Davis v. City and County of San Francisco
| Decision Date | 04 December 1989 |
| Docket Number | Nos. 88-1905,88-2735,88-2884,88-15473 and 88-15474,s. 88-1905 |
| Parties | 51 Fair Empl.Prac.Cas. 1542, 52 Empl. Prac. Dec. P 39,498, 15 Fed.R.Serv.3d 782 Fontaine DAVIS, Eric H. Washington; Jerilyn North; Robert L. Demmons; Jimmie Braden; Audry Lee; Early Davis; Brandi Swanson; Susan Moorehead; Anne Young; Mary M. Carder; Theresa Rodigou; Kathleen J. Bradshaw; Patricia Murray; International Association of Black Firefighters-San Francisco Chapter; United States of America, Plaintiffs-Appellees, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, et al.; Defendants-Appellees, John W. Flaherty; Edward E. Murphy; William M. Shaughnessy; Alfred E. Smyth; Respondents-Appellants, San Francisco Firefighters, Local 798, Defendant-Intervenor-Appellant. UNITED STATES of America, Plaintiff, and Fontaine Davis, et al., Plaintiffs in Intervention/Appellees, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendant-Appellee, v. SAN FRANCISCO FIREFIGHTERS LOCAL 798, Defendant in Intervention/Appellant (Four Cases). Fontaine DAVIS, et al., Plaintiffs-Appellees, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants-Appellees, v. SAN FRANCISCO FIREFIGHTERS LOCAL 798, Defendant in Intervention/Appellant (Three Cases). Fontaine DAVIS, Plaintiff-Appellee, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants-Appellees, v. SAN FRANCISCO FIREFIGHTERS LOCAL 798, Defendant in Intervention/Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Duane W. Reno, Davis Reno & Courtney, San Francisco, Cal., for defendant in intervention-appellant.
William C. McNeill, III, Employment Law Center, San Francisco, Cal., for plaintiffs in intervention-appellees.
Louise H. Renne, City Atty., Dan Siegel, Chief of Complex Litigation, San Francisco, Cal., for defendant-appellee.
Appeal from the United States District Court for the Northern District of California.
Before FARRIS, THOMPSON and TROTT, Circuit Judges.
Appellant San Francisco Firefighters Local No. 798 ("the Union") challenges a consent decree executed by the City and County of San Francisco ("the City") and various individuals and organizations who intervened as plaintiffs in the underlying suit (hereinafter collectively referred to as "Davis"). 1 The consent decree settled Title VII class action litigation in which it was contended that the San Francisco Fire Department (the "SFFD") and the City discriminated in hiring and promoting firefighters The Union contends the decree is not fundamentally fair as required by Fed.R.Civ.P. 23(e) and its affirmative relief violates the equal protection provisions of the fourteenth amendment and Title VII. The Union also challenges the district court's denial of its motion to enjoin the City from using a new method to assign seniority to firefighters promoted pursuant to the terms of the decree. We affirm the district court's approval of the consent decree.
based on gender, race and national origin.
Prior to approving the decree, the district court granted the plaintiffs' motion for partial summary judgment and enjoined the defendants from engaging in any unlawful discrimination. This injunction ("the 1987 injunction") was included as section A of the district court's order in its judgment filed February 26, 1987. United States v. City and County of San Francisco, 656 F.Supp. 276, 289-90 (N.D.Cal.1987) ("Davis I "). 2 Thereafter, the Davis plaintiffs filed a motion in the district court seeking to hold the City in contempt for violating the 1987 injunction. On January 14, 1988, the district court held a contempt hearing. As a result of this hearing, rather than finding the City in contempt, the district court issued an unpublished injunction which it filed February 5, 1988 ("1988 injunction"). This injunction required specified officers of the SFFD to carry out and ensure compliance with a variety of measures designed to end racial and sexual discrimination and harassment at the SFFD. The union and the SFFD officers named in the 1988 injunction (collectively "Union") appeal. We affirm the district court's grant of the 1988 injunction.
We first analyze the Union's appeal of the district court's approval of the consent decree. We then consider the Union's appeal of the 1988 injunction. Finally, we consider the appellees' request for attorney fees.
The consent decree settles extensive state and federal litigation concerning claims of discrimination dating back to 1970. The district court opinion approving the decree describes in detail the legal and factual history of this litigation. United States v. City and County of San Francisco, 696 F.Supp. 1287, 1289-98 (N.D.Cal.1988) ("Davis III "). We set out a brief summary below.
