Bridgeport Guard., Inc. v. MEMBERS OF BRIDGEPORT CS COM'N

• Decision Date: 29 January 1973
• Docket Number: Civ. No. B-457.
• Citation: 354 F. Supp. 778
• Court: U.S. District Court — District of Connecticut
• Parties: BRIDGEPORT GUARDIANS, INC. et al. v. MEMBERS OF the BRIDGEPORT CIVIL SERVICE COMMISSION et al.

354 F. Supp. 778

BRIDGEPORT GUARDIANS, INC. et al. v. MEMBERS OF the BRIDGEPORT CIVIL SERVICE COMMISSION et al.

Civ. No. B-457.

United States District Court, D. Connecticut.

January 29, 1973.

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Michael Koskoff, Ira Horowitz, Mark Gross, Bridgeport, Conn., for plaintiffs.

J. Daniel Sagarin, James F. Stapleton, and Jack Samowitz, James J. O'Connell, and Nancy O'Connell, Howard T. Owens, Jr., Bridgeport, Conn., for defendants.

MEMORANDUM OF DECISION

NEWMAN, District Judge.

This is a Civil Rights Act suit challenging the constitutionality of the hiring and promotion procedures of the Bridgeport, Connecticut, Police Department. 42 U.S.C. §§ 1981, 1983. Plaintiffs include several Black members of the Bridgeport police force, some of whom have taken but failed promotion examinations, Black and Puerto Rican residents of Bridgeport who have taken but failed the patrolman's examination, Bridgeport Guardians, Inc., a non-profit corporation whose membership includes nearly all the Black policemen of Bridgeport, and Housing Police Benevolent Assn., a non-profit corporation whose members are special policemen patrolling the public housing projects of Bridgeport. The defendants are the members and the director of the Bridgeport Civil Service Commission and the superintendent of police. Intervening defendants are Bridgeport police officers who are or may be eligible for promotion, and applicants for the rank of patrolman who stand high on current eligibility lists and would be appointed but for this lawsuit.

Plaintiffs seek to bring this action as a class action pursuant to Fed. R.Civ.P. 23. The class they seek to represent is set out in the margin.¹ The pleadings do not provide definition to the phrase "minority group members." Though the evidence deals with discrimination against Blacks and Puerto Ricans, there is some question of whether the class has been adequately defined. Cf. Chaffee v. Johnson, 229 F.Supp. 445 (S.D.Miss.1964). In any event, since any equitable relief to which plaintiffs may be entitled would benefit all persons similarly situated, there is no compelling reason to designate a class. Bailey v. Patterson, 323 F.2d 201, 207 (5th Cir. 1963).

Defendants have objected to the inclusion as plaintiffs of the association of Black policemen and the association of housing policemen. Since the individual plaintiffs' standing is uncontested, the standing of the groups is not critical to the maintenance of the suit. See NAACP v. Allen, 340 F.Supp. 703 (M.D.Ala.1972). Moreover, in this and other contexts, a group has been accorded standing to assert the rights of its members who have been injured in fact. NAACP v. Allen, supra; Sierra Club v. Mason, 351 F.Supp. 419 (D.Conn.1972). Members of both groups have taken and failed the patrolman's exam which is alleged in this suit to be discriminatory.

Defendants have also sought to have the suit dismissed on the ground that the grievance asserted by plaintiffs falls within the jurisdiction of the Equal Employment Opportunity Commission, in view of the 1972 amendment to Title VII of the Civil Rights Act of 1964, which removed the exemption of states and political subdivisions from the definition of employers subject to the Act. P.L. 92-261 (1972); 42 U.S.C.A. § 2000e(b). Even if the availability of an administrative forum invoked the doctrine of primary jurisdiction in this context, which most courts have rejected,² the doctrine would be inapplicable here where the suit was filed prior to the effective date of the amendment enlarging the jurisdiction of the E.E.O.C.

On the merits, the initial inquiry in suits of this sort is whether the plaintiffs have established a prima facie case of de facto discrimination with respect to Bridgeport's procedures for hiring and promoting policemen sufficient to shift to the city the burden of justifying the use of these procedures despite their discriminatory effect. Chance v. Board of Examiners, 458 F.2d 1167 (2nd Cir. 1972); Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972); Pennsylvania v. O'Neill, 473 F.2d 1029 (3d Cir. 1972); Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971) (en banc); Shield Club v. Cleveland, (N.D.Ohio Dec. 21, 1972); Western Addition Community Organization v. Alioto, 330 F.Supp. 536 (N.D. Cal.1971); see Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed. 2d 158 (1971), applying this approach in Title VII litigation.

