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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA, )

)

Plaintiff, ) Civil Action No. 04-4 Erie

v. )

)

CITY OF ERIE, PENNSYLVANIA, )

)

Defendant. )

MEMORANDUM ORDER

McLAUGHLIN, SEAN J., District J.,

Defendant, the City of Erie, has filed a motion to compel the production of

documents relating to a number of individual claimants whom the United States asserts

are entitled to relief under the Consent Decree entered in this case on June 15, 2006. 

This Court has scheduled a fairness hearing to be held on November 20, 2006, at

which time it will address any outstanding objections to the United States’ proposed

awards of relief. The City contends that it needs certain information as to some of the

claimants in order to prepare for the hearing. The United States responds that it has

already provided the City with all of the information to which the City is entitled under

the terms of the Consent Decree. This dispute has raised some issues relative to the

operation of the Consent Decree, which the parties have asked this Court to address.

Boiling the City’s arguments to their essence, the City asserts the following: (1)

that, as for any particular claimant seeking an award of relief, the United States has the

burden of proving at the hearing that the claimant would have been hired if she had

passed the Physical Agility Test (PAT); (2) that, as for any claimant found to be

ineligible for monetary relief following the November 20 fairness hearing, the portion of

the $170,000 Settlement Fund allocated to that claimant must revert to the City; and (3)

that, to the extent any claimant failed the written Civil Service exam administered in

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2002, such claimant is automatically precluded from obtaining any relief, even for prior

years in which she took and failed the PAT. 

As a preliminary matter, we agree with the United States that these disputes are

governed by the terms of the Consent Decree. The Consent Decree was freely entered

into by the parties as a means of avoiding the expense and delay inherent in a fullblown remedies-phase trial. It contains detailed provisions setting forth, e.g., the claims

procedures, the process for raising objections to the Plaintiff’s relief determinations, and

the standards to be used in adjudicating those objections. Accordingly, our analysis

begins there.

Because consent decrees share many of the attributes of contracts, they are

interpreted with reference to traditional principles of contract interpretation. See United

States v. State of New Jersey, 194 F.3d 426, 430 (3d Cir. 1999). Thus, we begin our

analysis with the language of the decree. Id. While the circumstances surrounding the

formation of a consent decree are always relevant to an analysis of its meaning, a court

may not resort to extrinsic evidence unless the decree itself is ambiguous. Id. A

consent decree provision is considered ambiguous only when it is reasonably

susceptible of at least two different interpretations from an objective standpoint. Id. 

Bearing these principles in mind, we turn to the City’s various arguments.

I.

The City insists that, as to any claimant for whom an award of relief is proposed,

the United States bears the burden of proving that the claimant would have been hired

by the City but for its use of the PAT. We agree with the United States that such a view

is contrary to the terms of the Consent Decree. 

Paragraphs 47-55 of the Consent Decree set forth the procedures governing the

determination of individual relief awards. Those provisions establish a period within

which claimants may submit forms indicating an interest in obtaining relief (“Interest in

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Relief forms”). (Consent Decree ¶ 48.) Upon expiration of that period, the United

States must file and serve a Relief Awards List indicating, among other things, the

nature and amount of relief (if any) which the United States has determined should be

awarded to eligible claimants. (Decree ¶ 49.) The United States’ discretion in this

regard is limited only by the mandate that it “shall determine the amount of relief to be

awarded... in a manner that is reasonable and equitable in relation to the Claimant

population and the total amount of the Settlement Fund and that is consistent with the

provisions of this Decree.” (Id.) Thereafter, claimants and/or (with respect to priority

hires) the City may file objections challenging the United States’ relief award

determinations. (Decree ¶¶ 52 and 54.) The Court shall approve the Plaintiff’s Relief

Awards List as submitted, except to the extent the Court may find any objections “wellfounded.” As to monetary awards, the Court shall find that the objection is wellfounded “only if the amount is not reasonable and equitable in relation to the Claimant

population and the total amount of the Settlement Fund.” (Decree ¶ 55.) With regard

to priority hires, the Court shall find an objection (including one made by the City) to be

“well-founded” only “if the objector(s) prove by a preponderance of the evidence that, at

the time she failed the PAT, the Claimant was not qualified for the position of entry-level

police office in the City’s Bureau of Police using the lawful, objective hiring criteria in

use by the City at that time...” (Id. (emphasis added).) 

