Reynolds v. McInnes

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR TH E ELEV ENTH C IRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 22, 2003
No. 02-14228
THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 85-00665-CV -T-N

JOHNNY REYNOL DS, individually and on
behalf of himself and as representative
of a class of black employees of the
Highw ay Dep artment, S tate of A labama,
similarly situ ated,

Plaintiffs -App ellants,

CEC IL PA RKE R,
OUI DA M AXW ELL ,
MA RTH A AN N BO LEW ARE ,
PEG GY V ONS HER IE AL LEN ,
JEFF ERY W. BR OW N,

Intervenor-Plaintiffs-
Appe llants,

ROB ERT JOH NSO N, et al.,

Interven or-Plain tiffs,

versus

JOE M CINN ES, in h is official
capacity as Director for the
Alabam a Depa rtment o f Trans portation ,
DEP ART MEN T OF TRA NSP ORT ATIO N, ST ATE OF A LAB AM A,
DEP ART MEN T OF PER SON NEL , STA TE O F AL ABA MA ,
RAY BAS S,
MA RVIN WA GON NER , et al.,

Defen dants-A ppellees.

________________________

Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(July 22, 2003)

Before EDMONDSON, Chief Judge, CARNES, Circuit Judge, and CARNES *,
District Judge.

CARNE S, Circuit Judge:

This is th e latest app eal grow ing out o f the near ly two-d ecades o ld, racial

discrimination in employment lawsuit involving the Alabama Department of

Transportation (ALDOT) and the State Personnel Department (SPD). Those two

state agencies were sued in 1985 by what became two plaintiff classes of black

employees and prospective employees. A partial settlement was reached and a

consent decree was entered in 1994, but instead of ending the case the decree

became a platform for additional litigation.

*
Honorable Julie E. Carnes, United States District Judge for the Northern District of
Georgia, sitting by designation.

2
 A more detailed history of the case can be found in our six other published

opinion s involv ing it. See Reynolds v. McInnes, __ F.3 d __, N o. 98-6 164 (1 1th

Cir. July 22, 2003) (“Reynolds V”); Reyno lds v. Bu tts, 312 F.3d 1247 (11th Cir.

2002) (“Reynolds IV”); Davis v . Butts, 290 F .3d 129 7 (11th Cir. 200 2); Reynolds

v. Rob erts, 251 F.3d 1350 (11th Cir. 2001) (“Reynolds III”), cert. denied, 534 U.S.

1161, 1 22 S. C t. 1171 ( 2002) ; Reyno lds v. Ro berts, 207 F.3d 1288 (11th Cir. 2000)

(“Reynolds II”), cert. denied, 533 U .S. 941 , 121 S . Ct. 257 6 (200 1); Reynolds v.

Rober ts, 202 F.3d 1303 (11th Cir. 2000) (“Reynolds I”). We won’t repeat any

more of that history than is necessary for an understanding of the issue before us

in this app eal.

The issue is whether the district court abused its discretion when it modified

one part of one article of the 1994 consent decree at the defendants’ request and

over the objection of the plaintiffs. Insisting that it did, the plaintiffs have

appealed . Conclu ding tha t it did not, w e affirm.

I.

The cons ent decree, aimed at ending racial d iscrimination in A LDO T’s

employment practices, has twenty-one articles. This appeal is about Article Two,

which governs the development and use of “minimum qualifications” (MQs),

which are part o f the selectio n proce dure fo r hiring a nd pro moting employ ees in

3
ALDO T jobs. A job seeker w anting to sit for an employment exam ination must

meet the MQs first. MQs are designed to screen for skills needed at entry into a

new position, and can screen for, among other things, “knowledge, skills and

abilities” (KSAs) relevant to a position. The job examinations themselves measure

KSA s.

The provision of Article Two that was modified by the district court is ¶ 1,

which is called “the no-overlap prov ision.” This is what the paragraph says:

Minimum qualifications will not be utilized on examination
announcements or to p reclude an applicant from exam ination unless
the minimum qualification bears a man ifest relationship to skills,
knowledges, or abilities necessary to the performance of the job at
entry without a brief orientation period and such skills, knowledges or
abilities are not addressed in the examination process.

The ke y point fo r our pu rposes is that the “sk ills, know ledges, o r abilities” to

which the MQs must bear a manifest relationship cannot be ones “addressed in the

examin ation pro cess.” Before getting into the reasons that the no-overlap

provision is problematic, we need to explain some more about the job selection

proced ures pro cess that is r equired by the de cree.

