JOHNNY REYNOLDS, individually on behalf of himself and as representative of a class of black employees of the Highway Department, State of Alabama, similarly situated, CECIL PARKER, et al., Plaintiff-Appellee-Cross-Appellant, Intervenors-Appellee-Cross-Appellant, versus G. M. ROBERTS, in his official capacity as Director for the Alabama Department of Transportation, et al., Defendants-Appellants.
No. 97-6349
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
February 2, 2000
PUBLISH. D.C. Docket No. CV 85-T-665-N. FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT 02/02/2000 THOMAS K. KAHN CLERK
Appeal from the United States District Court for the Middle District of Alabama
(February 2, 2000)
Before TJOFLAT and DUBINA, Circuit Judges, and STORY*, District Judge
*Honorable Richard W. Story, U.S. District Judge for the Northern District of Georgia, sitting by designation.
This appeal arises out of a long-standing racial discrimination class action brought by job applicants and two groups of employees and former employees against the Alabama Department of Transportation. After the parties entered into a race-neutral consent decree providing for prospective relief relating to job qualifications and promotion criteria, the district court, sua sponte, entered a judgment awarding the members of one of the employee groups (of current and former employees) back pay in the sum of $17,450,077, plus interest in the sum of $17,282,410. Reynolds v. Alabama Dep‘t of Transp., 996 F. Supp. 1156 (M.D. Ala. 1998). The Department of Transportation appeals. We vacate the judgment and remand the case for further proceedings consistent with this opinion.
I.
The named plaintiffs brought this suit against the Department of Transportation (the “Department“) in May 1985 on behalf of all black “merit” and “non-merit” employees and former employees of the Department and all unsuccessful black applicants for positions within the Department.1 Alleging
After the parties joined issue, and engaged in discovery, they entered into settlement negotiations. In 1988, and again in 1991, they presented a proposed consent decree to the district court for approval. On each occasion, some members of the plaintiff classes objected to the entry of the decree; the district court sustained their objections and refused to enter the decree.
In June 1992, the case proceeded to trial before the court. Near the end of the plaintiffs’ case, the parties asked the court to recess the proceeding indefinitely so that they could engage in further settlement negotiations. The court granted their request. In November 1993, they reached a partial settlement, in the form of a proposed consent decree. The proposed decree provided a range of prospective class-wide injunctive relief. Among other things, it set hiring and promotion quotas for blacks – 33% of the positions in each job classification in the Department would be set aside for blacks. To ensure an adequate pool for this set-aside program, the decree directed the Department to mount an aggressive recruiting campaign at historically black colleges and universities. Finally, the decree required the Department to establish a grievance procedure for its employees.
The January 19 hearing was held as scheduled. Over 200 people attended the hearing, including many non-black employees of the Department. The objections to the race-conscious aspects of the proposed consent decree were such that the parties withdrew it and, with leave of court, went back to the drawing board. By late February 1994, the plaintiffs and the Department decided to divide the previously proposed decree into three parts, called Consent Decrees I, II, and III. Consent Decree I contained the provisions that all sides agreed provided only race-neutral prospective relief. Consent Decrees II and III contained provisions
The parties submitted Consent Decree I to the district court for approval, and, on March 7, the court held a hearing on the fairness of the proposal. No one other than the parties’ attorneys appeared at the hearing, and no one objected to the entry of the decree. The court approved the decree and, by order entered March 16, 1994, adopted it in full.3
Consent Decree I is composed of a series of “Articles” which revamped the process by which the Department hires, promotes, classifies, and pays its employees. The decree abolished the system of “employment registers” from which positions were filled and promotions were granted, and created new qualifications and procedures for hiring and promotion. It also created new procedures for, among other things, rotation of job duties, recruitment, and training.
The Preamble to the Consent Decree states:
The following terms and provisions of this Consent Decree are accordingly agreed to in final and complete resolution of all class issues which have been asserted in the case, subject to the provisions of this Decree providing for further proceedings, including but not limited to Article[] 20. . . .
Similar language is repeated in Article 19, titled “General“:
Subject to the provisions of this Decree permitting or requiring further proceedings, including but not limited to, Article[] 20 . . ., this Decree constitutes full and complete relief on all claims, causes of action, and allegations which have been asserted in this action.
