Reynolds v. Dept/Transportation, et al

Filing 9212

OPINION. Signed by Honorable Judge Myron H. Thompson on 6/7/17. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
JOHNNY REYNOLDS, et al.,

)
)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
ALABAMA DEPARTMENT OF
TRANSPORTATION, et al.,
Defendants.

CIVIL ACTION NO.
2:85cv665-MHT
(WO)

OPINION
Now before the court is the final chapter in a long
story

for

the

non-black

case in the 1990s.

intervenors

who

joined

this

They joined the lawsuit to ask the

court to reconsider certain race-conscious provisions
in

a

proposed

consent

decree

between

the

original

plaintiffs to this action and the original defendants,
which included the Alabama Department of Transportation
(ALDOT). As a result of their intervention, a consent
decree was entered in 1994 without the race-conscious
provisions to which they objected.

After a partial

settlement

agreement

with

defendants

resolving

their

claims for monetary relief through May 29, 2001, the
intervenors brought individual-contempt claims by which
they

asserted

that

the

defendants’

contempt--in

the

form of delayed implementation of certain actions under
the consent decree--caused them further harm.
this

moment,

the

only

remaining

claims

As of

between

the

intervenors and the defendants are claims relating to
actions under Article 15, paragraph 1 of the consent
decree; these claims involved 213 individuals.
The
proposed

intervenors

and

settlement

the

agreement

individual contempt claims.
the

intervenors

and

defendants

the

of

reached

the

a

remaining

Upon a joint motion from
defendants,

the

court

considered and preliminarily approved that settlement
agreement

and

provisionally

settlement class.

certified

the

proposed

After preliminarily approving the

settlement agreement and provisionally certifying the
proposed settlement class, the court directed that the
2

parties provide notice to the members of the proposed
settlement class and to all current ALDOT employees.
After allowing time for the filing and reporting of
objections, the court convened a final fairness hearing
on May 12, 2017.

The court has now considered the

objections to the proposed settlement, the argument of
the parties, and the issues presented by these claims.
For the reasons that follow, the court will grant final
approval
with

of

the

respect

settlement
to

final

and

the

class

parties’

motions

certification

and

associated issues.

I.

DESCRIPTION OF THE PROPOSED SETTLEMENT

Pursuant

to

the

proposed

settlement

agreement,

$ 213,000.00 shall be released from the court registry
fine fund, and $ 1,000.00 shall be paid to each of the
213

members

of

settlement

class

resolution

of

the

(the

intervenor-contempt-relief

ICR

Settlement

all

remaining
3

Class)

in

claims

full
for

individual-contempt relief concerning reclassification.
The 213 non-black members of the ICR Settlement Class
are

those

members

of

the

intervenor

class

whom

defendants identified as due to be reclassified based
on April 1994 duties and who were employed after the
May 29, 2001, fairness hearing and are either currently
employed with ALDOT or were employed prior to 2007.
These

ICR

valid

Settlement

claims

for

Class

members

have

individual-contempt

potentially
relief

for

potential lost pay after May 29, 2001, arising from
defendants’

alleged

failure

to

implement

timely

the

reclassification that Article 15 of the consent decree
required.
The intervenors and the defendants agreed that the
foregoing

payments

shall

not

be

considered

in

calculating retirement benefits for employees under the
State Retirement System.
members

of

the

ICR

They also agreed that the
Settlement

Class

shall

be

responsible for payment of all taxes and fees payable
4

as a result of the receipt of the funds.
In

exchange

for

the

foregoing

payments,

the

intervenors release all further claims, demands, causes
of action, or requests for any further relief of any
kind in the Reynolds litigation, including any request
for

contempt

relief.

The

intervenors

and

the

defendants further agreed that the clerk of the court
shall pay $ 150,000.00 to the intervenors’ counsel from
the

court

registry

fine

fund

for

all

remaining

attorney’s fees and expenses of the intervenors.

