Bridgeport Guardians, Inc. v. City of Bridgeport, s. 941
| Citation | 933 F.2d 1140 |
| Decision Date | 28 May 1991 |
| Docket Number | 942,D,Nos. 941,s. 941 |
| Parties | 55 Fair Empl.Prac.Cas. 1631, 56 Empl. Prac. Dec. P 40,791, 60 USLW 2031 BRIDGEPORT GUARDIANS, INC., Hispanic Society, Inc., Jerry Brown, Johnny Devone, Angel Duran, Pedro Garcia, Roberto Melendez, Jesus Ortiz, Armando Perez, Luis Santana, Carwin Spearman, Nina Thomas, Plaintiffs-Appellees, v. CITY OF BRIDGEPORT, Bridgeport Police Department, Bridgeport Civil Service Commission, Defendants-Appellants, Bridgeport Police for Equal Employment Opportunity, Inc., Thomas Flynn, Richard Herlihy, Louis Piccirillo, Michael Kerwin, Joseph Santillo, William Heckley, John Evans, Orlando Lanzante, Mark Graham, Robert Martin, Adam Radzimirski, Thomas Lula, Robert Craw, Louise Karioli, Vincent Verrillo, John Cueto, Brian McCarthy, James Viadero, John Kennedy, Paul Nicola, Bill Mayer, Paul Wargo, John Losak, Robert Blanchard, Kevin Zwierlein, John Carraro, Michael Bavco, William Humber, Anthony Armeno, Michael Killian, Bob Gearing, Robert Halpin, Nick Meriano, Frank D'Amore, Lynn DeSarli, Ray Sherwood, Bob Christy, Bruce Belco, Eugene O'Neill, Intervening Defendants-Appellants. ockets 90-7814, 90-7946. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Vincent M. Musto, Bridgeport, Conn. (Koskoff, Koskoff & Bieder, P.C., Bridgeport, Conn., on the brief), for plaintiffs-appellees.
Thomas K. Jackson, Associate City Atty., Bridgeport, Conn. (Office of the City Atty., Bridgeport, Conn., on the brief), for defendants-appellants.
William B. Barnes, Fairfield, Conn. (Rosenstein & Barnes, Fairfield, Conn., on the brief), for intervening defendants-appellants.
Before KEARSE, PRATT and McLAUGHLIN, Circuit Judges.
Defendants City of Bridgeport, et al. (collectively the "City"), and intervening defendants Bridgeport Police for Equal Employment Opportunity, Inc., et al. ("intervening defendants"), appeal from so much of a final judgment entered in the United States District Court for the District of Connecticut following a bench trial before T.F. Gilroy Daly, Judge, as granted injunctive relief to plaintiffs Bridgeport Guardians, Inc., et al., on their claim of racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1988) ("Title VII"), in connection with the City's 1989 examination governing promotions to the rank of sergeant in defendant Bridgeport Police Department ("Police Department" or "Department"). The district court found that the examination had a disparate impact on minority candidates; as a remedy, it enjoined the City from filling the vacancies on a strict rank-order basis and ordered that promotions be made instead from among candidates whose examination scores fell within given ranges. On appeal, the City and the intervening defendants contend principally that (1) the district court erred in finding that plaintiffs had established disparate impact, and (2) the remedy ordered was inappropriate. For the reasons
below, we disagree and affirm the judgment of the district court.
The present controversy arises out of an examination conducted in the spring of 1989 ("1989 examination" or "examination") by defendant Bridgeport Civil Service Commission ("Commission") for the selection of candidates from within the Police Department for promotion to the rank of sergeant. The Commission is responsible for the preparation and administration of such promotional tests. The Department makes its promotional appointments on the basis of eligibility lists created by the Commission.
Plaintiffs are two organizations dedicated to the eradication of racial employment discrimination in the Department and 10 minority police officers who took and passed the 1989 examination. Following announcement of the scoring of the examination, plaintiffs commenced the present action, alleging, inter alia, that the examination did not reasonably distinguish between those who were capable of performing well as sergeants and those who were not, that the Department had 19 openings for the sergeants' positions, and that if those openings were filled by selection of candidates in order of their scores on the examination, all 19 would be filled by White candidates. Plaintiffs challenged the validity of the examination procedures in various respects, contended that a rank-order selection process would have a substantial disparate impact on minorities in violation of, inter alia, Title VII, and sought preliminary and permanent injunctive relief. The intervening defendants are individual White police officers, and an organization of such officers, who opposed the relief requested by plaintiffs.
