Contreras v. City of Los Angeles

• Decision Date: 14 September 1981
• Docket Number: No. 78-2060,78-2060
• Citation: 656 F.2d 1267
• Parties: 25 Fair Empl.Prac.Cas. 866, 29 Fair Empl.Prac.Cas. 1045, 25 Empl. Prac. Dec. P 31,728, 27 Empl. Prac. Dec. P 32,182 Oscar E. CONTRERAS, Eloy Gonzalez, Maria Gonzalez, Sam Mock, Jr., Joseph M. Pantiga and Salvador A. Zavala, Plaintiffs-Appellants, v. The CITY OF LOS ANGELES, a Municipal Corporation; Muriel Morse, in her official capacity as General Manager of the City of Los Angeles Personnel Department, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1267

656 F.2d 1267

25 Fair Empl.Prac.Cas. 866,

29 Fair Empl.Prac.Cas. 1045,

25 Empl. Prac. Dec. P 31,728,

27 Empl. Prac. Dec. P 32,182

Oscar E. CONTRERAS, Eloy Gonzalez, Maria Gonzalez, Sam Mock Jr., Joseph M. Pantiga and Salvador A. Zavala Plaintiffs-Appellants, v. The CITY OF LOS ANGELES, a Municipal Corporation; Muriel Morse, in her official capacity as General Manager of the City of Los Angeles Personnel Department, Defendants-Appellees.

No. 78-2060.

United States Court of Appeals Ninth Circuit.

Argued Feb. 6, 1980.

Submitted Nov. 28, 1980.

Decided April 9, 1981.

As Amended on Denial of Rehearing and Rehearing En Banc

Sept. 14, 1981.

A. Thomas Hunt, Los Angeles, Cal., for plaintiffs-appellants; Walter Cochran Bond, Los Angeles, Cal., on brief.

Frederick N. Merkin, Los Angeles, Cal. (argued), and Cecil W. Marr, Los Angeles, Cal., on brief, for defendants-appellees.

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

Before WALLACE and TANG, Circuit Judges, and HANSON, ^* District Judge.

WALLACE, Circuit Judge:

Certain former and present city workers (appellants) appeal from the district court's judgment that they are entitled to no relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981, for having lost their jobs by failing allegedly discriminatory civil service examinations. We affirm.

I

Contreras, E. Gonzalez, Mock, and Zavala (accountants) were employed by the City of Los Angeles (City) as Senior Accountants in the Training and Job Development Division of the Mayor's office. Maria Gonzalez (Gonzalez) was employed in the same division as an Auditor. Each had served efficiently in his or her position for more than one and one-half years, having been originally hired on the basis of oral interviews at a time when the Mayor's office was not subject to the stringent hiring requirements of the City's civil service rules and regulations.

In early 1976, when the City transferred the function of the Training and Job Development Division to the newly created Community Development Department, the senior accountant and auditor positions previously assigned to the Mayor's office became subject to the City's civil service commission. Consequently, appellants were required to pass written examinations before assuming senior accountant and auditor status in the new department. The City Council, in an effort to avoid possible inequities to appellants and others employed in the Mayor's office, proposed an amendment to the city charter exempting the employees from the examination requirement. Unfortunately for appellants, that amendment was defeated by the electorate in November 1976.

Prior to the rejection of the amendment, accountants took and failed the senior accountant examination. Gonzalez passed the auditor examination but scored too low to be employed as an auditor in the new office. Although accountants thus became ineligible for their former senior accountant positions, each of them scored high enough to be employed at his former salary ¹ as regular civil service labor-market analysts. Gonzalez took a position with the State of California, but maintains her standing in this litigation by asserting a continuing interest in returning to her former auditor position.

Following voter rejection of the exempting amendment, appellants commenced this action in district court, claiming that the City's examinations unlawfully discriminated against Spanish-surnamed applicants. They requested that the district court enjoin the City from using the discriminatory examinations, order the City to develop examinations that accurately predict job performance, and order the City to retain appellants in their former positions until the new examinations are developed.

II

The three-step inquiry of Title VII actions is well-established, particularly in cases such as this where preemployment screening devices are used. ² At the outset, a plaintiff bears the burden of establishing a prima facie case that the employer's screening device selects employees in a significantly discriminatory pattern. Failure to meet this burden results in judgment for the employer. If the plaintiff succeeds in establishing a prima facie case of discrimination, the burden of proof then shifts to the employer to prove that the screening device is job related, i. e., that it actually measures skills, knowledge, or ability required for successful performance of the job sought by the applicant. Failure in this proof results in judgment for the plaintiff. If the employer succeeds in showing that the screening device does in fact measure job-related characteristics, the screening device does not violate Title VII unless the plaintiff then proves that the employer has available an alternative nondiscriminatory screening device that would effectively measure the capability of job applicants. See Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 768 (1977); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975); deLaurier v. San Diego Unified School District, 588 F.2d 674, 676 (9th Cir.1978).

