Ensley Branch of N. A. A. C. P. v. Seibels

• Decision Date: 08 May 1980
• Docket Number: No. 77-1819,77-1819
• Parties: 22 Fair Empl.Prac.Cas. 1207, 23 Empl. Prac. Dec. P 30,924 ENSLEY BRANCH OF the N. A. A. C. P. et al., Plaintiffs-Appellees, v. George SEIBELS et al., Defendants, Personnel Board of Jefferson County, Defendant-Appellant. John W. MARTIN et al., Plaintiffs-Appellees, Cross Appellants, v. CITY OF BIRMINGHAM et al., Defendants, Personnel Board of Jefferson County, Defendant-Appellant Cross Appellee. UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. JEFFERSON COUNTY et al., Defendants, Personnel Board of Jefferson County, Defendant-Appellant, Cross-Appellee. Lucy WALKER et al., Plaintiffs-Appellees, v. JEFFERSON COUNTY HOME et al., Defendants, Personnel Board of Jefferson County, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 812

616 F.2d 812

22 Fair Empl.Prac.Cas. 1207,

23 Empl. Prac. Dec. P 30,924

ENSLEY BRANCH OF the N. A. A. C. P. et al., Plaintiffs-Appellees, v. George SEIBELS et al., Defendants, Personnel Board of Jefferson County, Defendant-Appellant.

John W. MARTIN et al., Plaintiffs-Appellees, Cross Appellants, v. CITY OF BIRMINGHAM et al., Defendants, Personnel Board of Jefferson County, Defendant-Appellant

Cross Appellee.

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. JEFFERSON COUNTY et al., Defendants, Personnel Board of Jefferson County, Defendant-Appellant,

Cross-Appellee.

Lucy WALKER et al., Plaintiffs-Appellees, v. JEFFERSON COUNTY HOME et al., Defendants, Personnel Board of Jefferson County, Defendant-Appellant.

No. 77-1819.

United States Court of Appeals Fifth Circuit.

May 8, 1980.

Rehearing Denied June 16, 1980.

Hubert A. Grissom, Jr., David P. Whiteside, Jr., Birmingham, Ala., for defendant-appellant.

Howard P. Willens, Jay F. Lapin, David R. Johnson, Washington, D. C., for Educational Testing Service.

Susan Williams Reeves, Birmingham, Ala., Michael A. Middleton, Jackson, Miss., Caryl P. Privett, Asst. U. S. Atty., Birmingham, Ala., for plaintiffs-appellees.

Deborah M. Seymour, Joshua D. Rosenberg, Dept. of Justice, Ed. Section, Civil Rts. Div., Washington, D. C., for Lucy Walker.

Robert T. Moore, Employment Section Civil Rts. Div., Dept. of Justice, Washington, D. C., J. R. Brooks, Jr., U. S. Atty., Birmingham, Ala., Richard M. Sharp, William R. Galeota, Washington, D. C., for John W. Martin et al.

Appeals from the United States District Court for the Northern District of Alabama.

Before GODBOLD, RONEY and ANDERSON, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

This case is a consolidation of four separate actions brought by the United States and private parties against the Personnel Board of Jefferson County, Alabama, and other local government agencies. The district court held that the Personnel Board's use of two examinations in screening and certifying candidates for jobs as police officers and firefighters violates Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. The court ordered certain remedies, the remedies being tailored to its conclusion that use of the police officer test did not violate Title VII until April 25, 1975, and that use of the firefighter test did not violate Title VII until July 8, 1976. We agree with the district court that the Personnel Board's use of both tests abridges Title VII; however, we believe that the court failed to make essential findings in determining the time at which liability commenced. Accordingly, we affirm in part and reverse and remand in part with instructions.

On January 4, 1974, the Ensley Branch of the National Association for the Advancement of Colored People, together with certain named individuals, for themselves and on behalf of others similarly situated, filed a complaint in the United States District Court for the Northern District of Alabama, against George Seibels (then Mayor of Birmingham, Alabama), the City of Birmingham, the members of the Personnel Board of Jefferson County, and the Personnel Director of that Board, alleging that the defendants engage in discriminatory hiring practices against blacks in violation of the Fourteenth Amendment, 42 U.S.C. §§ 1981, 1983, and 2000e et seq. (Title VII). A suit raising the same constitutional and statutory allegations was filed on January 7, 1974, by John W. Martin and other named plaintiffs against the City of Birmingham, Jefferson County, and the Personnel Board of Jefferson County. ¹ On May 27, 1975, the United States brought suit against the Jefferson County Personnel Board and the municipal and other governmental jurisdictions within Jefferson County ² alleging a pattern or practice of discriminatory employment practices against blacks and women in violation of Title VII, the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 42 U.S.C. § 3766(c), the State and Local Fiscal Assistance Act of 1972, as amended, 31 U.S.C. § 1242, the Fourteenth Amendment and 42 U.S.C. § 1981. On February 20, 1976, Lucy Walker filed suit challenging the employment practices of the Jefferson County nursing home under Title VII and 42 U.S.C. § 1981. All four cases were consolidated for trial.