Article 20 explains how the members of the three plaintiff classes and the Department are to proceed with the individual claims of race discrimination.
ARTICLE 20
FURTHER PROCEEDINGS REGARDING CLASS MEMBERS
1. Further negotiations and proceedings are required to resolve the claims for monetary and non-monetary remedies for individual members of the class[es] (including the named plaintiffs and intervenors), provided however, that this Decree does not in and of itself entitled [sic] any such class member to such remedies. Such claims shall be resolved first by settlement negotiations and then, to the extent not resolved by settlement negotiations, by the Court.
2. The parties will make all reasonable efforts to resolve all such claims of the members of the class (including the named plaintiffs and intervenors) according to a schedule to be mutually agreed upon within 10 days after preliminary approval of this Decree by the Court or, in the event the parties cannot mutually agree on such schedule within such 10 day period, the Court will enter an Order embodying a schedule. Regardless of whether the schedule is mutually agreed upon by the parties or embodied in an Order entered by the Court, such schedule shall contain specific deadlines for the exchange of information and for offers and counter-offers to enable settlement negotiations on such claims to take place within 90 days after the effective date of this Consent Decree and, in the event such settlement cannot be achieved, for trial on that phase of the case to commence no later than 180 days after the effective date of this Decree.
3. Such schedule shall be presented to the Court for approval or modification, and once finalized shall be entered as an Order of the Court. In the absence of agreement on such schedule within 10 days of the preliminary approval of this Decree, the Court will enter its own schedule aimed at settlement negotiations taking place within 90 days after the effective date of this Decree and scheduling that phase of the
trial of this case to commence no later than 180 days after the effective date of this Decree.6
For reasons not appearing in the record, the parties could not agree on a schedule “for the exchange of information and for offers and counter-offers,” as required by Article 20; nor did the district court enter “its own schedule aimed at settlement negotiation . . . and scheduling that phase of the trial of this case,” involving the claims of the individual class members, as contemplated. Further, neither counsel nor the court were able to adhere to the time table prescribed by Article 20. Rather, counsel for the plaintiffs and the Department undertook to establish a means to identify the members of the merit-employee class (both current and former employees) who might have meritorious claims that the Department, on account of their race, (1) either refused to assign them work that would qualify them for promotion to a higher job classification or (although they were qualified for such promotion) refused to promote them, or (2) treated them as if they had been promoted to a higher job classification by assigning them work in such classification, but refused to pay them the wage called for by that classification. Counsel were unsuccessful in this endeavor.
The plaintiffs moved the court to determine a method for calculating back pay in an effort to avoid a separate trial on the damages element of each individual class member‘s claim. If required to try each claim separately, plaintiffs suggested,
“a formula of comparability or representative employee earnings formula.” With that method, “approximations are based on a group of employees, not injured by the discrimination, comparable in size, ability and length of employment – such as “adjacent persons on the seniority list or the average progress of persons with similar seniority” – to the class of plaintiffs.”7
The Department‘s immediate response to the plaintiffs’ motion was to deny that Consent Decree I determined that it was liable to the individual class members as plaintiffs contended. Without deciding whether Consent Decree I had adjudicated the Department‘s liability to the individual class members for back pay, the district court ordered the parties to begin negotiations on a class-wide formula for determining back pay – as if the Department were liable to each class member for back pay. The Department complied with the court‘s order, but continued to assert that, if the case did not settle, the trial, which had been interrupted in 1992, should resume. In the Department‘s view, absent a global settlement, the parties would have to return to the courtroom and litigate (1) whether the Department had discriminated against all black employees and job
The parties began their negotiations by focusing on the class consisting of the merit employees (both current and former) who had been denied promotion(s). They deferred to another day discussion of formulae that would apply to the classes consisting of job applicants and non-merit employees (who were denied instatement in merit positions) because arriving at formulae for those classes would apparently be problematic. On August 28, 1995, the parties jointly filed a “Report of Points of Agreement and Disagreement Regarding Formula for Determination of Remedies under Article Twenty of Consent Decree I” (referred to herein as the “August 28 Report“), which summarized where the parties stood in their negotiations over a back pay formula for the merit employees.
