Lowe v. City of Monrovia

• Decision Date: 21 January 1986
• Docket Number: No. 84-5960,84-5960
• Citation: 775 F.2d 998
• Parties: 39 Fair Empl.Prac.Cas. 350, 41 Fair Empl.Prac.Cas. 931, 38 Empl. Prac. Dec. P 35,647 Kathryn LOWE, Plaintiff-Appellant, v. CITY OF MONROVIA, Paul Stuart, Robert Bartlett, Monrovia City Council, John Nobrega, Mary Wilcox, Ed Zoolalian, Robert Ovrom and Betty Logans, Defendants- Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 998

775 F.2d 998

39 Fair Empl.Prac.Cas. 350,

41 Fair Empl.Prac.Cas. 931,

38 Empl. Prac. Dec. P 35,647

Kathryn LOWE, Plaintiff-Appellant, v. CITY OF MONROVIA, Paul Stuart, Robert Bartlett, Monrovia City Council, John Nobrega, Mary Wilcox, Ed Zoolalian, Robert Ovrom and Betty Logans, Defendants- Appellees.

No. 84-5960.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 1985.

Decided Oct. 30, 1985.

As Amended Dec. 26, 1985 and Jan. 21, 1986.

Charles B. Johnson, Pasadena, Cal., for plaintiff-appellant.

Melanie Poturica, Los Angeles, Cal., for defendants-appellees.

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

Before PREGERSON and REINHARDT, Circuit Judges, and SCHWARZER, ^* District Judge.

REINHARDT, Circuit Judge:

Kathryn Lowe, a Black woman, brought this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e to 2000e-17 (1982), alleging that the failure by the City of Monrovia ("the City") and the individual defendants to hire her for a position on the City's police force resulted from discrimination on the basis of race and sex. Lowe also sought relief under 42 U.S.C. Sec. 1981 (1982) and 42 U.S.C. Sec. 1983 (1982) for the City's alleged discriminatory employment acts. The district court granted the City's motion for summary judgment, ruling that Lowe could not establish a prima facie case of discrimination because she was not rejected during the effective dates of the employment eligibility list on which her name was placed. We reverse.

I. BACKGROUND

The City of Monrovia hires both inexperienced recruits and experienced officers ("lateral hires") to fill entry-level police officer vacancies. The City accepts applications for entry-level police officers at all times, even when no openings exist. After receiving applications from recruits, the City requires these candidates to pass both a written and an oral examination. Applicants who pass both tests are placed on an eligibility list. They are ranked on the list according to their scores. The eligibility list, however, does not become effective until a designated later date. Once a list does become effective, it remains in effect for six months. According to the City, when openings occur, positions are offered to the applicants on the then active "Entry Level Police Officer" list in the order of their rank on that list. The City also maintains a list of lateral entry candidates, although it is not clear how that list is compiled. Nor is it clear when the City hires laterally for an available entry-level position instead of offering the position to an eligible recruit applicant. It does appear, however, that most entry-level positions are filled by recruits rather than experienced officers.

Kathryn Lowe, an inexperienced graduate of a police officer training program, applied for an entry-level police officer position on the Monrovia police force in January 1982. At that time there were no women or Blacks on the police force.

There is no dispute that an opening actually existed for an entry-level police officer when Lowe applied. The City contends, however, that although an opening existed and although she was qualified, Lowe never became eligible to fill that opening. Lowe passed both the written and the oral examinations by May 28, 1982 and was notified on June 3, 1982 that she had been accepted for the eligibility list. Nevertheless, according to the City, the list that contained her name did not become effective until August 1, 1982 and the opening that existed when Lowe first applied was filled prior to that date. According to the City, Lowe was not eligible for employment after February 1, 1983 because the list on which her name appeared automatically expired on that date. It is undisputed that there was no opening for an entry-level police officer at any time between August 1, 1982 and February 1, 1983.

Lowe claims that during her oral examination, Betty Logans, Personnel Division Manager for Monrovia, told her that the City's police force had no women and no Blacks and it "[had] no facilities." Logans suggested that Lowe apply for a position in Los Angeles where the police department is "literally begging for minorities and especially females." ¹ Citing that statement, Lowe filed a complaint against the City with the EEOC on June 18, 1982. On June 7, 1982, prior to the effective date of Lowe's eligibility list but after Lowe had been notified that she had qualified for placement on the list, Louis Razo was hired laterally for an entry-level police officer position. Lowe amended her EEOC complaint on June 24, 1982 to include that information.

