Opinion
Nos. 85-T-665-N, 2709-N
April 24, 1998
Robert L. Wiggins, Jr., Ann K. Wiggins, Russell W. Adams, Abigail P. van Alstyne, Kimberly C. Page, and Kell A. Simon, Gordon, Silberman, Wiggins Childs, Birmingham, AL, for Johnny Reynolds, plaintiff, and Cecil Parker, Frank Reed, Ouida Maxwell, Martha Ann Boleware, Florence Belser, Peggy Vonsherie Allen, and Jeffrey W. Brown, intervenor-plaintiffs.
Claudia H. Pearson, Nakamura Quinn, Birmingham, AL, for Robert Johnson, intervenor-plaintiff.
Raymond P. Fitzpatrick, Jr., R. Scott Clark, J. Michael Cooper, Fitzpatrick, Cooper Clark, Birmingham, AL, for William Adams, Cheryl Caine, Tim Colquitt, William Flowers, Wilson Folmar, George Kyser, Becky Pollard, Ronnie Pouncey, Terry Robinson, Tim Williams, intervenors.
Raymond P. Fitzpatrick, Jr., R. Scott Clark, J. Michael Cooper, Fitzpatrick, Cooper Clark, Birmingham, AL, for Michael Grant, John D'Arville, and Andrew McCullough, intervenors.
Lisa W. Borden, Wesley Redmond, Laura Proctor, Wesley Redmond, Jacquelyn Smith, Berkowitz, Lefkovits, Isom, Kushner, Birmingham, AL, Andrew Campbell, Eric Hoaglund, David Loper, Jonathan Walker, Campbell, Walker McCallum, Birmingham, AL, and William H. Pryor, Jr., Attorney General for the State of Alabama, Montgomery, AL, for Alabama Department of Transportation, Alabama State Personnel Department, G.M. Roberts, in his official capacity as Director for the Alabama Department of Transportation, Thomas G. Flowers, in his official capacity as Director of the Alabama State personnel Department, and Don Siegelman, in his official capacity as Governor of the State of Alabama, defendants.
Elaine R. Jones, Norman J. Chachkin, NAACP Legal Defense Fund, New York, NY, for NAACP Legal Defense and Educational Fund, Inc., amicus.
Barbara R. Arnwine, Thomas J. Henderson, Richard T. Seymour, Teresa A. Ferrante, Lawyers' Committee for Civil Rights Under Law, Washington, DC, for The Lawyers' Committee for Civil Rights under Law, amicus.
Mary Beth Martin, Sharon A. Seeley, Civil Rights Division, Employment Litigation Section, United States Department of Justice for the United States
Lisa W. Borden, Wesley Redmond, Laura Proctor, Wesley Redmond, Jacquelyn Smith, Berkowitz, Lefkovits, Isom, Kushner, Birmingham, AL, Andrew Campbell, Eric Hoaglund, David Loper, Jonathan Walker, Campbell, Walker McCallum, Birmingham, AL, and William H. Pryor, Jr., Attorney General for the State of Alabama, Montgomery, AL, for Thomas G. Flowers, in his official capacity as Director of the Alabama State Personnel Department.
ORDER
These two consolidated cases, Reynolds v. Alabama Dep't of Transp., civil action no. 85-T-665-N, and United States v. Ballard, civil action no. 2709-N (previously styled United States v. Frazer, but still commonly known today as `Frazer' or the `Frazer litigation'), are now before the court on the important issue of how to interpret two provisions in a 1970 injunction entered in Frazer. See United States v. Frazer, 317 F. Supp. 1079 (M.D. Ala. 1970) (Johnson, C.J.). These provisions, which were entered in response to evidence that the State of Alabama was unabashedly refusing to hire and promote African-Americans to non-menial positions in State government because of their race, prohibit State officials from by-passing African-Americans in making selections from ranked employment certifications. Paragraphs 2 and 3 of § II of the 1970 injunction, which provisions embody what is now called the `no-bypass rule,' provide as follows:
"2. Negro applicants shall be appointed to positions other than custodial, domestic, laborer or laboratory aide, when said Negro applications are listed on a Certification of Eligibles, unless higher-ranking white applicants on the certificate are appointed to fill the vacancy (or all the vacancies) in the listed position, or unless the defendants determine that the Negro applicant is not qualified to perform the duties of the position, or is otherwise not fit for the position.