The parties agreed to a basic framework for determining the amount a class member should recover; they disagreed, however, as to what a class member would have to demonstrate in order to recover. The plaintiffs’ position was that Consent Decree I had settled the liability issue; therefore, all a class member would have to show was the difference (if any) between what the member and a similarly situated white employee were paid during the class member‘s employment. The
Having been advised of the parties’ disagreements on the issues of the Department‘s liability (to the members of the three plaintiff classes) and an appropriate back pay formula (for the merit employees), the district court, in May 1996, held hearings on the back pay formula, and entertained testimony from plaintiffs’ and the Department‘s experts and from an expert the court had appointed. At the beginning of these hearings, the court addressed the threshold liability issue and announced (from the bench) that Consent Decree I had established “class-wide liability” against the Department on the claims of the individual members of each of the three plaintiff classes.8 The court further stated
By January 1997, the district court identified the members of the merit class who were not entitled to relief (promotion or back pay): Any member of the class who had earned as much or more than the average pay earned by comparable white
Once the court made these rulings, the plaintiffs filed a “Motion for Entry of Judgment.” On April 16, 1997, the court granted the motion and gave the merit employees (who had been injured) judgment for $34,732,487. That sum consisted of $17,450,077 in back pay and $17,282,410 in interest.12
The Department appeals this judgment.13 The plaintiffs cross appeal, challenging the formula the district court used in identifying the class members who were not entitled to relief and in calculating the back pay for the remainder of the class. We conclude that the district court erred in interpreting Consent Decree I as an admission of liability by the Department – that it had discriminated against the three plaintiff classes, and the individual members thereof, with respect to its
II.
The Department contends that the district court erred in interpreting Consent Decree I to establish “class-wide liability” such that the merit employees could obtain relief without demonstrating that they were denied promotion(s) or back pay on account of their race. The plaintiffs, in addition to asking us to affirm the district court‘s judgment, contend that a waiver of appeal provision in Consent Decree I bars the Department‘s appeal.14 If the plaintiffs are correct, we need not consider the Department‘s appeal. We therefore address this issue first.
A.
The waiver of appeal provision relied upon by the plaintiffs appears in Article 19 of the consent decree:
All parties agree and stipulate that there will be no appeal from this Consent Decree or from any ruling, order, or decision entered by the
Court in the case relating to any issue or subject encompassed within the terms of this Decree. Nothing herein shall prohibit the non-class employees or any other person not a party to this Decree from having the right to appeal any interpretation, ruling, decision or order.
As a general rule, “[a] party normally has no standing to appeal a judgment to which he or she consented.” 5 Am. Jur. 2d Appellate Review § 619 (1995). See White v. Commissioner of Internal Revenue, 776 F.2d 976, 977 (11th Cir. 1985). Accordingly, the words “there will be no appeal from this Consent Decree” were not needed to preclude appellate review of the decree‘s substantive provisions. There are exceptions to the general rule; one is that an appeal will lie if “the judgement allegedly deviates from the terms of the parties’ agreement.” 5 Am. Jur. 2d Appellate Review § 619 (1995). The Department invokes this exception by contending that, in interpreting the decree to create “class-wide liability,” the district court effectively entered a new decree, one that “deviates from the terms of the parties’ agreement.” The district court‘s deviation, therefore, is subject to appellate review.
If the Department is correct, the plaintiffs respond, Article 19‘s waiver-of-appeal provision is meaningless – specifically, the words “there will be no appeal . from any ruling, order, or decision entered by the Court in the case relating to any issue or subject encompassed within the terms of this Decree.” The district court‘s interpretation of the decree to establish “class-wide liability,” including the
If the plaintiffs are correct, the waiver provision would bar appellate review of any interpretation the district court might give the decree. The provision would also bar appellate review of the court‘s disposition of the individual claims for instatement, promotion, or back pay – regardless of the errors the court might commit in disposing of those claims.15 In short, the waiver provision would give the district court unbridled discretion to rewrite Consent Decree I – as long as the court‘s “ruling, order or decision” “relat[es] to” or is “encompassed within the terms” of the decree.
