Davis v. City of Dallas

• Decision Date: 14 June 1990
• Docket Number: Civ. A. No. CA 3-76-0834-F.
• Parties: Brenda DAVIS, et al., Plaintiffs, v. CITY OF DALLAS, Defendant.
• Court: U.S. District Court — Northern District of Texas

748 F. Supp. 1165

Brenda DAVIS, et al., Plaintiffs, v. CITY OF DALLAS, Defendant.

Civ. A. No. CA 3-76-0834-F.

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

June 14, 1990.

COPYRIGHT MATERIAL OMITTED

Kenneth Molberg, Dallas, Tex., for plaintiffs.

Ana Leslie Muncy, City Atty., Craig Hopkins, Asst. City Atty., Dallas, Tex., for defendant.

MEMORANDUM OPINION AND ORDER

ROBERT W. PORTER, District Judge.

This is a Title VII employment discrimination disparate impact case. Under the basis for liability known as the "disparate impact" theory, a facially neutral hiring practice may violate Title VII, without evidence of the employer's subjective intent to discriminate, if the hiring practice produces an adverse statistical disparate impact on a group protected under Title VII. See Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989). The Supreme Court has construed Title VII to preclude "not only overt discrimination but also practices that are fair in form but discriminatory in practice." Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).¹

Phase I, the liability phase of this case is complete. During Phase I, class-wide liability was established against the City of Dallas and in favor of black plaintiffs who applied for police work with the City from August 1, 1973 through September 25, 1979. The City's facially neutral hiring criteria found to produce an adverse disparate impact on blacks included, for example, age, education, physical ability, criminal activity, falsification of the employment application, inability to understand English, poor employment history, citizenship, deviant sex, driving record, poor credit, psychological factors, and drug usage. This case is now in Phase II, the relief phase of a Title VII class action. The Court writes to address the remaining issue: damages.

I. PRIOR DECISIONS IN THIS CASE

The Court suggests reference in chronological order to the three previously reported decisions in this case which detail the facts of the case, its procedural history, and the basis for each of the Court's prior rulings: (1) the finding of liability in favor of the class, reported as Davis v. City of Dallas, 483 F.Supp. 54 (N.D.Tex.1979); (2) the denial of the City's motion to reconsider the liability finding, reported as Davis v. City of Dallas, 487 F.Supp. 389 (N.D.Tex. 1980); and (3) the Fifth Circuit's affirmance of this Court's finding of the job-relatedness of certain challenged hiring criteria, reported as Davis v. City of Dallas, 777 F.2d 205 (5th Cir.1985), cert. denied 476 U.S. 1116, 106 S.Ct. 1972, 90 L.Ed.2d 656 (1986).²

II. SUMMARY OF THE FACTS

Cynthia Jane Durbin, a white female, applied for a position as a City of Dallas police officer. The City hired Durbin, but later discharged her because of unsatisfactory performance during field training. Durbin alleged that the City discharged her because she is female. Brenda Davis also applied for a position as a City of Dallas police officer. The City rejected Davis's employment application on the ground that it had been falsified. Davis alleged that the City rejected her application because she is black.

Durbin and Davis each sued the City of Dallas alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Title VII forbids an employer to "fail or refuse to hire or to discharge any individual ... because of such individual's race, color, religion, sex or national origin." In passing Title VII, Congress announced that sex, race, religion, and national origin are irrelevant to the selection, evaluation, and compensation of employees. 42 U.S.C. sec. 2000e-2(a)(1) and (2). Yet, "the statute does not purport to limit the other qualities and characteristics that employers may take into account in making employment decisions." Price Waterhouse v. Hopkins, 490 U.S. 228, ___, 109 S.Ct. 1775, 1784, 104 L.Ed.2d 268, 280 (1989) (emphasis in original).

In July of 1978, the Court certified the Durbin case and the Davis case as class actions and later consolidated the two cases for trial. Durbin and Davis served as representatives of the class of all female and black applicants who had been denied permanent employment as City of Dallas police officers. In the trial of the liability portion of this case to the bench in September of 1979, Judge Patrick Higginbotham held that although "the City of Dallas was acting in good faith," its selection process had an adverse statistical disparate impact on black applicants — but not on female applicants — which was not negated by the City's special affirmative efforts to recruit blacks. Davis v. City of Dallas, 483 F.Supp. at 58-59.

