ASS'N AGAINST DISCRIM. v. City of Bridgeport

Citation454 F. Supp. 751
Decision Date14 July 1978
Docket NumberCiv. No. B-75-268.
PartiesASSOCIATION AGAINST DISCRIMINATION IN EMPLOYMENT, INC., Roosevelt Johnson, Craig Kelly, Charles Herd, Robert Lewis, William Cary, Charles R. Young, Herman Agosto, Harmin Linares, Ismael Pamales, Salvador Perez, and on behalf of all others similarly situated, Plaintiffs, v. CITY OF BRIDGEPORT, Nicholas Panuzio, Robert W. Weeks, Jr., Edward F. Daley, Julius Nobili, William G. Pjura, Frank J. Deprinzio, Alan Cohen, Bridgeport Civil Service Commission, Charles E. Porzelt, Andrew Gottfried, Salvatore S. Spadaccino, Charles J. Dougiello, John J. Hannon, John F. Gleason, David Sullivan, William D. Miklus, Albert Schwarz, Bridgeport Board of Fire Commissioners, Individually and in their official capacities, Defendants.
CourtU.S. District Court — District of Connecticut

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David N. Rosen, New Haven, Conn., Michael P. Koskoff, Bridgeport, Conn., for plaintiffs.

Raymond B. Rubens, Bridgeport, Conn., for defendants.

J. Daniel Sagarin, Bridgeport, Conn., for intervenors.

DALY, District Judge.

RULING ON LIABILITY

Plaintiffs, as representatives of the class of Blacks and Hispanics who reside in the City of Bridgeport, Connecticut, are attacking the 1975 Civil Service Exam administered to candidates for Bridgeport's Fire Department. Defendants are the City of Bridgeport, several of its officials, the Bridgeport Civil Service Commission and the Bridgeport Board of Fire Commissioners. A group of Bridgeport's firefighters, Bridgeport Firefighters for Merit Employment, Inc., have been permitted to intervene to assure that the viewpoints of all interested persons are represented.

This opinion is limited to the question of defendants' liability. After extensive discovery and several pretrial conferences, this Court decided to bifurcate the complex factual claims of liability from the question of the appropriate remedy. The liability aspect of the case has been tried to the Court and carefully briefed in thorough post-trial memoranda. On the basis of the credible evidence, the Court finds that Bridgeport's 1975 firefighters exam had a disparate impact and that this exam was not job-related.

Plaintiffs claim that Title VII of the Civil Rights of 1964, 42 U.S.C. § 2000e, et seq., and the anti-discrimination provision of the Revenue Sharing Act, 31 U.S.C. § 1242(a), have been violated. The violation of Title VII is based on the alternative contentions that plaintiffs have been subjected to disparate treatment and that defendants' firefighters exam had a disparate impact. These two theories of discrimination are well explained by the Supreme Court in Int'l Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n.15, 97 S.Ct. 1843, 1854, 52 L.Ed.2d 396 (1977):

"`Disparate treatment' such as alleged in the present case is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment . . .
Claims of disparate treatment may be distinguished from claims that stress `disparate impact.' The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. . . . Proof of discriminatory motive, we have held, is not required under a disparate impact theory" (citations omitted). Id.

See Furnco Construction Corp. v. Waters, ___ U.S. ___, ___ - ___, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978). Because plaintiffs have demonstrated that the firefighters exam violated the disparate impact theory of Title VII, the Court does not reach the question of whether plaintiffs have been subjected to disparate treatment. Moreover, the Court is reserving judgment on plaintiffs' claim that Bridgeport's federal revenue sharing funds should be terminated. As suggested by intervenors, this claim is best considered subsequently when the Court fashions a remedy for plaintiffs. It should be noted, however, that the Court sees little benefit to plaintiffs in the termination of federal funding and views such a step as one of last resort. See generally United States v. City of Chicago, 549 F.2d 415, 449 (7th Cir. 1977).

