Davis v. City of Dallas

• Decision Date: 17 March 1980
• Docket Number: No. CA 3-76-0834-G,CA 3-76-1593-G.,CA 3-76-0834-G
• Parties: Brenda DAVIS v. CITY OF DALLAS et al. Cynthia Jane DURBIN v. CITY OF DALLAS et al.
• Court: U.S. District Court — Northern District of Texas

487 F. Supp. 389

Brenda DAVIS v. CITY OF DALLAS et al.

Cynthia Jane DURBIN v. CITY OF DALLAS et al.

Nos. CA 3-76-0834-G, CA 3-76-1593-G.

United States District Court, N. D. Texas, Dallas Division.

March 17, 1980.

COPYRIGHT MATERIAL OMITTED

Kenneth Molberg, Dallas, Tex., for plaintiffs.

Lee E. Holt, City Atty., Ronald E. Deutsch, Lois C. Bacon, Asst. City Attys., by Ronald E. Deutsch, Asst. City Atty., Dallas, Tex., for defendants.

PATRICK E. HIGGINBOTHAM, District Judge.

MEMORANDUM ORDER

In its order of December 28, 1979, the court set a 30-day deadline for any motion to reconsider its finding of phase I liability as to black applicants. On January 25, 1980, the City moved for reconsideration of the court's December 18, 1979, order establishing class-wide liability, and for reopening of the case for additional testimony.

I. Reconsideration of the December 18 Order

In its motion, the City presents additional data refining some of the raw statistics previously presented by the parties as a joint exhibit. This additional evidence consists of a detailed breakdown of the reasons for rejection of all rejected applicants during the period from July 15, 1977, through January 19, 1979. For the purpose of demonstrating that the additional evidence now tendered would not have changed the result, the evidence will in this order be treated as part of the record.

The tables accompanying this order summarize the results of the applicant screening process for four relevant periods. Table 1 lists the asserted reasons for rejection, grouped roughly by subject matter. Tables 2 and 3 reflect hiring statistics for 1973-76 and 1974-76, respectively, and are taken from page 1 of Joint Exhibit 1. Table 4 covers the period from July, 1977, through November, 1978, and is based on page 2 of Joint Exhibit 1. Table 5 involves the period from July 15, 1977, through January 19, 1979, and is drawn from page 3 of Joint Exhibit 1 as supplemented by the City's proffered breakdown.

The City urges availability figures reflecting only applicants who have satisfied most of the City's employment criteria, and in particular its more objective criteria. It argues that any step in the process which impacts adversely on black applicants "is job-related and essential to the operation of the police department." The City also points to the fact that many of its criteria are state-mandated, and to the large number of applicants who voluntarily withdrew from consideration.

This argument is flawed by the City's failure to validate its facially neutral criteria. It may intuitively seem that college training, a good driving record, and absence of criminal activity or drug usage are related to good police performance, but the court cannot take judicial notice that they are manifestly related to the hiring of quality law enforcement personnel. The relationship is no more obvious than that between high school education and performance as an industrial worker, as in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), and Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). In the words of Griggs, the City has "the burden of showing that any given requirement has a manifest relationship to the employment in question." 401 U.S. at 432, 91 S.Ct. at 854.

The court is mindful that the City's burden of validation ordinarily arises only after plaintiff has established a prima facie case of "gross disparity" in the impact of the challenged requirements. In a case such as this, however, where the court must choose among competing sets of raw and refined applicant flow figures in deciding whether plaintiffs have met this initial burden, it is incumbent upon the City to justify the application of other than the raw applicant flow data.¹ The court cannot presume that the City's recruitment efforts have generated a minority applicant pool less well qualified than the general minority population. The latter group is ordinarily that with which a defendant's hiring is compared, without any reduction for those who do not meet the employer's minimum standards. See Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). This being the case, any refinement of the applicant availability figures to exclude those obviously disqualified must depend on validation of the disqualifying factors.

