author: MYRON H. THOMPSON, District Judge.

text:
    Douglas LURNS, et al., Plaintiffs, Arthur Thomas, Plaintiff-Intervenor, v. RUSSELL CORPORATION, Defendant.
    Civ. A. No. 79-113-E.
    United States District Court, M.D. Alabama, E.D.
    Dec. 6, 1984.
    O. Williams Adams, III, Birmingham, Ala., Henry Sanders, Rose M. Sanders, Chestnut, Sanders, Sanders & Turner, Selma, Ala., for plaintiffs.
    Chris Mitchell and Carol Sue Nelson, Constangy, Brooks & Smith, Birmingham, Ala., for defendant.
   ORDER

MYRON H. THOMPSON, District Judge.

This class action lawsuit challenging racial discrimination in employment is before the court on the parties’ joint request for approval of a consent decree. For reasons that follow, the court is of the opinion that the consent decree should be approved.

I.

Over five years ago, present and former black employees of Russell Corporation brought this action pursuant to 42 U.S.C.A. §§ 2000e through 2000e-17 (otherwise known as Title VII of the Civil Rights Act of 1964, as amended) and 42 U.S.C.A. § 1981, alleging race discrimination in a wide range of the company’s employment practices in Tallapoosa County, Alabama. The court certified this as a class action on June 24, 1983. Thereafter, the court learned that the parties had reached a settlement and ordered that they submit the necessary papers.

In early September 1984, the parties submitted a proposed consent decree fully settling all matters of dispute, except the claims of two of the named plaintiffs. The two named plaintiffs opted out of the settlement and their individual claims are set for trial at a later date. The court preliminarily approved the consent decree, pending notice of the proposed settlement to the plaintiff class members and a hearing in this court regarding any objections to the decree.

The parties published notice of the terms of the settlement in the local newspaper and they posted such notice throughout the company mills in Tallapoosa County. The plaintiffs’ counsel also conducted an open meeting for all class members to review the consent decree. Several hundred attended this meeting.

On November 30, 1984, the court held a hearing to consider any objections to the proposed consent decree. Two objections were presented. The first objection, adopted in writing by thirty-six plaintiff class members, concerned the decree’s provision for posting of notices of job openings in Russell Corporation’s mills where class members are employed. Those objecting wished notices to be posted at all mills, not just at the central personnel office and where a given job was available, as the decree provides. The second objection, presented by one plaintiff class member, challenged many if not all of the decree’s provisions. The objector considered inadequate the amount of backpay to be distributed to class members. He also contended that Russell Corporation’s undertakings to assist black-owned banks, businesses and insurance companies were insufficient and asserted that the company should provide scholarships without the compulsion of the decree.

II.

Courts have stated many times that voluntary settlement is the preferred means of resolving class action employment discrimination disputes. See, e.g., Holmes v. Continental Can Co., 706 F.2d 1144, 1147 (11th Cir.1983); Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1215 (5th Cir.1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979). However, it is also well recognized that the class action “settlement process is more susceptible than adversarial adjudications to certain types of abuse. The interests of lawyer and class may diverge, as may the interest of different members of the class, and certain interests may be wrongfully compromised, betrayed, or ‘sold out’ without drawing the attention of the court.” Pettway, 576 F.2d at 1169. Therefore, the “[pjroponents of class action settlements bear the burden of developing a record demonstrating that the settlement distribution is fair, reasonable and adequate.” Holmes, 706 F.2d at 1147.

In assessing the fairness, adequacy and reasonableness of a proposed settlement, a court should consider many factors. Among these is whether the settlement favors one or more named plaintiffs or any other identifiable minority of the plaintiff class. Although there is no rule that a settlement benefit all class members equally, a disparate distribution favoring the named plaintiffs or some minority within the class requires that the court carefully scrutinize whether the settlement on the whole is fair to all members. Holmes, 706 F.2d at 1148. In the present case, two of the named plaintiffs have been allowed to opt out of the settlement, and,a third is to receive $2000 in full settlement of all his claims against the company. None of these three named plaintiffs has a present job with the company. The difference in treatment of these three named plaintiffs does not warrant disapproval of the settlement.

Difference in treatment may be proper as long as it is based on legitimate considerations. Holmes, 706 F.2d at 1148. Such considerations are present here. The proposed consent decree provides for broad and substantial benefits to the class members. These benefits include, among other things, a backpay fund, scholarships, a minority vendor program, and substantially increased opportunities for hiring, training, transfer, and promotion. The two named plaintiffs who opted out have decided to run the risk of litigation rather than receive the certain benefits of settlement; and the third named plaintiff has given up his claim of a job in return for a sum certain. But more importantly, it is apparent from the actions of the plaintiff class members that these three named plaintiffs are not receiving unfair favor. None of the plaintiff class members has objected to or sought treatment similar to what the three named plaintiffs are to receive.

Another factor to be considered in assessing the fairness, adequacy and reasonableness of the settlement is the number of objectors. Pettway, 576 F.2d at 1215. Clearly, only a very small percentage in the present case has objected to the consent decree. Since their objections do not concern the allocation of settlement benefits among class members, “[t]he decision to approve this settlement thus may appropriately be described as an intrinsically ‘class’ decision in which majority sentiments should be given great weight.” Id. at 1217.

A court should also consider “the judgment of experienced counsel for the parties.” Pettway, 576 F.2d at 1215. Counsel here are well acquainted with this litigation, having pursued lengthy settlement negotiations, as well as detailed discovery. They have conducted a hearing on class certification and prepared for trial. They are also experienced with other class-action litigation of this kind. The court thus credits their joint representation that the consent decree constitutes a fair and reasonable outcome of this lawsuit.

Finally, the court should consider the nature and scope of the objections filed. Here, if the company were to meet the needs of those objecting, the members of the plaintiff class would receive more benefits. However, the essence of settlement is compromise. “The parties to litigation may by compromise and settlement not only save the time, expense, and psychological toll but also avert the inevitable risk of litigation.” United States v. City of Miami, Fla., 664 F.2d 435, 439 (5th Cir.1981) (Former 5th en banc). With these considerations as well as the others previously mentioned in mind, this court finds that, even in the face of the objections presented, the consent decree is a fair, adequate and reasonable settlement of this lawsuit.

Accordingly, it is ORDERED that the objections to the consent decree be and they are hereby overruled; and that the proposed consent decree be and it is hereby approved.

APPENDIX A

DOUGLAS LURNS, et al., Plaintiffs,

v.

RUSSELL CORPORATION, Defendant.

CONSENT DECREE

I.

PURPOSE AND SCOPE

The purpose of this decree is to resolve all issues which have been or could have been included within the scope of Civil Action No. 79-113-E. This decree covers and resolves all claims of racial discrimination in hiring, assignments, pay, promotion, transfer, discipline, or discharge by any past or present employee or applicant at any Russell Corporation plant in Tallapoosa County, except for the individual and personal claims of plaintiffs Douglas Lurns and Henry Hall. The decree covers and resolves such claims of racial discrimination based on the Civil Rights Act of 1866 (42 U.S.C. § 1981), the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000e et seq.), and any other federal or state statute, executive order, or regulation prohibiting racial discrimination in employment. By this decree the parties have sought to provide an equitable means of resolving contested issues so as to provide redress for all alleged past discrimination as well as to assure expanded training opportunities for minority employees and fair and nondiscriminatory employment practices in the future.

