Shack v. Southworth

• Decision Date: 28 July 1975
• Docket Number: No. 74-1823,74-1823
• Citation: 521 F.2d 51
• Parties: 11 Fair Empl.Prac.Cas. 273, 10 Empl. Prac. Dec. P 10,342 Charles Richard SHACK, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. Charles H. SOUTHWORTH, Sheriff of Jackson County, Michigan, Individually and in his official capacity, and Jackson County, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 51

521 F.2d 51

11 Fair Empl.Prac.Cas. 273,

10 Empl. Prac. Dec. P 10,342

Charles Richard SHACK, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. Charles H. SOUTHWORTH, Sheriff of Jackson County, Michigan Individually and in his official capacity, and Jackson County, Defendants-Appellees.

No. 74-1823.

United States Court of Appeals Sixth Circuit.

July 28, 1975.

H. Rhett Pinsky, Pinsky & Soet, Grand Rapids, Mich., for plaintiff-appellant.

Bruce A. Barton, Pros. Atty., Jackson, Mich., Robert E. Biewend, Chief Asst. Pros. Atty., James M. Justin, Asst. Pros. Atty., for defendants-appellees.

Before CELEBREZZE, McCREE and LIVELY, Circuit Judges.

LIVELY, Circuit Judge.

In this action declaratory and injunctive relief, together with damages, were sought for alleged racial discrimination by the defendant in hiring deputy sheriffs. The appellant sued on his own behalf and sought also to proceed as representative of a class including black applicants for deputy sheriff positions and black persons who would have applied except for the reputation of the sheriff department of Jackson County for not hiring black persons for such jobs. After a trial before the court, the District Judge filed an opinion including findings of fact and conclusions of law and entered judgment for the defendant. An intervening plaintiff, John E. Wallace, did not appeal dismissal of his complaint.

The facts of the case are fully set forth in the opinion of the district court. Shack et al. v. Southworth, (E.D.Mich.1975). The findings of fact are supported by substantial evidence and are not clearly erroneous. Rule 52(a), Fed.R.Civ.P. On appeal, we must determine whether the district court erred, as contended by appellant, in concluding that no violation of rights guaranteed by the Thirteenth and Fourteenth Amendments and 42 U.S.C. §§ 1981 and 1983 was proven. Believing as we do that the district court reached the correct legal conclusions on the record before it, we affirm.

It is claimed that the sheriff practiced discrimination in two respects. The first method of discrimination is alleged to result from the practice of preferring applicants for deputy jobs who have been policemen in one of the townships of Jackson County, and of exempting them from testing and interview procedures required of other applicants. The defendant admitted that he gave preference to township police officers in hiring deputies. In December 1972 an authorization was received to add eight deputies, and six were chosen from the applications of township police officers before any other applications were considered. The plaintiff Shack was an applicant for one of the eight new jobs and claims he was discriminated against by the admitted preference given to township police officers. Since all the township police officers of Jackson County were white it is contended that the preference resulted in excluding black candidates and is thus discriminatory. However, the district court found that less than one percent of the population of the townships was black, and there was no showing that discrimination played any part in the all-white make-up of the township police forces. Thus, the preference accorded township officers was not shown to result in the perpetuation or carrying forward of past discriminatory practices. This case is unlike United States v. Sheet Metal Workers, Local 36, 416 F.2d 123 (8th Cir. 1969), and Local 53, Heat & Frost Insulators v. Vogler, 407 F.2d 1047 (5th Cir. 1969), where the defendant unions were found to have engaged in racial discrimination in the past, and current practices which were held invalid had the effect of denying membership to minorities because they were designed to perpetuate this discrimination.

