Cota v. Tucson Police Dept.

• Decision Date: 05 February 1992
• Docket Number: No. CIV. 85-544-TUC-WDB.,CIV. 85-544-TUC-WDB.
• Citation: 783 F. Supp. 458
• Parties: Juanita COTA, Claude D. Ralls, Joe Godoy, Rosemary Pacheco, Lucille C. Valdez, Berta Valenzuela, and Latin American Law Enforcement Association ("LALEA"), Plaintiffs, v. TUCSON POLICE DEPARTMENT, City of Tucson, a political subdivision of the State of Arizona; and the Civil Service of the City of Tucson, Defendants. Rudy MONTENEGRO, Intervenor, v. TUCSON POLICE DEPARTMENT, City of Tucson, a political subdivision of the State of Arizona; and the Civil Service of the City of Tucson, Defendants.
• Court: U.S. District Court — District of Arizona

783 F. Supp. 458

Juanita COTA, Claude D. Ralls, Joe Godoy, Rosemary Pacheco, Lucille C. Valdez, Berta Valenzuela, and Latin American Law Enforcement Association ("LALEA"), Plaintiffs, v. TUCSON POLICE DEPARTMENT, City of Tucson, a political subdivision of the State of Arizona; and the Civil Service of the City of Tucson, Defendants.

Rudy MONTENEGRO, Intervenor, v. TUCSON POLICE DEPARTMENT, City of Tucson, a political subdivision of the State of Arizona; and the Civil Service of the City of Tucson, Defendants.

No. CIV. 85-544-TUC-WDB.

United States District Court, D. Arizona.

January 21, 1992.

Amended February 5, 1992.

Richard M. Martinez, E. Richard Larson, Esteban Lizardo, Mexican American Legal Defense and Educ. Fund, Los Angeles, Cal., for plaintiffs.

Law Offices of Gabroy, Rollman & Bossé, P.C., John Gabroy, Lyle D. Aldridge, Tucson, Ariz., for defendants.

OPINION AND ORDER

STATEMENT OF THE CASE

WILLIAM D. BROWNING, Chief Judge.

This case involves individual and classwide claims by Plaintiffs, Hispanic Spanish-speaking employees, civilian and commissioned, alleging that the practices of the Tucson Police Department ("TPD") are discriminatory in that TPD requires its Hispanic Spanish-speaking employees to use their Spanish-speaking skills on the job without additional compensation therefor.¹ They also complain that there is no procedure to ascertain the degree of proficiency that they possess, or need, to perform their jobs, and that TPD does not provide training to enhance the Spanish-speaking skills of its Hispanic employees. There are no claims of discriminatory hiring practices. At trial, the Court repeatedly reminded the parties that this is not a lawsuit to determine how well TPD fulfills its obligation to the public. Rather, this case involves TPD's treatment of its Hispanic employees, irrespective of any impact on the public.

The trial, to the Court, was directed to these basic and general issues and was bifurcated, leaving for a later trial, if necessary, questions concerning damages and remedies.

The claims arise under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 (1988), 42 U.S.C. §§ 1981 & 1983 (1988), and the Arizona Civil Rights Act, Ariz.Rev.Stat.Ann. §§ 41-1401-1484 (1985 & Supp.1990) ("ACRA").

This matter occupied 31 trial days. The parties introduced 430 exhibits and the Court heard testimony from 40 witnesses. Much of the evidence was received in the form of an offer of proof. Because the case is important and involves deeply held beliefs, the Court received much cumulative testimony.

FINDINGS OF FACT

A. Facts Deemed Admitted

On April 25, 1991, prior to the commencement of trial, the Court entered a ruling that certain facts would be deemed admitted by virtue of Plaintiffs' failure to respond to TPD's October 9, 1990 Request for Admissions. In light of this and previous dilatory responses to discovery requests, the Court found that Plaintiffs' discovery violation warranted the sanction of deeming these facts admitted. On July 9, 1991, during trial, Plaintiffs moved the Court to reconsider its ruling. The Court took the matter under advisement and now declines to reverse its earlier decision.

It should also be noted that these facts were not seriously contested in the Pretrial Order prepared and filed jointly by the parties.

