Davis v. City and County of San Francisco
| Decision Date | 06 October 1992 |
| Docket Number | No. 91-15113,91-15113 |
| Parties | 61 Fair Empl.Prac.Cas. (BNA) 440, 60 Empl. Prac. Dec. P 41,810, 61 USLW 2192 Fontaine DAVIS; Eric H. Washington; Jerilyn North, Jimmie Braden, Audrey 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, et al., Plaintiffs-Appellees, v. CITY AND COUNTY of SAN FRANCISCO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
George A. Riley, Deputy City Atty., San Francisco, Cal., for defendant-appellant.
Richard M. Pearl, San Francisco, Cal., for plaintiffs-appellees.
Appeal from the United States District Court for the Northern District of California.
Before GOODWIN, FLETCHER and BRUNETTI, Circuit Judges.
On May 20, 1988, the City of San Francisco (the City) and a class of female and minority plaintiffs filed a consent decree in settlement of the plaintiffs' claims that the San Francisco Fire Department (SFFD) had long engaged in various acts of employment discrimination. The decree, which received the approval of both the district court and this Court, fully resolved the plaintiffs' challenges to the SFFD's hiring and promotional practices. It left open two questions, however, which form the basis for this appeal.
The decree stated that "[t]he issues of the costs and attorneys' fees due to counsel for the parties to this action shall be heard and resolved by the [district] Court...." The plaintiffs subsequently moved the district court for an award of fees and costs pursuant to 42 U.S.C. § 2000e-5(k) (1982). The City, while not contesting the plaintiffs' entitlement to fees, appeals the amount of fees and costs awarded as unreasonable.
The decree also left unresolved the appropriate rate of interest on an award of backpay to six firefighters whom it provided would be promoted retroactively to the position of lieutenant. The district court subsequently determined that interest was payable by the City at a floating rate equivalent to ninety percent of the prime rate for each calendar quarter in which backpay was owing. The City appeals this rate as excessive.
The SFFD has long been subject to suits alleging discrimination in its hiring and promotion of firefighters. In 1970, when only four of the Department's eighteen hundred firefighters were black, the National Association for the Advancement of Colored People filed suit in federal district court challenging the validity of the entry-level hiring test used by the Department. After a series of rulings by the district court that the test and its subsequent modifications by the City had an adverse impact on blacks and were not job-related, see Western Addition Community Org. v. Alioto, 360 F.Supp. 733, 739 (N.D.Cal.1973) (WACO III ); Western Addition Community Org. v. Alioto, 340 F.Supp. 1351, 1356 (N.D.Cal.1972) (WACO II ); Western Addition Community Org. v. Alioto, 330 F.Supp. 536 (N.D.Cal.1971) (WACO I ), a consent decree was entered into governing the manner in which various components of a hiring test developed by the SFFD in 1976 were to be used. WACO V, No. C-70-1335 WTS, slip op. at 9-10 . The decree contained no provisions for race-conscious relief and apparently did not eliminate the disparate impact of the Department's hiring procedures. See United States v. City and County of San Francisco, 696 F.Supp. 1287, 1293 (N.D.Cal.1988). By its terms the decree expired in 1982.
In 1980, a group of black firefighters filed a complaint with the California Department of Fair Employment and Housing, alleging that an examination instituted The federal litigation focused on a revised hiring test introduced by the SFFD in 1982 and a new promotional test instituted in 1984. The United States and the present appellees brought separate suits in federal district court in 1984 challenging the validity of those tests under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1982), and the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. § 6701 et seq. (repealed 1986). The United States sought relief for black, Asian and Hispanic applicants and firefighters, while the present appellees originally sued on behalf of female and black applicants and firefighters and ultimately came to represent Hispanic and Asian applicants and firefighters as well. While the United States challenged only the validity of the SFFD's hiring and promotional tests, the appellees added claims for racial harassment. Unlike the United States, furthermore, they sought race and gender conscious relief. The two actions were consolidated in 1986.
by the SFFD in 1978 to determine promotions to the position of lieutenant discriminated on the basis of race in violation of California's Fair Employment and Housing Act, Cal.Gov't.Code §§ 12900 et seq. (West 1980). The California Fair Employment and Housing Commission determined that the examination had an adverse impact on blacks and was not job-related. The California Court of Appeals upheld this ruling but deferred any relief pending the outcome of a new round of federal litigation. City and County of San Francisco v. Fair Employment and Housing Commission, 191 Cal.App.3d 976, 236 Cal.Rptr. 716 (1987)
In October 1986, one week before trial was to commence, the City declared that it would no longer defend the validity of the SFFD's employment tests. The district court then entered summary judgment for the United States and the appellees and issued a permanent injunction prohibiting the SFFD's use of tests with an adverse impact on women or minorities where those tests could not be justified by business necessity. The injunction also required the institution of recruitment and training programs for female and minority firefighters and the development of new employment tests by the SFFD that would conform to the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607.1 et seq. (1991) (Uniform Guidelines). Finally, the injunction provided that all members of the SFFD enjoying a rank higher than lieutenant would be held personally responsible for the implementation of the SFFD's anti-harassment policy, and mandated the development of new procedures for hearing claims of harassment. United States v. City and County of San Francisco, 656 F.Supp. 276, 289-90 (N.D.Cal.1987).