The defendant testified concerning the reasons for his practice of giving preference to applicants from the township police forces. These reasons included the fact that these applicants had successfully completed a mandatory course of at least seven weeks of classroom work in law enforcement. Furthermore, they were known to have performed satisfactorily on the job. He testified that his office was involved closely with the township police and that he had an opportunity to observe the officers in the performance of their duties. He had a "pool" of applicants who were township officers and who were interested in law enforcement careers. When he had vacancies, he hired from this pool without requiring written examinations, interviews with an "oral board" of sheriff department officers or extensive background investigations.

The district court found that a rational relationship existed for the preference given to township officers. The appellant contends that the Equal Protection Clause requires a compelling interest, or at least something more than a rational relationship between the preference and the job to be performed by deputy sheriffs to justify the practice. The cases relied upon by appellant do not support his position. In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the Supreme Court stated, "If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited." 401 U.S. at 431, 91 S.Ct. at 853. The Court then found that the criteria upon which the defendant in that case relied had no demonstrable relationship to success on the job. In the present case, the district court relied upon uncontradicted testimony that the preference accorded township police officers was based on proven performance of police work and prior completion of a course of study in law enforcement.

In Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, 354 F.Supp. 778, 788 (D.Conn.), Aff'd in part, rev'd in part, 482 F.2d 1333, 1337 (2d Cir. 1973), the district court first found a "disparity of sufficient magnitude" in the numbers of Negroes and Puerto Ricans hired as compared with members of the majority race to impose upon the defendant the burden of justifying use of a particular examination. In this context the court spoke of a standard somewhere between compelling interest and rational relationship. The rule with respect to choice of standards is stated in Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972), in the following language:

Burden of Proof

In the general course, a court faced with a claimed denial of equal protection must first ascertain whether the plaintiff, has made such a threshold showing as to require a justification, must then identify the classification employed, and must finally determine whether the classification has been justified under governing standards. In pursuing an inquiry as to the relationship between each requirement and successful performance on the job, a court might adopt a relaxed standard of review whereby it would be a sufficient justification that under some reasonable version of the facts the classification is rationally related to a permissible goal, here the selection of qualified persons for public employment. Cf. McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1960). Such a justification is clearly adequate where the initial showing is simply that a plaintiff or class of plaintiffs has been excluded from employment by the classification.

As to classifications which have been shown to have a racially discriminatory impact, more is required by way of justification. The public employer must, we think, in order to justify the use of a means of selection shown to have a racially disproportionate impact, demonstrate that the means is in fact substantially related to job performance. It may not, to state the matter another way, rely on any reasonable version of the facts, but must come forward with convincing facts establishing a fit between the qualification and the job. Id. at 732.

While there were no black deputies at the time appellant applied, the sketchy proof in the case showed that there had been black deputies in the past. At one time when the total force was small there had been two black deputies. The appellant did not make the "threshold showing" of a racially discriminatory impact which would have required the appellee to have demonstrated more than a rational relationship between the preference and successful performance on the job.

The other charge of discrimination relates to the method by which the remaining two deputies were chosen in the December 1972 expansion of the sheriff department. Appellant applied for one of eight new jobs and was one of five applicants chosen for a final test and interview out of more than seventy applications which were "screened." He scored highest of the five on the written test, but was placed third by the oral examination board which interviewed all five applicants on December 28, 1972. A member of the board testified that each member asked the candidates questions designed to satisfy that member's particular area of concern. The purpose of the interviews was to determine how the person being interviewed would relate to other officers and the public and how he would react to given situations. After all interviews 15 to 30 minutes each were concluded, the board members ranked the candidates without prior discussion. This was done by assigning each person interviewed a number (1, 2, 3, 4 or 5) on a paper ballot. Upon tabulation of the ballots it was found that the board members were unanimous in the 1st, 4th and 5th choices, and that the person ranked second received four votes for that position and one for third place while appellant received four votes for third and one for second place.

Because of their near unanimity the members then discussed their vote. It was agreed that although appellant was as qualified as any of the candidates he had no real interest in working for the sheriff department. He preferred to work as a Jackson City policeman, but was ineligible at the time, and applied...