The central purpose of this decree is to provide this relief and these opportunities without continued resort to costly and time consuming litigation. The continuation of this litigation would be extremely expensive for all parties, and based on the other similar cases this litigation could reasonably be expected to continue for many years before issues of liability or relief are finally resolved. Thus, all parties share a common interest in resolving this litigation now as provided for herein.

II.

JURISDICTION

The Court has jurisdiction under both Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e [et seq.], and the Civil Rights Act of 1866, 42 U.S.C. § 1981, through 28 U.S.C. § 1343.

III.

PARTIES

Plaintiffs Douglas Lurns, Henry Hall, and Lillie Faye Hall are former employees of defendant Russell Corporation and allege that they were discharged because of their race. Additionally, plaintiff Lillie Faye Hall alleges that she was discharged in retaliation for activities engaged in by her husband, Henry Hall, in opposing practices made unlawful by Title VII, and plaintiff Henry Hall alleges that he was denied a promotion because of his race. PlaintiffIntervenor Arthur Thomas alleges that he was not hired because of his race. The class consists of all black persons who have been employed by Russell Corporation or who have applied for employment with Russell Corporation in its Tallapoosa County plants since January 1,1978. Defendant Russell Corporation is an Alabama Corporation with its headquarters and principal place of business in Alexander City, Alabama within Tallapoosa County. Defendant is an employer within the meaning of Title VII. Named plaintiffs Douglas Lurns and Henry Hall have elected to proceed with their individual and personal claims of discrimination. Plaintiff Lillie Faye Hall has met with counsel for plaintiffs and for the class on numerous occasions. On at least four such occasions within the past three months plaintiff Lillie Faye Hall has met with counsel for plaintiffs along with plaintiffs Douglas Lurns and Henry Hall. Lillie Faye Hall has been counseled and understands that her claims of discrimination are waived by this decree and that she will not receive any relief in the form of back pay or reinstatement due to the facts of her individual case.

IV.

DEFENDANT’S CONSENT AND NONADMISSION OF LIABILITY

In accordance with the purposes of the decree as expressed in paragraph I, defendant Russell Corporation freely consents to the entry of this decree and agrees to the relief provided for herein. By doing so defendant does not admit or imply that it has in any way violated any federal or state statute, executive order, regulation or ruling. Rather, the entry of this decree is the most expeditious and cost effective method of resolving all claims between the parties by providing the maximum practicable relief to the plaintiffs and the class consistent with limiting the litigation expenses of both plaintiffs and defendant.

V.

SUMMARY OF THE EVIDENCE

The class issues include allegations of discrimination in hiring, assignments, transfer, promotion and discharge. The evidence reflects that since January 1, 1978, black representation in defendant’s Tallapoosa County work force has equaled or exceeded black representation in the Tallapoosa County SMSA work force. Specifically, from 1978 through 1983, black persons constituted approximately 29.2% of all persons hired. Based on 1970 census data, black representation in the Tallapoosa County SMSA work force was approximately 28%. The same census data for 1980 reflects black representation of approximately 22.3%. Although there is no underrepresentation of blacks in the work force generally, the evidence reflects an underrepresentation of blacks in clerical, technical, and professional jobs which are frequently filled by outside hiring. Discovery failed to reveal, however, any identifiable black applicants with technical and professional skills. To the extent that the evidence showed an underrepresentation of blacks in clerical jobs, the evidence also reflects no significant pay disparity between clerical jobs and the nonclerical hourly jobs to which blacks have been assigned.

As of 1983, the average earnings of black and white employees with equivalent seniority are not significantly different. Stated alternatively, black and white employees hired at or about the same time show no significant difference in average earnings for most of the years analyzed. The evidence does show an underrepresentation of black employees in supervisory jobs in defendant’s plants in Tallapoosa County in light of the extent of black representation in defendant’s Tallapoosa County work force.

The available statistical evidence with regard to discharges shows little disparity between the discharge rates for black and white employees when the statistics are adjusted for “absenteeism” discharges which are largely self determined by the employee. Even without adjusting for absenteeism discharges, the available documentary evidence tends to show that the difference in discharge rates for black employees and white employees is relatively small.

Because of the size of defendant’s Tallapoosa County work force (approximately 6,000 persons employed at any point in time since 1978) and due in part to defendant’s informal decision making and record keeping system, it would be extremely difficult to identify any specific victims of alleged discrimination. The total number of black persons employed by defendant in Tallapoosa County from 1978 to the present is substantially in excess of two thousand. Several thousand black persons have applied for employment during this time, and the total number of black employees discharged since 1978 is in excess of eight hundred. The number of persons promoted or transferred and the race of those persons is unknown because defendant did not keep accurate records of promotions and transfers.

Because of the large number of persons involved, and due to defendant’s lack of records, it would be difficult to identify specific victims of alleged class discrimination. To do so would require the Court to involve itself in a quagmire of individual and subjective determinations that would extend these proceedings contrary to the purpose of the decree and the interests of the parties and the class.

The remedies provided for herein — including changes in hiring procedures, hiring goals for certain types of jobs, special transfer opportunities, promotion and training goals for certain jobs, new promotion and discharge procedures, special supervisory skills training programs with training and promotion bonuses, scholarship programs for black employees and their children, set asides and minority vendor programs, back pay, and other similar remedies — are intended to remedy all types of alleged discrimination affecting the class as certified by the Court, including alleged discrimination in hiring, assignment, transfer, promotion, discipline and discharge.

VI.

GENERAL INJUNCTIVE RELIEF

Defendant is hereby enjoined and restrained from discrimination against black applicants or employees in hiring, initial job assignment, transfers, promotion, discipline or discharge. Black applicants and employees will be treated the same as similarly situated white applicants and employees for all employment purposes, except where a specific provision of this decree requires otherwise.

VII.

HIRING AND INITIAL JOB ASSIGNMENTS

In order to better assure that black applicants are given full and equal consideration for available vacancies in defendant’s plants in Tallapoosa County, defendant agrees that there should be black representation on its interviewing staff. Accordingly, defendant agrees that it will maintain black representation on its interviewing staff at a level equal to black representation in defendant’s Tallapoosa County work force. In measuring defendant’s compliance with this commitment, no question of compliance shall be raised if at least twenty-five percent (25%) of defendant’s full time interviewers are black.

Defendant agrees that the daily vacancy list will be posted at conspicuous places so as to be available for inspection and review by all applicants prior to completing an application. The list will inform all applicants that if they do not wish to apply for any particular job, they may apply for any job available. Defendant’s application form will be modified to provide a space in which an applicant may indicate “Type of Work Desired.” Applicants who indicate that they desire to be considered for clerical, technical or professional jobs will be referred to the appropriate interviewer. The identity of the interviewer will be noted on the application of all persons interviewed.