Other portions of Article Two incorporate the federal Uniform Guidelines on

Employee Selection Procedures, 29 C.F.R. §§ 1607.1-1607.18 (“Uniform

Guide lines”), an d requir e SPD to meet th e Unifo rm Gu idelines in develop ing M Qs.

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Article Two, ¶ 3 allows for the use of MQs that have been determined to be “valid”

within the meaning of the Uniform Guidelines. To establish that a job selection

proced ure is “valid ” an emp loyer mu st demo nstrate tha t the selectio n proce dure is

appropriately job-related. Under the Uniform Guidelines, a job selection procedure

may be validated through the use of one of three different types of studies: content

validity, crite rion-rela ted validity , and con struct valid ity. Id. § 1607 .5(A).

Of those three types of validation methods, the parties chose content

validation for MQs. T hey wrote that choice into Article Tw o, ¶ 2, which specifies

use of “a content validation procedure to determine the appropriate minimum

qualificatio ns” for A LDO T jobs. A content v alidity stud y measu res wh ether and to

what extent the selection procedure is “representative of important aspects of

performance on the job for which the candidates are to be evaluated.” Id. §

1607.5(B). It measures knowledge, skills, or abilities that are “necessary

prerequisite[s]” for the “performance of critical or important work behavior(s)” for

the job. Id. § 1607.14(C)(4). The Guidelines provide that a selection procedure

may be u sed “if it rep resents a c ritical wo rk beha vior (i.e., a b ehavior which is

necessary for performance of the job) or work behaviors which constitute most of

the important parts of the job.” 29 C.F.R . § 1607.14(C)(8). U nder a “criticality”

approach to content validation, an approach the plaintiffs advance as one that

5
would be valid under the Uniform Guidelines and comply with the decree, MQs

could b e based o n a small n umber of “critical” K SAs in stead of m ost of the KSA s.

In order to construct content valid MQs and a valid examination under the

Uniform Guidelines, a detailed job analysis must be performed for each job

classification and must focus on the work behaviors necessary for successful

perform ance of th e job and also on th e tasks ass ociated w ith those b ehavior s. Id. §

1607.14(C)(2). Each job analysis conducted by SPD for ALDO T included

interviews with incumbents in the jobs or their supervisors, upon whom were

bestowed the laudatory label “subject matter experts.” Article Tw o, ¶ 2 also

provides that the MQs and the validation procedure “will be subject to challenge

by plaintiffs and no new minimum qualifications will be implemented without

approval by the plaintiffs or the Court.”

Havin g finishe d our d escription of the job selection p rocedu res in gen eral,

we foc us again on the A rticle Tw o, ¶ 1, the no-ov erlap pro vision. It is importa nt to

say at the o utset, wh at all the exp erts for b oth sides agreed u pon at th e hearing in

this case: the no-overlap provision is novel in the field of employment testing.

There has been a w hole lot of employment testing in this country over the years,

but there is nothin g in the re cord ind icating tha t the no-o verlap p rovision , various ly

described as “novel” and “unusual,” has ever been used anywhere before.

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Nonetheless, for several years after the consent decree was adopted, a joint panel of

experts – two selected by the plaintiffs and two se lected by the defendants –

work ed to dev elop M Qs and job exam inations f or AL DOT jobs that w ould co mply

with the no-overlap provision.

The plaintiffs’ and defendants’ experts initially agreed to develop “task-

based” MQs, which would evaluate a job candidate’s experience in performing the

discrete tasks required at entry into a new position. They reasoned that measuring

experience with certain tasks, instead of typical KSA s, would provide the m ost

valid MQs w hile avoiding overlap between the K SAs used in the M Qs and those

measured by the examinations. However, problems resulted from use of the task-

based MQs, including a higher rejection rate of applicants than expected and a high

rate of adverse impact, meaning that the pass rate of black applicants was

significantly lower than that of white applicants.

SPD then tried a different approach, using another MQs screen as an

alternative to the existing one that had not worked. T he new M Qs screen was a

more traditional one which included an educational requirement and an experience

requirement. That approach did not work either. None of the parties was satisfied

with the resulting MQs that were in place in 2001.

