Stotts v. Memphis Fire Department

679 F.2d 579, 28 Fair Empl. Prac. Cas. (BNA) 1522

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 7, 1982
• Docket: No. 80-1469
• Status: Published

Opinions

KEITH, Circuit Judge.

On February 16, 1977, Plaintiff Carl Stotts filed a class action alleging that the hiring and promotion policies of the Memphis Fire Department were racially discriminatory. After three years of internecine discovery and over four months of intense negotiations, a consent decree settled the action. The decree was preliminarily approved and subsequently posted for comment on April 25,1980. Neither class members nor the Firefighters Union, the union representative of Memphis firemen, filed objections to the decree. However, two weeks after the court preliminarily approved the decree, eleven non-minority firemen filed a motion to intervene alleging that the decree operated as reverse discrimination against non-minority firemen. After affording the proposed intervenors a hearing, the court rejected the alternative remedial action proffered by the intervenors and ruled that the decree was reasonable. The motion to intervene was denied on the ground that it was untimely. The proposed intervenors appeal. We affirm.

FACTS

On February 16, 1977, Plaintiff Carl Stotts (“Plaintiff”) filed a class action against the City of Memphis, the Memphis Fire Department, and the Director of Fire Services for the City of Memphis (“City”) alleging that the hiring and promotion policies of the First Department were racially discriminatory. During the 18 months following the filing of the complaint, two articles appeared in the Memphis Press-Scimitar which described the Stotts case as an attack on the allegedly racially discriminatory hiring and promotion practices of the Memphis Fire Department. One of the articles was a front page story which reported that discovery in the Stotts case revealed that non-minority firemen had been given “cheat sheets” prior to certain Fire Department promotion examinations.

On December 4, 1979, Plaintiff sought and obtained a temporary restraining order (“TRO”) enjoining the City from making 19 scheduled promotions in the Fire Prevention Bureau. Plaintiff alleged that minorities would be irreparably harmed if the promotions occurred. The promotions would prevent minorities from acquiring the experience necessary to qualify for supervisory positions. The City opposed the motion, arguing that the promotions were necessary for the efficient operation of the Fire Department. The City rejected the idea of creating “acting” or “temporary” positions and stated adamantly, “We do need to make the promotions.” The court granted the motion for the TRO after finding that “there would be irreparable harm if promotions were granted that were not consistent with the rights of plaintiff.” On December 5, a front page article in the Memphis Press-Scimitar described the effect the TRO would have on the Fire Department.

On January 17, 1980, the City appeared before the court and stated that settlement negotiations were continuing. The parties were not able to agree on the terms of a consent decree for several months. Finally, on April 25, 1980, the parties presented the court with a consent decree (“1980 Decree”) which embodied an affirmative action plan. The 1980 Decree contained a minority hiring goal of 50% and a minority promotion goal of 20%. The court preliminarily approved the 1980 Decree and posted it in the fire stations for comment.

Neither the members of the plaintiff class nor the predominantly non-minority Firefighters Local Union 1784 filed an objection to the 1980 Decree. However, on May 12, 1980, eleven non-minority firemen filed a motion to intervene as representatives of all non-minority Fire Department employees. Allegedly, the posting of the decree in the fire stations was the first occasion the proposed intervenors knew that the Stotts case “may be decided against their interests unnecessarily.” The proposed intervenors alleged that the decree’s minority promotional goal caused them to be “victims of reverse discrimination.” The proposed intervenors also alleged:

“There were less burdensome alternatives for relief for minority employees while not shifting discrimination to non-minority employees, i.e., creation of additional positions for promotion, organizational restructuring of the Memphis Fire Department, and/or constructive or front-pay or monetary damages to innocent employees who are adversely affected.”

On May 16, 1980, the district court conducted a hearing to consider the motion to intervene. At the hearing, the proposed intervenors indicated that the only immediate relief they sought was a delay in the approval of the promotion section of the decree. Allegedly, additional discovery and expert analysis were necessary before concrete alternative remedies for the City’s past discrimination could be presented. These alternative remedies would shift the burden of remedying past discrimination from incumbent non-minority employees to the “wrongdoer”, the City.

