text:
    UNITED STATES of America, Plaintiff, v. BOARD OF EDUCATION OF the CITY OF CHICAGO, Defendant.
    No. 80 C 5124.
    United States District Court, N.D. Illinois, E.D.
    June 4, 1985.

      Margaret Gordon, Asst. U.S. Atty., Chicago, Ill., for plaintiff.
    Robert C. Howard, Hartunian, Futterman & Howard, Hugh R. McCombs, Isham, Lincoln & Beale, Chicago, Ill., for defendant.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

The Court must once again referee a skirmish in the ongoing battle between the United States and the Board of Education of Chicago (“the Board”) over the obligations of the United States under the consent decree it signed in this desegregation action. The United States has moved to vacate a preliminary injunction which restrains certain Department of Education (“DOE”) funds. The injunction was entered on June 30,1983, see 567 F.Supp. 272, 285 (N.D.Ill.1983) (Shadur, Jr.), affirmed by the Court of Appeals, 717 F.2d 378, 385 (7th Cir.1983), and has remained in effect (with some modifications from time to time releasing small fractions of the money). For the reasons stated below, we deny the motion to vacate, except for some modifications of the amounts restrained.

I.

The complex history of this unique desegregation case has been detailed in the previous appellate and trial court opinions. See 744 F.2d 1300 (7th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 2358, 86 L.Ed.2d 259 (U.S.1985) (“Board II”); 717 F.2d 385 (7th Cir.1983) (“Board I”); 588 F.Supp. 132 (N.D.Ill.1984); see also N. Devins & J. Stedman, New Federalism in Education: The Meaning of the Chicago School Desegregation Cases, 59 Notre Dame L. Rev. 1243 (1984). In view of the parties’ need for a prompt ruling on the pending motion, we will not reproduce the extensive history printed in the above references. Rather, we will state only the most crucial facts and then develop facts as they become relevant in our legal discussion below.

The case centers on % 15.1 of the consent decree entered in this case in 1980, which states:

Each party is obligated to make every good faith effort to find and provide every available form of financial resources adequate for the implementation of the desegregation plan.

The Seventh Circuit held that that provision “imposes a substantial obligation on the government to provide available funds to the Board.” Board I, 717 F.2d at 383. But the most recent Seventh Circuit opinion narrowed the definition of “available funds” and the scope of the government’s obligation to provide these funds. According to the higher court, j¡ 15.1 does not require the government to lobby for desegregation funds, to reprogram funds for use by the Board or to provide direct grants for school desegregation. 744 F.2d at 1307. But (115.1 does require the government to put the Board “at the top of the list’ for any program grants that can be applied to desegregation assistance and for which the Board is eligible.” 744 F.2d at 1305. The Court held that by so “guaranteeing that the Board will be funded on a priority basis under existing school desegregation programs, the amount of which funding is determined by program criteria and is subject to the review of the district court, the government would comply with our interpretation of U 15.1....” 744 F.2d at 1305-06. The Court remanded to this Court for a “determination of whether the Board is receiving the maximum level of funding that is available under the criteria of programs through which funds for desegregation can be disbursed.” Id. at 1306.

The parties are concluding discovery and preparing briefs for this remand determination. Although the Court of Appeals was silent about the continuing restraint of DOE funds pending our decision, the United States has moved to vacate the restraint immediately, before this Court can fulfill its mission on remand of deciding whether the Board is entitled to some of the funds under restraint. The motion rests on two grounds. First, Congress passed a bill, the so-called “Weicker Amendment,” ordering this Court to release the money, Pub.L. 98-139, 97 Stat. 871, § 309 (1983), and the United States argues that we must apply that law. Second, the United States asserts that traditional principles of equity no longer support continued injunctive relief.

In response, the Board has agreed to release some of the funds and conceded that Board II foreclosed its chances of recovering certain other funds. The Court issued a short order releasing these funds. As for the rest of the money, the Board agrees that the Weicker Amendment orders this Court to release the funds, but it argues that the statute unconstitutionally violates basic principles of separation of powers. The Board also asserts that traditional equitable concerns demand continued restraint of the money.

Clearly, this Court should decide the equitable issue first. If we rule that equity no longer compels restraint, we moot the constitutional issue. If equity continues to warrant restraint, however, then we will grapple with the Weicker Amendment.

II.

A.

The funds were originally restrained because the Court thought they could potentially satisfy the government’s obligations to the Board under the consent decree. They have been restrained to preserve the status quo until the Board’s entitlement to them could be determined. “Given the possibility that these funds might otherwise be spent and given the need to protect the interests of the Board by preserving the status quo ... the district court did not abuse its discretion by imposing the freeze.” Board I, 717 F.2d at 385. The Board’s entitlement to these funds still has not been finally determined. That is what these remand proceedings are all about. The motion to vacate, then, is an attempt to disrupt the status quo before we can determine the Board’s entitlement to the funds. This attempt is made in good faith, since Board II has changed the Board’s chances of recovering these funds. Nevertheless, we conclude below that concerns of equity still warrant preservation of the status quo through continuing restraint on the funds until we decide the merits in the next few weeks.

The Seventh Circuit recently redrafted the traditional equitable test for preliminary injunctive relief. To obtain relief the plaintiff must show that (1) he has no adequate remedy at law and will suffer irreparable harm if the preliminary injunction is not granted; (2) the irreparable harm he would suffer outweighs the irreparable harm defendant would suffer if the injunction is granted; (3) he has some likelihood of succeeding on the merits; and (4) the desired injunction would not frustrate the “public interest.” Roland Machinery Co. v. Dresser Industries, 749 F.2d 380, 386-88 (7th Cir.1984) (reh’g and reh’g en banc denied). The requirements of “irreparable harm” and “likelihood of success” are intertwined. As a threshold matter, the plaintiff must show that his chances “are better than negligible.” Id. at 387. If the plaintiff shows this, the Court must decide how likely that success is, “because this affects the balance of relative harms.” Id. A sliding scale applies. “The more likely the plaintiff is to win the less heavily need the balance of harms weigh in his favor; the less likely he is to win, the more need it weigh in his favor.” Id.

The parties dispute whether, in light of Board II, the Board continues to meet the last two requirements — “likelihood of success” and relatively insignificant harm to “the public interest.” Before reaching those two elements, we reaffirm that the Board easily satisfies the first two elements. It clearly has no remedy other than from the restrained funds. Were we to lift the restraint, the government would spend some of the money on other grantees (except for the amount it has decided, without this Court’s approval, is proper to grant to the Board) and allow the rest to lapse into the Treasury. These everts would surely harm the Board — and, of course, the children of Chicago — irreparably were we to rule on the merits that the Board is entitled under (| 15.1 to more than the Secretary has decided to grant. In sum, we agree completely with the Baord that the restrained funds provide the only realistic and meaningful source of relief should it prevail on the merits. Second, the balance of harms viz. the Board and the government tips strongly in the Board’s favor. Indeed, the government fails to show that it would be harmed in any significant way by the continued restraint. Instead, it details how continued restraint would harm nonparty intended grantees of the funds. This harm is relevant to the “public interest” factor, which we will discuss later in Section C.

B.

The parties hotly dispute whether the Board is “likely to succeed” in showing it has any entitlement to the restrained funds. Obviously, if the Board’s likelihood of success is zero or negligible, all of the irreparable harm in the world cannot stop the Court from releasing the funds. But if its likelihood of success is “better than negligible,” then, as noted above, the degree of irreparable harm suffered by the Board figures into the “success” calculus by way of a sliding scale. Roland Machinery, 749 F.2d at 387-88. Because the balance of harms between the parties tips so very strongly in the Board’s favor, we conclude that the sliding scale approach requires only that the Board meet its threshold showing that its chances of succeeding are more than negligible. In other words, where as here the balance “tips sharply in [plaintiff’s] favor,” the plaintiff need only show that “serious questions are raised.” Roland Machinery, 749 F.2d at 388.

The restrained funds fall into several different programs. We will approach the “success” issue program by program.

1. Title IV

There are about $24 million in FY 1984 Title IV funds under restraint of which the Secretary has determined that the Board is entitled to $428,000, as well as FY 1983 Title IV funds, of which the Secretary has allotted some $600,000 for the Board. The Secretary concedes that the “top of the line priority” funding applies to Title IV funds. It argues that it already has given the Board this priority and that the Board will receive its “equitable fair share of funds,” and thus we should release all of the funds.

We disagree. The Seventh Circuit remanded this case for the court, not the Secretary, to determine on a full record whether the Secretary has discharged his substantial obligation of providing the maximum level of available funding under desegregation program criteria. The Secretary has conceded that this Court may review his discretion in distributing “funds that may be used for desegregation purposes.” 744 F.2d at 1306 n. 7. It follows that his assertion that he has given the Board its “equitable fair share” of funding does not convince us that the Board’s chances of receiving more are negligible. The Secretary might be right, but that is for us to decide after a thorough inquiry into all of the relevant evidence now being produced in discovery. Releasing the funds before we can rule on the merits would have the effect of mooting the remand proceeding because the Court would be impotent to give the Board any relief. This would in turn mean that the determination of the maximum level of funding was, in effect, solely within the Secretary’s discretion. That is not what the Court of Appeals contemplated.

Moreover, although this Court is new to the case, we cannot close our eyes to its history. It cannot be seriously disputed that through most of this case the United States has been virtually unyielding in its intention to give the Board as little as possible. The government did finally loosen up a bit in its concessions before the Seventh Circuit, see 744 F.2d at 1305, but we cannot presume that the Secretary has been as generous as j[ 15.1 requires him to be. On the contrary, the government’s past conduct in this case, which “could be interpreted to contravene the spirit of the Decree ... and cannot enhance the respect to which this Decree is entitled,” id. at 1308, compels us to approach the case with quite a bit of skepticism. At this point, we cannot reasonably say that the chances are merely “negligible” that the Secretary has underestimated the Board’s “ 'equitable fair share’ of funding under Title IV criteria.” Id. at 1305.