On December 20-22, 1976, trial was held on the merits of the limited issue of whether the two tests used by the Personnel Board to screen and rank applicants for positions as police officers and firefighters are discriminatory and violative of the constitutional or statutory rights of blacks. ³ All other issues under the complaints were reserved until a later date.

On January 10, 1977, pursuant to Fed.R.Civ.P. 54(b), the district court entered a final order on this limited issue. ⁴ The court held that the police and firefighter tests do not violate the Constitution, ⁵ but do violate Title VII. The court determined that the Title VII violation commenced on April 25, 1975, with respect to the police test and on July 8, 1976, with respect to the firefighter test. The Court ordered certain remedies to correct the discrimination caused by use of the tests since those dates. ⁶ From this judgment, the Personnel Board filed a notice of appeal, and the United States and the plaintiffs in the Martin action filed a joint notice of cross-appeal. The Personnel Board contends that the tests do not violate Title VII; the United States and the Martin plaintiffs contest the court's determination as to when Title VII liability commenced.

This case has been ably argued on appeal by counsel for both sides, ⁷ and we also have the benefit of a well-reasoned and comprehensive opinion by Judge Pointer of the court below.

FACTS

The Personnel Board of Jefferson County is required under Alabama law to administer examinations to applicants for positions with local government agencies. Two such examinations are at issue here: the 10-C test administered to applicants for positions with the police department, and the 20-B test administered to applicants for positions with the fire department. Both tests were developed by the International Personnel Management Association. ⁸ Each test is a paper and pencil instrument consisting of 120 multiple choice questions. ⁹

Applicants who pass ¹⁰ the 10-C or 20-B are placed on an eligibility list for positions with the police or fire department, and are ranked on the list in the order of their scores. If a single vacancy occurs, the three persons at the top of the list are certified to the appropriate department for final selection. If multiple vacancies occur, the number of persons certified is two more than the number of vacancies to be filled. Thus, merely passing the tests, and thereby being entered on the relevant eligibility list, is not nearly so important as obtaining a score sufficiently high to be placed high enough on the list to be actually certified to the police or fire department.

ADVERSE IMPACT

A prima facie Title VII case against an employment test may be built with statistics showing that use of the test has an adverse racial impact. This showing shifts to the employer the burden of proving that the test is job-related. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975); Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971); Scott v. City of Anniston, 597 F.2d 897, 901 (5th Cir. 1979).

The district court found that use of the 10-C and 20-B has an adverse impact upon blacks. The evidence shows that since March 24, 1972, the date Title VII became applicable to public employers such as the Personnel Board, only 51 blacks (6.6%) have been hired out of a total of 768 blacks who took the police test. The comparable figure for whites is 455 whites hired (23.3%) out of the total of 1,953 whites who took the police test. Similarly, only 9 black firefighters have been hired, which represents 3.2% of the black applicants, as compared to 215 white firefighters hired, which represents 14.1% of the white applicants. With respect to the number of blacks and whites who passed the exam, the court found that the pass rates for blacks (48.6% for the police test and 24.2% for the firefighter test) are substantially less than the pass rates for whites (90.2% for the police test and 82.5% for the firefighter test). The Personnel Board does not in this appeal contest the district court's finding that the two tests have an adverse impact; the Board argues only that it has carried its burden of showing that the tests are job-related.

JOB-RELATEDNESS

To prove the job-relatedness of the police and firefighter tests, the Personnel Board employed criterion-related validity studies. ¹¹ The district court held that the studies failed to validate either test. ¹²

The studies used three criterion measures: academy grades, i. e., relative class rank among students who successfully complete academy training; efficiency ratings of incumbent employees (police and firefighters) by their supervisors; and experimental ratings of incumbent employees by their supervisors, based on 12 categories, the categories relating to personality characteristics, job knowledge and job-related abilities.

Academy Grades. The district court found that the scores on the 10-C and 20-B tests bear statistically significant ¹³ correlation to grades in the training academies and it further found that the training academies furnished skills or knowledge needed for performance on the job. However, the district court also found that academy grades are not valid predictors of job performance. ¹⁴ The court concluded from these findings that while completion of the academy is a valid criterion measure, academy grades are not. Finally, the court found that even though completion of the training academies is a valid criterion measure, neither test predicts successful completion of the academies; even...