All interviewers shall receive training designed to familiarize them with the job duties, qualifications, and requirements of the jobs for which they are interviewing. Interviewers shall also receive sensitivity training in equal employment opportunity with emphasis on referring qualified applicants for all job vacancies without regard to race. Special efforts will be made to refer and hire qualified black applicants for available vacancies in clerical, technical and professional jobs. To that end the following goals are hereby established for black representation in these job groups: Clerical — 8.0%; Technical — 10.0%; Professional — 7.0%; Craft (other than mechanics)— 17.0%. These goals are based on the availability of qualified black persons possessing the requisite skills for these jobs as reported by Report 3: Social Indicators For Planning And Evaluation, 1980 Census of Population for Tallapoosa County, Alabama compiled by the State of Alabama Department of Industrial Relations based on data provided by the U.S. Department of Labor, Employment and Training Administration. The goals shall be revised to reflect more accurate availability data should the report be revised. To assist in achieving these goals defendant will make special efforts to recruit qualified black applicants for technical and professional jobs at predominately black institutions such as Tuskegee Institute, Talladega College, and Alabama State University and other state supported universities that have a significant black student enrollment. Progress towards attaining these goals shall be reported as provided for in Section XVI (Reporting Requirements).

Defendant also agrees to set a hiring goal of 10% in filling vacancies for officials’ and managers’ jobs where outside hiring is used to fill these vacancies. It is expected that attainment of this goal will be linked to the scholarship program provided for herein for predominately black institutions of higher learning.

Defendant agrees to engage in college recruiting at predominantly black colleges and to include at least one black employee on its recruiting staff. Defendant agrees to a goal that 22% of its summer hires will be black.

VIII.

TRANSFERS

Defendant will promulgate a written transfer policy that will govern the terms and conditions under which employees will be allowed to transfer from one plant to another. This policy shall be consistently enforced without regard to race. Employees who are allowed to transfer from one plant to another at the employee’s request shall not forfeit their company seniority for purposes of accrual of benefits but shall forfeit their accumulated plant seniority for purposes of competitive bidding and promotion. Employees who transfer from one plant to another at the request of defendant shall not forfeit their company or plant seniority.

Employees in plants 1, 9 and Dadeville who complete three years of service as a sewing machine operator shall be allowed to bid for vacancies in nonsewing jobs within their departments. Vacancies in these nonsewing jobs will be awarded on the basis of plant seniority from among the qualified bidders.

Black employees in plant # 5 shall be given a one time opportunity to sign up for transfer to any plant for any job for which they are qualified or can become qualified through on the job training within a reasonable time. Those who elect to transfer under this one time opportunity shall receive the next vacancy in the job to which they elect to be transferred, provided that they have more company seniority than the most senior person bidding for the vacancy under the job posting and bidding system. Employees transferring under this provision shall retain all accumulated seniority for all purposes.

Defendant agrees that it will give black employees in Tallapoosa County a one-time opportunity to apply for consideration to be transferred to clerical jobs. Defendant will review the qualifications of those who apply and will establish a list of persons qualified to transfer to available clerical vacancies. Persons on this list shall be entitled to transfer to available vacancies on the basis of their company seniority. Defendant agrees that until such time as the goal for clerical representation set in paragraph VI is met, at least 25% of all clerical vacancies will be filled from this transfer list. Once the goal for clerical representation set in paragraph VI is met, this special transfer right shall end and the terms and conditions of defendant’s normal transfer policies will apply to requests for transfer to clerical jobs.

IX.

PROMOTIONS — HOURLY JOBS

Defendant agrees that 33V3% of the employees selected to attend new fixer training schools (not fixer retraining) will be black.

Defendant agrees that qualified black employees shall be promoted to fill at least one of every three vacancies in mechanic’s jobs until such time as black representation in such jobs equals 25%.

Defendant further agrees that the job posting and bidding system will be implemented in all plants in Tallapoosa County.

X.

PROMOTIONS — SUPERVISORY JOBS

Defendant agrees that it will develop written criteria and qualifications for promotion to each first level supervisory job in its plants in Tallapoosa County. In developing these criteria and qualifications defendant will take into consideration such factors as disciplinary and attendance record, technical or job knowledge, and leadership ability. Disciplinary record shall not be taken into account if the employee has received no disciplinary warnings in the twelve-month period preceding the employee’s application for a supervisory vacancy. The criteria and qualifications for promotion shall be posted on all plant bulletin boards for all -first level supervisory jobs within each plant. Periodically, and at least semiannually, defendant will post notices advising all employees of actual or anticipated first level supervisory vacancies within the plant. Interested employees within the plant shall be given an opportunity to apply for any first level supervisory vacancies. In applying for these jobs the employees will be given an opportunity to state in writing their qualifications and experience which they feel qualify them for promotion. When vacancies occur in first level supervisory jobs and when defendant determines that the vacancy shall be filled by promotion from within the ranks of hourly employees in the plant, the selection shall be made by choosing the best qualified person from among those who have applied for the vacancy. Each applicant shall be rated on the criteria and qualifications for the job in question; and the selection shall be made without regard to race, subject to the requirements of paragraph XI of this decree. The ratings and selection decision shall be made by a committee of three persons, including a representative of the personnel department, a supervisory or managerial employee from within the plant where the vacancy occurs, and the operating vice president of the area where the vacancy occurs or his designee. Until such time as black representation in first level supervisory jobs equals 25%, each selection committee shall contain a black representative.

XI.

DISCIPLINE AND DISCHARGE

In administering its discipline and discharge policy defendant shall follow the following steps:

(1) When any supervisor feels that the penalty of discharge is appropriate, the supervisor shall so notify the affected employee and at the supervisor’s discretion either suspend the employee or allow the employee to continue working pending investigation of the circumstances surrounding the employee’s actions.
(2) The supervisor shall report the matter to the personnel department. A representative of the personnel department shall conduct a preliminary investigation and thereafter shall meet with the employee. The representative of the personnel department shall inform the employee of the nature of the charges and shall give the employee an opportunity to present any facts, including the names of any witnesses, in the employee’s defense.
(3) The representative of the personnel department shall then conduct such an investigation as is necessary to determine the merit of the charges against the employee, and shall decide the appropriate discipline, if any, for the offense. If the employee is dissatisfied with the decision, the employee can appeal to the Review Board.
(4) In the event of an appeal, the information and evidence developed in the investigation shall be presented to a Review Board consisting of a representative from the personnel department (other than the person investigating the matter), a representative from the management of the plant where the employee worked (other than the accusing supervisor) and the operating vice president of the area or his designee. Each Review Board shall contain a black representative.
(5) The employee shall be entitled to appear before the Review Board and make any statement on his behalf but may not otherwise participate in the proceedings of the Review Board.
(6) The Review Board shall consider:
(a) whether the employee had adequate notice that this conduct, if engaged in, would result in discipline;
(b) the facts of this particular case, including mitigating or extenuating circumstances;
(c) the level of responsibility associated with the employee’s job, i.e., the less responsible the employee’s job the more specific the offense should be to sustain discipline;
(d) the employee’s length of service;
(e) action taken in similar past cases.

The Review Board shall render its decision based on these factors; and where the decision is to discharge an employee, the Review Board shall give a brief written statement of the reasons for its decision.

XII.