The district court held a consolidated preliminary injunction hearing and trial on the merits. The court's findings, reported at 735 F.Supp. 1126 (1990), and the evidence pertinent to this appeal, viewed in the light most favorable to plaintiffs, showed the following.
In February 1989, the Commission announced that it would conduct a competitive examination for promotions to the rank of police sergeant. The examination was open to police officers and police detectives who had at least one year of satisfactory employment in such a capacity by the City of Bridgeport ("Bridgeport") immediately prior to February 3, 1988, and who met the following additional requirements:
bona fide residence in the City of Bridgeport; ... knowledge of police department rules and regulations and of applicable laws and ordinances; considerable knowledge of modern police methods and tactics; considerable knowledge of police investigative and crime detection methods and techniques; knowledge of the laws of evidence; command ability; ability to prepare clear and comprehensive reports, keen powers of observation and memory; mental alertness; integrity; industry; resourcefulness; good judgment; physical strength and agility; good health and freedom from disabling physical defects.
(Commission's Notice dated February 6, 1989.) The examination was to be in two parts. The score on the written portion would constitute 53% of the candidate's total score; the score on the oral portion would constitute 42% of the total score. Seniority would determine the remaining 5% of the score. The passing cutoff point was to be 70% of the highest score.
The examination had been constructed for the City during the fall of 1988 by Dr. James L. Outtz, an industrial psychologist and testing expert who had developed the police sergeants' examination used by the City in 1983. The written portion of the examination was intended to test knowledge of subjects such as substantive legal principles, the laws of evidence, correct procedures, and departmental policies. In 1988, Dr. Outtz sought updated information from incumbent officers in order to analyze the knowledge requirements in the pertinent areas. His inquiries included circulation of detailed questionnaires and review of the answers provided by 26 incumbent The oral part of the examination was intended to test primarily for the requisite skills and abilities. In the course of developing the 1989 examination, Dr. Outtz recommended that the Commission use video simulations instead of some of the more traditional tests. In these simulations, crime scenes are projected onto a screen, and the candidate is asked to indicate in writing how he or she would respond to the events depicted. Though recognizing that video simulations would be more expensive than the traditional tests, Dr. Outtz urged the substitution in order to improve the examination and to reduce the possibility of its adverse impact on minority candidates. To further encourage the City to use the simulations, he offered to defer collection of his fee until July 1989. The Commission's personnel director wrote to the Mayor of Bridgeport seeking approval of this proposal, noting that "[t]hese video components of the examination have proved to be virtually race-neutral with regard to the performance of minority groups and whites." (Letter dated November 9, 1988.) He urged the Mayor to approve funding for the simulations "[i]n view of the difficulty we have had in the past with regard to Police and Fire promotionals, with respect to challenges under Title VII." (Id.) He stated that though use of the simulations would involve an initial expense, "the long-term savings to the City, as well as this decent and responsible gesture of developing new methodologies to reduce any discriminatory impact will go a long way towards our City's reputation as an employer." (Id.)
sergeants (half the total number in the Department).
These efforts to have the City use the simulations proved futile. The Mayor refused to provide additional funds for this proposal; he directed the Commission to expend such funds as it saw fit for this purpose from its own budget. The Commission had in its "Special Services" budget, from which testing costs were normally paid, sufficient funds to pay for the proposed video simulations. At trial it claimed--in an explanation the district court found "less than satisfactory"--not to have learned of these funds until too late.
Accordingly, the 1989 examination was administered with the traditional written and oral components. Under the Commission's affirmative action policy, the panels conducting the oral tests should have included representatives of protected classes of candidates. Dr. Outtz also specifically recommended that the panels include minority examiners. Nonetheless, the panels that conducted the oral portions of the 1989 examination included no Blacks and no Hispanics. Though Bridgeport's assistant personnel director said--in testimony the court found "considerably less than convincing"--that minority panelists had been sought, Bridgeport's director of affirmative action testified that neither the Commission nor any other City official had asked him for assistance in recruiting...
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