Until 1955, the SFFD had hired no Black firefighters. Women had been barred from applying until 1976, and the first woman firefighter was not hired until August 1987. The NAACP and several community groups filed a federal suit in 1970 challenging entry-level hiring practices on the sole ground of racial discrimination under 42 U.S.C. Secs. 1981 and 1983. Western Addition Community Org. [WACO] v. Alioto, 330 F.Supp. 536 (N.D.Cal.1971) ("WACO I" ). The district court found the entry-level exam had a disparate impact on minorities and the City had failed to show the exam's components were job-related. Id. at 539-40.
The City unsuccessfully revised its entry-level firefighter exam. The district court invalidated the new test. It ruled that no job analysis had been conducted and therefore the court could not determine whether the exam was reasonably related to job requirements. Western Addition Community Org. [WACO] v. Alioto, 340 F.Supp. 1351, 1356 (N.D.Cal.1972) ("WACO II "). A second revision was rejected when The district court granted affirmative relief in 1973 after the City failed to either validate the entry-level test or formulate a new one. Western Addition Community Org. [WACO] v. Alioto, 369 F.Supp. 77 (N.D.Cal.1973) ("WACO IV "), appeal dismissed as moot, 514 F.2d 542 (9th Cir.) (per curiam), cert. denied, 423 U.S. 1014, 96 S.Ct. 446, 46 L.Ed.2d 385 (1975). The court ordered one-for-one White to minority hiring from the 1973 entry-level list, regardless of rank, until the list of qualified applicants--those who had answered at least fifty of the 100 written questions correctly and had passed the oral and athletic exams--was exhausted. Id. at 80-81.
the City failed to empirically validate the new test. Western Addition Community Org. [WACO] v. Alioto, 360 F.Supp. 733, 739 (N.D.Cal.1973) ("WACO III ").
The WACO litigation was settled in 1977 by a five-year consent decree which established guidelines for using exam components, included no affirmative relief and set a goal of 40% minority representation on the entry-level list. Western Addition Community Org. [WACO] v. Alioto, No. C-70-1335 WTS, slip op. at 9-10 ("WACO V ").
In 1980 Black firefighters filed complaints with the California Department of Fair Employment Housing ("DFEH"). They alleged that the 1978 exam for promotions to lieutenant was discriminatory. Following an administrative hearing, the DFEH's successor, the California Fair Employment and Housing Commission ("FEHC"), determined the 1978 exam had an adverse impact on Blacks and the City had failed to show the exam was job-related. See City and County of San Francisco v. Fair Employment and Housing Comm'n [FEHC], 191 Cal.App.3d 976, 981, 236 Cal.Rptr. 716 (1987) () ("FEHC ").
The state court of appeals concluded that the FEHC had established a prima facie case of discrimination based on a significant disparity between the passing rates of White and Black applicants. Under the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. 1607.4(D) (1988), a selection rate among minority applicants of less than 80% of the group with the highest selection rate (usually Whites) is strong evidence of adverse discrimination. On the 1978 lieutenant promotion exam, the ratio of the pass rate of Blacks to that of Whites was 38%; the pass rate ratio was 65% for Hispanics and 13% for Asian/other firefighters. Davis III, 696 F.Supp. at 1294.
The court further found that the primary component of a lieutenant's job was supervision. Consequently, the City had failed to show the exam was job-related because it did not test supervisory skills and the City had shown no correlation between exam results and performance as a lieutenant. FEHC, 191 Cal.App.3d at 990, 236 Cal.Rptr. 716.
The City administered a new entry-level test in 1982-83 and new promotion tests for lieutenant and fire inspector in 1984. Following publication of the results of the entry-level test, the United States and the plaintiff-intervenors brought separate suits against the City under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1982), and the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. Sec. 6701 et seq. (1982) (repealed 1986). 3 The actions sought relief for the City's failure to correct the effects of past discrimination and for the continued use of invalid hiring exams and practices which adversely impacted women and minorities.
The district court found the written component of the 1982-83 entry-level exam produced a passing rate of 59% for Blacks, 74% for Hispanics and 69% for Asians in relation to the passing rate for White applicants. Davis III, 696 F.Supp. at 1296. The passing rate on the second component of The district court enjoined the City's use of the entry-level test results for hiring purposes and granted partial summary judgment on the claims that the exam adversely impacted Blacks and the PAT adversely affected women. Id. In ...
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