NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0695n.06
Case Nos. 16-6349/6835
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

MARILYN JOHNSON, et al., Plaintiffs-Appellees,

v. CITY OF MEMPHIS, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE

BEFORE: SUHRHEINRICH, GIBB ONS, and COOK, Circuit Judges. COOK, Circuit Judge. Some 17 years after th is litigation began, we again find it before us. The City of Memphis (“the City”) asks us to direct that the district court vacate judgment and enter a new one that does not award backpay to a group of plaintiff police officers. Having no cause to vary from the path th e district court took, we AFFIRM.
I. The factual and procedural background unde rlying this litigation has been recited extensively in multiple orders and opinions. A summary follows. In 2000, the City administered a four-part assessment (“the 2000 process”) to determine which patrol officers would be promoted to se rgeant. Upon discovering that the administration of the practical test had been compromised, the City discounted that component entirely and re-Case Nos. 16-6349/6835, Johnson, et al. v. City of Memphis

- 2 - weighed the others. This prompted a group of te st-taking officers who were not promoted to sue the City; they alleged, in part, that the 2000 process was racially discriminatory in violation of Title VII of the Civil Rights Act of 1964. See generally Johnson v. City of Memphis , No. 2:00- cv-2608 (“ Johnson I ”). With Johnson I pending, the district court granted the City leave to develop a replacement officer-to-sergeant promotion process (“the 2002 process”). The 2002 process differed from its predeces sor, but it too spurred litigation. In Billingsley v. City of Memphis , No. 2:04-cv-2013 (“ Billingsley ”), 35 officers who unsuccessfully sought promotion alleged that the 2002 process disparately impacted minority officers in violation of Title VII. And in Johnson v. City of Memphis , No. 2:04-cv-2017 (“ Johnson II ”), 15 Johnson I Plaintiffs who had not been promoted via the 2002 process likewis e alleged a Title VII violation. Following consolidation of Johnson I , Billingsley , and Johnson II , the district court held that the 2000 process violated Title VII and granted the Johnson I Plaintiffs’ motion for partial summary judgment. The court rule d, after a bench trial, that the 2002 proces s likewise violated Title VII, and it fashioned the following relief: (1 ) promotion of “all minority plaintiffs who have not already been promoted to the rank of sergean t within 30 days”; (2) “within 60 days, pay to those plaintiffs thus promoted backpay commensu rate with their having assumed the sergeant rank on the date of their first denial of promotion under eith er the 2000 or 2002 process”; and (3) amendment, within 30 days, of “the employee records of all minority plaintiffs to reflect seniority credit commensurate with their having assumed the sergeant ra nk on the date of their first denial of promotion under either the 2000 or 2002 process.” The court did not enter final judgment at that time.Case Nos. 16-6349/6835, Johnson, et al. v. City of Memphis

- 3 - In February 2007, the court entered a cons ent order providing in relevant part:
1. Pending appeal, the following minority Plai ntiffs will be promoted to the rank of Sergeant and paid Sergeant salary, effective with the payroll period beginning February 3, 2007. . . . 2. Within the next thirty (30) days, the above individuals will be given assignments at the rank of Sergeant. In the event that the Court’s December 28, 2006 Memorandum Opinion and Order is reversed on appeal, Plaintiffs will be returned to the rank of patrol officer. There followed a variety of remedies-related motions for injunctions and st ays. In October 2011, we affirmed a preliminary injunction orderi ng the immediate prom otion of 28 qualifying plaintiffs to the rank of lieutenant. Johnson v. City of Memphis (Johnson Appeal I) , 444 F. App’x 856, 857–58, 861 (6th Cir. 2011). The distri ct court made the injunction permanent shortly thereafter. At last, the district court entered a final judgment in the consolidated cases in March 2013. The judgment awarded backpa y to the three plaintiff groups; the retroactive date for the Johnson I and Johnson II Plaintiffs was July 11, 2000, a nd the retroactive date for the Billingsley Plaintiffs was January 10, 2003. The entry of final judgment brought with it a fresh round of appeals—and a stay of execution of the judgment. Both parties disputed various rulings, with the City cross-appealing only the district court’s order invalidati ng the 2002 process on Title VII grounds and the associated attorneys’ fees award. Johnson v. City of Memphis (Johnson Appeal II) , 770 F.3d 464, 469 (6th Cir. 2014). We reversed the district court’s Title VII judgment invalidating the 2002 process, vacated the district court’s fees award, and remande d for further consideration. Id. at 485. On remand, the Johnson Plaintiffs moved to dissolve the st ay of execution of the district court’s Title VII judgment inva lidating the 2000 promotion pro cess and awarding correspondingCase Nos. 16-6349/6835, Johnson, et al. v. City of Memphis

- 4 - relief. The City sought entry of a new judgment to replace the March 2013 judgment. On May 10, 2016, the district court grante d Plaintiffs’ dissolution motion and declined to enter a new judgment. See Johnson v. City of Memphis , No. 00-2608-STA-tmp, 2016 WL 2733139 (W.D. Tenn. May 10, 2016). Then, on August 4, 2016, the court approved various settlement agreements that resolved Billingsley . The court made clear that its order dismissed with prejudice only the Billingsley Plaintiffs; it noted in conclusion that “[t]he Or ders and Judgment entered in the consolidated cases of [ Johnson I ] and [ Johnson II ] shall remain in effect and are undisturbed by this Order.” Several weeks later, on August 24, the court denied three additional motions. See Johnson v. City of Memphis , No. 00-2608-STA-tmp, 2016 WL 4468861 (W.D. Tenn. Aug. 24, 2016). The Johnson Plaintiffs had moved to enforce the March 2013 judgment against the City, requesting that the court compel the City to depo sit the backpay award into the court’s registry. Finding it had no authority to orde r such relief, the court denied Plaintiffs’ motion. The court also denied the City’s motions to “clarify” th e May 10 order and to “enf orce” the February 2007 consent order. The City appealed the Ma y 10, August 4, and August 24 orde rs. Plaintiffs moved to dismiss the appeal as untimely, but we concluded otherwise. Johnson v. City of Memphis , Nos. 16-6349/6835 (6th Cir. Aug. 15, 2017) (order). We now address the merits of the City’s appeal.
II. A. The City chiefly contends that the district court erroneously failed to vacate the March 2013 judgment in light of our holding in Johnson Appeal II . As the City correctly perceives, we reversed the Title VII judgment as to the 2002 process. Johnson Appeal II , 770 F.3d at 485. ButCase Nos. 16-6349/6835, Johnson, et al. v. City of Memphis