2. Discretionary Funds

There are some $17 million in the “Discretionary Fund” under restraint. The Secretary has awarded none to the Board. The parties dispute how much of this money is really under the Secretary’s actual discretion and subject to his control. We think that the Board has raised “serious questions” as to the availability of these funds, which warrant continued restraint until we can resolve those questions on the merits.

The Secretary concedes that $3,384,-000 of the total, which was allocated for a grant competition, was available for desegregation assistance for the Board’s plan. We clearly must hold these funds to make sure the Board received its “equitable fair share” of these funds.

The Board’s claim to the rest of the funds is somewhat weaker in light of the Seventh Circuit’s recent opinion. For example, the Secretary allocated about $2.4 million for purposes other than desegregation. The Seventh Circuit seemed to condone general policy decisions by the Secretary which have the effect of rendering funds unavailable to the Board. 744 F.2d at 1807 & n. 10. The Secretary therefore argues that the Board has no reasonable claim of entitlement to these funds. Rather, the Secretary claims his discretion is bound only at the time that grantees are selected and grant award amounts are set pursuant to statutory and regulatory criteria.

The Board does not argue this point at length, saying it will do so in its brief on the merits. It does briefly state, though, that the Board II opinion “requires the United States to take the Consent Decree into account in allocating and providing the Board a share of all of the nonstatutorily mandated funds.” Board’s Memorandum in Opposition to Motion to Vacate at 56 n. 25. Thus, the Board appears to argue that the Seventh Circuit’s exemption of “reprogramming” from the scope 1115.1 extends only to statutorily mandated funds, not to funds wholly within the Secretary’s discretion. It would distinguish reprogramming of funds from programming of funds in the first instance. The Board argues that even under Board II, the consent decree must inform the Secretary’s discretion before he programs discretionary funds.

While at this time we think Board II probably favors the Secretary’s position on this issue, the opinion is not entirely clear, and the Board has raised a plausible, serious question which deserves full briefing on the merits following discovery. Board II does appear to focus on reprogramming of statutorily mandated funds. 744 F.2d at 1307 n. 9. But footnote 10 seems to give the Secretary great leeway even within the Discretionary Funds, and the Board will have to contend with this in its brief on the merits. However, the Court did explicitly hold that “top of the list priority” does reach the Discretionary Fund, 744 F.2d at 1305 & n. 6, although it is not clear that the Court was speaking about all or part of the fund. Moreover, the opinion stated that the Secretary’s obligations were not necessarily limited to “desegregation” programs per se, but rather extended to other funds which “Congress had indeed made available.” Id. at 1306. In sum, at this point the scope of footnote 10 is unclear, as is the point where the Secretary’s discretion becomes subject to the Court’s review. If we were to release the funds now, we would be resolving our doubts conclusively in favor of the Secretary, thereby precluding the Board from recovering at all should it prevail ultimately on the merits. In light of this potential great harm to the Board and of our desire and duty to resolve this substantial issue on the basis of a fully developed record, we believe it necessary to continue restraining the $2.4 million.

Also in dispute are $10 million which the Secretary has allocated for the “National Diffusion Network” (“NDN”) program. The Board has already agreed to release 30% of these funds to allow current grantees to continue operating. The Secretary claims that these funds were earmarked by congressional committee for this program. Thus, he argues that these funds come within Board II’s holding that to satisfy U 15.1, the Secretary need not request that funds be reprogrammed. The Board argues that committee language is not binding on the Secretary’s discretion and thus not dealt with by the Seventh Circuit’s opinion. The Board also argues that it may qualify for funds under NDN criteria. The Board’s first argument raises issues analogous to those discussed above concerning the point at which the Court can review the Secretary’s discretion. As we wrote above, it is best to decide that question after considering arguments on the merits. In any event, the second argument warrants continued restraint because the Board has raised a serious question as to whether some NDN funds could directly aid the Board’s desegregation plan. The parties dispute whether these programs really deserve “top of the list” treatment within the meaning of Board II. That, too, we leave for the merits.

3. Follow-Through

Close to $15 million of funds in the “Follow-Through” program are now under restraint. The parties agree that some of the Board's desegregation programs satisfy criteria of the statute. The parties dispute, however, whether Follow-Through can be considered a “program through which funds for desegregation can be disbursed,” 744 F.2d at 1306, within the meaning of Board II. The United States contends that, although the Board’s plan contains projects which might qualify for Follow-Through money, Only programs that

explicitly have “desegregation” funding as a statutory purpose fall within the Seventh Circuit’s reading of jf 15.1. Follow-Through is not such a program. Not surprisingly, the Board’s reading of Board II is much broader. It apparently concedes that Congress did not have desegregation on its mind in enacting Follow-Through, but it argues that because its broad desegregation plan contains projects which could qualify for Follow-Through, that program can be considered one of “desegregation” for purposes of 15.1. We think that either reading is plausible. We have earlier indicated that the label “desegregation” might not be as narrow as the Secretary contends. United States v. Board of Education, No. 80 C 5124, slip op. at 2 n. 1 (N.D.Ill. April 15, 1985) (unpublished memorandum order). But for now we hold only that the Board has persuaded us that a serious question exists as to the availability of these funds, warranting continued restraint until we render a decision on the merits.

4. Excess Appropriations

About $35 million of FY 1983 and 1984 funds are so-called “excess appropriations.” These are unspent funds which would lapse into the Treasury if we were to decide that the Board has no entitlement to them.

In its brief the United States divides these funds into three categories: (1) funds appropriated for statutory purposes outside the scope of the Board’s desegregation plan; (2) funds which could further programs within the Board’s plan, but which are mandated by statutory formulas over which the Department has no discretion; and (3) funds which could further the Board’s plan and from which the Board already has received funding.

It is clear that the funds in Category 3 must continue under restraint. We think that a serious question exists as to whether the “priority” funding requirement applies to these funds, and if so, whether the Board received its equitable fair share of these funds. Thus, these funds should remain under restraint until we reach the merits.

Category 2 presents the same questions as the Follow-Through funds do: whether programs which could further the Board’s plan, but which were not intended by Congress for “desegregation” per se, fall within the scope of j[ 15.1 as defined by the Seventh Circuit. We have already indicated that the label “desegregation” should not necessarily be read narrowly. We leave that decision for the merits. For now we continue restraint of funds in Category 2 until we resolve that serious question.

The Secretary’s case concerning Category 1 is much stronger. It could be said that the Seventh Circuit’s holding that the Secretary need not reprogram statutorily mandated funds precludes the Board from recovering any of these funds. But the Seventh Circuit did not address the Secretary’s duty concerning funds which would lapse into the Treasury. Arguably, there is a material distinction between lapsed and spent funds. Indeed, the Seventh Circuit did recognize a duty to search “for unencumbered funds that may be used to advance the Board’s desegregation plan.” 744 F.2d at 1306-07. These might be such “unencumbered funds.” We do not decide now whether the Secretary has a duty to try to reprogram these funds. But it is plausible to assert that the Seventh Circuit’s concern for separation of powers and competing grantees is less relevant to the excess appropriations, and that the Secretary could have a heightened duty with respect to these funds. For now we hold merely that the Board has some more than negligible likelihood of establishing some entitlement to these funds.

5. Summary

It is apparent from our discussion that the Board’s claim to some of the funds has become weaker in light of Board II. Yet we have continued the restraint even to some of the funds to which its claim has weakened. We have done so because our “task ... in deciding whether to grant or deny a motion for preliminary injunction is to minimize errors.” Roland Machinery, 749 F.2d at 388. Because the harm to the Board is so great if we release the funds and later find out it had some entitlement to them, and because the harm to the government is minimal, in our judgment if we err, we should do so on the side of caution. The costs of error are minimized if we continue restraining the funds for the month or so it will take to resolve the Board’s entitlement to them once and for all. However, although Roland Machinery speaks only about the relative harms to the parties in applying the “sliding scale,” we agree with the Secretary that in this unique case the harm to the “public interest” must be factored into the sliding scale before we finally end our analysis. We turn next to that factor. We conclude that this factor does not significantly affect the above calculus at this time.

C.

Except for the “excess appropriations,” much of the money under restraint has been scheduled to be allocated to various grantees all over the country. The Secretary has submitted affidavits of various grantees, which paint a moving picture of how the injunction has seriously disrupted their programs. The Board does not dispute that the injunction has harmed other grantees. Rather, it argues in part that the Secretary, not the Board or this Court, is to blame for this harm. The Secretary’s litigation tactic, the Board says, has been to foment this conflict between the Board and other grantees, and the Secretary has consistently opposed measures which would have ameliorated this conflict. Thus, the Board argues that the Secretary’s professed concern for the grantees is disingenuous and a mask for its own dilatory and obstructive conduct throughout this suit. It contends that the suit would have been over long ago but for the Secretary’s refusal to give any ground initially. Judge Shadur agreed with the Board’s assessment. See 588 F.Supp. at 138.