Thus, the terms of the Consent Decree make the United States’ relief award

determinations presumptively valid except to the extent they are successfully

challenged by an objector. No provision of the Decree imposes upon the United States

the burden of proving that an eligible claimant would have been hired by the City but for

the PAT. In fact, insofar as the City’s right to challenge potential priority hires is

concerned, the Consent Decree places the burden squarely upon the City to prove that

the claimant was objectively ineligible for hire at the time she failed the PAT. In this

regard, the terms of the Consent Decree are consistent with controlling Title VII case

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law. See Intern’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 359 & 361-

62 (1977) (upon proof that the employer has engaged in a pattern or practice of

discrimination, class members are presumptively entitled to relief and the plaintiff need

not prove their qualification).

Indeed, it is the impracticability of determining with certainty which claimants

would have been hired which justified the parties’ use of the shortfall method of

calculating damages in the first place. As we noted at the June 15, 2006 fairness

hearing:

it is impossible to determine with any certain[ty] which claimants would

have been hired but for the City's use of the PAT. This is due both to the

passage of time (in some cases up to 10 years) since the discrimination

occurred and also to the fact that those who failed the PAT were not

permitted to proceed further in the application process. 

***

Nevertheless, the impossibility of pinpointing which claimants would have

been hired in the absence of the PAT does not defeat the United States’

claim for damages. Instead courts have held that, where discrimination

has been established but it is not possible to determine with reasonable

certainty which claimants would have been hired absent the unlawful

practice [it] is appropriate to use a “shortfall” method to calculate monetary

relief. 

(Tr. of 6/15/06 Hrg., at 41-42.) In this case, the parties reached a negotiated

compromise that a shortfall of five (5) hiring positions was appropriate and the amount

of the Settlement Fund was computed accordingly, the $170,000 fund representing an

average of $34,000 in backpay (less mitigation) for each of the five shortfall positions. 

This Court determined that dividing the $170,000 Settlement Fund among all eligible

claimants was appropriate in light of the difficulties inherent in attempting to prove which

claimants would have been hired in the absence of the PAT. (Tr. of 6/15/06 Hrg., at 49-

50.)

As the United States points out, the City was duly represented at the June 15,

2006 hearing and made no objections to the Court’s comments in connection with its

entry of the Consent Decree. Thus, the “context” in which the Decree was entered also

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flatly contradicts the City’s position that the United States must prove, as to any given

relief determination, that the relevant claimant would have been hired by the City absent

the PAT. See State of New Jersey, 194 F.3d at 431-32 (the court’s opinion approving

the consent decree after a fairness hearing and the fact that neither party objected to

the court’s comments constitute part of the “context” of the decree which inform its

meaning). The City’s attempt to impose the aforementioned burden of proof on the

United States is an attempt to rewrite the terms of the Consent Decree which we will not

permit.

II. 

With respect to the award of monetary relief, the United States has asserted that

45 claimants are eligible to share in the Settlement Fund. (See Pl.’s Corrected Relief

Awards List [Doc. # 171, Attachment 2].) The City has objected to every one of these

proposed awards, insisting that none of the individual claimants can demonstrate that

they would have been hired by the City in the absence of the PAT. (See Def.’s Detailed

Obj. to Relief Awards List [Doc. # 167] at p. 5.) Further, the City maintains that, as for

any claimant found to be ineligible for monetary relief following the November 20

fairness hearing, the portion of the $170,000 Settlement Fund allocated to that claimant

must revert to the City. In essence, the City seeks to reacquire the entirety of the

$170,000 Settlement Fund which it agreed to create as a compromise resolution of the

damages phase of this case.

Here again, we find that the City’s interpretation of the Consent Decree is belied

by the document’s express terms as well as the circumstances surrounding its

formation. Paragraphs 20, 25, 58 and 59 collectively provide that the Settlement Fund

shall be the sum of $170,000.00, which the City shall pay out in four annual

distributions at the direction of the United States. (Consent Decree ¶¶ 20, 25, 58, 59.) 

Paragraph 55 states that, to the extent this Court sustains an objection to the United

States’ relief determination, the Court “shall amend [the Relief Awards List] to adjust the

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amount and nature of the relief to be awarded to the Claimants consistent with such

finding, while maintaining, to the extent possible, the proportionate shares of the

Settlement Fund awarded to all other Claimants.” (Id. at ¶ 55 (emphasis added).) 