Long standing precedent evinces a strong public policy against judicial rewriting of consent decrees. “[A] district court may not impose obligations on a party that are not unambiguously mandated by the decree itself.” King v. Allied Vision, Ltd., 65 F.3d 1051, 1058 (2d Cir. 1995). As the following discussion makes clear, the district court rewrote Consent Decree I, and imposed an obligation on the Department that the decree did not “unambiguously mandate[],” when it
B.
As a general matter, the rules we use to interpret a consent decree are the same ones we use to interpret a contract – since a consent decree is a form of contract. See Jacksonville Branch, NAACP v. Duval County Sch. Bd., 978 F.2d 1574, 1578 (11th Cir. 1992). What a contract provision means, or whether it is ambiguous, are questions of law, which we review de novo. See Equitable Life Assurance Soc‘y v. Sublett (In re Sublett), 895 F.2d 1381, 1384 (11th Cir. 1990). If the contract provision is ambiguous and the trial court must look to extrinsic evidence to determine the parties’ intent, we review its findings of fact (or those of the jury) as to the parties’ intent for clear error. United Benefit Life Ins. Co. v. United States Life Ins. Co., 36 F.3d 1063, 1065 (11th Cir. 1994). With these principles in mind, we consider the Department‘s argument that Consent Decree I did not establish the liability the district court found.
The district court did not articulate its reasons for concluding that the consent decree rendered the Department liable for the relief the members of the three plaintiff classes were seeking until after the Department took this appeal on April 24, 1997. In fact, we suspended the briefing schedule for this appeal pending the district court‘s issuance of an order explaining the basis for its finding of liability – in particular, the basis for awarding the merit employees back pay relief without entertaining proof of their respective claims.On March 18, 1998, the district court issued its order. Reynolds v. Alabama Dep‘t of Transp., 996 F. Supp. 1156 (M.D. Ala. 1998). In that order, the court stated that “neither Consent Decree I, nor the August 28 report, expressly indicated whether class-wide discrimination ha[d] been established.” In fact, the most plausible reading of the consent decree “at first blush” was that “the issue [of liability] had been left open, with the plaintiffs and the defendants simply to litigate the issue upon resumption of the trial.” Id. at 1179.
Drawing on a phrase from the Preamble of the consent decree – that the decree constituted the “final and complete resolution of all class issues” – the court nonetheless concluded that “both the plaintiffs and the [Department] agree[d] that the decree should not be read as silent on the liability issue.” Id. (emphasis in original). The liability issue had been settled; the plaintiffs had made out a case for
This admission, of course, did not answer the question whether the Department had conceded that it was liable to the individual class members for the relief they were seeking – instatement or promotion and/or back pay. To answer that question the court took the following approach. First, it concluded that the phrase “final and complete resolution of all class issues” in the decree‘s Preamble
After considering these pieces of evidence, the court found that the phrase “final and complete resolution of all class issues” meant that the Department‘s
We cannot accept the district court‘s conclusions that the consent decree established that the Department had discriminated against the members of the three plaintiff classes and, therefore, was liable for the class-wide prospective relief the decree granted and relief the individual class members were seeking. Finally, we cannot accept the contention that the August 28 Report rendered the Department liable for the back pay the court awarded the merit employees on April 16, 1997. We state our reasons below.
1.
2.
In addition to concluding that the Preamble phrase “final and complete resolution of all class issues” constituted an admission by the Department that it had engaged in racially discriminatory employment practices (thus warranting the class-wide injunctive relief provided by the consent decree), the district court also held that the phrase meant that the Department had discriminated against the individual class members. Thus, all the members of the merit-employee class (the recipients of the money judgment now before us) had to show in order to recover was the difference between what they and similarly situated white employees were paid. This holding is flatly inconsistent with the parties’ agreement that, absent settlement, each class member (including the members of the merit-employee class) would have to establish entitlement to relief in post-decree proceedings before the court.