The court also found that the proposed intervenors had adopted a “wait-and-see” posture with respect to the litigation and ruled that the motion to intervene was untimely. The court subsequently rejected the alternatives proffered by the proposed intervenors and ruled that the 1980 Decree was reasonable. The 1980 Decree was intended to parallel and supplement a consent decree entered in 1974 (“1974 Decree”). The 1980 Decree was similar to the 1974 Decree except that it contained specific hiring and promotion goals. The 1974 Decree did, however, contemplate the imposition of hiring and promotion goals if the City’s efforts to remedy the effects of its discriminatory employment practices were unsuccessful.

TIMELINESS OF MOTION TO INTERVENE

The eleven proposed intervenors sought permissive as well as intervention of right pursuant to Federal Rules of Civil Procedure 24(a) and (b). Rule 24, in pertinent part, provides:

(a) INTERVENTION OF RIGHT.

Upon timely application anyone shall be permitted to intervene in an action ... when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

(b) PERMISSIVE INTERVENTION. Upon timely application anyone may be permitted to intervene in an action ... when an applicant’s claim or defense and the main action have a question of law or fact in common.

An application for permissive or intervention of right must be timely. Fed.R. Civ.P. 24(a) and (b). See NAACP v. New York, 413 U.S. 345, 365, 93 S.Ct. 2591, 2602, 37 L.Ed.2d 648 (1973). Michigan Association for Retarded Citizens v. Smith, 657 F.2d 102, 105 (6th Cir. 1981). If untimely, intervention must be denied. Id. Timeliness is a matter within the sound discretion of the district court. NAACP, 413 U.S. at 366, 93 S.Ct. at 2603; Retarded Citizens, 657 F.2d at 105. Unless this discretion is abused, the court’s ruling will not be disturbed on review. Id. Timeliness is to be determined from all the circumstances. Id.

In Retarded Citizens, Judge Phillips, writing for the court, set forth five factors which are particularly probative in determining whether intervention is timely. The five factors are as follows: 1) the purpose for which intervention is sought; 2) the length of time preceding the application for intervention during which the proposed intervenor knew or reasonably should have known of his interest in the case; 3) the prejudice to the original parties due to the proposed intervenor’s failure after he knew of or reasonably should have known of his interest in the case to apply promptly for intervention; 4) the existence of unusual circumstances militating against or in favor of intervention; and 5) the point to which the suit has progressed. Retarded Citizens, 657 F.2d at 105.

1. Purpose For Which Intervention Was Sought

The first factor the district court considered was the purpose for which intervention was sought. The proposed intervenors’ motion to intervene was motivated by the belief that the promotion section of the 1980 Decree diminished the promotional expectations of non-minorities and constituted “reverse discrimination.” The proposed intervenors sought to delay the implementation of the promotion provisions of the decree until additional discovery and expert analysis could be conducted. The proffered alternatives the proposed intervenors sought to explore were: 1) the creation of additional positions through restructuring the Fire Department; and 2) the payment of compensation to non-minorities whose promotion expectations were diminished by the 1980 Decree. The district court rejected these alternatives as substantively unavailable as a matter of law. We agree.

The district court did not have the authority to restructure the Memphis Fire Department to prevent the 1980 Decree from affecting the promotion expectations of non-minorities. See National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). Moreover, the 1980 Decree is reasonable. Consequently, its operation does not constitute a compensable wrong. See EEOC v. McCall Corp., 633 F.2d 1232, 1238 (6th Cir. 1980); Stotts v. Memphis Fire Department, 679 F.2d 541 (6th Cir. 1982); Setser v. Novack Investment Co., 657 F.2d 962, 970 (8th Cir. 1981). In fact, the 1980 Decree does not harm or adversely affect any legally protected interest of non-minorities. Id. There is no legally cognizable interest in promotional expectations which presumptively could only occur as the result of discriminatory employment practices. See Stotts, 679 F.2d at 558. Consequently, non-minorities are not entitled to compensation. The district court acted correctly in not delaying the implementation of the decree.