We need not decide who is to blame for the harm to the grantees. Even if we view their admitted, serious harm without regard to whether or not the Secretary created this harm as a litigation tactic, we believe that the injunction should stand for the time being. First, much of the harm detailed in the affidavits has unfortunately already happened. We cannot do anything about that. We can and should, however, seek to minimize future harm. That will be the focus of our inquiry. The Board has persuaded us that this harm is relatively minimal if the injunction remains in effect for the month or so it will take to resolve the merits. First, it has agreed to release 30% of the restrained funds in the Follow-Through and NDN programs to allow grantees to continue operating in the meantime. To further ameliorate any potential harm to grantees, we will order the release of an additional 10% in each of these programs. It is highly unlikely that the Board could recover a full 70% of the original total, so release will insure the grantees further without seriously jeopardizing the Board. The future harm to grantees of the other programs has been minimized as well. Discretionary Fund grantees generally are funded through September. Title IV grantees are funded through June 30, 1985. And harm to grantees is, of course, irrelevant to the excess appropriations. In sum, then, the prospective harm to grantees is not minimized to the point where it clearly does not outweigh the potential harm to the Board.

We do not believe the future “uncertainties” or “loss of momentum” these grantees face warrant lifting the injunction now rather than a month from now. First, the grantees have long known that program funds were uncertain and contingent upon this Court’s determination of the Board’s entitlement to them. See 48 Fed.Reg. 56255 (Dec. 20, 1983); 48 Fed.Reg. 50919 (Nov. 4, 1983); 49 Fed.Reg. 7551 (Feb. 29, 1984); 49 Fed.Reg. 2462 (Jan. 19, 1984). Second, “loss of momentum” can be repaired more easily by later receipt of funds than can the Board’s harms, which would go completely unremedied if the funds were released and it prevailed. Finally, the grantees’ status is uncertain anyway, since the United States has actually opposed Congressional appropriations for many of the programs and is likely to do so in the future. We do not mean to dismiss lightly the past harms suffered or the problems of uncertainties. Rather, we believe that the potential harm to the Board dwarfs the potential harm to the grantee from a continued restraint for a short time.

III.

Having decided that traditional equitable principles warrant continued restraint of most of the funds, we must now address the impact of the Weicker Amendment. That statute provides:

No funds appropriated in any Act to the Department of Education for fiscal years 1983 or 1984 shall be withheld from distribution to grantees because of the provisions of the order entered by the United States District Court for the Northern District of Illinois on June 30, 1983: Provided, that the court’s decree entered on September 24, 1980, shall remain in full force and effect.

Pub.L. No. 98-139, 97 Stat. 871, § 309 (1983). The parties now agree that this statute clearly directs this Court to release the restrained funds, but does not affect the Board’s ultimate entitlement to them. The Weicker Amendment is, in essence, a legislative reversal of this Court and the Court of Appeal’s rulings that equity compels restraint of the funds until the Board’s entitlement to them is decided on the merits. It is a legislative attempt to restore the “pre-freeze” status quo in this one case and to prevent us from again exercising our equitable powers as we have just done above.

Judge Shadur has considered the meaning and relevance of the Weicker Amendment at length. 588 F.Supp. at 229-37. We agree with his assessment. Specifically, like Judge Shadur, we are troubled that the statute reverses a particular judicial order in a particular case. Id. at 235. As such, the statute very likely invades the judicial province and violates fundamental constitutional principles of separation of powers. We need not repeat here the legal analysis relevant to this issue. See 588 F.Supp. at 233-37. Nor need we actually decide the constitutional issue. Once before, in similar circumstances, Judge Shadur avoided the constitutional issue by stating that he would comply with the Weicker Amendment and release the funds after the imminent issuance of an order in conformance with that opinion. Similarly, this Court will avoid the unnecessary resolution of a difficult constitutional issue by releasing the restrained funds when we decide the merits next month. This course is the more prudent one, we believe, as it also respects principles of separation of powers. We could hold now that the statute (in all likelihood) is unconstitutional, thereby vindicating principles of separation of powers in that intrusive way. But it is better, we think, to serve those principles by simply obeying the legislative mandate next month, after having ruled on the merits and mooted the constitutional issue.

IV.

In sum, the Secretary’s motion to vacate is denied, with the following exceptions. An additional 10% of the funds restrained in the NDN and Follow-Through programs shall be released. In all other respects, the funds shall continue to be restrained. It is so ordered.

      . Specifically, we released 30% of the funds restrained in the “Follow-Through" program and the "National Diffusion Network" program. We also released funds contained in the so-called "Special Programs" account.

      . For that reason, we have already ordered that certain funds be released immediately. See n. 1, above.

      . Indeed, the Board points out that it has learned through discovery that DOE personnel responsible for the "priority" treatment had never heard the phrase "equitable fair share.” In contrast, the Secretary discusses evidence which supports his contention that the Board has received extraordinary treatment. This dispute underscores the necessity of continuing the restraint on the Title IV funds. At this point, we do not know who is right, but there is a real dispute on the issue, which the Board has some chance of winning.

      . In FY 1984, Congress appropriated about $28 million for this fund. About $10 million of this total is required to be spent to finance certain non-desegregation programs specified at 20 U.S.C. § 3851(b). The remaining funds are under restraint and in dispute.

      . The Secretary’s primary argument concerning these funds is that the Board waived whatever rights it might have had by never formally applying for the funds. Viewed in the context of this bitter lawsuit, this argument is sophistry. The Secretary has known full well since FY 1983 that the Board has claimed an entitlement to money in the Discretionary Fund. This Court and the Court of Appeals have known this, and that is why these funds were enjoined in the first place. Yet until Board II, the Secretary insisted that the Board’s plan was not entitled to Discretionary Fund moneys. A formal application would have been futile. It is disingenuous to insist first that the funds are off limits, only to later concede that they are available, but that the Board never formally asked for them. The Court will not tolerate such a facile creation of a Catch-22. In any event, as the Secretary himself has maintained throughout this suit, U 15.1 imposes at the very least a duty on the Secretary to provide technical assistance to the Board in locating potentially available funds. The Secretary should have been encouraging the Board to apply for these funds and helping it with any formalities in doing so. The Secretary cannot now rest on such a formalistic, technical ground when he has been so adamant and unhelpful in the past and when a consent decree binds him to be otherwise. We disagree with the Secretary that Board II imposes such a barrier for failure to formally apply for funds while this suit had been pending. However, in the future the Board should make every effort to comply with formal administrative requirements. At the same time, the Secretary should help the Board do so, alert it to available resources and not merely lie in wait for the Board to overlook dotting an “i” or crossing a "t."

      . For example, the Secretary decided to allocate these funds for programs such as educational television projects, teacher pay incentive projects and various computer projects.

      . We have some sympathy for the Board's argument that the Secretary’s position allows him to escape If 15.1 merely by reallocating funds pro forma into program categories untouchable by the Board. However absurd this result may be, the question for the merits will be not whether this result makes sense, but whether Board II accords the Secretary the leeway to designate funds in this way without regard to f 15.1.

      . NDN funds exemplary "developer demonstrator" projects in a number of subjects, including math, reading, geology and marine science. "State facilitators” inform and train local school districts about these projects. The program saves school districts the time and cost of developing new programs on their own.

      . As we hold below, at 14, however, after taking "the public interest" into account, we deem it appropriate to release an additional 10% of the funds under restraint.

      . "Follow-Through” is authorized under 42 U.S.C. § 9861-9868 to help develop low income children in kindergarten through third grade. A descendant of “the Headstart” program, it provides comprehensive services in the areas of physical and mental health, social services and nutrition, as well as educational programs. Follow-Through was not conceived of as a "desegregation” program per se.

      . Once again, however, we rule below that “the public interest” warrants release of an additional 10% of these funds now under restraint.

      . We think that the funds in Category 1, as well as the rest of the excess appropriations, could form the basis for a settlement of the current funding dispute. Although the Seventh Circuit held that the letter of the consent decree did not require the Secretary to reprogram funds, it did state that the Secretary has violated the "spirit” of that decree, and it did not specifically address the duty to try to reprogram excess funds. The Secretary would further the spirit (if not the letter) of the decree if he would voluntarily seek to have a substantial amount of the excess appropriations, including those in Category 1, reprogrammed for use by the Board. It would be most unfortunate if the Secretary were to allow these funds to lapse without doing anything about it. In the interests of settling this dispute, Congress might well heed a reprogramming request. Such a request would, if nothing else, confirm that the Secretary has taken a more generous and good faith attitude toward the Board. And if much of these funds could be released, we are confident that the Board could agree to drop its claim to many of the funds now earmarked for other grantees. It might be too late to expect realistically such cooperation between the parties. But that is what f 15.1 envisioned in the first place at least in spirit.

      . Since oral argument will not take place until July 1, 1985, it might become necessary to release some of these funds before the end of June. We urge the parties to try to agree to a proper amount to be released, in the likely event it becomes necessary to do so.

      . The emphasis of the Secretary on Bradley v. School Board of the City of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), is largely beside the point. Judge Shadur has already indicated that Bradley requires the Court to apply that law to this pending case unless doing so would cause “manifest injustice.” 588 F.Supp. at 234. The Board does not seriously dispute this point. But the extensive Bradley analysis done by the Secretary does not directly address the central issue: not whether this Court should apply the Weicker Amendment, but rather, whether it can do so constitutionally. Obviously, Bradley does not compel the Court to apply an unconstitutional law, whether it be considered retroactive or prospective.


source: Caselaw Access Project

author: TEITELBAUM, Chief Judge.

license: Public Domain

text:
    Gary A. FRAUST and Judith L. Fraust and Judith L. Fraust, guardian of the Estate of Isaac J. Fraust, a minor, Plaintiffs, v. SWIFT AND COMPANY, Defendant.
    Civ. A. No. 84-1344.
    United States District Court, W.D. Pennsylvania.
    May 23, 1985.

      William S. Schweers, Jr., Harrington & Schweers, Pittsburgh, Pa., John C. Dennison, Dennison & Dennison, Brookville, Pa., for plaintiffs.
    Carl E. Harvison, Grigsby, Gaea & Davies, Pittsburgh, Pa., for defendant.
   MEMORANDUM OPINION

TEITELBAUM, Chief Judge.