The Preamble phrase is repeated practically verbatim in Article 19, which states that the class-wide relief provided by the decree “constitutes full and complete relief on all claims.” Both the Preamble and Article 19 are “subject to the provisions of this Decree providing for further proceedings, including but not
| THE COURT: | [The consent decree] does not require any back pay? |
| [PLAINTIFF‘S COUNSEL]: | No, it only requires that Mr. Leonard‘s back pay be calculated in stage two of this case, under article- |
| THE COURT: | That assumes he prevails in Stage 2. |
| [PLAINTIFF‘S COUNSEL]: | Yes, sir. No-yes, it assumes that the parties either agree on or that he‘s been a victim of some racially discriminatory practice or the Court finds that, yes sir. |
| . . . . . | |
| [PLAINTIFF‘S COUNSEL]: | . . . [I]t is my belief that the decree affords [Mr. Leonard] all of the relief that he would be entitled to receive except the issue of back pay which would be reached in the next phase of the case. |
| THE COURT: | What you‘re saying in effect is that the-any claim he may have to individual relief is still available to him? |
| [PLAINTIFF‘S COUNSEL]: | Yes. |
| THE COURT: | If he can prove his case. |
| [PLAINTIFF‘S COUNSEL]: | Yes, completely. |
| THE COURT: | Well, this decree in no way cuts off his right to come forward with evidence of racial discrimination. If he has it, he will prevail, if he doesn‘t, he‘ll lose. That option is still open. |
| [PLAINTIFF‘S COUNSEL]: | Yes. In Stage 2, he will be given the opportunity to show that he‘s been an individual victim. |
Plaintiff‘s counsel thus represented to the court in these statements that, after entry of the consent decree, the individual class members had the burden of proving their respective claims. Given this representation, the district court‘s statements to counsel, and the provision of Article 20 cited above, we reject the notion that the Preamble phrase rendered the Department liable for the relief the individual class members are seeking.
3.
Notwithstanding these provisions of Articles 19 and 20, and its statement to counsel concerning what Wayne Leonard would have to prove to prevail on his claim, the district court held that several pieces of extrinsic evidence showed that the phrase “final and complete resolution of all class issues” indicated that the Department had conceded liability to the individual class members for the relief they were seeking. The court considered this extrinsic evidence because it viewed the phrase as ambiguous. This evidence included (1) the statement in the class notice that the next stage of the case would be the “remedies” stage; (2) statements
We assume for sake of discussion that the phrase “final and complete resolution of all class issues” is ambiguous, and that the court was justified in attempting to resolve that ambiguity. To resolve the ambiguity, the court was required to employ the principles governing the interpretation of contracts.
As in the case of an ambiguous contract provision, if a provision of a consent decree is ambiguous, the court looks to extrinsic evidence to determine the parties’ intent. Cf. United States v. Insurance Co. of N. Am., 131 F.3d 1037, 1042 (D.C. Cir. 1997) (ambiguous contract). The best evidence of the parties’ intent is not what the parties or their lawyers may have said to one another – as to the meaning of the phrase – long after the consent decree is entered. First and foremost, the court should look to what the parties or their lawyers said to one another in fashioning the decree. See Lanier Profl Servs., Inc. v. Ricci, 192 F.3d 1, 4 (1st Cir. 1999) (noting that contract negotiations between the parties is at the top of the “descending order of importance” of admissible extrinsic evidence).
The district court found significant, in item (1), that the class notice mentioned “remedies” as the next stage of the litigation once the court entered the decree. In other words, the court concluded that the Department, by agreeing to the class notice, was telling each class member that, once the court entered the decree, the member would be entitled to an individual remedy (instatement, promotion and/or back pay) without having to prove that he or she was a victim of racial discrimination. The reference to “remedies,” however, when read in conjunction with the Article 20 provision quoted above, shows only that the parties contemplated “further proceedings.” In fact, the class notice, paraphrasing Article
Item (3) is similarly unavailing. That earlier settlement proposals contained an express disclaimer of liability while Consent Decree I is silent on the point does not yield permissible inferences that the Department admitted that its employment and promotion practices were discriminatory and that it had actually discriminated against every member of the plaintiff classes because of race.23 The latter inference is impermissible because Article 20 explicitly informed the class members that no individual relief would be forthcoming absent proof that racial discrimination motivated the Department‘s employment or promotion decision. The former inference is impermissible because an admission of liability concerning the Department‘s employment and promotion practices was unnecessary given the Department‘s agreement to Consent Decree I‘s class-wide relief.
This brings us to item (4), plaintiffs’ counsel‘s representation that, while negotiating the terms of Consent Decree I, the Department‘s attorneys admitted
Typically, as we have noted, what the parties or their lawyers say while negotiating the terms of a contract may be highly probative of the meaning of an ambiguous provision in their agreement.
