Bridgeport Guardians, Inc. v. City of Bridgeport
| Decision Date | 21 March 1990 |
| Docket Number | Civ. No. B-89-547 (TFGD). |
| Citation | 735 F. Supp. 1126 |
| Parties | BRIDGEPORT GUARDIANS, INC., Hispanic Society, Inc., Jerry Brown, Johnny Devone, Angel Duran, Pedro Garcia, Roberto Melendez, Jesus Ortiz Armando, Carwin Spearman, Nina Thomas, Plaintiffs, v. CITY OF BRIDGEPORT, Bridgeport Police Department, and Bridgeport Civil Service Commission, Defendants. |
| Court | U.S. District Court — District of Connecticut |
Vincent Musto, for plaintiffs.
Thomas Jackson, William Barnes, for defendants.
In this action plaintiffs claim that the defendants are using a racially discriminatory selection process for the promotion of police officers to the rank of sergeant in the Bridgeport Police Department. Plaintiffs allege that defendants' promotion procedures violate sections 1981 and 1983 of Title 42 of the United States Code and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a). The parties having fully briefed the legal and factual issues raised at the consolidated preliminary injunction hearing and trial, this matter is now ready for decision.
Plaintiffs are individual Black and Hispanic candidates for the position of police sergeant who took the 1989 Bridgeport Police Sergeant's Examination, and two organizations of minority police officers, the Bridgeport Guardians and the Hispanic Society. They initiated this action on October 2, 1989 seeking a temporary restraining order and preliminary and permanent injunctive relief. The defendants are the City of Bridgeport, the Bridgeport Police Department, and the Bridgeport Civil Service Commission (the "Commission"). On November 15, 1989, the Court allowed thirty-nine individual White police officers and an organization of such officers, the Bridgeport Police for Equal Employment Opportunity, Inc., to intervene as defendants in this matter (the "intervening defendants").
On October 2, 1989, the Court issued a temporary restraining order prohibiting the defendants from making any promotions from the eligibility list drawn up after the completion of the promotion testing and appeals period. On the consent of the parties, the temporary restraining order remains in effect pending this decision. A consolidated trial and preliminary injunction hearing was held on December 27 and 28, 1989.
On February 6, 1989, the Commission announced that it would conduct a promotional examination for the rank of sergeant. The examination notice stated that the Commission required that candidates had served as police officers and/or detectives for one year immediately preceding February 3, 1988, be bona fide residents of the City of Bridgeport1, and have "one year of satisfactory experience as a police officer immediately preceding February 3, 1988"2. Dr. James Outtz, an industrial psychologist and testing expert who previously developed the 1983 Bridgeport Police Sergeant's Examination, was retained to construct the 1989 examination. As a result of the process he developed, a candidate's ranking, for promotion purposes, is based on the following three components: 1) the written examination score — accounting for fifty-three percent of one's total score; 2) the oral examination score — accounting for forty-two percent of an applicant's total score; and 3) seniority — accounting for the remaining five percent.
In the course of developing an examination, in November 1988 Dr. Outtz recommended to the defendants that video simulations be used in place of an oral test in order to improve the examination and reduce the possibility of adverse impact. To encourage the defendants to accept this proposal, he offered to defer his fee until July, 1989.3 Despite Outtz's recommendation and the efforts of the Commission personnel director to convince Bridgeport Mayor Thomas Bucci to adopt the video simulations concept, the Mayor's office, while apparently not opposed to the concept in principle, rejected the request to provide additional funds for this proposal and directed the Commission to expend such funds from its own budget to whatever extent it saw fit.
The testimony of Cesar Batalla indicated that in reality the Commission had sufficient funding in its "Special Services" budget (out of which testing costs are normally paid) to pay for the video simulations. Batalla testified that in the 1988-89 fiscal year the Special Services budget had a surplus of $110,000. Though the Commission claims not to have learned of this extra funding until a May 1989 audit turned up an extra $100,000 in the Special Services budget, the Court finds this explanation less than satisfactory. Moreover, regardless of any such confusion about such additional funds, the Commission had available in the Special Services budget large balances of funds (perhaps already committed to other projects) from October 1988 through May 1989. Although the Commission supported the use of the video simulations in attempting to get Mayor Bucci to authorize additional funds for the Special Services budget, for some undisclosed reason it was unwilling to spend any portion of the large balance of funds actually in that budget for that same purpose.
