Brown v. New Haven Civil Service Bd.

• Citation: 474 F. Supp. 1256
• Decision Date: 27 July 1979
• Docket Number: Civ. No. N-78-234.
• Court: U.S. District Court — District of Connecticut
• Parties: Frank BROWN, Jr. et al. v. The NEW HAVEN CIVIL SERVICE BOARD et al.

474 F. Supp. 1256

Frank BROWN, Jr. et al. v. The NEW HAVEN CIVIL SERVICE BOARD et al.

Civ. No. N-78-234.

United States District Court, D. Connecticut.

July 27, 1979.

COPYRIGHT MATERIAL OMITTED

Clarance J. Jones, Center for Advocacy, Research & Planning, Inc., New Haven, Conn., for plaintiffs.

Joseph D. Garrison, Sp. Asst. Corp. Counsel, New Haven, Conn., for defendants.

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

NEWMAN, Circuit Judge.^*

The three plaintiffs, Black citizens of Connecticut, have brought this suit alleging racial discrimination in testing and hiring for the New Haven police force during 1978. The basic claim is that a written examination administered in February, 1978, to applicants for the police force had a disproportionate impact upon Blacks that cannot be justified by job-relatedness. The defendants respond that the percentage of Blacks hired by the New Haven Police Department, as the end result of selection procedures of which the written exam was only one part, was substantially proportionate to the percentage of eligible Blacks living in New Haven. Relying on this argument, the defendants have moved for summary judgment.

The process by which hiring decisions were made in 1978 consisted of several stages. After filling out an application form, an applicant was eligible to take a written examination. Anyone who took the written exam was eligible in turn to take a physical agility test. The written exam and physical agility test were scored separately, and the scores were combined to determine whether an applicant had passed or failed. Those who accumulated a combined score over a minimum passing grade became eligible for an interview. The interviews were scored separately, and applicants scoring highest in the interviews were hired. No quotas or goals for different racial groups were established, but the reasonable inference is that in assessing the interview candidates, the city officials made some conscious effort to rate minority candidates sufficiently favorably to produce hiring results roughly proportionate to New Haven's minority population.

The three plaintiffs allege that they all failed the written exam administered in February, 1978. Since a separate passing score for the written exam was never established, the plaintiffs apparently mean that they failed to accumulate a combined passing score for the written exam and physical agility test because of their low scores on the written exam. They filed charges with the U.S. Equal Employment Opportunity Commission (E.E.O.C.), and plaintiffs Brown and Nobles have received right to sue letters, thereby satisfying jurisdictional prerequisites to pursuing their Title VII claims here. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798-99, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Plaintiff Campbell has not received a right to sue letter, but she makes the same claims under 42 U.S.C. § 1981 as she does under Title VII, and § 1981 claims are not subject to a requirement of resort to Title VII's administrative machinery. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 460-61, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975).¹

The plaintiffs claim, in the first count of their amended complaint, that the written exam was racially discriminatory in its effect and was not job-related, and that their exclusion from consideration for hiring because they failed the exam violated their rights to equal employment under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2 et seq. The same allegations form the basis of the second count, claiming a violation of 42 U.S.C. §§ 1981 and 1983. Claiming that the defendant members of the New Haven Civil Service Board knew or should have known in advance that the written exam was culturally biased and not job-related, the plaintiffs claim in the third count that the intentional administration of the test violated their rights under the Fourteenth Amendment and 42 U.S.C. §§ 1981 and 1983. The fourth count claims a violation of the constitutional right to travel and guarantee of equal protection of plaintiff Millicent Campbell, the only one of the three plaintiffs who lives outside New Haven, in the adjacent town of West Haven. The fifth count presents a claim of violation of Conn. Gen.Stat. §§ 7-409 and 7-413 and a related rule of the New Haven Civil Service Commission, providing that public employees should be selected on the basis of ability and that tests should relate to applicants' abilities to perform the jobs for which they are applying. The sixth count claims a violation of the equal protection provision of the Connecticut Constitution, Art. I §§ 1 and 20. In the seventh and eighth counts, plaintiffs claim violations of racial discrimination prohibitions in two statutes under which New Haven receives federal money, 42 U.S.C. § 3766(c) (Law Enforcement Assistance Administration) and 31 U.S.C. § 1242 (Office of Revenue Sharing of U.S. Department of the Treasury). Finally, in the ninth count there is a claim of violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, prohibiting racial discrimination in any program receiving federal financial assistance, and pertinent federal regulations thereunder, including 28 C.F.R. § 42.201 et seq.