SUPERVISORY SKILLS TRAINING COURSE TRAINING BONUS — PROMOTION BONUS

Defendant will sponsor and fund a supervisory skills training program to be conducted by the Alexander City Junior College in conjunction with Tuskegee Institute. The course shall consist of instruction in management principles (such as motivation, leadership, problem-solving), employee relations and EEO, industrial engineering, business economics, and orientation in Russell Corporation policies and operations. Entrance to the program shall be limited to between twenty and twenty-five employees per class with no less than two classes per year. At least fifteen vacancies in each class will be reserved for qualified black employees, to be selected by the program administrator from among competing applicants based on qualifications, seniority, and apportionment among defendant’s plants. Other factors being relatively equal, the program administrator shall give preference to applicants who were hired prior to January 1, 1978. All employees will be notified of the existence of the program and of the fact that satisfactory completion of the program will entitle the employee to preferential consideration for promotion to supervisory vacancies. Defendant will pay for all expenses incurred for tuition, books, supplies, or other required course materials for black employees attending the program, provided that any employee who voluntarily drops out of the program prior to completion shall repay defendant for all monies expended on the employee’s behalf. Defendant may make reasonable deductions from the employee’s pay to recover these monies. Black employees who successfully complete the training program shall be entitled to preferential consideration for vacancies filled in accordance with the procedures set forth in paragraph IX of this decree. For the first year after final approval of this decree, qualified black employees shall be promoted to fill at least one of every three such vacancies. Thereafter qualified black employees shall be promoted to fill at least one of every two such vacancies until such time as black representation in first level supervisory jobs equals 25%. Black employees hired prior to January 1, 1978 who successfully complete the training program between the date of this decree and the date that black representation in first level supervisory jobs equals 25% shall be entitled to a training bonus of $500.00 upon completion of the program and $500.00 to be paid six months later provided that the employee is still employed with defendant. Black employees hired since January 1, 1978 who successfully complete the training program between the date of this decree and the date that black representation in first level supervisory jobs equals 25% shall be entitled to a training bonus of $175.00 upon completion of the program and $175.00 to be paid six months later provided that the employee is still employed with defendant. Black employees promoted to first level supervisory jobs between January 1, 1978 and the date that black representation in first level supervisory jobs equals 25% shall be entitled to a promotion bonus of $1,000.00 to be paid after six months of satisfactory performance in the supervisory job. Black employees hired prior to January 1, 1978 and who successfully complete the supervisory training program but who have not been promoted to a supervisory job within three years after completion of the program shall receive $1,000.00 at the end of the three year period. Defendant’s obligation to pay tuition and expense reimbursements and to pay promotion and training bonuses shall cease whenever black representation in first level supervisory jobs equals 25% or whenever the monies spent by defendant under this section equals $700,000.00, whichever comes first.

XIII.

MINORITY VENDOR PROGRAM

(SET ASIDES)

The remedies set forth below take the form of “set asides” for minority business enterprises, and this form of relief is based on the assumption that black persons unlawfully terminated or rejected for hire are likely to be either presently working for minority business enterprises or are potential applicants for employment with such enterprises. Thus, by providing expanded business opportunities for minority business enterprises through “set asides”, defendant is directly and indirectly expanding and promoting the employment opportunities of black persons no longer on its payroll, including terminated employees and rejected applicants.

Defendant will establish an ongoing relationship with the State of Alabama’s agency for developing minority business enterprises. The purpose of this relationship is to establish a minority vendor’s program under which defendant will purchase 20% of its purchases in each of the following categories — (1) plant supplies; (2) construction materials; and (3) office supplies— from minority business enterprises that can supply these services and supplies at a price, quantity, quality, service and delivery time otherwise available to defendant.

Defendant agrees that it will have a banking relationship of one million dollars with an Alabama bank having substantial or majority ownership by minorities. This relationship may include a combination of loans and deposits.

Defendant agrees that at least ten million dollars of insurance coverage under its group life insurance program will be placed with minority firms in Alabama.

Defendant agrees that it will contribute $250,000.00 towards establishment of a MESBIC (Minority Enterprise Small Business Investment Corporation) program or similar privately administered program. The MESBIC will be governed by a Board of Directors that shall have black representation.

In meeting its commitments under this paragraph of the decree defendant need not pay more for the goods or services in question than the price available to defendant from other sources, but price being equal, defendant will give preference in the purchase of these goods and services to minority business enterprises to the extent stated. Defendant further agrees that there will be minority participation in the establishment and implementation of this program.

XIV.

SCHOLARSHIP PROGRAM

Defendant agrees that it will commit to provide $100,000.00 per year for the next ten years for scholarships to deserving students at Tuskegee Institute, Talladega College, Selma University and Alabama State University. Black employees, their spouses or their children shall be given preference in awarding these scholarships, which shall be known as Russell Corporation Scholarships. Each scholarship recipient shall receive a maximum of $1,500.00 per year to be applied towards expenses relating to tuition, books, and necessary course work supplies. Defendant agrees that it will offer summer employment to ten students per year from these institutions in order to encourage students from these institutions to accept full time employment with defendant upon graduation.

Defendant agrees that it will establish a Cooperative Program with Southern Tech in apparel engineering. Under this program employees will work with defendant for six months and attend Southern Tech for six months. At least 25% of the employees selected for this program shall be black.

XV

BACK PAY

Defendant agrees to contribute $250,-000.00 to a back pay fund to be distributed among present and former black employees on the following basis: Each black employee or former employee who (1) has at least two full years of service and (2) has at least one full year of continuous service since January 1, 1978 shall be entitled to receive back pay from the fund. Each eligible person shall receive one credit point for each full month of service with defendant during their last continuous, unbroken tenure with defendant. The total number of points so awarded will be divided into $250,000.00 to determine the monetary value of each credit point. To be eligible for an award of back pay class members must file a claim form with the clerk of the Court on a form approved by the parties and the Court. The Court will set a deadline for filing back pay claims. Upon expiration of the deadline defendant shall review the claims to determine whether all claimants meet the eligibility requirements set forth above. Defendant will then prepare and deliver back pay checks to each eligible person in the back pay class as defined above. Any returned or unclaimed checks shall be retained by defendant for a period of two years. Any monies remaining in the back pay fund at the end of two years shall be contributed to the scholarship program in addition to the monies set forth in paragraph XIII.

XVI.

REPORTING REQUIREMENTS

At six months and one year after final approval of this decree, defendant shall prepare a report stating in detail the steps taken by defendant to implement the provisions of this decree. Each year thereafter for four (4) years defendant will prepare a report stating the actions it has taken towards achieving each goal set forth in the decree, including all monies spent for scholarships, set-asides, training courses, and promotion bonuses. The report shall cover transfers, promotions, and discharges. All reports shall be submitted to counsel for plaintiffs and the class.

In addition, an annual audit shall be performed each year for four years following implementation of the decree. The audit shall be conducted by a minority consulting firm retained by defendant for this purpose. The audit shall consist of a review of the overall EEO posture of defendant, and upon completion of the audit, the consulting firm shall prepare a written report, a copy of which shall be provided to counsel for plaintiffs.

XVII.

DURATION

This decree shall continue in full force and effect until dissolved by further order of the Court.

XVIII.

NOTICE TO CLASS MEMBERS

Copies of this decree and any orders preliminarily approving the decree , shall be posted on the bulletin boards of each plant in Tallapoosa County for at least one month. Copies of the decree and any orders preliminarily approving the decree shall also be published in the Alexander City Outlook for four consecutive weeks.

XIX

NAMED PLAINTIFF RELIEF

Plaintiffs Henry Hall and Douglas Lurns have elected to litigate their personal and individual claims of discrimination and thereby to pursue whatever relief is available to them. Defendant shall pay plaintiff Arthur Thomas the sum of $2,000.00 in full settlement of any and all claims he may have against defendant. Plaintiff Lillie Faye Hall waives and releases any and all claims that she may have against defendant.