I

The hiring procedure for Bridgeport policemen has four elements. First, an applicant fills out an application form. The information he supplies concerning age, height, weight, etc. is used to determine his eligibility for appointment. Second, an eligible applicant takes a written multiple-choice examination. The passing grade is 75 on a scale from 0 to 100. This grade is established as a part of the city charter in the rules of the civil service commission and applies to all civil service tests throughout the city's employment. Third, the applicant's prior training and experience is rated according to a chart which assigns arithmetical values for various kinds and lengths of experience and for college education. Fourth, a background investigation is conducted by the police department for all applicants who pass the written exam. The results of the background investigation are reviewed by the director of the civil service commission who decides in his discretion whether the applicant surmounts this hurdle. For those applicants who meet eligibility requirements and pass the written exam and the background investigation, a cumulative numerical rating is determined by giving the exam grade a weight of 70% and the training and experience rating a weight of 30%. The civil service commission prepares an eligibility list for the position of patrolman, ranking all successful applicants in accordance with their cumulative, weighted numerical rating. Pursuant to the city regulations, the eligibility list is valid for two years.³ Whenever vacancies are to be filled in the rank of patrolman, appointments are made from the eligibility list strictly in order of standing on the list.

Plaintiffs' principal claim of discrimination in the hiring procedure is aimed at the written exam. Their evidence disclosed that 644 persons had taken the exam on the six occasions when it was given between 1965 and 1970. The passing rate for the 568 White applicants was 58%. The passing rate for the 76 Black and Puerto Rican⁴ applicants was 17%. The passing rate for Whites was thus 3½ times the rate for Blacks and Puerto Ricans. In Chance, a prima facie showing of discriminatory tests was based in part on passing rates for Whites 1½ and 2 times that of Blacks and Puerto Ricans. 458 F.2d at 1170; 330 F.Supp. 203 at 210-122.

To highlight the significance of the disparity in passing rates, plaintiffs' statistical expert analyzed the results of the last three exams, each of which was taken by more than 100 applicants. He calculated that with respect to the differences in passing rates on the November, 1967, and the 1970 exams, the probability of these occurring by chance was less than 1 in 10,000, and that the comparable probability figure for the 1968 exam was less than 1 in 100.

Plaintiffs contend additional significance is given to the disparity in passing rates by the resulting low numbers of Blacks and Puerto Ricans in the Bridgeport Police Department on an absolute basis and compared to the city population. Of the 469 members of the department, 17 (3.6%) are Black or Puerto Rican, and this is the most there has ever been.^4a Of these, 16 are patrolmen, one is a detective, and none is in a supervisory rank. The 1970 census figures disclose that Bridgeport's population was 16% Black and 9% Spanish-speaking, for a combined Black and Puerto Rico percentage of 25%.

Finally, plaintiffs compared the Bridgeport figures with comparable figures from Connecticut's two other large cities, Hartford and New Haven:

                Bridgeport Hartford New Haven
                Total population            156,542            158,017          137,707
                Blacks                       25,476 (16%)       44,540 (28%)     36,175 (26%)
                Spanish speaking             14,103 (9%)        11,942 (8%)       4,916 (4%)
                Combined Black and
                  Spanish speaking           39,579 (25%)       56,482 (36%)     41,091 (30%)
                Total police department         469                483              434
                Black and Puerto
                  Rican policemen                17 (3.6%)          66 (14%)         57 (13%)
                Personnel in police
                  department above the
                  rank of patrolman             117                139              126
                Blacks and Puerto
                  Ricans in police
                  ranks above patrolman           1 (1%)            22 (16%)         13 (10%)
                

Defendants dispute on a number of grounds the contention that these figures establish a prima facie case that the patrolman's exam is discriminatory. First, defendants sought to establish that the differences in passing rates are not due to any racial or ethnic bias in the tests, but instead are a reflection of the quality of schooling the applicants received. Defendants analyzed the passing rates and average scores of all Blacks, Spanish surnames and foreign-born Whites who took the patrolman's exam since 1965. The Blacks were divided into those born in Bridgeport and those born outside of Connecticut; the Spanish surnames were divided into those born in mainland United States and those born in Puerto Rico. The figures disclose that the 15 Blacks born in Bridgeport averaged 66.276% on the test with 6 (40%) passing; the 36 Blacks born outside of Connecticut averaged 55.624% on the test with 5 (13.9%) passing, and while the number educated in Connecticut who failed is not known, 4 of those who passed were educated in Connecticut. The 5 Spanish-surnamed candidates born in the mainland United States averaged 70.22% on the test with 3 (60%) passing; the 24 Spanish-surnamed candidates born in...