"3. Defendants shall not appoint or offer a position to a lower-ranking white applicant on a certificate in preference to a higher-ranking available Negro applicant, unless the defendants have first contacted and interviewed the higher-ranking Negro applicant and have determined that the Negro applicant cannot perform the functions of the position, is otherwise unfit for it, or is unavailable. In every instance where a determination is made that the Negro applicant is unfit or unavailable, documentary evidence shall be maintained by the defendants that will sustain that finding."Frazer, 317 F. Supp. at 1091. In Reynolds, where African-American plaintiffs charged that the Alabama Department of Transportation and the Alabama State Personnel Department had continued to discriminate against blacks despite the 1970 Frazer injunction, the question has arisen as to whether the no-bypass rule applies to any of the following circumstances: the choosing of a white candidate when the white candidate and a black candidate have tied scores; the choosing of a white candidate when the white candidate and a black candidate appear in the same band; the swapping of registers (for example between the open competitive register and the promotional register) to fill a position when, but for the swap, a black candidate would have to be selected off of one or the other of the registers; the reclassifying of an employee to the duties of another position without making a provisional appointment or calling for a new register when, but for this action, an eligible black candidate would have to be selected; and the holding open of positions without calling for a register when, but for this action, an eligible black candidate would have to be selected.
I.
The Reynolds plaintiffs contend that the 1970 Frazer injunction requires the application of the no-bypass rule to tied scores or tied rankings. The first step in their argument is that they admit that the pertinent language in ¶ 3 — "Defendants shall not appoint or offer a position to a lower-ranking white applicant on a certificate in preference to a higher-ranking available Negro applicant" — does not address tied scores or tied rankings. They then argue, however, that the language of ¶ 2 does apply. The language of ¶ 2 — "Negro applicants shall be appointed to positions . . . when said Negro applicants are listed on a Certification of Eligibles, unless higher-ranking white applicants on the certificate are appointed to fill the vacancy" — allowS for the appointment of a white applicant only if the white applicant is "higher-ranking"; a white applicant of `equal rank,' therefore, cannot be appointed. According to the plaintiffs, then, ¶ 2, unlike ¶ 3, has a tie-breaking mechanism, and the remedy in ¶ 3 is essentially a subpart of the remedy in ¶ 2.
See private plaintiffs' brief on Frazer violations, filed November 13, 1997 (Doc. no. 2242), at 2.
See id.
The difference between ¶ 2 and ¶ 3 is, according to theReynolds plaintiffs, consistent with the findings that the court made in support of the 1970 Frazer injunction. Paragraph 2's more stringent requirement — in particular the tie-breaking aspect — excepts "custodial, domestic, laborer or laboratory aide" positions because African-Americans already occupied these positions in some measure; ¶ 2's provision was intended to be limited to, and thus focused on, the historically white positions. In contrast, ¶ 3's less stringent provisions apply to both the more responsible positions which whites had historically held exclusively and the more menial positions which blacks had historically held almost exclusively.
The court rejects the Reynolds plaintiffs' interpretation of ¶ 2 and ¶ 3, and agrees with the reading advanced by the Frazer plaintiff, the United States of America. It is true that, strictly speaking, the Reynolds plaintiffs' interpretation of ¶ 2 would not cause a conflict with ¶ 3 because ¶ 2 would be a subpart of ¶ 3. However, their interpretation would cause a logical inconsistency in other ways. Under the Reynolds plaintiffs' approach to ¶ 2, as stated, the Reynolds defendants could appoint a white applicant only if they determine that a black applicant of equal rank was unqualified or otherwise unfit for the position at issue. Yet, given the plaintiffs' concession that ¶ 3 does not address situations in which white and black applicants are tied, the defendants would not be required to meet the other provisions in ¶ 3 (or, for that matter, any other provisions in the decree), such as that the defendants "have contacted and interviewed," Frazer, 371 F. Supp. at 1091, the tied black applicant before making the finding that the applicant is unfit. Nor would the department be required to meet ¶ 3's other requirement that it maintain "documentary evidence . . . that will sustain that finding." Id. Thus, the decree would provide no easy avenue for verifying and monitoring compliance with what the Reynolds plaintiffs assert is ¶ 2's requirement regarding appointment of equally-ranked black applicants. This was not the intent behind the 1970 injunction, nor is it a plausible reading of the two paragraphs.
