Blake v. City of Los Angeles

• Decision Date: 13 May 1977
• Docket Number: No. CV 73-1962-JWC.,CV 73-1962-JWC.
• Citation: 435 F. Supp. 55
• Court: U.S. District Court — Central District of California
• Parties: Fanchon BLAKE et al., Plaintiffs, v. CITY OF LOS ANGELES et al., Defendants.

435 F. Supp. 55

Fanchon BLAKE et al., Plaintiffs, v. CITY OF LOS ANGELES et al., Defendants.

No. CV 73-1962-JWC.

United States District Court, C. D. California.

May 13, 1977.

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Timothy B. Flynn, A. Thomas Hunt and Mary-Lynne Fisher, Center for Law in the Public Interest, Jill Jakes, ACLU Foundation of Southern California, Los Angeles, Cal., for plaintiffs.

Burt Pines, City Atty., John B. Rice, Senior Asst. City Atty., Cecil W. Marr and Robert J. Loew, Deputy City Attys., Los Angeles, Cal., for defendants.

Dale B. Goldfarb and George J. Franscell, Dryden, Harrington & Swartz, Los Angeles, Cal., for intervenor.

CURTIS, District Judge.

This class action is an across-the-board attack on alleged sexually discriminatory practices of the City of Los Angeles in the operation of its Police Department. Jurisdiction is claimed under 28 U.S.C. § 1343(3) and (4). The action is brought under 42 U.S.C. § 1983, the Fourteenth Amendment of the United States Constitution, and Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000e, et seq.).

The challenged practices have occurred over a time span embracing three different periods; each period brings into play different considerations and different standards of review.

The first relevant period was that prior to March 24, 1972, the date upon which Title VII was made applicable to "governments, governmental agencies and political subdivisions." During this period, the City maintained two separate employment classifications for its sworn police officers, "Policemen" and "Policewomen".

The second relevant period runs from the Title VII effective date of March 24, 1972 until June 1973, when the City of Los Angeles put into effect a new hiring system. The City continued the dual system of Policemen and Policewomen during this fifteen month period.

The third period commences in June 1973, when the City attempted to comply with Title VII. Under the new hiring system, the gender-based classifications were abandoned and the single position of sworn "Police Officer" was established. As a part of the new procedure, the City also established candidate selection criteria and policies relating to promotions, pay grades, transfers, retirement, and pension benefits. Although the new policies were not based on gender, they resulted in a statistically greater impact on women than men.

The defendants have moved for summary judgment. In support of their respective positions upon the issues raised by the motion, the parties have furnished the court with voluminous affidavits and a vast amount of statistical data. In addition thereto, the parties have entered into a pretrial conference order containing a stipulation of facts, which has largely limited the factual issues and greatly facilitated a pretrial determination of the many legal questions presented by this case.

I. STATUTE OF LIMITATIONS

As a threshold issue, the defendants have questioned the statute of limitations applicable to the claims under 42 U.S.C. § 1983. The initial complaint was filed August 20, 1973. It is well settled in California that the applicable statute of limitations for civil rights actions brought under 42 U.S.C. § 1983 is the three year statute provided in section 338(1) of the California Code of Civil Procedure. Donovan v. Reinbold, 433 F.2d 738, 741 (9th Cir. 1970), and Smith v. Cremins, 308 F.2d 187 (9th Cir. 1962). This being so, plaintiffs' claims are not barred by the applicable statute of limitations.

II. PERIOD PRIOR TO MARCH 24, 1972

Plaintiffs' first challenge is directed to the City's employment practice for the period prior to March 24, 1972, when the City maintained the separate classifications of "Policemen" and "Policewomen". Plaintiffs urge that this classification system violated the equal protection clause of the Fourteenth Amendment. Although Policemen and Policewomen were both sworn officers, they had different lines of promotion and different types of duties. Policemen were assigned to the more physical tasks, including work on patrol and in the field. Policewomen generally were assigned to specialized tasks and inside work.

