Allen v. Prince George's County, Md., 82-1539

• Decision Date: 26 June 1984
• Docket Number: No. 82-1539,82-1539
• Parties: 38 Fair Empl.Prac.Cas. 1220, 34 Empl. Prac. Dec. P 34,506, 15 Fed. R. Evid. Serv. 2008 Patricia B. ALLEN, Sylvester J. Vaughns, Individually and on behalf of all persons similarly situated, Appellants, v. PRINCE GEORGE'S COUNTY, MARYLAND, a corporation; Donald H. Weinberg, Prince George's County Personnel Officer; Prince George's County Personnel Board; Thomas J. Wessel, Chairman, Evelyn J. Bata, M. James Evans, Jerome F. Byrnes, and Alton Thomas, Jr., Members, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1299

737 F.2d 1299

38 Fair Empl.Prac.Cas. 1220,

34 Empl. Prac. Dec. P 34,506,

15 Fed. R. Evid. Serv. 2008

Patricia B. ALLEN, Sylvester J. Vaughns, Individually and on behalf of all persons similarly situated, Appellants, v. PRINCE GEORGE'S COUNTY, MARYLAND, a corporation; Donald H.

Weinberg, Prince George's County Personnel Officer; Prince

George's County Personnel Board; Thomas J. Wessel,

Chairman, Evelyn J. Bata, M. James Evans, Jerome F. Byrnes,

and Alton Thomas, Jr., Members, Appellees.

No. 82-1539.

United States Court of Appeals, Fourth Circuit.

Argued March 8, 1984.

Decided June 26, 1984.

Jeffrey A. Burt, Washington, D.C. (Marc D. Guren, Arnold & Porter, Washington, D.C., Charles M. Tobin, Shulman, Rogers, Gandal & Tobin, Silver Springs, Md., on brief), for appellants.

William Douglas White, Washington, D.C. (Charles G. Dalrymple, Michael A. Cain, Linowes & Blocher, Silver Spring, Md., on brief), for appellees.

Before RUSSELL and CHAPMAN, Circuit Judges, and JOSEPH H. YOUNG, District Judge for the District of Maryland, sitting by designation.

DONALD RUSSELL, Circuit Judge:

Sylvester Vaughns and Patricia Allen, representatives of two certified classes, brought this appeal from the district court's decision that Prince George's County (hereafter sometimes the county) did not discriminate against blacks in hiring or promotions from 1972 until 1981. The suit was brought under Title VII of the Civil Rights Act of 1964, Secs. 701-718, as amended, 42 U.S.C. Secs. 2000e et seq. (1976 & Supp. IV 1980) (hereafter the Act), which became applicable to county governments on 24 March 1972. Because we cannot find that the district court erred, we affirm its opinion, published at 538 F.Supp. 833 (D.Md.1982).

The district court opinion fully sets out the facts. Briefly, Prince George's County has approximately 4000 employees, hired through a central personnel office. The county charter requires that a merit system be used for all county employment practices. From 1973 on, the county's employment practices have also been subject to an Equal Employment Opportunity plan. County jobs are divided into approximately 400 categories, called classes. Written specifications for each class include minimum standards for education and prior work experience.

The county's hiring procedures call for all entry level openings to be available to both external applicants and people already employed by the county. Most of these positions are filled by externals. For openings above entry level, the county personnel law requires that where there are at least six county employees qualified to fill the position, the opening be considered a promotion, and be available only to internal applicants. Between 1974 and 1980, approximately 50% of all positions were open to internals only.

The personnel office receives applications and "rates and ranks" them. The rating and ranking is done by comparing the specifications for each job with the information provided on the application form, and then determining whether the applicant meets or exceeds the requirements. A Register of Eligibles listing all qualified applicants for each vacant position is then prepared. Thereafter, a list of the top five candidates is sent to the head of the department with the vacancy. If more than one applicant is tied for fifth place, then the list includes all tied applicants. The department head, or a panel including the department head, then conducts interviews of at least five of the candidates, and chooses one of them. Each of the 20 department heads has discretion to conduct the interviews in his or her own way. No county-wide interview guidelines exist, although certain departments have their own established interview questions or procedures. Some departments use panels for interviewing, and include an EEO or minority representative.

The appellant Allen represents unsuccessful black applicants for employment with the county who completed all required pre-employment tests and met all minimum qualification requirements and whose claims of racial discrimination were rejected by Prince George's County before 19 December 1972. The appellant Vaughns represents blacks hired by the county after 24 March 1972, the effective date of the Act, and still employed after 2 July 1974. The appellants raise five issues on appeal. We will address each one separately. We note that the district court's findings of fact may not be overset unless clearly erroneous, Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982).