In this products liability action the defendant asks the Court to rule, as a matter of law, that its product is not unreasonably dangerous. The action arises from an incident in which Isaac J. Fraust, then 16 months old, choked while eating Peter Pan Creamy Peanut Butter spread on bread. As a result, Isaac suffered severe brain damage.

It is plaintiffs’ theory that the peanut butter supplied by the defendant was unsafe for its intended use because it lacked a warning that it should not be fed to children under four years of age. Plaintiffs contend peanut butter presents a particular danger to children under four years of age because of the texture and consistency of peanut butter and the immature eating and swallowing abilities of children that age. Plaintiffs contend defendant targets young children in its advertising and marketing.

The failure to warn of a dangerous condition is an independent basis of liability-

A “defective condition” is not limited to defects in design or manufacture. The seller must provide with the product every element necessary to make it safe for use. One such element may be warnings and/or instructions concerning use of the product. A seller must give such warning and instructions as are required to inform the user or consumer of the possible risks and inherent limitations of his product. Restatement (Second) of Torts § 402A, comment h. If the product is defective absent such warnings, and the defect is a proximate cause of the plaintiffs injury, the seller is strictly liable without proof of negligence.

Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 100, 337 A.2d 893, 902 (1975).

In a products liability case the plaintiff must prove the product was defective and the defect was a proximate cause of the plaintiffs injuries. Berkebile v. Brantly Helicopter Corp., 462 Pa. at 93-94, 337 A.2d at 898. The concept of “unreasonably dangerous” is not presented to the jury because it injects "negligence concepts into their deliberations. Id. at 96-97, 337 A.2d at 900.

It is for the court to determine as a matter of law if placing the risk of loss on the supplier furthers social policies. Azzarello v. Black Brothers, Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978). “It is a judicial function to decide whether, under plaintiffs averment of the facts, recovery would be justified; ...” Id. at 558, 391 A.2d at 1026. The words “unreasonably dangerous” “merely represent a label to be used where it is determined that the risk of loss should be placed upon the supplier.” Id. at 556, 391 A.2d at 1025.

Courts and commentators have identified various factors that a court should consider when making the social policy decision required by Azzarello, ... Sometimes, no doubt, it will be difficult for a court to decide whether as a matter of social policy a jury should be permitted to impose strict liability. However, where inadequate warnings are alleged, the social policy decision is relatively simple. As has been said, “In the case of an inadequate warning, ... imposing the requirements of a proper warning will seldom detract from the utility of the product.” At the same time, the cost of adding a warning, or of making an inadequate warning adequate, will at least in most cases be outweighed by the risk of harm if there is no adequate warning.

Dambacher v. Mallis, 336 Pa.Super. 50-51, 485 A.2d 408, 423 (1984) (footnote and citation omitted).

Defendant moves for summary judgment contending its product is not unreasonably dangerous as a matter of law. By this motion defendant asks this Court to make an explicit ruling on the threshold determination of social policy that Azzarello requires. See Dambacher v. Mallis, 336 Pa. Super. 51 n. 6, 485 A.2d at 423 n. 6.

Defendant first contends no warning was required because as a matter of law Isaac’s mother knew or should have known of the potential danger associated with feeding a peanut butter sandwich to Isaac.

Liability cannot be imposed on the seller for failure to warn of a danger associated with its product if the danger was or should have been known to the user. Brown v. Caterpillar Tractor Co., 741 F.2d 656, 661 (3d Cir.1984). The issue of necessity of warnings must also be considered in light of any contradictory promotional activities on the part of the seller. Berkebile v. Brantly Helicopter Corp., 462 Pa. at 103, 337 A.2d at 903.

Defendant cites Sherk v. Daisey-Heddon, 498 Pa. 594, 450 A.2d 615 (1982) and Davis v. R.H. Dwyer Industries, Inc., 548 F.Supp. 667 (E.D.Pa.1982) as examples of known dangers.

In Sherk a fourteen year old boy killed a friend when he placed a B.B. gun five feet from his friend’s head and fired. The boy firing the gun knew that B.B.s fired from the gun could kill animals and blind a person. The court found the evidence made it clear the boy used the gun in a manner that he knew could cause serious bodily injury. Because the lethal propensity of the gun was or should have been known to the user, liability could not be imposed on the manufacturer because the manufacturer allegedly failed to warn of that propensity. Sherk v. Daisey-Heddon, 498 Pa. at 600, 450 A.2d at 618.

In Davis a car wash employee drove a car through a strip door hanging at the entrance to the wash bay and struck another employee working inside the car wash. The strip door had become opaque with age. The driver testified he was aware of his inability to see through the door before he drove through it. The court found a warning of the door’s propensity to become opaque would have served no purpose. Davis v. R.H. Dwyer Industries, Inc., 548 F.Supp. at 671.

Unlike Sherk and Davis in which the evidence was clear that the user appreciated the danger, here the Court cannot say as a matter of law that Isaac’s mother knew or should have known of the danger associated with feeding a peanut butter sandwich to him.

As its second argument, defendant contends that because plaintiffs do not allege that the peanut butter was not in the condition expected by the ordinary consumer it was not unreasonably dangerous as a matter of law. Although at first this argument appears different from defendant’s first argument, it is really a variant of the same argument.

Comment (i) to section 402A of the Restatement (2d) of Torts differentiates “those products which are by their very nature unsafe but not defective from those which can truly be called defective.” Berkebile v. Brantly Helicopter Corp., 462 Pa. at 95, 337 A.2d at 899. Comment (i) states:

Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount of fusel oil, is unreasonably dangerous. Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous. Good butter is not unreasonably dangerous merely because, if such be the case, it deposits cholesterol in the arteries and leads to heart attacks; but bad butter, contaminated with poisonous fish oil, is unreasonably dangerous.

Defendant argues that similarly good peanut butter is not unreasonably dangerous because a young child may choke on it. Defendant then prematurely ends its analysis. However, comment (j) goes on to explain why good whiskey and good butter; and by inference, good tobacco; although “unsafe” are not defective, even without a warning of their dangers.

... a seller is not required to warn with respect to products, or ingredients in them, which are only dangerous, or potentially so, when consumed in excessive quantity, or over a long period of time, when the danger, or potentiality of danger, is generally known and recognized. Again the dangers of alcoholic beverages are an example, as are also those of foods containing such substances as saturated fats, which may over a period of time have a deleterious effect upon the human heart.

That is, because these “unsafe” products present known dangers no warning is required. Therefore, although “unsafe”, they are not defective.

Again the Court cannot say as a matter of law that the danger of a sixteen month old choking on a peanut butter sandwich is generally known and recognized so that admittedly good peanut butter, without warning of such a danger, is not unreasonably dangerous.

Defendant’s final argument is that the testimony of plaintiffs’ experts, as set forth in their reports, will be insufficient to raise a triable issue for the jury. The Court disagrees.

Accordingly defendant’s motion for summary judgment will be denied. An appropriate order will be entered.


author: SHOOB, District Judge.

text:
    Dennis A. WALTERS, Jr., Plaintiff, v. CITY OF ATLANTA; Andrew J. Young, individually and in his official capacity as Mayor, City of Atlanta; Shirley C. Franklin, individually and in her official capacity as the Chief Administrative Officer to the Mayor; Clara H. Axam, individually and in her capacity as Commissioner, Department of Administrative Services, City of Atlanta; Geraldine H. Elder, individually and in her official capacity as Commissioner, Department of Parks and Recreation, City of Atlanta, Defendants.
    Civ. A. No. C83-1432A.
    United States District Court, N.D. Georgia, Atlanta Division.
    May 28, 1985.
    See also 610 F.Supp. 730.

      Dana E. McDonald, Atlanta, Ga., for plaintiff.
    Kendric E. Smith, Marva Jones Brooks, Overtis Hicks Coopwood, Atlanta, Ga., for defendants.
   ORDER

FINDINGS OF FACT AND CONCLUSIONS OF LAW ON TITLE VII CLAIMS

SHOOB, District Judge.

This is an action under 42 U.S.C. §§ 1981 and 1983, and under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff, a white male, alleges that he has been denied employment as Director of the Atlanta Cyclorama, a special facility maintained by the City of Atlanta that contains a dioramic display of scenes from the Battle of Atlanta during the War Between the States. Plaintiff claims that the City of Atlanta and the individual defendants illegally discriminated against him on the basis of his race and sex, and in retaliation for charges filed by him with the Equal Employment Opportunity Commission (“EEOC”) and for this lawsuit.

The case was tried to a jury from March 25, 1985, to April 5, 1985, upon plaintiffs claims under 42 U.S.C. §§ 1981 and 1983. The jury served in an advisory capacity on the Title VII claims. Trial was bifurcated, pursuant to Rule 42(b), Fed.R.Civ.P., with the issue of defendants’ liability heard first. Evidence was presented during the week of March 25, and on April 1 the Court charged the jury. Jury deliberations began on April 2. On April 3 the jury returned its liability verdict in plaintiff’s favor upon his section 1981 racial discrimination claims. Responding to interrogatories, the jury found that defendants discriminated against plaintiff on account of his race on four separate occasions from 1981 to 1983. It also found that on three occasions defendants had retaliated against plaintiff for filing charges with the EEOC and for filing this lawsuit. The jury found for defendants upon plaintiff’s claims under 42 U.S.C. § 1983 for discrimination on the basis of gender.

