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United States v. Pinellas County Florida

United States District Court, M.D. Florida, Tampa Division

September 30, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
PINELLAS COUNTY FLORIDA, et al., Defendants.

          ORDER

          STEVEN D. MERRYDAY UNITED STATES DISTRICT JUDGE.

         The United States' complaint was filed on July 24, 1980.[*] Only one week earlier, the Republican Party had nominated Ronald Reagan for president, and only three weeks later the Democratic Party would nominate then-President Carter for a second term. The military of the now-defunct and unlamented Soviet Union was the unfortunate force then resigned to the sempiternal war in Afghanistan.

         Featuring the signatures (in 1980, still pen and ink) of Attorney General Benjamin Civiletti and Assistant Attorney General Drew H. Days, III, the original complaint sues Pinellas County, Florida; the five County Commissioners of Pinellas County; the Chairman of the Personnel Board of Pinellas County; William T. Roberts, the Sheriff of Pinellas County; Sanford Jasper, the Tax Collector of Pinellas County; and even Fred Marquis, the Interim County Administrator. The complaint alleges that the defendants had violated a formidable array of federal statutes and infringed sundry constitutional rights:

This action is brought by the Attorney General on behalf of the United States of America to enforce the provisions of Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e et seq.; the State and Local Fiscal Assistance Act of 1972, as amended, 31 U.S.C. § 1221 et seq.; the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3766(c)(1), et seq., as amended (Public Law No. 90-351, as amended by Public Law No. 91-644,, Public Law No. 93-83, Public Law No. 93-415, Public Law No. 94-430 and Public Law No. 94-503); and for the purposes of protecting and enforcing rights guaranteed by the Fourteenth Amendment to the Constitution of the United States.

(Doc. 41-1 at pg. 1, ¶ 1) With an alacrity that evidences some untold tale lurking behind these opaque proceedings, the County Attorney on the same day - July 24, 1980 - answered on behalf of all defendants (apparently no service of process occurred and no conflict of interest was detected among the defendants, each of whom was represented by the Pinellas County attorney).

         About a month later, the parties stipulated to an amended complaint, designed by the plaintiffs “to give this court jurisdiction over all of the persons who have agreed to the Consent Agreement in settlement of this action.” The amended complaint joined the Personnel Director, the Pinellas County Personnel Board, the Clerk of the Circuit Court, the Property Appraiser, and the Supervisor of Elections.

         Like the original complaint, the amended complaint alleges that the defendants (the allegations are directed collectively at “the defendants”) “discriminate against women, Spanish-surnamed Americans and blacks with respect to recruitment, hiring, assignment, and promotional opportunities within all the agencies and departments of Pinellas County.” (Doc. 41-5 at 5, ¶ 17) Further, the amended complaint alleges that after an investigation, conducted with notice to the defendants, the United States discovered that “[t]he defendants and their officials have failed and refused to eliminate the effects of their past discriminatory policies and practices” and that “[u]nless restrained by order of this Court, the defendants and their officials will continue to pursue policies and practices the same as or similar to those alleged in this complaint.” (Doc. 41-5 at 5, ¶ 20)

         Soon after the amended complaint, Judge Wm. Terrell Hodges conducted a “status conference” at least in part because a review of the parties' submissions prompted a question about “whether, in the absence of a judicial determination of past discrimination, present employees of the Defendant County who are directly affected as a class by the provisions of the [parties' proposed consent] agreement, should be given notice and an opportunity to be heard.” (Doc. 41-7, Att. G, at 1) Judge Hodges ordered the parties to brief the question.

         Instead of submitting briefs directed to the question Judge Hodges identified, the parties submitted a stipulated consent agreement (Doc. 41-8, Att. H) that, among other changes, amended the proposed consent agreement to “reserve” the question of “job classification” and certain “promotional issues.” The plaintiff and the defendants each submitted a brief (Doc. 41-9, Att. I, and Doc. 41-10, Att. J, respectively) in support of adoption of the modified consent agreement. The plaintiff's brief included citations to authority and legal argument, but the defendants' brief comprised three paragraphs, only one of which, the second paragraph, comprising one sentence, stated anything substantive:

The Defendants deny that they have violated any law and reemphasize that the signing of this Consent Agreement does not constitute an admission of any violation of law by any Defendant.

         On December 11, 1980, and by an order that notes, “The consent agreement expressly stated, however, that it did not constitute an admission by the Defendants of any violation of law” (Doc. 41-11, Att. K), Judge Hodges approved the amended consent agreement “as an enforceable decree of the Court.” The fourteen-page (plus exhibits) consent agreement includes in paragraph 4 a specific statement of objectives:

The Defendants shall as a long range goal seek to recruit, hire, assign, and promote blacks, Spanish-surnamed Americans, and women in sufficient numbers so that ultimately their composition in each job classification, except as otherwise noted in the paragraphs below, shall be eleven percent (11%) black, two percent (2%) Spanish-surnamed American, and twenty-five percent (25%) female in traditionally non-female job classifications as defined in paragraph 10 of this Consent Agreement. These ultimate goals shall be modified by agreement of the parties, if appropriate, to reflect changes in the 1980 civilian labor force census figures if this Consent Agreement is still in effect when such figures become available.

         The consent agreement remained in effect when the 1980 figures became available, but the record reveals no effort - then or now - to effect the agreed “modification” mentioned in paragraph 4. Apparently, neither party proposed anything - then or now.

         The core of the present dispute resides in paragraphs 20 and 21 of the consent agreement, the paragraphs that govern “records” and that require the retention of certain records by the Sheriff and the disclosure of those records on DOJ's request, if requested “not so frequently as to be burdensome”:

20. The Defendants shall retain during the period of this Consent Agreement all records relating to the recruitment, selection, promotion and training of applicants and employees, which shall be identifiable by race and sex, including applications, which shall be made available to the Department of Justice for inspection and copying upon written request. In addition, the Defendants shall provide the Department of Justice with copies of records and written reports upon written request by the Department, provided that such requests shall not be made so frequently as to be burdensome.
21. The Defendants shall maintain the following records which shall be provided to the Department of Justice semi-annually, beginning on June 1, 1981, for the six-month period ending April 30, 1980.
(a) A chart indicating by department and by job classification the total number of employees by race, sex and national origin.
(b) A report of all newly hired employees by job classification and Department indicating the name, race, sex, national origin and job classification of each person hired since the last report was filed .....
(c) A report of all promotions to vacancies giving the name, race, sex, national origin and date of hire of the employee promoted and the date of the promotion for each job classification .....
(d) A list of all persons, by job classification and Department, to whom hire or promotion has been offered under paragraph 16 supra, of this Agreement and whether ...

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