I.

The appellants argue that the county's system granting preference to internal applicants for county jobs is not a seniority or merit system within the meaning of Sec. 703(h) of Title VII, 42 U.S.C. Sec. 2000e-2(h). Under Sec. 703(h), so long as there is no intent to discriminate, terms or conditions of employment which have a discriminatory impact may be imposed pursuant to a bona fide seniority or merit system adopted before the effective date of Title VII, American Tobacco Co. v. Patterson, 456 U.S. 63, 65, 102 S.Ct. 1534, 1535, 71 L.Ed.2d 748 (1982). We agree with the district court's finding that Prince George's County's preference system was not intended to discriminate, and was a valid seniority system under Sec. 703(h) of Title VII.

The first question to be decided is whether the preference system for internals constitutes a "bona fide seniority or merit system" within the meaning of the Act. We have found no case involving the applicability of Sec. 703(h) to a system in which current employees are given preference over external applicants for job openings. ¹ However, we believe that common sense dictates that the county's system be called a seniority system. It effectively grants "seniority" to all current employees, regardless of race or sex. Support for such conclusion is provided by California Brewers' Association v. Bryant, 444 U.S. 598, 100 S.Ct. 814, 63 L.Ed.2d 55 (1980), where the Supreme Court reversed a Ninth Circuit decision that a clause in a collective bargaining agreement giving preference to permanent employees over temporary ones was not a seniority system within the meaning of the Act. The court noted that:

Title VII does not define the term "seniority system," and no comprehensive definition of the phrase emerges from the legislative history of Sec. 703(h). Moreover, our cases have not purported to delineate the contours of its meaning ... the principal feature of any and every "seniority system" is that preferential treatment is dispensed on the basis of some measure of time served in employment. Id., at 605-06, 100 S.Ct. at 819 [footnotes omitted].

The county's preference system does accord preferential treatment on the basis of "some measure" of time employed--in fact, on the basis of any time in the county's employ. We thus believe that the county's system meets the requirements for a bona fide seniority system.

The court in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) held that where a seniority system has a discriminatory effect, business necessity for the practice must be shown. Here appellants claim that since the county's current employees were white in a larger percentage than the percentage of whites in the geographic area from which the employees are drawn, the seniority system operated to perpetuate discrimination that occurred prior to the effective date of the Act.

First, appellants have not satisfied us that in fact the county discriminated in its hiring prior to the effective date of the Act, but even if it did, the Act does not provide a remedy for the continuing effects of such discrimination, Trout v. Lehman, 702 F.2d 1094, 1104 (D.C.Cir.1983). If after the effective date of the Act, an employer "made all of its employment decisions in a wholly nondiscriminatory way [it] would not violate Title VII even if it had formerly maintained an all-white workforce by purposefully excluding Negroes," Hazelwood School District v. U.S., 433 U.S. 299, 309, 97 S.Ct. 2736, 2742, 53 L.Ed.2d 768 (1977). Since Prince George's County's black population grew explosively after the effective date of the Act, the disparity between the number of blacks in the geographic area and the number employed by the county might be legitimate. During the 1970's, the county's black population grew approximately 2.3% per year. However, budget cuts during that time may have meant that there were fewer "new" employees hired, so that the population shift would not have been reflected in the proportion of black county employees. Second, the county's preference system measures in a race-neutral way, and moreover, what it measures--the state of being a county employee or not--is neither a factor subject to manipulation for prejudicial ends, nor does it lend itself to use for the purpose of racial discrimination. As the district court found, the system was used legitimately, to assist county employees in upward mobility.

Since Griggs the Supreme Court has established that discriminatory intent must be found for a pre-Act seniority system such as this one is to be invalidated. Griggs held that:

[T]he touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited, 401 U.S. at 431, 91 S.Ct. at 853.

But later, in Trans World Airlines v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977), the Supreme Court considered a case in which an employee, Hardison, had requested certain time off to observe his religion. Accomodating his requests would have required TWA to violate its seniority system by forcing an employee senior to Hardison to work during Hardison's less desirable shift. In rejecting Hardison's Title VII claim, the Supreme Court noted that seniority systems are accorded "special treatment" under Title VII, (under Sec. 703(h)), and concluded:

Thus, absent a...