The statutory claim under Title VII will be considered first. See New York City Transit Authority v. Beazer, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979). The test being challenged is facially neutral, but in a case of alleged disproportionate impact upon a racial minority, a discriminatory effect violates Title VII even in the absence of an intent to discriminate.² See Dothard v. Rawlinson, 433 U.S. 321, 328-29, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Griggs v. Duke Power Co., 401 U.S. 424, 431-32, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). To prove their Title VII claim, plaintiffs must first establish a prima facie case of discrimination. According to guidelines adopted by the E.E.O.C. and other enforcement agencies, a prima facie case of discrimination is established when the selection rate for members of any race or ethnic group is less than 80 per cent of the rate for members of the most successful race or ethnic group. Uniform Guidelines on Employee Selection Procedures, 43 Fed.Reg. 38290 (Aug. 25, 1978). While this "four-fifths rule" is not binding on courts, it is an administrative interpretation entitled to considerable deference. See Albemarle Paper Co. v. Moody, supra, 422 U.S. at 431, 95 S.Ct. 2362; Griggs v. Duke Power Co., supra, 401 U.S. at 433-34, 91 S.Ct. 849, 28 L.Ed.2d 158.

If the allegations of the amended complaint are accepted for purposes of defendants' motion for summary judgment, the passing rates on the written examination establish a prima facie case of adverse impact. Plaintiffs allege that of 99 Blacks who took the written exam, 30 passed; of 194 Whites who took the exam, 120 passed. The passing rate for Blacks, 30.3%, was less than half of the passing rate for White, 61.9%.³

The ultimate results of the entire hiring process, however, show that no prima facie case of adverse impact is established. The number of Blacks hired as a percentage of the Black applicants is roughly the same as that for Whites. If an "applicant" is defined as a person who completely filled out an application form, 184 Blacks and 334 Whites applied, of whom 14 Blacks (7.6%) and 30 Whites (9.0%) were hired. Alternatively, if an "applicant" is one who took the written exam, 175 Blacks and 316 Whites applied; the hiring percentages on this basis are 8.0% for Blacks and 9.5% for Whites. Under either definition of "applicant" the ratio of the hiring rate for Blacks compared to that of Whites is 84%, satisfying the E.E.O.C. 80% guideline.⁴ Moreover the number of Blacks hired (14) as a percentage of the total number of police officers hired (50)⁵ is 28%, a figure roughly comparable to the 26% Black percentage in the New Haven population, according to the 1970 census.⁶ See Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, 354 F.Supp. 778, 785 (D.Conn.), aff'd in part, 482 F.2d 1333 (2d Cir. 1973).⁷

Thus, the precise issue in this case is whether the plaintiffs can make the required prima facie showing in their Title VII case by claiming the disproportionate impact of a written exam that forms one part of a hiring process, when the defendants show that the total hiring process resulted in no disproportionate impact according to comparisons of racial hiring percentages against either total applicants or general population. In other words, are the plaintiffs entitled to penetrate the total hiring process and challenge a particular component, the written exam?

Of the few courts that have considered the issue, the majority have held that the selection process as a whole, rather than any segment of it, should be examined for disproportionate impact in a Title VII case. Friend v. Leidinger, 588 F.2d 61, 66 (4th Cir. 1978), aff'g 446 F.Supp. 361 (E.D.Va. 1977); Rule v. Ironworkers Local 396, 568 F.2d 558, 565 n. 10 (8th Cir. 1977); Smith v. Troyan, 520 F.2d 492, 497-98 (6th Cir. 1975); Lee v. City of Richmond, 456 F.Supp. 756, 771 (E.D.Va.1978); cf. Kirkland v. New York State Department of Correctional Services, 374 F.Supp. 1361, 1370 (S.D.N.Y.1974), aff'd in relevant part, 520 F.2d 420, 425 (2d Cir. 1975) (showing that overall examination procedure has disparate results cannot be rebutted by fragmenting process and showing no disparate results in separate parts); Vulcan Society of New York City Fire Department, Inc. v. Civil Service Commission, 360 F.Supp. 1265, 1272 (S.D.N.Y.), aff'd, 490 F.2d 387 (2d Cir. 1973) (same). Contra, Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1372-73 (5th Cir. 1974); League of United Latin American Citizens v. City of Santa Ana, 410 F.Supp. 873, 894-95 (C.D.Cal.1976).

The...