On April 4, 1985, the parties presented evidence to the jury concerning damages. Afterwards the Court, out of the presence of the jury, heard evidence concerning plaintiff’s request that he be placed in the position of Cyclorama Director. At the conclusion of that hearing the Court, agreeing largely with the jury’s advisory opinion as to Title VII liability, ruled in plaintiff’s favor on his Title VII racial discrimination claims and determined that plaintiff would be installed as Cyclorama Director.

The Court did not at that time order plaintiff’s immediate installation as Cyclorama Director. The parties agreed, however, during the damages charge conference on April 5 that plaintiff would be entitled to front pay between April 4 and the date the plaintiff was placed in office.

On April 5, 1985, the jury awarded damages for plaintiff on his section 1981 claims as follows:

—against the City of Atlanta: $61,000 in back pay and $115,000 for mental distress;
—against Andrew J. Young: $10,000 for mental distress and $2000 punitive damages;
—against Shirley C. Franklin: $10,000 for mental distress and $2000 punitive damages;
—against Clara G. Axam: $5000 for mental distress and $1000 punitive damages; and
—against Geraldine Elder: $9500 in back pay, $10,000 for mental distress, and $2000 punitive damages.

(The Court has determined back pay due plaintiff under Title VII independently of the jury’s response; that determination, set out below at page 728, duplicates the jury’s back pay award under section 1981.) The jury found defendant Elder separately liable for a portion of the back pay because it found that she alone, and not the City, was responsible for the first of several instances of discrimination.

Following the jury’s damage verdict on April 5, the parties conferred with the Court regarding entry of judgment. Plaintiff requested that judgment be entered on April 5 upon the jury verdict. Defendants requested that the Court delay entry of judgment until the final order incorporating findings of fact and conclusions of law was entered on the Title VII claims. Defendants argued that entry of one judgment upon • all claims at the same time would lessen confusion about time for appeal. Plaintiff agreed to the delay in the entry of the section 1981 judgment upon defendants' agreement that interest would accrue on the verdict from April 5, 1985.

Because there was a dispute regarding the appropriate method for calculating interest upon plaintiff’s prejudgment back pay, the parties agreed that the Court would resolve this issue upon argument and evidence to be submitted.

The Court directed that plaintiff submit proposed findings of fact and conclusions of law upon the Title VII claims in accordance with Local Court Rule 220-7. Defendants did not respond in detail to the proposed findings and conclusions, which included calculations of back pay, front pay, and interest. Defendants’ counsel, responding to a later query from the Court, stated that the City had no objection to plaintiff's calculations except that the City disputed the length of the back-pay period and the amount of interim earnings plaintiff could reasonably have gained.

The Court has adopted plaintiff’s proposed findings and conclusions with modifications.

Findings of Fact

1. The City of Atlanta owns a large dioramic painting called the “Cyclorama,” which depicts scenes from the Battle of Atlanta in the War Between the States. The painting, which was housed in a large building in Grant Park for a number of years, gradually deteriorated, and the City of Atlanta ("City”) undertook the restoration of the painting and the building in which it was housed during the administration of former Mayor Maynard Jackson. In order to accomplish this restoration the City issued revenue bonds earmarked for the improvements made to the building, and the facility was closed for a period of several years while the restoration was being accomplished. During this time the Cyclorama facility did not have an operating staff, and the position of Director was vacant.

2. Approximately a year before the Cyclorama’s reopening in June 1982, the Department of Parks, Recreation and Cultural Affairs of the City requested that the City’s Personnel Director, defendant Clara H. Axam (now Commissioner of the Department of Administrative Services), establish a “register” (also known as “eligible register”) for the position of Cyclorama Director. A “register” is a list of those persons selected by the Personnel Department from all the applicants for a position as being eligible for appointment because of their qualifications. Persons on the register are rated “highly qualified,” “well qualified,” or “qualified.” Under the City’s civil service system those applicants who are chosen to be on the eligible register are interviewed by an interview panel, which makes recommendations to the head of the department, in this case the Commissioner of Parks, Recreation and Cultural Affairs. The final hiring decision is made by the Commissioner, who until April 1983 was defendant Geraldine H. Elder.

3. The position vacancy for the Director’s job was advertised from September 2 through September 11, 1981. The advertised starting salary was $1,477 per month or $17,724 per annum. The Personnel Department described the job qualifications in part as follows:

Knowledge, Skills, and Abilities: Thorough knowledge of the history of Atlanta and the surrounding area, including the Civil War battles. Good knowledge of the theory, practices, and techniques of historic preservation. Some knowledge of general business practices and of keeping financial records. Some knowledge of the field of public relations. Ability to prepare exhibits and plan programs for the general public; ability to speak and write clearly and concisely; ability to establish and maintain effective working relationships with others. Ability to learn and keep abreast of State and Federal regulations regarding the operation of public buildings.

4. Twenty-seven persons submitted applications. Twelve of them were black and fifteen were white.

5. Plaintiff Dennis A. Walters, Jr., was one of seven applicants selected for the eligible register established on September 22, 1981. Walters was rated “well qualified” by the Personnel Department. The register was forwarded on September 23, 1981, to the Department of Parks, Recreation and Cultural Affairs for the selection of a Director. The seven persons on this first, or 1981, register were then interviewed by the panel assembled for that purpose on October 12 and 13, 1981. The interview panel included two white and two black voting members, one of whom was the City’s affirmative action officer. A non-voting white member, Franklin Garrett, official historian of the Atlanta Historical Society, was also present for technical advice to the panel. All of the seven eligible candidates on the register were white.

6. Plaintiff testified that he had wanted to work at the Cyclorama from a very young age, after he had visited the facility. He testified that he had geared his studies with a view toward gaining the skills necessary to become its director.

7. Plaintiff was employed for more than five years by the North Carolina Department of Archives and History as a conservator at the North Carolina Museum of History in Raleigh, North Carolina. He was also previously employed as a state preservationist with the Georgia Historical Commission, Atlanta, Georgia.

8. Plaintiff later worked for Georgia State University in Atlanta. Plaintiff’s supervisor there was Lois J. Secrist. Ms. Secrist testified that plaintiff had been a good employee who got along well with those he had supervised and with whom he had worked.

9. Based upon the interviews and upon the criteria for the job as published in connection with the establishment of the register, plaintiff was found to be one of the three “best qualified” applicants from among the seven “eligible register” candidates for the job. The names of the three best qualified applicants were then forwarded to Commissioner Elder for her consideration on or shortly after October 13, 1981, the date on which plaintiff was interviewed by the panel.

10. Commissioner Elder interviewed the three finalists on this first register shortly after the panel interview.

11. Commissioner Elder asked the interview panel members about the race of the seven persons on the eligible register. She had not interviewed and had not otherwise known the race of the four persons on the eligible register who were not referred to her for selection.

12. The September 22, 1981, register was, under the City’s rules and regulations, valid for six months; only persons on the register could be hired to fill the Cyclorama Director position during the six-month period.

13. Commissioner Elder decided to select no one from the September 22, 1981 register. On December 21, 1981, Elder requested a new register for the following reasons, as stated in a memorandum written by her to defendant Clara Axam, then the Director of Personnel and now Commissioner of Administrative Services:

1. The current register, dated 9-22-81, does not include any minority group representation. A new register would help remedy this situation.
2. The top three (3) candidates recommended to me by the interview panel, Jody Cook, Robert Jones, and Dennis Walters, although qualified, I am concerned about the extent of their expertise in business administration and management which is critical to the Cyclorama becoming a self-sufficient tourist attraction.
If the goal of self-sufficiency is to be accomplished,> clearly a background in history, museum studies, art, or even the Civil War battles themselves, becomes secondary to expertise in business management and finance.

14. In establishing in 1981 the new position of Cyclorama Director, in recruiting candidates for the position, and in conducting interviews, the City properly followed its civil service procedures. The first register expired on March 22, 1982, after it had been in effect for six months.

15. The Court finds that plaintiff was the most qualified of the applicants for the post in 1981 and that plaintiff would have been hired but for the illegal discrimination. The interview panel convened to assess the top seven candidates reached a consensus in placing plaintiff among the top three best qualified. Mr. Fanstill, one of two voting members of the interview panel to testify in this action and the only one to discuss his evaluation of the candidates, testified that he regarded plaintiff as the best applicant for the job. Mr. Fanstill also testified that he had gained the impression from defendant Elder that plaintiff was likely to be named as Director. While the testimony of defendant Elder herself at trial was that she would have preferred another of the top three candidates, the Court gives greater weight at this juncture to the more disinterested testimony of Mr. Fanstill in resolving the conflict of evidence.

16. Effective March 30, 1982, eight days after the expiration of the register established in 1981, and before the June 1 reopening of the Cyclorama to the public, defendants appointed a black female, Carol J. Pinkney, to be Director of the Cyclorama on a provisional basis. Ms. Pinkney had not applied for the Cyclorama Director position during September 1981 and was not on the original register of eligible applicants.

17. Carol J. Pinkney had been the Executive Director of the YWCA of Atlanta from November 1, 1977, to March 21, 1981.

18. Carol J. Pinkney was terminated from her position by the YWCA Board of Directors in March 1981 because of her performance and because of an audit report that revealed unauthorized charges for her automobile and salary discrepancies.

19. From June 1, 1981, to December 31, 1981, Carol J. Pinkney was employed by the campaign organization of defendant Andrew Young in the mayoral election. She received $1,200 per month as a volunteer coordinator in connection with the campaign of defendant Young.

20. Defendant Andrew Young was elected Mayor of Atlanta in late October 1981. Ms. Pinkney remained on the campaign payroll as a “transition team” member.

21. Defendant Shirley C. Franklin, presently Chief Administrative Officer to the Mayor, learned of Ms. Pinkney’s termination by the YWCA during the summer of 1981 when Ms. Pinkney was working on the campaign staff of defendant Young.

