter of

Decisions for the convenience of the reader. See United

States v. Detroit Lumber Co., 200 U.S. 321, 337, 26

S.Ct. 282, 287, 50 L.Ed. 499 (1906).

*755 Black individuals and a branch of the National Association for the Advancement of Colored People brought actions in Federal District Court against the city of Birmingham, Alabama, and the Jefferson County Personnel Board (Board), alleging that the defendants had engaged in racially discriminatory hiring and promotion practices in violation of Title VII of the Civil Rights Act

of 1964 and other federal law. Consent decrees were eventually entered that included goals for hiring blacks as firefighters and for promoting them. Respondent white firefighters subsequently brought suit in the District Court against the city and the Board, alleging that, because of their race, they were being denied promotions in favor of less qualified blacks in violation of federal law. They argued that the city and the Board were making promotion decisions on the basis of race in reliance on the consent decrees, and that those decisions constituted impermissible racial discrimination. After trial, the District Court granted the defendants’ motion to dismiss. It held that respondents were precluded from challenging employment decisions taken pursuant to the consent decrees, even though they had not been parties to the proceedings in which the decrees were entered. The Court of Appeals reversed, rejecting the “impermissible collateral attack” doctrine that immunizes parties to a consent decree from discrimination charges by nonparties for actions taken pursuant to the decree.
Held: Respondents are not precluded from challenging the employment decisions taken pursuant to the consent decrees. Pp. 2184-2188.
(a) “[O]ne is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.” Hansberry v. Lee, 311 U.S. 32, 40, 61 S.Ct. 115, 117, 85 L.Ed. 22 (1940). P. 2184.
(b) Under ordinary application of the Federal Rules of Civil Procedure, a party **2182 seeking a judgment binding on another cannot obligate that person to intervene; he must be joined. Rule 24, governing intervention, is cast in permissive terms. Rule 19(a) provides for mandatory *756 joinder in circumstances where a judgment rendered in the absence of a person may “leave ... persons already parties subject to a substantial risk of incurring ... inconsistent allegations,” and Rule 19(b) sets forth the factors to be considered by a court in deciding whether to allow an action to proceed in the absence of an interested party. Joinder as a party, rather than knowledge of a lawsuit and an opportunity to intervene, is the method by which potential parties are subjected to the jurisdiction of the court and bound by a judgment or decree. The linchpin of the “impermissible collateral attack” doctrine-the attribution of preclusive effect to a failure to intervene-is inconsistent with Rules 19 and 24. Pp. 2185-2186.
(c) Neither Penn-Central Merger and N & W Inclusion Cases, 389 U.S. 486, 88 S.Ct. 602, 19 L.Ed.2d 723 (1968), nor Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968), is authority for precluding respondents from
1

Martin v. Wilks, 490 U.S. 755 (1989)
challenging the actions taken under the consent decrees. Pp. 2186-2187.
(d) Even if there were some merit to the argument that the need to join affected parties would be burdensome and ultimately discouraging to civil rights litigation, acceptance of that argument would require a rewriting rather than an interpretation of the relevant Federal Rules. In any event, the difficulties in identifying those who would be adversely affected by a decree arise from the nature of the relief sought and not because of any choice between mandatory intervention and joinder. Plaintiffs who seek the aid of courts to alter employment policies, or the employer who might be subject to conflicting decrees, are best able to bear the burden of designating those who would be adversely affected if plaintiffs prevail. The alternative urged here does not eliminate the need for, or difficulty of, identifying persons who should be included in a lawsuit. It merely shifts that responsibility to less able shoulders. The system of joinder called for by the Federal Rules is not likely to produce more relitigation of issues than a converse rule, and best serves the interests involved in the run of litigated cases, including cases like the present ones. Pp. 2187-2188.
(e) With respect to the argument that the congressional policy favoring voluntary settlement of employment discrimination claims supports the “impermissible collateral attack” doctrine, it is essential to note what is meant by a “voluntary settlement.” A voluntary settlement in the form of a consent decree between one group of employees and their employer cannot possibly “settle,” voluntarily or otherwise, the conflicting claims of another group of employees who do not join in the agreement. Insofar as it may be easier to settle claims among a disparate group of affected persons if they are all before the court, joinder accomplishes *757 that result as well as would a regime of mandatory intervention. P. 2188.
833 F.2d 1492 (CA 11 1987), affirmed.
REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O’CONNOR, SCALIA, and KENNEDY, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 2188.
Attorneys and Law Firms
James P. Alexander argued the cause for petitioners in Nos. 87-1639 and 87-1668. With him on the briefs for petitioners in No. 87-1668 were Robert K. Spotswood, Richard H. Walston, Michael R. Pennington, and James K. Baker. Frank M. Young III and James C. Huckaby, Jr., filed a brief for petitioners in No. 87-1639. Robert D. Joffee argued the cause for petitioners in No. 87-1614.

With him on the briefs were Thomas D. Barr, Robert F. Mullen, Paul C. Saunders, Alden L. Atkins, William L. Robinson, Richard T. Seymour, Stephen L. Spitz, and Susan W. Reeves.
Raymond P. Fitzpatrick, Jr., argued the cause for respondents Wilks et al. With him on the brief was Courtney H. Mason, Jr. Deputy Solicitor General Merrill argued the cause for the United States. On the brief were Solicitor General Fried, Assistant Attorney General Reynolds, Deputy Solicitor General Ayer, Deputy Assistant Attorney General Clegg, Michael R. Lazerwitz, and Dennis J. Dimsey.†
† Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by James M. Shannon, Attorney General of Massachusetts, Alice Daniel, Deputy Attorney General, and Jane S. Schacter and Peter Sacks, Assistant Attorneys General, Don Siegelman, Attorney General of Alabama, John Steven Clark, Attorney General of Arkansas, John Van de Kamp, Attorney General of California, Joseph I. Lieberman, Attorney General of Connecticut, Frederick D. Cooke, Corporation Counsel of the District of Columbia, Robert A. Butterworth, Attorney General of Florida, Michael J. Bowers, Attorney General of Georgia, Jim Jones, Attorney General of Idaho, Linley E. Pearson, Attorney General of Indiana, Thomas J. Miller, Attorney General of Iowa, Robert T. Stephan, Attorney General of Kansas, Frederic J. Cowan, Attorney General of Kentucky, William J. Guste, Jr., Attorney General of Louisiana, J. Joseph Curran, Jr., Attorney General of Maryland, Hubert H. Humphrey III, Attorney General of Minnesota, William L. Webster, Attorney General of Missouri Mike Greely, Attorney General of Montana, Robert M. Spire, Attorney General of Nebraska, Brian McKay, Attorney General of Nevada, Stephen E. Merrill, Attorney General of New Hampshire, Cary Edwards, Attorney General of New Jersey, Robert Abrams, Attorney General of New York, Anthony J. Celebrezze Jr., Attorney General of Ohio, Robert H. Henry, Attorney General of Oklahoma, James E. O’Neil, Attorney General of Rhode Island, T. Travis Medlock, Attorney General of South Carolina, Jim Mattox, Attorney General of Texas, Jeffrey Amestoy, Attorney General of Vermont, Mary Sue Terry, Attorney General of Virginia, Godfrey R. de Castro, Attorney General of the Virgin Islands, Charlie Brown, Attorney General of West Virginia, Donald J. Hanaway, Attorney General of Wisconsin, and Joseph B. Meyer, Attorney General of Wyoming; for the American Civil Liberties Union et al. by Steven R. Shapiro, John A. Powell, Michael J. Wahoske, Mark B. Rotenberg, and Leslie J. Anderson; for the Equal Employment Advisory Council by Robert E. Williams and Douglas S. McDowell; and for the National League of Cities et al. by Benna Ruth Solomon, Beate Bloch, and Zachary D. Fasman.
Briefs of amici curiae urging affirmance were filed for
2

Martin v. Wilks, 490 U.S. 755 (1989)
the International Association of Fire Fighters, AFL-CIO, by Thomas A. Woodley and Michael S. Wolly; and for the Pacific Legal Foundation by Ronald A. Zumbrun and Anthony T. Caso.
N. Thompson Powers, Ronald S. Cooper, Barry L. Goldstein, Julius LeVonne Chambers, and Ronald L. Ellis filed a brief for the NAACP Legal Defense and Educational Fund, Inc., et al. as amici curiae.
Opinion
*758 **2183 Chief Justice REHNQUIST delivered the opinion of the Court.
A group of white firefighters sued the city of Birmingham, Alabama (City), and the Jefferson County Personnel Board (Board) alleging that they were being denied promotions in favor of less qualified black firefighters. They claimed that the City and the Board were making promotion decisions on the basis of race in reliance on certain consent decrees, and that these decisions constituted impermissible racial discrimination in violation of the Constitution and federal statutes. The District Court held that the white firefighters were precluded from challenging employment decisions taken pursuant to the decrees, even though these firefighters had not been parties to the proceedings in which the decrees were *759 entered. We think this holding contravenes the general rule that a person cannot be deprived of his legal rights in a proceeding to which he is not a party.
The litigation in which the consent decrees were entered began in 1974, when the Ensley Branch of the National Association for the Advancement of Colored People and seven black individuals filed separate class-action complaints against the City and the Board. They alleged that both had engaged in racially discriminatory hiring and promotion practices in various public service jobs in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and other federal law. After a bench trial on some issues, but before judgment, the parties entered into two consent decrees, one between the black individuals and the City and the other between them and the Board. These proposed decrees set forth an extensive remedial scheme, including long-term and interim annual goals for the hiring of blacks as firefighters. The decrees also provided for goals for promotion of blacks within the fire department.
The District Court entered an order provisionally approving the decrees and directing publication of notice of the upcoming fairness hearings. App. 694-696. Notice of the hearings, with a reference to the general nature of the decrees, was published in two local newspapers. At that hearing, the Birmingham Firefighters Association (BFA) appeared and filed objections as amicus curiae.

After the hearing, but before final approval of the decrees, the BFA and two of its members also moved to intervene on the ground that the decrees would adversely affect their rights. The District Court denied the motions as untimely and approved the decrees. United States v. Jefferson County, 28 FEP Cases 1834 (ND Ala.1981). Seven white firefighters, all members of the BFA, then filed a complaint against the City and the Board seeking injunctive relief against enforcement of the decrees. The seven argued that the decrees *760 would operate to illegally discriminate against them; the District Court denied relief. App. to Pet. for Cert. 37a.
Both the denial of intervention and the denial of injunctive relief were affirmed on appeal. United States v. Jefferson County, 720 F.2d 1511 (CA11 1983). The District Court had not abused its discretion in refusing to let the BFA intervene, thought the Eleventh Circuit, in part because the firefighters could “institut[e] an independent Title VII suit, asserting specific violations of their rights.” Id., at 1518. And, for the same reason, petitioners had not adequately shown the potential for irreparable harm from the operation of the decrees necessary to obtain injunctive relief. Id., at 1520.
A new group of white firefighters, the Wilks respondents, then brought suit against the City and the Board in District Court. They too alleged that, because of their race, they were being denied promotions in favor of less qualified blacks in violation of federal law. The Board and the City admitted to making race-conscious employment decisions, but argued that the decisions were unassailable because they were made pursuant to the consent decrees. A group of black individuals, the Martin petitioners, were allowed to intervene **2184 in their individual capacities to defend the decrees.
The defendants moved to dismiss the reverse discrimination cases as impermissible collateral attacks on the consent decrees. The District Court denied the motions, ruling that the decrees would provide a defense to claims of discrimination for employment decisions “mandated” by the decrees, leaving the principal issue for trial whether the challenged promotions were indeed required by the decrees. App. 237-239, 250. After trial the District Court granted the motion to dismiss. App. to Pet. for Cert. 67a. The court concluded that “if in fact the City was required to [make promotions of blacks] by the consent decree, then they would not be guilty of [illegal] racial discrimination” and that the defendants had “establish[ed] that the promotions of the black individuals *761 ... were in fact required by the terms of the consent decree.” Id., at 28a.
On appeal, the Eleventh Circuit reversed. It held that, “[b]ecause ... [the Wilks respondents] were neither parties nor privies to the consent decrees, ... their independent claims of unlawful discrimination are not precluded.” In
3

Martin v. Wilks, 490 U.S. 755 (1989)

re Birmingham Reverse Discrimination Employment Litigation, 833 F.2d 1492, 1498 (1987). The court explicitly rejected the doctrine of “impermissible collateral attack” espoused by other Courts of Appeals to immunize parties to a consent decree from charges of discrimination by nonparties for actions taken pursuant to the decree. Ibid. Although it recognized a “strong public policy in favor of voluntary affirmative action plans,” the panel acknowledged that this interest “must yield to the policy against requiring third parties to submit to bargains in which their interests were either ignored or sacrificed.” Ibid. The court remanded the case for trial of the discrimination claims, suggesting that the operative law for judging the consent decrees was that governing voluntary affirmative-action plans. Id., at 1497.1

1

Judge Anderson, dissenting, “agree[d] with the opinion

for the court that these plaintiffs [the Wilks

respondents] were not parties to the prior litigation

which resulted in the consent decree, and that the

instant plaintiffs are not bound by the consent decree

and should be free on remand to challenge the consent

decree prospectively and test its validity against the

recent Supreme Court precedent.” In re Birmingham

Reverse Discrimination Employment Litigation, 833

F.2d, at 1503. He distinguished, however, between

claims for prospective relief and claims for backpay,

the latter being barred, in his opinion, by the City’s

good-faith reliance on the decrees. Id., at 1502.

[1] [2] We granted certiorari, 487 U.S. 1204, 108 S.Ct. 2843, 101 L.Ed.2d 881 (1988), and now affirm the Eleventh Circuit’s judgment. All agree that “[i]t is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.” Hansberry v. Lee, 311 U.S. 32, 40, 61 S.Ct. 115, 117, 85 L.Ed. 22 (1940). See, e.g., *762 Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327, n. 7, 99 S.Ct. 645, 649, n. 7, 58 L.Ed.2d 552 (1979); Blonder-Tongue Laboratories, Inc. v. University Foundation, 402 U.S. 313, 328-329, 91 S.Ct. 1434, 1442-1443, 28 L.Ed.2d 788 (1971); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110, 89 S.Ct. 1562, 1569, 23 L.Ed.2d 129 (1969). This rule is part of our “deep-rooted historic tradition that everyone should have his own day in court.” 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4449, p. 417 (1981) (hereafter 18 Wright). A judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings.2

2

We have recognized an exception to the general rule

when, in certain limited circumstances, a person,

although not a party, has his interests adequately

represented by someone with the same interests who is

a party. See Hansberry v. Lee, 311 U.S. 32, 41-42, 61 S.Ct. 115, 117-118, 85 L.Ed. 22 (1940) (“class” or “representative” suits); Fed.Rule Civ.Proc. 23 (same); Montana v. United States, 440 U.S. 147, 154-155, 99 S.Ct. 970, 974-975, 59 L.Ed.2d 210 (1979) (control of litigation on behalf of one of the parties in the litigation). Additionally, where a special remedial scheme exists expressly foreclosing successive litigation by nonlitigants, as for example in bankruptcy or probate, legal proceedings may terminate preexisting rights if the scheme is otherwise consistent with due process. See NLRB v. Bildisco & Bildisco, 465 U.S. 513, 529-530, n. 10, 104 S.Ct. 1188, 1198, n. 10, 79 L.Ed.2d 482 (1984) (“[P]roof of claim must be presented to the Bankruptcy Court ... or be lost”); Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988) (nonclaim statute terminating unsubmitted claims against the estate). Neither of these exceptions, however, applies in these cases.

**2185 [3] Petitioners argue that, because respondents failed to timely intervene in the initial proceedings, their current challenge to actions taken under the consent decree constitutes an impermissible “collateral attack.” They argue that respondents were aware that the underlying suit might affect them, and if they chose to pass up an opportunity to intervene, they should not be permitted to later litigate the issues in a new action. The position has sufficient appeal to have commanded the approval of the great majority of the Federal Courts of Appeals,3 but we agree with the contrary view expressed *763 by the Court of Appeals for the Eleventh Circuit in these cases.

3

For a sampling of cases from the Circuits applying the

“impermissible collateral attack” rule or its functional

equivalent, see, e.g., Striff v. Mason, 849 F.2d 240, 245

(CA6 1988); Marino v. Ortiz, 806 F.2d 1144,

1146-1147 (CA2 1986), aff’d, by an equally divided

Court, 484 U.S. 301, 108 S.Ct. 586, 98 L.Ed.2d 629

(1988); Thaggard v. Jackson, 687 F.2d 66, 68-69 (CA5

1982), cert. denied sub nom. Ashley v. City of Jackson,

464 U.S. 900, 104 S.Ct. 255, 78 L.Ed.2d 241 (1983)

(REHNQUIST, J., joined by BRENNAN, J.,

dissenting); Stotts v. Memphis Fire Dept., 679 F.2d

541, 558 (CA6 1982), rev’d on other grounds sub nom.

Firefighters v. Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81

L.Ed.2d 483 (1984); Dennison v. Los Angeles Dept. of

Water & Power, 658 F.2d 694, 696 (CA9 1981); Goins

v. Bethlehem Steel Corp., 657 F.2d 62, 64 (CA4 1981),

cert. denied, 455 U.S. 940, 102 S.Ct. 1431, 71 L.Ed.2d

650 (1982); Society Hill Civic Assn. v. Harris, 632 F.2d

1045, 1052 (CA3 1980). Apart from the instant one, the

only Circuit decision of which we are aware that would

generally allow collateral attacks on consent decrees by

nonparties is Dunn v. Carey, 808 F.2d 555, 559-560

(CA7 1986).

4

Martin v. Wilks, 490 U.S. 755 (1989)

We begin with the words of Justice Brandeis in Chase National Bank v. Norwalk, 291 U.S. 431, 54 S.Ct. 475, 78 L.Ed. 894 (1934):
“The law does not impose upon any person absolutely entitled to a hearing the burden of voluntary intervention in a suit to which he is a stranger.... Unless duly summoned to appear in a legal proceeding, a person not a privy may rest assured that a judgment recovered therein will not affect his legal rights.” Id., at 441, 54 S.Ct., at 479.
While these words were written before the adoption of the Federal Rules of Civil Procedure, we think the Rules incorporate the same principle; a party seeking a judgment binding on another cannot obligate that person to intervene; he must be joined. See Hazeltine, supra, 395 U.S., at 110, 89 S.Ct., at 1569 (judgment against Hazeltine vacated because it was not named as a party or served, even though as the parent corporation of one of the parties it clearly knew of the claim against it and had made a special appearance to contest jurisdiction). Against the background of permissive intervention set forth in Chase National Bank, the drafters cast Rule 24, governing intervention, in permissive terms. See Fed.Rule Civ.Proc. 24(a) (intervention as of right) (“Upon timely application anyone shall be permitted to intervene”); *764 Fed.Rule Civ.Proc. 24(b) (permissive intervention) (“Upon timely application anyone may be permitted to intervene”). They determined that the concern for finality and completeness of judgments would be “better [served] by mandatory joinder procedures.” 18 Wright § 4452, p. 453. Accordingly, Rule 19(a) provides for mandatory joinder in circumstances where a judgment rendered in the absence of a person may “leave ... persons already parties subject to a substantial risk of incurring ... inconsistent obligations....”4 **2186 Rule 19(b) sets forth the factors to be considered by a court in deciding whether to allow an action to proceed in the absence of an interested party.5

4

Rule 19(a) provides:

“A person who is subject to service of process and

whose joinder will not deprive the court of

jurisdiction ... shall be joined as a party in the action

if (1) in the person’s absence complete relief cannot

be accorded among those already parties, or (2) the

person claims an interest relating to the subject of

the action and is so situated that the disposition of

the action in the person’s absence may (i) as a

practical matter impair or impede the person’s

ability to protect that interest or (ii) leave any of the

persons already parties subject to a substantial risk

of incurring double, multiple, or otherwise

inconsistent obligations by reason of the claimed

interest. If the person has not been so joined, the

court shall order that the person be made a party. If

the person should join as a plaintiff but refuses to do

so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action.” (Emphasis added.)

5

Rule 19(b) provides:

“If a person ... cannot be made a party, the court shall determine whether in equity and good conscience the action

should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court

include: first, to what extent a

judgment rendered in the

person’s absence might be prejudicial to the person or those already parties; second,

the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or

avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.”

*765 Joinder as a party, rather than knowledge of a lawsuit and an opportunity to intervene, is the method by which potential parties are subjected to the jurisdiction of the court and bound by a judgment or decree.6 The parties to a lawsuit presumably know better than anyone else the nature and scope of relief sought in the action, and at whose expense such relief might be granted. It makes sense, therefore, to place on them a burden of bringing in additional parties where such a step is indicated, rather than placing on potential additional parties a duty to intervene when they acquire knowledge of the lawsuit. The linchpin of the “impermissible collateral attack” doctrine-the attribution of preclusive effect to a failure to intervene-is therefore quite inconsistent with Rule 19 and Rule 24.

6

The dissent argues, on the one hand, that respondents

have not been “bound” by the decree but, rather, that

they are only suffering practical adverse effects from

the consent decree. Post, at 2188-2190. On the other

hand, the dissent characterizes respondents’ suit not as

5

Martin v. Wilks, 490 U.S. 755 (1989)
an assertion of their own independent rights, but as a collateral attack on the consent decrees which, it is said, can only proceed on very limited grounds. Post, at 2195-2198. Respondents in their suit have alleged that they are being racially discriminated against by their employer in violation of Title VII: either the fact that the disputed employment decisions are being made pursuant to a consent decree is a defense to respondents’ Title VII claims or it is not. If it is a defense to challenges to employment practices which would otherwise violate Title VII, it is very difficult to see why respondents are not being “bound” by the decree.
Petitioners argue that our decisions in Penn-Central Merger and N & W Inclusion Cases, 389 U.S. 486, 88 S.Ct. 602, 19 L.Ed.2d 723 (1968), and Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968), suggest an opposite result. The Penn-Central litigation took place in a special statutory framework enacted by Congress to allow reorganization of a huge railway system. Primary jurisdiction was in the Interstate Commerce Commission, with very restricted review in a statutory three-judge District Court. Review proceedings *766 were channeled to the District Court for the Southern District of New York, and proceedings in other District Courts were stayed. The District Court upheld the decision of the Interstate Commerce Commission in both the merger and the inclusion proceedings, and the parties to that proceeding appealed to this Court. Certain Pennsylvania litigants had sued in the District Court for the Middle District of Pennsylvania to set aside the Commission’s order, and this action was stayed pending the decision in the District Court for the **2187 Southern District of New York. We held that the borough of Moosic, one of the Pennsylvania litigants, could not challenge the Commission’s approval of the merger and inclusion in the Pennsylvania District Court, pointing out the unusual nationwide character of the action and saying “[i]n these circumstances, it would be senseless to permit parties seeking to challenge the merger and the inclusion orders to bring numerous suits in many different district courts.” 389 U.S., at 505, n. 4, 88 S.Ct., at 612, n. 4.
We do not think that this holding in Penn-Central, based as it was upon the extraordinary nature of the proceedings challenging the merger of giant railroads and not even mentioning Rule 19 or Rule 24, affords a guide to the interpretation of the rules relating to joinder and intervention in ordinary civil actions in a district court.
Petitioners also rely on our decision in Provident Bank, supra, as authority for the view which they espouse. In that case we discussed Rule 19 shortly after parts of it had been substantially revised, but we expressly left open the question whether preclusive effect might be attributed to a

failure to intervene. 390 U.S., at 114-115, 88 S.Ct., at 740-741.
Petitioners contend that a different result should be reached because the need to join affected parties will be burdensome and ultimately discouraging to civil rights litigation. Potential adverse claimants may be numerous and difficult to identify; if they are not joined, the possibility for inconsistent *767 judgments exists. Judicial resources will be needlessly consumed in relitigation of the same question.
Even if we were wholly persuaded by these arguments as a matter of policy, acceptance of them would require a rewriting rather than an interpretation of the relevant Rules. But we are not persuaded that their acceptance would lead to a more satisfactory method of handling cases like these. It must be remembered that the alternatives are a duty to intervene based on knowledge, on the one hand, and some form of joinder, as the Rules presently provide, on the other. No one can seriously contend that an employer might successfully defend against a Title VII claim by one group of employees on the ground that its actions were required by an earlier decree entered in a suit brought against it by another, if the later group did not have adequate notice or knowledge of the earlier suit.
The difficulties petitioners foresee in identifying those who could be adversely affected by a decree granting broad remedial relief are undoubtedly present, but they arise from the nature of the relief sought and not because of any choice between mandatory intervention and joinder. Rule 19’s provisions for joining interested parties are designed to accommodate the sort of complexities that may arise from a decree affecting numerous people in various ways. We doubt that a mandatory intervention rule would be any less awkward. As mentioned, plaintiffs who seek the aid of the courts to alter existing employment policies, or the employer who might be subject to conflicting decrees, are best able to bear the burden of designating those who would be adversely affected if plaintiffs prevail; these parties will generally have a better understanding of the scope of likely relief than employees who are not named but might be affected. Petitioners’ alternative does not eliminate the need for, or difficulty of, identifying persons who, because of their interests, should be included in a lawsuit. It merely shifts that responsibility to less able shoulders.
*768 Nor do we think that the system of joinder called for by the Rules is likely to produce more relitigation of issues than the converse rule. The breadth of a lawsuit and concomitant relief may be at least partially shaped in advance through Rule 19 to avoid needless clashes with future litigation. And even under a regime of mandatory intervention, parties who did not have adequate knowledge of the suit would relitigate **2188 issues.
6

Martin v. Wilks, 490 U.S. 755 (1989)
Additional questions about the adequacy and timeliness of knowledge would inevitably crop up. We think that the system of joinder presently contemplated by the Rules best serves the many interests involved in the run of litigated cases, including cases like the present ones.
Petitioners also urge that the congressional policy favoring voluntary settlement of employment discrimination claims, referred to in cases such as Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981), also supports the “impermissible collateral attack” doctrine. But once again it is essential to note just what is meant by “voluntary settlement.” A voluntary settlement in the form of a consent decree between one group of employees and their employer cannot possibly “settle,” voluntarily or otherwise, the conflicting claims of another group of employees who do not join in the agreement. This is true even if the second group of employees is a party to the litigation:
“[P]arties who choose to resolve litigation through settlement may not dispose of the claims of a third party ... without that party’s agreement. A court’s approval of a consent decree between some of the parties therefore cannot dispose of the valid claims of nonconsenting intervenors.” Firefighters v. Cleveland, 478 U.S. 501, 529, 106 S.Ct. 3063, 3079, 92 L.Ed.2d 405 (1986).
Insofar as the argument is bottomed on the idea that it may be easier to settle claims among a disparate group of affected persons if they are all before the court, joinder bids fair to accomplish that result as well as a regime of mandatory intervention.
*769 For the foregoing reasons we affirm the decision of the Court of Appeals for the Eleventh Circuit. That court remanded the case for trial of the reverse discrimination claims. Birmingham Reverse Discrimination, 833 F.2d, at 1500-1502. Petitioners point to language in the District Court’s findings of fact and conclusions of law which suggests that respondents will not prevail on the merits. We agree with the view of the Court of Appeals, however, that the proceedings in the District Court may have been affected by the mistaken view that respondents’ claims on the merits were barred to the extent they were inconsistent with the consent decree.
Affirmed.
Justice STEVENS, with whom Justice BRENNAN, Justice MARSHALL, and Justice BLACKMUN join, dissenting.
As a matter of law there is a vast difference between persons who are actual parties to litigation and persons who merely have the kind of interest that may as a

practical matter be impaired by the outcome of a case. Persons in the first category have a right to participate in a trial and to appeal from an adverse judgment; depending on whether they win or lose, their legal rights may be enhanced or impaired. Persons in the latter category have a right to intervene in the action in a timely fashion,1 or they may be joined as parties against their will.2 But if they remain on the sidelines, they *770 may be harmed as a practical matter even though their legal **2189 rights are unaffected.3 One of the disadvantages of sideline-sitting is that the bystander has no right to appeal from a judgment no matter how harmful it may be.