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 By the su mmer o f 2001 , SPD and its ex perts dec ided to str ike out o n their

own to develop new MQs for some of the job classifications, beginning with the

job of C ivil Eng ineer M anager. T he expe rts used b y SPD looked at job ana lysis

reports that had already been developed for the jobs, selected subject matter

experts, conducted MQs development sessions (where a group of subject matter

experts were brought together to help determine the types of MQs to use), and they

looked for some consensus about potential MQs. Then, the experts linked the MQs

to the KSAs in order to ensure that they were actually related to each other as

required under A rticle Tw o, ¶ 1 of the cons ent decre e. Despite all their efforts, the

experts w ere unab le to desig n any m ethod fo r develo ping va lid MQ s that wo uld

comply with the no-overlap provision.

II.

On December 13, 2001, the defendants moved to modify the consent decree

by removing the no-overlap provision of Article Two, ¶ 1, on the ground that the

provision is contrary to accepted professional practice in the development of

selection procedures, and it cannot reasonably be satisfied. By that point, the

defendants had developed MQs for two jobs – Civil Engineer Manager and Senior

Right of Way Specialist – and the job examination for Civil Engineer Manager had

been administered to applicants who had gotten past the MQs screen. With the

8
parties’ consent, the district court appointed a special master to consider the issue

and ma ke recom menda tions to th e court.

After conducting a three-day hearing, the special master made detailed

finding s. The g ist of them is that the d efendan ts had m ade reaso nable, go od faith

efforts to comply with the no-overlap provision, but those efforts had been

unsuccessful because the no-overlap provision “is unworkable across all job

classification[s].” The special master recommended to the district court that it find

the defendants had satisfied the requirements for modification of a consent decree

as set out by the Supreme Court in Rufo v . Inmates of Suf folk Co unty Jail, 502

U.S. 3 67, 112 S. Ct. 74 8 (199 2).

The district court adopted the special master’s recommendation and granted

the defen dants’ m otion in p art. The court ruled that “the defendants may develop

and use minimum qualifications (MQs) for those classifications for which

examinations have already been developed.” The effect of the ruling is to modify

the consent decree by making the no-overlap provision of Article Two, ¶ 1

inapplicable to the fifteen job classifications for which the defendants had

developed examinations at the time of the ruling. The district court explained that

the defendants had made a good faith effort to comply with the provision without

9
success, and “it is simply time to proceed with the development of the MQs

withou t the [no- overlap ] provisio n.”

With respect to the other job classifications, the ones for which the

defendants had not developed examinations at the time of the ruling, the district

court referred the matter back to the special master. It directed him to determine

whether for those remaining classifications it is still possible to comply with the

no-overlap provision without unreasonable delay in the development and

adminis tering of the exam inations. A s recently a s the oral a rgume nt of this c ase in

June of this year, th ose pro ceeding s were s till ongoin g befor e the spec ial master.

III.

For modification purposes, a consent decree is not treated as a contract, but

as a judicia l act akin to an injun ction. Rufo, 502 U.S. at 378, 112 S. Ct. at 757;

United States v. Swift & Co., 286 U.S. 106, 114-15, 52 S. Ct. 460, 462 (1932);

Jacksonville Branch, NAACP v. Duval County Sch. Bd., 978 F.2d 1574, 1578

(11th Cir. 1992). Partly because of that, we review a district court’s decision

granting a party’s request for modification of a consent decree only for an abuse of

discretion . Sierra Club v. Meiburg, 296 F.3d 1021, 1032 (11th Cir. 2002);

Jacksonville Branch, 978 F.2d at 1578. Findings of fact relating to the

10
modific ation are r eviewe d only fo r clear erro r. Jacksonville Branch, 978 F.2d at

1578.

A.

Rule 60 (b) of th e Feder al Rules o f Civil P rocedu re allow s a district co urt to

modify a consen t decree w hen “it is no longer e quitable th at the judg ment sh ould

have pr ospectiv e applicatio n.” Fed . R. Civ. P ro. 60(b )(5); Rufo, 502 U.S. 378-79,

112 S. Ct. at 757. The standard for modification of a consent decree in an

institution al reform case is a flex ible one, b ecause fle xibility “is of ten essen tial to

achievin g the go als” of ins titutional re form litig ation. Rufo, 502 U.S. at 379, 381,

112 S. Ct. at 757-58, 758. Flexibility in modifying decrees like this one is in the

public in terest, beca use “such decrees r each bey ond the parties inv olved d irectly in

the suit an d impac t on the p ublic’s rig ht to the so und an d efficien t operatio n of its

institutions.” Id. at 381, 1 12 S. C t. at 758-5 9 (intern al marks and citatio n omitted ).