22. Carol J. Pinkney was hired by the City on January 19, 1982, as an administrative assistant in the Mayor’s office. Her salary was $709.20 biweekly, which amounted to $1,536.60 per month or $18,-439.20 annually.

23. Carol J. Pinkney’s initial salary with the City ($1,536.60. per month) represented a 28 per cent increase over her salary with the Young campaign staff.

24. Ms. Pinkney’s office was located on the second floor of City Hall near the offices of both defendant Mayor Young and defendant Franklin.

25. On March 19, 1982, eleven days before she was appointed provisional Cyclorama Director, Carol J. Pinkney filed a lawsuit in Fulton County, Georgia, Superior Court against members of the YWCA Board for wrongful discharge arising from her March 1981 termination.

26. Upon her provisional appointment as Cyclorama Director effective March 30, 1982, Ms. Pinkney’s salary increased to $761.30 biweekly, equivalent to $1,649.48 per month or $19,793.80 annually.

27. Mary L. Vance, a white female, was • temporarily performing the job functions of Associate Director of the Cyclorama effective March 30, 1982.

28. Ms. Vance had not applied for the Cyclorama Director’s position during September 1981 and was not on the original register of eligible applicants.

29. Dennis A. Walters, Jr., was not considered for the provisional appointment which Carol J. Pinkney received or for the provisional appointment as Associate Director which Mary Vance received.

30. The City had a policy of preferring transition team members for provisional appointments at this time as a means of bringing its new team to city administration.

31. Eleven persons on Mayor Young’s “transition team”, including Ms. Pinkney, received provisional appointments. The name, race and sex of those persons are:

Name RACE/SEX Arlon Kennedy BM Tsgaye Taye BM Carol Pinkney BF Melinda Bullard WF Clarence Walker BM Marion Jones BF Muriel Francis BF Barbara Barnes WF Mary Vance WF Jackqueline Wade BF Dexter Wise BM

As is evident from the list, not one was a white male.

32. On May 20, 1982, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission, alleging that he was the best qualified applicant for the job and that the City’s failure to hire him was due to his race (white) and sex (male). After several months, the District Director of the Equal Employment Opportunity Commission determined that plaintiff’s charges were well founded, stating:

The evidence of record shows that the Charging Party [Dennis A. Walters, Jr.] applied and qualified for the instant position advertised. Charging party was more qualified that the two females who were hired on a temporary basis. Further, by Respondents^] admission the Charging Party was not selected because there were no minorities on the list of certification, although the position had been properly advertised and processed.

The plaintiff received a “right to sue” letter from the Department of Justice on April 23, 1983, and filed his complaint within the statutory period.

33. Ms. Pinkney’s tenure as provisional Cyclorama Director was not satisfactory. In May 1982, she obligated the City to an advertising and promotional firm without complying with proper purchasing procedures. Resolution of the $20,000 obligation required special action of the Atlanta City-Council to ratify and approve the expenditure.

34. Carol J. Pinkney was abruptly relieved of her duties as provisional Cyclorama Director on November 4, 1982.

35. On her last day of work as provisional Director, Carol J. Pinkney was escorted from the Cyclorama by her supervisor, James Murphy, at the direction of defendant Elder, the Commissioner of Parks and Recreation.

36. On November 8, 1982, four days after her termination, Ms. Pinkney met with defendant Andrew J. Young, and was advised that an attempt would be made to find Ms. Pinkney other employment.

37. Notwithstanding her November 4, 1982, termination, Ms. Pinkney was rehired by the City in its Community Development Department.

38. The Cyclorama Director position remained vacant from November 4, 1982 until a permanent appointment was made in March 1983.

39. On July 22, 1982, the City of Atlanta announced permanent job openings for Cyclorama Director and Associate Director.

40. On the day the position was announced, someone other than Carol J. Pinkney filed an application on Ms. Pinkney’s behalf for the Director’s position.

41. Following the City’s receipt of job applications upon the July 22, 1982 job announcement for Cyclorama Director, the City established a new eligible register for the position of Cyclorama Director on September 17, 1982.

42. One of the applicants was David R. Palmer, a black male.

43. Mr. Palmer had been employed as the City’s Water Service Administrator from December 9, 1980, to July 8, 1981. He was dismissed for poor performance.

44. Palmer’s July 1981 performance evaluation report noted the following specific examples of performance deficiencies:

Failure to accept written delegation of responsibility for vehicle assigned to the section and provide required trip tickets. Continued failure to respond to written requests for information and actions. Continued failure to accept responsibility for correct preparation of credit adjustment petitions.
Does not resolve customer service problems and delinquent account collections within Ordinance guidelines, at his level. Has not acquired job knowledge expected of individual in this position during this period of time.
Issuing instructions to a subordinate to perform a wrongful act.

45. Shortly after Palmer’s 1981 termination as Water Service Administrator, City officials learned that Palmer, while employed full-time for the City as its Water Service Administrator, had also been employed full-time with the Georgia Department of Labor.

46. Palmer applied for the Cyclorama Director and Associate Director positions on August 3, 1982.

47. On September 15, 1982, Palmer was rated not qualified for the Cyclorama Director position.

48. Mr. Palmer appealed the determination that he was not qualified for the Cyclorama Director position. On September 29, 1982, the rating was changed from “not qualified” to “qualified.”

49. The basis for the change to “qualified” was stated to be Palmer’s marketing experience with Heinz Company. The reassessment was the result of a review of Palmer’s resume. That resume indicated that, during the period July 1970 to July 1972, Mr. Palmer worked as an.associate venture manager and product assistant for the H.J. Heinz Company, assigned to the vinegar and salad dressing product group.

50. Plaintiff Dennis A. Walters, Jr., was again rated “well qualified” by the Personnel Department for both the Cyclorama Director and Associate Director positions based upon his application and supporting documentation.

51. Plaintiffs rating of “well qualified” on the September 17, 1982, Cyclorama Director register was based upon an assessment of his credentials in light of a revised position description adopted in June 1982.

52. A panel was convened to interview candidates on the September 17, 1982, register, including plaintiff. On October 14, 1982, in a memorandum to defendant Elder, plaintiff was identified as one of the top three candidates from among the thirteen candidates interviewed. David Palmer was not among the top three candidates.

53. Ms. Pinkney was specifically excluded from the finalists on that register for the following stated reasons:

1. She is not particularly interested in the job. She didn’t want it in the first place, has said that she does not believe in what Cyclorama stands for (which is certainly her right, but not conducive to an enthusiastic performance), and did not intend to interview for the permanent appointment. When asked about this during the interview, she acknowledged it, said that she thought she really belonged in community relations, but that Shirley Franklin had asked her to interview.
2. Her performance has not been equal to her credentials. While she worked under difficult circumstances (a rushed opening, a new building, new staff, etc.), nevertheless there have been a number of problems which should never have occurred: the Brown-Olmstead fiasco; the 22,000 in invoices stuck in a desk drawer and never processed; the Disco for History (my term); the problem with CRI; and the general aura of loose management (phones off the hook, dubious overtime, top level staff not on site, etc.).
3. Ms. Pinkney seems to have no particular regard for the chain of command, but rather tends to deal directly with the CAO. Naturally, her allegiance is to the administration which she worked to elect. Nevertheless, her readiness to go beyond the normal constraints of the chain of command cause others to hesitate in offering suggestions, criticism, or rebukes, however justified they may be.

54. On October 25, 1982, defendant Elder decided to “hold” both the Cyclorama Director and Cyclorama Assistant Director registers.

55. A second round of interviews for Cyclorama Director was conducted during the first week in December 1982. Palmer was interviewed on December 2, 1982.

56. Mr. Palmer had been dismissed by the State of Georgia on November 25,1982, just one week before his interview for the Cyclorama Director position.

57. The State of Georgia assigned the following reasons for terminating Mr. Palmer in November 1982:

1. Conduct reflecting discredit on the department in that on many occasions employers have complained of your dis-courteousness, arrogance and rudeness when making inspections for the Georgia Department of Labor, Inspection Division.
2. Inefficiency in performing assigned duties in that you falsified reports regarding the Atlanta Dispatch Distributors, Inc. Your report stated you spent one hour and fifteen minutes to complete your inspection. Statements from this company indicate that you made no inspection. Incidents of falsified reports are many with written statements to substantiate.

58. David Palmer was hired as Cyclorama Director in March 1983.

59. Palmer was hired by Commissioner Elder.

60. Before hiring Palmer, Commissioner Elder had been advised by Commissioner Chester Funnye of Palmer’s 1981 termination by the City and of his dual employment status.

61. Elder was also advised of Mr. Palmer’s termination at the Water Department by Robert Rivers, who testified that he told Commissioner Elder that Palmer had resigned “under siege.”

62. In May 1983, while David R. Palmer was serving as Cyclorama Director for the City, the State of Georgia reinstated Mr. Palmer to his position in the Georgia Department of Labor.

63. He held the full-time job with the State of Georgia while serving the City as Cyclorama Director, in violation of City regulations.

64. On June 29, 1983, David R. Palmer was fired from his position as Cyclorama Director by Carolyn Boyd Hatcher, the present Commissioner of the Department of Parks, Recreation and Cultural Affairs, because of what she determined to be Palmer’s inadequate job performance.

65. On July 18, 1983, plaintiff filed a new charge of discrimination with the Equal Employment Opportunity Commission, naming the City of Atlanta as a respondent regarding the selection on March 17, 1983, of Palmer, a black male, to be Cyclorama Director. On January 26, 1984, this charge was amended to include the selections of two white females as Director and Associate Director of the Cyclorama.

