Clady v. Los Angeles County

• Decision Date: 13 November 1985
• Docket Number: No. 83-5900,83-5900
• Citation: 770 F.2d 1421
• Parties: 38 Fair Empl.Prac.Cas. 1575, 38 Empl. Prac. Dec. P 35,516 Hershel CLADY, et al., Plaintiffs-Appellants, v. COUNTY OF LOS ANGELES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1421

770 F.2d 1421

38 Fair Empl.Prac.Cas. 1575,

38 Empl. Prac. Dec. P 35,516

Hershel CLADY, et al., Plaintiffs-Appellants, v. COUNTY OF LOS ANGELES, Defendant-Appellee.

No. 83-5900.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 1985.

Decided Sept. 10, 1985.

As Amended on Denial of Rehearing and Rehearing En Banc Nov. 13, 1985.

A. Thomas Hunt, Walter Cochran-Bond, Hunt & Cochran-Bond, Caryle W. Hall, Jr., Center for Law in the Public Interest, Los Angeles, Cal., for plaintiffs-appellants.

De Witt W. Clinton, County Counsel, Halvor S. Melom, Sr. Dep. County Counsel, Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before WRIGHT, ALARCON and NORRIS, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

This class action for damages and injunctive relief under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Secs. 2000e et seq. (Title VII), and 42 U.S.C. Sec. 1981 challenges the 1979 selection procedures used by the Los Angeles County Fire Department. Plaintiffs allege that the written examination, education requirement (ER), and physical agility test (PAT) had an adverse impact on black and Hispanic applicants. Following a seven day bench trial, the district court entered judgment for the County of Los Angeles (County). We affirm the judgment.

FACTS AND PROCEEDINGS BELOW

To understand the parties' positions, we provide in some detail the history of prior legal challenges to the County's firefighter selection procedures.

1969 Exam

In 1969, firefighter applicants were required to take a civil service examination and a physical agility test. They were ranked according to their performance on both tests. Following successful job interviews, candidates were placed on a hiring eligibility list. The County voluntarily discontinued these procedures after it was determined that they had a disparate adverse impact on minority hiring. See County of Los Angeles v. Davis, 440 U.S. 625, 627-28, 99 S.Ct. 1379, 1381-82, 59 L.Ed.2d 642 (1979) (describing 1969 selection procedures).

1972-73 Exam

Hiring procedures were changed in 1971 but court challenges prevented their implementation. The County proposed to eliminate ranking candidates by written exam score. A new written exam was designed to eliminate cultural bias. It was to be graded on a pass/fail basis.

Five hundred applicants who passed the written exam were to be selected at random for oral interviews and physical agility tests. The candidates then would be ranked for appointment to available openings.

In January 1972, the County conducted a written examination pursuant to this plan. Ninety-seven percent of the applicants passed. Before further selection was made, a lawsuit was filed charging that the random selection procedure violated civil service regulations and the county charter. The County was enjoined from further selection of firefighters.

When staffing needs became critical, the County proposed to interview the top 544 applicants based on written exam scores. Of this number, 492 were white, 10 black, and 33 Mexican-American. Minority applicants objected and this plan, too, was abandoned.

In 1973, unsuccessful black and Mexican-American firefighter applicants brought a Title VII class action against the County, its Board of Supervisors, and its Civil Service Commission challenging selection procedures used in 1969 and 1972-73. District Judge William P. Gray held for the plaintiffs, enjoining future discrimination and mandating good faith affirmative action efforts. Davis v. County of Los Angeles, 8 Fair Empl.Prac.Cas. (BNA) 239 (C.D.Cal.1973), aff'd in part, rev'd in part, 566 F.2d 1334 (9th Cir.1977), vacated as moot, 440 U.S. 625, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979).

Judge Gray found that while minorities comprised 29.1% of L.A. County, they comprised 3.3% of the firefighters. Id. at 240. Moreover, the County failed to validate the 1972 exam as predictive of job performance. Id. at 240-41. The court entered a remedial hiring order requiring that at least 20% of all new recruits be black and 20% be Mexican-American until their percentages equalled the corresponding percentages for those minorities in Los Angeles County. Id. at 242.

