Association Against Discrimination in Employment, Inc. v. City of Bridgeport

• Citation: 25 FEP Cases 1013,647 F.2d 256
• Decision Date: 29 May 1981
• Docket Number: D,1103 and 1228,Nos. 549,s. 549
• Parties: 25 Fair Empl.Prac.Cas. 1013, 25 Empl. Prac. Dec. P 31,714 ASSOCIATION AGAINST DISCRIMINATION IN EMPLOYMENT, INC., Roosevelt Johnson, Craig Kelly, Charles Herd, Robert Lewis, William Cary, Charles R. Young, Herman Agosto, Harmin Linares, Ismael Pomales, Salvador Perez, and on behalf of all others similarly situated, Plaintiffs-Appellees-Cross-Appellants, v. CITY OF BRIDGEPORT, Nicholas Panuzio, Robert W. Weeks, Jr., Edward F. Daley, Julius Nobili, William G. Pjura, Frank J. Deprinzio, Alan Cohen, BridgeportCivil Service Commission, Charles E. Porzelt, Andrew Gottfried, Salvatore S.Spadaccino,Charles J. Dougiello, John J. Hannon, John F. Gleason, David Sullivan, WilliamD. Miklus, Albert Schwarz, Bridgeport Board of Fire Commissioners, individuallyand in their official capacities, Defendants-Appellants-Cross-Appellees, and Bridgeport Firefighters for Merit Employment, Inc., Joseph Dicarlo, ThomasNaples, Philip Lynch, Bruno Bressie, Thomas O'Connell, Frank G. Bender, andRobert B. Anderson, Intervenors-Defendants-Appellants-Cross-Appellees. ockets 79-7650, 79-7652 and 79-7709.
• Court: U.S. Court of Appeals — Second Circuit

Page 256

647 F.2d 256 25 Fair Empl.Prac.Cas. 1013,
25 Empl. Prac. Dec. P 31,714 ASSOCIATION AGAINST DISCRIMINATION IN EMPLOYMENT, INC.,
Roosevelt Johnson, Craig Kelly, Charles Herd, Robert Lewis,
William Cary, Charles R. Young, Herman Agosto, Harmin
Linares, Ismael Pomales, Salvador Perez, and on behalf of
all others similarly situated, Plaintiffs-Appellees-Cross-Appellants,
v.
CITY OF BRIDGEPORT, Nicholas Panuzio, Robert W. Weeks, Jr.,
Edward F. Daley, Julius Nobili, William G. Pjura, Frank J.
Deprinzio, Alan Cohen, BridgeportCivil Service Commission,
Charles E. Porzelt, Andrew Gottfried, Salvatore
S.Spadaccino,Charles J. Dougiello, John J. Hannon, John F.
Gleason, David Sullivan, WilliamD. Miklus, Albert Schwarz,
Bridgeport Board of Fire Commissioners, individuallyand in
their official capacities, Defendants-Appellants-Cross-Appellees,
and
Bridgeport Firefighters for Merit Employment, Inc., Joseph
Dicarlo, ThomasNaples, Philip Lynch, Bruno Bressie, Thomas
O'Connell, Frank G. Bender, andRobert B. Anderson,
Intervenors-Defendants-Appellants-Cross-Appellees. Nos. 549, 1103 and 1228, Dockets 79-7650, 79-7652 and 79-7709. United States Court of Appeals,
Second Circuit. Argued April 30, 1980.
Decided April 8, 1981.
Rehearing and Rehearing In Banc Denied May 29, 1981.

Page 259

David N. Rosen, New Haven, Conn. (Michael P. Koskoff, Bridgeport, Conn., on brief), for plaintiffs-appellees-cross-appellants.

John J. McNamara, Bridgeport, Conn. (Raymond B. Rubens, Bridgeport, Conn., Bruce A. Nelson, John L. Beers, Steven B. Berlin, Wendy L. Tice-Wallner, Morrison & Foerster, San Francisco, Cal., on brief), for defendants-appellants-cross-appellees.

J. Daniel Sagarin, Bridgeport, Conn. (Harrigan, Hurwitz, Sagarin & Rutkin, P. C., Bridgeport, Conn., on brief), for intervenors-defendants-appellants-cross-appellees.

Steven H. Rosenbaum, Washington, D. C. (U. S. Dept. of Justice, Drew S. Days III, Asst. Atty. Gen., David L. Rose, Washington, D. C., on brief), for United States as amicus curiae.

McGuiness & Williams, Washington, D. C. (Robert E. Williams, Douglas S. McDowell, Washington, D. C., on brief), for Equal Employment Advisory Council as amicus curiae.

Before LUMBARD, VAN GRAAFEILAND and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

This employment discrimination suit, now before this Court for the second time, was commenced in 1975 in the United States District Court for the District of Connecticut on behalf of black and hispanic residents of Bridgeport, Connecticut, against the City of Bridgeport and other individuals responsible for hiring firefighters for the City of Bridgeport (hereinafter collectively the "City"). The plaintiffs contend that the City unlawfully discriminated in entry-level hiring practices for the Bridgeport Fire Department, in violation of Titles VI and VII of the Civil Rights Act of 1964 (the "Act"), 42 U.S.C. §§ 2000d to 2000d-4, and 2000e to 2000e-17 (1976), and the antidiscrimination provision of the State and Local Fiscal Assistance Act ("Revenue Sharing Act"), 31 U.S.C. § 1242(a) (1976). After trial, the district court ruled that a 1975 examination administered by the City violated Title VII. 454 F.Supp. 751 (D.Conn.1978). The court

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enjoined further use of the exam, and ordered various remedial measures, including requirements that only minority ¹ candidates be hired until their number equaled the number of white candidates hired since 1975 and that thereafter one-half of all vacancies be filled by minority candidates until there were 125 minority firefighters in the force. 454 F.Supp. 758 (D.Conn.1978).