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible.24
Absent this exception, the district court acted properly when it considered the statements the Department‘s attorneys made to plaintiffs’ counsel as to the meaning of the phrase “final and complete resolution of all of the class issues.”
In sum, even if the phrase at issue is considered ambiguous, the district court had no admissible evidence before it with which to resolve the ambiguity. Accordingly, the court should have left the parties where it found them, with the issue of the Department‘s liability – as to the classes or the individual class members – unresolved. This having been said, we return to our earlier holding; that is, that the phrase “final and complete resolution of all class issues” is unambiguous.
4.
Putting aside the question whether the “final and complete resolution” phrase is ambiguous, the district court concluded that the members of the merit-employee class were entitled to back pay because the Department effectively admitted liability for such pay by agreeing, in the August 28 Report, to a formula for determining back pay. In essence, the court found that, by jointly filing the
The court‘s conclusion is erroneous, and we accordingly disregard it, for two reasons. First, nothing in the report could reasonably be construed as the Department‘s admission of liability for the back pay the court subsequently awarded. Second, in submitting the report, the Department was simply following the court‘s command – that the parties negotiate a “formula” for determining back pay. As it turned out, the parties were able to agree on a framework for a formula; they disagreed, though, as to precisely what the formula should be. Because the court had nothing before it on which to base its holding of liability on the back pay issue, we need not decide whether the Department‘s concession in the August 28 Report if, indeed, that is what it was – is inadmissible under
III.
For the reasons we have given, we vacate the district court‘s determination that Consent Decree I operated as an admission, and therefore an adjudication, of
With the exception of the prospective injunctive relief Consent Decree I has provided, the paths the parties have followed in litigating this case have led to nothing but the expenditure of time and considerable resources. For the most part, counsel have simply engaged in shadow boxing – all at the expense of the taxpayers of the State of Alabama and other litigants whose cases are awaiting the district court‘s attention. We therefore consider it necessary to explain the present posture of this case and what remains to be litigated.
First, the prospective injunctive relief provided by Consent Decree I remains undisturbed. Second, that decree did not adjudicate the Department guilty of anything.26 Third, as Article 20 of the decree states, in order to obtain individual
SO ORDERED.
Notes
A subsequent paragraph in the notice indicated that the remedies stage would involve separate trials of the individual class members’ possessive claims for relief:
The proposed Consent Decree, by itself, does not guarantee that any particular member of the class will be entitled to back pay or front pay, but it also does not limit the amount of such relief to which any class member may be entitled in the future proceedings to be held on that phase of the case.
Whether the Department followed a discriminatory policy in deciding whether to hire or promote a person is an issue that may be susceptible to resolution in a consolidated proceeding involving representative members of each of the three plaintiff classes, so that the findings of fact yielded by such proceeding would operate as collateral estoppel in the litigation of the individual class members’ claims under the framework provided by McDonnell Douglas. See Gulf Tampa Drydock Co. v. Germanischer Lloyd, 634 F.2d 874, 877 n.4 (5th Cir. 1981) (stating that collateral estoppel “would ‘preclude a party from relitigating an issue decided against him in a prior action, even if the party asserting the estoppel was a stranger to the prior action . . . unless it appears that the party against whom the estoppel is asserted [did not have] a full and fair opportunity to litigate the issue in the prior proceeding and that application of the doctrine [would] result in an injustice.’ “) (quoting Rachel v. Hill, 435 F.2d 59, 62 (5th Cir. 1970)).
We emphasize that a finding, in such consolidated proceeding, that the Department implemented a racially discriminatory policy, would not necessarily create an inference that a given class member was denied employment or a promotion because of race. That is, a finding that the employer has been discriminating against job applicants and employees does not, standing alone, entitle a person to relief; other facts must be present – including that the person seeking relief was qualified for the position in question – if that person is to carry the day. In Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974) (Pettway III), which we discuss in the previous footnote, the district court found, after a full trial on the merits, that the defendant essentially froze all of its black employees in less desirable positions by using testing requirements unrelated to business necessity. See id. at 217-43. The former Fifth Circuit held that those facts supported a “reasonable inference” that an individual member was the victim of discrimination. Id. at 260.