II.
Judicial
overriding

public

particularly
this case.

policy

in

DISCUSSION

favors

interest

complex,

settlement.
in

favor

lengthy

of

There

is

an

settlement,

litigation

such

as

See, e.g., Cotton v. Hinton, 559 F.2d 1326,

1331 (5th Cir. 1977).1

A class-action settlement should

1. See Bonner v. City of Prichard, 661 F.2d 1206
(11th Cir. 1981) (en banc) (adopting as binding
precedent all of the decisions of the former Fifth
5

be

approved

so

long

as

it

is

“fair,

adequate

and

reasonable and is not the product of collusion between
the parties.”
986

(11th

Bennett v. Behring Corp., 737 F.2d 982,

Cir.

1984).

In

determining

whether

a

settlement is fair, adequate, and reasonable, the court
must consider all relevant factors, including (1) the
likelihood

of

success

at

trial;

(2)

the

range

of

possible recovery; (3) the point on or below the range
of possible recovery at which a settlement is fair,
adequate, and reasonable; (4) the complexity, expense,
and duration of the litigation; (5) the substance and
amount of opposition to the settlement; and (6) the
state of proceedings when the settlement was achieved.
Id.

The court should not attempt to try the case on

the

merits,

experienced
substitute

but

should

counsel
its

own

and

rely

on

should

judgment

for

the
be
that

judgment
hesitant
of

of
to

counsel.

Cotton, 559 F.2d at 1330.
Circuit handed down prior to the close of business on
September 30, 1981).
6

A.
The

Class Certification: Fed.R.Civ.P.
23(a) & (b)(2)

court

previously

granted

certification of a settlement class.

provisional

Having considered

the parties’ post-settlement submissions on this topic,
the

court

now

concludes

that

final

certification

of

this the ICR Settlement Class is appropriate.
In order for any certification motion to succeed,
the proponents of class treatment must establish that
the

requirements

23(a) are met.

of

Federal

Rule

of

Civil

Procedure

In addition, a class must fit within

one of the types of classes described in Federal Rule
of

Civil

Procedure

23(b).

Here,

the

certification of a Rule 23(b)(2) class.
class

encompasses

opposing

the

class

situations
has

acted

in
or

parties

seek

This type of

which
refused

the
to

party
act

on

grounds that apply generally to the class so that final
injunctive relief is appropriate respecting the class
as a whole.

See Fed. R. Civ. P. 23(b)(2).
7

These

requirements apply to uncontested certification of a
class

for

purposes

of

settlement

only.

Austin

v.

Hopper, 15 F. Supp. 2d 1210, 1224 (M.D. Ala. 1998)
(Thompson, J.).
The court notes that, in evaluating the request for
final approval of class certification in this case, it
has had the benefit of many years of motions practice
related

to

the

issues

involved

individual-contempt claims.
longer

contest

in

the

intervenors’

Although the defendants no

certification

for

purposes

of

and

in

light of the settlement, the court has independently
assured itself that class certification is appropriate
here.
Rule 23(a) requires a finding that a proposed class
satisfies the requirements of numerosity, commonality,
typicality,

and

adequacy

of

representation.

Rule

23(a)(1)’s requirement of numerosity is satisfied here
because

the

usual

method

of

combining

similar

claims--joinder--is impracticable. The members of the
8

ICR Settlement Class number 213, which is more than
sufficient to satisfy this requirement.

See, e.g., Cox

v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th
Cir.

1986).

Rule

23(a)(2)

requires

that

there

questions of law or fact common to the class.

be

Where,

as here, the claims depend upon a common contention
with a capacity for common answers, this requirement is
met.

See, e.g., Wal-Mart Stores, Inc. v. Dukes, 564

U.S. 338, 350 (2011).
typicality

asks

Rule 23(a)(3)’s requirement of

whether

the

class

representative’s

claims arise from the same event or pattern or practice
and are based on the same legal theory as those of the
putative class members.