66. Following the August 15-16, 1983 hearing upon plaintiff’s motion for a preliminary injunction, the City again advertised the Director and Associate Director positions. Plaintiff again applied and was interviewed. Defendants selected Carole Mumford, a white female, to be the Cyclorama Director, and Pam Apple, a white female, to be the Associate Director, effective November 18, 1983.

67. Neither Ms. Mumford nor Ms. Apple had applied for the job in 1981. Ms. Apple applied for neither the Director’s nor the Associate Director's position advertised from July 22 to August 5, 1982. Ms. Mumford applied for both these positions in 1982 and was rated “qualified” for both positions by the City’s Personnel Department. Plaintiff was rated “well qualified” on both of those registers.

68. On March 2, 1984, the EEOC, in a letter of determination, found that there was reasonable cause to believe that the City of Atlanta discriminated against plaintiff on account of his race and in retaliation for filing his first charge of May 20, 1982. As a part of that determination, the EEOC concluded:

The Charging Party applied with Respondent for the position of Director of the Cyclorama three consecutive times and for the position of Assistant Director one time. The Respondent hired two less qualified Blacks and one less qualified white female to fill the Director position and a less qualified female to fill the Assistant Director position during the time period of May, 1982 to the present, 1984.
Therefore based on documents presented there is reasonable cause to believe the Respondent discriminated against the Charging Party in retaliation for his previous charge and, in part, because of his race.

On April 19, 1984, the United States Department of Justice issued plaintiff a notice of right to sue. Within ninety days of the issuance of that notice an amended complaint was filed.

69. Plaintiff proved that, had he been hired as Cyclorama Director on November 1, 1981, he would have earned in salary and fringe benefits the following amounts through March 31, 1985:

a. 1981: $ 3,823.07 b. 1982: 25,113.80 c. 1983: 27,687.91 d. 1984: 28,971.75 e. 1985: 7,479.13 Total $93,075.66

70. Plaintiff actually earned the following amounts between November 1, 1981, and March 31, 1985:

a. 1981: NONE b. 1982: NONE c. 1983: $ 4,150.00 d. 1984: 14,400.00 e. 1985: 3,900.00 Total $22,450.00

Plaintiff’s explanation for his lack of income for part of 1981 and for all of 1982— that he devoted all that time to obtaining the Directors position and that, because he expected in good faith to receive the appointment, he felt it improper to accept other employment under the pretense that he intended to be a long-term employee— was credible in the circumstances of this case and satisfied the Court. Plaintiff has shown a remarkable degree of patience and endurance in bringing this suit to its conclusion; he has shown far greater persistence in attaining his goal than other plaintiffs who have come before this Court.

71. As of April 1, 1985, plaintiff earned $1,300 per month at Fulton Hardware Store. He receives no fringe benefits other than his employer’s required contribution for social security. Had he been employed as Cyclorama Director on November 1, 1981, his earnings with the City of Atlanta as of April 1, 1985, would have been as follows:

Salary: $2,060.00 per month Benefits: 606.05 per month (29.42% _ of salary) Total $2,666.05

Thus, the total current salary differential between the Cyclorama Director’s position and plaintiff’s current position is $1,366.05 per month.

72. Plaintiff has established that prejudgment interest upon his back pay ($93,-075.66 less interim earnings of $22,450.00 for a net of $70,625.66) is $18,903.01.

73. The parties have agreed that, had plaintiff been employed as Cyclorama Director on November 1, 1981, his salary as of March 31, 1985, would be $24,720 per annum based upon the current salary for a position classified in Salary Range 71, Step 4. The parties’ agreement reflects adjustments to the “salary range” of the Cyclorama Director’s position, as well as annual “step” increases plaintiff would have received on the anniversary of his hire, assuming satisfactory performance. Accordingly, the Court finds that plaintiff’s current salary as Cyclorama Director would be $24,720 per annum had he been hired on November 1, 1981.

74. After trial, Carole Mumford, present Director of the Cyclorama, moved to intervene. The Court conducted an evidentiary hearing on her motion, at which she testified, and her motion is denied in a separate, contemporaneous order.

75. There is conflicting evidence as to whether Ms. Mumford knew of the possibility of her replacement as a result of this lawsuit when she accepted her present post. Carolyn Boyd Hatcher, the present Commissioner of Parks, Recreation and Cultural Affairs, testified, at the trial on the merits, that she was “fairly clear” about Ms. Mumford’s being advised of the possibility of displacement. Ms. Hatcher testified that she thought Ms. Mumford was “aware of that and that it could be an eventuality.” Ms. Mumford, on the other hand, states in an affidavit that she had “no knowledge, notice or information at the time [she] decided to accept the position with the Cyclorama that [her] job would in any way be conditional, contingent or temporary.”

76. Ms. Mumford did testify, however, at the hearing on the motion to intervene, that plaintiff had discussed or threatened a lawsuit before she assumed the position as Director. Given that fact, and the fact that this action had come before the Court on plaintiff’s motion for preliminary injunction after Mumford had applied for the position on an earlier occasion and before she became Director, the Court finds that she was, at the very least, on inquiry notice about this lawsuit and plaintiff’s request for placement in the Director’s position.

77. Ms. Mumford attended a conference of defendants and defense counsel before the two-week trial in order to prepare testimony for the trial. She was informed by defense counsel of plaintiff’s prayer for relief, but, in light of defense counsel’s advice to her that there was little likelihood of her displacement as a result of the case, she failed to intervene. Ms. Mumford was aware of the hearing on instatement but was told by defense counsel that her presence was not necessary.

Ultimate Findings of Fact and Conclusions of Law

1. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343 and section 706(f) of Title VII of the Act of 1972 (“Title VII”), 42 U.S.C. § 2000e-5(f)(3). All conditions precedent to the maintenance of this action under Title VII have been satisfied. Plaintiff is protected by section 703 of Title VII, 42 U.S.C. § 2000e-2(a), which prohibits discrimination against whites as well as blacks. McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976). Plaintiff is also protected by section 704 of Title VII, 42 U.S.C. § 2000e-3(a), which prohibits an employer from discriminating against an applicant for employment because he has made a charge under Title VII.

2. Plaintiff proved that defendant City of Atlanta, through its officers and agents, intentionally discriminated against him on account of his race. The Court concludes that, but for plaintiff’s race, plaintiff would have been hired as Cyclorama Director by November 1, 1981.

3. Discrimination that is illegal under Title VII may be proved by direct or circumstantial evidence. “[W]hen there is direct evidence ‘that the defendant acted with a discriminatory motive, and the trier of fact accepts this testimony, the ultimate issue of discrimination is proved.’ ” Thompkins v. Morris Brown College, 752 F.2d 558, 563 (11th Cir.1985) (quoting Bell v. Birmingham Linen Service, 715 F.2d 1552,1557 (11th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 2385, 81 L.Ed.2d 344 (1984)). As the Eleventh Circuit has explained,

Once an unconstitutional motive is proved to have been a significant or substantial factor in an employment decision, defendant can rebut only by proving by a preponderance of the evidence that the same decision would have been reached even absent the presence of that factor.

Lee v. Russell County Board of Education, 684 F.2d 769, 774 (11th Cir.1982). When substantial direct evidence of discrimination, sufficient to establish that discrimination was a significant factor in an employment decision, has been shown, the allocation of proof prescribed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and explained in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), does not apply. Simmons v. Camden County Board of Education, 757 F.2d 1187, 1189 (11th Cir.1985) (per curiam).

Plaintiff presented credible, substantial direct evidence of discrimination that was a significant factor in the decisions not to employ him. First, plaintiff proved that Commissioner Elder allowed the September 1981 register of qualified applicants to expire after she asked the interview panel about the race of the persons on the register. Second, Elder’s motives were manifest in the December 21, 1981 memorandum to Commissioner Axam that discussed the lack of minority group representation on the September 1981 register. The attention to the number of minority persons on the qualified register, instead of the number of applications from such persons, is particularly telling; since over forty percent of the applicants were black, there was no evident lack of opportunity that needed redress. Third, plaintiff had been rated well qualified by the Personnel Department, was selected as among the three best candidates by the interview panel, and was considered the best qualified applicant by the only voting panel member who testified in Court as to his preference. There is no evidence that the interview panel saw the best applicants as falling short of the desired qualifications. Fourth, Commissioner Elder’s professed reason for failing to hire anyone from the register does not outweigh her obvious concern with race, because plaintiff was again rated well qualified later when the job description was modified to address her professed concerns about marketing.

4. Where a plaintiff adduces circumstantial evidence of discrimination, the allocation of proof as set forth in McDonnell Douglas and Burdine applies:

First, the plaintiff has the burden of proving by the preponderance of the evidenee a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
... The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.

Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093 (quoting McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825) (citation omitted). Plaintiff has presented credible circumstantial evidence.

5. Plaintiff established a prima facie case of racial discrimination by showing that he is white; that he was well qualified for the job in question; that, despite his qualifications, he was not hired; and that defendant City of Atlanta later hired a person of another race. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1130-31 (11th Cir.1984). Defendant City of Atlanta’s asserted reason for plaintiff’s nonselection in the fall of 1981, namely a shift in focus for the Cyclorama Director position and a concern for the qualifications of the top three candidates, was a pretext for discrimination. The Court concludes that, had plaintiff been black, he would have been hired on November 1, 1981, some two weeks after plaintiff’s October 13, 1981, interview with Commissioner Elder. It is reasonable to conclude that, but for the discrimination, plaintiff would have been in place as Cyclorama Director by November 1, 1981.