1

Federal Rule of Civil Procedure 24(a) provides in part:

“Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”

2

Federal Rule of Civil Procedure 19(a) provides in part:

“A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if ... (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest....”

3

See Provident Tradesmens Bank & Trust Co. v.

Patterson, 390 U.S. 102, 110, 88 S.Ct. 733, 738, 19

L.Ed.2d 936 (1968).

In these cases the Court quite rightly concludes that the white firefighters who brought the second series of Title VII cases could not be deprived of their legal rights in the
7

Martin v. Wilks, 490 U.S. 755 (1989)

first series of cases because they had neither intervened nor been joined as parties. See Firefighters v. Cleveland, 478 U.S. 501, 529-530, 106 S.Ct. 3063, 3079-3080, 92 L.Ed.2d 405 (1986); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327, n. 7, 99 S.Ct. 645, 649, n. 7, 58 L.Ed.2d 552 (1979). The consent decrees obviously could not deprive them of any contractual rights, such as seniority, cf. W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983), or accrued vacation pay, cf. Massachusetts v. Morash, 490 U.S. 107, 109 S.Ct. 1668, 104 L.Ed.2d 98 (1989), or of any other legal rights, such as the right to have their employer comply with federal statutes like Title VII, cf. Firefighters v. Cleveland, supra, 478 U.S., at 529, 106 S.Ct., at 3079.4 There is no reason, however, why the consent decrees *771 might not produce changes in conditions at the white firefighters’ place of employment that, as a practical matter, may have a serious effect on their opportunities for employment or promotion even though they are not bound by the decrees in any legal sense. The fact that one of the effects of a decree is to curtail the job opportunities of nonparties does not mean that the nonparties have been deprived of legal rights or that they have standing to appeal from that decree without becoming parties.

4

As Chief Justice REHNQUIST has observed:

“Suppose, for example, that the Government sues a

private corporation for alleged violations of the

antitrust laws and then enters a consent decree.

Surely, the existence of that decree does not preclude

a future suit by another corporation alleging that the

defendant company’s conduct, even if authorized by

the decree, constitutes an antitrust violation. The

nonparty has an independent right to bring his own

private antitrust action for treble damages or for

injunctive relief. See 2 P. Areeda & D. Turner,

Antitrust Law ¶ 330, p. 143 (1978). Similarly, if an

action alleging unconstitutional prison conditions

results in a consent decree, a prisoner subsequently

harmed by prison conditions is not precluded from

bringing suit on the mere plea that the conditions are

in accordance with the consent decree. Such

compliance might be relevant to a defense of

good-faith immunity, see Pet. for Cert. in Bennett v.

Williams, O.T.1982, No. 82-1704 [464 U.S. 932, 104

S.Ct. 335, 78 L.Ed.2d 305 (1983) ], but it would not

suffice to block the suit altogether.” Ashley v. City of

Jackson, 464 U.S. 900, 902-903, 104 S.Ct. 255, 257,

78 L.Ed.2d 241 (1983) (opinion dissenting from

denial of certiorari).

In suggesting that compliance with a consent decree

might be relevant to a defense of good-faith

immunity, this passage recognizes that neither due

process nor the Rules of Civil Procedure foreclose

judicial recognition of a judgment that may have a

practical effect on the interests of a nonparty.

Persons who have no right to appeal from a final

judgment-either because the time to appeal has elapsed or because they never became parties to the case-may nevertheless collaterally attack a judgment on certain narrow grounds. If the court had no jurisdiction over the subject matter, or if the judgment is the product of corruption, duress, fraud, collusion, or mistake, under limited circumstances it may be set aside in an appropriate collateral proceeding. See Restatement (Second) of Judgments §§ 69-72 (1982); Griffith v. Bank of New York, 147 F.2d 899, 901 (CA2) (Clark, J.), cert. denied, 325 U.S. 874, 65 S.Ct. 1414, 89 L.Ed. 1992 (1945). This rule not only applies to parties to the original action, but also allows interested third parties collaterally to attack judgments.5 In both civil and **2190 criminal cases, however, the *772 grounds that may be invoked to support a collateral attack are much more limited than those that may be asserted as error on direct appeal.6 Thus, a person who can foresee that a lawsuit is likely to have a practical impact on his interests may pay a heavy price if he elects to sit on the sidelines instead of intervening and taking the risk that his legal rights will be impaired.

5

See F. James & G. Hazard, Civil Procedure § 12.15, p.

681 (3d ed.1985) (hereinafter James & Hazard). Since

at least 1874, this Court has recognized that a third

party may collaterally attack a judgment if the original

judgment was obtained through fraud or collusion. In a

case brought by an assignee in bankruptcy seeking to

recover property allegedly transferred in fraud of the

bankrupt’s debtors, the Court wrote:

“Judgments of any court, it is sometimes said, may

be impeached by strangers to them for fraud or

collusion, but the proposition as stated is subject to

certain limitations, as it is only those strangers who,

if the judgment is given full credit and effect, would

be prejudiced in regard to some pre-existing right

who are permitted to set up such a defense. Defenses

of the kind may be set up by such strangers. Hence

the rule that whenever a judgment or decree is

procured through the fraud of either of the parties, or

by the collusion of both, for the purpose of

defrauding some third person, such third person may

escape from the injury thus attempted by showing,

even in a collateral proceeding, the fraud or collusion

by which the judgment was obtained.” Michaels v.

Post, 21 Wall. 398, 426-427, 22 L.Ed. 520 (1874)

(footnote omitted).

See also Wells Fargo & Co. v. Taylor, 254 U.S. 175,

184, 41 S.Ct. 93, 96, 65 L.Ed. 205 (1920); 1 A.

Freeman, Judgments § 318, p. 634 (5th ed. 1925).

Similarly, strangers to a decree are sometimes

allowed to challenge the decree by showing that the

court was without jurisdiction. Id., at p. 633. But cf.

Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474,

95 L.Ed. 552 (1951) (noting that under Florida law, a

child, seeking to protect her interest in her father’s

estate, may not collaterally attack her parents’

divorce for want of jurisdiction). Of course, unlike

parties to a decree, the question of subject-matter

jurisdiction is not res judicata as to interested third

8

Martin v. Wilks, 490 U.S. 755 (1989)
parties. Cf. Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, n. 9, 102 S.Ct. 2099, 2104, n. 9, 72 L.Ed.2d 492 (1982).

6

We have long held that proceedings brought before a

court collaterally “are by no means subject to all the

exceptions which might be taken on a direct appeal.”

Thompson v. Tolmie, 2 Pet. 157, 162, 7 L.Ed. 381

(1829). See also Teague v. Lane, 489 U.S. 288,

303-310, 109 S.Ct. 1060, 1071-1075, 103 L.Ed.2d 334

(1989) (petition for writ of habeas corpus); Liljeberg v.

Health Services Acquisition Corp., 486 U.S. 847,

863-864, 108 S.Ct. 2194, 2204-2205, 100 L.Ed.2d 855

(1988) (Rule 60(b) motion); United States v. Frady,

456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816

(1982) (28 U.S.C. § 2255 motion); Ackermann v.

United States, 340 U.S. 193, 197-202, 71 S.Ct. 209,

211-214, 95 L.Ed. 207 (1950) (Rule 60(b) motion);

Sunal v. Large, 332 U.S. 174, 177-179, 67 S.Ct. 1588,

1590-1591, 91 L.Ed. 1982 (1947) (petition for writ of

habeas corpus).

In these cases there is no dispute about the fact that respondents are not parties to the consent decrees. It follows as a matter of course that they are not bound by those decrees.7 Those judgments could not, and did not, deprive *773 them of any legal rights. The judgments did, however, have a practical impact on respondents’ opportunities for advancement in their profession. For that reason, respondents had standing to challenge the validity of the decrees, but the grounds that they may advance in support of a collateral challenge are much more limited than would be allowed if they were parties prosecuting a direct appeal.8

7

As we held in Firefighters v. Cleveland, 478 U.S. 501,

529-530, 106 S.Ct. 3063, 3079, 92 L.Ed.2d 405 (1986):

“Of course, parties who choose to resolve litigation through settlement may not dispose of the claims of a third party, and a fortiori, may not impose duties or obligations on a third party, without that party’s agreement. A court’s approval of a consent decree between some of the parties therefore cannot dispose of the valid claims of nonconsenting [individuals].... And, of course, a court may not enter a consent decree that imposes obligations on a party that did not consent to the decree. See, e.g., United States v. Ward Baking Co., 376 U.S. 327, 84 S.Ct. 763, 11 L.Ed.2d 743 (1964); Hughes v. United

States, 342 U.S. 353, 72 S.Ct. 306, 96 L.Ed. 394 (1952); Ashley v. City of Jackson, 464 U.S., at 902, 104 S.Ct., at 257 (REHNQUIST, J., dissenting from denial of certiorari); 1B Moore ¶ 0.409 [5], p. 326, n. 2. However, the consent decree entered here does not bind Local 93 to do or not to do anything. It imposes no legal duties or obligations on the Union at all; only the parties to the decree can be held in contempt of court for failure to comply with its terms. See United States v. Armour & Co., 402 U.S. [673], at 676-677 [91 S.Ct. 1752, 1754-1755, 29 L.Ed.2d 256 (1971) ].”

8

The Eleventh Circuit, in a decision involving a previous

attempt by white firefighters to set aside the consent

decrees at issue in this litigation, itself observed:

“There are ... limitations on the extent to which a

nonparty can undermine a prior judgment. A nonparty

may not reopen the case and relitigate the merits anew;

neither may he destroy the validity of the judgment

between the parties.” United States v. Jefferson County,

720 F.2d 1511, 1518 (1983).

Professors James and Hazard describe the rule as

follows:

“Ordinarily, a nonparty has no legal interest in a

judgment in an action between others. Such a

judgment does not determine the nonparty’s rights

and obligations under the rules of res judicata and he

may so assert if the judgment is relied upon against

him. But in some situations one’s interests,

particularly in one’s own personal legal status or

claims to property, may be placed in practical

jeopardy by a judgment between others. In such

circumstances one may seek the aid of a court of

equity, but the grounds upon which one may rely are

severely limited. The general rule is that one must

show either that the judgment was void for lack of

jurisdiction of the subject matter or that it was the

product of fraud directed at the petitioner.” James &

Hazard § 12.15, p. 681 (emphasis supplied; footnotes

omitted).

**2191 The District Court’s rulings in these cases have been described incorrectly by both the Court of Appeals and this Court. The Court of Appeals repeatedly stated that the District *774 Court had “in effect” held that the white firefighters were “bound” by a decree to which they were not parties.9 And this Court’s opinion seems to assume that the District Court had interpreted its consent decrees in the earlier litigation as holding “that the white
9

Martin v. Wilks, 490 U.S. 755 (1989)

firefighters were precluded from challenging employment decisions taken pursuant to the decrees.” Ante, at 2183.10 It is important, therefore, to make clear exactly what the District Court did hold and why its judgment should be affirmed.

9

The Court of Appeals wrote:

-“Both the City and the Board, however, denied that

they had violated Title VII or the equal protection

clause. Both contended that the plaintiffs were bound

by the consent decrees and that the promotions were

therefore lawful as a matter of law because they had

been made pursuant to those decrees.” In re

Birmingham Reverse Discrimination Employment

Litigation, 833 F.2d 1492, 1496 (CA11 1987).

-“Without expressly so stating, the district judge

treated the plaintiffs as if they were bound by the

consent decrees and as if they were alleging solely

that the City had violated the City decree.” Ibid.

-“The court held that the plaintiffs-both the United

States and the individual plaintiffs-were bound by

the consent decrees.” Id., at 1497.

-“In effect, the court treated the plaintiffs as if they

were parties to the City decree seeking an order to

show cause why the City should not be held in civil

contempt for violating the terms of the decree.” Id.,

at 1497, n. 16.

10

See also, ante, at 2184, where the Court suggests that

the District Court held that its consent decrees had

“conclude[d] the rights of strangers to those

proceedings.” (Footnote omitted.)

I
The litigation in which the consent decrees were entered was a genuine adversary proceeding. In 1974 and 1975, two groups of private parties and the United States brought three separate Title VII actions against the city of Birmingham (City), the Personnel Board of Jefferson County (Board), and various officials,11 alleging discrimination in hiring *775 and promotion in several areas of employment, including the fire department. After a full trial in 1976, the District Court found that the defendants had violated Title VII and that a test used to screen job applicants was biased. App. 553. After a second trial in 1979 that focused on promotion practices-but before the District Court had rendered a decision-the parties negotiated two consent decrees, one with the City defendants and the other with the Board. App. to Pet. for Cert. 122a (City decree), 202a (Board decree). The United States is a party to both decrees. The District Court provisionally approved the proposed decrees and directed that the parties provide notice “to all

interested persons informing them of the general provisions of the Consent Decrees ... and of their right to file objections.” App. 695. Approximately two months later, the District Court conducted a fairness hearing, at which a group of black employees objected to the decrees as inadequate and a group of white firefighters-represented in part by the Birmingham Firefighters Association (BFA)-opposed any race-conscious relief. Id., at 727. The District Court **2192 overruled both sets of objections and entered the decrees in August 1981. 28 FEP Cases 1834 (ND Ala.1981).

11

These parties, along with six black firefighters who

were party-plaintiffs to the 1974-1975 litigation, are

petitioners herein.

In its decision approving the consent decrees, the District Court first noted “that there is no contention or suggestion that the settlements are fraudulent or collusive.” Id., at 1835. The court then explained why it was satisfied that the affirmative-action goals and quotas set forth in the decrees were “well within the limits upheld as permissible” in Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), and other cases. 28 FEP Cases, at 1836. It pointed out that the decrees “do not preclude the hiring or promotion of whites and males even for a temporary period of time,” ibid., and that the City’s commitment to promote blacks and whites to the position of fire lieutenant at the same rate was temporary and was subject both to the availability of qualified candidates *776 and “to the caveat that the decree is not to be interpreted as requiring the hiring or promotion of a person who is not qualified or of a person who is demonstrably less qualified according to a job-related selection procedure,” id., at 1837. It further found that the record provided “more than ample reason” to conclude that the City would eventually be held liable for discrimination against blacks at high-level positions in the fire and police departments.12 Id., at 1838. Based on *777 its understanding of the wrong committed, the court concluded that the remedy embodied in the consent decrees was “reasonably commensurate with the nature and extent of the indicated discrimination.” Ibid. Cf. Milliken v. Bradley, 418 U.S. 717, 744, 94 S.Ct. 3112, 3127, 41 L.Ed.2d 1069 (1974). The District Court then rejected other specific objections, pointing out that the decrees would not impinge on any contractual rights of the unions or their members. 28 FEP Cases, at 1839. Finally, after noting that it had fully considered the white firefighters’ objections to the settlement, it denied their motion to intervene as untimely. Ibid.

12

In approving the decree, the District Court expressed

confidence that the United States and the black

firefighters brought suit in good faith and that there was

10

Martin v. Wilks, 490 U.S. 755 (1989)
a strong evidentiary basis for their complaints. It observed:
“The objectors treat this case as one in which discrimination on the basis of race or sex has not been established. That is only partially true, at least as it relates to positions in the police and fire departments. This court at the first trial found-and the Fifth Circuit agreed-that blacks applying for jobs as police officers and firefighters were discriminated against by the tests used by the Personnel Board to screen and rank applicants. The evidence presented at the second trial established, at the .01 level of statistical significance, that blacks were adversely affected by the exam used by the Personnel Board to screen and rank applicants for the position of police sergeant. Since governmental employers such as the City of Birmingham have been limited by state law to selecting candidates from among those certified by the Board, one would hardly be surprised to find that the process as a whole has had an adverse effect upon blacks seeking employment as Birmingham police officers, police sergeants, or firefighters-regardless of whether or not there was any actual bias on the part of selecting officials of the City. A natural consequence of discrimination against blacks at entry-level positions in the police and fire departments would be to limit their opportunities for promotion to higher levels in the departments. “Employment statistics for Birmingham’s police and fire departments as of July 21, 1981, certainly lend support to the claim made in this litigation against the City-that, notwithstanding this court’s directions in 1977 with respect to certifications by the Personnel Board for the entry-level police officer and firefighters positions and despite the City’s adoption of a ‘fair hiring ordinance’ and of affirmative action plans, the effects of past discrimination against blacks persist. According to those figures, 79 of the 480 police officers are black, 3 of the 131 police sergeants are black, and none of the 40 police lieutenants and captains are black. In the fire department, 42 of the 453 firefighters are black, and none of the 140 lieutenants, captains, and battalion chiefs are black.” 28 FEP Cases, at 1837-1838. The evidence of discrimination presented at the 1979 trial is described in greater detail in the United States’ 100-page, post-trial brief, which is reprinted in the Joint Appendix. See App. 594-693.
Several months after the entry of the consent decrees, the Board certified to the **2193 City that five black firefighters, as well as eight whites, were qualified to fill six vacancies in the position of lieutenant. See App. 81. A group of white firefighters then filed suit against the City and Board challenging their policy of “certifying candidates and making promotions on the basis of race under the assumed protection of consent settlements.” App. to Pet. for Cert. 113a. The complaint alleged, in the alternative, that the consent decrees were illegal and void, or that the defendants were not properly implementing

them. Id., at 113a-114a. The plaintiffs filed motions for a temporary restraining order and a preliminary injunction. After an evidentiary hearing, the District Court found that the plaintiffs’ collateral attack on the consent decrees was “without merit” and that four of the black officers were qualified for promotion in accordance with the terms of the decrees. App. 81-83. Accordingly, it denied the motions, id., at 83, 85-86, and, for the first time in its history, the City had a black lieutenant in its fire department.
*778 The plaintiffs’ appeal from that order was consolidated with the appeal that had been previously taken from the order denying the motion to intervene filed in the earlier litigation. The Court of Appeals affirmed both orders. See United States v. Jefferson County, 720 F.2d 1511 (CA11 1983). While that appeal was pending, in September 1983, the Wilks respondents filed a separate action against petitioners. The Wilks complaint alleged that petitioners were violating Title VII, but it did not contain any challenge to the validity of the consent decrees. App. 130. After various preliminary proceedings, the District Court consolidated these cases, along with four other reverse discrimination actions brought against petitioners, under the caption In re: Birmingham Reverse Discrimination Litigation. Id., at 218. In addition, over the course of the litigation, the court allowed further parties to intervene.13

13

Among those allowed to intervene were seven black

firefighters who were parties to the consent decrees and

who sought to defend the decrees; the United States,

which reversed course in the litigation and aligned itself

with the plaintiffs; and additional white firefighters

pressing individual reverse discrimination claims.

On February 18, 1985, the District Court ruled on the City’s motion for partial summary judgment and issued an opinion that, among other things, explained its understanding of the relevance of the consent decrees to the issues raised in the reverse discrimination litigation. Id., at 277. After summarizing the proceedings that led up to the entry of the consent decrees, the District Court expressly “recognized that the consent decrees might not bar all claims of ‘reverse discrimination’ since [the plaintiffs] had not been parties to the prior suits.”14 Id., at 279. The court then took a position *779 with respect to the relevance of the consent decrees that differed from that advocated by any of the parties. The plaintiffs contended that the consent decrees, even if valid, did not constitute a defense to their action, cf. W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983), and, in the alternative, that the decrees did not authorize the promotion of black applicants ahead of higher scoring white applicants and thus did not justify race-conscious promotions. App.
11

Martin v. Wilks, 490 U.S. 755 (1989)

281-282. The City, on the other hand, contended that the promotions were immunized from challenge if they were either required or permitted by the terms of the decrees. Id., at 282. The District Court took the intermediate position that promotions required by-and **2194 made because of-the decrees were justified.15 However, it denied the City’s summary judgment motion because it raised factual issues requiring a trial. Id., at 288-289.

14

During an earlier hearing, the District Court informed

counsel:

“I do believe that the Court of Appeals said there is

no per se prohibition against an attack, an indirect

attack, in any event by a person whose rights may be

affected during the implementation or claims

implementation of the decree. To the extent the

motions to dismiss or summary judgment take that

position, I think the Court of Appeals said, no, that is

not the law of this Circuit.” Id., at 237.

15

The court indicated that if the race-conscious

promotions were a product of the City’s adherence to

pending court orders (i.e., the consent decrees), it could

not be said that the City acted with the requisite racially

discriminatory intent. See id., at 280 (“[T]he court is

persuaded that the defendants can ... defend these

reverse discrimination claims if they establish that the

challenged promotions were made because of the

requirements of the consent decree”). See also Tr. (May

14, 1984), reprinted in App. 237. In reaching this

conclusion, the District Court was well aware of the

Court of Appeals’ previous suggestion that such a

defense might be available:

“The consent decree would only become an issue if

the defendant attempted to justify its conduct by

saying that it was mandated by the consent decree. If

this were the defense, the trial judge would have to

determine whether the defendant’s action was

mandated by the decree, and, if so, whether that fact

alone would relieve the defendant of liability that

would otherwise attach. This is, indeed, a difficult

question.... We should not, however, preclude

potentially wronged parties from raising such a

question merely because it is perplexing.’ ” App.

280-281, n. 6, quoting United States v. Jefferson

County, 720 F.2d, at 1518-1519.

In December 1985, the court conducted a 5-day trial limited to issues concerning promotions in the City’s fire and engineering departments.16 At that trial, respondents challenged *780 the validity of the consent decrees; to meet that challenge, petitioners introduced the records of the 1976 trial, the 1979 trial, and the fairness hearing conducted in 1981. Respondents also tried to prove that they were demonstrably better qualified than the black firefighters who had been promoted ahead of them. At the conclusion of the trial, the District Court entered a partial final judgment dismissing portions of the plaintiffs’

complaints. The judge explained his ruling in an oral opinion dictated from the bench, supplemented by the adoption, with some changes, of detailed findings and conclusions drafted by the prevailing parties. See App. to Pet. for Cert. 27a, 37a.

16

At the close of the plaintiffs’ case, the District Court

granted the motion of the Board to dismiss the claims

against it pursuant to Federal Rule of Civil Procedure

41(b). The basis for the motion was the fact that, even

without regard to the consent decrees, the plaintiffs had

not proved a prima facie case against the Board, which

had done nothing more than provide the City with the

names of employees, both white and black, who were

qualified for promotion. There was no evidence that the

Board’s certification process, or its testing procedures,

adversely affected whites. I am at a loss to understand

why the Court of Appeals did not affirm the judgment

in favor of the Board.

In his oral statement, the judge adhered to the legal position he had expressed in his February ruling. He stated:
“The conclusions there expressed either explicitly or implicitly were that under appropriate circumstances, a valid consent decree appropriately limited can be the basis for a defense against a charge of discrimination, even in the situation in which it is clear that the defendant to the litigation did act in a racially conscious manner.
“In that February order, it was my view as expressed then, that if the City of Birmingham made promotions of blacks to positions as fire lieutenant, fire captain and civil engineer, because the City believed it was required to do so by the consent decree, and if in fact the City was required to do so by the Consent Decree, then they would not be guilty of racial discrimination, either *781 under Title 7, Section 1981, 1983 or the 14th Amendment. That remains my conclusion given the state of the law as I understand it.” Id., at 77a.
He then found as a matter of fact that petitioners had not promoted any black officers who were not qualified or who were demonstrably less qualified than the whites who were not promoted. He thus rejected respondents’ contention that the City could not claim that it simply acted as required **2195 by terms of the consent decree:17

17

Paragraph 2 of the City decree provides, in pertinent

part:

“Nothing herein shall be interpreted as requiring the

City to ... promote a person who is not qualified ... or

promote a less qualified person, in preference to a

person who is demonstrably better qualified based

upon the results of a job related selection procedure.”

App. to Pet. for Cert. 124a.

12

Martin v. Wilks, 490 U.S. 755 (1989)

“In this case, under the evidence as presented here, I find that even if the burden of proof be placed on the defendants, they have carried that proof and that burden of establishing that the promotions of the black individuals in this case were in fact required by the terms of the consent decree.” Id., at 78a. The written conclusions of law that he adopted are less clear than his oral opinion. He began by unequivocally stating: “The City Decree is lawful.”18 Id., at 106a. He explained that “under all the relevant case law of the Eleventh Circuit and the Supreme Court, it is a proper remedial device, designed to overcome the effects of prior, illegal discrimination by the City of Birmingham.”19 Id., at 106a-107a. *782 In that same conclusion, however, he did state that “ plaintiffs cannot collaterally attack the Decree’s validity.” Id., at 106a. Yet, when read in context-and particularly in light of the court’s finding that the decree was lawful under Eleventh Circuit and Supreme Court precedent-it is readily apparent that, at the extreme, this was intended as an alternative holding. More likely, it was an overstatement of the rule that collateral review is narrower in scope than appellate review. In any event, and regardless of one’s reading of this lone sentence, it is absolutely clear that the court did not hold that respondents were bound by the decree. Nowhere in the District Court’s lengthy findings of fact and conclusions of law is there a single word suggesting that respondents were bound by the consent decree or that the court intended to treat them as though they had been actual parties to that litigation and not merely as persons whose interests, as a practical matter, had been affected. Indeed, respondents, the Court of Appeals, and the majority opinion all fail to draw attention to any point in these cases’ long history at which the judge may have given the impression that any nonparty was legally bound by the consent decree.20

18

The District Court’s opinion does not refer to the

second consent decree because the claims against the

Board had been dismissed at the end of the plaintiffs’

case. See n. 16, supra.

19

In support of this proposition, the court cited, inter alia,

our decision in Steelworkers v. Weber, 443 U.S. 193, 99

S.Ct. 2721, 61 L.Ed.2d 480 (1979). We recently

reaffirmed the Weber decision in Johnson v.

Transportation Agency, Santa Clara County, 480 U.S.

616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987). See also

Sheet Metal Workers v. EEOC, 478 U.S. 421, 106 S.Ct.

3019, 92 L.Ed.2d 344 (1986) (plurality opinion); id., at

483, 106 S.Ct., at 3024-3025 (Powell, J., concurring in

part and concurring in judgment); id., at 489, 106 S.Ct.,

at 3057 (O’CONNOR, J., concurring in part and

dissenting in part); id., at 499, 106 S.Ct., at 3062 (WHITE, J., dissenting) (all reaffirming that courts are vested with discretion to award race-conscious relief).

20

In Provident Tradesmens Bank & Trust Co. v.

Patterson, 390 U.S., at 114, 88 S.Ct., at 740, we

expressly did not decide whether a litigant might “be

bound by [a] previous decision because, although

technically a nonparty, he had purposely bypassed an

adequate opportunity to intervene.” See Note,

Preclusion of Absent Disputants to Compel

Intervention, 79 Colum.L.Rev. 1551 (1979) (arguing in

favor of such a rule of mandatory intervention); 7 C.