The written examination was administered on April 1, 1989, and the oral examinations were conducted over a three-day period during June 13-15, 1989. One hundred and seventy candidates took the examination, of whom one hundred and fifteen are White, twenty-seven are Black, and twenty-eight are Hispanic.4 After the Commission reviewed appeals, on October 11, 1989 it prepared a pass list5 for selecting candidates for promotion. The first nineteen candidates listed are White. The Black candidate with the highest score is ranked twentieth. The Hispanic candidate with the highest score is ranked twenty-second. Of the ninety-nine candidates who passed the examination, seventy-eight are White, eight are Black, and thirteen are Hispanic. Of the seventy-one candidates who failed the examination, thirty-seven are White, nineteen are Black, and fifteen are Hispanic. Thus, sixty-eight percent of the White candidates passed the examination, while thirty percent of the Black candidates and forty-six percent of the Hispanic candidates passed. The defendants presently intend to promote the first twenty-five persons from the promotion eligibility list at the conclusion of this litigation. Over the course of the two-year period that the list will remain in effect, the defendants anticipate making seven to fourteen additional promotions.
On August 15, 1989, Dr. Outtz recommended in writing that the Commission use "banding" in making promotions from the pass list rather than promoting in "strict rank-ordered fashion" in recognition of the fact "that certain differences in test scores may not be significant." Plf. Exh. 4. Based on that premise, the banding technique selects a range of scores whose differences are not statistically significant and then provides for promotions from a band range, considering matters such as race or ethnicity, gender, work experience, past job dependability, and other factors that the hiring authorities deem pertinent and worthy of consideration. Outtz stated in his August 15, 1989 letter that the tests he developed "cannot be justified as valid for the specific use of strict rank ordering." Id. At trial, however, Outtz testified that his letter should not be construed as an admission of adverse impact because he regularly recommends banding to make the test procedure as valid as possible. On August 16, 1989, the Commission voted (with four members present) two to zero to use banding for promotion purposes. On August 21, 1989, the full Commission revisited the issue and voted three to two to promote in strict rank order. Commission Chairman John Fabrizi testified at trial that if the examination or selection procedure had a disparate impact on minority candidates or otherwise violated equal employment laws, he would vote to use banding. He further testified that when he cast his vote against banding on the second occasion he and the Commission had not reviewed any analysis of the test results to determine if there was a disparate impact on minority groups.
The Court's remaining findings of facts are incorporated in its discussion concerning its conclusions of law and primarily in its discussion of whether the plaintiffs have succeeded in proving their disparate impact claim.
Title VII of the Civil Rights Act of 1964 proscribes employer discrimination against any person with respect to hiring or the terms and conditions of employment because of such individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). Also proscribed is the limitation, segregation or classification of employees in ways that adversely affect any employee on account of race, color, religion, sex, or national origin. Id. In Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971), the Supreme Court held that Title VII prohibits not only intentional discrimination, but also discrimination resulting from practices which, though apparently "fair in form", are discriminatory in fact. Basing their claim on this theory of liability, plaintiffs argue that the sergeant's promotion process had a "disparate impact", i.e., it adversely impacted upon minority promotion candidates.
To prove this claim, the plaintiffs' must first establish a prima facie case of liability by showing that the promotion disparity is the result of certain, specific aspects of the promotion process having a significantly disparate impact upon them. Wards Cove Packing Co. v. Atonio, ___ U.S. ___, 109 S.Ct. 2115, 2124-25, 104 L.Ed.2d 733 (1989); Equal Employment Opportunity Commission v. Joint Apprentice Committee of the Joint Industry Board of the Electrical Industry, 895 F.2d 86, 90-91 (2d Cir.1990) (...
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...was ordered by the district court to "enhanc[e] the promotion opportunities of Blacks and Hispanics." Bridgeport Guardians, Inc. v. Bridgeport, 735 F.Supp. 1126, 1136 (D.Conn.1990). And so too in this case, banding appears to have lessened or removed any disparate impact on minorities seeki......
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