The jury found that defendant Geraldine Elder was liable for racial discrimination against plaintiff in the decision to allow the 1981 register to expire. The jury did not, however, in its advisory capacity find the City liable under Title VII for that decision. On that point alone the Court’s decision on the Title VII claims differs from the advisory decision of the jury. The Court finds that the City bears responsibility for Elder’s action because she was an officer whose acts were fairly chargeable to the City itself. In all other respects the Court adopts the advisory decision of the jury on the Title VII claims.

The Court also concludes that the City engaged in further acts of racial discrimination in the selections of Ms. Pinkney as provisional Director in March 1982 and of Mr. Palmer as Director of the Cyclorama in March 1983. Both appointees were less qualified than plaintiff, and the City’s reasons for hiring them were a pretext for racial discrimination.

On the other hand, plaintiff did not prove a case of gender-based discrimination. One of the three best candidates on the first register was a white woman; she, too, failed to be appointed. Later, in March 1983, a black man was appointed Director. The appointment of a black woman, Carol Pinkney, as provisional Director was an instance of racial, not gender-based, discrimination.

6. In order to prove retaliation, a

plaintiff must establish (1) that there was a statutorily protected participation, (2) that an adverse employment action occurred, and (3) that there was a causal link between the participation and the adverse employment action.

Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d 1325, 1328 (5th Cir.1980). In this case, plaintiff established that he engaged in protected participation by filing his EEOC charges and this lawsuit; that his application was passed over in October 1982, again in March 1983 when Mr. Palmer was hired, and again in November 1983 when Carole Mumford and Pam Apple were appointed Director and Associate Director; and that those adverse actions occurred in retaliation for his charges of discrimination and this lawsuit.

' 7. Plaintiff is presumptively entitled to back pay, including fringe benefits. Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-423, 95 S.Ct. 2362, 2371-74, 45 L.Ed.2d 280 (1975). Plaintiff proved that his earnings with the City would have been $93,075.66 and that he actually earned $22,-450.00. Defendant City of Atlanta is entitled to an offset for plaintiffs interim earnings.

8. Defendant City of Atlanta claims that plaintiff acted unreasonably in failing to mitigate damages. The burden of establishing plaintiffs lack of diligence is upon the City. Nord v. United States Steel Corp., 758 F.2d 1462, 1470-71 (11th Cir.1985). The Court finds that defendant City of Atlanta failed to prove any lack of diligence on plaintiffs part. The City’s evidence of other, lower-paying City positions for which plaintiff was qualified is not enough to meet the City’s burden to show a lack of due diligence. Even assuming that plaintiff might have been offered one of the lower-paying positions, he was under no duty to accept a job not substantially equivalent to the one he was denied. See Ford Motor Co. v. EEOC, 458 U.S. 219, 231-32, 102 S.Ct. 3057, 3065-66, 73 L.Ed.2d 721 (1982). As discussed above in the findings, plaintiff satisfied the Court that he was reasonably unable to earn more than he did.

9. Plaintiff is entitled to back pay of $70,625.66.

10. Plaintiff is also entitled, under Title VII, to an award of prejudgment interest on his back pay in an amount computed in accordance with the adjusted prime rate established by the Internal Revenue Service in accordance with 26 U.S.C. §§ 6621 and 6622. EEOC v. Wooster Brush Co. Employees Relief Association, 727 F.2d 566, 578-579 (6th Cir.1984), affg in part 523 F.Supp. 1256 (N.D.Ohio 1981) (award at adjusted prime); EEOC v. Pacific Press Publishing Association, 482 F.Supp. 1291, 1319-1320 (N.D.Ca.1979), affd, 676 F.2d 1272 (9th Cir.1982); Association Against Discrimination in Employment v. Bridgeport, 572 F.Supp. 494 (D.Conn.1983); see EEOC v. County of Erie, 751 F.2d 79 (2nd Cir.1984) (FLSA and Equal Pay Act case).

11. The interest is calculated from the end of each calendar quarter, on the amount then due and owing. Fadhl v. Police Department of the City and County of San Francisco, 553 F.Supp. 38 (N.D. Cal.1982); see Florida Steel Corp., 96 L.R. R.M. 1070, 1072 (1977) (NLRB rule: “we shall require that backpay be computed utilizing the Woolworth formula [F.W. Woolworth Co., 26 L.R.R.M. 1185 (1950)], with interest to accrue commencing with the last day of each calendar quarter of the backpay period on the total amount then due and owing at the ‘adjusted prime rate’ then in effect and continuing at such rate, as modified from time to time by the Secretary of the Treasury).” The Eleventh Circuit, in considering the question of when back pay accrues under Title VII, has adopted the NLRB quarterly earnings formula. Darnell v. City of Jasper, 730 F.2d 653, 656-657 (11th Cir.1984). Since the Eleventh Circuit has concluded that back pay itself accrues on a quarterly basis, then the award of prejudgment interest on the back pay amount should also.

12. The amount of prejudgment back pay interest to be awarded is $18,903.01.

13. Title VII provides plaintiff an action for equitable relief, not for damages. Although the Court has discretion to award front pay instead of placement in a job,

[i]t is the duty of a district court, after a finding of discrimination, to place the injured party in the position he or she would have been absent the discriminatory actions.

Nord v. United States Steel Corp., 758 F.2d 1462, 1470-71 (11th Cir.1985). See also Darnell, 730 F.2d at 656.

In light of the circumstances of this case, and after a careful weighing of the equities of all parties involved, the Court concludes that plaintiff is entitled to be placed in the position of Cyclorama Director. The position is unique in the Atlanta metropolitan area: with the exception of art museums, no facility remotely comparable to the Cyclorama exists. Furthermore, plaintiffs qualifications are uniquely suited to the position of Cyclorama Director.

Defendant City of Atlanta was on notice, by virtue of the evidence presented at the preliminary injunction hearing, of the strength of plaintiffs claims. The Court advised defendant at the conclusion of the hearing, when the Cyclorama Director position was vacant, that it considered plaintiff to have a “legitimate complaint”; in the order denying the preliminary injunction the Court found that plaintiff had established a likelihood of prevailing on the merits. Thus, the Court finds that the City knew or should have known that placement of plaintiff as Director, included in plaintiffs prayer for relief, could be ordered by this Court.

The Court has taken into consideration the good performance of Ms. Mumford as Cyclorama Director and her explanation of the choice she made in taking the post. Had she elected to participate in the trial, and had she testified at trial to the same effect as at the hearing on the motion to intervene, the Court nevertheless would have reached the same conclusion, for reasons expressed more fully in the order on her motion to intervene at pages 5-6, and incorporated hereby.

14. Plaintiffs beginning pay shall be $24,720, the amount plaintiff would be earning had he been hired as Cyclorama Director on November 1, 1981. Defendant City of Atlanta shall credit plaintiff for all leave (both annual and sick) plaintiff would have earned since November 1, 1981, if he had been continuously employed with the City as Cyclorama Director since November 1, 1981. Defendant City of Atlanta shall also credit plaintiff with any other fringe benefits he would have earned as a City employee. Furthermore, if there is a change in the circumstances in the status of either plaintiff or the City before plaintiffs actual assumption of office, either party may petition the Court to modify the amount of front pay based upon the changed circumstances.

15. Defendant City of Atlanta shall pay plaintiff front pay beginning on April 1, 1985 (the back pay period ended on March 31, 1985) until the date plaintiff is actually employed as Director. The amount of such front pay shall be $1,366.05 per month until plaintiff is actually placed on the job. Plaintiff shall be paid twice per month or, if the City routinely pays its employees more frequently, then it shall pay plaintiff with the same frequency that it pays its other employees. Either party may petition the Court to modify the amount of front pay in light of changed circumstances.

16. In light of the agreement of the parties that interest shall run upon the verdict from April 5, 1985, the Clerk is directed, upon the entry of judgment in this case, to compute post-judgment interest as if a judgment were entered on April 5, 1985.

17. Plaintiff, as prevailing party in this action, is entitled to an award of attorney’s fees. In accordance with Local Rule 270-1, plaintiff shall file his motion for attorney’s fees not later than ten days prior to the expiration of the time within which the opposing party can file a timely notice of appeal from the judgment finally entered in this case. Within 30 days after filing that motion, plaintiff shall file and serve a detailed specification and itemization of the requested award, with appropriate affidavits and other supporting documentation. However, since defendants have already stipulated that $85 per hour is not an unreasonable base hourly rate, plaintiff is not required to present additional evidence on the reasonableness of an award at $85 per hour.

In light of the findings and conclusions set forth above, the Court FINDS:

(1) that plaintiff has prevailed on his Title YII claims of race discrimination and retaliation against defendant City of Atlanta;
(2) that plaintiff is entitled to be placed no later than June 3, 1985 in the position of Cyclorama Director by the City of Atlanta at a current yearly salary of $24,720;
(3) that plaintiff is entitled to receive from the City back pay of $70,625.66 through March 31, 1985;
(4) that plaintiff is entitled to receive from the City prejudgment interest upon the back pay in the amount of $18,903.01;
(5) that plaintiff is entitled to receive from the City front pay in the amount of $1366.05 per month from April 1, 1985 until plaintiff assumes the post of Director of the Cyclorama;
(6) that plaintiff is entitled to receive from the City interest upon the amounts specified in paragraphs (3) through (5) at the applicable post-judgment interest rate dating from April 5,1985, until judgment is satisfied; and
(7) that plaintiff is entitled to recover from the City his costs and attorney’s fees in an amount to be determined by the Court in accordance with Local Court Rule 270-1.

      . The City is jointly and severally liable with defendant Geraldine Elder for $9500 of this sum by virtue of the jury's verdict in that amount against Elder for back pay on plaintiffs section 1981 claim. The damages other than back pay awarded by the jury on plaintiffs section 1981 claims are unaffected by these findings and will be incorporated in the final judgment.