Chicano Police Officer's Ass'n v. Stover
| Citation | 526 F.2d 431 |
| Decision Date | 20 November 1975 |
| Docket Number | No. 74-1169.,74-1169. |
| Parties | CHICANO POLICE OFFICER'S ASSOCIATION et al., Plaintiffs-Appellants, v. Robert V. STOVER, Chief of Police, Albuquerque Police Department, et al., Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
COPYRIGHT MATERIAL OMITTED
Ray M. Vargas, Albuquerque, N. M. (Richard C. Bosson, Albuquerque, N. M., Vilma S. Martinez, Sanford Jay Rosen and Drucilla S. Ramey, San Francisco, Cal., and Joseph R. Grodin, San Francisco, Cal., of counsel, University of California Hastings College of Law, on the brief), for plaintiffs-appellants.
William S. Dixon, Albuquerque, N. M. (Frank L. Horan, City Atty., and Rodey, Dickason, Sloan, Akin & Robb, P.S., and Duane C. Gilkey, Albuquerque, N. M., on the brief), for defendants-appellees.
Before SETH, HOLLOWAY and DOYLE, Circuit Judges.
Rehearing and Rehearing En Banc Denied January 14, 1976.
This civil rights suit challenges both the hiring and promotion procedures of the Albuquerque, New Mexico, Police Department (the Department) as racially discriminatory against Spanish-speaking and surnamed Americans. The plaintiffs are twelve Chicano employees of the Department and the Chicano Police Officer's Association (the Association).1 The defendant Stover is the Chief of Police of the Department and the other defendants are the City Commissioners and City Manager of Albuquerque.
The complaint essentially alleged that the defendants had deprived plaintiffs, under color of State law, of rights, privileges and immunities secured by the constitution and laws of the United States in violation of 42 U.S.C.A. §§ 1981, 1983 and 1985 (R. I, 9). The complaint averred that defendants employed hiring and promotion procedures including tests and other job criteria which are not substantially related to job performance and have the effect of excluding a disproportionate number of Chicanos from employment and promotions in the Department, thus violating rights secured by the equal protection clause; by 42 U.S.C.A. §§ 1981, 1983 and 1985, and other statutes. Jurisdiction was claimed under 28 U.S.C.A. § 1343(3) and (4), and declaratory and injunctive relief were sought.
After presentation of the plaintiffs' evidence, and that of two defense witnesses heard out of turn, defendants moved to dismiss under Rule 41(b), F.R.Civ.P., on the ground that plaintiffs had shown no right to relief. The trial court made written findings and conclusions adverse to the plaintiffs and dismissed.
On appeal plaintiffs argue principally that the trial court erred in that:
We turn to the findings and conclusions of the trial court which are of critical importance.
The trial court made these findings: The Chicano Police Officer's Organization is an unincorporated association composed chiefly of Spanish-speaking or Spanish surnamed police officers in the Albuquerque Police Department. Its membership is not limited to Spanish-speaking or Spanish surnamed officers and not all such officers are members of the Association. The Association seeks to achieve equal opportunity for Spanish-speaking or surnamed Americans in recruitment and promotions within the Department, and to discourage discrimination.2
The court found that no member of the Association and no plaintiff has been denied employment with the Department.
The court found further that police officers must be high school graduates or have obtained a general equivalency degree. The Department's General Order 71-23, issued December 17, 1971, requires that all officers to be promoted after January 1, 1972, must have completed at least six semester hours of college accredited study. Those to be promoted during 1974 were required to have completed twelve semester hours, and an additional six hours credit per year is required until a bachelor's degree is attained.
Promotional examinations were held on June 2, 1973. Four individual plaintiffs were ineligible to take the examination because they lacked the six hours of college credit. The court found, however, that there was ample notice and opportunity for completion of the six hour requirement prior to its application precluding officers from taking the examination. There had been an incentive pay of $1 per month for each hour of college credit, and from April, 1973, to June, 1973, 208 officers of the Department received incentive pay. Fifty-three of approximately seventy Spanish-speaking or surnamed officers received incentive pay under the program. 155 of approximately 305 Anglo officers received incentive pay. It was found that this demonstrates that 75% of the Spanish-speaking/surnamed officers attended college during the period and that the educational requirement did not erect a barrier for a minority group and that the requirement did not have a discriminatory effect on Chicanos as a group.