XX

ATTORNEYS’ FEES AND EXPENSES

Defendant agrees to pay the attorneys for plaintiffs and the class a reasonable attorney fee. In the event the parties are unable to agree on a reasonable fee, this issue shall be presented to the Court for resolution.

SIGNATURES AND APPROVAL

The provisions of this decree are agreed upon and consented to by the parties by and through their respective counsel.

FOR THE PLAINTIFFS:

/s/ Oscar W. Adams, III

Oscar W. Adams, III

/s/ Rose M, Sanders

Rose M. Sanders

FOR DEFENDANT:

/&/ Chris Mitchell

Chris Mitchell

/s/ Thomas H. Keene

Thomas H. Keene

The Court, having determined that the provisions of this decree represent a fair, adequate and reasonable compromise of the issues contested herein, does hereby approve this decree and orders that its provisions be implemented forthwith. The clerk of the court is DIRECTED to notify counsel by telephone.

Done this 6th day of December, 1984.

/s/ Myron H. Thompson

United States District Judge

       See Appendix A.


source: Caselaw Access Project

license: Public Domain

text:
    Lois JOHNSON, etc., Plaintiff, v. MONTGOMERY COUNTY SHERIFF’S DEPARTMENT; et al., Defendants.
    Civ. A. No. 82-717-N.
    United States District Court, M.D. Alabama, N.D.
    Jan. 8, 1985.
    Joan Van Almen, Montgomery, Ala., for plaintiff.
    Robert C. Black, Hill, Hill, Carter, Franco, Cole & Black, Montgomery,' Ala., for Class Members Gayle, Hatfield, Stovall, Hidle, Chambliss, Robinson, Burrows and Jenkins.
    Henry C. Chappell, Jr., Rushton, Stakely, Johnston & Garrett, Montgomery, Ala., for defendants.
   ORDER

MYRON H. THOMPSON, District Judge.

This is a class action lawsuit alleging sex discrimination in employment at the Sheriffs Department of Montgomery County, Alabama. The cause is now before the court on the parties’ joint request for approval of a proposed settlement. The court concludes that approval is warranted.

I.

Named plaintiff Lois Johnson, a female deputy sheriff in Montgomery County, brought this, lawsuit pursuant to 42 U.S. C.A. §§ 2000e through 2000e-17, known as Title VII of the Civil Rights Act of 1964, as amended. Johnson alleged sex discrimination in a wide range of employment practices. On September 12, 1983, the court certified the cause as a class action according to Fed.R.Civ.P. 23(a) and (b)(2). The court’s memorandum opinion regarding class certification described the plaintiff class, the defendant Sheriff’s Department and Johnson’s allegations in detail.

Some time after class certification, the court learned from counsel that they had agreed on a proposed settlement and so ordered that they submit necessary settlement papers. The court provisionally approved the parties’ joint order and decree on October 16, 1984. The parties then notified plaintiff class members of the proposed settlement. On January 4, 1985, the court held a hearing regarding the proposed settlement. Eight plaintiff class members presented a single joint objection at this hearing.

The proposed settlement provides for widespread, specific opportunities for present and prospective female employees of the Sheriffs Department. The department offers to change its job descriptions and advertising efforts to recruit more women. It promises new hiring policies, subject to class approval, and commits itself to hiring women for the next six available positions and thereafter by a one-third ratio until twenty-five percent of deputy sheriffs are women. Similarly, the department will propose new promotion policies, subject to class approval, and reevaluate a previous promotion round in order to give female employees another, better chance; evidence of adverse impact against women will trigger further action with a possible court role. Finally, the proposed settlement provides detailed safeguards for equal treatment of women in job and shift assignments and transfers. In all areas, the department binds itself to federal guidelines and ongoing consultations with class counsel.

In addition to these class-wide provisions, the proposed settlement offers individual compensation to all class members. Two class members are to be promoted, including the named plaintiff with back pay. The other class members are to receive varying shares of a monetary fund.

The single objection to the proposed settlement concerned the allocation of this monetary fund. Those objecting questioned the basis of the allocation. By written response and a statement at the hearing, class counsel explained that the allocation was based on her calculation of certain factors in each individual case. These factors included: the history of alleged sex discrimination in the Sheriffs Department, worse in recent years in her judgment; class members’ tenure in and, if applicable, date of departure from the department; class members’ efforts to attain promotion; the department’s steps in giving class members additional responsibility without promotion or compensation. For their part, those objecting stressed that they did not challenge, but supported the proposed settlement as a whole.

II.

Courts have stated many times that voluntary settlement is the preferred means of resolving class action employment discrimination disputes. See, e.g., Holmes v. Continental Can Co., 706 F.2d 1144, 1147 (11th Cir.1983); Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1215 (5th Cir.1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979). However, it is well recognized that the class action “settlement process is more susceptible than adversarial adjudications to certain types of abuse. The interests of lawyer and class may diverge, as may the interest of different membérs of the class, and certain interests may be wrongfully compromised, betrayed, or ‘sold out’ without drawing the attention of the court.” Pettway, 576 F.2d at 1169. Therefore, the “[pjroponents of class action settlements bear the burden of developing a record demonstrating that the settlement distribution is fair, reasonable and adequate.” Holmes, 706 F.2d at 1147. At issue are the equities between the parties, as well as among the plaintiff class members. In re Chicken Antitrust Litigation, 669 F.2d 228, 238 (5th Cir.1982) (Unit B).

Here, no one contends that the proposed settlement is in any way inequitable as between the Sheriffs Department and the plaintiff class, nor would there appear any basis for such a contention. As described, the proposed settlement offers class members impressive opportunities in all employment areas. These are not vague avowals of good faith, but concrete commitments to specific measures. In addition, although the proposed relief is primarily class-wide and injunctive, every class member is to receive some individual compensation by promotion or remuneration.

The sole objection to the proposed settlement concerns the equities among the plaintiff class members, and this only as regards the less significant individual compensation, not the class-wide injunctive relief. The objectors have questioned the basis of the allocation of the monetary fund. They have maintained their objection after class counsel explained the basis of the allocation, though they stressed that they did not wish to upset the overall settlement.

In assessing a proposed settlement such as this, “[t]he trial court is entitled to take account of the judgment of experienced counsel for the parties.” Pettway, 576 F.2d at 1215. “If the attorney’s decision in the face of such disagreement [among the class members] affects each class member more or less equally, and no allegation is made that the rights of a definable minority group within the class were sacrificed for the benefit of the majority, the attorney’s views must be accorded great weight____” Id. at 1216. Even where there is a “disparate distribution” favoring the named plaintiffs, “[t]he inference of unfairness may be rebutted by a factual showing that the higher allocations to certain parties are rationally based on legitimate considerations.” Holmes, 706 F.2d at 1148.

Here, the allocation of the monetary fund does not sacrifice the rights of a definable minority. The objectors have shown no criterion that class counsel may have applied to single them out for smaller shares. In fact, several of the objectors are to receive greater shares than others not objecting. That class members receive different amounts of course is not necessarily unfair. Equal shares are as suspect as unequal ones since class members are rarely identical.