Wright, A. Miller, & M. Kane, Federal Practice and

Procedure § 1608, p. 115, n. 33 (2d ed. 1986) (drawing

a parallel between the mandatory intervention rule and

this Court’s decision in Penn-Central Merger and N &

W Inclusion Cases, 389 U.S. 486, 88 S.Ct. 602, 19

L.Ed.2d 723 (1968)). Today, the Court answers this

question, at least in the limited context of the instant

dispute, holding that “[j]oinder as a party [under

Federal Rule of Civil Procedure 19], rather than

knowledge of a lawsuit and an opportunity to intervene

[under Federal Rule of Civil Procedure 24], is the

method by which potential parties are subjected to the

jurisdiction of the court and bound by a judgment or

decree.” Ante, at 2186. See also ante, at 2185 (“[A]

party seeking a judgment binding on another cannot

obligate that person to intervene; he must be joined”).

Because I conclude that the District Court did not hold

that respondents were bound by the consent decrees, I

do not reach this issue.

*783 **2196 II
Regardless of whether the white firefighters were parties to the decrees granting relief to their black co-workers, it would be quite wrong to assume that they could never collaterally attack such a decree. If a litigant has standing, he or she can always collaterally attack a judgment for certain narrowly defined defects. See, e.g., Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266 (1949); and cases cited in n. 5, supra. See also Korematsu v. United States, 584 F.Supp. 1406 (ND Cal.1984) (granting writ of coram nobis vacating conviction based on Government concealment of critical contradictory evidence in Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944)). On the other hand, a district court is not required to retry a case-or to sit in review of another court’s judgment-every time an interested nonparty asserts that some error that might have been raised on direct appeal was committed. See nn. 6 and 8, supra. Such a broad allowance of collateral review would destroy the integrity of litigated judgments, would lead to an abundance of vexatious litigation, and would
13

Martin v. Wilks, 490 U.S. 755 (1989)

subvert the interest in comity between courts.21 Here, respondents have offered no circumstance *784 that might justify reopening the District Court’s settled judgment.

21

One leading commentator relies on the following

poignant language employed by the Virginia Supreme

Court to explain the significance of the doctrine

limiting collateral attacks:

“ ‘It is one ... which has been adopted in the interest

of the peace of society and the permanent security of

titles. If, after the rendition of a judgment by a court

of competent jurisdiction, and after the period has

elapsed when it becomes irreversible for error,

another court may in another suit inquire into the

irregularities or errors in such judgment, there would

be no end to litigation and no fixed established

rights. A judgment, though unreversed and

irreversible, would no longer be a final adjudication

of the rights of the litigants, but the starting point

from which a new litigation would spring up; acts of

limitation would become useless and nugatory;

purchasers on the faith of judicial process would find

no protection; every right established by a judgment

would be insecure and uncertain; and a cloud would

rest upon every title.’ ” 1 H. Black, Law of

Judgments § 245, pp. 365-366 (2d ed. 1902), quoting

Lancaster v. Wilson, 27 Gratt. 624, 629 (Va.1876).

In addition to undermining this interest in finality,

permitting collateral attacks also leads to the

anomaly that courts will, on occasion, be required to

sit in review of judgments entered by other courts of

equal-or even greater-authority. Cf. ASARCO Inc. v.

Kadish, 490 U.S. 605, 622-623, 109 S.Ct. 2037,

2047-2048, 104 L.Ed.2d 696 (1989); District of

Columbia Court of Appeals v. Feldman, 460 U.S.

462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker

v. Fidelity Trust Co., 263 U.S. 413, 415-416, 44

S.Ct. 149, 150, 68 L.Ed. 362 (1923). The rule is also

supported by the fact that there is no assurance that a

second round of litigation is more likely than the first

to reach a just result or obtain uniformity in the law.

The implementation of a consent decree affecting the interests of a multitude of nonparties, and the reliance on that decree as a defense to a charge of discrimination in hiring and promotion decisions, raise a legitimate concern of collusion. No such allegation, however, has been raised. Moreover, there is compelling evidence that the decrees were not collusive. In its decision approving the consent decrees over the objection of the BFA and individual white firefighters, the District Court observed that there had been “no contention or suggestion” that the decrees were fraudulent or collusive. 28 FEP Cases, at 1835. The record of the fairness hearing was made part of the record of this litigation, and this finding was not contradicted. More significantly, the consent decrees were not negotiated until after the 1976 trial and the court’s finding that the City had discriminated against black candidates for jobs as police officers and firefighters, see

App. 553, and until after the 1979 trial, at which substantial evidence was presented suggesting that the City also discriminated against black candidates for promotion in the fire department, see n. 12, supra. Like the record of the 1981 fairness hearing, the records of both of these prior proceedingswere *785 made part of the record in these cases. Given this history, the lack of any indication of collusion, and the District **2197 Court’s finding that “there is more than ample reason for ... the City of Birmingham to be concerned that [it] would be in time held liable for discrimination against blacks at higher level positions in the police and fire departments,” 28 FEP Cases, at 1838, it is evident that the decrees were a product of genuine arm’s-length negotiations.

Nor can it be maintained that the consent judgment is subject to reopening and further litigation because the relief it afforded was so out of line with settled legal doctrine that it “was transparently invalid or had only a frivolous pretense to validity.”22 Walker v. Birmingham, 388 U.S. 307, 315, 87 S.Ct. 1824, 1829, 18 L.Ed.2d 1210 (1967) (suggesting that a contemner might be allowed to challenge contempt citation on ground that underlying court order was “transparently invalid”). To the contrary, the type of race-conscious relief ordered in the consent decrees is entirely consistent with this Court’s approach to affirmative action. Given a sufficient predicate of racial discrimination, neither the Equal Protection Clause of the Fourteenth Amendment23 nor Title VII of the Civil Rights Act *786 of 196424 erects a bar to affirmative-action plans that benefit non-victims and have some adverse effect on nonwrongdoers.25 As Justice O’CONNOR observed **2198 in Wygant v. *787 Jackson Bd. of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986): “This remedial purpose need not be accompanied by contemporaneous findings of actual discrimination to be accepted as legitimate as long as the public actor has a firm basis for believing that remedial action is required.” Id., at 286, 106 S.Ct., at 1853 (opinion concurring in part and concurring in judgment). Such a belief was clearly justified in these cases. After conducting the 1976 trial and finding against the City and after listening to the five days of testimony in the 1979 trial, the judge was well qualified to conclude that there was a sound basis for believing that the City would likely have been found to have violated Title VII if the action had proceeded to a litigated judgment.26

22

It was argued during the 1981 fairness hearing, in the

first complaint filed in this litigation, see App. to Pet.

for Cert. 113a, and in at least one of the subsequently

filed complaints, see App. 96, that race-conscious relief

for persons who are not proven victims of past

discrimination is absolutely prohibited by the Equal

Protection Clause of the Fourteenth Amendment and by

Title VII of the Civil Rights Act of 1964. As I have

pointed out, the Wilks complaint did not challenge the

validity of the decrees. See App. 135-137.

14

Martin v. Wilks, 490 U.S. 755 (1989)

23

See Wygant v. Jackson Bd. of Education, 476 U.S. 267,

286, 106 S.Ct. 1842, 1853, 90 L.Ed.2d 260 (1986)

(O’CONNOR, J., concurring in part and concurring in

judgment) (“The Court is in agreement that, whatever

the formulation employed, remedying past

discrimination by a state actor is a sufficiently weighty

state interest to warrant the remedial use of a carefully

constructed affirmative action program”). See also

Sheet Metal Workers, 478 U.S., at 479-481, 106 S.Ct.,

at 3052-3053 (plurality opinion); id., at 484-489, 106

S.Ct., at 3054-3057 (Powell, J., concurring in part and

concurring in judgment).

24

In distinguishing the Court’s decision in Firefighters v.

Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483

(1984), the plurality in Sheet Metal Workers, 478 U.S.,

at 474-475, 106 S.Ct., at 3050, asserted:

“However, this limitation on

individual make-whole relief

does not affect a court’s

authority

to

order

race-conscious affirmative

action. The purpose of

affirmative action is not to

make identified victims whole,

but rather to dismantle prior

patterns of employment

discrimination and to prevent

discrimination in the future.

Such relief is provided to the

class as a whole rather than to

individual members; no

individual is entitled to relief,

and beneficiaries need not

show that they were

themselves victims of

discrimination. In this case,

neither the membership goal

nor the Fund order required

petitioners to indenture or train

particular individuals, and

neither required them to admit

to membership individuals

who were refused admission

for reasons unrelated to

discrimination. We decline

petitioners’ invitation to read

Stotts to prohibit a court from

ordering any kind of

race-conscious affirmative

relief that might benefit

nonvictims. This reading

would distort the language of §

706(g), and would deprive the

courts of an important means

of enforcing Title VII’s

guarantee

of

equal

employment opportunity.”

See also id., at 483, 106 S.Ct., at 3054 (Powell, J., concurring in part and concurring in judgment) (“plain language of Title VII does not clearly support a view that all remedies must be limited to benefiting victims,” and “although the matter is not entirely free from doubt,” the legislative history of Title VII indicates that nonvictims may be benefited); id., at 490, 106 S.Ct., at 3058 (O’CONNOR, J., concurring in part and dissenting in part) (“It is now clear ... that a majority of the Court believes that the last sentence of § 706(g) does not in all circumstances prohibit a court in a Title VII employment discrimination case from ordering relief that may confer some racial preferences with regard to employment in favor of nonvictims of discrimination”); id., at 499, 106 S.Ct., at 3062 (WHITE, J., dissenting) (“I agree that § 706(g) does not bar relief for nonvictims in all circumstances”).

25

In my view, an affirmative-action plan need not be

supported by a predicate of racial discrimination by the

employer provided that the plan “serve[s] a valid public

purpose, that it was adopted with fair procedures and

given a narrow breadth, that it transcends the harm to

[the nonminority employees], and that it is a step

toward that ultimate goal of eliminating entirely from

governmental decisionmaking such irrelevant factors as

a human being’s race.” Wygant, 476 U.S., at 320, 106

S.Ct., at 1871 (STEVENS, J., dissenting). In these

cases, however, the plan was undoubtedly preceded by

an adequate predicate of racial discrimination; thus, I

need not consider whether there is some present-day

purpose that might justify a race-conscious promotion

scheme.

26

Moreover, the District Court, in its opinion approving

the consent decrees, found that the remedies are

“reasonably commensurate with the nature and extent

of the indicated discrimination,” are “limited in

duration, expiring as particular positions generally

reflect the racial ... composition of the labor market in

the county as a whole,” allow for “substantial

opportunity for employment advancement of whites

and males,” and “do not require the selection of blacks

... who are unqualified or who are demonstrably less

qualified than their competitors.” 28 FEP Cases 1834,

1838 (ND Ala.1981). Therefore, it cannot be claimed

that the court failed to consider whether the remedies

were tailored “to fit the nature of the violation.” Sheet

Metal Workers, 478 U.S., at 476, 106 S.Ct., at 3050.

See also id., at 496, 106 S.Ct., at 3060-3061

(O’CONNOR, J., concurring in part and dissenting in

part).

Hence, there is no basis for collaterally attacking the judgment as collusive, fraudulent, or transparently invalid. Moreover, respondents do not claim-nor has there been any showing of-mistake, duress, or lack of
15

Martin v. Wilks, 490 U.S. 755 (1989)
jurisdiction. Instead, respondents are left to argue that somewhat different relief would have been more appropriate than the relief that was actually granted. Although this sort of issue may provide the basis for a direct appeal, it cannot, and should not, serve to open the door to relitigation of a settled judgment.

*788 III
The facts that respondents are not bound by the decrees and that they have no basis for a collateral attack, moreover, do not compel the conclusion that the District Court should have treated the decrees as nonexistent for purposes of respondents’ discrimination suit. That the decrees may not directly interfere with any of respondents’ legal rights does not mean that they may not affect the factual setting in a way that negates respondents’ claim. The fact that a criminal suspect is not a party to the issuance of a search warrant does not imply that the presence of a facially valid warrant may not be taken as evidence that the police acted in good faith. See Malley v. Briggs, 475 U.S. 335, 344-345, 106 S.Ct. 1092, 1098, 89 L.Ed.2d 271 (1986); United States v. Leon, 468 U.S. 897, 921-922, 924, 104 S.Ct. 3405, 3419-3420, 3421, 82 L.Ed.2d 677 (1984); United States v. Ross, 456 U.S. 798, 823, n. 32, 102 S.Ct. 2157, 2172, n. 32, 72 L.Ed.2d 572 (1982). Similarly, the fact that an employer is acting under court compulsion may be evidence that the employer is acting in good faith and without discriminatory intent. Cf. Ashley v. City of Jackson, 464 U.S. 900, 903, 104 S.Ct. 255, 258, 78 L.Ed.2d 241 (1983) (REHNQUIST, J., dissenting from denial of certiorari) (suggesting that compliance with a consent decree “might be relevant to a defense of good-faith immunity”); Restatement (Second) of Judgments § 76, Comment a, p. 217 (1982) ( “If the judgment is held to be not binding on the person against whom it is invoked, it is then ignored in the determination of matters in issue in the subsequent litigation, unless it is relevant for some other purpose such as proving the good faith of a party who relied on it”). Indeed, **2199 the threat of a contempt citation provides as good a reason to act as most, if not all, other business justifications.27

27

Because consent decrees “have attributes both of

contracts and judicial decrees,” they are treated

differently for different purposes. United States v. ITT

Continental Baking Co., 420 U.S. 223, 236, n. 10, 95

S.Ct. 926, 934, n. 10, 43 L.Ed.2d 148 (1975). See also

Firefighters v. Cleveland, 478 U.S., at 519, 106 S.Ct.,

at 3074. For example, because the content of a consent

decree is generally a product of negotiations between

the parties, decrees are construed for enforcement

purposes as contracts. See ITT Continental Baking Co.,

supra, 420 U.S., at 238, 95 S.Ct., at 935; Stotts v.

Memphis Fire Dept., 679 F.2d 541, 557 (CA6 1982), rev’d on other grounds, 467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984). For purposes of determining whether an employer can be held liable for intentional discrimination merely for complying with the terms of a consent decree, however, it is appropriate to treat the consent decree as a judicial order. Unlike the typical contract, a consent decree, such as the ones at issue here, is developed in the context of adversary litigation. Moreover, the court reviews the consent decree to determine whether it is lawful, reasonable, and equitable. In placing the judicial imprimatur on the decree, the court provides the parties with some assurance that the decree is legal and that they may rely on it. Most significantly, violation of a consent decree is punishable as criminal contempt. See 18 U.S.C. §§ 401, 402; Fed.Rule Crim.Proc. 42.
*789 After reviewing the evidence, the District Court found that the City had in fact acted under compulsion of the consent decrees. App. to Pet. for Cert. 107a; In re Birmingham Reverse Discrimination Employment Litigation, 36 EPD ¶ 35022 p. 36,586 (ND Ala.1985). Based on this finding, the court concluded that the City carried its burden of coming forward with a legitimate business reason for its promotion policy, and, accordingly, held that the promotion decisions were “not taken with the requisite discriminatory intent” necessary to make out a claim of disparate treatment under Title VII or the Equal Protection Clause. App. to Pet. for Cert. 107a, citing United States v. Jefferson County, 720 F.2d, at 1518. For this reason, and not because it thought that respondents were legally bound by the consent decrees, the court entered an order in favor of the City and defendant-intervenors.
Of course, in some contexts a plaintiff might be able to demonstrate that reference to a consent decree is pretextual. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). For example, a plaintiff might be able to show that the consent decree was collusive and that the defendants simply obtained the court’s rubber stamp on a private agreement that was in no way related to the eradication of pervasive racial discrimination. The plaintiff, alternatively, might be able to show that the defendants were not bound to obey the consent decree because the court that entered it was without jurisdiction. See United States v. Mine *790 Workers, 330 U.S. 258, 291-294, 67 S.Ct. 677, 694-696, 91 L.Ed. 884 (1947). Similarly, although more tenuous, a plaintiff might argue that the parties to the consent judgment were not bound because the order was “transparently invalid” and thus unenforceable.28 If the defendants were as a result not bound to implement the affirmative-action program, then the plaintiff might be able to show that the racial preference was not a product of the court order.
16

Martin v. Wilks, 490 U.S. 755 (1989)

28

In Walker v. Birmingham, 388 U.S. 307, 87 S.Ct. 1824,

18 L.Ed.2d 1210 (1967), we held that a party can be

held in contempt of court for violating an injunction,

even if the injunction was invalid under the Federal

Constitution. However, in upholding the contempt

citations at issue, we made clear that that was “not a

case where the injunction was transparently invalid or

had only a frivolous pretense to validity.” Id., at 315, 87

S.Ct., at 1829. Courts and commentators have relied on

this reservation in positing that a contempt citation may

be collaterally attacked if the underlying order was

“transparently invalid.” See, e.g., In re Providence

Journal Co., 820 F.2d 1342 (CA1 1986), cert. dism’d,

sub nom. United States v. Providence Journal, 485 U.S.

693, 108 S.Ct. 1502, 99 L.Ed.2d 785 (1988); 3 C.

Wright, Federal Practice and Procedure § 702, p. 815,

n. 17 (2d ed. 1982).

In a case such as these, however, in which there has been no showing that the decree was collusive, fraudulent, transparently **2200 invalid, or entered without jurisdiction, it would be “unconscionable” to conclude that obedience to an order remedying a Title VII violation could subject a defendant to additional liability. Cf. Farmers v. WDAY, Inc., 360 U.S. 525, 531, 79 S.Ct. 1302, 1306, 3 L.Ed.2d 1407 (1959). Rather, all of the reasons that support the Court’s view that a police officer should not generally be held liable when he carries out the commands in a facially valid warrant apply with added force to city officials, or indeed to private employers, who obey the commands contained in a decree entered by a federal court.29 In fact, Equal Employment *791 Opportunity Commission regulations concur in this assessment. They assert: “The Commission interprets Title VII to mean that actions taken pursuant to the direction of a Court Order cannot give rise to liability under Title VII.” 29 CFR § 1608.8 (1989).30 Assuming that the District Court’s findings of fact were not clearly erroneous-which of course is a matter that is not before us-it seems perfectly clear that its judgment should have been affirmed. Any other conclusion would subject large employers who seek to comply with the law by remedying past discrimination to a never-ending stream of litigation and potential liability. It is unfathomable that either Title VII or the Equal Protection Clause demands such a counterproductive result.

29

Both warrants and consent decrees bear the indicium of

reliability that a judicial officer has reviewed the

proposed act and determined that it is lawful. See

United States v. Alexandria, 614 F.2d 1358, 1361 (CA5

1980) (“trial court must satisfy itself that the consent

decree is not unlawful, unreasonable, or inequitable

before it can be approved”); App. to Pet. for Cert. 238a.

Unlike the police officer in receipt of a facially valid

warrant, however, an employer with notice of an

affirmative injunction has no choice but to act. This

added element of compulsion renders imposition of

liability for acting pursuant to a valid consent decree all the more inequitable.

30

Section 1608.8 does not differentiate between orders

“entered by consent or after contested litigation.” 29

CFR § 1608.8 (1989). Indeed, the reasoning in the

Court’s opinion today would seem equally applicable to

litigated orders and consent decrees.

The Court’s unwillingness to acknowledge that the

grounds for a collateral attack on a judgment are

significantly narrower than the grounds available on

direct review, see ante, at 2190, n. 6, is difficult to

reconcile with the host of cases cited in United States

v. Frady, 456 U.S., at 165, 102 S.Ct., at 1593, the

cases cited in n. 6, supra, and those cited in the

scholarly writings cited in n. 5, supra.

IV
The predecessor to this litigation was brought to change a pattern of hiring and promotion practices that had discriminated against black citizens in Birmingham for decades. The white respondents in these cases are not responsible for that history of discrimination, but they are nevertheless beneficiaries of the discriminatory practices that the litigation was designed to correct. Any remedy that seeks to create employment conditions that would have obtained if there had been no violations of law will necessarily have an adverse impact on whites, who must now share their job and promotion opportunities *792 with blacks.31 Just as white employees in the past were innocent beneficiaries of illegal discriminatory practices, so is it inevitable that some of the same white employees will be innocent victims who must share some of the burdens resulting from the redress of the past wrongs.

31

It is inevitable that nonminority employees or

applicants will be less well off under an

affirmative-action plan than without it, no matter what

form it takes. For example, even when an employer

simply agrees to recruit minority job applicants more

actively, white applicants suffer the “nebulous” harm of

facing increased competition and the diminished

likelihood of eventually being hired. See Schwarzchild,

Public Law By Private Bargain: Title VII Consent

Decrees and the Fairness of Negotiated Institutional

Reform, 1984 Duke L.J. 887, 909-910.

There is nothing unusual about the fact that litigation between adverse parties may, as a practical matter, seriously impair the interests of third persons who elect to sit on the sidelines. Indeed, in complex litigation this
17

Martin v. Wilks, 490 U.S. 755 (1989)

Court has squarely held that **2201 a sideline-sitter may be bound as firmly as an actual party if he had adequate notice and a fair opportunity to intervene and if the judicial interest in finality is sufficiently strong. See Penn-Central Merger and N & W Inclusion Cases, 389 U.S. 486, 505-506, 88 S.Ct. 602, 611-612, 19 L.Ed.2d 723 (1968). Cf. Bergh v. Washington, 535 F.2d 505, 507 (CA9), cert. denied, 429 U.S. 921, 97 S.Ct. 318, 50 L.Ed.2d 288 (1976); Safir v. Dole, 231 U.S.App.D.C. 63, 70-71, 718 F.2d 475, 482-83 (1983), cert. denied, 467 U.S. 1206, 104 S.Ct. 2389, 81 L.Ed.2d 347 (1984); James & Hazard § 11.31, pp. 651-652.
There is no need, however, to go that far in order to agree with the District Court’s eminently sensible view that compliance with the terms of a valid decree remedying violations of Title VII cannot itself violate that statute or the Equal Protection Clause.32 The city of Birmingham, in entering into *793 and complying with this decree, has made a substantial step toward the eradication of the long history of pervasive racial discrimination that has plagued its fire department. The District Court, after conducting a trial and carefully considering respondents’ arguments, concluded that this effort is lawful and should go forward. Because respondents have thus already had their day in court and have failed to carry their burden, I would vacate the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion.

32

In professing difficulty in understanding why

respondents are not “bound” by a decree that provides a defense to employment practices that would otherwise violate Title VII, see ante, at 2190, n. 6, the Court uses the word “bound” in a sense that is different from that used earlier in its opinion. A judgment against an employer requiring it to institute a seniority system may provide the employer with a defense to employment practices that would otherwise violate Title VII. In the sense in which the word “bound” is used in the cases cited by the Court, ante, at 2184 and 2185 of its opinion, only the parties to the litigation would be “bound” by the judgment. But employees who first worked for the company 180 days after the litigation ended would be “bound” by the judgment in the sense that the Court uses when it responds to my argument. The cases on which the Court relies are entirely consistent with my position. Its facile use of the word “bound” should not be allowed to conceal the obvious flaws in its analysis.
Parallel Citations
109 S.Ct. 2180, 49 Fair Empl.Prac.Cas. (BNA) 1641, 50 Empl. Prac. Dec. P 39,052, 104 L.Ed.2d 835, 57 USLW 4616, 14 Fed.R.Serv.3d 1
	  

18

 
 Arrington v. Wilks, 492 U.S. 932 (1989)
110 S.Ct. 11 Supreme Court of the United States Richard ARRINGTON, Jr., et al., petitioners,
v. Robert K. WILKS, et al No. 87-1668 | August 11, 1989 Former decision, 487 U.S. 1204, 108 S.Ct. 2843; 490 U.S. 755, 109 S.Ct. 2180.
Case below, 11 Cir., In re Birmingham Reverse Discrimination Emp. Litigation, 833 F.2d 1492; 841 F.2d

399.
Opinion The *933 petition for rehearing is denied.
Parallel Citations 110 S.Ct. 11 (Mem), 106 L.Ed.2d 626
	  

1

 
 Arrington v. Wilks, 514 U.S. 1065 (1995)

115 S.Ct. 1695 Supreme Court of the United States
Richard ARRINGTON, Jr., et al., petitioners, v.
Robert K. WILKS, et al.
No. 94-1397. | April 17, 1995.
Case below, 806 F.Supp. 926; In re Birmingham Reverse Discrimination Employment Litigation, 833 F.2d 1492; 20 F.3d 1525; 60 F.3d 720.

Opinion Petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit denied.
Parallel Citations 115 S.Ct. 1695 (Mem), 67 Fair Empl.Prac.Cas. (BNA) 1120, 131 L.Ed.2d 558, 63 USLW 3753, 63 USLW 3749
	  

1

 
 Martin v. Wilks, 514 U.S. 1065 (1995)

115 S.Ct. 1695 Supreme Court of the United States
John W. MARTIN, et al., petitioners, v.
Robert K. WILKS, et al.
No. 94-1422. | April 17, 1995.
Case below, 806 F.Supp. 926; In re Birmingham Reverse Discrimination Employment Litigation, 833 F.2d 1492; 20 F.3d 1525; 60 F.3d 720.

Opinion Petitions for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit denied.
Parallel Citations 115 S.Ct. 1695 (Mem), 67 Fair Empl.Prac.Cas. (BNA) 1120, 131 L.Ed.2d 558, 63 USLW 3749, 63 USLW 3753
	  

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the United States to enforce the provisions of

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U.S.C. 12L,2); and for the pu-.:-po:;e of protecting and enforcing rights guaranteed by the Fourteenth An1endment to the Constitution of the United States and 42 U.S.C. l98l.
2. This Court has jurisdiction of this action under 31 U.S.C. ·1242, 42 U.S.C. 2000e-6(b), 3766(c)(3), and 28 U.S.C .
1345. 3. Defendant Jefferson County is a political subdivisic
of the State of Alabama and is an employer within the meaning of 42 U.S.C. 2000e(b), as amended.
4. Defendants Ben L. Erdreich, Thomas W. Gloor, and Chriss H. Doss, are County Commissioners for Jefferson County, Alaba~a and are responsible for the administration and operation of the county gover~~ent of Jefferson County, including the hiring, assigning, and promoting of emp].oyees
of the County . 5. Defendant Jefferson County Personnel Board is an
agency of Jefferson County established pursuant to the laws of the State of Alabama, is an employer within the meaning of 42 U.S.C. 200Qefb), as amended, and is engaged in the procuring and screening of applicants and certification of eligibles for appointment with defendants named in paragraph 3, 7, 9, and 11 and in the administration of a civil service system for.such defendants.
6. Defendants James B. Johnson, Henry P. Johnston and Hiram Y. McKinney are members, and Joseph L. Curtin is Director of the Jefferson County Personnel Board, and as stlc they are responsible for its adnunistration and operation, including the procuring and reviewing of applicants and certification of eligibles for appointment ••ith..defendants named in pnr~graphs 3, 7, 9 and 11.
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7. Defendant Jefferson County Health Department is an agency of Jefferson County established pursuant to the lnv1s of the State of Alabama and is an employer ~;rithin the meaning
·of 42 U.S.C. 2000e(b) as amended. 8. Defendant George E.·Hardy, H.D., is the Health
Officer of Jefferson County, Alabama and is responsible for the administration and operation of the Health Department, including the hiring, assigning, and promoting of employees

of the Department. 9. The cities of Bessemer, Birmingham, Fairfield,

...

Fultondale, Gardendal~, Homewood, Hueytown, Midfield, Mounta:

Brook, Pleasant Grove; Tarrant, and Vestavia Hills are

political subdivisions of the State of Alabama incorporated

pursuant to the laws of that State.

10. Defendants Edward Porter, George G. Seibels, Lawren

i

G. Sides, Nelson Arnold, G. William Noble, Robert C. Yaldrop

i
;·

L. W. Jackson, Ray R. Farmer, Lee McGriff, Bobby R_ Patrick,

D. Evan Veal, and J. T. Scates are the respective Uay~rs· ·a~

\.

the municipalities named in paragraph 9, and are responsible

for the administration and operation of their municipal

governments~ including the hiring, assigning, and promoting

of employees of their respective muni~ipalities.