The results of the June 2, 1973, examination were summarized by the court as follows:
A. Sergeant's Examination
1) Total Examinees 90
Passing Examinees 17
Percentage Passing 19%
2) Spanish-surnamed
Examinees 26
Passing Examinees 3
Percentage Passing 11.5%
B. Lieutenant's Examination
1) Total Examinees 44
Passing Examinees 7
Percentage Passing 16%
2) Spanish-surnamed
Examinees 7
Passing Examinees 1
Percentage Passing 14%
3) Non-minority
Examinees 36
Passing Examinees 5
Percentage Passing 14%
No Spanish-surnamed Americans took the June 2, 1973, examination for captain. The examinations were achievement tests and their subject matter was taken from tests on police administration, management, psychology, leadership and planning. Members of the Chicanos Police Officer's Association formed a study group. Some were assigned responsibility for outlining portions of the assigned texts. Several officers read some but not all of the texts and relied on outlines for the material they did not read. The June 2, 1973, examination had not been used before and is not to be used in the future.
The court concluded that no plaintiff has standing to contest the hiring policies of the Department. The injury alleged by the Association and one individual plaintiff is that development of the power to negotiate for the betterment of the position of Chicanos is stifled by policies perpetuating under-representation of the Spanish minority on the police force. It was concluded, however, that the relief sought would not directly benefit the Association, and that the Association and its members have only an indirect stake in the outcome and are not entitled to assert the rights of those directly affected and not present in the suit.
The court concluded that the plaintiffs have failed to establish prima facie that the college educational requirement adversely affects minority groups. It concluded that the plaintiffs failed to show that the promotional examinations caused a statistically significant discriminatory impact on Spanish-speaking/surnamed officers. The overall pass ratio for each examination was small. 19 percent passed the sergeant's examination; 16 percent passed the lieutenant's examination. The ratio of Spanish-surnamed passing to non-minority passing was one to one on the lieutenant's examination and slightly less than two to one on the sergeant's examination.
The 11 percent pass rate for Spanish-speaking/surnamed examinees for sergeant is arrived at from a small sample, since only 26 Spanish-speaking/surnamed were eligible to take the examination. Three of the 26 passed. The trial court held that the 11 percent figure is not stable or highly reliable. A variance of two Spanish individuals passing or failing would yield ratios between five to one and one to one.
The court concluded that any significance the two to one ratio might have is undermined by the testimony. There was no showing that any other examinees were able to pass with equal or less preparation. Thus, the court concluded that it cannot be said that the disparity in pass rate is statistically significant.
The court concluded further that the plaintiffs have shown no right to relief. It was observed, however, that had they made a prima facie showing of a discriminatory impact of the tests, the defendants probably could not have carried their burden of persuasion; that defendants need to improve recruitment and promotion policies to alleviate under-representation of the Spanish minority at all levels of the Department; that the heavy reliance placed on the achievement type test seems inequitable and misplaced; and that the test does not go far enough in showing performance, leadership and supervisory ability.
The court said further that the value and reliability of the present promotional scheme was dubious, but that the evidence has not shown the significant adverse impact on minorities which is necessary to support an injunction or imposition of a court-ordered remedial plan. And the court stated that immediate steps should be taken to solve these problems and eliminate "... what could become a breeding ground for future litigation."
On these findings and conclusions the court dismissed with prejudice.
First, plaintiffs argue that the trial court erred in holding that no plaintiff has standing to challenge the hiring policies of the...
To continue reading
Request your trial
-
People Organized for Welfare and Employment Rights (P.O.W.E.R.) v. Thompson
...an organization's standing to sue by saying that it has standing if it alleges an injury to itself, as in Chicano Police Officer's Ass'n v. Stover, 526 F.2d 431, 436 (10th Cir.1975), vacated on other grounds, 426 U.S. 944, 96 S.Ct. 3161, 49 L.Ed.2d 1181 (1976), or (with certain qualificatio......
-
Clemes v. Del Norte County Unified School Dist., C-93-1912 MHP (ENE).
...loss of associational benefits that would come from a racially integrated workplace. Id. at 469. See also Chicano Police Officers Ass'n v. Stover, 526 F.2d 431, 437 (10th Cir.1975) (indirect injuries stemming from discrimination against others can provide standing under Title VII), vacated ......
-
Davis v. Los Angeles County
...the defendants' hiring and promotion policies "did not violate the Constitution." Id. (emphasis added).In Chicano Police Officer's Ass'n v. Stover, 526 F.2d 431 (10th Cir. 1975), an employment discrimination action alleging violations of the Equal Protection Clause, §§ 1981, 1983 and 1985, ......
-
Ortiz v. Bank of America
...plaintiffs in alleging "racial and ethnic discrimination" had stated a cause of action under section 1981); Chicano Police Officer's Assoc. v. Stover, 526 F.2d 431 (10th Cir. 1975) vacated on other grounds, 426 U.S. 944, 96 S.Ct. 3161, 49 L.Ed.2d 1181 (1976); see also Hernandez v. Erlenbusc......