City and County of San Francisco v. Fair Employment & Housing Com.

• Citation: 191 Cal.App.3d 976,236 Cal.Rptr. 716
• Decision Date: 07 May 1987
• Docket Number: AFL-CIO
• Court: California Court of Appeals
• Parties: , 50 Fair Empl.Prac.Cas. (BNA) 930 CITY AND COUNTY OF SAN FRANCISCO; San Francisco Firefighters Local 798, International Association of Firefighters,; Gerald W. Trainor, et al., Plaintiffs, Respondents and Cross-Appellants, v. FAIR EMPLOYMENT AND HOUSING COMMISSION, State of California; Department of Fair Employment and Housing; Joanne W. Lewis, Defendants, Appellants and Cross-Respondents. A024145.

Page 716

236 Cal.Rptr. 716

191 Cal.App.3d 976, 50 Fair Empl.Prac.Cas. (BNA) 930

CITY AND COUNTY OF SAN FRANCISCO; San Francisco Firefighters Local 798, International Association of Firefighters, AFL-CIO; Gerald W. Trainor, et al., Plaintiffs, Respondents and Cross-Appellants, v. FAIR EMPLOYMENT AND HOUSING COMMISSION, State of California; Department of Fair Employment and Housing; Joanne W. Lewis, Defendants, Appellants and Cross-Respondents.

A024145.

Court of Appeal, First District, Division 5, California.

May 7, 1987.

Review Dismissed Aug. 13, 1987.

John K. Van de Kamp, State Atty. Gen., Andrea Sheridan Ordin, Chief Asst. Atty. Gen., Marian M. Johnston, Deputy Atty. Gen., San Francisco, for Fair Employment and Housing Com'n, State of Cal.

John R. Castello, Chief Counsel, Anne D. Brandon, Directing Atty., Charlotte Fishman, Staff Atty., Dept. of Fair Employment and Housing, San Francisco, for Dept. of Fair Employment and Housing, and Joanne A. Lewis.

Louise H. Renne, City Atty., Phyllis Walker, Deputy City Atty., San Francisco, for City and County of San Francisco.

Duane W. Reno, Davis, Reno & Courtney, San Francisco, for San Francisco Firefighters, Local 798, IAFF, AFL-CIO.

Christopher D. Burdick, Carroll, Burdick & McDonough, San Francisco, for Gerald W. Trainor, et al.

Stephen L. Garber and Eva Jefferson Patterson of San Francisco Lawyers Committee for Urban Affairs, San Francisco, William C. McNeill, III, of Pearl, McNeill, Gillespie & Standish, Oakland, for amicus curiae.

HANING, Associate Justice.

This action arises from an accusation filed December 29, 1980, by the Director of the California Department of Fair Employment and Housing (Department) accusing the City and County of San Francisco (City) of racial discrimination against Black firefighters in the administration and implementation of the 1978 promotional examination for the position of H-20 lieutenant. After a lengthy administrative proceeding the Fair Employment and Housing Commission (FEHC) determined that the City discriminated against Black firefighters in violation of California's Fair Employment and Housing Act (Gov.Code, § 12900 et seq.) by using a promotional examination with an adverse impact on Blacks which was not proven to be job related. The City sought a writ of administrative mandamus to relieve it from FEHC's decision and remedial order. ¹ (Code Civ.Proc., § 1094.5; Gov.Code, § 11523.) The superior court agreed the examination had an adverse impact on Black candidates for promotion, but disagreed with FEHC's determination that the City failed to prove the examination's validity. This appeal is taken from the superior court's grant of administrative mandamus vacating FEHC's decision. ²

In 1978 the City's Civil Service Commission prepared a new written examination for the position of H-20 lieutenant. The position of H-20 lieutenant is the first promotive rank above entry-level H-2 firefighter, and any H-2 firefighter in the San Francisco Fire Department who had been in that rank for one year was eligible to take the H-20 lieutenant's promotional examination.

On October 14, 1978, 577 firefighters took the examination. Of these 577 examinees, 54 (or 9.35 percent) were Hispanic, 33 (or 5.7 percent) were Black, 14 (or 2.42 percent) were other minorities, and 476 (or 82.5 percent) were White. The examination consisted of 149 multiple choice questions, 34 fill-in questions, 2 case problems and one written communications problem. It was essentially a job knowledge test covering, among other topics, firefighting strategy and technique, arson detection, equipment maintenance, rescue and emergency medical procedures, and report writing. The test score was the exclusive means of determining which applicants would be promoted to lieutenant.