2. Knowledge Of Interest In Case

The court also considered the length of time during which the proposed intervenors actually knew or reasonably should have known of their interest in the Stotts action.¹ See, e.g., Retarded Citizens, 657 F.2d at 105, United Airlines, Inc. v. McDonald, 432 U.S. 385, 394, 97 S.Ct. 2464, 2469, 53 L.Ed.2d 423 (1977); Stallworth v. Monsanto, 558 F.2d 257, 264 (5th Cir. 1977). A party must have been aware of the risk that his interest may be affected by the litigation, Retarded Citizens, 657 F.2d at 105, and that his interest may not be fully protected by the existing litigants. See United Airlines, 432 U.S. at 394, 97 S.Ct. at 2469.

The risk that the Stotts action may affect the Fire Department’s promotion procedure was inherent from the outset of the litigation. Plaintiff Stotts filed this class action alleging that the Fire Department’s promotion policies were racially discriminatory. Obviously, a chief objective of the action was to change the promotion policy. An awareness of the action, therefore, was knowledge that the litigation created a risk that the promotion procedure may be affected.

Several newspaper articles published in the Memphis area apprised the proposed intervenors of the Stotts action months before the 1980 Decree was announced. Moreover, the proposed intervenors were aware of the Stotts action and its potential ramifications on December 4, 1979, at the latest. On that date, the TRO issued in the Stotts case enjoined certain promotions within the Fire Department. The TRO alone constituted sufficient notice of the Stotts action and its potential impact on promotions. The notice afforded by the TRO was heightened by the provisions of the 1974 Decree. The 1974 Decree contained provisions which sanctioned the imposition of promotional goals. More importantly, the district court’s finding that the TRO made the proposed intervenors aware of the Stotts action is unchallenged and not clearly erroneous.

The City, an existing party to the litigation, adequately protected the legally protected interest of non-minorities. At the outset of the litigation, the objective of the City was to refute the allegations of discrimination and maintain the status quo. Maintenance of the status quo was consistent with the objectives and the protection of the legally protected interests of non-minorities.

The objectives of the City and some non-minorities may have diverged when the City agreed to a reasonable consent decree which embodied an affirmative action plan. However, the legally protected interests of the City and non-minorities did not. No legally protected interest of non-minorities is adversely affected by a reasonable affirmative action plan.² See Stotts v. Memphis Fire Department, 679 F.2d 541 (6th Cir. 1982); McCall Corp., 633 F.2d at 1238; Setser, 657 F.2d at 970. Non-minorities do not have a legally protected interest in promotions which could only occur as the result of presumptively discriminatory employment practices. See Stotts, 679 F.2d at 558. The City has a responsibility to vindicate a societal interest inherent in Title VII in developing race-conscious affirmative action to eliminate the effects of past discrimination. Id.; Detroit Police Officers Assoc, v. Young, 608 F.2d 671, 690 (6th Cir. 1979) . The City acts in the interest of both minorities and non-minorities, in agreeing to a reasonable consent decree. Detroit Police Officers Assoc., 608 F.2d at 695-96; Talbert v. Richmond, 648 F.2d 925, 931 (4th Cir. 1981). A reasonable consent decree frees minorities from discrimination while simultaneously preventing non-minorities from being victims of reverse discrimination. In fact, cities, particularly those with significant minority populations, increase the effectiveness of their city services when they implement race-conscious affirmative action designed to attain racial diversity in all levels of municipal government. See Detroit Police Officers Assoc., 608 F.2d at 696; Talbert, 648 F.2d at 931.

In the instant case, the court afforded the proposed intervenors an opportunity to air their objections to the 1980 Decree. This is all that the court was required to do given its determination that the 1980 Decree was reasonable. See Metropolitan Housing Development v. Village of Arlington Heights, 616 F.2d 1006, 1014 (7th Cir. 1980) ; EEOC v. American Telephone and Telegraph Co., 556 F.2d 167, 173 (3d Cir. 1977). The city adequately represented the interest of non-minorities when it agreed to a consent decree which the court determined was reasonable.³