Between 1973 and 1979 when Judge Gray's order was in effect, all applicants who had passed the 1972 written exam were interviewed. An eligibility list was formulated using the oral interview as a ranking device. The civil service rule then in effect, the "rule of three," required the County to consider only the top three candidates on the eligible list for the next firefighter opening. Pursuant to the court order, the County permitted the first of the top three blacks and the first of the top three Mexican-American candidates to be certified as eligible for any given opening. These procedures yielded a 55% minority hiring level during this period.

Judge Gray's injunction was dissolved by the Supreme Court in March 1979. Specifically, the Court held that any discrimination from the 1972 selection procedures had been vitiated by the more than five years of hiring under Judge Gray's order. Davis, 440 U.S. at 633, 99 S.Ct. at 1384.

1979-80 Exam

When Judge Gray's order was vacated, the County developed the selection procedures at issue here. The process began by posting bulletins which announced filing dates, minimum job qualifications and examination procedures.

Persons who had filed "notice of interest" cards with the County since the last application period also were notified of openings. In addition to the recruitment efforts by County personnel, defendant contracted with an outside organization, the International Association of Firefighters, to recruit and prepare minority candidates.

Applicants had to be at least 18 years of age, but not older than 29. They had to have a high school diploma or general equivalency degree (GED). A written test was administered to all applicants who appeared on the scheduled testing date and who met these minimum requirements.

The 1979 written exam measured mechanical comprehension, spatial perception, and verbal ability. Applicants who scored less than 53 correct out of 95 multiple-choice questions were excluded from further consideration.

Next was the administration of an oral interview to all applicants qualifying on the written exam. At that time, a panel of three persons assessed the applicant's education, experience and personal suitability for performing firefighter duties.

An "eligible list" was then created which ranked the applicants who qualified on both the written test and oral interview. The relative ranking was determined by weighting the written exam score by 25% and the oral interview by 75%. A ten point credit was added for qualifying military veterans.

As openings arose, the candidates were administered a physical agility test on a pass/fail basis. It consisted of six parts, ¹ all of which had to be passed. Selection of candidates from the eligible list was made in accordance with the "rule of three" civil service requirement.

In April 1981, the "rule of three" was replaced with a new civil service rule which authorized a "banding" system for selecting candidates from an eligible list. Banding permitted discretion to select for hire any candidate whose final score was within a band of scores. ² Appointments were made from the highest ranking band until fewer than five persons were available for appointment from that band. Following appointment from the eligible list, all newly hired firefighters were required to complete a training program at the Fire Academy and a one year probation period.

Present Lawsuit

In October 1979, plaintiffs filed this lawsuit alleging a pattern of illegal discrimination by the County based on race, color and national origin. Pretrial orders limited this action to the 1979 firefighter selection procedures.

In May 1980, the court conditionally certified a plaintiff class of:

(1) All black and Mexican-American applicants for the position of firefighter with the Los Angeles County Fire Department whose applications were processed under the 1979 selection procedures and who were not hired by defendant; and

(2) All black and Mexican-American applicants for the position of firefighter with the Los Angeles County Fire Department who will apply in the future.

Plaintiffs' motion for preliminary injunction was granted in April 1981, ordering defendant to select 35% blacks and Hispanics ³ for any future classes.

Seven recruit classes, totalling 280 persons, were hired pursuant to the 1979 selection procedures. The parties stipulated that the selection rate for blacks and Hispanics was 18% for the first four classes. This rate jumped to 40% for the last three classes hired pursuant to Judge Lucas' preliminary injunction and the civil service banding rule.

The County conducted extensive validation studies covering the period from the imposition of Judge Gray's order until commencement of this action. The three studies were:

(1) Firefighter Validation Study: Los Angeles County, dated February 1980 (Study);

(2) 1979 Firefighter Validation Study Supplement: Los Angeles County, dated June 1980 (Supplement); and

(3) Analysis of the Job Relatedness of Academy and Recruit Follow-Up Examinations at the Los Angeles County Fire Department, dated June 8, 1981 (Academy Study).

The Study compared test scores from the written exam received by the first three Through its validation studies, the County sought to demonstrate a significant correlation between the exam components and important elements of firefighter training. Correlation coefficients ⁵ derived for the 1979 written test were:

recruit classes with their performance on four criteria: (1) academy scores, (2) station scores, (3) deficiency points, and (4) academy graduation. ⁴

-.7162 for deficiency points

.6435 for Academy score

.3838 for...