See, e.g., Williams v. Mohawk

Indus., Inc., 568 F.3d 1350, 1357 (11th Cir. 2009).
This requirement is easily met here in that all of the
ICR

Settlement

defendants’
Article 15.
that

the

Class’s

failure

to

claims
reclassify

arise
them

out

of

timely

the
under

Rule 23(a)(4) requires the court to find
representative

parties
9

will

fairly

and

adequately protect the interests of the class.
analysis

delves

into

whether

conflicts

of

This

interest

exist between representatives and the class and whether
the

representatives

action.

will

adequately

prosecute

the

See, e.g., Valley Drug Co. v. Geneva Pharm.,

Inc., 350 F.3d 1181, 1189 (11th Cir. 2003).

Litigants

seeking certification “must show that their interests
are not antagonistic to those of the putative class
members and that their chosen attorneys are qualified,
experienced,

and

generally

able

to

conduct

the

litigation.”

In re HealthSouth Corp. Sec. Litig., 257

F.R.D. 260, 275 (N.D. Ala. 2009) (Bowdre, K.).

The

court is satisfied that the named class representative,
Ronnie L. Richardson, and the members of the class do
not have antagonistic interests. Richardson appears to
have

been

relevant
throughout

denied

timely

period,
the

Furthermore,

as

reclassification

remained

relevant

employed

period,

explained

in
10

and

the

is

during
with

now

discussion

the

ALDOT
retired.
of

the

objections
conflict

below,

of

the

interest

court
with

sees

no

evidence

members

of

the

of

a

settlement

class: there have been were only two objections to the
proposed

settlement

from

class

members,

neither

of

which raised a significant concern about the fairness
of

the

settlement.

experienced
Thus,

the

and

Finally,

qualified

court

finds

a

to

class

counsel

represent

sufficient

the

basis

is

class.

for

class

treatment here with respect to all requirements of Rule
23(a).
The requirements of Rule 23(b)(2) are also met.
The issues involved in these claims “apply generally to
the class,” such that “relief is appropriate respecting
the

class

as

a

whole.”

Specifically,

the

persons

identified as members of the ICR Settlement Class were
all identified as due to be reclassified based on their
duties, and the defendants could not effectuate that
reclassification by the deadline imposed in the consent
decree.

To the extent that these persons were not
11

reclassified, they may be entitled to equitable relief
in the form of back pay.

Rule 23(b)(2) contemplates

class cases seeking equitable injunctive or declaratory
relief, but monetary relief does not conflict with the
limitations of the rule when it is not in the nature of
a claim for damages, but rather is in the nature of an
equitable remedy, to be determined through the exercise
of the court’s discretion.

See 7AA Fed. Prac. & Proc.

Civ. § 1775 (3d ed.) (“Monetary relief that may be
deemed

equitable

declaratory

in

relief

nature

may

be

or

ancillary

allowed,

to

however.”)

the
The

court finds that the remaining 213 non-black members of
the ICR Settlement Class seek “make whole” equitable
remedies appropriate for relief under Rule 23(b)(2).

B.

Settlement Approval Pursuant to Rule 23(e)

As part of its review of a settlement agreement in
a

class-action

inspect

the

context,

proposal

to

the

court

ensure

it

12

must

provides

carefully
adequate

representation of class members who did not participate
in shaping the settlement.
advisory

committee

See Fed. R. Civ. P. 23(e)

note.

In

the

course

of

this

evaluative process, the court must determine whether
notice to the class was adequate and must consider the
comments made and objections raised by class members,
as well as the opinions of class counsel.
The
provide

court

has

notice

of

process

for

members

the

objecting

preliminarily
contained

considered

approving

specific

of

the

the

settlement
to

it.

the

procedures

provisionally

actions

taken

agreement

and

The

court’s

settlement
relating
certified

to

to
the

order

agreement
notice

class.

to
The

court also reviewed and approved the proposed notice
forms.

The

court

is

satisfied

that

the

parties

provided notice not only to the 213 members of the
provisionally certified class, but also to every one of
ALDOT’s
provided

current
clear

employees.

The

instructions

for

13

notice
those

materials
wishing

to

comment,

question,

or

object.