The ne ed for m odificatio n of a co nsent de cree and the impo rtance of flexibility in

regard to it can be especially apparent in an institutional reform case like this one

where efforts to implem ent the de cree hav e been b ogged down for years , see

generally Reynolds v. McInnes, __ F.3d __, No. 98-6164 (11th Cir. July 22, 2003)

(“Reynolds V”).

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 “[A] court faced with a motion to modify a consent decree in institutional

reform litigation must begin by determining the ‘basic purpose’ of the decree.”

United States v. City of Miami, 2 F.3d 1497, 1504 (11th Cir. 1993). If the

provision that a party seeks to modify “is central to the decree, or . . . ‘the most

importa nt elemen t’ of the de cree, then the mod ification is lik ely to viola te the basic

purpose of the decree and, therefore, will be forbidden.” Id. at 1504-05. However,

if the provision for which modification is sought “merely sets out one of several

means of accomplishing the purpose of the decree or one of several means of

measuring compliance with the decree’s objective, then the requested modification

is not necessarily prohibited.” Id. at 1505.

If modification is permissible under those criteria, the court must decide

whether to exercise its discretion to modify the decree. The Supreme Court has

articulated a two-part test for determining when a consent decree should be

modified. First, “a party seeking modification of a consent decree bears the burden

of establishing that a significant change in circumstances warrants revision of the

decree.” Rufo, 502 U.S. at 383, 112 S. Ct. at 760. A party “may meet its initial

burden by showing . . . a significant change either in factual conditions or in law.”

Id. at 384, 1 12 S. C t. at 760. S econd, th e propo sed mo dification s must b e “suitably

12
tailored” to address the new factual or legal env ironme nt. Id. The plaintiffs do not

contest that the second Rufo requirem ent has b een met, o nly the firs t one.

Rufo’s first requirement, that there be changed factual or legal

circumstances, is interpreted flexibly, and different sorts of factual changes may

qualify as change d circum stances p ermitting modific ation. Ensley Branch,

NAA CP v. S eibels, 31 F.3d 1548, 1563 (11th Cir. 1994). The Rufo Court

observed that modification based on factual change may be appropriate in any of at

least three situations: (1) “when changed factual conditions [have made]

compliance with the decree substantially more onerous”; (2) “when a decree

proves to be unworkable because of unforeseen obstacles”; and (3) “when

enforce ment of the decre e witho ut mod ification w ould be detrimen tal to the pu blic

interest.” 5 02 U.S . at 384-8 5, 112 S . Ct. at 760 (citations o mitted).

We have explained that modification also may be appropriate when

“significant time has passed and the objectives of the original agreement have not

been met” despite the defendants’ efforts, or when a continuation of the decree

would be inequ itable. Jacksonville Branch, 978 F.2d at 1582 (citing Rufo, 502

U.S. at 3 84, 112 S. Ct. at 7 60; Newman v. Graddick, 740 F .2d 151 3, 1520 (11th

Cir. 198 4)). See also Heath v. DeCourcy, 992 F.2d 630, 634 (6th Cir. 1993)

(Institutional reform consent decrees “are subject to a lesser standard of

13
modific ation, req uiring th e lower court to id entify a de fect or de ficiency in its

original decree which impedes achieving its goal, either because experience has

proven it less effective, disadvantageous, or because circumstances and conditions

have changed which warrant fine-tuning the decree.”) (internal quotations and

citation om itted). W e have als o said tha t “[a] district co urt has b road dis cretion to

modify an existing injunctive order when factual circumstances have changed or

new ones have arisen since the order was issued, as long as notice and an

opportunity to be heard are provided before the modification is made.” Riccard v.

Prudential Ins. Co., 307 F .3d 127 7, 1298 (11th C ir. 2002 ).

B.

With th ose prin ciples in m ind, we turn no w to the plaintiffs’ c ontentio ns in

this case. The first one is that modification of the no-overlap provision was

imperm issible bec ause that p rovision is one of the cons ent decree’s “basic

purpose[s].” City of Miami, 2 F.3d at 1504 -05. Th e short an swer is th at it is not.