It would appear that the named plaintiff Johnson is to receive greater compensation than other class members. Although her monetary award consists of back pay in conjunction with her promotion to sergeant, rather than the straightforward award going to most other class members, she nevertheless will receive more than the only other class member to be promoted who gets no back pay, and the amount of her back pay award is significantly greater than any straightforward award. However, even applying the “careful judicial scrutiny” appropriate to a disparate distribution favoring the named plaintiff, the court sees no reason to disapprove the proposed settlement.

The court’s concern that Johnson disproportionately benefits from the proposed settlement is dispelled first because no one objects to her individual compensation. At the hearing, the objectors made clear that they did not challenge Johnson’s share. Second, individual compensation of class members is a minor aspect of the overall proposed settlement. Any extra benefit to Johnson is thus minimal overall. Third, class counsel stated that she calculated the allocation of individual compensation entirely on her own without Johnson’s active participation and only sought her subsequent approval.

These same considerations also satisfy the court that the proposed settlement is fair, reasonable and adequate as regards the proposed allocation of the monetary fund among the other class members. The most significant feature of the proposed settlement is class-wide injunctive relief. There is no allegation or evidence of collusion between class counsel and those class members receiving greater shares. Finally, the sole objection is quite narrow and limited. See Women’s Committee for Equal Opportunity v. National Broadcasting Co., 76 F.R.D. 173, 181-82 (S.D.N.Y.1977).

Most importantly, class counsel has shown that the allocation is “rationally based on legitimate considerations” such as would satisfy even the strictest scrutiny. Holmes, 706 F.2d at 1148. As described, class counsel explained her use of several factors in calculating the allocation. All these factors appear legitimate, and there are also no glaring omissions. Furthermore, class counsel stated that she examined the individual personnel files of all class members and spoke to many of them. Thus, unlike other counsel, she had considerable knowledge of the class members’ individual claims. See Holmes, 706 F.2d at 1150. Since class counsel is experienced and able and, according to the court’s observations, has prosecuted this lawsuit aggressively and diligently, the court credits her calculation of the allocation and her representation, joined by the defendants’ counsel, that the proposed settlement is fair, reasonable and adequate.

While not wishing to upset the proposed settlement entirely, the objectors did propose an alternative allocation of the monetary fund. They suggested splitting the fund, which again does not include Johnson’s back pay award, on a per capital basis. Of course, “[cjourts are not permitted to modify settlement terms or in any manner to rewrite the agreement reached by the parties.” Holmes, 706 F.2d at 1160. However, the court notes that, were it to disapprove the proposed settlement and the parties to renegotiate another settlement that included the objectors’ alternative allocation, the greatest increase in compensation that any class member would receive Í-would be about two hundred thirty dollars. Such a result would by no means be assured, since the parties might not manage to reach another settlement, and the plaintiff class might lose some of the valuable injunctive relief that the present proposed settlement provides.

Settlement saves “not only ... the time, expense, and psychological toll but also avert[s] the inevitable risk of litigation.” United States v. City of Miami, Fla., 664 F.2d 435, 439 (5th Cir.1981) (Former 5th en banc). The court is not prepared to subject the parties to such risk because of a minor monetary disparity when the proposed settlement offers the plaintiff class so much more than money.

Accordingly, it is ORDERED that the objection to the proposed settlement be and it is hereby overruled, and that the proposed settlement be and it is hereby approved.

APPENDIX A

CONSENT ORDER AND DECREE

This action, filed on October 12, 1982, was brought by plaintiff Lois Johnson and on behalf of all past, present, and future female deputy sheriffs of the Montgomery County Sheriffs Department, and all present and future female applicants, alleging a pattern or practice of sex discrimination in employment in the Montgomery County Sheriff’s Department, (hereinafter referred to as “defendant.”) Plaintiff contends that defendants’ alleged discriminatory conduct is in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq.

Defendants Montgomery County Sheriff’s Department, Mac Sim Butler, Willie McKitt, R.E. Singleton, and Calvin Huggins are defendants only in their official capacities as Sheriff or supervisory employees of the Sheriff and not in their individual capacities. Defendants deny that the named plaintiff or the class she seeks to represent have been discriminated against on the basis of sex in regard to recruitment, hiring, promotions, job conditions or otherwise in violation of Title VII.

On September 12, 1983, the court ORDERED, ADJUDGED and DECREED that the action be maintained and proceed as a class action, pursuant to Rule 23(b)(2) and defined the class as consisting of all past, present, and future female deputy sheriff employees of the Montgomery County Sheriff’s Department and all present and future female applicants for this position in the department.

WHEREAS plaintiff and defendants have taken extensive discovery and have had the opportunity to evaluate the respective positions;

WHEREAS plaintiff and defendants consent to the entry of this decree on the grounds that it will further the objectives of the aforementioned act, resolve the matter without time and expense of further litigation, and fully protect the interests of all the class members and defendants;

WHEREAS plaintiff and defendants further agree that this decree is not evidence of or premised upon a finding of systematic discrimination against plaintiff and class members.

NOW, THEREFORE, prior to the trial of this action and without the adjudication of law and fact herein and without this decree constituting evidence by either party as to any issue of fact or law herein, and upon consent of the parties hereto, it is hereby ORDERED, ADJUDGED and DECREED as follows:

I. GENERAL PROVISIONS

1. This court has jurisdiction over the subject matter of this action and the parties hereto. The complaint states claims upon which relief may be granted under 42 U.S.C. § 2000e et seq.

2. The requirements of Rule 23 of the Fed.R.Civ.P. have been satisfied with the plaintiff Lois Johnson representing the class consisting of all past, present and future female “Deputy Sheriff” employees and all present and future female applicants. The department stipulates that this plaintiff also represents a class of future applicants for Correctional Officer, which is, at this time, an unclassified position.

3. This court specifically finds that the entry of this decree is in furtherance of the objectives of the Equal Employment Opportunity Act of 1972, and 42 U.S.C. § 2000e et seq., and protects the rights of all interested class members. The court further finds that the class has been adequately represented by plaintiff and her attorney. The Montgomery County Sheriffs Department, its agents, officers and employees and all persons in active concert or participation are hereby enjoined and restrained from discriminating on the basis of sex against any named plaintiff or class member and from failing to implement and comply with the enumerated provisions of this Decree.

4. Defendant shall not engage in or be a party to any act, policy or practice which has the purpose or effect of discriminating or retaliating in any manner against the plaintiff, any employee or former employee or any applicant for employment because that employee has furnished information or has participated in any respect in the prosecution of this action, or because the employee has made charges, testified, asserted a claim, or participated in any manner in the investigation or proceedings under 42 U.S.C. § 2000e et seq. or any regulations promulgated thereunder.

5. Defendants enter into this consent decree in good faith and will take all reasonable actions to accomplish the goals specified herein.

6. Defendants’ objectives are to implement hiring and promotion procedures which when used either for screening, ranking or selection will have little or no adverse impact on female applicants seeking hiring or promotion within the Sheriff’s Department. In accordance with this objective, defendants agree to utilize hiring and promotion procedures which are in conformity with the 1978 Uniform Guidelines on Employee Selection Procedures, 29 CFR § 1607, 1 et seq., and which, when used either for screening, ranking or selection, will have little or no adverse impact on women seeking to be hired and promoted to ranking positions. With the exception of paragraph 4(D), the defendants are not required to strictly comply with remaining provisions of the uniform guidelines.