See United States' memorandum regarding the application of Frazer/Ballard injunctions, filed December 2, 1997 (Doc. no. 2306), and United States' memorandum in response to Adams intervenors' motions for intervention and clarification/ modification, filed December 29, 1997 (Doc. no. 2363).
Instead, ¶ 2 and ¶ 3 must be read together to apply to thesame positions (that is, all positions other than custodial, domestic, laborer, and laboratory aide) and to prohibit a state agency from selecting a lower-ranking white applicant over a higher-ranking black applicant unless the defendants first contacts and interviews the black applicant, finds the black applicant is unqualified, otherwise unfit, or unavailable for the position at issue, and maintains documentation that will sustain that finding. In other words, ¶ 2 is a general statement of the no-bypass rule, and ¶ 3 sets forth the procedures to implement and to allow monitoring or compliance with that rule. Paragraph 2's prescription, that a state agency may appoint a `higher-ranking' white applicant, is a mirror image of ¶ 3'sproscription against hiring a `lower-ranking' white applicant. Paragraphs 2 and 3 simply do not address equally-ranked applicants.
This interpretation of ¶ 2 and ¶ 3 is supported by the findings the Frazer court made in support of the 1970 injunction. These findings do not indicate evidence of discrimination in selecting between black and white applicants with tied scores or rankings. Rather, the court found that higher-scoring blacks were passed over in preference to lower-scoring whites. See. e.g., Frazer, 317 F. Supp. at 1086 ("Forty-nine Negro applicants . . . were repeatedly passed over for lower-ranking white persons. . . . For a majority of the Negro applicants, the `passing over' was done without an interview or a telephone call."); id. at 1087 ("The evidence is overwhelming that each of the defendants engaged in, and continues to engage in, a systematic pattern and practice of discrimination against qualified Negro applicants for clerical positions . . . by preferring lower-ranking white applicants."). Nor do the conclusions of law in the 1970 injunction mention tied scores. Instead, the Frazer court concluded that, "The defendants' systematic refusal to appoint qualified Negro applicants and their appointment of and preference for lower-ranking white applicants constitute[d] unlawful racial discrimination," and that "the defendants' practice of passing over Negro applicants for lower-ranking white applicants constitute[d] unlawful racial discrimination in violation of the Constitution of the United States." Id. at 1089-90.
Moreover, the 1970 Frazer injunction does not support the Reynolds plaintiffs' assertion that ¶ 3 is a subpart, or lesser included remedy, of ¶ 2. The Frazer court discusses no evidence, and makes no findings, of discrimination against blacks in appointments to custodial, domestic, laborer, or laboratory aide positions. The court did not indicate that higher-scoring black applicants were passed over for such positions. Instead, the court focused mainly on the passing over of blacks in the selection process for positions other than custodial, domestic, laborer, or laboratory aide. Id. at 1086-87. Indeed, the court found that, at that time, the laboratory aide positions were filled entirely by blacks and that the Alabama Department of Public Health placed black employees only in laboratory aide and custodial positions. Similarly, the court found that, as of July 1968, 67 (or over 95%) of the 70 full-time permanent employees employed by various state agencies in custodial, laborer, and laboratory aide positions were black. Id. at 1086. Thus, the findings in the 1970 injunction do not reflect that blacks had been discriminated against in appointments to custodial, domestic, laborer, or laboratory aide positions, and thus there is no support in the order for a no-bypass rule as to these positions.
The Reynolds plaintiffs also contend that the no-bypass rule applies to selections from within bands. The court has concluded that ¶ 2 and ¶ 3 of § II of the 1970 Frazer injunction do not apply to tied scores. It follows perforce that these provisions also do not apply to banded scores, in which the scores within a band are not statistically different.
