Dendy v. Washington Hosp. Center

• Decision Date: 17 July 1978
• Docket Number: No. 77-1643,77-1643
• Citation: 581 F.2d 990,189 U.S.App.D.C. 212
• Parties: 17 Fair Empl.Prac.Cas. 1227, 17 Empl. Prac. Dec. P 8438, 189 U.S.App.D.C. 212 Paulette DENDY et al., Appellants, v. The WASHINGTON HOSPITAL CENTER et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 990

581 F.2d 990

17 Fair Empl.Prac.Cas. 1227, 17 Empl. Prac.

Dec. P 8438,

189 U.S.App.D.C. 212

Paulette DENDY et al., Appellants, v. The WASHINGTON HOSPITAL CENTER et al.

No. 77-1643.

United States Court of Appeals District of Columbia Circuit.

Argued May 8, 1978.

Decided July 17, 1978.

Appeal from the United States District Court for the District of Columbia (D.C. Civil 77-0333).

Anne Pilsbury, Washington, D. C., with whom June Kalijarvi and Mark Andrews, Washington, D. C., were on the brief, for appellants.

Peter W. Tredick, Washington, D. C., with whom John J. Ross and Sally Lord Ellis, Washington, D. C., were on the brief, for appellees.

Before BAZELON and LEVENTHAL, Circuit Judges, and JAMESON, ^* United States Senior District Judge for the District of Montana.

Opinion PER CURIAM.

PER CURIAM:

This case arises out of an action in the district court challenging the legality, under Title VII of the Civil Rights Act of 1964, of the policy of defendant Washington Hospital Center that requires respiratory therapists to pass a written examination as a condition for retaining their jobs. Plaintiffs moved for a preliminary injunction restraining further use of the examination pending resolution of this challenge. Plaintiff's motion was denied, and they appeal.

In the hearing on their motion for a preliminary injunction, plaintiffs introduced evidence that, between 1961 and 1975, 26 white and nine black members of defendant Hospital's Respiratory Therapy Department took the test; and that all of the white employees passed the test but only four of the black employees were able to do so. Plaintiffs also introduced the testimony of a statistician, who stated that the odds of such a disparity in the pass rates of the two groups occurring by chance were four in one thousand. Finally, plaintiffs attempted to demonstrate that the test was not job-related (by evidence that some employees who had failed the test were highly regarded by their superiors; and by testimony that the test was not employed at other hospitals in the metropolitan area).

Defendants adduced evidence designed to show that the test was job-related. This consisted essentially of testimony describing the relationship of the test questions to practical knowledge of the respiratory apparatus, respiratory ailments, and therapeutic maneuvers; delineation of the responsibilities of respiratory therapists; and description of the clinical settings in which they operate.

In its memorandum and order denying plaintiffs' motion for a preliminary injunction, the district court focused its attention upon the statistical data provided by plaintiffs in their effort to establish a prima facie case of discriminatory impact. See Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). While the testimony of plaintiffs' statistician was uncontroverted, the court held that it "represents too slender a reed on which to rest the weighty remedy of preliminary relief." 431 F.Supp. 873 at 876 (filed May 18, 1977). The court thus appeared to reject, without adequate explanation, the undisputed testimony of a witness who had been qualified by the court as an expert. While the numbers involved may have appeared small, statistical analysis showed them to reflect a discriminatory impact that could not reasonably be ascribed to chance alone.

The action of the district court would be palpably infirm if it were based solely on its rejection of the validity of plaintiffs' statistical evidence. ¹

But there is language in the court's opinion that suggests that it relied on considerations other than statistical inadequacy. For this reason we remand the case for reconsideration and clarification, as outlined below.

The proper framework for determining plaintiffs' motion is established by Virginia Petroleum Jobbers Association v. FPC, 104 U.S.App.D.C. 106, 259 F.2d 921 (1958) and Washington Metropolitan Area Transit Comm'n v. Holiday Tours, 182 U.S.App.D.C. 220, 559 F.2d 841 (1977) (decided after the action of the district court that is now before us). The court must consider: (1) the likelihood that plaintiffs will prevail on the merits; ² (2) the prospect of irreparable injury to plaintiffs if relief is withheld; (3) the possibility of harm to other interested parties (here, the Hospital) if preliminary relief is granted; and (4) the public interest. Plaintiffs have the burden of establishing a substantial case on the merits. The merits of the case at bar will, of course, turn on whether plaintiffs can show discriminatory impact, and on whether defendants, in turn, can rebut this showing by demonstrating job-relatedness. Griggs v. Duke Power Co.,supra. The burden of demonstrating job-relatedness is on defendants in a proceeding to decide the merits. However, on a motion for relief pending litigation, the court may take into account the possibility that defendant will be able to establish job-relatedness without a determination that it has shown a positive likelihood of doing so. Even as to issues where the burden at trial is on defendant, when the court is of the view that the motion for relief pending litigation (and the attendant change in the status quo ante) threatens harm to defendant, and the defendant has come forward with some evidence tending to support a defense, the court may take into...