The consent decree itself provides that its “intent and purpose” is “to undo

the effects of the past practices which have been the subject of this case and

[d]ecree and to prevent further practices which may perpetuate such efforts or

otherw ise discrim inate again st the plain tiffs or the class they r epresen t.” The

decree accomplishes this purpose through twenty-one articles that require changes

14
in the w ay the def endants hire, pro mote, clas sify, and p ay ALDOT employ ees.

Reynolds II, 207 F.3d at 1293. The no-overlap provision is only one part of one of

those twenty-one articles, and it is by no means central to the decree.

The no-overlap provision is not the only provision that addresses the

development of non -discriminatory MQs. It is part of A rticle Two, which also

provides for non-discriminatory MQs in two other ways: by requiring (also in ¶ 1)

the MQs to bear a “manifest relationship” to the KSAs necessary to perform a

particular job at entry, and by requiring (in ¶¶ 2 and 3) the procedure for

determining MQ s be valid within the meaning of the U niform Guidelines. Not

only that, but beyond Article Two there are other provisions in the decree that seek

to preve nt discrim inatory p rocedu res at the h iring stag e. For ex ample, A rticle

Three, ¶ 4(a) requires that SPD use only selection criteria and procedures that have

been validated in accordance with the Uniform Guidelines. And Article Eight, ¶ 2

requires ALD OT to develop an d use non-discriminatory interview q uestions.

The pla intiffs con tend that b ecause th e no-ov erlap pro vision is th e only

provision aimed at eliminating the overlap of KSAs between MQs and

examinations, it is the only provision that will save from early elimination some

members of the plaintiff class. But so what? It seems to us that even if the

provisio n saves s ome ap plicants from early elimination by removal of the

15
overlapping KSAs, those applicants will still be eliminated by the measurement of

the same KSAs in the job examination. Even if we are mistaken about that, the

plaintiffs’ a rgume nt fails any way. Ju st becaus e a prov ision of a consen t decree is

the only one that addresses a narrow and particular concern of the parties does not

mean that the provision can never be modified. If that were true, the only parts of

a consent decree that could be modified are those that are redundant, and they

could be modified only to remove the redundancy, which would not change the

operatio n or effe ct of the d ecree at all.

In sum mary, the no-ov erlap pro vision is n ot “central to the decre e, or . . .

‘the mos t importa nt elemen t’ of the de cree,” and modific ation of it is not “likely to

violate the basic purpose of the decree.” City of Miami, 2 F.3d at 1504. It is not

even the most important part of Article Two of the decree. The provision is but

“one of s everal m eans of a ccomp lishing th e purpo se of the d ecree,” an d is, in fact,

but one of sever al means of ensu ring the d evelopm ent of no n-discrim inatory M Qs.

Id. at 1505 . That m eans the r equested modific ation is no t necessar ily prohib ited.

Id. So, w e turn no w to w hether th e defend ants sho wed a s ignifican t change in

factual conditions, as required by Rufo. 502 U.S. at 383, 112 S. Ct. at 760.

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 C.

The plaintiffs’ second contention is that, even if modification of the no-

overlap provision is not prohibited outright, the defendants did not prove changed

circumstances as required by Rufo, 502 U.S. at 383-84, 112 S. Ct. at 760. At the

modification hearing, the defendants did not submit evidence of any circumstances

that specifically motivated inclusion of the no-overlap provision in the consent

decree when it was adopted in 1994. The plaintiffs argue that without evidence of

the specific circumstances that gave rise to the provision, there can be no

determination that those circumstances have changed.1 The plaintiffs contend that

evidence of the circumstances as they existed at the time the parties agreed to the

decree is always required under Rufo in order to determine if the circumstances

have changed. Given the array of circumstances which both the Supreme Court

and this Court have said may satisfy the Rufo changed circum stances re quirem ent,

such a n arrow reading of that req uiremen t is neither n ecessary n or grou nded in

case law . See Rufo, 502 U .S. at 384 -85, 11 2 S. Ct. a t 760; Ensley Branch, 31 F.3d

at 1563 ; Jacksonville Branch, 978 F .2d at 15 82; Newman, 740 F.2d at 1520.

1
The plaintiffs also complain that the special master placed the burden of proof on them
instead of on the defendants, but a reading of his recommendation reveals that he did not. The
special master stated that the “defendants must establish that in light of changed circumstances
they have made a reasonable effort to comply with the requirements of article two and now
should be relieved of [that] undertaking.” After examining both parties’ evidence and discussing
both parties’ arguments, he concluded that the defendants had met their burden.