The City contends that nothing in ¶ 55 compels the Court to redistribute the

monetary awards of disallowed claimants among the remaining ones. We disagree and

find, on the contrary, that the language unambiguously supports the parties’ intent to

have such funds proportionately redistributed among the remaining eligible claimants. 

The City also points to ¶ 64 – which provides that funds remaining in the account sixty

days after the final distribution shall be returned to the City – as “recognizing the

principle” that part of the Fund can revert to the City. This language, allowing

unclaimed or undeliverable funds to revert to the City’s coffers, in no way supports the

City’s proposed interpretation of ¶ 55.

In fact, the City’s proposal that it recapture settlement funds in the case of any

successful objection to a monetary award would defeat the purpose of the parties’

shortfall damages calculation. As we observed at the June 15, 2006 fairness hearing,

the whole point of the $170,000 settlement figure is to fund the five job positions which,

the parties agreed, were presumably lost to female applicants because of the PAT. 

(See Tr. of 6/15/06 Hrg., pp. 48-49.) This Court explained why it is appropriate to

award the class of eligible claimants a “pro-rata” share of this fund:

If it were theoretically possible to determine with certainty whether a

particular applicant[] who failed the PAT would have passed all the other

steps in the City’s selection process and been hired, then only those

applicants who would have actually been hired would be eligible for

monetary relief[.] [A]s we’ve previously observed, however, it is

impossible in retrospect to make such a determination because of the fact

that the City did not allow individuals who failed the PAT to continue on in

the selection process. Under the circumstances, then, it is appropriate to

allow all eligible claimants to have a “pro rata” share in the monetary

award even though each claimants’ [sic] award may wind up being

substantially less than the full value of the police officer job she might

have obtained in the absence of the PAT. Courts have recognized that, in

circumstances such as these, that a “pro rata” approach is “the best that

can be done” for the claimants. ...

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(Tr. at pp. 49-50.) Considering the context in which the Consent Decree was approved

and entered, see State of New Jersey, supra, at 431-32, it is clear that the Decree

contemplates the redistribution of a disallowed monetary award among the remaining

eligible claimants.

The City argues that, if the portions of the fund allocated to ineligible claimants

do not revert to the City, then there would be no point in allowing the City to raise

objections to the Plaintiff’s monetary relief determinations. This statement, while true,

proves the Court’s point because the Consent Decree, in fact, does not permit the City

to raise objections relative to the monetary awards. That right is reserved to aggrieved

claimants only.

Specifically, the Decree contemplates that, subsequent to the United States’

published notice of its relief determinations, aggrieved claimants may register their

objections consistent with the procedures laid out in ¶ 52. Thus, claimants have a

general right to object and are not limited in the type of relief determination that they

may challenge. In contrast, to the extent the City retains the right to object to the United

States’ relief determinations, the Consent Decree contemplates that this right is limited

to objections relating only to priority hires:

If the City disagrees with the United States’ determination that a Claimant

is eligible for consideration for Priority Hire, ... the City shall file with the

Court an objection stating all grounds for the City’s contention that the

Claimant is not eligible for such relief and identifying all documents

relating to the City’s contention and all witnesses with knowledge of facts

supporting the City’s contention. On the same date, the City shall serve a

copy of the objection on the United States along with a copy of all

documents relating to the City’s contention that the Claimant is not eligible

for hiring relief. ...

(Consent Decree ¶ 54 (emphasis added).) In passing upon the merits of an objection

to a priority hire award, the Consent Decree provides that the Court “shall find that any

objection, including any objection made by the City, regarding a Claimant’s eligibility for

consideration for Priority Hire is well-founded only if the objector(s) prove by a

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preponderance of the evidence that, at the time she failed the PAT, the Claimant was

not qualified for the position of entry-level police officer in the City’s Bureau of Police...” 

(Id. at ¶ 55 (emphasis added).) Thus, the City’s right to object is referenced only in the

context of priority hires. No provisions of the Consent Decree expressly or impliedly

give the City standing to object to the United States’ monetary relief determinations. 

