665 F.2d 531 (5th Cir. 1982), 80-1332, Rivera v. City of Wichita Falls

Docket Nº:80-1332.
Citation:665 F.2d 531
Party Name:Placido RIVERA, et al., Plaintiffs-Appellants, Richard Gonzales, Intervenors-Appellants, v. The CITY OF WICHITA FALLS, et al., Defendants-Appellees.
Case Date:January 11, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 531

665 F.2d 531 (5th Cir. 1982)

Placido RIVERA, et al., Plaintiffs-Appellants,

Richard Gonzales, Intervenors-Appellants,


The CITY OF WICHITA FALLS, et al., Defendants-Appellees.

No. 80-1332.

Unit A [*]

United States Court of Appeals, Fifth Circuit

January 11, 1982

Page 532

Crampton & Crampton, Holly Crampton, Wichita Falls, Tex., for appellants.

Sherrill, Pace, Rogers, Crosnoe & Morrison, Lonny D. Morrison, Wichita Falls, Tex., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Page 533

Before REAVLEY, RANDALL and SAM D. JOHNSON, Circuit Judges.

SAM D. JOHNSON, Circuit Judge:

This is an appeal from those portions of a judgment rendered in favor of the employer in a class action brought under Title VII, 42 U.S.C. § 2000e et seq. Named plaintiffs Placido Rivera, Ernest Ceballos, Ernest Castillo, Pete Arthur Gonzales, Richard Gonzales, and David Maldonado are former employees of, or rejected applicants for employment with, the City of Wichita Falls, Texas. They represent a class defined as all Spanish surnamed Americans of Mexican descent who were discriminated against by the defendants, the City of Wichita Falls, Texas and certain of its officials, 1 through the establishment and application of various employment policies and practices. The claims asserted on behalf of the class challenged the full range of the City's employment practices. After trial without a jury, however, the district court found discrimination only in the recruitment practices of the City's Fire Department. 2 It rejected the plaintiffs' contentions that screening procedures used by the City's Police Department had a discriminatory impact on members of the class which could not be justified as job-related, that plaintiffs were unlawfully excluded from employment in the upper three levels of general City government, and that plaintiffs were discriminatorily denied promotions and training in the various divisions and levels of the City government. The plaintiffs appeal these rulings and the district court's award of only $4,000 in attorney's fees. We affirm the judgment of the district court.


The plaintiffs' attack was, at inception, a broad one. On behalf of the class they charged that the City was engaged in a pattern and practice of discrimination against Mexican-Americans which manifested itself in the entire range of the City's employment practices, throughout all divisions of the City government. In addition, individual relief was pursued by three named plaintiffs and three intervenors who claimed to have been victimized by specific acts of discrimination. The action as now presented, however, is of considerably narrower dimensions. Through a series of waivers and self-initiated constrictions in the scope of the challenges pressed, 3 the

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plaintiffs have limited the issues on appeal to these:

  1. Did the district court err in holding that the City had successfully shown that the one element of its police recruit selection process which the court found to have a discriminatory impact is necessary for the performance of the job?

  2. Did named plaintiff Ernest Ceballos present a prima facie case of discrimination by the City in its refusal to accept him in its police recruit training program?

  3. Did the plaintiffs present a prima facie case of discrimination in hiring in regard to the upper three levels of the City government?

  4. Did the plaintiffs present a prima facie case of discrimination in the training and promotion of class members employed by the City?

    The class-wide claims charged the City with engaging in a "pattern and practice" of employment discrimination in violation of section 707(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6(a). 4 The pattern or practice branch of employment discrimination law is designed to reach and to remedy pervasive resistance to the principles of equality of treatment and opportunity in the workplace articulated in Title VII. Accordingly, the threshold inquiry in a pattern or practice discrimination action is whether there is evidence of a correlation between employment decisions and the, inter alia, race, sex, or national origin of employees or job applicants. The plaintiffs' initial responsibility of establishing a prima facie case of pattern and practice discrimination in hiring or promotion may, then, satisfied by a showing that "there is a significant statistical disparity between the racial, sexual, or ethnic balance and composition of an employer's work force and that of the community from which the workers are hired," United States v. City of Alexandria, 614 F.2d 1358, 1364 (5th Cir. 1980) (citations omitted).