In our approach to the question of whether these classifications comply with constitutional requirements, we must first decide what standard of review is applicable. This is a problem fraught with some confusion because of the lack of clarity in the case law.

In a "traditional" equal protection analysis, a legislative classification must be sustained unless it is patently arbitrary. Frontiero v. Richardson, 411 U.S. 677, 683, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). See, Jefferson v. Hackney, 406 U.S. 535, 546, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972); Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971); Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), and Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960).

The plaintiffs, however, contend that a classification based upon sex is similar to a classification based upon race, alienage, and national origin. A gender-based classification would then be inherently suspect and subjected to close judicial scrutiny.

In Frontiero v. Richardson, supra, the challenged statute provided that the spouse of a serviceman was deemed a dependent for purposes of obtaining certain privileges. However, the spouse of a female member of the armed services was not deemed a dependent, unless he were in fact dependent on his wife for over one-half of his support. The government admitted that the only justification for such a classification was "administrative convenience." The Court decided that a classification based upon sex could not be justified on the sole ground of "administrative convenience" and struck down the classification as being a denial of equal protection. In a plurality decision, four justices held that classifications based on sex were inherently suspect and subject to strict judicial scrutiny. 411 U.S. at 688, 93 S.Ct. 1764. Mr. Justice Stewart concurred in the result. Id. at 691, 93 S.Ct. 1764.

Notwithstanding Frontiero, a majority of the Supreme Court has not yet added sex to the list of suspect classifications. The Court has suggested, however, that a classification based upon sex will have to be justified by more than the traditional "rational" connection between the classification and some valid legislative purpose. See, Berkelman v. San Francisco Unified School District, 501 F.2d 1264, 1269 (9th Cir. 1974). The Court has never rejected gender as an impermissible classification in all instances. See, e. g., Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975), and Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974).

In Schlesinger, the Court upheld a classification based upon sex. In that case a naval officer challenged a statutory mandatory discharge provision, which required his discharge before a similarly situated female officer would be discharged. The Court recognized the differing types of service which each sex was likely to render and upheld the classification, saying:

"In both Reed Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 and Frontiero the reason asserted to justify the challenged gender-based classifications was administrative convenience, and that alone. Here, on the contrary, the operation of the statutes in question results in a flow of promotions commensurate with the Navy's current needs and serves to motivate qualified commissioned officers to so conduct themselves that they may realistically look forward to higher levels of command. This Court has recognized that `it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.' Toth v. Quarles, 350 U.S. 11, 17, 76 S.Ct. 1, 5, 100 L.Ed. 8. See also Orloff v. Willoughby, 345 U.S. 83, 94, 73 S.Ct. 534, 540, 97 L.Ed. 842. The responsibility for determining how best our Armed Forces shall attend to that business rests with Congress, (citations omitted) and with the President. . . . We cannot say that, in exercising its broad constitutional power here, Congress has violated the Due Process Clause of the Fifth Amendment." 419 U.S. at 510, 95 S.Ct. at 578-79.

In my view, the rule governing our inquiry is set forth in Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). After analyzing its recent decisions in this field, the Court stated:

"To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." Id. at 197, 97 S.Ct. at 457.

This approach was reaffirmed by the Court in Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977). Under this standard of review, we must determine whether the gender-based classification in this case has a substantial relationship to the achievement of an important governmental objective.

The City of Los Angeles has a compelling governmental interest in providing police services to the community. As was stated in Kelley v. Johnson, 425 U.S. 238, 247, 96 S.Ct. 1440, 1445, 47 L.Ed.2d 708 (1976):

"The promotion of safety of persons and property is unquestionably at the core of the State's police power, and virtually all state and local governments employ a uniformed police force to aid in the accomplishment of that purpose."

In assessing the relation of gender to this important governmental objective certain basic facts are apparent:

1. One of the most vital functions a municipality performs is the establishment of an effective police force to protect the lives and property of its citizens, to enforce its laws, and to preserve and maintain peace and tranquility within the community.

2. This police force must consist of Police...