This interpretation makes sense in light of our previous conclusion that the Consent

Decree unambiguously contemplates the redistribution of settlement funds among

eligible claimants in the event an objection to a monetary relief award is sustained: the

City has no right to object to a particular monetary relief determination because, except

with respect to ¶ 64 of the Consent Decree (relating to unclaimed or undeliverable

monetary awards) the City is not entitled to recapture any portion of the Settlement

Fund.

In arguing that portions of the Settlement Fund must revert to its coffers, it again

appears that the City is trying to re-write the terms of the Consent Decree which it

negotiated at arms-lengths and voluntarily entered into. Accordingly, the City’s

argument is not well-taken.

III.

The City asserts that the written civil service exam “has always been the primary,

non-discriminatory, rank-ordered selection device for Erie police hiring.” (Def.’s Mot. to

Compel [Doc. # 164] at p. 3, ¶ 8.) Thus, the City posits that, with regard to any claimant

who failed the written Civil Service exam administered in 2002, such claimant is

automatically precluded from obtaining any relief, even for prior years in which she took

and failed the PAT. Further, the City requests that this Court compel the United States

to produce information – including written questionnaires and notes of interviews

generated as part of the Plaintiff’s relief determination process – which the City

believes will enable it to evaluate each claimant’s aptitude and likely success relative to

the written civil service exam. The City submits that it would like to discover, e.g., 

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 In any event, the City never served any interrogatories, requests for production

of documents, or other discovery allowed under the Federal Rules.

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[w]hich, if any, of these applicants has studied criminal justice,

worked in law enforcement or a related field, taken other civil

service tests for public safety jobs, scored well on the SAT’s or

other standardized tests, or otherwise demonstrates a true basis to

extrapolate or assume that she would likely have scored sufficiently

well on the Erie civil service test in the year she failed the PAT to

have been hired?

(Br. in Supp. of Def.’s Mot. to Compel [Doc. # 165] at p. 13.)

There are several problems with the City’s motion to compel. First, to the extent

the City seeks to challenge the United States’ monetary relief determinations, it is

restricted from doing so for the reasons we previously discussed. 

Second, the information which the City seeks to obtain is not called for under the

Consent Decree. We agree with the Plaintiff that the Consent Decree’s discovery

provisions are “part and parcel of the parties’ settlement.” (Pl.’s Mem. in Resp. to Def.’s

Mot. to Compel [Doc. # 168] at p. 22.) Thus, to the extent the City seeks to invoke

Fed.R.Civ.P. 37 in support of its motion to compel, it is the terms of the Consent

Decree, rather than the Federal Rules of Civil Procedure, that define the extent of the

parties’ discovery obligations at this juncture. See Fed.R.Civ.P. 29 (parties are

permitted to modify discovery limits or procedures through stipulation).1 As the United

States observes, the only discovery which the Consent Decree required to be provided

to the City were the Plaintiff’s Relief Awards List and the claimants’ Interest in Relief

forms. The United States has already turned these documents over to the City. 

Moreover, in a letter dated September 20, 2006, the United States provided additional

information to the City explaining the criteria it considered in determining claimants’

eligibility for relief – principally, the claimant’s criminal history, driving record, and (in the

case of 2002 applicants) performance on the written civil service exam. In sum, it

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 To the extent the City contends that any claim ant who failed the written civil service exam in

2002 is automatically ineligible for relief even with regard to a prior year in which the claimant failed the

PAT (and was precluded from taking the civil service exam), this argument is in the nature of an objection

which the Court will address more fully in connection with the November 20, 2006 fairness hearing.

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appears the United States has complied with its obligations under the terms of the

Consent Decree, and the City does not point to any provision of the Decree that would

require the United States to do more.

Third – and most importantly – it appears that the United States is not in

possession of the information which the City seeks to obtain. The United States

represents that the claimant questionnaires, for example, contain no information about

past education, SAT or other standardized test scores, or other background information

(other than the criminal history and driving record information already provided to the

City) that would bear on the claimant’s likely performance on the civil service exam.2

We conclude that the City has not demonstrated grounds warranting an order

compelling disclosure of the information sought in the City’s motion to compel. 

Accordingly, for all the reasons previously set forth,

IT IS HEREBY ORDERED, this 17th day of November, 2006, that the

Defendant’s Motion to Compel Production of Documents Regarding Proposed Relief

Awards [Doc. # 164] is DENIED.

s/ Sean J. McLaughlin

United States District Judge

cm: All counsel of record.

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