7. As used in this decree, the term “rank” shall mean any position in the Sheriff’s Department above deputy sheriff.

8. As used in this decree, “applicant” shall refer to all persons who apply with the Montgomery City County Personnel Department for the position of deputy sheriff or correctional officer.

9. As used in this decree, “department” shall refer to those supervisory officers who are responsible for implementing policies and practices.

10. The parties agree that any time after entry of this consent decree either party may apply to this court for an order which would enforce the terms of the consent decree, clarifications or instructions, and/or apply for any other relief which may be appropriate.

11. The provisions of this decree shall supercede any and all conflicting and inconsistent provisions in the Montgomery County Sheriffs Department Jail Administrative Regulation No. 107-78, Montgomery County Jail Rules and Regulations, the Montgomery County Jail Instruction Manual, or other publication of the Sheriff’s Department.

12. This Decree shall become effective immediately upon the date of its entry by the court and shall remain in effect until October 1, 1988.

a. If any party, prior to October 1, 1988, has commenced proceedings either to seek compliance with this Decree or to seek other relief necessarily implementing this Decree, this court shall retain jurisdiction over this action until all issues relating to such proceedings have been resolved.

b. On October 1, 1988, this court shall terminate this decree automatically and without further formality unless the plaintiff, by motion, requests this court to conduct a hearing for the purpose of determining whether the defendants have fully implemented the provisions of this Decree.

13. Certain provisions of this Decree imply the co-operation and co-ordinated efforts of the Montgomery City-County Personnel Board (hereinafter MCCPB) and the Montgomery County Commission. The department agrees to take all actions necessary to obtain the appropriate authorizations and approvals of those entities to attain the objectives specified in this Decree. These entities will not be liable for any actions taken in efforts to effectuate the terms and objectives of this decree.

RECRUITMENT

14. The department will engage in aggressive recruitment procedures which will include a systematic program to recruit female deputy sheriffs and correctional officers.

15. The department will engage in an effort to attract qualified females and males to serve as deputies and correctional officers. These efforts will include at a minimum the following:

a. To obtain any free advertising time through public service announcements or other time offered by the FCC for recruitment purposes.

b. Submit a budget request to the Montgomery County Commission each year for the next five years which will include a request for recruitment funds to include the following:

1. Television spots which will depict women deputies;
2. Radio spots which will include the voice of a female;
3. Development and distribution of poster advertisements which will include photographs of female and male deputies.

16. The department will request that MCCPB expand their mailing list utilized for employment notification to include any and all locations designated and submitted by the department to include but not be limited to area colleges and technical schools.

17. The department will request that the MCCPB change the employment notification for the position of “DEPUTY SHERIFF” as follows:

a. Add the following language under “Purpose of Examination:” “men and women will have equal opportunities to be appointed deputy sheriff and will be assigned duties and responsibilities without regard to sex. Salary and fringe benefits will be the same for both men and women.”
b. Delete the following language under “Requirements of Work”: “Knowledge of” and substitute “ability to learn”
c. Delete the word “strength”
d. Add under “Nature of the Work”: “The job involves initial assignment to general duty jail work.”

III. HIRING

18. Male and female applicants will have equal opportunity to be hired for the position of deputy sheriff pursuant to the provisions of 42 U.S.C. § 2000e et seq., Title VII, Civil Rights Act of 1964, as amended.

19. The defendants agree to have as an objective the utilization of a hiring procedure which, when used for either screening or ranking, will have little or no adverse impact upon women seeking to be hired as deputy sheriffs. In accordance with that objective, defendants agree to utilize a hiring procedure which is in conformity with the 1978 Uniform Guidelines and which, in addition, when used either for screening, ranking or selection will have little or no adverse impact on women seeking to be hired.

20. In accordance with the above stated objective, defendants agree to develop such hiring procedure no later than six months from the signing of this consent decree. A written description of these procedures will be submitted to counsel for plaintiffs. Counsel will have 30 days to review the hiring procedure and be able to request from the defendants any information relevant to the proposed hiring procedure.

21. The department agrees that it will not consider military experience as a hiring qualification factor and will request that the Montgomery City County Personnel Board perform future ranking computations for eligibility registers accordingly. However, military experience may be considered if the applicant’s military experience is related to law enforcement.

22. The department agrees to the following specified procedures, which will be incorporated in overall hiring practices.

a. A ranking officer assigned by the Sheriff will conduct the background investigation of all applicants listed on the eligibility roster sent by the Montgomery City-County Personnel Board.

b. A minimum of three of the five members of the Department Personnel Review Board will interview every applicant on the eligibility roster who presents him/herself and will then make a hiring recommendation to the Sheriff for final action.

c. All recommendations for hire or non-hire shall be made in writing and permanent records on each applicant will be maintained.

d. All Form 13’s filed with MCCPB shall also be kept on permanent file in the administrative office of the department.

e. The department shall adopt standard interview questions which will be gender-neutral and will be equally applied to male and female applicants. Female applicants will not be asked to provide information different from that provided by male applicants.

f. All application procedures will be handled on a uniform basis with respect to background checks, telephone calls, and applicant contacts.

g. Background investigation checks will not include polygraph information from any state or local agency which contains non-job related information, specifically the sexual history or behavior of the applicant.

23. The department agrees to hire six female deputies from the first six budget-approved or vacant positions for deputy sheriff provided said positions are authorized, created, and funded by the Montgomery County Commission. To the extent permissible under procedures, laws, regulations or court orders applicable to and controlling the MCCPB, provided said board allows the same, the Department agrees to take the following actions.

a. All female applicant class members from the 1981 register will be contacted for interview for possible employment. Every applicant who presents herself for interview will be interviewed by the Department Personnel Review Board.

b. After all applicants have been interviewed, the Personnel Review Board will make six hiring recommendations.

c. If all six hiring selections are not made from this register, then the Department Personnel Review Board will contact and interview the next ten highest ranked female applicants from the 1983 register who present themselves for interview.

d. Thereafter, the department will hire one female out of every three applicants for available deputy sheriff positions until twenty-five percent of all deputy sheriff positions are held by females.

24. The Department agrees that twenty-five percent of all the budgeted correctional officer positions authorized, created and funded by the Commission will be filled by female applicants, provided qualified applicants are registered with and furnished to the department by MCCPB. The defendant will request that the MCCPB furnish the necessary certification registers including female applicants to accomplish this goal.

Nothing herein shall be construed to prohibit the timely opening and operation of the new jail facility. If the stated objective cannot be met, after good faith efforts, the department will be permitted to complete the hiring of “correctional officer” personnel. However the department will take necessary actions to accomplish this goal for future correctional officer positions authorized, created and funded by the Montgomery County Commission, until said goal of twenty-five percent female correctional officers is achieved.

IY. DEPARTMENTAL PROCEDURES

A. Personnel Files

25. The department will establish a written procedure which allows a deputy, upon reasonable request, to review his/her personnel file and to offer additions or corrections. This procedure will be explained to new and existing personnel.

26. Each deputy personnel file will include at a minimum the following:

1. Initial application
2. Results of employment investigations
* 3. Verification of training and experience
4. Salary benefits and information
* 5. Educational and professional certificates
6. Disciplinary actions
7. Transfer request forms
8. Training request forms

* These items to be included provided the employee furnishes the same to the department.