The facts deemed admitted are that during the relevant time period, from June 12, 1983 to the present:

1. No class member has been denied a promotion because of his or her ability to speak Spanish or because of national origin (Hispanic);² 2. No class member has been denied a pay increase because of his or her ability to speak Spanish or because of national origin (Hispanic);

3. No class member has been denied a special assignment, nor denied any requested assignment other than a special assignment, because of his or her ability to speak Spanish or because of national origin (Hispanic);

4. No class member has been denied any requested training because of his or her ability to speak Spanish or because of national origin (Hispanic);

5. No class member has been denied any employee benefits because of his or her ability to speak Spanish or because of national origin (Hispanic);

6. No class member has been given an involuntary assignment because of his or her ability to speak Spanish or because of national origin (Hispanic);

7. No class member has been involuntarily transferred between squads or teams because of his or her ability to speak Spanish or because of national origin (Hispanic);

8. No class member has been disciplined because of his or her ability to speak Spanish or because of national origin (Hispanic);

9. No class member has been disciplined for refusing to speak Spanish or because of national origin (Hispanic);

10. During the time period to which this action is applicable, no class member has been subject to discrimination with respect to their terms and conditions of employment.

B. Identification of Spanish Speakers

Spanish speakers are identified by a process of self-assessment as a result of TPD's request that employees volunteer information on their Spanish-speaking skills and on the degree of proficiency that they believe themselves to hold. Once identified, TPD's dispatcher computer carries a "B" (for bilingual) in the field next to their names. Overall, the self-assessments indicate that 14% of TPD's non-Hispanic employees speak Spanish while 78% of the Hispanics speak Spanish. This latter fact was not a revelation and closely tracks the percentage of Spanish speakers in the general Tucson population. There was no credible evidence that non-Hispanics fail to list Spanish-speaking ability any more frequently than Hispanics fail to do so.

It was undisputed that TPD makes no assessment, study, or other survey to independently determine the Spanish-speaking skills held by its employees.

C. Requirement of Spanish Speaking

Plaintiffs complain that TPD's requirement of Spanish speaking stems from its discriminatory assumption that its Hispanic employees are able and willing to speak Spanish well enough to perform police work. Other than speculation, however, there was no credible evidence that such an assumption exists. The evidence showed that TPD requires only that its employees speak Spanish when necessary, and at the level of proficiency that they possess. No person was or is expected or required to meet any departmentally imposed standard of Spanish language skill.

In one department-wide survey of all things that the respondents (employees) would change if they could, the requirement that Spanish be spoken was never noted.³ There was testimony that if an officer complains of having to speak Spanish, he or she is relieved of that obligation. The Court heard affirmative testimony that persons who so complained had been relieved of Spanish-speaking obligations.

Several witnesses testified that their assigned duties can be difficult in English, but often are more difficult (and at times impossible), to perform in Spanish. The increased difficulty or impossibility, they testified, is due to their inability to speak Spanish at the advanced level required to satisfactorily perform police work. For example, a number of witnesses testified that because of the highly technical (police function) language involved, it is difficult (if not impossible), to complete the various tests that must be performed on persons suspected of driving under the influence of alcohol. Consequently, these witnesses testified that legitimate suspects occasionally are released without being charged because the language barrier prevents adequate investigation. Despite this testimony, the evidence taken as a whole indicated that TPD satisfactorily executes its mission by using the available resources.

It is clear from the evidence that more Hispanics speak Spanish than non-Hispanics. It is also clear that not all Hispanics speak Spanish and not all Hispanics speak Spanish with the same degree of fluency. While quite a number are excellent Spanish speakers and translators, some are only marginally able to speak the language. The evidence revealed that TPD efficiently accomplishes its mission, regardless of the level of Spanish used. There was no evidence of complaints from the public, local prosecutors, or the courts, as a result of inadequate Spanish speaking by TPD employees.

Despite the requirement that Spanish be spoken by those who possess the skill, the evidence disclosed that an inadequacy on the part of an Hispanic to speak Spanish in no way adversely impacts that person's promotion, assignment, pay, or the like. The evidence disclosed that there is no requirement that any person, Hispanic or otherwise, is required to attain, improve, or maintain any level of proficiency in the Spanish language.

Some witnesses testified that even if there was no requirement that Spanish be used on the job, they would continue to do so. Others testified that they would not. However, all of the witnesses agreed that, to some extent, they use Spanish in off-duty contacts with family and friends. Many watch Spanish television programs, listen to Spanish radio broadcasts, and read newspapers, books, and magazines printed in Spanish.

One witness testified that he previously belonged to the Nogales (a city in Santa Cruz County, Arizona, abutting the United States border with Mexico) Police Force. He testified that, despite the lack of a rule that they speak Spanish on the job, and although they are not compensated therefor, all of the Spanish-speaking officers on that police force do so. Some other cities, it was shown, provide additional compensation for the use of Spanish.

D. Necessity of Spanish Speaking

Several Plaintiffs testified that there exists a necessity of Spanish speaking to accommodate the monolingual population of Spanish speakers in Tucson, whether they be resident or transient. However, Plaintiffs asserted that TPD...