Davis v. Los Angeles County

• Decision Date: 14 December 1977
• Docket Number: Nos. 73-3008 and 73-3009,s. 73-3008 and 73-3009
• Citation: 566 F.2d 1334
• Parties: 16 Fair Empl.Prac.Cas. 396, 15 Empl. Prac. Dec. P 8046 Van DAVIS et al., Plaintiffs-Appellants, v. COUNTY OF LOS ANGELES et al., etc., Defendants-Appellees. Van DAVIS et al., Plaintiffs-Appellees, v. COUNTY OF LOS ANGELES et al., etc., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1334

566 F.2d 1334

16 Fair Empl.Prac.Cas. 396, 15 Empl. Prac.

Dec. P 8046

Van DAVIS et al., Plaintiffs-Appellants, v. COUNTY OF LOS ANGELES et al., etc., Defendants-Appellees.

Van DAVIS et al., Plaintiffs-Appellees, v. COUNTY OF LOS ANGELES et al., etc., Defendants-Appellants.

Nos. 73-3008 and 73-3009.

United States Court of Appeals, Ninth Circuit.

Dec. 14, 1977.

Rehearing Denied Jan. 30, 1978.

A. Thomas Hunt (argued), of Center for Law in the Public Interest, Los Angeles, Cal., for plaintiffs-appellants.

William F. Stewart (argued), Stephen Reinhardt (argued), Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before TUTTLE, ^* HUFSTEDLER and WALLACE, Circuit Judges.

TUTTLE, Circuit Judge:

This Court entered its original opinion in this case on October 20, 1976. The Court thereafter granted defendants-cross-appellants' motion for rehearing, and the case was regularly set down for rehearing and oral argument. Although the principal basis for the rehearing motion was the Supreme Court's decision in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), the parties were permitted to brief and argue all other issues as well.

We now withdraw the original opinion and decision, and this opinion and decision are announced in their stead.

This suit was brought on behalf of all present and future black and Mexican-American applicants for positions as firemen with the Los Angeles County Fire Department, ¹ alleging that the defendants Los Angeles County, the County Board of Supervisors and the County Civil Service Commission had been guilty of racial discrimination in hiring in violation of the Fourteenth Amendment, 42 U.S.C. §§ 1981, 1983 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ²

The district court found that the Los Angeles County Fire Department employed blacks and Mexican-Americans grossly out of proportion to their number in the population of Los Angeles County. The court further found that the Fire Department, despite its admitted knowledge of its prior discriminatory practices and its bad reputation as an employer in the minority community, failed to undertake any effective positive steps to eradicate the effects of prior discrimination. Accordingly, the court ordered accelerated hiring of racial minorities in a ratio of one black and one Mexican-American applicant for each three white applicants until the effects of past discrimination had been erased. ³ Despite the fact that the Mexican-American population of Los Angeles County was approximately double the size of the black population, the district court ordered identical accelerated hiring for both groups due to its finding that the Fire Department's 5'7 height requirement for job applicants was a valid requirement for employment and that this height requirement had the effect of eliminating 41% Of the otherwise eligible Mexican-American applicants from consideration.

The plaintiffs appeal the trial court's finding that the 5'7 height requirement is valid and could therefore be used in limiting the relief available to the Mexican-American members of the plaintiff class. The defendants cross-appeal the trial court's order of accelerated hiring. We affirm the district court's finding of a current violation of the rights of members of this class by the improper post-1971 use of an unvalidated written test as a selection device for entry level positions and its order of accelerated hiring to cure past racial discrimination; we disagree with the court's findings that plaintiffs have standing to challenge defendants' pre-1971 use of an unvalidated written test as a selection device and that the 5'7 height requirement has been sufficiently validated by the defendants. Accordingly, we reverse and remand for reconsideration of the proper ratio of accelerated racial hiring to be ordered.