On appeal, this Court concluded that the opinions below provided an insufficient basis for review of the sensitive questions raised by "sweeping affirmative relief, including hiring quotas." 594 F.2d 306, 309 (1979) ("ADE v. Bridgeport"). Accordingly, the district court's order was vacated and the case remanded for further consideration. Following a limited hearing on remand, the district court reaffirmed its original determination that the City was liable under Title VII, determined that the City was also liable under Title VI and the Revenue Sharing Act, and modified in several respects the relief ordered. 479 F.Supp. 101 (D.Conn.1979.)

On this appeal the City and the intervening current firefighters challenge the findings of liability under Title VI and liability under Title VII prior to 1975, and they attack most aspects of the remedial order. Plaintiffs have cross-appealed, challenging two limited aspects of the relief granted. For the reasons below, we generally affirm the decision of the district court, but vacate the finding of liability under Title VI and remand portions of the remedial order for modification.

I. FACTS AND PRIOR PROCEEDINGS

Since 1936, the City's process of selecting its firefighters has included the giving of a written examination. In 1972, having had only two minority firefighters since 1936, having recently been sued for employment discrimination in the police department, and perhaps recognizing the approaching applicability of Title VII to municipalities, Bridgeport joined ten other Connecticut cities in hiring a consulting firm to develop a new exam for firefighters. The resulting exam was administered by the City in 1975. In order to qualify for firefighter positions, candidates were required to achieve a score in or above the 75th percentile of those taking the exam; they were then ranked according to their scores. In addition, a 1975 candidate was required to pass medical and physical agility tests, be over the age of eighteen, be a high school graduate or have earned high school equivalency certification, have resided in the City for at least one year just prior to taking the written exam, and hold a valid Connecticut driver's license.

Of the 661 white candidates who took the 1975 exam, 184, or 27.8%, passed. Of the 110 minority candidates who took the exam, eight, or 7.3%, passed.

A. The Complaint

The initial complaint in this action was filed on September 2, 1975, by the Association Against Discrimination in Employment and ten individual plaintiffs who are black or hispanic residents of Bridgeport, on behalf of themselves and all others similarly situated. The plaintiffs alleged that the City had engaged in a "policy and practice of discriminating on the basis of race, color and/or national origin against minority group members" and that minority group members "are currently being denied initial employment and promotion in the Bridgeport Fire Department." The original complaint attacked the 1975 test as well as the City's prior practices, asserting claims under 42 U.S.C. §§ 1981 and 1983 (1976), and Title VII; the complaint was amended several times, as plaintiffs withdrew the claims under §§ 1981 and 1983 and added allegations of violation of Title VI and the Revenue Sharing Act, and alleged the filing of charges with the Equal Employment Opportunity Commission ("EEOC"). Unless otherwise noted, references hereafter to the

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"complaint" are to the third amended complaint in its final form.

In July 1976, Bridgeport Firefighters for Merit Employment, Inc. ("BFME"), a non-profit organization, was permitted to intervene as a defendant and cross-claimant, representing "non-minority firefighters within the Bridgeport department of fire services." BFME's cross complaint sought relief from any injury which might be done to nonminority firefighters by the City as a result of any modification of the City's existing hiring or promotional practices.

B. Interim Hiring from the 1975 List

Shortly after the intervention of BFME, plaintiffs learned of the City's plans to make immediate appointments from the list of eligible candidates generated by the 1975 exam, and moved for a preliminary injunction against such appointments. The motion came before Judge Newman, who issued an order, on consent of all parties, permitting defendants to "make at any time appointments to the Bridgeport Fire Department of a number of firefighters equal to one-half the number for which the city warrants there is and will remain an immediate need and adequate funding." The order further stated that "(i)n the event the Court should order a hiring plan, these appointments will be counted as part of such plan." Pursuant to this order 40 firefighters were hired commencing in October 1976.

In 1977 the City sought to hire additional firefighters from the 1975 list. On June 13, 1977, the parties agreed, before Judge Zampano, that the City could hire additional firefighters from that list under substantially the same conditions as those set forth in Judge Newman's order. Thereafter 44 additional firefighters were hired.

Of the 84 firefighters hired pursuant to the interim orders, 81 were white and three were minorities.

C. The Trial Court's Initial Decision

In 1978, following a substantial period of discovery, an eleven-day trial with respect to liability was held before Judge Daly. The court found that the City had violated Title VII. It observed that although minorities comprised 41% of Bridgeport's population the Bridgeport Fire Department, 428 members strong, had only one minority firefighter prior to the 1975 exam. The court found that the 1975 exam "did little to alter this imbalance": only eight of the 192 candidates who passed it were members of minority groups, and the pass rate for nonminority candidates was more than three times that for minority candidates. The court concluded that these statistics left "no doubt that the firefighters exam had a disparate impact on the named plaintiffs and the class of persons they represent." 454 F.Supp. at 754.

As to the merits of the test itself, the court found that it was doubly flawed. First, the exam had no rational relationship to the skills needed in firefighting. The test was developed, by the consulting firm retained for that purpose, without compiling any list of critical work behaviors and...