The injunction did not address the present appellees' claim that the SFFD's repeated failure to develop employment tests free of disparate impact warranted race and sex conscious relief. The consent decree entered into between the appellees and the City, and opposed by the United States, resolves this issue. The decree establishes long term goals of forty percent minority and ten percent female representation in the SFFD's ranks (the SFFD did not hire its first female firefighter until August of 1987). In order to attain these goals, the decree provides that of the firefighters hired over its seven year lifespan, at least nineteen percent should be Asian, ten percent should be black, and eleven percent should be Hispanic. Altogether, fifty-five percent of the firefighters hired are to be members of a minority group, and ten percent of the firefighters hired are to be female. The decree envisions that five hundred firefighters will be hired during its lifespan.
The decree provides, furthermore, for specific recruitment efforts to attract females and members of minority groups to the SFFD. It requires that any tests utilized by the SFFD must conform to the Uniform Guidelines. And it states that any failure by the SFFD to meet the female and minority hiring goals it sets forth must be justified to the district court.
The decree also addresses the question of promotions and provides for the retroactive elevation of six named black firefighters to the rank of lieutenant, with backpay awarded from March 9, 1979, the date of As noted above, the decree left open the issue of attorneys' fees. Subsequent to the filing of the decree, the appellees moved the district court for an award of fees pursuant to 42 U.S.C. § 2000e-5(k), which provides that in Title VII actions "the court, in its discretion, may allow the prevailing party, other than the [EEOC] or the United States, a reasonable attorney's fee...." The City did not contest the appellees' status as prevailing parties, but vigorously challenged the amount of fees they requested. It asserted that the number of hours appellees' counsel claimed to have expended on the litigation was unreasonable, that the hourly rates claimed were excessive, that certain costs claimed by the appellees including expert witness fees were not compensable, and that the appellees were not entitled to an enhancement of their fee award based on the contingent nature of the case and the high degree of success obtained.
their promotion. The decree further declares that the proportion of minority and female firefighters promoted to officers' positions should come to resemble the proportion of qualified women and minorities applying for such positions. In addition to the named black firefighters, it provides for the elevation of eleven black, eight Hispanic and eight Asian firefighters to the rank of lieutenant within sixty days of the filing of the decree, and declares that twelve of an additional forty-eight individuals to be promoted should be members of minority groups. The decree establishes procedures, finally, for adjudicating claims of harassment and discrimination on the job. The district court approved the decree in an exhaustive opinion, United States v. City and County of San Francisco, 696 F.Supp. 1287 (N.D.Cal.1988), which was affirmed by a panel of this Court. Davis v. City and County of San
...To continue reading
Request your trial
-
Claps v. Moliterno Stone Sales, Inc.
...959 F.2d 594, 598 (6th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 86, 121 L.Ed.2d 49 (1992). But see Davis v. San Francisco, 976 F.2d 1536, 1549-56 (9th Cir. 1992) (applying retroactively the portion of the statute governing expert witness fees). Although the 1991 Act cannot be given retr......
-
Robins v. Scholastic Book Fairs
...the attorney charges a fixed or contingent fee cannot be a factor in determining a reasonable rate. Davis v. City and County of San Francisco, 976 F.2d 1536, 1549 (9th Cir.1992), vacated in part on other grounds, 984 F.2d 345 (9th Recently, this Court noted that $200-$250 rates charged by c......
-
Schultz v. Amick
...828 F.2d 1260, 1271 (8th Cir.1987)[, cert. denied, 485 U.S. 1021, 108 S.Ct. 1574, 99 L.Ed.2d 889 (1988)]; Davis v. City and County of San Francisco, 976 F.2d 1536, 1544 (9th Cir.1992); Johnson v. University College, 706 F.2d 1205, 1208 (11th Cir.), cert. denied, 464 U.S. 994, 104 S.Ct. 489,......
-
Taylor v. Cent. Pa. Drug & Alcohol Serv. Corp.
...on the same basis. See, e.g., Ford v. Alfaro, 785 F.2d 835, 842 (9th Cir.1986), modified in part by, Davis v. City and County of San Francisco, 976 F.2d 1536, 1557-58 (9th Cir.1992); and Northrop Corp. v. Triad International Marketing S.A., 842 F.2d 1154, 1155 n. 2 (9th Cir.1988) (In dicta,......
-
Attorneys' fees
...and revised materials contain, for the most part, sufficient detail.” Id., citing Davis v. City and County of San Francisco , 976 F.2d 1536, 1542 (9 th Cir. 1992) (holding that the district court did not abuse its discretion in basing a fee award in part on reconstructed time records), vaca......
-
Motions
...., 526 F.2d 67, 70 (9th Cir. 1975), [ certiorari denied, 425 U.S. 951, a brogated in part, Davis v. City and County of San Francisco , 976 F.2d 1536 (9th Cir. 1992)], that are not subsumed within the initial calculation of the lodestar. D’Emanuele, 904 F.2d at 1383 (citation omitted). In ca......
-
Table of Cases
...v. Chater , 952 F. Supp. 561, 565 (N.D. Ill. 1996), §§ 203.2, 204.1, 301.2, 312.9, 1301.2 Davis v. City and County of San Francisco, 976 F.2d 1536, 1542 (9th Cir. 1992), § 702.11 Davis v. Department of Health & Human Servs ., 15 F.3d 1084 (Table), No. 92-16494 (9th Cir. 1994), § 1107.14 Dav......
-
Table of cases
...v. Chater , 952 F. Supp. 561, 565 (N.D. Ill. 1996), §§ 203.2, 204.1, 301.2, 312.9, 1301.2 Davis v. City and County of San Francisco, 976 F.2d 1536, 1542 (9th Cir. 1992), § 702.11 Davis v. Department of Health & Human Servs ., 15 F.3d 1084 (Table), No. 92-16494 (9th Cir. 1994), § 1107.14 Dav......