After receiving a right-to-sue letter from the EEOC, Lowe brought this suit. Her complaint alleged three independent causes of action. The first cause of action, brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e to 2000e-17 (1982), alleged discrimination for failure to hire Lowe as a police officer based on her race and her sex. ² The second cause of action, brought under 42 U.S.C. Sec. 1981 (1982), alleged that Lowe's right to contract for her personal services as a police officer on a basis equal to other persons was denied to her because of her race and sex. The third cause of action, brought under 42 U.S.C. Sec. 1983 (1982), alleged that Lowe was denied employment based on her race and sex in violation of the equal protection clause of the fourteenth amendment.

II. STANDARD OF REVIEW

The district court found that Lowe was barred from bringing an action for sex discrimination pursuant to Title VII because she failed to file a complaint for sex discrimination with the EEOC. When a plaintiff fails to raise a Title VII claim before the EEOC, the district court lacks subject matter jurisdiction to hear it. Shah v. Mt. Zion Hospital and Medical Center, 642 F.2d 268, 271-72 (9th Cir.1981). Except where the jurisdictional issue requires a determination of facts relevant to the merits of the dispute, a district court "is ordinarily free to hear evidence regarding jurisdiction, and to rule on that issue prior to trial, resolving factual disputes where necessary." Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983). When a case is dismissed for lack of subject matter jurisdiction, we apply the clearly erroneous standard in reviewing the district court's underlying factual findings. Under that standard, we accept the district court's findings of fact unless upon review we are left with the definite and firm conviction that a mistake has been made. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541-42, 92 L.Ed. 746 (1948); Bohemia, Inc. v. Home Insurance Co., 725 F.2d 506, 509 (9th Cir.1984).

The district court disposed of the remainder of Lowe's claims, including the Title VII race discrimination claim, by granting the defendants' motion for summary judgment. We review a grant of summary judgment de novo, Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983), and like the trial court, we are governed by the standard set forth in Federal Rule of Civil Procedure 56(c), Twentieth Century-Fox Film Corp. v. MCA, 715 F.2d 1327, 1328 (9th Cir.1983). We must determine whether, viewing the facts and the law in the light most favorable to the nonmoving party, there is any genuine issue of material fact and whether the substantive law was correctly applied. Amaro v. Continental Can Co., 724 F.2d 747, 749 (9th Cir.1984); Lojek, 716 F.2d at 677; Fed.R.Civ.P. 56(c).

III. THE TITLE VII CLAIMS

A. Sex Discrimination

When determining that Lowe's Title VII sex discrimination claim was jurisdictionally barred, the district court considered Lowe's amended EEOC complaint. In contrast to the initial complaint she filed with that agency, Lowe's amended EEOC complaint explicitly states: "I feel the sole reason for my denial of the job is because I am Black." The amended complaint does not allege discrimination on the basis of sex. Because the district court correctly found that Lowe did not file a sex discrimination claim with the EEOC, we affirm its dismissal of the Title VII sex discrimination charge.

B. Disparate Impact on the Basis of Race

Lowe alleges that the City's policy of using eligibility lists that have delayed effective dates and that expire automatically, along with its reliance on lateral-hire employees to fill entry-level positions, has a disparate impact on Blacks. In order to prevail in a Title VII case on a disparate impact theory, a plaintiff must show that a business practice, neutral on its face, has a substantial adverse impact on a group protected by Title VII. Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). Once the plaintiff establishes a prima facie case of disparate impact, the burden shifts to the defendant to show that the practice is justified by "business necessity." Gay v. Waiters' and Dairy Lunchmen's Union, Local No. 30, 694 F.2d 531, 537 (9th Cir.1982); Contreras v. City of Los Angeles, 656 F.2d 1267, 1275-80 (9th Cir.1981). The district court concluded that Lowe failed to establish a prima facie case of disparate impact. We agree.

A "disparate impact" plaintiff, unlike a plaintiff proceeding on a "disparate treatment" theory, may prevail without proving intentional discrimination. American Federation of State, County, and Municipal Employees (AFSCME) v. Washington, 770 F.2d 1401, 1405 (9th Cir.1985); Gay, 694 F.2d at 537. However, the requirements a disparate impact plaintiff must meet "are in some respects more exacting than those of a disparate treatment case. A disparate impact plaintiff 'must not merely prove circumstances raising an inference of discriminatory impact; he must prove the discriminatory impact at issue.' " Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 482 (9th Cir.1983) (citing Johnson v. Uncle Ben's, Inc., 657 F.2d 750, 753 (5th Cir.1981), cert. denied, 459 U.S. 967, 103...