3. Prejudice To Original Parties

The prejudice to the original parties due to the failure to intervene after the proposed intervenors knew or reasonably should have known of their interest in the case is the third factor the court considered. See Retarded Citizens, 657 F.2d at 105; Culbreath v. Dukakis, 630 F.2d 15, 21 (1st Cir. 1980). The court considered the effect any delay in the relief afforded by the 1980 Decree would have on the plaintiff class members. The court found that a “good bit of value” would be lost if the implementation of the decree was delayed. Minorities had been virtually excluded from the Memphis Fire Department for decades. The Stotts action was filed in 1977 to correct the effects of the City’s past hiring and promotion discrimination. The relief afforded by the decree had been delayed during the three years of discovery and months of negotiations. The prospect of delaying the 1980 Decree while the proposed intervenors engaged in additional discovery and expert analysis prompted the court to state: “It would be unfair and inequitable to postpone any longer the long overdue relief accorded to the plaintiffs and class members herein by the Consent Decree.” The prejudice which would have resulted from granting the motion to intervene would have been particularly intolerable in the instant case. The alternative relief the proposed intervenors were attempting to pursue simply was not legally available. The district court acted correctly in considering the detriment minorities would suffer if intervention was allowed. See Retarded Citizens, 657 F.2d at 105.

The court also considered the prejudice the City would suffer if the consent decree was not implemented immediately. The City asserted that the TRO previously issued by the court delayed “necessary promotions within the Fire Department.” Permitting intervention would have delayed the necessary promotions even longer. The Fire Department’s ability to function would have been jeopardized by the delay sought by the proposed intervenors. Manifestly, the public interest in efficient, effective firefighting services required that the court act consistent with the rights of parties to eliminate the disability caused by the TRO at the first opportunity. The district court acted correctly in considering the effect the intervention would have on the functioning of the Fire Department. See Harper v. Kloster, 486 F.2d 1134, 1137 (4th Cir. 1973).

4. Unusual Circumstances

The court has continuing jurisdiction to modify the 1980 Decree should its operation become unreasonable. See United States v. Chicago, 663 F.2d 1354 (7th Cir. 1981) (en banc); United States v. City of Miami, 614 F.2d 1322, 1333-34 (5th Cir. 1980), on reh., 664 F.2d 435 (5th Cir. 1981). This is an important, unusual circumstance militating against allowing intervention.⁴ An additional factor which weighed against allowing intervention was the months of settlement negotiations and the three years the case had been pending. The court’s consideration of these circumstances was not error. See Retarded Citizens, 657 F.2d at 105; NAACP, 413 U.S. at 366, 93 S.Ct. at 2603.

Timeliness is a matter within the sound discretion of the district court. See Retarded Citizens, 657 F.2d at 105; NAACP, 413 U.S. at 366, 93 S.Ct. at 2603. Unless this discretion has been abused, the district court’s ruling will not be disturbed on appeal. Id. The district court did not abuse its discretion in ruling that the motion to intervene filed by eleven non-minority firemen was untimely. Judge McRae’s careful and delicate consideration of the factors for determining timeliness was commendable. Accordingly, we affirm the judgment of the district court.⁵

1 . The adequacy of representation analysis adopted in the dissent appears to be based on Judge Garth’s dissenting view in Bolden v. Pennsylvania State Police, 578 F.2d 912, 922 (3d Cir. 1978). In Bolden, the Third Circuit rejected Judge Garth’s view, holding that a government entity acts in the public interest and is presumed to adequately represent the interests of non-minorities when it settles an employment discrimination action with a consent decree. Id. at 918.

Today, we hold that the City adequately represented the interests of non-minorities throughout the pre-1980 Decree negotiation process. The City and Plaintiff developed a reasonable consent decree. Therefore, in this case even if the motion to intervene had been filed timely, the proposed intervenors could have done no more than to develop a reasonable consent decree.

2 . The dissent makes the following assertion: “The majority relies on its earlier conclusion that non-minorities have no interest which could be adversely affected by an affirmative action plan.” This is a gross misstatement of the holding in Stotts v. Memphis Fire Fighters, 679 F.2d 541 (6th Cir. 1982). In Stotts, we simply followed an earlier decision of the court which held that a reasonable affirmative action plan does not adversely affect any legally protected interest of non-minorities. See McCall, 633 F.2d at 1238. A reasonable consent decree is a term of art which indicates that the decree has been judicially sanctioned as a reasonable means to correct the effects of past discrimination. Id.