- 5 - because the City did not raise it as an issue, we did not decide the validity of the 2000 process. See id. at 469, 485. Seemingly recognizi ng as much, the City narrows it s claim to allege that the district court “erred by not at least vacating the portion of th e judgment that declared the Johnson
II

and Billingsley Plaintiffs prevailing parties.” 1
The 15 Johnson II Plaintiffs who challenged the 2002 process were also Johnson I Plaintiffs, and all Johnson I Plaintiffs participated in the 2000 process. The dist rict court found that the 2000 process violated Title VII, and the City neve r appealed that ruling. In Johnson Appeal II , we reversed the district court, holding that the 2002 process did not violate Title VII. Id. at 485. But that decision did not alter the 15 individuals’ entitlement to relief based on the unchallenged 2000 process. And there’s the rub for the City: whether an officer was only a Johnson I Plaintiff or also a Johnson II Plaintiff, the officer remained entitled to the relief granted with respect to the 2000 process. As support for its argument, the City notes that the district court grante d attorneys’ fees to the Johnson I Plaintiffs but not the Johnson II Plaintiffs. The City argues that it is therefore “logically inconsistent” to refuse to vacate th e March 2013 judgment but nevertheless find that the Johnson II Plaintiffs were not prevailing parties fo r the purposes of attorneys’ fees. We disagree. It’s true, as the di strict court remarked, “that the Johnson II Plaintiffs did not prevail on any of the causes of action alleged in Johnson II .” That is why the district court declined to award attorneys’ fees to the Johnson II Plaintiffs—they weren’t prevailin g parties in that lawsuit. But that has no bearing on the backpay awar ded due to the 2000 process’s invalidity.

1 As part of their settlement, the Billingsley Plaintiffs waived their claims for backpay and attorneys’ fees. The di strict court granted the parties’ jo int motion to approve the settlement, dismissing the case with prejudi ce. Vacating the judgment in Billingsley is therefore a moot point.Case Nos. 16-6349/6835, Johnson, et al. v. City of Memphis

- 6 - The City additionally presses that the March 2013 judgment bestows a windfall upon the Johnson II Plaintiffs by awarding them backpay for mo re than a dozen years from July 11, 2000, through March 4, 2013. According to the City, this puts the Johnson II Plaintiffs in “the same position as those who earned promotions based on the 2002 results, which this Court declared valid in 2014.” The City’s argument fails to persuade. For one, we agree with Plaintiffs that the City has the backpay period in correct. July 11, 2000, ma rked the date the Johnson I Plaintiffs were first denied a promotion related to the 2000 process. The backpay ending date differed, however, based on when each Plaintiff was promoted—eviden ced by the detailed spreadsheets Plaintiffs submitted to the district court on March 1, 2013, in support of each individual backpay claim. That all Johnson I Plaintiffs were awarded prejudgmen t interest through Ma rch 4, 2013, does not represent a dubious windfall. Nor do we discern an abuse of discretion by the district court in fashioning the backpay awards as it did. See Madden v. Chattanooga City Wide Serv. Dep’t , 549 F.3d 666, 678 (6th Cir. 2008).
B. The City also asks us to remand and ma ndate that the district court return all Johnson II Plaintiffs still employed by the Memphis Police Department to th e rank of patrol officer. Its claim hinges on the parties’ consent order—ente red by the district co urt in February 2007— articulating that “[i]n the ev ent that the Court’s December 28, 2006 Memorandum Opinion and Order is reversed on appeal, Plaintiffs will be returned to the rank of patrol officer.” Given the Billingsley settlement, the district court deni ed as moot the motion as to that group of plaintiffs, and the City does not appeal this decision. As for the Johnson I Plaintiffs named in the agreement, the court found that en forcing the order “would not be appropriate.”Case Nos. 16-6349/6835, Johnson, et al. v. City of Memphis

- 7 - Reviewing de novo the distri ct court’s interpretation of the consent order, National Ecological Foundation v. Alexander , 496 F.3d 466, 476 (6th Cir. 2007) , we have no quarrel with its analysis, restated here: The City’s argument to enforce the agreed order against the Johnson I Plaintiffs is without merit because the Johnson I Plaintiffs prevailed on their Title VII claim as to the 2000 process and the City waived on appeal any challenge to that portion of the Court’s judgment. While the same officers did not prevail on their challenge to the 2002 process in Johnson II , they did prevail on their challenge to the 2000 process in Johnson I and remain entitled to the relief granted for the Title VII violations in the 2000 process. The City’s repeated references to the officers as “ Johnson II Plaintiffs” do not disturb the unassailable fact that these in dividuals also prevailed as Johnson I Plaintiffs. And the City offers no support for its assertion that “[t]he Johnson II Plaintiffs agreed to the order, knowing they could not rely on their success in Johnson I .”
III. For these reasons, we AFFIRM.