B. Job Assignments

27. All routine and daily job assignments in all divisions of the department will be made without regard to gender. The exceptions to this rule are:

a. Strip searches (pat down searches if practical)
b. Situations which warrant that the privacy interests of the inmate must be protected

28. In either of the two above-stated exceptions, the deputy assignment may be made according to the gender of the inmate. These exceptions contemplate narrow and unusual circumstances.

29. The department will write post descriptions for every job assignment on that post which will describe the duties and responsibilities; and these descriptions will be distributed to every deputy.

C. Shift Assignments

30. All deputies who waive an offered shift assignment must indicate the waiver in writing and place the waiver in his/her personnel file.

31. A minimum of one female deputy will be on duty in the jail for each of the three shifts.

D. Transfers

32. Female deputies will have equal opportunity to compete with male deputies for any position within the Sheriff’s Department. All division practices of the department will be in compliance with Title VII of the Civil Rights Act of 1964, as amended, as applied to transfers within the department.

33. All new deputy employees will be deemed qualified to serve in any job or division of the department unless special qualifications for the deputy sheriff position have been designated. If special qualifications are necessary for service in any division, for example investigation duties, etc., the defendant agrees to develop written classification descriptions and specialization qualifications. These written classifications will be continuously posted in a central location. This provision shall not apply to jobs for which separate hiring registers are utilized, i.e., Nurse, I.D. Specialist, Deputy Sheriff-Steward, etc.

34. All deputies will be equally eligible to attain special training and education offered to employees of the department. Notices selected by the department for special training, educational or other professional services offered to employees of the department will be posted within five days of receipt in a central location in the jail and administrative division. These notices will remain posted until the date of the training or educational opportunity. A file of other non-posted notices will be maintained and available to employees for review upon reasonable request.

35. Defendants agree to develop a training request form. The form will provide a space for the Chief Deputy to describe the reason(s) for the grant or denial of any training request made by a deputy.

36. The department agrees to develop a transfer procedure for intra-departmental transfers which incorporates the following practices.

a. Initial transfers from the jail will be based strictly on seniority and will not depend on any discretionary authority of the jail personnel. This provision will become effective upon the staff placement of thirty-four additional personnel in the new jail facility.
b. Transfer request forms will be utilized for all divisions of the department and will include a statement by the approving authority as to the grant or denial of any request for transfer.
c. All transfer request forms will be made part of the personnel.file.

V. PROMOTION

37. All promotional applications received for any opening announced internally shall be considered equally without regard to sex, pursuant to the provisions of 42 U.S.C. § 2000e et seq., Title VII of the Civil Rights Act of 1964, as amended.

38. The defendants agree to have as an objective the utilization of a promotion procedure which, when used for either screening, ranking or selection, will háve little or no adverse impact upon women seeking promotion to ranking positions. In accordance with that objective, defendants agree to utilize a promotional procedure which is in conformity with the 1978 Uniform Guidelines 29 CFR § 1607 et seq. and in addition, when used either for screening, ranking or selection will have little or no adverse impact on women seeking promotions.

39. In accordance with the above stated objective, defendants agree to develop for “ranking positions,” a promotion procedure which: a) will be developed by the defendants no later than six months from the signing of this consent decree; b) will be submitted upon completion of the formulation of the promotion procedure to counsel for plaintiff. Counsel will have 30 days to' review the promotion procedure and request from the defendants any relevant information concerning the procedure, and; c) if found objectionable by plaintiffs counsel, will be submitted upon completion of plaintiffs review to this court for approval on the basis of the above stated objectives.

40. To the extent that the co-operation of the MCCPB is required to obtain compliance with the stated objective, the defendants agree to make good faith efforts to obtain their co-operation.

41. Specifically, the department agrees to request that MCCPB recompute and recompile all ranking scores for deputies who applied for the 1983 Sergeant (field) position by giving equal point value to jail and field experience. The department will request that this practice be applied to future computation.

42. Ranking officers shall supervise both male and female deputies in all divisions of the department.

43. On October 1, 185, and thereafter on an annual basis, the defendants agree to provide to plaintiffs counsel a list of candidates for promotional selections which shall be reviewed to determine whether the selection procedure has an adverse impact on female applicants.

44. Adverse impact shall be determined by reference to the Uniform Guidelines, by comparing the number (by sex) of applicants with the number (by sex) of persons hired. For purposes of this decree, applicants “shall include all persons who fill out the application form with the Montgomery City County Personnel Department and were deemed qualified.” Adverse impact shall be determined for each of the following groups of ranking personnel:

1) Sergeant
2) Lieutenant
3) Assistant Captain Chief Deputy
4) Captain
5) Assistant Jail Administrator
6) Jail Administrator

45. Adverse impact will be measured by the “four fifths rule” set forth in § 4(D) of the Uniform Guidelines.

46. If the parties agree, or the court finds, upon review of the information submitted pursuant to Paragraph 43, above, and upon review of other such information as may be submitted by either party, that the selection procedure described in Paragraph 39 above, has had an adverse impact, promotions thereafter shall be made under a method aimed at avoiding such adverse impact. If the parties cannot agree on a method for making such future promotions, the matter shall be submitted to the court for resolution. Upon such a submission to the court, no further promotions will be made until the parties have agreed in writing or the court has ruled upon the method to be used for making future promotions.

47. Class members listed in Exhibit “A” (attached hereto) will receive monetary awards in the designated amounts.

48. These deputies will be promoted:

a. Lois Johnson will be promoted to the rank of Sergeant (Jail), and will receive a seniority date of November 1, 1981. She will receive front pay at the rate of $70.00 per month until the promotions become effective, up to a maximum of twelve months.

b. Santina Jenkins will be promoted to the rank of Sergeant (Jail).

c. The above stated promotions will become effective provided said positions are authorized, created and funded by the Montgomery County Commission. The department will give priority to these budget requests over all other budget requests for promotional positions.

49. Said plaintiff and class members shall execute a general release with respect to any further liability on the part of the Montgomery County Sheriffs Department, the Sheriff, or any of his agents, officers, or employees regarding violations of Title VII of the Civil Rights Act of 1964, as amended, relating to any matters as employment, application, hiring, job assignments or promotions within the department or any other cause of action as set forth in the complaint or capable of allegation therein by amendment. This release shall not bar any action by any class member as to future liability for any matter not covered by the complaint or terms of this decree.

50. Upon review of the entire record, the court preliminarily finds that this Order and Decree is a fair, adequate and equitable resolution of this case to merit further consideration by this court, pursuant to Rule 23 of the Fed.R.Civ.P., after notice to the class and a settlement hearing to be conducted thereafter. The court directs that notice in the form of Exhibit “B” attached hereto be provided to the class as heretofore described, and that a settlement hearing be set for January 4, 1985, at 10 a.m., 4th floor Courtroom, United States Courthouse.

51. Copies of Exhibit “B” shall be posted on all bulletin boards in the Sheriffs Department which are used by employees.

52. Exhibit “B” shall be published in the Alabama Journal, the Montgomery Advertiser and the Montgomery Independent for four (4) consecutive weeks.

53. Copies of the Order and Decree will be available to class members in the administrative office of the Sheriffs Department and the Clerk’s office of this court.

DONE THIS 16th day of October, 1984.

/s/ Myron H. Thompson

United States District Judge

      . Johnson v. Montgomery County Sheriff’s Department, 99 F.R.D. 562 (M.D.Ala.1983).

      . See Appendix A.