Alleged bias case involving water department, African-American employees slogs along

Sunday, September 18, 2011 at 9:00pm

Seven years since the initial federal filing of Grant, et al v. Metro Government of Nashville, et al, which claims racial discrimination within Metro Water Services under Title VII of the Civil Rights Act of 1964, the case has cost vast amounts of legal time and money.

And as with any major case involving such claims — as well as high stakes — against a government department, it plods forward, stumbling backward at times along the way.

Last month, the U.S. Court of Appeals for the 6th Circuit threw another obstacle in the track of a class-action suit encompassing potentially hundreds of current and former African-American workers at the water department.

The latest developments surround a 6th Circuit opinion filed on Aug. 26 in which a panel of judges decided 2 to 1 to reverse a July 2010 ruling by the U.S. District Court for the Middle District of Tennessee. That original ruling found that Metro Water employment practices caused a disparate impact on its black employees.

Issued by District Judge William J. Haynes Jr., the 2010 ruling imposed injunctive relief for the plaintiffs, potentially entitling hundreds of employees affected to back pay, the amount of which was to be determined by an appointed “special master.” The ruling also prohibited the water department “from conducting oral interviews for MWS promotions, imposing an interview requirement for MWS lateral transfers, and ordering a [another] Special Master to conduct oral interviews and validate all MWS job requirements.”

Metro Department of Law documents show that starting last October, monthly invoices billed to Metro totaled more than $273,000 in expenses and services rendered for work done by the two special masters appointed to oversee promotions within the water department and also calculate the amount of back pay to be awarded to the plaintiffs following the 2010 district court ruling.

Last month’s court ruling would appear to have erased the appointment of the two special masters and have undone nearly a year’s amount of expenses involved.

“I’m confident that the plaintiffs will appeal that, but as we sit here today, we’re in good shape,” Metro attorney Kevin Klein told members of the Civil Service Commission last Tuesday. With the case still pending, a water department spokeswoman directed a request for comment to Metro attorneys. 

In a interview with The City Paper, an attorney for the plaintiffs, Martin D. Holmes of Nashville-based firm Dickinson Wright PLLC, agreed the stakes are high.

“It affects potentially every African-American employee who has worked at Metro Water since Jan. 1, 2000, in terms of discriminatory pay practices and discriminatory promotional and lateral transfer practices,” Holmes said.

In 2004, nine African-American Metro Water Services employees (current and former and eventually certified as a larger class action) filed a federal suit claiming the water department violated their civil rights through employment practices regarding promotions, discipline, job assignments, accommodations and salaries. The employees sought relief from what they saw as a hostile work environment and claimed they were victims of discrimination, according to court filings.

In 2008, the case finally made its way through a nine-day trial in which a jury heard testimony from more than 20 witnesses, including two expert witnesses — one on each side — who analyzed statistical data regarding the water department’s personnel moves. 

Following the jury’s original verdict in favor of Metro, the plaintiffs moved for a new trial, claiming that verdict ran against the grain of the statistical evidence presented at the trial. The water employees also claimed misconduct on the part of a Metro attorney overseeing the case at the time. Haynes agreed, setting the previous verdict aside and opening the door for a new trial.

A new set of Metro attorneys challenged that ruling at the 6th Circuit, where a three-judge panel told Metro it couldn’t appeal the lower court’s decision until after the new trial. But in a bit of an aside, the appeals court opined that it didn’t find evidence in the record of misconduct by the previous Metro attorney, leaving some wiggle room to argue against part of the basis of the district court’s decision.

That appellate court panel, under the rules of Title VII, directed the district court to rule on the disparate impact portion of the case. Haynes followed through, finding in July 2010 that the evidence showed proof that within the water department qualified black employees were passed over for jobs that went to less-qualified white employees.

Metro later challenged that ruling, and another appellate court panel on Aug. 26 of this year issued an opinion to reverse Haynes’ order on injunctive relief, stating that the district court erred in its decision.

Circuit Judge Eric L. Clay, however, disagreed with the majority — Chief Judge Alice M. Batchelder and Circuit Judge Jeffrey S. Sutton — stating in his dissent that the two ignored a significant record of hundreds of documents of evidence and because Haynes committed “no error of law” and the findings of his decision were not “clearly erroneous” and the majority “cites no legal authority to support its conclusion.”

In addition, last week, on the same day Metro legal counsel advised the Civil Service Commission of the 6th Circuit’s reversal, the plaintiffs filed a petition asking the full 6th Circuit Court to reconsider Metro’s challenge. That petition states, “Although the liability period covers over 11 years, the overwhelming proof establishes decades of discriminatory practices at MWS. Further, as noted by the dissent, this case has even more significance because the Defendant is a major public employer.”

Now a new jury trial must be held to determine whether the water department intentionally discriminated against its black employees. Also, the district court’s ruling on the injunctive relief awarding the plaintiffs back pay and imposing restrictions on Metro water employment practices could be unraveled.

For Metro, the stakes include a potential cost of millions of dollars in awarded back pay to those employees along with the cost of paying the appointed special masters to determine that back pay and evaluate the promotional practices.

The plaintiffs still hope for vindication that they have indeed suffered by watching job requirements seemingly bent as less qualified white co-workers were awarded jobs they stood to gain.

But even seven years since the plaintiffs’ initial complaint, any final outcome in the already convoluted case stacked with mountains of court filings appears far from over.

“If the Plaintiffs’ appeals are denied,” Klein said in a statement, “Metro will go forward with a retrial of the intentional discrimination claims, where the Metropolitan Government hopes to prove — again — that the Water Department did not discriminate against anyone.”