    The degree of the observed statistical disparity is, however, of critical importance. An absolute disparity between these percentages of representation is not enough. To be legally cognizable, the pattern

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    revealed must be at least "significantly discriminatory," Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786 (1977); at minimum, the percentages must be "markedly disproportionate," Griggs v. Duke Power Company, 401 U.S. 424, 91 S.Ct. 849, 852, 28 L.Ed.2d 158 (1971). 5 Once made, however, a showing of significant disparity raises an inference that employment decisions are tainted by intrusion of illegitimate concerns. The logical foundation of this inference rests on the observation that, "absent explanation, it is ordinarily to be expected that nondiscriminatory (employment) practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired." Teamsters, 97 S.Ct. at 1856 n.20. Organization-wide disparities tend to support the thesis that discriminatory acts are not "isolated or 'accidental' or sporadic .... (but are, rather,) the company's standard operating procedure-the regular rather than the unusual practice," 97 S.Ct. at 1855.

    Only upon the plaintiffs' establishment of a prima facie case of pattern or practice discrimination would the defendants have either to discredit the plaintiff's case, or to show that, despite the adverse impact, the challenged practices are necessary for the performance of the job. Griggs, 91 S.Ct. at 853-54; Ensley Branch of the N.A.A.C.P. v. Siebels, 616 F.2d 812, 816 (5th Cir. 1980), cert. denied, 449 U.S. 1061, 101 S.Ct. 783, 66 L.Ed.2d 603 (1981). A successful rebuttal, however, does not necessarily settle the matter. If the defendant rebuts by showing the challenged practices to be job-related, the plaintiff may still prevail by showing less discriminatory alternatives. Albemarle Paper Company v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975).

    District court determinations of the adequacy of these showings are reviewed under the variable standard appropriate to Title VII cases. Under this standard, as in the usual case, the district court's findings of

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    subsidiary facts would be overturned only if found to be clearly erroneous. The ultimate factual question, however, of whether the subsidiary findings of fact point to the defendants' unlawful discrimination against the plaintiffs, is subject to an independent redetermination on appeal. Danner v. United States Civil Service Commission, 635 F.2d 427, 430-31 (5th Cir. 1981).


    1. Police Recruit Selection Procedures

      1. The Class Claims

      In the district court, the plaintiffs challenged the entirety of the City's police recruit selection procedures. The police recruit selection process employed by the City of Wichita Falls consists of four successive screening devices. First, applicants take the Basic Occupational Language for Police Officers (BOLPO) test. BOLPO, a test of the ability of an applicant to comprehend the type of reading material encountered in a police training academy, is used to predict the likelihood of the applicant's successful completion of the police academy curriculum. An applicant passing BOLPO next takes a physical agility test. This test focuses on the applicant's ability to perform those feats typically required of Wichita Falls police officers. Applicants clearing the first two hurdles are then the subjects of background investigations. A background investigation consists primarily of an inquiry into the applicant's work history, a determination of whether he has a criminal record, and a check into whether he habitually associates with "police characters." This step is considered by the City to be crucial in the selection of people suited to the highly sensitive, demanding and public position of a police officer. The final review of the applicant's qualifications is made at an assessment center, where applicants, under the direction of police officers trained as "assessors," engage in role playing, participate in simulated work experiences, and answer standard questions designed to measure their abilities to communicate effectively. Applicants passing all four tests are ranked by their cumulative scores and are offered positions with the police department in accordance with their rankings as openings occur.

      Each of the four selection procedures were challenged by the plaintiffs as having a disparate impact on Spanish surnamed Americans of Mexican descent. The district court found, however, that the plaintiffs succeeded in adducing a prima facie case only in support of their challenge to the BOLPO test. The plaintiffs' statistical proof on the comparative failure rates of whites and Mexican-Americans on the BOLPO test is indeed adequate to support a prima facie case of BOLPO's discriminatory impact on Mexican-Americans. In the relevant period of December 1974 to May 1978, 6 5.4 percent of all white applicants, twenty-one out of 387, failed BOLPO. During...

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