11. ·Defendant Birmingham Park and Recreation Board is

an independent agency of the City of Birmingham, is an

I

employer within the meaning of 42 U.S.C. 2000e(b), as amendand is responsible for the care and maintenance of the

I

public grounds and parks of the city of Birmingham. 12. Defendant Frank A. Hagner is the Director of the

Birmingham Park and Recreation Board and is responsible for

the admini5tration· and operation of the Board, including tl:

hiring, assigning and promoting of the employeec of the

Board.

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13. 'l'hc defendants emh-neratcd in par.ngraphs 3 nnu 9 are recipients of revenue sharing allocations from the United States Treasury pursuant to the provisions of the State and Local Fiscal Assistance Act of 1972 (31 U.S.C. 1221 ~ ~.), and recipients of funds from the United States Department of Justice pursuant to the Omnibus Crime Control and Safe Street· Act of 1968,.as amended (42 U.S.C.

3701 et. seq.)

14. The defendant public employers have followed a

policy of hiring and assigning their employees on the basis of race. color and seJ{. v1ith black and· female employees being hired for and assigned to the less desirable and generally lo-v1er-paying jobs with the least opportunity for advancement and ':·7ith white male employees being hired for and assigned to the more desirable and generally higher-paying jobs v1ith

the greatest opportunity for advancement .

. 15. The defendant public employers have and are.engage

in additional acts and practices which discriminate against minority persons with respect to their compensation, terms·,

conditions and privileges of employment and which limit,

~·

segregate and classify their black and female employees in

ways which deprive or tend to deprive them of employment

opport~ities or adversely affect their status as employees

because of their race or sex. The defendants have implemen:

these policies. and practices, among other ways, by;

a. Failing or refusing to recruit, hire, assign

and promote blacks and females on an equal

basis Hi th t·7hite. males; b. Denying blacks and females the same terms,
conditions, and privilege~ of employment <l$

provided t·lhitc males;

c. Dischnr!ji.ng black~ from employment on nn

unequal h;"Lsis ~lith •~hit:cs;

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d. Segregating blacks in vTOrk assignments; e. Utilizing qualifications, tests and other
selection standards in their hiring and promotion ·practices '\vhich have a disproportionately adverse impact on blacks and females as compared to white males. despite the fact that these qualifications, tests and selection standards have not been shown to be predictive of successful job performance. · 16. The defendants' ·acts and practices described in paragraphs 16 and 17 constitute a pattern and practice of resistance to the full enjoyment of the rights of blacks and
. females to equal employment opportunities within t•h. eir
jurisdictions and under their supervision and control. This pattern and practice is of such a nature and is intend~d to
deny the full exercise of rights secured by Title VII of th~
Civil Rights Act.of 1964, as amended, and is in violation of the obligations imposed by the Omnibus Crime Control and Safe Streets Act of 1968, as amended, and the State·and Local Fiscal Assistance Act of 1972. as well as rights guaranteed by the Fourteenth Amendment to the Constitution of the United States and by 42 U.S.C. §1981. Unless restra by order of this Court, the defendants '"ill continue to pursue policies and practices'the same as or similar t~ those alleged in thi·s complaint.
WHEREFORE, the plaintiff prays that defendants, their officials, agents, employees, and all persons in active· concert or participation with them be preliminarily and permanent.:ly enj~ined from engaging in any discrinri.nntory employment practice based on race or sex, and specifically
from:
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a. Failing or Lefusing to recruit, hire, assign and promote black applicants and employees on an equal basis >vith \vhite applicants and employees;
-b • Failing or refusing to recruit, hire, assign and promote female applicants and employees on an equal basis with male applicants and employees;
~· Failing or refusing to eliminate qualifications, tests and other selection standards \vhich have not been sho•iTil _to be job related and which disproportionately exclude blacks and females;
d. Failing or refusing to take ·appropria~e ··
measures to overcome the present effects of past discriminatory policies and practices including, but not limited to the following affirmative steps.: (1) conducting a recruitment program designed
to inform potential black and female employees of employment opportunities available ~~ith the defendant county, cities and agencies; (2) establishing valid qualifications. tests or other selection standards which are sufficiently objective to prevent continuing discrimination against blacks and females' in hiring and promotion; (3) hiring qualified black and female
-6-

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overcome the cff :t~ of pa5t di9crimi-

nation; nncl

(4) ns:li~nine and promoting qualified blacks

and females to jobs formerly closed to

them in sufficient numbers to overcome

the e~fec~s of past discrimination; and

e.

Failing and refusing to provide oonetary

compensation to any black or female applicant

or employee, present or former, who has been

harmed by the defendant's unlawful practices; 1

Plaintiff further prays for sudh other and reasonable relief as the interests of justice may require, and for its costs and disbursements herein.

.AI /

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,EDWARD H. LEVI Attorney General

. t:t.~L- ~-,?gJ
::J.1 STANLEY/POTTINGER ..") Assistant Wttorney Gen·eral
(./
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WAYH.I. \rV G. SliERHER
United States Attorney

cton•eys Dcpartmen~ of Justice
nashlngton, D.C. 20530

 
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UMTED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA
SOUTHERN DMSION

UMTED STATES OF AMERICA,

Plaintlfqs),

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v.
JEFFERSON COUNTYl ET AL.,
Defendant(s).

1

NO. CV-75-P-666-S

1
/

1

1

ORDER

After provisiondy approving modiications to the 1981 Consent Decrees-onDecember 19,

1995,this court held a k e s s hearing on February 28, 1996. At the hearing it was determined that

the modiications shougbe finally aperoved

-.

The December 19, 1995 Order Modifying the JeffersonCounty Personnel Board Dmee is hereby APPROVED with the following additional change. Pangraph 9 should read as follows:

Paragraphs, 4, 6, 7, 204 34, 35, 4 7 4 and 55 of the Personnel Board's August 1, 1981
Consent Decree as well as the District Court's Orders of May 20, 1991, and September 25, 1991, are hereby vacated. The District Court's Order of January 1, 1977, remains in effen
and is superseded only to the extent that its terms are inconsistent with this Order.

The December 19,1995 OrderM o d m g the City of Birmingham Consent Decree is hereby APPROVED with the foUowing additional change. The dates provided in Paragraph 27 for the
submission of the City's second semi-annual report s h d be altered to cornpon with the schedule . provided in Paragraph 26.

Dated: April 1996

Chief Judge Sam C. Pointer, Jr. /

~ ' .. . 1 '.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF ALABAMA

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UNITED STATES OF AMERICA*

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NO. CV75-P-006660s

''3 d, a .a/,

8

. JEFFERSON COUNTY, ET AL. ,

1 1

Defendant (s) )

ORDER

The two attached orders, the Order Modifying the.Jefferson county Personny Board Consent Decree and the Order.Modifying the City of Birmingham Consent Decree, and the notive provision attached as ~ppendix-Aare hereby PROVISIONALLY APPROVED AND PROVISIONALLY EFFECTIVE as of this day, December 19, 1995. The effective dates contained therein shall begin running as of the
date of this order.

if, Dated: December

1995

Chief Judge Sam C. Pointer, Jr.
Service List: Mr. James S. Angus Ms. Barbara E. Thawley Ms. Caryl P. Privett Ms. Karin Dell'Antonia Mr. Rowan D. Wilson Mr. Thomas D. Barr Ms. Leslie Proll Ms. Susan W. Reeves Mr. Stephen L. Sgitz Mr. 0. William Adams, 111 Mr. Edwin A. Strickland Mr. Charles S. Wagner Mr. Michael G. Graffeo Ms. Laveeda Morgan Battle Mr. Thomas L. Stewart Mr. James P. Alexander . Mr. James K. Baker Mr. 3. Terrell McElheny
Mr. Raymond P. Fitzpatrick, Sr.

APPENDIX A

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st

I. NOTICE OF PROP~SEDORDERS MODIFYING CONSENT DECREES

. *

c

YOU ARE HEREBY NOTIFED THAT A HEARING HAS -BEEN SCHEDULED FOR

WEDNESDAY, FEBRUARY 28,1996 AT 9AM BEFORE THE HONORABLE SAM C. POINTER, JR.,CHIEF JUDGE OF THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA, IN COURTROOM 8, UNITED STATES

COURTHOUSE, 1739 NORTH 5TH AVENUE, BIRMINGHAM, ALABAU, FOR CONSIDERATION OF PROPOSED MODIFICATIONS TO THE CITY OF BIRMIWGHAM
AND JEFFERSON COUNTY PERSONNEL BOARD CONSENT DECREES.

In 1981, employment

tdhiisscrC,im(oCuin.aAaet.inoNtneore.cda7s4oe-sr2d:--1eFr2s-mSal)p;epvrovBirnaWg&c.oMnosae&fntthdeeectrN&iee.Asv.i.AnC.tChitey.Pfo.o..f-l-.lRoe.wtf i&n.g

consolidated
v. City of et aL,

(C.A. No. 74-2-17-S) and United Stat= v. Jefferson County. et &, (C.A. No. 75-P-0666-S).

One of the Consent Decrees is benveen each of the plaintiffs in the above cases and the City of

Birmingham. The other Consent Decree is benveen these same plaintiffs and the Jefferson County

Personnel Board ("the Personnel Board ").

In these cases the plaintiffs have alleged that the City of Birmingham and the Personnel Board engaged in employment practices that unlawfully discriminated against blacks and women on the basis of their race and sex. In 1981 Consent Decrees were agreed to by the parties that settled the dlegations raised by the plaintiffs. The parties have agreed that the 1981 consent decrees with both the Ciry of Birmingham and the Personnel Board should be modified in some respects.

One proposed Order would modify the 1981Personnel Board Consent Decree in the following respects:

(I) provide that the long-term objective of the parties is to ensure that any unlawful barriers to employment, assignment and promotion that have existed for blacks and women are removed and that any present effects of past discrimination by the Personnel Board, or by the jurisdictions served by the Personnel Board, are fully remedied and that equal employment opportunities are available to all persons, regardless of race or sex, as required by Tide VII of the Civil Rights Act of 1964, as amended;

(2) provide for increased recruitment efforts by the Personnel Board;

(3) require that the Personnel Board develop and implement nondiscriminatory selection procedures for hiring and promotion in the classified service according to a four-year timetable;

(4) eliminate provisions of the 1981 Board Consent Decree and subsequent or&n that required that in certain job classifications the Board was required to certify certain percentages of black and/or female applicants to jurisdictions served by the Board;

(5) pending the development of selection procedures that either have no adverse impact against blacks or women or are demonstrated to be job-related for ihe position in question and consistent with business necessity, the modification order would require the
Persome1 Board to exti@Hack and or female individuals for appointment m vacancies *
in the classified service in proportion to the representation of bIacks and women in the qualified applicant pool for that job classification. Once nondiscriminatory selection procedures for that job classification are developed, selective cenifcation for that job classification will end, unless the Coun orders selective certification to continue on the grounds that vestiges of earlier unlawful employment discrimination against blacks or women continues to exist in that job classification; and
(6) require the Personnel Board to file semi-annual compliance reports with the Court describing its effom to meet with the timetable set by the proposed 0rde; and to otherwise comply with the requirements of the Order.
A separate proposz Order would also provide for similar modificatiobs to the 1981 Ciry Consent Decree. The proposed ~ r d e r - m o d i ~tihne~City Consent Decree would:
(I) replace the original long-term god of attaining workforce parity in eachjob classification with the representation of blacks and women in the civiiian labor force of Jefferson County with the long-term goal of ensuring that any unlawful barriers to employment, assignment and promotion with the Ciry b t have existed for blacks and women are removed and that any present effects of past discrimination by the Personnel Board, or by the City, are fully remedied and that equal employment opportunities with the City
are available to all persons, regardless of race or sex, as required by Title VII of the
Civil Rights Act of 1964, as amended;
(2) require the Ciry of Birmingham to cooperate with the Personnel Board in the Board's efforts to develop nondiscriminatory selection procedures and for the Ciry to use selection procedures that either have no adverse impact on the basis of race and sex or are demonstrated to be job-related for the job classi5cation in question and consistent
- with business necessity;
(3) require the City to establish an interim selection plan designed to counteract identified adverse impact in job classifications in which the City administers a selection procedure
that has adverse impact on bIacks or women. The interim plan may include race or genderconscious appointment gods based on the representation of blacks andfor f e d e s
in the qualified applicant pool Q& where a race or gender neutral remedy would not
adequately counteract or eliminate the identified adverse impact and the plan is specifically approved by the District Coun. These pIans would be temporary measures used only until the City establishes that its present or revised seIection procedure for that job classification either have no adverse irnpact on blacks and women or are demonstrated to be job-related for the job classification and consistent with business necessity; and
(4) diminate all temporary appointment gods for blacks and women established by tk 1981
City Consent Decree or subsequent orders.

On December 19, 1995 the Disuict Court entered an order granting provisional approval of
both proposed Orders Modifying the 1981 Consent Decrees subject to fbrther hearings. In that
order the Coun withheld final approval of the Orders Modifying the 1981 Consent Devecs until after hearing any objections which be Ned to them.

II. NOTICE OF RIGHT TO FILE OBJECTIONS

This notice is directed to all persons who have an interest that may be affected by the 1981

Jefferson County Personnel Board or City of Bixmingham Consent Decrees or by the proposed

Orders modifying those Consent Decrees. Copies of the 1981 Consent Decrees, the proposed

Orders modifying the 1981 Consent Decrees and the file in.this proceeding are located in the

Office of the Clerk of the United States District Court for the Northern District of AIBama in

Birmingham, Alabama. 'Ihese documents may be examined in the Clerk's Office during normal

working hours from Monday to Friday. The address of the CIerk's Office is:

Office of the Clerk

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United States Districr Court

Northern District of Alabama

Room 140

Hugo L. Black United States Courthouse

1729 5th Avenue North

Birmingham, Alabama 35203

Any person who wishes to register an objection to either proposed Order to modify the Consent Decrees must file such an objection in writing with the Clerk of the Court by 5:00 p.m., February 16, 1996. Objections filed after this date will not be considered by the Court in determining whether to grant final approval to the proposed Orders Modifying the Consent Decrees.

On February 28, 1996, at 9 am,the Dismct Court will hold a fairness hearing at which it will consider any timely Ned objections to the proposed Orders Modifying the Consent Decrees with
the City of Birmingham and the Jefferson Coumy Penomel Board. Individual objectors may appear at that hearing with or without the assistance of counsel. HOWEVER, NO SUCH PERSON
SHALL BE HEARD AT THE HEARING UNLESS .HEOR SHE HAS FlLED A TIMELY OBJECTION WITH THE CLERK OF THE COURT.

If you have any questions concerning the modification proceedings or this notice, you may contact the following counsel for class representatives:

Robert D. Joffe, Esq. Rowan Wilson, Esq. Cravath, Swaine & Moore Worldwide PIaza 825 Eight Avenue New York, New York 10019 (212) 474-1000

Counsel for the class of present and future black and feemale employas of and present and fiture black and female applicants for employment with the City of
Birmingham. \C
Raymond P. Fiepatrick, Jr., Esq.
- Whiteside & Fitzpaaick
Sixth Roor Fariey BuiIding 1929 Third Avenue, North Birmingham, AIabama 35203
(205) 3204555
Counsel for the class of present and hture male, non-black employees o'f and present and future male, non-black applicants for employment with the C i j of Birmingham.

Barbara E. Thawley Employment Litigation Section- Civil Rights Division United States Department of Justice Post Ofice Box 65968 Washington, D. C. 20035-5968
(202) 5 14-3 852
Counsel for the United States.

By order of the United

of Alabama.

United States District Judge

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA

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UNmD STATES OF AMERICA.

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- --- 1 Civil Action No. 75-P-0666-S

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Y.

JEFFERSONCOUNTY,n al.,, .

1

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Defendants. )

ijEC "c ;: 199995

JOHN W.MARTIN, s a l . ,

1 - Plaintiffs, 1

1

v.

1

1

1

CITY OF BIRMINGHAM, et d.,

1

Defendants. )

. . ..
.- . - . _
CiviI Action No. 74-2-174 . .

ENSLEY BRANCH OF THE N.A.A.C.P., et al., )

Plaintiffs, )

v.
GEORGE SEIBELS, et ai.,

1 1 1
1
1
Defendants. )

Civil Action No. 94-2-124

ORDER MODIFYING TRE JEFFERSON COUNTY PERSONNEL BOARD CONSENT DECREE

I. INTRODUCTION
1. The Jefferson County Persome1 Board C o m n t Deaee entered by the Coun in August 1981 in this laion resolved 9issues mflsedagainst the Jefferson County, AIabama Personnel Board (bereinafter 'the Personnei Board") by the complaints of tbe Martin pIahSfk, the Enslcy Branch of the N.A.A.C.P. and the United Stares in this case. The passage of dme, changes in the worldorccs of the jurisdictions served by the Persoanel Board, including the City of BLmingbam (hereinafter 'the City'), changes in the

enrry-level and promotional testing and certification procedures used by the Personnel Board, and b e S a

of Alabama's 1994 amendment to Section 18 of Legislative Act No. 248 (1945 Legislative Session) to

provide for additional names to be certified for vacancies in the classified service, have required that &e Court and the parties reevaluate and mo$ify the provisions of that Decree.

-

2. In 1990, the United States and the Wilks Intervenors Ned motions for modificadon of both h e Personnel Board and the City Consent Decrees. in 1991, after a hearing, the Disrrict Court issued an order dated May 20, 1991, granting those motions in part and denying them in part. Upon motions of the UniM States, the Martin and Bryant Plaintiffs and the City, the District Court amended its May 20, 1991, Modification Order by its September 25, 1991, Order. Both the United States and the Willcs Lntervenom
appealed the District Court's partial denid of their motions to modify.

3. In a revised opinion and order issued August 25, 1994, upon rehearing, the Eleventh Circuit

affirmed in part, reversed in part and vacated in part this Court's May 20, 1991, and September 25, 1991,

modification orders. Ensleve Rra- N. A.Uv. Seibeh, 31 F.3d 1548 (1lth Cir. 1994). The Heve*

Circuit concluded that the City Decree's long term goals of work-force parity with civilian Iabor force

representation in all City job classifications were "fundamentally flawed" and directed-that the Ciry and

Personnel Board decrees i3e rewritten present discrimination, not to achieve

"to reflect wo&-force

that their parity. "

m Iong-tern purpose
31 F.3d at 1570-71.

i-s

to.remedy

past

and

4. In its 1994 decision the Eleventh Circuit directed that both the Personnel Board and the Ciry be required forthwith to develop race-neutral and gender-neunal selection procedures. Funher, as the Court stated with regard to race-conscious decision making, "until valid job-selection procedures are in place, some use of racial preferences is necessary to counteract the on-going effects of racially discriminatory testing." 31 F.3d at 1575.

5. In April 1994, the State of Alabama &ended State.Iaw by enacting Legislative Act No. 94-564, an amendment to Section 18 of Legislative Act No. 248 (1945 Legislative Session), to allow the Personnel Board to cernfy "to the appointing authority the ranking eligibles, correlating to the 10 highesr tesr scores fiom the appropriate register and, if more than one vacancy is to be fiiled, the ranking names of the nexr highest test score for each avaiIable vacancy, or all of the names on the register if there were fewer 10." This new rule, commonly called "the Rule of Ten", replaced the former "Rule of Thnt." Legisiative Act No. 94-564 further provides that: "Notwithstandingany other provision of this act, when one or more vacancies in the entry-level position of police officer or firefighter is to be faed by appointment, the appointing authority may elect to have the director cernfy to the appointing authority the names of five different eligibles for each vacancy."

6. In recognition of these facts and of the mandate of the Eleventh Circuit, the 1981 Personnei Board Consent Decree is hereby amended as set out in this Order. The original provisions of the Penonncl Board's 1981 Consent Decree remain in force udess specifically amended herein-

7. The long term objective of the parries through the Decrees and this Order is to ensure that any and a11 alleged unlawful barriers to employment, assignment, and promotion that have existed for blacks .and women are removed, that any present effects of alleged past empIoyment discrimination by the Personnel Board are fully remedied, and that equal employment opporrunities are available to all persons, regardless of race or sex, as required by Title VTI of the Civil Rights Act of 1964, as amended.

8. It shall be the Personnel Board's duty to use.its best efforts to develop and implement lawful nondiscriminatory selection procedures for hiring and promotion within the next four years.

9. Paragraphs 4,6,7,20b2,3,24, 25,26,27, 28, 34, 35,47-C and 55 of the Personnel Board's
. August 1981 Consent Decree, as well as the District Court's Orders of May 20, 1991, and September 25,

1991, are hereby vacated. The District Court's Order of January 10, 1977, remains ip effect and is superseded only to the extent that its terms are inconsistent with this Order.

10. IXsparagraph supplementsbui does not replace the recmirmea requirements of paragraph 29-

31 of the Personnel Board's 1981 Consent Decree. The Personnel Board shall maintain a r e c r u j ~ m

program designed to inform interested persons of job opportunities with the PersqqeI Board and with the

jurisdictions served by the Personnel Board. The recruitment program shall include: (1) providing copies

of vacancy announcements to the jurisdictions served by the Personnel Board at least two weeks prior to

the announcement's closing date; and (2) maintaining contacts with area high schools, technical and

vocational schools, colleges, and organizations to inform them of employment opportunities with the

Personnel Board and with the jurisdictions served by the Personnel Board. For job ciassifications open to

outside applicants in which blacks or women have been traditionally under-represented, including: but not

limited to p a k t officer, deputy sheriff, firefighter, engineering positions, and skiled craft

the

Personnel Board shaU also advertise employment oppormnities in a daily newspaper of gene& circulation

in Birmingham, in the

Timesor the

World, and in other media, for the purpose

of emphasizing to blac& and women the availability of employment oppormniries in those job

classifications. The Personnel Board s h d also place public service announcemenis on local radio and

television media as pan of its recruirment efforts for police officer, deputy sheriff and firefighter. Upon

request, the Personnel Board will cooperate with recruitment programs irnpiemented by the City of

Birmingham or other jurisdictions.

III. DEVELOPMENT OF JOB RELATEb SELECTION PROCEDURES

11. The Personnel Board shall develop and implement Iawful selection procedures1' for hiring and promotion in the classified service according to the timetables set out in this Order. Pursuant to State law, the Personnel Board is not obligated to rank candidates it cenifies to jurisdictions for hiring or promotion consideration. The Personnel Board shalI Iist applicants on certifications to the jurisdictions it serves in random order.

12. It shall be the Personnel Board's responsibility to establish that each selection procedure required

or used by the Personnel Board, includihg each standard (including minimum qualifications used to

determine which applicants are qualified or eligible to apply for a job or submit to a selection device),

procedure, defined by

thteestUornoithferoder.vimc.e,sshoanllEemithuelorv-(e1e)

have no adverse impact on the basis of race Selection Procedures, 29 C.F.R. § 1607 g

or

sex, as
(1994),

(hereinafrer "the Uniform -*);

or (2) be job related for the job cIassification(s) in question and

consistent with business necessity, in accordance with Titie Vn of the Civil Rights , A a of 1964, as

w., amended, 42 U.S.C. 2000e g the Uniform Guidelines and other applicable Federal

If a

selection procedure or combination of selection procedures is used by the Personnd Board to rank

candidates, the parties and the Court will consider the candidates' relative ranking and the acrual effect of

that ranking in determining whether the procedure has adverse impact for that use. In accordance with the

Ynifom Guide?&, where there e x i s adverse impact in a selecrion procedure, as pan of its consideration

of the job relatedness and validity of any selection procedure, the Personnel Board shall conduct a

1. 'Stidon pracedure"as used in this Order is defined as any measure, combination of measures. or p r e use~d as
a basis for any employment decision. including the full range of assessment techniques from traditional paper and pencil ~cSS.
performance tcns. training programs. or probationary periods and physical. educational and work experience requirements through
informal or casual irnerviews and unwrcd applitation forms. Uniform Guidelines on Employee Seieaion Procedures. 29 C.F.R.
. 8 1607.16 (Q). The term 'selmion procuiurc' is used herein to describe the screening. testing and cenification procedures of the
Personnel Board. The Pmonnel Board docs not make final employment selection decisions for the jurisdictions it ma.

2. For ail purposes relevant to this Order. adverse i& shall k defmcd as it is in'the

. -

reasonable investigation of suitable alternative seleaion procedures and expiore suitable alternative methods

of using the selection procedures which have less adverse impact. Whenever the Personnel Board, a jurisdiction served by the Personnel Board, or any parry identifies a race-neutral selection prwedure that
has less adverse impact than a selection~rocedurerequired by the Personnel Board and that alternative -

procedure is aiso agreed by the parties to be job related for the job ciassificaxion in question and consistent

with business necessity and in accordance with applicable law, such alternative selection procedue W

be used by the Personnel Board, absent good cause shown.

iP Job classificationsthat exist inthe Department of Health shall be exempt fmm the requirrmem

of paragraph 14 and the remainder of this Order. Within 60 days of the date of this Order the United

States, the Manin/Bryant Plaintiffs and the Wilks Intervenors shall provide tfie Personnel Board with a Iisr

of the job classifications which they agree to exempt from the requirements of paragraph 14 and the

ranainder of this Order. Those job classifications that the United States, the ManidBryant Plailftiff,,aad

the Wilks Intervenors each have agreed, in wiring, to exempt from the requirements of paragraph 14 and

the remainder of this Order shall be exempt. Funher, at any time, the parries may agree that there shall

be no temporary certification goals for any particular job classification and that the Personnel Board shall

not be required to provid%any additional evidence that the selection procedures for-rha.t job classification

meet the requirements of paragraph 12of-thisOrder.

. -.

14. Within one hundred (100) days of the entry of this Order the Personnel Board shall submit to the parties a list of all job classifications remaining after the exclusion of jobs exempted by paragraph 13. Simultaneously and in conjunction with that submission, the Personnel Board shall provide rhe panics with applicant testing, ranking and selection information for each non-exempt job classification for January 1,
1990 through the date of the submission, including for each job classification:

(a) the job announcement or other document containing a detailed description of ail selection procedures used by the Personnel Board, and the time period during which each was used, incfuding
any changes in use since January 1, 1990;

(b) the source or author of each selection procedure used by the Personnel Board;

(c) for each administration of a selection procedure, by job classification, a list of all applicants, identified by name, social security identification number, race. sex, jurisdicnon(s) for which he or she is being considered, an indication of whesher each applicant met the-minimum standards to panicipuc in the selection procedure, and if not, the panicular minimum standard which caused the appiicant to be deemed ineligible, any selection procedure or pan thereof that the individual failed, the
individual score(s), seniority points, f d score and f m l ranking of each applicant;

(d) the individuals cenified by the Personnel Board, by job classification and jurisdiction, identified by name, social security identification number, race, sex, certification number and
approximate certification date(s);

(e) the individuals hired by each jurisdiction served by the Personnel Board from each eligible list, by name, social security number, race and sex;

(f) a summary of the certification method used for each job classification since January 1, 1990, including any supplemental certification, and the approximate dates of any changes in the
certification method.