In March of 1980, the Court denied the City's motion to reconsider the liability finding. Davis v. City of Dallas, 487 F.Supp. 389 (N.D.Tex.1980). Since the plaintiffs' complaint requested injunctive relief barring the City from using discriminatory selection criteria in hiring future police officers, the Court directed the plaintiffs to brief the issue and to submit a proposed injunction. The Court stated that "the plaintiffs are entitled to an injunction against the use of those criteria which have a racially disparate impact and are not shown by the City, through competent evidence, to have a significant and demonstrable relationship to performance as a police officer." Id. at 395.

The plaintiffs applied for injunctive relief in June of 1981. After the liability finding against the City, but before a hearing on the plaintiffs' requested injunction, the City of Dallas Police Department modified or eliminated approximately fifty of the hiring criteria challenged in the injunction as racially discriminatory, to the mutual satisfaction of the parties. The parties reached agreement on all of the challenged criteria except three.

This Court held an evidentiary hearing on plaintiffs' request for an injunction, at which hearing the issue presented was whether the three disputed hiring criteria (college credit, marijuana usage and traffic violation convictions) were job-related and therefore valid, despite an adverse disparate impact on blacks. Applying Griggs v. Duke Power Co.,³ 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the Court held that all three of the challenged criteria were job-related and, accordingly, denied injunctive relief to the plaintiffs on August 24, 1984. The three criteria challenged at the injunction hearing are known as the "subsequently validated criteria."⁴

At the injunction hearing, the plaintiffs had an opportunity to rebut the City's showing of the job-relatedness of each of the challenged criteria. The plaintiffs could rebut the defendant's showing by establishing either that (1) the hiring criteria were not, in fact, job-related; or (2) that alternatives to the hiring criteria were available for use by the City that would not produce an adverse disparate impact on blacks.

Plaintiffs argued that no relationship existed between the challenged criteria and an applicant's later job performance as a police officer. The challenged criteria, plaintiffs argued, were in reality an arbitrary screening procedure designed to exclude black applicants. The Court rejected this argument. At the injunction hearing, plaintiffs presented evidence, but failed to persuade the court, that "sufficient credible alternatives" to the challenged criteria exist which would fulfill the City's legitimate hiring interests without producing an undesirable disparate impact on blacks.

III. ISSUES RAISED BY THE PARTIES

After a finding of liability in Phase I, a disparate impact class action discrimination case proceeds to Phase II for a determination of the appropriate relief. The parties have filed briefs addressing the issue of damages in this case. In their briefs to the court concerning damages, the parties raise the following issues:

(1) Does a finding of liability to a class of plaintiffs in a Title VII disparate impact case raise a rebuttable presumption of entitlement to relief for each member of the class?

(2) If so, what evidence is admissible to rebut claims for relief? Specifically, may the City introduce evidence that a particular class member failed to meet the three subsequently validated hiring criteria?

(3) Finally, should relief to which each class member is found to be entitled be determined on a class-wide or individual basis?

The court addresses each issue in turn, setting forth the applicable evidentiary burdens to be borne by each party and outlining the evidence admissible to meet these evidentiary burdens.

IV. DOES A FINDING OF CLASS-WIDE LIABILITY CREATE A REBUTTABLE PRESUMPTION OF ENTITLEMENT TO RELIEF FOR EACH CLASS MEMBER?

Yes. Once liability has been determined, as in this case, a presumption of entitlement to relief arises. Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). This presumption is justified by both the deterrent and "make-whole" purposes at the core of Title VII. Albemarle, 422 U.S. at 422, 95 S.Ct. at 2374. However, the presumption of entitlement may be rebutted. Title VII does not contemplate automatic compensation for a person simply because he is a member of the class; a finding of class-wide disparate impact does not per se entitle a class member to back pay without individual clarification. See Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 257, 259 (5th Cir.1974), reh'g denied, 581 F.2d 267, cert. denied 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74. Rather, in a class action, a finding of class-wide liability creates a rebuttable presumption that any particular employment decision made by the defendant during the relevant period was made pursuant to a discriminatory policy or practice. See e.g., International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977).

Judge Higginbotham recognized the creation...