Cooper v. Allen

• Decision Date: 05 October 1972
• Docket Number: No. 71-3186.,71-3186.
• Citation: 467 F.2d 836
• Parties: Robert J. COOPER, Plaintiff-Appellant, v. Ivan ALLEN, Jr., Mayor of the City of Atlanta, Georgia, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

467 F.2d 836 (1972)

Robert J. COOPER, Plaintiff-Appellant, v. Ivan ALLEN, Jr., Mayor of the City of Atlanta, Georgia, et al., Defendants-Appellees.

No. 71-3186.

United States Court of Appeals, Fifth Circuit.

August 29, 1972.

Rehearing and Rehearing Denied October 5, 1972.

Elizabeth Rindskopf, Howard Moore, Jr., Atlanta, Ga., Jack Greenberg, William L. Robinson, New York City, Michael H. Terry, Atlanta, Ga., Robert N. Dokson, Cambridge, Mass., for plaintiff-appellant.

Robert S. Wiggins, Henry L. Bowden, Atlanta, Ga., for defendants-appellees.

Before RIVES, BELL and MORGAN, Circuit Judges.

Rehearing and Rehearing En Banc Denied October 5, 1972.

RIVES, Circuit Judge:

In 1966 appellant Cooper, a Negro, applied for a position as one of Atlanta's municipal golf pros. At that time no form of intelligence testing was employed by the City. Cooper was not hired. Sometime thereafter the City began to require a certain score on the Otis-Lennon Mental Ability Test, Form J, as a prerequisite to employment as a golf pro. In addition an applicant had to satisfy other requisites. In 1969 a golf pro slot opened. Cooper applied. He was compelled to take the Otis test which he failed. As a consequence his application was denied.¹

Cooper filed a class action in federal district court alleging violations of 42 U.S.C. § 1983 and of Title VII of the Civil Rights Act. (The Title VII claim was not maintainable since Cooper had failed to comply with the conciliatory requirements of that statute.) In Count I of his complaint he alleged that the City's failure to hire him in 1966 was motivated by racial prejudice. The district court found no evidence of such discriminatory intent and denied relief. Cooper does not appeal from that judgment. In Count II Cooper alleged that use of the Otis test to reject his 1969 application violated his civil rights. The district court found jurisdiction under 42 U.S.C. § 1981 rather than under § 1983.

Cooper filed his Count II class action on behalf of all Negroes, no matter for what job they had applied, who were denied jobs with the City on account of failure to pass the Otis test. At the time of his suit the City used the test as a prerequisite to 19 positions other than that of golf pro.² The district court held the class which Cooper had drawn to be "unreasonably diverse" in that "there are too many uncommon questions of law and fact." The judge therefore limited the class to all Negroes, past, present and future, who have made or will make application for a position as golf pro.

Having limited the class the district court proceeded to the merits. The district judge found that although Griggs v. Duke Power Co., 1971, 401 U. S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158, involved a Title VII challenge to testing practices, a challenge which could not be maintained, it could still be said that "Where no Title VII issues are involved * * * and a suit merely alleges a claim under section 1981, the court finds that the actual test used by the employer must bear a substantial relationship to the demands of the work to be performed." Accord, Arrington v. Massachusetts Bay Transportation Auth., D. Mass.1969, 306 F.Supp. 1355. Of course correlation between the test and the job need be present only where it is shown that use of the test serves to discriminate. The district court then found that the effect of utilizing the Otis test disqualified a disproportionate number of blacks seeking to be hired as golf pros. Finally, it concluded that the test did not bear a "substantial relationship to the demands of the work to be performed."

Accordingly, use of the Otis test to evaluate golf pro candidates was permanently enjoined. Cooper also requested back pay from the date on which he was disqualified as a consequence of failing the Otis test and an order requiring the City to hire him for the next available golf pro position. The court denied such relief. The district judge also denied Cooper's prayer for attorneys' fees and ordered that costs be taxed one-half to Cooper and one-half to the defendants.