The Personnel Board shall also provide a copy of the information described in subsections (d) and (e) of this paragraph to the City of ~in&ham for-il certifications to the City of Birmingham since
1990, for the purpose of assisting the City in meeting its obligation under its Decree. To the exist in machine-readabIe form. the Personnel Board shall provide the data dcscnitd in (c), above in machme-readable form on one or more diskem. A copy of the data from the Personnel Board's

-4-

applicant record is sufficient to comply with the requirement to provide the data listed in (c), (d) and (e)
above, to the extent that the data is contained in that record. A hard copy of this data shall be provided
by the Personnel Board where machine readable data is not maintained by the Personnel Board or upon wrinen requm of a p a q . If additional eta on the impact of any other selection procedure a a e & by or for the Personnel Board since 1981 exist, the Personnel Board shall so indicate to the p a r d s and thall d s o provide such data to any party upon written request. The parties to this Order agree to limit such requests to those job classifications where a parry has a good faitb desire to obtain additional information to evaluate the adverse impact of the Personnel Board's selection procedures.

15. Within ninery (90) days of parties' receipt of the Personnel Board's submission pu-

to

paragraph 14 of this Order. including a supplemental submission pursuant to a request for additional

information, the United States, the MartinlBryant Plaintiffs and the Wiks Intervenors shall submit to the Personnel Board a list of up to fifteen job classifications. The Personnel Board shall pr$vide tbe

following infomation for these fifteen job classifications, and for entry level and promotioqsi sworn

policc/Sheriffs depamnent and fire service job classifications, to the United States, the Manin/Brymr

Plaintiffs and the Wilks Intervenors within two-hundred-eighry (280) days of the enuy of this Order:
-.
(a) an analysisof whether the method of certification, if done without regard to the race and sex of rhe candidates, would havehad an adverse impact on the basis of race or sex against blacks or

women, analyzing both by the certification rule then in effect and the current certification rule; and

(b) the extent to which & selection procedure, or pan thereof, that it uses or has used for
each such job classification has had an adverse impact on the basis of race or sex against blacks or
women from January 1, 1990, to the present, as defined by the Uniform Guidelines.

In the event that the United States, the MartinlBryant Plaintiff5 or the WiIks Intervenors wish to obtain information from the Personnel Board required by this paragraph for more than fifleen job classifications each, the parties shall attempt to agree on a schedule for the Personnel Board to provide additional information. 'Ihe panies agree to limit such requests to those job classifications where a party has a good faith desire to obtain additional information to evaluate the adverse impact of the P-monnel Board's dection procedures. If within sixty (60) days of such a request, the Personnel Board and the requesting pany have not agreed on the information to be provided or an appropriate schedule for providing the requested information, any parcy may submit this matter to the Court for resolution.

16. Within ninety (90) days of the parties' receipt of the Personnel Board's submission pursuant to paragraph 15 of this Order, including a supplemental submission pursuant to a request for additional information, each of the other parties shall file a response listing any job classifications in the Personnel Board's submission (or any other job classificatiom) that it contends have one or more selection procedures that have an advene impact against blacks and/or women, dong with an explanation for the basis of its contentions. If any party contends that the information submitted by the Personnel Board is insufficient to assess whether any selection procedure at issue has advene impact against blacks andfor women, in its initial response that party shail also list each such selecnon procedure and state the basis for its contention. A pending request for additional information for a job classification will not affect the party's duty to file a timely response with respect to job classifications for which it has no outsranding request for i n f o d o n .

17. If the Personnel Board Iists selection procedures for a job classification as not having adverse impact in its paragraph 15 submission, and none of the panies contends in their paragraph 16 submission that any of the selection procedures for that job classification has an adverse impact on blacks and/or women or that the information supplied by the Personnel Board is insufficient to make an assessment of adverse impact, there shaU be no temporary certification goal for that job classification and the Personnel
. Board will not be required to provide any additional evidence that the selection procedures for that job
classification meet the requirements of paragraph 12 of this Order.

18. For each job classification that the Personnel Board identifies in irs report pursuant to pangraph

15of this Order as having one or more selection procedures that has an adverse impact on the basis of race

or sex, or that a parry contends in its report p u m w t to paragraph 16 of this Order has an adverse impact
on the basis of race or sex against b k k s and/or women, unless the Court determines the selection

-

procedure(s) in question meets the requkements of paragraph 12 of this Order or the Personnel Board

revises its selection procedure to eliminate adverse impact, the Personnel Board shall complete a wrinen

job analysis and validation repon according to the timetable set out in paragraph 19 of this Order. Using

the results of the completed job analyses, the Personnel Board shall revise-its selection procedures

consistent with implementing selection devices which are job related, consistent with business necessity and

which reduce or eliminate adverse impact.

19. The Peisonnel Board agrees to develop and implement selection procedures for hiring and promotion meeting the requirements of paragraph 12 of this Order and to provide the parties information concerning its use and proposed use of these selection procedures, including the information deskribed in paragraph 30 of this Order, pursuant to the following timetable:

(a) for promotional police service job classifications in the police departments and County

Sheriffs Office anhpromotionai fue service job classifications in the fire depa-ents. within 12

months of the entry of this Order:- -

-.

(b) for the remaining sworn positions in the police departments and Jefferson County Sheriffs Office and fire service positions in the fire depaqrnents, within 18 months of the entry of this Order;

(c) for all remaining job classifications to be scheduled for review and not covered by subparagraphs (a) or (b) or exempted by paragraph 13, in accordance with a schedule to be submitted by the Personnel Board for the development of selection procedures meeting the requirements of paragraph 12 of this Order nvelve (12) months from the entry of this Order as part of its second semiannual compliance report. That schedule shall provide that the Personnel Board shaI1 develop its
seIection procedures and provide the informarion descnied in paragraph 30 of this Order to the parties in six-month intervals from 24 to 48 months from the date of entry of this Order. In each semi-annual
report the Personnel Board shall describe the status of its efforts to comply with this schedule and shall report any changes to the schedule it proposed for job c!assifications other than those listed in subparagraphs (a) and (b).

The Personnel Board shall not be required to include job classifications on its schedule that were identified in the Personnel Board's paragraph 15 submission .as not having adverse impact on the basis of race or sex against blacks or women and to which no parry conrended otherwise in its paragraph 16 submission. Nor sllall it include any job classifications that the parties have agreed,'in writing, need not be included or that the Court has determined meets the requirements of paragraph 12.

20. Within ninety (90) days of receiving the Personnel Board's proposal as to selection procedures for any job classification pursuant to its obligations under paragraphs 18 and 19, including all information described in paragraph 30 of this Order, each parry shall advise the Personnel Board, and all other parries, in writing, of any selection procedure so proposed for use by the Personnel Board that the party contends Iacks sufficient evidence to demonstrate that it meets the requirements of paragraph 12 of this Order and shall state with particularity the bases for each such contention that the selection procedure does not meet the requirements of paragraph 12. If, after an additional sixty (60) days, the parties cannot reach agreement on whether a selecnon procedure proposed by the Personnel Board for any particular job classification meets the requirements of paragraph 12 of this Order, any parry may submit that matter to the Court for resolution.

21. In advance of the dates established pursuant to paragraph 19 of this Order, the Personnel Board may notify the pades of any Personnel Board administered selection procedure that it believes satisfies the

requirements of paragraph 12 of this Order, together with the basis for its contention, including t&e information set fonh in paragiaph 30 of this Order. Within ninety (90) days of receiving.such notice and all evidence provided by the Personnel Board concerning its contention, including the infomtation
described in paragraph 30 of this Order,.,~chparty shall advise the Personnel Board, in writing, whether -
it contends that the selection procedure at issue does not meet the requirements of paragraph 12 of this Order, and, if not, the bases for its contention. If, after an additional lhiny (30) days, the parties m t reach agreement on whether such a selection procedure meets the requirements of paragraph 1 2 of t h i ~ Order, any party may submit that matter-to the Court for resolution.
IV. TEMPORARY CERTIFICATION AND SCREEMNG PROCEDURES
22. This Section amends and replaces Section IV,paragraphs 23-28, of the 1981 Personnel Board Consent Decree.
I
23. For each job classification covered by paragraph 18 of this Order, until the Personnel Board develops and implements selection procedures for that job classification that the panies agree, in'writing, or the Coun finds are in compliance with the Personnel Board's obligations under paragraph 12 of this Order for the use proposed, the Personnel Board shall attempt to certify black andlor female individuals for appointments to vacamies in the classified senice in approximate proponion to -the.represenrationof blacks and women in the qualified applicant pool for that job clas~ification.~
24. Any temporary cemficarion goals enablished pursuant to this Order shall texminate as m any job
classification: (I) by operation of paragraph 17of this Order; (2) by operation of paragraphs 20 and 21
of this Order; (3) when the parties agree, in m g , that ali selection procedures for that job classification
meet the requirements of paragraph 12 of this Order; or (4) upon the Court's finding that the Board's selection procedures meet the requirements of paragraph 12 of this Order for their intended use, or that for good cause no certification gods for that job classification are necessary. At any time a party may move for the termination or modification of a temporary certification goal for good cause.
25. Norwithstanding the provisions of paragraph 23 of this Order, at any time any parry may apply to the Court to continue or modify the temporary selective certification of candidates by the Personnel Board for any job classificarion, or for other appropriate relief, on the grounds that the effects of dleged present unlawful employment discrimination or the vestiges of earlier unlawful employment discrimination against blacks and\or women by either the Personnel Board or the appointing jurisdiction continue to exist in that job classification and require such relief.
26. Two years from the date of entry of this Order, the parties shall advise the Coun in writing whether any of the parties to this Order wish to schedule a hearing or conference concerning compliance with this Order and whether temporary race or gender based certification procedures should remain in efftct. If any pary to this Order requests such a conference or hearing, the Court shdl schedule the matter within sixty days of the request.
VI. RECORDS AND REPORTS
27. This section supplements but does not replace Section X of the 1981 Personnei Board Consent
- Decree. The Personnel Board shall hencefonh send a copy of each semi-annual compliance report required
by paragraphs 37 53 of h e 1981 Personnel Board Consent Decree, and each report submined pursuant
3. Qualified applicants arc defmed to inch& all applicants who are eligible. apply for. and submit to the selection proctdm w by the P e n o ~ c Bl oard for the relevant period of rxnsiderazion. Qualified applicants may also be limited to those who pass a xiccrion procedure if that sefecrionprocedutc is a q c 4 in writing. by the panics or found by the Coun. to meet the rquiremenrs of p p p h I2 of this Order for its proposed w.

to this Order, to counsei for the W i h Intervenors, as well as counsel for the United States, the Martin and Bryant Plaintiffs and the Court.
28. Within nine (9) months after the entry of this Order, and at six-month intervals thereafter, tfie , Personnel Board shall submit a r e p o d o the Court and to the parries describing its effom to develop selection procedures meeting the requirements of paragraph 12 of this Order and otherwise to comply this Order. The semi-annual report shall specificalIy address the progress made during the preceding six months, areas of agreement, areas of disagreement, allegations of non-cooperation, and a compli&t timetable for the accomplishment of tasks within the next six months. Any party may supplemem char report within thirry (30) days after it is filed.
29. In its semi-annual compliance reports, the Personnel Board shall describe, in detail, the efforts it made during the preceding six month period to meet the timetable set out in paragraph 19 of this Order. In the event that the Personnel Board has not met one or more of the dates established by paragjaph 19, the Personnel Board shall explain in its semi-annual report for that period why it failed to do so,
30. The Personnel Board shall make all data concerning the development of any seIection procedures used or proposed to be used by the Personnel Board, including but not limited to, the adverse impact of the selection procedure when used by the Personnel Board. or if applicable, by other mers, the effect of the selection procedure on the composition of eligibility registers for the job classifications at issue, the effect of the use of the selection procedure on the composition of cenification lists for the job classificarions
at issue, job analyses, expen reports and validation mdies, available to counsel for the parries. This
information shall be provided to all panies by the Personnel Board on the dates set out in paragraph 19 of this Order. This information shall be provided in machine-readable form to the extem it exists in that form.
Further, within fourteen (14) days of its receipt of a written request from any party, the Personnel Board shall provide the requesting parcy with copies of any additional information conctrning the adverse impact or job relatedness of the job classification at issue in the possession or control of the Persomei Board but not provided by the Penomel Board pursuant to the dates set out in paragraph 19 of this Order. However, if an examination is in progress for the job classification for which additional information is requested, the Personnel Board may defer providing information about the current examination process for fourteen (14) days afier the examination process is completed.
31. The Personnel Board shall retain during the period of this Order all records concerning its implementation. These records shall be made available to any pany for inspection and copying within thiq (30) days upon written request. The information described in sub-paragraphs lqc), 14(d) and 14(e) of this Order shall be maintained by the Personnel Board in machine-readable form and provided in such form to the parries to this Order upon wrinen request or as required by this Order.
32. A11 material related to the development of selection procedures, including copies of tests or proposed tests, ten keys and test results, names of applicants and test scores of individual candidates shall be marked "Confidential Test ,Material Under Seal" by the Personnel Board prior to being forwarded to counsel for the parties. This confidential test material shall not be disctosed to anyone other than counsei, their immediate staff, the coun and its staff, and expert consultants retained by the parties and their staffs, without the wrinen permission of the Personnel Board or an Order of this Court. Such confidential test material shall not be filed with the Coun unless it is filed in a sealed envelope marked "Confidential Testing Material Under Seal." Any material that is marked "Confidential Testing Material Under Seal" shall not be disclosed by the CIerk of the Court to the public without an Order from this Court.
VII. NOTICE AND IMPLEMENTATION
33. In the evem any party seeks to enforce any provision of this Order, that party shall provide notice of its intentions to the counsel for the parties. Such notice shall start, with reasonable particulariry, the

me of the alleped violation and the relief sought. The parries shall anempt to resolve informally my disputes which may occur under this Order. If the panies are unable to reach agreement within thiny (30) days after a matter has been brought to the anention of one of the panies by another pany, the issue m y
be submitted to the Coun for resolutio,~.Any parry may apply to the Coun at any time for an Order -
concerning an urgent matter.

41. Within ten (10) days afier provisional approval of rhis Order by the Coun. notice, in the form

attached
the

as

Appendix A, will be News for w o

published at consecutive

the expense weeks, and

of in

the the

Pe.rso.nnel

Board in the
Times on

Sunday edition of one weekday and

- -

direaed to a11 interested persons, informing them of dyir right to review a copy of the Order which will

be on N e with the Clerk of the Coun. Additional notice shall be provided by the defendant Personnel

Board to affected persons as may be ordered by rhis Coun.

This notice shall inform penons to whom such notices are directed of their right to be heaid and to

fie objections, if any, to this Order. Such objections must be fded with the Clerk of the Coun by a date

to be set by the Coun in its Order granting provisional approval to this Order. The Coun will hold a

fairness hearing at 9 am,February 28, 1996, at which those persons who @e timely objections

to
s

the Order will be h d d . Ar the close of such hearing, M rule upon such objections and grant final approval to

or or

as soon as reject this

pOnrcdteirc.able-th&- eafter,

the

Coun

35. This paragraph amends paragraph 55 of the 1981 Personnel Board Consent Decree. The Court

retains jurisdiction of this action for such funher relief or other orders as may be appropriate, including

enforcement of this Order and resolution of disputes that may arise between the parties. ?his Order, as

well as the 1981 P e r s o ~ eBl oard Consent Decree. shall expire five years fiom the date of the entry of this

Order unless its term is extended by the Coun. Prior to its tenninarion any pany may move, for good

cause shown, for the extension of this Order and/or the 1981 Consent Decree. In that event, this Order

and the 1981 Consent Decree shall remain in effect until the Coun rules on the Motion for Extension. In

considering whether the 1981 Consent Decree and this Order shouId be dissolved, the Coun shall take into

account whether and to what exrent the purposes of this Order have been achieved and whether there is any

continuingunlawful employment discriminationor vestiges of prior unlawful discriminationprohibited by

Federal law.

@

17 Provisionally approved this

' z y of December, 1995.

SAM C. P O W r n , JR.
UNITED STATES DISTRICT JUDGE

 
 o'

IN THE UNITED STATES DISTRICT COORT FOR THE NORTHERN DISTRICT OF ALABAMA

o::c 319rl

SOUTHERN DIVISION

UNITED STATES DISTRICT COURT NOI!TH£RN DISTRICT Of Al..ABAMI\

-

UNITED STATES OF AMERICA,

)

)

JA!II£S E. YAN0£GRIFT, CI.£RK

Plaintiff,

)

CIVIL ACTION NO.

)

75-P-0666-S

v.

)

)

ENTERE:>

JEFFERSON COUNTY, et al.,

)

_____________D_e_f_e_n_d_an_t_s_. ___)))

DEC 3 19B2

CONSENT DECREE WITH DEFENDANT CITIES OF BESSEMER, FAIRFIELD, FULTONDALE, GARDENDALE, HOMEWOOD, HUEYTOWN, MIDFIELD, MOUNTAIN BROOK,
PLEASANT GROVE, TARRANT, AND VESTAVIA HILLS

The plaintiff United States filed its complaint in this action against the Personnel Board of Jefferson County, Alabama (•Personnel Board•) and the various municipalities in Jefferson County, Alabama which, by reason of the laws of the State of Alabama, are subject to the rules, regulations and procedures of the Personnel Board. Subject matter jurisdiction of this action was invoked by the plaintiff on the basis of the provisions of Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, the State and
Local Fiscal Assistance Act of 1972, as amended, 31 u.s.c.
§1221, ~seq., the Omnibus Crime Control and Safe Streets Act
of 1968, as amended, 42 o.s.c. Sl981, 42 o.s.c. 1982, and the
Fourteenth Amendment to the Constitution of the United States. In its complaint, the plaintiff alleged that the named defendants had engaged in a pattern or practice of discrimination in .employment based on race and 11ex. All the defendants duly answered and denied all material allegations of the complaint.
Settlement has previously been reached between the plaintiff and defendants Personnel Board and the City of Birmingham.

018'140

Settlement has now been reached between the plaintiff and the following defendants (herein collectively referred to as •the Cities• and each individually as •the City•), viz:

City of Bessemer

-

City of Fairfield

City of Fultondale

City of Gardendale

City of Homewood

City of Hueytown

City of Midfield

City of Mountain Brook

City of Pleasant Grove

City of Tarrant

City of Vestavia Bills

This settlement is entered into without admission on the

part of any of the Cities of any liability or wrongdoing, but

rather for the purpose of avoiding the burdens of litigation

and to save the taxpaying citizens of the Cities the legal fees

and expenses which would necessarily be incurred by litigation.

The parties waive any findings of fact and conclusions of law

.on all outstanding issues solely pertaining to the Cities,

including issues of intentional discrimination by any of the

Cities against blacks and women as raised by the plaintiff's

complaint. The parties also waive any entitlement they may have

to recovery of coats. This Decree shall not constitute an

f

adjudication or admission by the Cities of any violation of

law, executive order or regulations, or that any of the actions

complained of were intentionally done by the defendants, or any

of them. The parties accept this agreement as final and binding

amen; the parties signatory hereto as to the issues resolved

herein.

- 2-
018741

Now therefore, on the basis of the foregoing representations of the parties, it is hereby ORDERED, ADJUDGED AND DECREED as follows:

I. GENERAL PROVISIONS

-

1. The Cities, their officials, agents, and employees,

(collectively referred to as the City), and all persons in

active concert or participation with them in the performance of

city functions, agree and shall insure that all hiring,

promotion, upgrading, training, job assignments, discharge or

other disciplinary measures, compensation, or other terms and

conditions or privileges of employment shall be maintained and

conducted in a manner which does not unlawfully discriminate on

the basis of race, color or sex. Further, the Cities agree not

to retaliate unlawfully against any person because that person

opposes or has opposed alleged discriminatory policies or

practices in the City, or because of that person's participa-

tion in or cooperation with this case or in any proceedings

therein.

2. Nothing herein shall be interpreted as requiring the Cities to hire unnecessary personnel, or to hire, transfer, promote, or retain any person who is not qualified, or to hire, transfer or promote a less qualified person in preference to a person whp is better qualified. Nothing herein shall prohibit / the Cities from discharging or disciplining employees in accordance with their applicable law, provided however that any such actions are taken and executed in a nondiscriminatory manner without regard to race or sex, and are otherwise consistent and in conformity with the City's obligations under this Decree.

For purposes of this paragraph, the term •better qualified• shall mean a person whose qualifications for the employment or position in question have been shown to be superior to the qualifications of another competing applicant

- 3-
018742

-
-

as measured by job-related qualifications based on objective and nondiscriminatory criteria. To the extent any scored test or background investigation procedures are used for such purpose, such test or procedures are to be validated in accordance with the Uniform Guidelines on Employee Selection Procedures (hereinafter Uniform Guidelines) (28 C.F.R. 50.14, 25 C.F.R. 1607, 31 C.F.R. 51.53) if their use results in disparate impact as defined therein.
3. Remedial actions and practices required by the terms, or permitted to effectuate and carry out the purposes, of this Consent Decree shall not be deemed discriminatory within the
meaning of paragraph 1 above or the provisions of 42 u.s.c.
2000e-2 (h), (j), and the United States and defendant Cities shall individually and jointly defend the lawfulness of such remedial measures in the event of challenge by any other party to this litigation or by any other person or party who may seek to challenge such remedial measures through intervention or collateral attack. If any collateral lawsuit involving this Consent Decree arises in State Court, then the Cities shall notify counsel for the plaintiff and remove such action to the United States District Court.
4. In the event the United States seeks to enforce any provision of this Decree, it shall provide notice of its intentions to the Mayors and City Attorneys of each of the defendant Cities.
II. SPECIFIC PROVISIONS A. Accelerated Recruitment and Certification Procedures
5. One of the major purposes of the Decree entered into by the plaintiff with the Personnel Board (herein referred to as •the Personnel Board Decree•}, as supplemented by the Decree entered into by the plaintiff with the City of Birmingham and now by this Decree, is to insure that blacks and women are considered for employment by the Cities on an equal basis with
- 4-
018743

whites and males and to correct for the effects of any alleged

prior discriminatory employment practices against blacks and

women. In particular, it is an objective of this Decree that

the Cities seek in good faith to achieve the employment of

-

qualified blacks and females in jobs with each City in numbers

approximating their interest in and ability to qualify for

those jobs under nondiscriminatory selection criteria. It is

recognized that the process of increasing the number of qua-

lified black and female applicants for these jobs is facili-

tated by a process free of unlawful barriers to their entry, by

a substantial increase in recruitment efforts directed toward

blacks and women, and by the use of fair and nondiscriminatory

selection criteria.

6. The Cities also recognize that the Jefferson County

Personnel Board has entered into a separate Consent Decree (the

•personnel Board Decree•) with the plaintiff. That Consent

_,...-.

Decree was approved and entered by this Court on August 18,

~i

\.,.·.

1981. In that Decree (paragraphs 29-31) the Personnel Board

has, among other matters, agreed to engage in affirmative

recruitment measures designed to increase the number of black

and female applicants for jobs in the classified service with

the Cities, as well as the other jurisdictions and municipali-

ties served by the Personnel Board under the Jefferson County

Civil Service System. The Cities recognize and agree fully to

support the affirmative recruitment and certification actions

to be undertaken by the Personnel Board pursuant to its Consent

Decree with the plaintiff.

In this regard, the parties recognize that the Personnel

Board saay from time to time request that the Cities provide

financial and other assistance to the Personnel Board in

support of the affirmative recruitment activities to be under-

taken pursuant to the Personnel :SOard Decree. However, it is

not the intention of this Decree to require any independent

- 5-
018744

recruitment activities by the Cities for jobs in the classified

service beyond those requested by the Personnel Board. The

Cities of Fultondale, Pleasant Grove, and Gardendale agree to

engage in affirmative recruitment efforts directed to the

-

employment of blacks in unclassified laborer positions as those

jobs have in the past been filled mostly, if not exclusively,

by whites in those cities.

7. Paragraphs 24 and 25 of the Personnel Board Decree

require that the Board seek to achieve certain minimum certi-

fication rates of blacks and women from among the Board's pool

of qualified applicants for various jobs within each of the

jurisdictions served by the Board. The Cities will insure that

qualified blacks and women are selected for appointment in the

jobs identified in paragraphs 24 and 25 of that Decree in a

nondiscriminatory manner, as provided in paragraphs 1 and 2

above, from the group of applicants certified by the Personnel

.,

Board, to the extent such jobs exist within the respective

Cities, and to the extent that blacks and women certified by

the Personnel Board to each City meet nondiscriminatory

qualification standards as set forth in Paragraph 15 of the

present Decree.

8. The Cities also recognize and agree to support the

remedial Order entered by this Court in these proceedings on

January 10, 1977. That Order was entered after a trial of

limited issues involving the Personnel Board. In an opinion

filed on January 10, 1977, this Court found, inter alia, that

the written tests administered by the Personnel Board for

police officers, deputy sheriffs and firefighters had an

adverse impact on black applicants and were not shown to be job

related in accordance with the federal agency testing guide-

lines in effect during the time those tests were administered.

The Court' a Order, as it now applies to the Personnel Board,

requires, in pertinent part, that the number of blacks

- 6-
018745

certified for appointment in police officer, deputy sheriff and

firefighter positions be representative of the number of black

applicants for those jobs. This provision of the Court's Order

is to remain in effect unless and until the Personnel Board

-

institutes selection procedures for these jobs which it can

demonstrate either have no adverse impact on blacks or are job

related in accordance with applicable federal selection proce-

dure guidelines.

9. In order to carry out the purposes and intent of the

January 10, 1977 Order, the Cities will insure that qualified

blacks are appointed to police officer and firefighter po-

sitions in a nondiscriminatory manner as provided by paragraphs

1 and 2 from the group of applicants certified by the Personnel

Board, to the extent that blacks certified by the Personnel

Board to each City meet nondiscriminatory qualification stand-

ards as set forth in Paragraph 15 of this Decree.

10. It is the expectation of the Cities and the plain-

tiff, that nondiscriminatory hiring pursuant to this Decree

will result in time in the employment of qualified blacks and

women in entry level jobs at each City in numbers approximating

their respective percentages in the civilian labor force in

Jefferson County as generally reflected by the 1970 Federal

Census at which time the objectives of this paragraph will be

considered to have been attained; except that for jobs that

require a professional degree, license or certificate, the

attainment of such objectives shall be based upon the per-

centage of blacks and women in the relevant non-labor occupa-

tiona! categories of Jefferson County as generally reflected by

the 1970 Federal Census. The parties agree to recognize

changes, if any, in the relevant percentages which may come

about as a result of final publication of the 1980 Census.

11. With respect to jobs within the Cities that have been

traditionally filled by promotion from lower classifications,

- 7-
018 7 4f)

the Cities shall seek. to insure that the number of qualified black applicants and the number of qualified female applicants for promotion to those jobs are at least equivalent to their percentage representation in the jobs within each respective City from which such promotions are made. It is the expectation of the Cities that nondiscriminatory selections for promotions will result in time in the employment of qualified blacks and women in promotional jobs in numbers approximating their percentage representation in the jobs from which such promotions are made, subject to the availability of qualified applicants.
12. The Cities agree to subscribe to the time in grade requirements and the procedures governing eligibility for promotions as set forth in paragraphs 13 and 15-21 of the Personnel Board Decree, to the extent: such requirements and procedures apply to jobs existing within a particular City.
13. In evaluating whether the employment expectations set forth in paragraphs 10 and 11 have been substantially achieved, the appointment of a black female shall count toward both the black and female employment expectations of those paragraphs. B. Job Posting
14. Each City shall insure that all written announcements received by it from the Personnel Board for hiring, promotion and training opportunities with such City are posted on bulletin boards customarily used for notices to such City's employees. Such announcements are to be posted within a reasonable period of time following the City's receipt of such announcements from the Personnel Board. Notices of vacancies within a department shall be posted separately, and in conspicuous places, from notices of vacancies in other departments. The posting of notices of vacancies in jobs in the Streets and Sanitation Departments, Electric and Water Departments and Parks Departments of the Cities where such departments exist,
- 3-
01874?

shall include posting in each locker facility for employees of

such departments where such facilities exist.
c. Sex Restrictions in Job Announcements and Certifications

-

15. The Cities shall not request that the Personnel Board restrict any job announcements or certifications on the basis

of sex except where, pursuant to a proper validation study,

gender is determined to constitute a bona fide occupational

qualification within the meaning of Section 703~e) of Title VII

for the job(s) listed in such announcements or certifications,

and such determination is approved in writinq by the United

States. If such approval is not qranted within 30 days, each

City reserves the riqht upon proper motion to petition the

Court for approval of the determination.