A ranked eligibility list was prepared based on the results of the examination, listing the 250 highest scoring firefighters in descending order of their test scores. Of the 250 persons on the eligibility list, 226 were White, 17 were Hispanic, 6 were Black, and one was a member of another minority group. As these figures reflect, the pass rate for White firefighters (47.8 percent) was nearly two and one-half times that for Black firefighters (18.18 percent). ³

An accusation was filed by the Director of the Department on December 29, 1980, accusing the City and various City officials of discriminating against Black firefighters in promotional opportunities in violation of California's Fair Employment and Housing Act. ⁴ (See Gov.Code, §§ 12921, 12940.) Beginning June 29, 1981, FEHC commenced hearings before an administrative law judge to hear the Department's complaint. After 11 days of testimony the administrative law judge filed his "Proposed Decision" with FEHC in which he recommended dismissal of the Department's accusation. The administrative law judge concluded "the [e]xamination was job related and content valid to a degree far in excess of that established as adequate under the case law governing the subject." The FEHC decided not to adopt the proposed decision of the administrative law judge and elected to decide the case itself on the administrative record. ⁵ (Gov.Code, § 11517.)

The FEHC concluded the City had engaged in discrimination against Black firefighters on the basis of their race. This conclusion was based on FEHC's finding that the 1978 promotional examination for lieutenant had an adverse impact on Black firefighters and that the examination was not proven to be job-related. Specifically, FEHC determined that ability to supervise was the primary component of the job and was not tested, that higher scores were not shown to be correlated with job performance, and that there was no evidence the City had evaluated alternative procedures with less discriminatory impact. FEHC enjoined the City from making appointments from the H-20 eligibility list and ordered the immediate promotion with back pay of four Black firefighters who made the eligibility list but had not yet been promoted. FEHC further required the promotion of six Black firefighters to the position of lieutenant within one year, and the appointment of one Black for every five non-Blacks "until such time as a job-related selection procedure had been administered by [the City] for the position of H-20 lieutenant."

The City sought a writ of administrative mandamus (Code Civ.Proc., § 1094.5) claiming, inter alia, the examination was sufficiently related to a lieutenant's duties to justify any disproportionate impact it might have upon Black applicants. The superior court agreed, finding an "absence of credible evidence to support [FEHC's] finding that the examination was not job related...." The writ issued on July 5, 1983, vacating FEHC's decision and permitting permanent appointments to the rank of H-20 lieutenant from the eligibility list devised from the 1978 promotional examination. ⁶ This appeal followed.

Preliminarily, we must address Local 798's threshold argument that FEHC lacked jurisdiction to take any action on the Department's administrative complaint. This argument is based on Government Code section 12960, requiring a verified complaint to be filed with the Department within "one year from the date upon which the alleged unlawful practice" occurred. In this case, the challenged examination was administered October 14, 1978, and the resulting list of persons eligible for promotion to lieutenant was adopted by the San Francisco Civil Service Commission on March 9, 1979. However, the Director of the Department did not file her administrative complaint until June 19, 1980. Local 798 contends the "unlawful practice" complained of was the adoption of the eligibility list, therefore, FEHC was barred from proceeding on the complaint based on the one-year limitation of Government Code section 12960.

FEHC rebuts this argument claiming the "unlawful practice" is of a continuing nature, beginning with the administration of the examination and continuing through the life of the eligibility list, which expired by its own terms on March 8, 1983. Since it is undisputed the fire department made promotions from the eligibility list during the year preceding the filing of the complaint, FEHC claims the complaint was timely filed.

In support of this argument, FEHC relies on the doctrine of "continuing violations" developed in cases examining the timeliness of complaints filed with the Equal Employment Opportunity Commission to establish a violation of Title VII of the Federal Civil Rights Act of 1964 (see 42 U.S.C.A. § 2000e et seq.) As most recently explained in Williams v. Owens-Illinois, Inc. (9th Cir.1982) 665 F.2d 918, cert. den., 459 U.S. 971, 103 S.Ct. 302, 74 L.Ed.2d 283, "the relevant strain of continuing violation doctrine is that a systematic policy of discrimination is actionable even if some or all of the events evidencing its inception occurred prior to the limitations period." (Id., at p. 924.) Williams goes on to explain "[s]uch continuing violations are most likely to occur in the matter of placements or promotions. A minority employee who is not promoted in 1973, for example, and is subject to a continuing policy against promotion of minorities, may then file a timely charge in 1976, because the policy against promoting him or her continued to violate the employee's rights up to the time the charge was filed." (Ibid.; see also, Guardians Ass'n of New York City v. Civil Serv. (2d Cir.1980) 633 F.2d 232, 247-251, cert. den., 463 U.S. 1228, 103 S.Ct. 3568, 77 L.Ed.2d 1410 [police department's reliance on eligibility list reflecting performance on discriminatory examination constituted continuing violation].) We find these federal decisions reflect the same interests implicated in the instant controversy and agree the doctrine of continuing violation is relevant to the resolution of this matter. Because promotions continued to be made from the challenged eligibility list during the year...