The legal principles that apply to a claim of disparate impact are well-settled.1 In Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977) the Supreme Court had occasion to summarize the three-step analysis that governs proof of such Title VII claims. The Court explained that to prevail on the basis of a disparate impact theory plaintiffs must first demonstrate that defendants' use of facially neutral hiring requirements has a significantly disparate impact on plaintiffs. That is, plaintiffs need only prove that defendants' seemingly unbiased hiring standards have resulted in a significant pattern of discriminatory employment. If plaintiffs adduce ample proof of such a discriminatory pattern, they have established a prima facie case of a racially disparate impact and the burden shifts to defendants.2 Id. See 29 C.F.R. § 1607.3 (1977). In the Second Circuit this shifting of the burden means defendants become saddled not only with the burden of going forward, but also with the burden of persuasion. Vulcan Soc. of N. Y. City Fire Dept., Inc. v. Civil Serv. Comm'n, 490 F.2d 387, 393 (2d Cir. 1973). By way of rebuttal, defendants must then demonstrate that their employment requirements are substantially related to job performance. The question whether Bridgeport's firefighters exam was job-related is the critical issue in this case. The third and final step in the analysis is reached only if defendants successfully show that their employment requirements "have a manifest relationship to the employment in question". Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971). If defendants prove their requirements are job-related, plaintiffs have an opportunity to rejoin by showing that other selection techniques are available which would advance defendants' interests in maintaining high caliber employees, but which would not have a similar discriminatory effect. Dothard v. Rawlinson, supra, 433 U.S. at 329, 97 S.Ct. 2720; Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975).

The statistical data presented at trial by plaintiffs leave no doubt that the firefighters exam had a disparate impact on the named plaintiffs and the class of persons they represent. Between the taking of the 1970 census and the 1974 census the minority population in Bridgeport increased from 25.3% to 41%. Of the 153,500 residents of Bridgeport in 1974, 27% were Black and 14% were Hispanic. In marked contrast to the racial composition of the City's population, there was but one minority firefighter in 1975 out of 428 members of the Bridgeport Fire Department. Thus, at the time the firefighters exam was given, minorities constituted 41% of Bridgeport's population, but only 0.2% of its Fire Department.

The firefighters exam did little to alter this imbalance. Only three of the eighty-four candidates who successfully passed the exam were memers of minority groups. In terms of the pass rate, minority candidates passed with one-third the frequency of non-minority candidates; a 9% minority pass rate as compared with a 27% nonminority pass rate. In addition, a statistical test performed by plaintiffs' expert revealed that the difference between the mean exam scores of minority candidates and nonminority candidates could have been the result of chance in less than one in 10,000 samples. Plaintiffs' expert also introduced statistical evidence that demonstrated that the disparity between minority and nonminority performance on the exam was not the result of differences in a candidate's formal education.3 Assuming that every candidate who passed the firefighters exam is ultimately hired, minorities will constitute something less than 1% of Bridgeport's Fire Department. Therefore, if the results of the exam remain unaltered, the operative effect of the exam will be to perpetuate the composition of an already racially imbalanced fire department. The disparate impact of the firefighters exam, especially when viewed in the light of the Bridgeport Fire Department's prior racial imbalance, compels the conclusion that the exam should be upheld only upon a persuasive showing that it was substantially related to the performance of firefighters.

The most difficult question raised by plaintiffs' claim is whether the 1975 exam is job-related. In search of an answer, the attorneys and the Court have been led by the conflicting testimony of two experts, who spoke in an alien tongue, through a labyrinth of statistical analysis that might well have intimidated Odysseus. While the Court does not concur with plaintiffs in all of their criticisms of the exam, it is apparent that the exam suffers from several serious defects.

Before discussing the specific defects in the exam, a brief digression is necessary to explain how the exam was developed. The firefighters exam was the result of a concurrent criteria-related validity study. Such studies begin with the collection of data on present employees. These employees are ranked by their superiors and then given a battery of tests that may or may not concern the employee's knowledge of his field. After these tests are scored, a statistical analysis is performed to determine whether the highly ranked employees have performed similarly on any of the tests. If the highly ranked employees uniformly have performed either better or worse than employees with low rankings on any of the tests, then these tests are presumed to identify desirable employees.

In the case of Bridgeport's firefighters exam, data on...

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