Cooper appeals, alleging that the district court erred in refusing:

(1) To allow him to maintain his suit on behalf of all Negroes applying for any of the 19 jobs other than golf pro for which the City required the taking and passing of the Otis test;

(2) to award back pay;

(3) to order the City to hire him for the next available golf pro position;

(4) to award attorneys\' fees; and

(5) to tax all costs to the defendants.

We affirm in part, reverse in part, and remand for an evidentiary hearing.

I. Class Action.

Cooper contends that the district court erred in narrowing the class for any of the following three reasons: (1) Since he alleges that the City has intentionally discriminated in all 20 of the job positions, there is but one legal and factual issue; (2) the City's use of the Otis test without first having undertaken to validate its relevancy to each of the 20 job classifications is itself a violation of the law giving rise to a cause of action; and (3) the City's admitted failure to take into account any cultural or educational deficiency on the part of Negroes in evaluating the meaning of their test scores violates the instructions of the Otis test, and therefore use of the test scores for Negroes is invalid. Each of these arguments is without merit.

(1) First, the record does not support a finding that the City has intentionally discriminated in its hiring policies with respect to any of the 20 job classifications. Cooper cites cases in support of his theory such as Jenkins v. United Gas Co., 5 Cir. 1968, 400 F.2d 28, in which we allowed a class suit seeking redress for plant-wide racially discriminatory practices. But in that case, and in the others referred to by Cooper, there was evidence that the employer had intentionally discriminated against blacks. Consequently the employer asserted but one defense, that he did not intentionally discriminate. Here there is no evidence of intentional discrimination on the part of the City. In the absence of such evidence, Cooper cannot successfully challenge the Otis test on a theory that the City of Atlanta used such test with the intent to disqualify a disproportionate number of blacks. Rather, his complaint must be that implementation of the test does in fact disqualify more blacks than whites and that as such it should be banned regardless of the presence or absence of such intent. To meet such challenge, the City must show with respect to each job category at issue that the test is substantially related to one's performance in the position sought. Necessarily, then, such a showing must be made for each of the 20 job classifications under attack. Class treatment for all 20 job classifications seems inappropriate.

(2) Next Cooper argues that the Otis test may be presumed invalid because the City did not, prior to its implementation, undertake a study to validate its ability to forecast an applicant's performance in each of the 20 jobs at issue. Hence, says Cooper, "the factual propositions are identical: the same test are sic being used as an employment criterion, in each category no prior validation studies have been conducted * * * to demonstrate a correlation between test performance and predictability of job performance, and the statistics concerning the test as used in each of the nineteen relevant job categories i. e., those other than golf pro clearly showed adverse impact on Blacks." (Appellant's Brief at 22-23.) In effect, Cooper contends that class relief automatically flows from the City's failure to conduct a study of the Otis test's predictive integrity prior to its implementation. Even assuming the record supports a finding that use of the test adversely affects blacks across the board, Cooper's argument fails. He labors under a misapprehension of the law. There is no requirement that prior to implementation of an intelligence test as an employment criterion the employer must validate its ability to forecast job performance. Rather, once plaintiff shows a discriminatory effect, the burden shifts to defendant to prove the test's validity. Where, as in this case, the plaintiff contends that a test serves to discriminate in 20 job categories, it would be unreasonable to require the employer, in a single law suit, to show that the test accurately predicts performance in each. As the district court concluded, the factual issues are too diverse to warrant class treatment.

(3) Finally, Cooper contends that, since the City has disregarded certain instructions accompanying the Otis test, class relief is proper. The Manual of Instructions to the Otis test states in effect that the tester should not expect the same score from one who is culturally or educationally deprived as from one who is culturally or educationally enriched. The City admits that when considering a black applicant it does not consider that blacks are often deprived in these respects. However, failure to consider this alleged inequality among applicants does not relate to the class action issue. The law does not require lower standards of employment for blacks. If the test is substantially related to the demands of the job and no black can pass the test, an employer need not hire any blacks. Again the issue distills into whether one's performance on the Otis test is substantially related to his performance in each of the 20 job categories under scrutiny. As we have said, it would be inappropriate to require the City in a single suit to substantiate the test's relationship to all 20 of the job classifications.

In view of the foregoing considerations, we affirm the district court's judgment that Cooper not be allowed to...