3 . Even assuming the objectives of the parties and not their legally protected interest is the relevant inquiry, the intervenors’ motion would still be untimely. The risk that the City would not adequately protect the objectives of some non-minorities was evident from the inception of the litigation. The 1974 Decree indicates a willingness to agree to promotional goals. This foreshadowing indicates that any reliance non-minorities placed in the City to not agree to changes in the promotion procedure within the Fire Department was misplaced. Non-minorities should have attempted to intervene when they first became aware of the action, rather than adopting a “wait-and-see” approach toward the Stotts action. Even had the proposed intervenors attempted to intervene at an earlier date, their consent was not required before the consent decree could be entered. A reasonable consent decree does not adversely affect any legally protected interest of non-minorities. See McCall, 633 F.2d at 1238; Stotts, 679 F.2d 541.

4 . The following statement made in the Dissent is imprecise. “Appellants [the proposed intervenors] cannot vindicate their interest in a separate proceeding because the consent decree is immune from collateral attack.” A reasonable consent decree cannot be attacked in a collateral proceeding. However, the court has continuing jurisdiction to modify the decree should its operation become unreasonable in the future. Thus, the proposed intervenors are not absolutely barred from objecting to the 1980 Decree.

5 . The Dissent grossly misstates the facts and holding in Baker v. City of Detroit, 504 F.Supp. 841 (E.D.Mich.1980). The Dissent notes: “Although timeliness was not at issue in Baker, I note that intervention was granted three years after the suit was filed, virtually on the eve of trial.” This assertion is patently false and misleading. In Baker, the complaints were filed in November of 1975. Minority police officers filed a motion to intervene in May of 1978. Trial did not begin until nearly three months later in August of 1978. The motion to intervene was not, as the Dissent implicitly suggests, made on the eve of trial. The dissent also states: “Judge Keith commented: [W]ith the wisdom of hindsight ... [pjerhaps the intervenors should have moved to intervene earlier. However, the plaintiffs suffered no prejudice from this. 504 F.Supp. at 849.” The quote from page 849 of the Baker opinion not only distorts the expressed meaning of the paragraph, but is itself an inaccurate statement of the language of the opinion. The full paragraph from which the quoted language is taken states as follows:

As it turned out, the City defendants, at trial, did present extensive evidence of past discrimination. With hindsight it could be argued that the presence of counsel for intervenors was unnecessary. At the same time, counsel for intervenors did an excellent job at trial. Counsel did not interfere with the presentation of either side’s case. Counsel protected intervenor’s interests, and presented useful additional evidence at trial on the issue of past discrimination. Perhaps the intervenors should have moved to intervene earlier. However, the plaintiffs suffered no prejudice from this.

A fair reading of the paragraph indicates that a motion to intervene filed three months prior to trial is tardy, but not necessarily untimely. Baker cannot reasonably be construed to support the Dissent’s position that a motion to intervene filed two weeks after a consent decree has been preliminarily approved is timely.

Finally, the dissent quotes as follows: “Had black officers or the U.S. Government filed a suit alleging illegal discrimination on the part of the City of Detroit and seeking affirmative relief, it is likely that such a suit would have [been] settled and a consent decree entered. That consent degree would then have been subject to judicial review, after due opportunity for intervention and/or objection by white officers.” This statement was reaffirmed in Stotts v. Memphis Fire Fighters, 679 F.2d 541. In Stotts, we held expressly that “a hearing should be held to enable all individuals who may be affected by the decree to air objections to it.” Id. at 551. The proposed intervenors filed a motion to intervene and object to the 1980 Decree. The trial court afforded them a hearing. During the hearing, the basis for the motion to intervene as well as alternatives to the 1980 Decree were discussed. There is evidence in the record that the alternatives suggested by the proposed intervenors were considered and rejected.

The Dissent also makes much of the fact that the proposed intervenors made hearsay statements that the City agreed to the 1980 Decree at least in part because of the anticipated expenses of trial. One of the advantages of consent decrees is that the expense of trial is avoided. Moreover, the 1974 and 1980 Decrees both state that the desire to avoid the expense of trial was one of the factors which promoted settlement.