Counsel

for

the

intervenors made information available on a website as
well.
Counsel for the intervenors reported on delivery of
the notice once it was complete and on his telephone
and email contact with various persons after the notice
went out.

He provided the court with copies of the

written

comments

members

of

the

he
ICR

received

whether

Settlement

they

Class

or

were
not.

from
The

intervenors and the defendants jointly reported on and
responded to the objections received.
On May 12, 2017, the court convened a previously
scheduled

and

announced

fairness

hearing

on

the

proposed settlement. At this hearing, the court heard
from counsel for the ICR Settlement Class and counsel
for the defendants, who both advocated in favor of the
proposed settlement.

Counsel for the plaintiffs was

given an opportunity to address the court, and he did
not

voice

any

opposition
14

or

objection

to

the

settlement.
The court heard from one member of the proposed
settlement class, Behan Taheri, at the hearing.

Taheri

objected to the amount of the settlement on the basis
that he had experienced discrimination at ALDOT on the
basis of national origin from 1984 until 2001 and that
the

proposed

settlement

would

be

insufficient

to

compensate for the amount he was underpaid during that
time.2

Taheri’s

objections

do

not

present

an

appropriate basis on which the court could or should
reject

the

proposed

settlement.

His

discrimination

claims have never been properly raised in this action
and are not properly before the court as a basis for
any request for relief.

The discrimination claims he

makes are unlike the claims brought by the intervenors
in the lawsuit and are unrelated to the contempt claims
being settled in the proposed settlement agreement.
2. Taheri, who identified himself as white on his
ALDOT
employment
application,
had
received
approximately $ 9,000 as part of the settlement of the
intervenors’ contempt claims in 2001.
15

While he did not appear at the fairness hearing,
the court also considered the written objection Philip
Morgan made to the settlement.
settlement
alleged

as

insufficient

to

denial

past

Confusingly,

Morgan objected to the

advancement

he

of

also

compensate

claimed

to

for

at

be

his

ALDOT.

currently

experiencing discrimination on the basis of his race,
although he has not worked at ALDOT for many years.
Morgan was employed by ALDOT for less than nine months
after the May 29, 2001, fairness hearing and resigned
his position on February 20, 2002.

At most, Mr. Morgan

has a claim for a delayed reclassification between May
29, 2001, and his resignation date.

The court finds

that

is

the

compensate

proposed

settlement

him

any

for

amount

injury

due

adequate
to

to

delayed

reclassification during that time frame.
Class
settlement

counsel
agreement

convincingly
is

a

argued

fair,

that

the

adequate,

and

reasonable resolution to the remaining contempt claims
16

of the intervenors.
intervenors
expense

and

of

This settlement will save the 213

the

litigating

entitlement to relief.
could

have

contempt

defendants

a

213

difficulty

claims

of

and

individual

Significant legal disputes that

significant

relief

the

remain

bearing
to

on

be

the

amount

decided,

and

of

this

settlement would eliminate for both sides the risks of
an adverse ruling.
In

addition,

attorneys’

fee

the

award

court
of

finds

that

$ 150,000.00

the
for

proposed
Honorable

Raymond Fitzpatrick, Jr., the intervenors’ counsel, is
appropriate.

Applying

the

standards

set

forth

in

Norman v. Housing Authority of City of Montgomery, 836
F.2d 1292 (11th Cir. 1988), the court finds that a
lodestar hourly rate of $ 350.00 per hour is fair and
reasonable
experience,

for

an

and

difficulty

of

litigation,

the

attorney
reputation

the

issues

results

of

Fitzpatrick’s
and

he

17

considering

addressed

obtained,

skill,

and

the

in

the
this

relative

undesirability of the work.

Fitzpatrick attests that

he spent 1,150 hours of work on this phase of the case,
which would amount to a fee of over $ 400,000.00 at the
$ 350.00 hourly rate.
substantial

reduction,

Particularly in light of this
the

compromised

fee

of

$ 150,000.00 is fair and reasonable.
An appropriate judgment will be entered.
DONE, this the 7th day of June, 2017.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE