512 F.2d 976 (D.C. Cir. 1975), 72-1376, Douglas v. Hampton

Docket Nº:72-1376.
Citation:512 F.2d 976
Party Name:P 9973, Jesse DOUGLAS et al., Appellants, v. Robert E. HAMPTON, Chairman of Civil Service Commission, et al.
Case Date:February 27, 1975
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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512 F.2d 976 (D.C. Cir. 1975)

P 9973,

Jesse DOUGLAS et al., Appellants,


Robert E. HAMPTON, Chairman of Civil Service Commission, et al.

No. 72-1376.

United States Court of Appeals, District of Columbia Circuit

February 27, 1975

Argued Jan. 18, 1974.

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[Copyrighted Material Omitted]

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Jules M. Perlberg, Chicago, Ill., with whom Davis S. Tatel, Chicago, Ill., was on the brief, for appellants.

John J. Mulrooney, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, and John A. Terry, Asst. U. S. Atty., were on the brief, for appellees. Earl J. Silbert, U. S. Atty., also entered an appearance for appellees.

Beatrice Rosenberg, Asst. Gen. Counsel, E. E. O. C., with whom Julia P. Cooper, Chief, Appellate Section, and Philip B. Sklover, Atty., E. E. O. C., were on the brief for Equal Employment Opportunity Commission as amicus curiae.

Before McGOWAN and ROBINSON, Circuit Judges, and MATTHEWS,* United

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States Senior District Judge for the District of Columbia.


The named appellants in this class action are eight black college graduates who were recruited by the Chicago Regional Office of the Department of Housing and Urban Development (HUD) for participation in HUD's Urban Intern Program. The program was designed to bring qualified minority group citizens into responsible positions within the agency. Three appellants 1 were hired as temporary employees, with permanent employment contingent on passing the Federal Service Entrance Examination (FSEE). All three failed the FSEE and were discharged solely because of this failure. The other named appellants 2 qualified for permanent appointments because of either an outstanding scholastic record or prior work experience, but took the FSEE to qualify for higher ratings or entrance into HUD's Management Intern Program. All five failed to obtain the necessary scores and thus were incligible for permanent employment in higher positions.

Despite appellants' lack of success on the FSEE, they apparently performed their jobs in a highly satisfactory manner A HUD official 3 stated that appellants were 'extremely well qualified for Federal employment . . . [and] highly qualified for the positions to which they were assigned.' 4 Appellants 'received satisfactory evaluations and commentaries from their supervisors,' he said, 'and proved . . . their ability to progress to a higher and more responsible position within [HUD].' 5 The official further stated his opinion, based on personal observation, that some employees who performed poorly on the FSEE were a qualified as other employees who did well on the examination. 6

On August 25, 1970, appellants filed a complaint with the Chicago Interagency Board of the United States Civil Service Commission charging that the FSEE unlawfully discriminates on the basis of race. 7 Appellants asked that they be given jobs and ratings commensurate with their job performance, and that the FSEE be revised or abandoned. The Board denied this relief by letter of September 8. 8 Appellants then filed a petition for an appeal with the Chicago Regional Office and the Commission's Bureau of Research and Examination. 9 A letter accompanying the petition sought data disclosing results on the FSEE according to race and any data bearing on Commission attempts to 'validate' 10 the FSEE. The appeal was denied on December 10, 1970, and the Commission did not supply any of the requested information. 11

On February 4, 1971, appellants filed this action in the District Court, alleging that use of the FSEE in the employment and promotion of federal employees violates the Fifth Amendment, 12 the Civil

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Rights Act of 1870, 13 and statutes relating to the federal civil service. 14 On August 5, appellants filed a motion for a preliminary injunction restraining the Commission from using the FSEE for purposes of hiring and rating federal employees, prohibiting the Commission from discharging any employee solely because of failure to pass the FSEE, and ordering reinstatement of any employee so terminated. The Commission promulgated new regulations on August 14 governing administrative challenges to employment practices in the federal service, including administration of examinations like the FSEE. 15 Appellees 16 then moved for a remand of the case to the Commission for reconsideration of appellants' claims under these regulations.

The District Court held that appellants had not demonstrated a sufficient likelihood of success on the merits, because they had failed to make a showing that the FSEE has a racially disproportionate impact. 17 Further, the court found, although it was unnecessary to its decision, that appellees had 'demonstrated that the FSEE is a reasonable measure of job performance in those occupations where it is generally used as the entry requirement.' 18 The court also granted appellees' motion to remand, '[b]ecause of the complex factual determinations which will have to be made in this case, the particular expertise and statutory jurisdiction of the Commission as to the issues involved, and in the interest of judicial economy.' 19

In this opinion, we discuss the likelihood of proof that the FSEE has a recially disproportionate impact, 20 the proper legal standard for determining the validity of the FSEE, 21 and the propriety of the District Court's remand to the Commission. 22 In the end, we vacate the denial of the preliminary injunction and affirm the remand order. 23


  1. The Federal Service Entrance Examination

    The FSEE is the 'primary avenue of entry' into managerial and professional positions in the federal civil service. 24 The examination was developed by the Commission for this purpose and was first used in 1955. 25 It is administered to approximately 150,000 applicants annually, and the results are used to fill about 10,000 positions in over 200 job categories throughout the Federal Government. 26 The jobs are widely varied, including those of computer specialist, customs inspector, economist, psychologist,

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    social service representative and many more. 27

    It goes without saying that the Commission is prohibited from discriminating on the basis of race in the hiring or rating of federal employees. The major differences between the parties on this appeal concern interpretation of the standard by which the Commission's employment practices are to be measured. Numerous cases in the federal courts have involved challenges to standardized aptitude tests on both constitutional 28 and statutory 29 grounds. No court has distinguished the standard mandated by the Fifth and Fourteenth Amendments from that specified by Title VII of the Civil Rights Act of 1964. 30 In 1971 the Supreme Court defined the Title VII standard for private employers in Griggs v. Duke Power Company, 31 and since that decision Congress has extended the reach of Title VII to public employers, including the Federal Government. 32 Congress clearly intended to give public employees the same substantive rights and remedies that had previously been provided for employees in the private sector; 33 beyond that, the applicability of the Griggs standard has also been recognized in numerous cases involving public employees not grounded on Title VII. 34 So, notwithstanding the several equal protection guarantees implicated in this litigation, the Griggs standard is the measure of the rights and liabilities of the parties. 35

    By that standard, '[i]f an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.' 36 Once it is shown that a practice has a racially disproportionate impact, the employer must meet the heavy burden of proving that the practice 'bear[s] a demonstrable relationship to successful performance of the jobs for which it was used.' 37 The task at hand is to determine whether, on the evidentiary showings viewed in light of these principles, the District Court properly denied appellants' motion for a preliminary injunction and properly granted appellees' motion for a remand to the Commission.

  2. Racial Data Regarding the FSEE

    The Commission does not maintain pass-fail data on the FSEE by race. As a result, any evaluation of the racial impact of the FSEE must be based on data

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    approximating direct evidence of black performance on the FSEE. Appellants have produced two statistical analyses, of information furnished by the Commission, clearly establishing that whites perform much better than blacks.

    In discovery proceedings in the District Court, the Commission furnished pass-fail rates at 1149 colleges from October, 1969 to June, 1970. One study 38 designated 50 of these colleges predominantly black and 835 predominantly white, based on enrollments of at least 95% black or white respectively. 39 The total number of people included in this sample appears to be over one-third of the applicants taking the FSEE during that year. 40 The passing rate on black campuses was 12.4% and on white campuses was 60.2%. When the minimum racial percentage was increased, much the same result was found; the passing rate at 99% black colleges was 11.5%, and at 99% white colleges was 57.8%. 41 Because entrants into HUD's Management Intern positions must score at least 95 on the FSEE, the study also investigated the frequencies of scores at that level for blacks and whites. The percentage scoring 95 or above on the FSEE was 0.6 at the predominantly black schools and 17.4 at the predominantly white colleges; at the 99% colleges, the percentages were 0.7 for blacks and 14.4 for whites. An independent study reached similar results through a different technique...

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