Mann v. City of Albany (883 F.2d 999, 1989)

KRAVITCH, Circuit Judge:

J. Dale Mann, a white male, claims a violation of certain of his constitutional and statutory rights stemming from a hiring decision made by the City of Albany, Georgia, in accordance with a policy that the City adopted in response to a federal-court decree. That decree ended an anti-discrimination suit filed on behalf of black employees and job applicants of the City, Johnson v. City of Albany, 413 F.Supp. 782 (M.D.Ga.1976) (Johnson). Mann was not a party to Johnson; nevertheless, the district court held that Mann was barred from contesting the City’s policy on grounds of res judicata. In the alternative, the court held that Mann had not stated a claim for relief under federal law. Concluding that the doctrine of res judicata does not bar Mann’s claim, we remand the action for further proceedings consistent with our opinion herein and the Supreme Court’s recent decision in City of Richmond v. J.A. Croson Co., — U.S. —, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989).

I. Background

We begin with Johnson in order to place in context Mann’s challenge to the City’s employment practices. That suit arose out of a strike by black employees precipitated by the firing of an employee who had sought to unionize city workers; some of the strikers were terminated and not rehired. Six named individual plaintiffs representing a class of former, present and future black employees of the City of Albany sued the City, its Board of Commissioners, its Water, Gas and Light Commission, and several individual officials, alleging that the defendants were engaged in a pattern or practice of discrimination against black job applicants, incumbent black employees, and black dischargees. The defendants denied the allegations in the complaint. After four years of litigation culminating in a two-day trial, during which the district court undertook a detailed review of the City’s hiring and employment patterns, the court concluded that “[f]rom an overall standpoint in every respect white employees and applicants for employment were favored over black employees and applicants for employment.” 413 F.Supp. at 799. Finding that the illegal patterns and practices were likely to continue into the future, the district court held that the plaintiffs were “entitled to a permanent injunction against the City of Albany and the defendant officials including their successors in office.” 413 F.Supp. at 800. The City did not appeal this order.

In a subsequent order, the court issued a comprehensive injunction, relevant portions of which provided as follows:

3. To further insure equal employment opportunities the defendants within 180 days shall study all employment policies, all jobs, job classifications and descriptions, rates of pay, employee benefits and seniority rules of all City of Albany employees and shall prepare and submit to the court proposed uniform employment policies, job classifications and descriptions, rates of pay, employee benefits and seniority rules. To the extent not disapproved of by the court in writing within thirty (30) days after filing, such uniform employment policies, job classifications and descriptions, rates of pay, employee benefits and seniority rules shall be thereafter utilized by the defendants.

4. The objective of this order is to correct the imbalance in employment opportunity that now exists by first creating a plan having as a goal the achieving of a work force in which the proportion of total black employees to total white employees viewed (a) overall, (b) by job classification and description, (c) by department, and (d) by rate of pay, is at least equal to the proportion of blacks to whites in the working age population as shown by the most recent Albany, Georgia, Standard Metropolitan Area reports of the Bureau of Census. Until that objective is reached the defendants subject only to the availability of qualified applicants, shall fill at least one-half of all job vacancies by hiring or promoting black persons.

7. In filling job vacancies the person making the hiring decision shall first consider all qualified [black applicants who are currently employees of the City of Albany or who in the past were refused employment on account of race] and who have either through a current application for employment or notice to the Central Employment Office, indicated an interest in being considered. ...

If no such qualified priority person is willing to accept the job vacancy, the person making the hiring decision shall proceed to consider every current, pending application on file in the Central Employment Office and every present employee who has notified the Central Employment Office of a desire to be considered. From persons thus found to be qualified the job vacancy shall be filled consistent with the employment goals herein set.

11. Any person who believes that he has been discriminated against on account of race or that the provisions of this order have been violated, may file a written complaint with the Central Employment Office. The Central Employment Office shall investigate the complaint and seek to resolve it. Within fifteen (15) days after the complaint is filed, a report stating the nature of the complaint and the action taken on it shall be filed in the Central Employment Office and a copy of it given to the complaining party. Such reports shall be submitted to the court at regular intervals along with the other materials which the defendants are required to submit as prescribed herein. If the complaining party is not satisfied with the results as contained in the report, he or she may, within sixty (60) days of the date of receipt of the report, file a motion with the clerk of this court to have the court determine the matter. The clerk shall cause a copy of the motion to be mailed to the defendants, who shall respond to it within ten (10) days. The clerk shall then refer the motion and the response to the court. Proceedings shall thereafter be in accordance with the Federal Rules of Civil Procedure.

13. ... Jurisdiction continues ... for the purpose of issuing any additional orders or decrees needed to clarify or enforce this injunction or to effectuate Title VII of the Civil Rights Act of 1964.

Johnson v. City of Albany, Civil Action No. 1200, permanent injunction at 2-8 (M.D.Ga. Sept. 2, 1976) (footnote omitted; emphasis in original).

A number of city jobs are occupied by a single office-holder at any one given time. As it was plainly impossible to achieve a current sixty to forty per cent ratio of majority to minority workers in a “single-incumbent position,” the City formulated a policy for filling single-incumbent positions by which a qualified applicant from a racial background different from the incumbent’s enjoys an absolute preference over any qualified applicant from the incumbent’s racial group. The City states that this policy was submitted to the district court pursuant to paragraph three of the injunction, and, as the court never explicitly rejected the policy, the City urges that it became fully binding under the decree.

In 1985, along with three other qualified individuals, Mann applied for the position of Assistant Police Chief of the City of Albany. The City employs only one Assistant Police Chief, and the incumbent immediately prior to the vacancy was white. Pursuant to the City’s policy for single-incumbent jobs, the position of Assistant Police Chief was given to appellee Washington Long, the only qualified black applicant. In response to Mann’s inquiry concerning the selection procedure, the City’s personnel director wrote as follows:

In reaching the selection, the Police Chief was bound by the provisions of the [Johnson decree]. Specifically, one half of all job vacancies must be filled, subject to the availability of qualified applicants, by hiring or promoting black persons.

Due to the previous selection being white and the fact that there was a qualified black person who applied for the job, the selection had to be black to comply with the provisions of the [