I. Written Examination Procedures

Despite a minority population of approximately 29.1% In Los Angeles County, only 3.3% Of the firemen employed by the defendants at the time of trial were black or Mexican-American. Plaintiffs alleged, and the trial court found, that this severe racial imbalance resulted in part from the defendants' utilization of unvalidated written examinations to rank applicants for positions as firemen. The defendants do not, and indeed cannot, dispute that these verbal aptitude tests, administered to applicants in August 1969 and in January 1972, had a discriminatory impact on minority applicants. Of the 244 blacks who took the 1969 examination, 5 were hired; of the 100 Mexican-Americans, 7 were hired, while of the 1080 whites taking the test, 175 were hired. Thus, while approximately 25% Of the 1969 applicants were black or Mexican-American, based on the results of this test only 6.4% Of the hires were minorities. Black and Mexican-American applicants fared no better on the 1972 examination. Specifically, while 25.8% Of the white applicants were among the top 544 scorers on the test, only 5.1% Of the black applicants were included in that group. Applying the now-familiar standards announced in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the district court concluded that such statistical data alone established a prima facie case of racial discrimination in employment, thereby shifting the burden to the defendants to establish that the tests were job-related. ⁴ We agree that defendants failed to satisfy their burden. ⁵

Defendants have challenged the plaintiffs' standing to complain of the use of the unvalidated 1969 written test. In light of the fact that plaintiffs' class did not include any prior unsuccessful applicants, it follows that plaintiffs neither suffered nor were threatened with any injury in fact from the use of the 1969 examination. No firemen were hired on the basis of success on this test after plaintiffs became applicants in October 1971. The parties stipulated that approximately 100 vacancies occur in the ranks of firemen each year, and testimony at trial established that 187 applicants were placed on an eligibility list following the 1969 test. Based on these facts, we must conclude that the 1969 list was depleted before plaintiffs applied for employment as firemen.

In the absence of a statute expressly conferring standing, it is well settled that in order to have standing a plaintiff must suffer some actual or threatened injury as a result of the alleged unlawful conduct. See, e. g., Linda S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166-67, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); Baker v. Carr, 369 U.S. 186, 204-208, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). It is thus clear that plaintiffs lacked standing to challenge defendants' prior use of the test in 1969. ⁶

As previously indicated, the district court reached the conclusion that defendants' use of unvalidated written examinations was an illegal employment practice through application of the principles announced in Griggs, a Title VII case. Subsequent to trial on the merits in this case, the Supreme Court in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), held that to establish a prima facie case of unconstitutional employment discrimination, discriminatory intent or purpose must be shown rather than or in addition to a statistical showing of disproportionate impact. Defendants interpret Washington to require similar proof in cases alleging employment discrimination under § 1981. Accordingly, defendants urge us to reverse the decision of the district court, since no showing was made that defendants administered the 1972 examination with any intent or purpose to discriminate against minority applicants. The issue presented is one of first impression in this Circuit. ⁷ We have carefully reviewed the Court's opinion in Washington and the post-Washington cases brought to our attention by the parties. We must reject defendants' argument.

The primary controversy in Washington involved the validity of a qualifying test "Test 21" administered to persons seeking employment with the D.C. Metropolitan Police Department. The plaintiffs alleged that Test 21 excluded a disproportionately high number of black applicants in violation of their rights under the Due Process Clause of the Fifth Amendment, 42 U.S.C. § 1981 and § 1-320 of the D.C. Code. 426 U.S. at 233, 96 S.Ct. 2040. Following various preliminary proceedings before the trial court, plaintiffs moved for partial summary judgment on their constitutional claim alone. Defendants also moved for summary judgment, asserting that plaintiffs were entitled to relief on neither constitutional nor statutory grounds. The district court, after finding that plaintiffs' statistical showing of disproportionate impact established a prima facie case of discrimination, concluded that Test 21 was "reasonably and directly related to the requirements of the police recruit training program." Davis v. Washington, 348 F.Supp. 15, 17 (D.D.C.1972). Accordingly, the court granted defendants' and denied plaintiffs' motions. Id. at 18.

On appeal, plaintiffs argued that their summary judgment motion, which rested on purely constitutional grounds, should have been granted. The Court of Appeals for the D.C. Circuit agreed and reversed. Davis v. Washington, 168 U.S.App.D.C. 42, 512 F.2d 956 (1975). Announcing that it would be guided in its decision by the Title VII standards formulated in Griggs, the appeals court agreed that plaintiffs' statistical showing alone, without proof of a purpose on the employer's part to discriminate, made out a prima facie case, shifting the burden of proof to the defendants. 168 U.S.App.D.C. at 47, 512 F.2d at 961. In light of the district court's finding of a nexus between Test 21 and future success...