17
 When a party seeks modification of a consent decree provision on the

ground that the provision is unworkable because of unforeseen obstacles and

cannot r easonab ly be satisfie d, Rufo, 502 U.S. at 384, 112 S. Ct. at 760, it is not

necessary that the court have before it evidence of the precise circumstances that

existed when the parties agreed to the provision. It is enough that when they

agreed to the provision in question the parties thought it would be workable –

which we hope will always be the case – but good faith effort and hard-earned

experien ce has pr oven th at it is not. 2 In other words, the fact that a provision of a

consen t decree h as prov en to be u nwor kable is itse lf a “signific ant chan ge in

circumstances.” Id. at 383, 112 S. Ct. at 760. Remember that the standard for

modification of consent decrees in institutional reform litigation is, and should be,

a flexible o ne. Id. at 379, 381, 112 S. Ct. at 757-58, 758

Turning to the evidence in this case, the defendants presented evidence

during the special master’s hearing that they attempted in good faith to implement

the no-o verlap p rovision but that it is u nwor kable. The defendants showed that

their experts collaborated with the plaintiffs’ experts in developing the task-based

MQ s, a collabo ration w hich dem onstrates good f aith. Both sides’ experts testified

2
There is no evidence, and the plaintiffs have never contended that the defendants agreed
to the no-overlap provision in bad faith. So, we do not have that situation before us and venture
no views on how the analysis and result might change if we did.

18
that the no-overlap provision was novel or unusual in the field of employment

testing, and one of the plaintiffs’ own experts testified that he had never seen a

provision like this one applied in developing a selection procedure. There was no

evidence before the district court that it had ever been used anywhere else. The

experts also testified that a joint panel of experts had attempted to develop

examinations that would measure as many of the KSAs as possible because the

more KSAs an examination measures the more likely it will be found valid under a

content validation approach. One of the defendants’ experts testifying at the

hearing said that it would be “very hard” to measure most of the KSAs in the MQs

and then measure most of the KSAs in the examinations and comply with the no-

overlap provision of the consent decree. He also testified that he could not

envision a way to satisfy both the requirements of content validity and the no-

overlap provision and stated that the provision “almost precludes best professional

practices.”

The plaintiffs also presented evidence at the hearing. Their two experts were

of the opinion that the no-overlap provision is workable and does not need

modification. They said that even with the no-overlap provision, valid MQs that

would pass muster under the Uniform Guidelines could be developed through the

use of a “criticality” approach, which the defendants had not attempted. Both of

19
the plaintiffs’ experts took issue with the characterization that the task-based MQs

project had failed, and said instead that the joint effort was aborted by the

defendants before it was finished. But what the plaintiffs’ experts did not say

stands out. They did not deny that the no-overlap provision prevents important

KSAs that are used in the MQs from being used in the examinations, thereby

decreasin g the likelih ood tha t the exam inations w ould be judged valid. N or did

they explain why if the no-overlap provision is a good idea it has never been used

by anyo ne befo re.

Examining all the evidence, the special master credited the defend ants’

experts and found that the defendants’ efforts had been reasonable and in good

faith, but ultimately unsuccessful. He also found that “[t]he evidence shows that

plaintiffs and defendants share responsibility for the choices that have brought

about the current situation, and that neither party in fact foresaw that these jointly-

made decisions would lead to the defendants’ (and intervenors’) current conclusion

that the no-overlap provision is unworkable.” The special master agreed with the

defend ants that th e no-ov erlap pro vision is n ot wor kable.

After an independent review of the record, the district court found that the

defendants had “made a diligent and good-faith effort to comply with the no-

overlap provision without success,” and concluded that “the defendants are not

20
under an obligation to negate all possibilities, no matter how time-consuming or

unend ing in en deavor or farfetc hed or im practical, fo r comp liance w ith this

provision.” We agree completely. Complex consent decrees in institutional

reform cases, like much in life, are a series of experiments, and when part of a

decree has been proven unworkable the law does not condemn the institution to the

Sisyphean task of endlessly rolling a stone up the hill only to have it roll back

down. The consent decree’s basic goal of ending racial discrimination in the

Alabama Department of Transportation’s employment practices can be achieved

better and sooner if the Department spends its time and efforts on the provisions of

the decre e that can b e made to work withou t the expe nditure o f an unr easonab le

and disproportionate amou nt of time and resources.