D. Height-Weight Requirements

16. The Cities shall not use or follow any minimum heiqht or weight requirements different from such minimum height and weight standards as are or may be specified by State law or Personnel Board rule, requlation, or policy. E. Nondiscriminatory Qualification Standards
17. Each City, in evaluating applicants certified to it by the Personnel Board, and in carrying out the provisions and objectives of Paragraphs 5 throuqh 11 of this Decree, agrees that it ~ill follow nondiscriminatory qualification standards under Title VII. In this regard, each City aqrees that it will not reject or disqualify any black or female applicant for any reason or on any ground for which white male applicants have not been rejected or disqualified in the past, nor shall it reject or disqualify any black or female applicant on the basis of any qualification standard (s) which have been waived for white male applicants.

18 (a) • The Cities shall establish written policies concerning baclt«Jround investiqations conducted on applicants for employment in their Police and Fire Departments (to the

- 9-
018748

extent they have such departments) within 90 days after this

Decree is entered. As part of those policies, each City shall

provide applicants who have been recommended for rejection on

-

the basis of the background investigation written notice of the specific reason(s) for their proposed rejection. An applicant

who has received such notice shall be allowed ten (10) days to

respond in writing and to provide relevant information con-

cerning the reason (s l for the proposed rejection. The City

shall insure that such written response and relevant informa-

tion is reviewed by an individual(&) who did not participate in

the applicant's initial background investigation, and that this

review shall occur before the rejection becomes final. If the

City needs to fill a vacancy in the job for which an appli-

cant's background investigation is under review, the City may

fill such vacancy with another applicant. If upon completion of

-.

such review the applicant is found otherwise qualified for that

job, he or she will be placed and appropriately ranked on the

certification list for the first vacancy in such job that

arises subsequent to the completion of that review.

18 (bl. If the City determines that blacks or women are

not being employed in police and fire positions in accordance

with the objectives of paragraph 9 above, and that the City's

background investigation policies are precluding the City from

meeting such objectives, the City shall review its background

investigation policies to insure that they are administered in

a nondiscriminatory manner. In this regard, the City shall

insure that, if as a result of such review, it is determined

that any component, aspect or element of the background

investigation process results in a disproportionate

disqualification of blacks or women, that such component,

aspect or eleme~t will either be eliminated or shown to be job

related in accordance with the requirements of federal

guidelines on selection procedures applicable under Title VII.

- 10 -

018'149

F. Supervisory Instruction

19. Each City shall inform supervisory personnel that the

City shall not discriminate against or harass any employee or

-

potential employee on the basis of race or sex. In addition, the City will instruct such personnel about their

responsibilities as they relate to carrying out the provisions

of this Decree.

G. Facilities

20. Each City hereby agrees to insure that all City employee bathroom, locker, and similar facilities are available for use by City employees without regard to race. Nothing herein shall prevent each City from providing and requiring the use of separate bathroom and locker facilities on the basis of sex.

H. Unclassified Service

21. The City shall reclassify the individuals identified by an asterisk on Appendix B to this Decree who are employed by the City on the date the Court grants final approval to this Decree into the classified service in the jobs listed next to their names on that Appendix. Each employee who enters the classified service pursuant to the provisions of this paragraph shall be credited in his or her classified service position with all seniority previously accrued in the unclassified service as determined by the records of the City. Further, such seniority will be credited for all purposes including but not limited to, layoff, pension, vacation and sick leave. Such credited seniority shall not require under this Decree any payments by the City to a pension fund in excess of any amounts previously paid into such fund on behalf of the affected employee. Breaks in service shall not be computed in establishing an employee's seniority rights under this paragraph unless such break in service was occasioned by documented illness or other documented physical disability.

22. All current classified employees who on and after March 24, 1972, entered the classified service from an unclassified laborer position through reallocation or

- 11 -

18'150

reclassification by the Personnel Board shall be credited

immediately upon final approval of this Decree with all

seniority previously accrued in the unclassified service. Such

--

seniority shall be computed and credited in the same manner as provided for in paragraph 20.

III. INDIVIDUAL RELIEF

23. The Cities agree to pay the sum of $200,000 in full

and complete settlement of the claims of the United States

against the Cities in this action for monetary relief on behalf

of the blacks and women id•entified in Appendices A and B to

this

Decree.

Such sum shall
t .P- (10)

be

deposited

with

the

Clerk

of

the

Court within ~ ~ days after the date the Court grants

final approval to this Decree. The United States in its

discretion shall determine the specific monetary amounts which

shall be paid to each of the individuals identified in those

Appendices. No such payments shall be made within the first 30

days after the date the Court grants final approval to this

Decree, and no such payments shall be made to any such person

until that individual has filed with the Clerk of the Court a

signed and notarized release in the form set forth in Appendix

C. The United States shall assume responsibility for computing

the amounts to be withheld from each back pay award for federal

income tax and the employee's contribution to social security

(FICA). The United States shall compute the amounts owing to

the social security fund by the defendant employers on each

back pay award which amounts shall not be deducted or set off

from the individual back pay awards. Where an individual

receives a back pay award that is based on claims of employment

discrimination against more than one city, as identified on

Appendices A or B, t.he cities involved shall each contribute

equally to the employer's share of the social security tax

on that claimaDt's back pay award.

- 12 -
018?51

24. The Cities further agree to reconsider for employment

the individuals identified in Appendix A to this Decree in the

job(s) listed next to their names. Each such individual shall

-

be required satisfactorily to demonstrate his or her qualifica-

tions for such job under the City's current qualification

requirements for the job 1 established in accordance with the provisions of paragraphs 15 and 16 above. Since each of these individuals have previously demonstrated their ability successfully to complete the Personnel Board's examination for such job, these individuals shall not be required to retake such

examination as a condition for obtaining relief under this

paragraph. The City also agrees to waive any age requirements which may currently bar any such individual form obtaining employment with the City if such individual met such age requirements at the time he or she was originally certified for that job by the Personnel Board.

25. Upon receipt of notarized releases from the individuals listed on Appendix A by the Cities, ~he Personnel Board shall recertify those individuals who indicate an interest in '=mployment with a City under this Decree for the next permanent, full time vacancies that arise in the job (s) at t'he cities listed next to their names on the appendix. Such certifications shall be made pursuant to normal Personnel Board certification procedures 1 except that such persons shall be certified in the order of their original certification dates as set forth in that appendix 1 _and they shall each be the number one ranked eligible on the certification list. The certification rights of such individuals under this paragraph shall expire when: (a) such individual is offered and accepts employment with a City in any job to which such individual is certified under this paragraph, or (b) such individual declines or is found unqualified for employment in each job listed next to

- 13 -

1118752

his/her name by each City to which such individual has priority

certification rights under this paragraph.

26. Individuals who accept offers of employment under

-

this Section shall be credited in their new job with remedial seniority for all purposes, including job bidding and layoff,

back to the date that person was first certified for employment

with the City, as specified in Appendix A; provided however,

that in no event shall such remedial seniority be earlier than

March 24, 1972, the effective date of the amendments to Title

VII applicable to this litigation, and provided further that

such remedial seniority shall not require under this Decree any

payments by a City to a pension fund in excess of any amounts

previously paid into such fund on behalf of the affected

employee.

27. The Cities shall retain during the period of this
Decree pertinent records concerning the implementa~n of this

Decree. These records shall be made available to the plaintiff

for inspection and copying upon prior written request and at a

mutually acceptable date, time, and place.

IV. REPORTING

28. In recognition of the fact that the Personnel Board

functions by operation of State law as a central personnel

~'\ 1 1 office for the Citiefso,r~ta i s ag~_e_e~- ~hat the Personnel Board is

to be responsible

reporting obligations under this

. Decree. To enable the Personnel Board to perform such reporting

obligations, it will be provided by each City with raw data

material to be collated and assembled by the Personnel Board.

Therefore, beginning with the final approval of this Decree by

the Court, and thereafter on a semiannual basis during the life

of this Decree, each City shall provide to the Personnel Board

the following information to be made available by the Personnel

Board to the plaintiff:

- 14 -
u18 '/5 :J

-
, .... -'-;::,-
~··
-~~->;;_v

(a) Copies of all certification sheets returned to the Personnel Board during the reporting period. The Personnel Board will be responsible to have such certification sheets identify the race and sex of the individuals thereon.
(b) A list of all persons, by job classification, department, race and sex, to whom positions have been offered in either the classified or unclassified service with an indication thereon of whether or not the position was accepted. If complete and accurate, such information for classified service jobs may be included on the certification sheets to be submitted pursuant to subparagraph (a l .
(c) A list of all promotions during the reporting period to permanent full-time positions in the classified service, by job classification and department, indicating the race, sex, date of initial hire in the classifed service, and date of the promotion. If complete and accurate, such information for classified service jobs may be included on the certification sheets to be submitted pursuant to subparagraph (a).
(d) A breakdown of the applicant flow for employment with the City which indicates by race and sex, the number ~pY-_lj._'=~nts _for_ eac~departm.en_;_~ and job classification
in the classified and unc~d servic~.
(e) A summary report of any recruiting activities conducted by the City and the results of those activities.
(f) A report of the City's implementation of the individual relief provisions of this decree. This report shall include an identification of those individuals on
Appendix A who have been offered employment with remedial
seniority under this decree, and whether the job offer was accepted or rejected. For any individual who is

- 15 -
018754

disqualified from.an offer of employment under Part III of

this decree, the report shall include the reasons for

disqualification, and include copies of background

investigation reports when used as a basis for

-

disqualification.

V. EFFECT OF COMPLIANCE

29. Compliance with the terms and conditions of this

Consent Decree shall constitute compliance by the City with all

obligations arising under Title VII of the Civil Rights Act of

1964, as amended, the State and Local Fiscal Assistance Act of

1972, as amended, the Omnibus Crime Control and Safe Streets

Act of 1968, as amended, the Civil Rights Act of 1866, 42
c.s.c. Sl981 and the Fourteenth Amendment to the Constitution

of the United States as raised by the plaintiff's complaint.

-.

Insofar as any of the provisions of this Consent Decree or any actions taken pursuant to such provisions may be inconsistent

with any state or local civil service statute, law or regula-

tion, the provisions of this Consent Decree· shall prevail in

accordance with the constitutional supremacy of federal sub-

stantive and remedial law.

VI. RETENTION OF JURISDICTION
30. The Court retains jurisdiction of this action, for such further relief or other orders as may be appropriate, for a period of six (6) years subsequent to the date of the entry of this Consent Decree, at which time this Decree shall be deemed dissolved, and this action shall be deemed dismissed; provided, however, that no later than sixty (60) days prior to such expiration date, the plaintiff may petition the Court to extend the Decree and retain jurisdiction of this action. In the event such petition is filed, the Court will, in considering whether the Consent Decree should be extended, take into account whether the purposes of this Consent Decree have been substantially achieved.

- 16 -

U18.l55

~ ~~ J Entered and Ordered this

day of .f)££,

1982.

AGREED AND CONSENTED TO: For Plaintiff United States

IZ~L
DISTRICT JUDGY DATED:

~<Q.. to

'

<

For the Defendant City of Fultondale
I
For the Defendant City of Gardendale
- 17 -

-

I

For the Defendant City of Mountain Brook

\).-\-\'1....

the Defendant City of Grove

i2tV. /, 19 o;z-

I

I

1'1

........

For the Defendant City of Tarrant

j)1-\_ \ \'\ 1~ •

For the Defendant City of Vestavia Hills
a~~

~ I ttf(V

- 18 -

--·----------------------------~-------,.
APPENDIX A

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APPENDIX B

~

-

Adams, Charlie

Adams, Willie

JURISDICTION Besseaer Boaevood

DATE
~

~ D D

RECLASSIP'ICATIO

*Adamson, Calvin

B011evood

690728

c

Semi-skilled labo

Albert, Lee

Pair field

D

*Allison, Clarence

Bomevood

770401

c

'!'ruck Driver

Avehart, Sampson

Bomevood

B

Bell, Walter

Besseaer

D

*Bendion, Pred

Roaevood

791000

8

'!'ruck Driver

*Blakeley, Marion

Bessemer

760220

B

Semi-skilled labo

Boler, Willie

Boaevood

D

Brovn, John C.

Besseaer

B

•carson, Clarence+

Mountain Brook 800626

B

Seal-skilled labo

Carter, John

Midfield

B

1'\

Carter, John

Pair field

'-

*Chapman, Otis

Bomevood

810701

D

Semi-skilled labo:

Clark, Ben

Bessemer

B

*Conwell, Arthur

Besseaer

740401

B

Semi-skilled labor

*Conwell, Ricky

Besseaer

731128

c

Pound Attendant

*Crawford, Willie Mae

Besseaer

72 0107

A

Cook

Crum, Johnny

'!'arrant

D

~he
enti jobs of p

individuals identified on tled to be reclassified in
listed next to their naaes aragraph 21 of this Decree.

t

th o in

is appendix the classif accordance

by an asterisk ied service in with the provisi

are the ons

oi+tnt nhoTboehtt taebhdeicneauirtnreejardoceibtnlvvhastiaesdllylsuiiCidasfpoltioseueAsrddlstaiedbgnisaenesrmnatxoanatt itfstdtvioheraefidlvitinhdceoaelrnaslAi rslaastlbhnpiicafapimimesrenoaedsvsaedaposlrpneivevrtniovtedthihricstixiehsnlibisauyctpnveDpdoaneeesnrcp(edr2let.iu)hxes'.i!ys'ihnaeeaaDyrroekaarcduroeedaeorft

018762

Cunningham, Ernest

Bessemer

B

Cunningham, Jeff

Bessemer

B

Cunningham, Michael

Bessemer

B

Curtis, Alfred

Midfield

D

-

Daniels, 'l'homas *Davis, Craig

Davis, Larry

Bessemer

B

Mountain Brook 590429

B

'l'ruck Driver

Mountain Brook

c

Davis, Larry

Vestavia Bills

Davis, Sherund

Bessemer

D

*Dobbins, Orlando Eades, James

Homewood Bessemer

810701

c

Semi-skilled labor

B

*Evans, Gerry Porbes, Ernest

Besseaer Bessemer

780716

B

Semi-skilled labor

D

Ford, Will Jr.

Bessemer

B

Grier, Calvin

Besseaer

B

*Barris, Billard Barris, Johnny Lee

Bessemer Midfield

640824

c

Pound Attendant

c

f

Barris, Matthew

Bessemer

c

Bill, Richard

Bessemer

A

Rill, 'l'om *Hollins, Ja'ts E. Hubbard, Ron

Besseaer

~t&.:...

... c ,;_).;.~ ~~

Fairfield ;_;,·';_I~ 2. 700219

B

Fairfield

c

Semi-skilled labor(

Jackson, J.D.

Homewood

A

•Johnson, Alfonso Johnson, Bud

Bessemer Besse111er

780716

B

Semi-skilled labort

A

•Johnson, Melvin •Jones, Joseph •Jones, Randy •Jones, Sterling Lacey, Jerry

Besseaer

770218

c

Semi-skilled labort

Bessemer

810428

D

Pound Attendant

Homewood . I- ~ ...; 780505

B

Auto Mechanic

Bo11ewood

810701

c

Semi-skilled labor1

Midfield

D

Lane, Daniel •McDole, Prederick •Mcintosh, McArthur Middleton, McKinley •Miller, Sheraan

Besseaer

B

--- B011ewood . .. , -r 791109

B

'l'ruck Driver

Besseaer

810702

D

Semi-skilled labor•

Midfield

A

B0111ewood

791001

c

Semi-skilled labor.

018?63

Miree, Joe c.
*Muse, Joseph

Nance, Oscar

Norris, Fred

-

Perry, Eldridge

*PettyGrew, Ernest+

Phillips, Jim B. Porter, Sam Posey, John *Riley, Willie J. Robinson, Archie *Robinson, Eddie Robinson, Jimmie
Roemer, Jorethea w.
Rudolph, Sidney Sanders, Marvin Scott, Nathan Shackelford, John *Shearer, Henry *Sloan, Jesse *Smith, Lorenzo Sparks, Ellllllanuel Stephens, Willie Stowe, Dock Sumlin, Larry *Tart, Edward *Thomas, Johnnie TraiiiiDer, To•aie *Underwood, Ralph warren, George Whitt, Willie Williams, Jaaes •Wilson, :&dward

.. Besae•er

. ·,.-

Fairfield

~·

\-·-.;., ....,..-

r

::. ;I•
I

681122.:· •

,.D·;v
B

Tarrant

c

~
Mech. Belper or Equip. Serv. Worke

Mountain Brook

D

Besse•er

D

Bessemer

700929

B

Water Otil. Serv.

Helper

Midfield

D

Besse•er

c

Bessemer Pair .field (?r

.... .D

j'J •

1" ......

, .

i ........-

710208

B

Semi-skilled labor£

Bessemer

B

Bessemer Homewood

650909

c

Semi-skilled labor£

c

Bessemer

A

Bessemer

c

Bessemer

B

Hueytown

A

Homewood

c

Homewood Fairfield Tarrant Fairfield

781001

B

Seal-skilled labor£

600610

A

Cook

710824

B

Se&i-skilled labor«

B

Homewood

B

Mountain Brook

B

Pair field Besseaer Homevood Hueytown

690701 780714

D
,j B !.-·"carage Attend.

A

Auto Mechanic

B

Bessemer Hoaewood

780602

A

Semi-skilled labor'

A

Midfield

c

Besse•er Bessemer

810803

B (.'f

v"' D

'!'!'lie" ~titer

018'164

*Wilson, Jesse
Witherspoon, James
Witherspoon, Tho•as
Wright, Roosevelt
- *Young, John •zertorres, Francisco

Compensation

A • $1200

cB ••

$1000 $ 800

D • $ 500

Midfield Mountain Brook Mountain Brook Bessemer Bessemer Vestavia Bills

710412
820616 i80702

,.:..1..--
B /;Equip. Ser. Worker

A

B

D

B

Semi-skilled labore

A

Labor Supv.

018765

 
 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

.. ·--·~

~outhern Division

UNITED STATES OF AJ.\ffiR.ICA,

)

P-laintiff, )

)

v.

)

)

)

JEFFERSON COUNTY, et al., ..

)

Defendants. )

Civil Action No. 75-P-{)666-S

.·

,.... ·- .... ~..---

I

'

JOHN W. MARTIN, et al.,

)

Plaintiffs, )

)

v.

)

)

)

CITY OF BIRMINGHAM, et al.,

)

Defendants. )

OEC: 2: 0 1995
Civil Action No. 74-Z-17-S

ENSLEY BRANCH OF THE N.A.A.C.P., eta!., )

Plaintiffs, )

)

v.

)

)

)

· GEORGE SEIBELS, et a!.,

)

Defendants. )

Civil Action No. 74-Z-12-S

ORDER MODIFYING THE CITY OF BIRMINGHAM CONSENT DECREE
I. INTRODUCTION
1. The Consent Decrees in this action entered by the Court in 1981 resolved all issues raised by the complaints of the Martin plaintiffs, the N.A.A.C.P. and the United States in these consolidated cases. Those complaints alleged that the City of Birmingham (hereinafter "the City")

and the Jefferson County Personnel Boarc:il' (hereinafter "the Personnel Board"), .together with

other named women with

defendants, had engaged in a respect to recruitment, hiring,

pattern or practice of discrimination against blacks assignment, promotion, discipline, and other terms

and and

conditions of employment. The 198-t'consent decree with the City of Binningham in this action (hereinafter "the City Decree") was entered following a fairness hearing. The actions the City

took pursuant to the City Decree were challenged by a group of white male employees in the cases

consotidated as In Re: Binniniham Reverse Discrimination Employment Litiiation. Since the

entry of the City Decree, changes in the workforce of the City, and in the entry-lever hiring and

promotional procedures used by the defendants, required that the City Decree be modified.

2. In 1990, the United States and the Wilks Intervenors filed motions for modification of

both the Personnel Board and the City Consent Decrees. In 1991, after a hearing, the 'Disnict

Court issued an order dated May 20, 1991 granting those motions in part and denying 'them in

pan. Upon motions of the United States, the Martin and Bryant Plaintiffs and the City, the

District Court amendedjts May 20, 1991 Modification Order by its September 25, 1991 Order.

Both their

the United motions to

States and modify.

the

Wi~

Intervenors

appealed

the

District

Couit' s :partial

denial

of

3. In a revised opinion and order issued August 25, 1994, upon rehearing, the Eleventh

Circuit affirmed in September 25, 1991

part, reversed in part and vacated in part this Court's May modification orders. Enslev Branch N,A.A,C,P, v. Sejbels,

20, 1991 and 31 F.3d 1548

(11th Cir. 1994).

4. Pursuant to the mandate of the Court of Appeals for the Eleventh Circuit, the 1981 City

Decree, as amended, is hereby amended as set City Decree remain in force unless specifically

out in this Order. amended herein.

The original provisions As used in this order the

of the terms

"party" or "parties" refer to the plaintiffs and defendants who are parties to the 1981 City Decree

and the classes certified to participate in the modification proceedings ~, the Wilks and Bryant

classes).

II. GENERAL PROVISIONS

5. The long tenn objective of the parties through the City Decree and this Order is to ensure
that any and all unlawful barriers to employment, assignment, and promotion that have existed for blacks and women are removed, that any present effects of past employment discrimination are fully remedied, and that equal employment opportUnities with the City are available to all persons, regardless of race or sex, as required by Title VII of the Civil Rights Act of 1964, as amended.
6. Paragraphs 2 and 5-10b of the City's 1981 Consent Decree, as well as this Court's Orders of May 20, 1991 and September 25, 1991 are hereby vacated and replaced by the provisions of this Order.

ill. HIRING AND PROMOTION

screen.

1. test

The and

Jefferson County Personnel Board certify candidates that are hired or

(•the Board~) is an entity independent of the City, cremd by promoted by participating jurisdictions in Jefferson County.

Alabama-law

to

-2-

7. The City shall use its best efforts hiring and promotion procedures within the

to develop and implement lawful non-discriminatory next four years. Applicants certified to the City will

be considered without regard to their race or sex.

8. It shall be the City's respon'£bility to ensure that each selection procedureV required or -

used by the City shall either: (1) have no adverse impact on the basis of race or sex as defined by

the Unifonn Guidelines on Einplovee Selection Procedures, 29 C.F.R. § 1607 ~ ~ (1994),

(hereinafter "the Unifonn Guidelines"); or (2) be job related for the job classification(s) in

vn question and consistem with business necessity, in accordance with Title of the Civil Rights

Act of 1964, as amended, 42 U.S.C. § 2000e~~. the Unifonn Guidelines and other applicable

Federal law.ll If a selection procedure or combination of selection procedures is used by the City

to rank candidates, the parties and the Court will consider the candidates' relative ranking',and the

actual effect of that In accordance with

ranking in determining whether the Unifonn GujdeUnes, as part

the procedure bas adverse of its consideration of the

impact for that job relatedness

use. and

validity of any selection procedure, the City shall conduct a reasonable investigation of suitable

.·

alternative selection procedures and explore suitable alternative methods of- using the selection procedures which have less adverse impact. Whenever the City or any pany identifies a race and

gender-neutral selection procedure that bas less adverse impact than a selection procedure required

by the City and that alternative procedure is also agreed by the parties to this Order to be job

related for the job classification in question and consistem with business necessity in accordance

with applicable law, such alternative selection procedure shall be used by the City, absem good

cause shown.

IV. REVIEW OF CITY SELECTION PROCEDURES

9. Within 60 days from the entry of this Order, for each selection procedure (other than

personal interviews) utilized to screen or select persons for hire or promotion in City employmem,

the City will provide the following information since information is known to or maintained by the City).

January

1,

1990

(to

the

extem

that

(a) a description of the selection procedures, the source and author of each selection procedure, the time period during which it has been in use, any changes in the selection procedures since January 1, 1990, and the job classification(s) for which it is used;
(b) the name, social security identification number, race and sex of each candidate participating in the selection procedure, the perf~rmance (including any scores) of each candidate on each step of the selection procedure, final scores and final ranking, to the extent applicants are ranked; (2) whether each candidates was excluded from any portion of the procedure and why; (3) whether the applicant failed to complete any stage of the selection

Cpiane.bfrFofao.nsRrinsm.afla§2ono.r1cre6acn0·atsy7ese.su1eltaSme6l.ap(iitQnlrooat)neyi.nrmvpinieregonwctpesdrdeoaucngridrseai·omuannsss..cuoionsrrccecldpu:lrdioanibnptgaphtliiitsochnaeOtaifrrouydnlelprfreoairrsnimogddsee.sfoina~ fneadds·spaUeshsynsamsinfiyoceannmlnt. eteGeadcsuuhuicnrdaeieqt,liuiocnenoesamslfboraoninnmdaEtimwtoraonpdrlkooityifeoemxnepaeSelarespilueeanrcpectesieor,naroenrPqdpruorpiorceeecnmdecduielurnertteessS. tut2hSs9.reodugash

fiaa will

3. For all purposes relevant to this Order, adverse impaa shall be defined as it is the that the initial detennination of adverse impaa is to be made pursuant to the methodology nee preclude a party's use of differem methodology in any resulting litigation.]