In this case the district judge accepted evidence probative of all three stages of the Title VII inquiry. After doing so, he ruled that appellants had failed to establish a prima facie case of discriminatory impact upon Spanish-surnamed applicants, that the City had proven the senior accountant and auditor examinations to be job related, and that appellants had failed to prove the existence of a non-discriminatory alternative that would select qualified employees with the same degree of accuracy as the written examination. We must first determine whether the district court's finding that appellants failed to present a prima facie case of discrimination is clearly erroneous. Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 621 n.20, 94 S.Ct. 1323, 1333-34 n.20, 39 L.Ed.2d 630 (1974); White v. City of San Diego, 605 F.2d 455, 460 (9th Cir.1979). If it is not, we must affirm the district court's judgment for the defendants. Id. at 459-61.

A. The Senior Accountant Examination

In attempting to prove that the senior accountant examination had a significantly discriminatory impact on Spanish-surnamed applicants, accountants introduced the following statistical evidence: 5 of 17 or 29.4 percent of the Spanish-surnamed applicants taking the examination passed, while 22 of 40 or 55 percent of the whites who took the examination passed; also, the mean score for Spanish-surnamed applicants was 60.7, 61/2 points below the 67.2 mean score of white applicants. In addition to this statistical evidence, accountants introduced expert testimony that these statistics are reliable evidence of a discriminatory examination and that Spanish-surnamed individuals generally do worse than whites on written examinations.

The district judge, relying on evidence produced by the City, rejected the accountants' proof of a prima facie case for two reason. First, he placed little evidentiary weight on the examination results because the figures, although disparate, were not statistically significant when tested at a .05 level of significance. Second, he concluded that the accountants scored low because they failed to study seriously in preparation for the examination. We will discuss his reasons separately.

In considering the district court's reliance on lack of statistical significance, we observe that the Supreme Court has stated: " '(s)tatistical analyses have served and will continue to serve an important role' in cases in which the existence of discrimination is a disputed issue." International Bhd. of Teamsters v. United States, 431 U.S. 324, 339, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396 (1977) ("Teamsters "), quoting Mayor of Philadelphia v. Educational Equality League, supra, 415 U.S. at 620, 94 S.Ct. at 1333. At the same time, however, the Court has cautioned that "(c)onsiderations such as small sample size may, of course, detract from the value of such evidence," Teamsters, supra, 431 U.S. at 340 n.20, 97 S.Ct. at 1857 n.20, and we have stated that the use of statistical evidence "is conditioned by the existence of proper supportive facts and the absence of variables which would undermine the reasonableness of the inference of discrimination which is drawn." United States v. Ironworkers Local 86, 443 F.2d 544, 551 (9th Cir.), cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971) (footnote omitted). See also Morita v. Southern California Permanente Medical Group, 541 F.2d 217, 220 (9th Cir.1976), cert. denied, 429 U.S. 1050, 97 S.Ct. 761, 50 L.Ed.2d 765 (1977) ("statistical evidence derived from an extremely small universe ... has little predictive value and must be disregarded"); Johnson v. Shreveport Garment Co., 422 F.Supp. 526, 539-40 (W.D.La.1976), aff'd, 577 F.2d 1132 (5th Cir.1978).

A total of 17 Spanish-surnamed applicants took the senior accountant examination. The City's expert witness testified that the statistics calculable from such a small sample are not significant at a .05 level of statistical significance, ³ the level suggested by federal agency guidelines for the establishment of statistical proof. See e. g., 28 C.F.R. § 50.14, at § 12(b)(5) (1977). Thus, the expert testified, these statistics are not a reliable indicator of discriminatory effect. The unreliability of accountants' statistical base is illustrated by the fact that only three additional passing scores among Spanish-surnamed applicants would have produced a Spanish-surnamed passing rate sufficiently close to the white passing rate to preclude a finding of adverse impact under federal agency guidelines, even if one disregards the .05 level of significance requirement. ⁴ Although accountants produced expert testimony suggesting that the statistical disparity of the examination results is reliable, we recognize that the district...