However, this interpretation of the no-bypass rule in the 1970 Frazer injunction does not necessary leave the Reynolds plaintiffs without a remedy under the 1970 injunction and later orders. To the extent the evidence presented in the Reynolds litigation establishes that the defendants have intentionally discriminated against blacks in selecting from among equally-ranked black and white applicants, the defendants have violated the later injunction entered in Frazer on August 20, 1976, which prohibits the defendants from "engaging in any employment practice, including but not limited to any practice relating to recruitment, appointment, training, promotion or retention, which has the purpose or the effect of discriminating against any employee or actual or potential applicant for employment on the basis of race." United States v. Frazer, 1976 WL 729 (M.D. Ala. Aug. 20, 1976), at *6 (emphasis added). By the same token, to the extent the evidence establishes that the defendants' practices in selecting from among equally-ranked black and white applicants have had the effect of discriminating against blacks, that too would violate the 1976 injunction.
II.
As previously stated, the Reynolds plaintiffs contend that the no-bypass rule also applies to register swapping, reclassifications, and holding positions open. The plaintiffs assert that these practices areper se violations of § IV and ¶ 2 and ¶ 3 of § II of the 1970 Frazer injunction. As previously indicated, ¶ 2 and ¶ 3 prohibit by-passing black applicants by appointing a white applicant who ranks lower on a certificate of eligibles. Section IV provides: "[E]ach of the defendants be and is hereby enjoined from failing to certify Negro applicants whose rank and geographical availability entitle them to certification. If a Negro applicant is omitted from any certification, he shall have a right to the next available position in that classification in the geographical area, subject only to a finding of lack of qualification or fitness." Frazer, 317 F. Supp. at 1092.
Admittedly, each of the above three practices, which the Reynolds plaintiffs contend are covered by the no-bypass rule, circumvent that rule because a request for a certificate of eligibles is avoided or deferred; in other words, these practices circumvent ¶ 2 and ¶ 3 by avoiding their prohibition. Moreover, recognizing that the operation of the no-bypass rule is limited to applicants listed on the certificate of eligibles, the Frazer court attempted, with § IV, to foreclose the most obvious means of avoiding the rule by prohibiting the State Personnel Department from failing to include on a certificate of eligibles any black applicant who should be included based on his or her rank and geographic availability. Nevertheless, while § IV of the 1970 injunction specifically addresses certification when a certificate has been requested and ¶ 2 and ¶ 3 specifically address appointment once a certificate has been requested and issued, the injunction did not specifically require or regulate requests for a certificate of eligibles. Indeed, this loophole in the 1970 injunction was acknowledged by the Frazer court in its 1976 injunction, when the court found that "the evidence [in 1976] reflect[ed] that the new defendant state agencies ha[d] generally avoided compliance with the decrees in this case by examining job registers maintained by the Personnel Department of the State of Alabama and by requesting certificates of eligibility only at times when no blacks were available for certification." Frazer, 1976 WL 729, at *4. However, the court did not then prohibit all such practices. Rather, in the 1976 injunction, the court responded to the State agencies' attempt to avoid application of its decrees by permanently enjoining the defendants from "engaging in any employment practice, including but not limited to any practice relating to recruitment, appointment, training, promotional or retention, which has the purpose or the effect of discriminating against any employee or actual or potential applicant for employment on the basis of race." Id. at *6. Therefore, to the extent that the defendants in Reynolds engaged in these practices with the intent to discriminate, the practices would violate the 1970 and 1976 injunctions against practices which have "the purpose or effect of discriminating against any employee or actual or potential applicant for employment on the basis of race." Id. Moreover, if the practices have had a discriminatory effect, they would violate these injunctions as well, even if no intent had been established.
Accordingly, it is ORDERED that ¶ 2 and ¶ 3 in § II of the injunction entered July 28, 1970, in United States v. Frazer, 317 F. Supp. 1079 (M.D. Ala. 1970), shall be interpreted in the manner set forth in this order.