D.

The pla intiffs’ last atta ck on th e district co urt’s ord er is that it is, in their

view, self-contradictory. The court modified the decree by ending the no-overlap

provision only as to the fifteen job classifications for which examinations had been

developed at the time of the court’s order. As to the other job classifications, the

ones for which examinations had not been developed yet, the court referred the

matter back to the special master with directions for him to make a

recommendation on whether it was possible for the defendants to comply without

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unreasonable delay with the no-o verlap provision as to those job classifications.

The po int of the p laintiffs’ arg ument is that if the n o-over lap prov ision is w orkable

as to the job classifications for which no examination h ad been developed, it is also

work able as to th ose for w hich job examin ations ha ve been develop ed.

There is some tension in the district court’s order insofar as it distinguishes

between the job classifications based upon whether an examination had been

develop ed at the tim e of the o rder. Th at tension exists to th e extent (w hich is

considerable) that the problem with the no-overlap provision is an inherent one

instead of one that depends on the nature of the job classification or the timing of

the exam ination d evelopm ent proc ess. If the n o-over lap prov ision is un work able

as to the classifications for which examinations already have been developed, how

can it be workable as to classifications for which examinations have not yet been

develop ed? T here are a couple o f answ ers to that q uestion, n either of w hich is

favorab le to the pla intiffs.

The first answer is that the district court, unlike the special master, did not

find that the no-overlap provision could never work. Instead, the court said that

even if there is still some possibility of developing for the completed job

examin ations M Qs that w ould co mply the no-ov erlap pro vision, th at possib ility is

sufficien tly small tha t it would be unre asonab le to requ ire that the d efendan ts

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continu e their attem pts to do so. Havin g made a good faith effo rt, the defe ndants

have done what is reasonable, the court explained, so it is time to move on with the

job classifications for which examinations have been developed. The

classificatio ns for w hich no examin ation hav e been d evelope d are diff erent, it

might be argued, because the defendants have made no effort to develops MQs for

them tha t comply with the no-ov erlap pro vision.

The second and more fundamental answer to the question posed by the

plaintiffs’ a rgume nt that eve n if the dis trict court’s order is in consisten t because it

treats the tw o catego ries of job classificatio ns differ ently, we are not re quired to

resolve th at incons istency in th e plaintiffs ’ favor an y more th an we a re requir ed to

resolve an inconsistent jury verdict in favor of a criminal defendant. Where a

defendant logically is either guilty of both counts in an indictment or not guilty of

either, but the judge or jury acquits on one and convicts on the other, the defendant

is not entitle d to hav e the con viction se t aside sim ply becau se the ver dict is

inconsis tent. Harris v. Rivera, 454 U.S. 339, 345, 102 S. Ct. 460, 464 (1981) (per

curiam) ; United States v. Schlaen, 300 F.3d 1313, 1317 (11th Cir. 2002). The

reason is that the verdict inconsistency itself establishes only that either the

acquittal or the conviction is inaccurate; it does not tell us which one is the

problem . United States v. P owell, 469 U .S. 57, 65, 105 S . Ct. 471 , 477 (1 984).

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What we do is examine the conviction and, if it is not invalid on some other

groun d, we af firm it, w hich me ans the ac quittal w as the pro blem. See Harris, 454

U.S. at 3 45, 102 S. Ct. at 4 64; Schlaen, 300 F.3d at 1317. In other words, just

because the crimin al defend ant got o ne gift fro m the jur y does n ot comp el us to

give him another one.

The same type of reasoning should apply here. Assuming that the district

court’s order is inconsistent as to the two categories of job classifications, that

inconsistency indicates at most only that the district court got it right as to one

category and w rong as to the oth er. We h ave exam ined the o rder inso far as it

concerns the category of job classifications in which examinations have already

been co mpleted and fou nd it to be correct, o r at least no t an abus e of discr etion.

That is all we need decide to dispose of this appeal, because the defendants did not

cross-appeal the part of the order referring the other category of job classifications

back to th e special m aster.

IV.

The district court did not abuse its discretion in modifying the consent

decree to remov e or susp end the n o-over lap prov ision con tained in A rticle Tw o, ¶

1, insofar as it concerns job classifications for which examinations had been

completed at the time of the order.

AFFIRMED.

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