Unjfonn outlined

Guidelines. However. the in the Unjfonn Gi!jdelines

-3-

procedure(s); any; and

and

(4)

the

selection

procedure(s)

or

pan

thereof

that

the

applicant

failed,

if

asidenexdn, wt(ricfahi)cceeath,taiejnoorynbthocdefloaatcshpusepimfosieicunnactttcmaieotesinosnfnttuowl rwac~sahenimccdthiadidhaneetgep(oustr)rhssebuhyaeonnhptaaetmsoraeaat,piogpsnoolicaeiloda,iflnastpethhcpeeuoriCsinteitytmlyeicedDtneitoencnotirrfeipepc.rarooticmoenodtunirouenm, dbtaehtree, -

(d) each of

whether or not the City has these selection procedures.

completed

a

job

analysis

and/or

a

validation

study

for

To the extent will provide it to available, the City

that any of this information is maintained in the panies in that form. Upon request of shall provide data prior to 1990 for any job

machine-readable any party and to classification.

form, the the extent
'

City it is

.·

10. Within 60 days following information for is maintained by the City

of the entry of this Order, each job classification in City in machine readable form:

the City shall employment to

submit to the extent

the this

parties the information

(a) classification promoted by

the name, social security identification number, race, sex, job classification, job code, certification number and date of hire or promotion of each person hired or the City since January 1, 1990; and

(b) the name, classification code, Personnel Board to

social security identification number, certification number and disposition the City since January 1, 1990.

race, sex, job classification, of each person certified by

job the

tOtoorodthbeeUtraeapixngotrneaendertdetiiqottiuoilseinmsaatvlitoaisniflufaaocbnhrlymer,epaiqtaniuroctenlysu,ttdsotihnteoegvatCdhlauiottasyaetetsjhhotahabtellicsapldanrsvoosevtirfiisidnceeamtimiaoadcnpdhasicitnwitoeohn-erfaerlteahddeaaatCbpalaietfryotfy'orsrhamsanes.yleajTcotghibooeoncpdlpaafsrnaosiiicetfhesicdtdaouetristoehisnrie.s,

11. Within sixty (60) days of the parties' paragraphs 9 and 10, including any supplemental information, the United States, the Martin/Bryant

receipt of the City's submissions pursuant to submission pursuant to a request for additional Plaintiffs and the Wilks Intervenors shall~

submit to the City a list of up to receipt of those lists, for each o information to the United States,

twenty-five job classifications. Within ninety (90) days of its f those job classifications, the City shaii provide the foilowing
the Martin/Brya.nt Plain. tiffs and the Wilks Intervenors:

~ tshine. cgeo(aaJC)al,inttuywhaehDreyteitmhc1re,eere1do,9ur9Crni0inotgyftoawAr rhftahficciarehtmjoiaotrtbwigvaceeslnaAdisnescrietfifciofcoenanctsPti,colianaonnuadsnotdrgh,oeoaitahlfueawtrnhaysosorguiutosyreacdlefo)wb;ryaaessntthduaesbelCidsi,htyma fedonertsaconrfiypthtpieoegrnioooadlf

bh(aaasssidsu(esbffeoi)dnreftidohtsrebdeyeeaxtcttehherenmjotUibtnonacitfwliaooshrnsmiifaiscGcatuhotii~ doeenalscihenhalesejsoc)htb,iaodfcrnloaampnsrsoaiJfdcaievcndaeutruaisorreeyn,i.m1o,pr a1pc9at9no0ntthotehrteehoebfap,sritsehsaoetfnttrh,aecineCcailtunyddui/nosgersstheoexr

-4-

rhsaicteneoalqalfgveousooecsreobmtiIsnfidtntoiaoaecniftttdanh.ia.oteipaiitniognrhne.ornffveocdsoeeTe,rerndmdhmstthiueaoraterehtnpteiiapoasotttor.anhnttr,eihtoeIriaesbeiefnnsqtUawyflugoisniniphrrtirehmtaaeaeeilrddldnattydtoaiSbtiothmtyttlinieiiormtamtetntyhyoisapit,ssldtbsutaeiuhptbnoyceamfpshroarMaigroortgmervafrteqnhiaaseduiiptusneeiohco!sdmnhBtnsfoarraatoytrtootsmaraeceentnrhhqvttteouaahoPdselpeuelustpaahtljCir,etnoeoeittbtpfiChyotfrhecfoirselafuaCottohsrearisterdtisymfftvcCohiechoaeriranetrsyrtWeddeieousttitniolohlhmesklaepuspfnwrtoraIoiehrcotnvwqetn~piruo.drereeovnefsaetvttaynhiipd-ndoeafdrgiirnisvCttpgyeiiwoathtjrnyhiotasa'yesbshl -

.·

itrsacaseniehsoumdafqsanbcoveuelhtmrelselemrsy1sniasot2sawlterssit.ffeoiiohoioosntmeWrpnhnlt.aohi.episd(nteathIodrscofireiettantahaiaoocnwse9nnhneyr0iylatethsdplphcouaaaietrtcyinrrheolttsfbriysenoe-aporsrsspceefmjiorcolstsoetanhbhcctoettaiteeooficlpndollnrjdauanaofnssrfcibesopiletieerrhfacosiataalc'caantiajerssdotetdssrihc/bueoiuoefesenrircipce)pihloansataiatenfstisonoxssodficre,anfmo,tdisahscnvaltelatfoaetietositnCrinoetrosgidnienntwtsyghwsiwh'emuhsiiaitbacplhbsnslmhuaayncabssiittinometjs,ttoelheiiedfbnascaxosfstpbfriiicoetoylslnacinnatotnstisphnastpouhceitirtifoeuriooisCantccnupslatietaaettradfyinnreonoutttsrdyniirptsoei'sotosnnshingp.nidestnasuherrbuAteaatyafttqhgfhsueiprtihacosa,eetaipsCnevfpothndieialfttfier1ynoaitt1tg'ayornss,

ppeAsttahvoaeantlrairedamtatacigenjdcato1nryivukao3bceleptn.earichmsraplIeatnre8jfhsooi,nsaamcobitostefhfpsideccpetathuhlasacpaeristrtsieasmtoayssrsOnntieeiffcdneirloahcesdtnrnaaceodmoltttrlihife.oaotpanhanyntaegdjreavaotpCsgynebrirrdottecschyceeoleteanhwtidsChtamsieuatliinlrpfttetyidanhtcss'hcoaestettt,fidrhCoboeteaehrnittsteeyrhmttrrehhameqeselalehusitntihaibnrjalateeolfhtlodilebnonrobmtnoroceetaalqtpnahntbuisnroaeoiosutrniveaaframinliesdcnsquieeaenuupntltaiaipeteorlsnclrenyiitidoeminodafmtntdepaoberdappyieirmpprttaiootroghoctianrehnvepaaenidppCldnuhoeierertievny8enqaitnddnouigsneoyifoenreiteannchsalmtesidssnugdetfofoOhniofttaatiirrscohltdainatfeenohvaornyelfe.rt

pappdcrmrenroaaooqanyrccatuytseyeedi1drndodnes4utuifohimt.rroirtaeeoienelIfnclnmnymaeatanesileatdvdeedhtovittvehnsspifaisgrrttnppeohhtcaaysveeeturrihtadrcr(ieoe3egeheqfq0rsCtanuut)hhpioioietrerdhtyfeeiaim,csmn8yacefinseehnooynanertfnttdmwhsssdtuehreaoloiitlteptshfeifioaceenppOnntsgaaiitirro,snaredaeanbfwsgetoglrriprfrhcsa.omarehaprpotneathThhchdnteehi8o8oirpdentnouuoiCtrrpfrdfeseaioteuatthrbhsycaaiicsjithngesrstrciaOhabaOtdtaposgremlrdhdrldtpeeoine2aernin,ror9mit.ashtaiptgoenefeInaryfyrfartCstaphatpohighitatspenhrsyraaat'Opy2pswrtat5hryhcmirdttleo2eidaate9rbfiohy.smeteeohlssroiWifuetsfohsvtbihutbaOtemhihctjsserehiitdntchOsbettaaenahrrtais,diassnnsiteeetsefdhlrlitme.ee,eyfcocsaaeCt(trftaii9tttooichiee0ttnnhyersr)
to the Court for resolution.

UcOdmoesromtidernperegm1lres5eitto.nhelreeeacsFtthrwioteoehsrrneiuCtepltstaeirsetcnoylhceojeocrjfdtboeituvboharineesncesalpcsaltroyshomssiactiisstfepidhlcaseauacetvrtcleieeeodo(crnastdj)nioiotnhbianngadtapvqtnoertuhoareteslchsyeeetCsidieomtiusitnmyr,pemaetohctterateoebaotlCnseneyliitttsmhhyeoeetitsnhborhaeeauatrqsetliulpsiniaarrodreeitfvvtmysrieasersicesndeeetceisontosintomridfsfsipeeepsalxseaecm,rctaa.utsiig-notahrlhnneaaenspvpsuhiCrnatol8hig.cteyreooedCnfpsuoehotrhuareoitlrss.lrt

-5-

consistent with implementing adverse impact.

selection

devices

which

are

job

related

and

which

reduce

or

eliminate

agoipsidpmreafoeplrbpenutliicltapccia1tcf)auic6itonlek.aantodtrnapFpajnroooradtdoohrbtv/leceo"eesecarrbdflsciaoaeufhnsesrrsiimespsmtisehfrailpooaclemetapfaccjetotroaiitearoo.pbttcnniipenoT,clpgnilhortcahoaasrttehcostnsieetpfCesdtilxhruciae(t,eranyiq~tfuiurtmosnetihhhntrpaaiaea,ryltlmteultsibhsneneeaeendcsnslttleetpsauabrcbadtetotirlieheoitofsinenanehpnsfiaopdnoarafreunlalognagobrcitlrwlneieaafietdiicpnen,eukhtrdgesirimner8bciamyobwnopnadarlfgdsain/toitonyihtaaniridoldsgpsvnfe,aeeOssormo:ritfgrsyradenmleateehasirsdmekhaiitpCrnaoneavgoccitiunhtaonrgepautppgnaf"olatmnaqeiicnnurdaeatsasdmctl,vfitetofethitnrhrehatsadseatet

(a) The interim
~~~~

goal

is

a

temporary

one,

narrowly

tailored

to

counteract

the

identified

I

.·

(b) The City has adequately counte_tact or of the City; and

determined that no feasible race. or eliminate the identified adverse impact

gender blind remedy would and meet. the immediate needs

ppptwaphraaploheraspptosnlriioaee.c(sgslscaueee)nbvTodtmaorshuTnfeifwsthtoaeep"huntoqeoonyprudraliaasoantrelbnodeyilyfewibocaceteefaddthriscdetoeiaoixfnftCpiniieleoppesmodindlrudiopactrewolctatrensifatttdroeththoiuleopemmrtnochCeeto.efiieilotu.CftyI.nrttottbhfhhpmuoayeerrrtaorttryschcaereeleenqaaldvduelsPusiciseoertrtiheweifroeisimsenonpCdcernueplnonusrqrtuesedsouulrrecitvoarBeteainfdhcopdtpueeaptarororaperdortaoptvigafassaeodriirdntarmaaimpoggttihhhnrnreeeesain8espjtidtiomhsoeo,brfpfd1eitnlcde3ahelf.miawsmbs-styeraseOinindttftirhdiandcteatogaiero,Ctdriniobinfotonoycyrrlfauttftihhnodhtesedree ididdoiennneeeafttpttpeeceaPararhrievrvlrvt1ertiiimismeed7neoww.tweendennrneTrqtqvtseauhuwcislteeeieerniowsiselpCtgltrki.itosoiiihtfnuonnyioBgsbnssrmsemotoaahgorinnfa.itdndlfhttlihnoelialemirnnPaptpodgeerodevrrostsisvawfpiiociygteonaienwonsniletvneceseedrylteioptnmpmrhratobeieoutoreirnsatnrvttpfgfihtispeoolsulwfoneobtifndhnrmrps,meotrmiimotstr.hhceteuaeontUslhdetleteupshr.bseroedeeecnPnasPoatrtmceeiptiaooropmslomrroeaofetnnpponvtnslhpdeeuereldatelriitcecoeiiDaeonnntninehtvwtropsaiy,qanfrtirugwtotathaimifnalewtignhetfhiryinnibcaisttatyctcefeteOooirtnorhvrmtrneiirdrefpseeeiCw,lcvcreoiat,ithtpeertyaiwedrdol'oslnpaicassDpreltopwkisaisplsrenrtie,op,cidctsatttathteehnoorednetdrf.

18. without

The City shall regard to their

continue to race or sex.

give

to

certified

applicants

the

opportUnity

to

be

interviewed

easeDhmpmeappppllllliaoo1caryya9lnsnme.noeteesbwm.WnetitiCpsohthhrirtoaaiypnlvulritoodhtpwfmeorfdorieocilvtitvtyoiaiedoltsenno(e1wtuwi2rnnha)lttoyieinmlrihhvnotiaihgrneveewteydhinsoncoeoroormtmtfpoaprtphtolrltoeemeecyntdoeoedatmeeetthdedmseeosoelrufnefefccdqithhtcuiaieoaitprrnlepeasnodianwtinrnitdiynrttamghaoinepamfnipunttahltsgiyhic.sooanrrnOoiptttryredoivntemoatreloiutrnhtvaietoiteeinroCwsvn.iiteafywpTo'psrholiPeisrcaeatcarrnsphatoipsnCnoifniinotnegyrtl

-6-

V. TEMPORARY INTERIN! REMEDIES

ripot2emhar0merp.ttrehlyeeda(matiisas)thelhaoneplIntrllfegaaanonanopirynttleoiagfpnlytiarhnatretgotchyeiCearrteiloonpmuogatrerhrtetdigisffyefeoesOnrtchdrttaeosdepetodptrdhf,irisoissiscpvncreacriOmicllm.uirfiddniicienanratpgitaooitsonhftn.eidtsiCiTnsicdhttryeehim,teepdriaCnmeratiteititnyieromas'sntiisnohahegniarsalilainfnngsosdu/rtpbbarrmolenaqmyictukocaestlnsiaotoysrnstahaiwfglaiorctpemartethaeidocentnu,iCcpttheihotasany,tt -

(b) lingering

If the parties cannot agree on effects of past discrimination,

a plan to remedy the ongoing discrimination any pany may petition the Court for relief.

or

the

. ·

aittshopapnatonoji2oyn1bltjom.ocnbelganAcestlsrnaigyfsnoiscetaieafclimt.ecisoapsNntoaioorrmayn.r.egyweotahaAltpeshnptesoathrihnnaeeylqtlmpuctaieironmnenitmeetgisenoanuaatgelpssrabeoreeetfsyytpoaoarbmnrltdahiasgeythrheaCemdpolhoipufvure8etroosffiuffnoadtrtnhh.setitshtthDeoOaetttrhcedairrlseemlreOsi.oenrlradettceihotrainost.hntoahpflelraoitnctteeeedmr~uiI mprteosegraofroaaysrl

bgesryotaeubin2ltidh2sseh. rethAdthanept yuvPrepsesuratsiargotnyentsnmtoeolafpyBeaaroaaraplgirperdlarypouhrtnosltah1tweh6efC-uaClnitdeyom]u2rc0ptolootnoyftimtnchoueisnnettOitnodruideseecxrrio.ismrtomiirnnfoaottdhiroiafontytjhaotgehbraeicantlpsaeptsrmsboilpfpai-ccrikaoast~tieoannirn.edtl/eioerrfi,mwoognmotaehlnes

VI. RECRUITMENT AND COOPERATION

BacPPpnloereadorrasssgsroooidr2fvnnai'3escnmn.raeecrtlelfoiToocBmBhnrrouesiotnaihatwrgeCmrddovipeetueutynnlosrdtgtpisreagoaehgfesscfaesseorlislurisonttiosfct.tafophbdnmreldiatoeiicCnterkiuitodstieynnisaagcitnlnortdrihmeoedwcbierontovuabameiijttnleimeooicnnpnteign.vfaoteaTnrisddfhdaoteihftrpieeCtoaharinCisttsaysiitcleOyausqgslrbuardeaerielletijriesof.pvibtereoTedscshclebtaoehnlsoaaCtsptciiefkaatiryfdcaafdatinsertihditmoiwaonfalneilttamiohrvleraetqehlgfeuerrfeeooaPscruptetrppsurthlsiboiotacytfntanjnntteohhetnbselet

24. analysis

The City shall continue to make its or validation study is requested by

employees available the Personnel Board

when their participation or by a party.

in

a

job

VTI. RECORDS AND REPORTS

25. This 1981 Consent

section supplements Decree.

but

does

not

replace

Section

X,

paragraphs

52-53

of

the

City's

atarCttwihehgmriiphersteeeyriopceetOraoht2amtobrrsf6idttel.smeesnewrhcrtef,W.iaooeattlnrthnhliEstideithntsihasdpiCdecneteohihirasctbeisyacoirldifgctixfiygsorcatheaamh((aetpl6e3illmpoal)0yClrn)esitmssayuindhtdbtuyoamidmnann'ysremdtsieahntsesloasetlrasnfmorttgartheefiehfs-irttptesapheaionesertOprnkctirptrtussohsdtaaoegwferltitrorltiireeehteethstndosephsi,t·nior·uCsbamyrsytiotmehisaueotedohglrwfaetdeanwittiaelhdifClnfxoiiuucdistndtrlasyseittsnOisoi.xoeogcrlntfrmedhitncbeehoootererinp,ndoita-pnenhacnrrsnop)eid.deorceoospetAnaacde(tienriiilnndtayssttgcuihiplxeroueesafndifsr(e,xo.it6fnyra)ftmgTonsmmrdothtthaonseoyeatncmhsWcstoeshouamm,impdliaipkpen-prlslateybleeniaCmyarnwsvnleutaaichomastleehsfsl

-7-

ilpstehsraoaspcltrle2otdhi7pnui.orcrtselyTuesdhd(t3eeos0caCm)hidpeetaedyrytou'ssptlheospeesrtcoeiroodetnqrhsdutecoihsrpeeseammudrbuteiim-lneaetsinsmfnaoounnrfadgplthatarhetretaapeCtgmorpiratprtyp,ot hptdtooou8seoreoebdtvvwteaiseericnwlthvhteeehadenmufidolroe,lnla,oitgtwfhhrsenieneeagCmcfteiteetshynrsiatrtsthrtyhyoe-a,sleailrnxesptcvr(rh3yios6eveod)ifduimtletseho.cinssoetphlOeisecr.sdtieAoorntf, sOstouerbradvmdeic2mirse,8si.npiuoionsTnstlisheet.erisosfCnosnritoyipnnrseothhmaeololfPtsiotouhlnbiecamelpiftDairrteeotipestaeshrretvmopibceajenrettcipeetosisgtiaohtitpoetrnheosenpio(ns1se8atlhl)eecfmotFioroinrnretehvpDsirseoferpcdoaemrsdteumltreheecenstitdoiaannntedptrhopoefrcioterhmdepuoareterinoastgnriarytalionppthfoetlnhi1dci2sse

.·

pdtoaartaeadg2omr9afi.penhniTstr1thye2erosCfufoibtrtymhfiisissrhseOia.fQlilrgd.nsheustr.be,rmuaintnldteospstohnleoicpneaerotoifeffsitchaeerppcraoarnptdoieisdsaalotfebosjrewcretivtthoi·sinethdeeisgesheleltceetceitnoino(nIp8rp)orcomecdoeundrtuehrsses~ftrioinnmttehntehdiesr

sptiihemnrmeotpeciaCre-v3caditi0tn,euy.nworuesrF,ahsaolaitnlrporleajtpereohtoilebytirhmtaeec.ilvrlnlaeeapsgntsreetoisftdaihicudnaacvttieietotsrhenspeevsaiCdrioameitgtnhpyrceaaercpidthtaehsan1act1tnciofositeurthhdsboeimnsaejgiossseibtnioloerncewthtltihaehotiaencttihdmpsnurteehocsteahcsbeaooldenfpulrrsiyoteesctsiepetodrluueouctsrcteeeiis·ndohunaat·hrssepeahsrdCaoovvciretieynrdcs'gshuearaisenmdegvcpieseoaCrniastdtsne,

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-8-

vm. NOTICE A.."'W 11v!PLEMENTATION

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.·

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weeDoImeTirxnmnnnoeehatcttmcpetiyarlshtrnluhyieeaomtn3deOnteytosi6ohenrmMpaf.vdjvegnrueeteeoodThpr,enrnhitiu,hnttsifstir,hooiadfbpdsiOsnrtoiisoihctgrsprwesiftOcsdo~eiadoeroeomsrrrOilnbadrdelmoEgreynuaocfdirrtxsnnaFafettshlauptoreeethhitshhndssfiaoeeoissentusOhanisr1dliomhiadat9rsnsolotdc8ehb.rwtOe1ltneiaeerodnvrwrCI1dhnds,emn9.iaiesfstf8pvtroycsoii1aesgroaorCrenlnbteCavsh,sodsexg.ueoeinetrodcdrnesneaeh,efsenxpserantdopthfihncetneulrehtnudiDg5riotDstC5eiheibrwovoeoceyneocnurhurdernfetrooerehlttaetfefa,hehnslwdtehsdeishiehrha.Cfissfaulwa1pltoillo9huOihlut8etradeererr1kttixoedsC.hsemptecCetihirhtirrParneiyiaaetimtrrttynnhoiofooimdeiniCfarrrv/naadeoceBotytecreoniiiyrsofotrassfhieumnreateeasinnancsiratsytnt1estgew9guDmbacfr8hnrhoimee1anotaenticyimswmlttCnrthieebtnaoehbet1eetuhrnei.ln9ioaesana8Ccentpng1dhTknopdaaestuhurCntnDoteepryoaolptaeanonCrrpwcrwditsfuroaai/ehfelteroutuehnaetesrryslet.t.,t
Provisionally approved this ! 1- day of December, 1995.

~cJ!~ /

SAM C. POINTER, JR.

I

UNITED STATES DISTRICT JUDGE

 
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.. •

'1.

i
IN THE. lJNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

nl1. .

; b

JOHN w. MARtiN I

)

MA.JOJt FLORENCE,

)

IDA McGRUDER.,

)

SAM COAlt,

)

WAHDA THOMAS,

)

EUGENE THOMAS, and

)

CHARLES HOWAlD

)

...

)

CIVIL ACTION NO·- - - - -

iodhiduaUy 11114 on

)

bebalf of all others ·similarly situated,

CA

't.

)

v. em OF BIIHilfGJWI

)

) )

ILED IN CL!~RIC'S Clf1!tcE

)

.ORlKERN DISTRICT OF AlABAMA

GEORGI G. S Bil"'liolham;

EIBILS, Jll.. JE!'FE!tSOH

c1 oMuamyorP,DCSOitNyHBoLf

) )

JAN 7 1974

BOAlU)i JOSEPH L. CUJlTD(, Dire~tor of )

the Jeffereoa Coaaty PeraaaDel Boarcl; )

JEFFERSOH CDmrl'l; !OM PIRSOH 1 W. COOPEl )

GREER, 'fOil GLOOI., Ccnlllty eo.d.se1oaers 1 )

Ja.fferaon Ccnmty 1 .Alabaa

)

)

\'VIWAM E. DAVIS

ffft.. '- r '-'- ·-· ~· &:. $. cr=r1.aCT C:OUR'f.

av.,

• l:iS.-I{O Ura.. .:/

iDcU:d.cluaUy iiiUl as .officen of tbe Ci.qr

. >) -

COMPLA.IN'r=CLA5S ACTION

of BirmtDJbam or of

)

Jeffersora Couacy, a4

)

thd.r agea.u. aasisas

>.

01' 8UC~888DZ'II iD

)

office,

)

)

J>EPENDANl'S •

)

PRELIMIJWlY S'tA'l'EMERT (Class actiaa: Bacially Discri.taatorJ Eaploymeat Practices)
1. tbis 18 a class actioo bmught by Hartill, Florence, McGruder. Eugae 'l'hDIIU • Coa:r, Wancla l'bOIIIU, aad Boward oa behalf of the•elves and all others a:Lailarly situated, seeking prelimilulry aftcl pet"maDeat relief from racially d1scrimiDatory eaploymeat practices of tbe Defendants Which practices
violate Title VII of the CiYil Rights Act of 1964, 42 li.s.c. 2000e .!!..!!9.·, as
~ehded by the Equal Employmen~ Opportunity Act of 1972 (Pub. L. 92-261, March
24, 1972); 42 u.s.c. 11981, providins for equal riahts for all persons Within
the United States to make contracts; and 42 U.S.C 11983, to redress deprivatioD uoder color of law of riahta, privileges and i1111111mities securecl by the Equal Protectioa Clause of the Fourteen·~dmeDt to the UBitecJ States Constitution. Preliminary and permanent injunctive relief is sought.

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.JURISDICTION
2. Jurisdiction of this Court is invoked pursuant to 28 U.S.C.
s §§1343 (3), 1343 (4), 28 U.S.C. §§ 2201 and 2202, and 42 u.s.c. 2000e-5(f).Th
racially. discriminatory practices alleged below were and are being comBdtted in the Northern District of Alabama against the Plaintiffs and the class they represent.
CLASS ACTION ALLEGATIONS

3. Plaintiffs bring this action on their own behalf and as a

class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure

on behalf of all past, present and future black applicants for employment or

black employees of the City of Birmingham or of Jefferson County, AlabaiDa

and on behalf of those persons in the past, present, or future who would have

applied for employment with the City of Birmingham or Jefferson County but for

the defendants' racially discriminatory recruitment and employment practices

and reputation therefor. The cl.ass is so numerous that joinder of all members

l

is impracticable. There are questions of law and fact common to the members of

/

the class, including whether the defendants' employment practices discriminate

unlawfully against the members of the class on the basis of their race, and, if

so, what relief is appropriate to prevent future discrimination and remedy the

effects of past discrimination. Plaintiffs' claims are typical of the claims

of the class. Plaintiffs will adequately and fairly protect the interest of the

class, because their interest and that of the class in not being discriminated

against on account of their race are coextensive, and their counsel is qualified

and able to conduct this litigation. The defendants have acted and refused to

act on grounds generally applicable to the class, thereby making appropriate

final injunctive and declaratory relief with respect to the class as a whole.

DEFENDANT PARTIES

4. Defendant City of Birmingham is a municipality incorporated pursuant to the laws of the State of Alabama, and is a political subdivision of the State of Alabama. Defendant City of Birmingham iA an employer within the meaning of 42 U.S.C. 2000e{b), as amended.

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5. Defendant George G. Seibels, Jr., is the Mayor of the City of

)

Birmingham. In his capacity as Mayor, he is vested with authority over the

,(

administration, including employment practices, of the various governmental

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I departments, boards, and agencies of the City of Birmingham. He is sued in his

official and individual capacity.

6, Defendant Jefferson County Personnel Board is an agency

established pursuant to the laws of the State of Alabama and is a political

subdivision thereof. This defendant is an employment agency within the

meaning of 42 U.S.C. 2000e(b), as amended, and recruits, procures, and screens

employees for the City of Birmingham,for other municipalities in Jefferson

County and for Jefferson County under the jurisdiction of the Jefferson County

Personnel Board pursuant to the laws of the State of Alabama.

7. Defendant Joseph L. Curtin is Director of the Jefferson County

Personnel Board and is responsible for the administration and operation of the

Civil Service system, including the examination and certification of persons

seeking employment in classified jobs with the City of Birmingham and with

Jefferson County. He is sued in his official and individual capacity.

)

8. Defendant Jefferson County is a political subdivision of the

(
State of Alabama and is an employer within the meaning of 42 U.S.C. 2000e{b), as

amended.

9. Defendants Tom Pinson, W. Cooper Green, and Tom Gloor are County Collllllissioners for Jefferson County, Alabama and in their capacity as County Commissioners are responsible for administration and operation of the employment practices of Jefferson County. Each is sued in his official and individual capacity.

PLAINTIFF PARTIES
10. Plaintiffs Martin, Florence, McGruder, Eugene Thomas, Coar, Wanda Thomas, and Howard are all black citizens of the United States and of Alaba11111.

11. Plaintiff Martin applied for employment with the City of Birmingham as a security guard at the Botanical Gardens and was certified by the Jefferson County Personnel Board, and was rejected for the position on account of his race. Mr. Martin was not selected for the position and a white was selected despite the fact that Martin was qualified and was higher on the certification list than the white selected. Plaintiff Martin subsequently was offered another job with the Streets and Sanitation Department by the City of Birmingham under terms and conditions of emplo~ less favorable than terms and conditions offered whites.

12. Plaintiff Major norence is currently employed by the City of

Birmillgham as a truck driver in the Streets and Sanitation Department. He has

been unable to promote to more desirable, higher paying positions because of

the discriminatory tests administered by the Jefferson County Personnel Board

and because of discriminatory policies and practices of the City o~ Birmingham.

13. Plaintiff McGruder is a trained, experienced key punch

operator and was certified by the Jefferson County Persciunel Board for that job.

Ms. McGruder was referred for oral interviews for employment at City Hall, the

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Birmingham Police Department and Mercy Hospital, a Jefferson County facility,

in accordance with civil service procedures, but was not selected on account of

her race.

14. Plaintiff Eugene Thomas, a black applicant for employment with, the Birmingham Police Department, was rejected by the Birmingham Police Department on account of his race.

15. Plaintiff Eugene Thomas has applied for a position as deputy sheriff with Jefferson County and has been rejected for racially discriminatory reasons. Plaintiff Thomas has been allowed to serve as an auxiliary sheriff for Jefferson County and in that position has performed work similar to that performed by the regularly employed deputy sheriffs. Despite plaintiff Eugene Thomas' experience working as an auxiliary deputy sheriff on a ~~lunteer qualified basis, Jefferson County refuses to employ him and other blacks as regular sheriffs on acc·ount of their race.

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16. Plaintiff Coar was employed by the City of Birmingham as a laborer assigned to the Streets and Sanitation Department. Coar was fired in 1972 on account of his race and was not afforded an opportunity for a hearing or other administrative procedures that are available to employees in jobs classified under the civil service system administered by th~ Jefferson County Personnel Board. Plaintiff Coar during his employment as a laborer for the City of Birmingham suffered racial discrimination in assignment, benefits and terms and conditions of emplo~t.
17. Plaintiff Charles Howard is a black applicant for employment with the Birmingham Fire Department. Plaintiff Boward took a written examination in 1972 for the position of fireman and was subsequently refused further consideration for appointment because of his failure to achieve a passing score on the examination. Plaintiff Howard has been discouraged from further applying to become a fireman for the City of Birmingham because of the continuing existence of the discriminatory screening tests of the Jefferson County Personnel Board.
18. Plaintiff Wanda Thomas applied for a position with Jefferson County at Mercy Hospital in 1973 and was rejected on account of her race.
19. Plaintiffs Martin, Coar. and Wanda Thomas have fulfilled all conditions precedent to the institution of this action under Title VII of the Civil Rights Act of 1964. as amended (42 U.S.C. 2000e et seq.) on behalf of themselves, indiv:i.dually and the class which they and norence. McGruder, Eugene Thomas and Charles Howard represent. Plaintiffs Martin, Coar, and Wanda Thomas filed timely complaints of racial discrimination with the Director of the Equal Employment Opportunity Commission (EEOC). Their complaints have been filed with EEOC for more than 180 days. Plaintiffs have received notice of their right to institute civil action in the United States District Court within 90 days of receipt of notice from EEOC. This action is filed within 90 days of such notice by EEOC to Martin, Coar, and Wanda Thomas.

STATE?-IENT OF FACTS
20. The defendants and their agents and employees have discriminated against blacks with respect to employment on account of their race. According to the Alabama State Employment Service, Department of Industrial Relations, in 1973, the total population for the City of Birmingham is 300,910 persons of whom 126,388 {42%) are black. The population of Jefferson County {including Birmingham) is 644,991 persons of whom 206,464 {32.1%) are minority.
21. The defendants Jefferson County Personnel Board and its director Joseph Curtin, administer a civil service testing, rating and intervie system which system has a racially discriminatory impact on blacks and which does not conform to "Guidelines on Employment Testing Procedures" issued by the Equal Employment Opportunity Commission (29 C.F.R. 1607).
22. Defendants, Commissioners of Jefferson County, Alabama are responsible for the employment practices of Jefferson County. Jefferson County has failed and refused to hire blacks because of their race for h1gher paying, more desirable jobs and has concentrated blacks in low paying, low opportunity jobs such as service worker, laborer and other semi-skilled jobs.
23. Defendants, Jefferson County, Gloor, Pinson, and Green and the Jefferson County Personnel Board and Curtin obtain applicants for county govei'liJIIent jobs through means which perpetuate the effects of past discrimination in that no continuing and substantial efforts are made to recruit and hire blacks. To the limited extent that blacks have been hired, they have been subjected to disc~.minatory acts and conditions of employment.
24. Defendants, City of Birmingham and Seibels, Curtin and Jefferson County Personnel Board obtain applicants for the Police and Fire Departments and other departments of the City of Birmingham through means which perpetuate the effects of past discrimination in that no continuing and substantial efforts are made to recruit and hire blacks. To the small extent that blacks have been hired, they have been subjected to racially discriminatory acts and conditions during their employment.
25. Of approximately 624 firemen employed by the Birmingham Fire Department, no more than 2 (0.3%) are black. On information and belief, no black firemen had ever been employed by the Fire Department prior to 1966.
II

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26. Of approximately 849 persons employed by the Birmin~ham

Police Department, 41 (4.8%) are black. Of the 41 blacks employed 13 are

clerical personnel. On information and belief,. no black policeman h3d ever been

.·./'

employed by the Birmingham Police Department prior to 1966.

27. The City of Birmingham maintains a Department of Streets and Sanitation (previously under the Department of Public Works) which employs

approximately 1050 persons. The Streets and Sanitation Department among other functions collects garbage, trash and dead animals. As of July 27, 1973, 553 laborers assigned to this department were in unclassified jobs and virtually

all were olack. Unclassified laborer jobs are low paying, dirty jobs with little, if any, opportunity for advancement. Blacks in the Streets and

Sanitation Department have been denied employment in civil service classified jobs such as truck driver, public works foreman. On information and belief,

no blacks had ever been assigned as truck drivers prior to 1967.

28. The City of Birmingham maintains and operates an Aviation Department. The Aviation Department employs approximately twenty (20) persons. All persons in white collar, skilled or supervisory jobs are white whereas

blacks are employed only as maids, janitors or laborers. All of the black

persons in the Aviation Department are in low paying, low opportunity,

"unclassified" positions (positions not classified by the Civil Service System

administered by the Jefferson County Personnel Board).

29. The City of Birmingham generally reserves better paying, high

opportunity jobs with the various departments for whites while assigning blacks to general laborer, maid, janitor or other unskilled laborer jobs.

STATEMENT OF CLAIM

30. The defendants, City of Birmingham, Seibels, Jefferson County Personnel Board and Curtin, have pursued and continue to pursue policies and practices that discriminate against blacks, with respect to employment opportunities and all terms, conditions, and privileges of employment with the City of Birmingham. The discriminatory acts, practices and policies include, but are not limited to, the following:

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a. The dE-fendants discrinlinate on lhe basis of rae~ 3S~inst

blacks in recruitment, assignment, hiring, transfer, promotion and pension practices and procedures.

b. The defendants have maintained a racially segregated

employment structure assigning virtually all whites and few blacks to positions considered to be "classified" under Act No. 248, as amended, of the State of Alabama, and assigning a disproportionate number of blacks and few whites to the unclassified common laborer position.

c. Defendants' present recruitment, hiring, assignment,

transfers, promotion, and pension policies and procedures operate to perpetuate a virtually segregated employment structure and to continue its ~acially discriminatory effects.

d. Black employees are employed as unclassified laborers,

although they may perform work identical to, similar to,

or as difficult as that performed by white employees who

have classified status, and other blacks employed in the

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classified service are paid lower wage rates than whites

I

with less-experience performing the same or similar jobs.

e. Employment tests and education standards which have a

detrimental impact upon blacks as compared to whites are

utilized by defendants in making hiring and promotion

decisions, despite the fact that these tests and standards have not been shown to be related to job performance.

f. Black applicants for classified jobs have been re~uired

to meet higher employment standards than white applicants g. Defendants' recruitment policies and practices which
utilize the referral of friends and relatives of incumbent employees, have a racially discriminatory impact and tend to perpetuate the employment patterns of the

past.

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h. P!!fendants' pension pol:lcies pt:!rpet\lllte the efft•c:ts of past discrimination by their failure to allow pension benefits to laborers in unclassified positions on the same basis as classified workers are allowed pension benefits, and by their failure to compensate blacks in unclassified laborer jobs for discriminatory loss of pension benefits in the past.
i. Defendants' transfer and promotion policies perpetuate the effects of past discrimination by their failure to consider years of service in unclassified positions in making transfer and promotion decisions into classified positions.
j. Incumbent black employees in certain departments are subjected to disparate and less advantageous work rules and working conditions.
k. Defendants have failed and refused to take appropriate action to correct the present effects of past racially discriminatory policies and practices.
1. The acts, policies, and practices described above have re, ulted in :monetary losses to black employees and applicants for employment.
31. Defendants Jefferson County, Gloor, Pinson and Green, and Jefferson County Personnel Board and Curtin, have pursued and continue to pursue policies and practices that discriminate against blacks with respect to employment opportunities and other terms, conditions, and privileges of employment with Jefferson County. The discriminatory acts, practices and policies include, but are not lim1~ed to, the following:
a. Defendants discriminate on the basis of race against blacks in recruitment, assignment, hiring, promotion, and transfer practices and procedures as well as other terms, conditions, and privileges of employment.
b. Defendants utilize a testing, screening and certification system for selection of new employees and for selection of transferring or promoting incumbent employees into

more desirable positions which testing, screening and certification system adversely affects blacks and is racially discriminatory. c. Defendants have failed and refused to take appropriate action to correct the present effects of past racially discriminatory policies and practices. d. The acts, policies, and practices described above have resulted in monetary losses to blacks seeking to be hired, transferred and promoted. 32. The acts, conditions, and practices alleged in paragraphs 30 and 3l deprive plaintiffs and the class of blacks they represent of rights secur.ed by Title VII of the Civil Rights Act of 1964, as amended, and 42 U.S.C. §§1981 and 1983, and the Equal Protection Clause of the Fourteenth ~endment to the United States Constitution. Unless restrained by order of this Court, the defendants will continue to engage in these or similar racial~y discriminatory acts and practices.

PRAYER

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WHEREFORE, Plaintiffs pray that this Court:

1. Issue a declaratory judgment that the employment practices and conditions of the City of Birmingham and of Jefferson County, Alabama set forth above are violative of the rights of the plaintiffs and the class they represent as secured by Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §1981 and §1983 and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States;
2. Enter preliminary and permanent injunctions restraining the

defendants, their agents, employees, assigns, successors in office, and all persons in active concert or participation with

them or any of them from engaging in any racially discriminatory employment practice or in any practice which operates to continue the effects of the past racially discriminatory employ ment practices, and specifically from:

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a. Engaging in any of the racially discriminatory employment practices described in paragraphs 30 and 31 above;
b. failing to adopt and implement qualification standards and procedures for recruitment, hirinc, assignment, transfer and promotion which make employment opportunities in City of Birmingham and Jefferson County government jobs available to black employees and applicants for employment on the same basis as those opportunities have been available to white employees and applicants, and which do not impose testing, education, or other requirements which have a racially discriminatory impact or effect; and
c. (i) conducting a recruiting program designed to inform the black community of employment opportunities available with the City of Birmingham or Jefferson County.
(ii) hiring and promoting sufficient numbers of blacks to overcome the effects of past discrimination.
(iii) offering to named plaintiffs and other members of their class who applied for employment and were discriminatorily rejected the next available positions in the Department(s) to which they applied, with seniority and other benefits from the dates they would have been hired in the absence of discrimination.
(iv) offering to incumbent black employees an opportunity to qualify and transfer into positions and/or depart:ments from which they have been excluded, with carryover seniority and other benefits, and establishing a transfer system designed to remedy the effects of past discrimination.
(v) altering fringe benefit programs so that unclassified laborers are entitled to pension benefits on the same basis as employees classified under the Civil Service system.
{vi) providing monetary and pension credit compensation to the named plaintiffs and other members of their class

.. ,. I: ii

for the loss they suffered as a result of the discriminatory employm~nt practices and pension or other fringe benefit programs.
(vii) providing for punitive damages to all members of the class.
Plaintiffs further pray for such additional relief as the cause of justice may require, including their costs, disbursements and reasonable attorneys' fees.

OF COUNSEL:
David S. Tate! Joel L. Selig Lawyers' Co~ttee for Civil
Rights Under Law 733 15th Street, N. W. Suite 520
Washington, D. C. 20005

Respectfully submitted,
-L_c.~_..._, t...~)v~.c..--
susan w. Reeves, Attorney
Lawyers' Committee for Civil Rights Under Law
Suite 314 Frank Nelson Building Birmingham, Alabama 35203 Phone 205 322-7479

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.......,. -....

IN THE UNITED STATES DISTRICT COUR7 F.OR THE NORTHERN DISTRICT OF ALABAMA
SOUTDERN DIVISION

EANS~SLOECYIATBIRAONNCHFOROF

THE THE

NATIONAL ADVANCEMENT

OF COLORED PEOPLE, ·DONALD NIXON, WILLIAM MOSS, ALVIN MAHAFFEY, JR,, WALTER R. BALL,

*
* *
*
*
* *
** CIVIL ACTION NUMBER

CA74JM12 Plaintiffs,

S

vs.

* GEORGE SElBELS, individually and * as Nayor of the City of Birmingham, * Alabama; CITY OF BIRMINGJ:lAH, ALABM!A, * a municipal co>po>ation; HIRAM Y. HcKINNEY,

UENRY p, JOHNSON, and JAMES B.• JOHNSON,

•lLED. IN. CLERK'S' O.FFICE

indiv.idually and as members of the
Jefferson CountY Personnel Boa>d; joSEPH CURTIN, individually and as Personnel Director of the Jefferson ·County Per.sonnel Board; JEFFERSON COUNT'Y PERSONNEL BOARP,

'ORTHERND!STRICT OF Al.ABA!IIJI:

** JAN 4 1974 ·

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DAVIS,
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Defendants.

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELieF
I. Plaintiffs bring thi~ action under the provisions of
1) 42 u.s.c.A. § 1981, providing fpr th• equal right of black
~it~~ens of the United States to contract on the same~asis as
that enjoyed by wbite.citizens,,_2) 42 u.s.c.A § 1983, prohibiting
deprivation un~er color of State law, statute, ordinance, regula-
or .tion. cust.om usage of ri.ghts,-; privileges and immunities se-
cured by the Fourteenth Amendment to the United State's Constitu-
tion, and 3) 42 u.s.c.A. § 2000e et seq .• providing for nondiscrimination in employment against persons on account of their

ra.ce or colo>, inter alia. II.
This is a proceeding for a preliminary and permanent
injunction enjoining the defendants from continuing to violate th.e rights of plaintiffs and the class on whose bP.half thE-Y sue
~y ~bintaining unlawful employment practices. Such prDcticcs includc,·but ar~ not li~ited to, ~he imposition of unvaliclatcd pre-

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!employment and promotional tests, which said tests have the effect

of disproportionately barring blacks from employment and ~remo­

tions within the various departments of the City of Birmingham;

racial discrimination in the selection of qualified applicants

for various job openings in the City of Birmingham, and· a con-

tinuing failure to remedy the present effects of past racial dis-

crimination in employment by the City of Birmingham.

III.

A. This action is brought as a class action pursuant

to Rule 23 of the Federal Rules of Civil Procedure. The action is

instituted on behalf of all black persons who (a) have applied

for but were _denied employment in the various departments of

the City of Birmingham, (b) desire employment and are otherwise qualified for employment, but who have been discou~aged or pre-

vented from seeking employment by the discriminatory practices

herein complained of, and (c) present black employees of the.

City of Birmingham who have been confined to certain departments,

passed over for promotions, and/or otherwise discriminated against

by the City of Birmingham in their current employment status. ·

B. The class f."'epresented by plaintiffs is so nume:rou·s

that joinder of all members is impracticable. There are ques-

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tions of law and fact common to t~e class and such common ques-

tions clearly predominate over ani questions affecting only in-

div~dual members. of the class. Plaintiffs will fairly and ade-

quately represent and protect the interests of the class. The

defendants have acted and refused to act on grounds generally

applicable to the class, thereby making appropriate final injunc-

tive and correcponding declarat~~y relief with respect to the

class as a whole. IV.

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A. Plai"ntiff Ensley Branch of the National Association

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For The Advancement of Colored People (hereinafter "NAACP") is a

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membership"organization consisting o~ black citizens of Birmingham

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Alabama. Its aim is to improve the political, educational, social J .
and economic status of blacks; to eliminate racial prejudice; to
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keep the public aware of the adverse effects of racial di~cri­
mination; and to take all lawful action to secure the elimination of racial discrimination. Its membership and revenues are directly and adversely affected by the denial of employment to

blacks of their raoe or color.

B. Plaintiff William Moss is a black adult male

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citizen of Birmingham and a former patrolmen on its Police De-

on partment. He was sworn in

March 7, 1968 fulfilling a life-

long ambition to become a police officer. He was discriminatorily assigned to the vice-squad and later to the patrol divi-

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sion. H*e was also subjected to harrassment and discipline be-

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cause of his race while in th~ employ of t~e Birmingham Police

Department. On January 5, 1972 he was discharged by the Birming-

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bam Police Department. Be has timely filed a charge of dis-

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crimination against the Birmingham Police Depar~ment with the

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Equal Employment Opportunity Commission.
c. Plaintiff Walter R. Ball is an- adult black male

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citizen of the United St'ates and of the State of Alabama. .He

\~s taken the pre-employment test administered by the Jefferson

County Personnel Board to prospective •pplicants on two occasions;

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and he was informed that be failed each time.

D. Plaintiff Donald Nixon is an adult black male citi.zen of the United States and of the State of Alabama. He has completed two years of junior college. Re has applied for a position as Housing Inspector for the City of Birmingham; upon taking the unvalidated test administered by the Jefferson County Personnel Board, he was informed that he had failed to
make a passing score.

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v.

A. Defendant GEORGE SEIBELS, JR., is the Mayor of ~he

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City of Birmin~ham, Alabama. He is the head of the administra-

tive branch of the government of the City of Birmingham, 'Alabama.

He is responsi·ble for the proper administration of all affairs

of the city ~nd, subject to the provisions of the civil service

law, he has the power and is required to appoint and in appro-

priate cases remove all officers and employees of the City of

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Birmingham. He exercises administrative supervision and control

Qver all the departments of the City of .Birmingham. Cf. 1940 Code of Alabama as recompiled and amended, Appendix, §1616(~).

He is sued in his individual, as well as official, capacity.

B. The defendant CITY OF BIRMINGHAM, ALABAHA is a

municipal corporation existing under the laws of the State of

Alabama.

C. 'The defendants HIRAM Y. MCKINNEY, HENRY P. JOHNSTON,

and JAMES B. JOHNSON are the members of the Jefferson County

Personnel Board. They are responsible for the adoption of rules

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and 'regulations governing the operation of a civil service system

in Jefferson County, Alabama, and the hearing and determination

of cases involving the discipline of classified city employees.

D. The defendant JEFFERSON COUNTY PERSONNEL BOARD is

a creature of Alabama State law, ve'si:.ed with the authority of administering the civil service law in Jefferson County, Alabama.

It consists of three members. E. The defendant JOSEPH CURTJN is the Personnel Direc-

tor of the Jeffers 0n County Personnel Board. He is charged,

inter: alia, with the duty of preparing and cond_uct:i-ng examination

to determine the merit, efficiency, and fitness of applicants

for classified positions in the City of Birmingham. He prepares

a list of minimum requirements which the applicants must possess

before they are eligible to participate in any specific examina-

tions. Further, he determines the relative weight which shall

be all~wed for written examinations,·for oral examinations, and

for training and experience.

In addition, he prepares and sub-

mits to the Personnel Board for its consideration and approval,

rules governing examinations, appointments, suspensions, resig-

nations, promotions, demotions, and transfers of classified

employees of the City.

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F. All defendants have been, are presently, or will be

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acting under color of authority and law of the State of Alabama,

Jefferson C~unty and the City of Bii*ingham, Alabama:· Ail of

the defendants are engaged in and responsible for the adminis-

tration, management, regulation, supervision and co~tr~l of all

or some parts of the· employment in the City of Birmingham. De-

fendants are responsible for the creation, operation and enforce-

ment of the regulations, policies, practices, customs and usages

which discriminate because of race or color against plaintiffs

in relation to emp~oyment by the City of Birmingham.

VI.
Plaintiffs allege that the defendants and their. agents have maintained a policy, practice, custom, and usage of disproportionately excluding blacks from employment with the City

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of Birmingham.

VII.

A. The Jefferson County Personnel Board through i~s
members and director imposes written tests as a condition of employment and promotion ~n every classified position in every department of the City of Birmingham. For all practical purposes, "classi~ied positions" embrace all fulltime jobs in the City of Birmingham, other than common laborers, judicial off.icers, elected officials and a small number of executive positions. These written tests used as a prerequisite for employment exclude a disproportionately high number of black applicants for employment as compared to white applicants and have not been professionally developed nor validated to establish any predictive or reasonable predictive validity that the tests measure job

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performance or relation. B. The defendants have long been aware of the racially
disparate effect of the aforesaid unvalidated examination. For example, the most recent fireman's examination for ~he City of Birmingham was taken by 507 applicants, 120 of whom were blacks. Only 29 blacks (24.1%) passed the examination, while 339 whites
(87%) passed the examination. C. Despite their knowledge that their unvalidated, job
unrcla~ed tests have a disproportionate effect on the employment

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of blacks, and despite the fact that workable standards have been
.. developed by administrative agencies ch.arged with enf.orci..ng laws
against discrimination for {nsuring that tests are in fact job related and non-discriminatory, the Jefferson County Personnel Board, its members and director have utterly failed bo ·take the generally recogni~ed steps necessary to validate such tests or

Ito suspend their use.

VIII

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The civil service law requires the Personnel Director
to certify to the appointing authority {i.e., the City of Birre.ingham) the names of three ranking eligibles for employment in
!a class~~ied position and the appointing authority is then empowered to select one of the three:names so certified. 1940 Code of Alabama as recompiled and amended, Appendix, §662. The Mayor of the City of Birmingham arid his department ~eads exercise this discretion. in a racially discriminatory manner. Illustrative evidence of the effect of this practice is reflect-
.ed in the fact that in filling 473 vacancies in the various departments of the City during the first eleven months of 1973, only 70 (18.97.} of 369 blacks certified to the City of Birmingham were actually appointed by the Mayor and the department heads

of the city.
IX
Bas~d on the most recent federal dicennial census, blacks constitute 42% of the population of the City of Birmingham. The racial composition of the work force of some of the departments of the City as .of June 30, 1973. is reflected in the follow-
ing:

IDe!!a'rtment

% Whites

Finance-Central Administration . 92%

Streets

93%

Police

82%

Fire

99%

% Blacks 8% 7% 8%
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Approximately five percent of the City of Birmingham's classified labor force of nearly 2,300 is black; and of the 721 classified and unclassified blacks employed by the City, 622 (86%) earn less

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than $6,000 annually.
x.
A. Blacks who are somehow fortunate enoug~ to pass the examinations and obtain employment with the City of Birmingham are discriminatorily assigned to certain jobs or duties; harrassed in the performance of their duties; subjected to disciplinary punishment for infractions which are overlooked when committed by whites, or more severe punishments, including discharge, than is received by whites for similar offenses.
B. Moreover, the defendant George Seibels through his department heads ~ubjectively evaluates the performance of black employees for promotional purposes, which serves to disadvantage black applicants for promotion relative to white applicants for promotion, and these s_ubj ective evaluations have not been shown to and do not in fa~~ actually predict job per~ormance.
X!. A. The defendants and t-heir pr-ede.c-es.sors. in _office have liistorically d-iscriminated against blacks in employment with the City of B-irmingham. Prior to 1965, there were no black classified employees of the city; virtually all of the blacks employed by the City of Birmingham were utilized in common-laborer or other menial positions, and they were confined to two or three departments because of their race or color. B. The effects of this ~istoric policy and practice of racial discrim~nation.in employment by the City of Birmingham continue unabated to this date; and these lingering effects are readily apparent in the paucity of blacks ever hired by the City of Birmingham; the preponderanie of blacks in certain departments and in unclassified {i.e., common.laborer) jobs within those re7 spective departments; the discouragement of many qualified blacks from applying for various positions with the City because of historic and· notorious practice of racial discrimination; and the denial of promotions to certified.black employees of the various departments of the City ostensibly on the ground that their seniority is not as great as that of many of their ~bite co-~orkers. The present effects of past discrimination hereinbefore outlined are merely illustrative, and not by any means exhaustive of the current problems occasioned by the historic

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fnct of racial discrimination by the City of Birmingham.
XII.
A. The conditions and practices herein alleged constitutc deprivation of rights secured by the Constitution and laws of the United States. Additionally, defendants are aware of the racially discriminatory practices herein alleged. Nevertheless, the defendants have not remedied the practices herein complained of and have knowingly and intentionally continued them

in effect. B. The defendants have failed to establish an effec-
tive administration system to prevent and to remedy unlawful racial discr~minati~n by the City of Birmingham and the Jefferson

County Personnel Boa~d.
c. The defendant George Seibels, Jr., has failed to
approve an affirmative action program that would overcome the continued racially discriminatory eff~cts of the defendants' practices as set forth herein. On or about December 28, 197~ the said defendant vetoed just such an ordinance enacted unanimously by the City Council of the City of Birmingham, stating that it would have required "preferential hiring" and the hiring of per-
sons not qualified for the job.

XT.ll.
The actions and o~issi~nt of defendants, their agents and employees alleged herein violate the ri&hts of black applicantt, present black employees, and former black employees as secured by the Fo-urteenth Amendment to the Constitution of the United States and Title 42 U.S.C. Sections 1981, 1983, and

2000e et seq. Plaintiffs have no adequate remedy at law. Plaintiffs
have suffered, are suffering, and will continue to suffer irreparable injury as a result of Defendants' discriminatory pr~ctices alleged herein unless and until the relief d~t.anded in this complaint is granted. Neither the City of Birmingham nor the State of Alabama has a law prohibiting the practices herein com-

plained of.

RELIEF PRAYED

WHEREFORE, plaintiffs pray that this Court:

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(a) Issue a declaratory judgment that the emplo: yment

and other practices and conditions set forth above are violative

of the rights secured by the equal protection and due process

clauses of the Fourteenth Amendment to the Constitution of the

United States and Title 42 U.S.C. §§§ 1981, 1983, and 2000e et se .

(b) Issue a preliminary and permanent injunction:

(i) prohibiting the defendants, their successors,

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agents and employees and those acting in concert

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with them from engaging in any of the practices

set forth above or in any other practice shown to

be racially discriminatory or arbitrary and capri-

eious; (ii) prohibiting the defendants from using as conditions or criteria for.employment and promotion tests or other factors which are not professionally · develpped or properly validated and which disqualify or disadvantage a higher propo.rtion of black applicants for hiring promotions than white applicants and officers similarly situated; (iii) · requiring that the defendants immediately award.promoiions to black applicants on the basis of valid, n.on-d iscr iminatory criteria; (iv) requiring the. defendant George Seibels and the City of Birmingham, Alabama to immediately institute an affirmative recruitment, hiring and promotion program to eli•inate the ~ffects of past racially discriminatory practices, including, but not limited to the appointment of not less than
one_qualified black for each white hired until the proportion of blacks in each department of the City reflects their percentage in the City. (v) prohibiting the defendants from discriminating in the administration of discipline on the basis
of race; (vi) requiring the defendants to reinstate, with full back pay and seniority, all black former cmployc~s found to have been discharged, compelled

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to resign, or refusca reinstatement as a result
of their race. (c) Award such other ana further relief as may be

necessary and proper; (d) Allow the plaintiffs herein their costs and

reasonable attorneys' fees; (e) After a prompt hearing of this action according

to law, issue an order retaining jurisdiction of this claim until

such time as this court is assured from the activity of the de-

fendants and their agents that the violations of _rights com-

plained of herein have ceased and are no longer threatened and

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that the effect of past violations have been remedied.

Dated· this -4t·b day of January, 1974

Respectfully submitted,

ORIGUINAL • W,

SIGNED Cl.EMbN

BY• '

U. \4. CLEM ON ADAMS, BAKER & CLEMON
1630 Fourth Avenue, North Birmingham, Aiabama 35203 324-4445

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