In the present case, the foregoing tables reveal that statistically significant "gross disparity" remains even after the application of many of the City's challenged and unvalidated hiring criteria. Tables 2 and 3 show Z-scores² of -3.25 and -4.24, respectively, using as an availability figure the pool of applicants who have passed all but the partially subjective "background investigation." Otherwise stated, the background investigation itself has a grossly disparate impact on blacks who have passed all other steps. Absent validation of the qualifications found wanting in the background check, this disparate impact is sufficient to establish liability through December 31, 1976.³

A similar result is reached when the more detailed data of Tables 4 and 5 are considered. Assuming (without of course deciding) that criteria such as criminal activity, falsification, physical agility, drug usage, and age are valid, the applicant pool which meets these requirements remain sufficient to produce gross disparity when compared with the City's actual hires.⁴ Indeed, statistically significant results are obtained even assuming that all job requirements except education are valid.⁵

The City cites Moore v. Southwestern Bell Telephone Co., 593 F.2d 607 (5th Cir. 1979), for the proposition that a small differential (e. g., 7%) between hire-to-application ratios for whites and for blacks is insufficient to constitute gross disparity. The corresponding differences in the present case range from 5.5% to 10.8%.⁶ Such a comparison may be misleading, however, in that the Moore case involved success ratios of 97% and 90%. A 7% difference between 97% and 90% ought not to be treated the same as a 7% difference between, e. g., 14% and 7%, since the latter figures evince a much larger degree of disparity. Furthermore, there is no indication that the record in Moore contained expert testimony on the calculation of statistical significance levels, which constitute a considerably more reliable measure of disparity than the comparison of raw percentages urged by the City. See Davis v. City of Dallas, 483 F.Supp. 54, 57 n.3 (N.D.Tex. 1979); Quigley v. Braniff Airways, Inc., 85 F.R.D. 74, 81 n.6 (N.D.Tex.1979); Cooper v. University of Texas at Dallas, 482 F.Supp. 187 (N.D.Tex.1979). Cf. Hazelwood School District v. United States, 433 U.S. 299, 309 n.14, 97 S.Ct. 2736, 2742 n.14, 53 L.Ed.2d 768 (1977) (difference of two to three standard deviations triggers suspicion of nondiscriminatory hypothesis); Castaneda v. Partida, 430 U.S. 482, 497 n.17, 97 S.Ct. 1272, 1281 n.17, 51 L.Ed.2d 498 (1977) (same with respect to jury selection). As the court stated in Bilingual Bicultural Coalition on Mass Media, Inc. v. F.C.C., 595 F.2d 621, 625 n.7 (D.C.Cir.1978), "percentage statistical comparisons, while often useful, are not always dispositive or even reliable."

For these reasons, the motion to reconsider the court's order of December 18, 1979, is DENIED.

II. Reopening of the Phase I Liability Trial

The City has suggested that evidence at least partially validating its requirements may be available within a short time. This allegation confirms the fact that no validation evidence was presented at trial. As the Sixth Circuit stated in Ramsey v. United Mine Workers, 481 F.2d 742, 753 (6th Cir.), cert. denied, 414 U.S. 1067, 94 S.Ct. 576, 38 L.Ed.2d 473 (1973): Generally, of course, parties to litigation must present their evidence when the case is called for trial. It is normal to wish to present additional evidence after once having lost a dispute of fact. But, of course, such a practice would lead to never-ending litigation.

Use of newly developed validation evidence in a reopened phase I trial would require substantial additional time for the preparation and presentation of revised statistical evidence related to the disparities remaining after applicant flow data have been refined to allow for validated exclusions, in addition to the delay occasioned by the validation process itself. A reopening of the case as to race discrimination would also raise questions concerning whether, in fairness to plaintiffs, the sex discrimination case ought also to be reopened. In light of these considerations, and in view of the fact that these cases have been pending for over three years with their end now only barely in sight, the court is of the opinion that defendant's motion, insofar as it seeks to reopen the case for the purpose of defeating the phase I presumption of discrimination established by the court's earlier findings, should be DENIED.

III. Use of Validation Evidence as a Defense to Injunctive Relief

Part of the relief sought in the Davis complaint includes injunctive relief against the use of racially discriminatory practices. In addition to an injunction prohibiting racially motivated disparate treatment, such relief may potentially include an injunction prohibiting the use of various unvalidated facially neutral criteria having a racially discriminatory impact. Thus the question of validation recurs, in the form of an inquiry as to whether the City may now validate previously unvalidated employment criteria in order to exclude such criteria from the reach of possible injunctive relief.

A balancing of the interests of the parties to this suit, together with the goal of judicial economy, has led the court to conclude that presentation of validation evidence to combat plaintiffs' prima facie case would be both unwise and inequitable, yet an additional set of interests — those of the people of the City of Dallas — must be weighed in formulating...