Fadhl v. POLICE DEPT. OF CITY & CTY. OF SAN FRAN., C 79-2119 TEH.

• Decision Date: 02 September 1982
• Docket Number: No. C 79-2119 TEH.,C 79-2119 TEH.
• Citation: 553 F. Supp. 38
• Court: U.S. District Court — Northern District of California
• Parties: Nancy FADHL, Plaintiff, v. POLICE DEPARTMENT OF the CITY AND COUNTY OF SAN FRANCISCO, Defendant.

553 F. Supp. 38

Nancy FADHL, Plaintiff, v. POLICE DEPARTMENT OF the CITY AND COUNTY OF SAN FRANCISCO, Defendant.

No. C 79-2119 TEH.

United States District Court, N.D. California.

September 2, 1982.

Laura Stevens, Willdorf & Stevens, San Francisco, Cal., Guy T. Saperstein, Farnsworth, Saperstein & Brand, Oakland, Cal., for plaintiff.

Vicki L. Hobel, Deputy City Atty., San Francisco, Cal., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

THELTON E. HENDERSON, District Judge.

This case concerning sex discrimination was brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Trial to the Court commenced on March 9, 1982, and post-trial briefs on issues related to statistical evidence were submitted on June 11, 1982. Based on the evidence presented at trial and on the controlling legal authorities, and pursuant to Fed.R.Civ.P. 52(a), the Court makes the following Findings of Fact and Conclusions of law.

FINDINGS OF FACT

1. This suit was commenced on August 13, 1979 by Nancy Fadhl against the Police Department of the City and County of San Francisco (hereinafter "Police Department"), pursuant to Title VII of the Civil Rights Act of 1964, as amended. Plaintiff Fadhl is a woman who alleges that she was terminated from employment with the San Francisco Police Department because of her sex.

2. The San Francisco Police Department is an agency of the City and County of San Francisco and is an employer within the meaning of § 701(b) of Title VII of the Civil Rights Act of 1964, as amended.

3. Ms. Fadhl was hired by the Police Department to be a Q-2 police officer in January, 1978.

a. Prior to her 1978 employment with the Police Department, plaintiff received an Associate of Arts degree in criminology in preparation for her anticipated employment as a police officer.

b. Ms. Fadhl satisfactorily completed the police academy portion of her training in April, 1978 as a member of the 130th Recruit Class of the Police Department.

c. Of forty-nine (49) recruits in the 130th Recruit Class, two (2), including the plaintiff, were female.

4. Following completion of her police academy training, the plaintiff entered the Field Training Program (hereinafter "F.T.O. Program") in May, 1978.

a. In 1978, the F.T.O. Program was a fourteen (14) week training program which all recruits were required to pass in order to be retained by the Police Department as Q-2 Officers.

b. During the course of the F.T.O. Program, the recruit is trained and evaluated by a series of training officers and sergeants. The recruit's skills are evaluated in thirty (30) performance categories, which are sub-divided under the headings of "Appearance," "Attitude," "Knowledge," "Performance," and "Relationships." In each of the thirty categories, the recruit is graded on a scale from one (1) to seven (7), with a grade of four (4) representing the minimum acceptable grade.

c. A Field Training Officer (hereinafter "F.T.O.") responsible for the day-to-day training and evaluation of the recruit completes a Daily Observation Report (hereinafter "D.O.R."). For each of the performance categories in which the F.T.O. actually observes the recruit's conduct on a given day, a grade on the one-to-seven scale is recorded on the D.O.R. The F.T.O. also records, in narrative form, the recruit's most acceptable and least acceptable performance of the day, as well as any additional comments. Alternate Week Evaluation Session forms (hereinafter "A.W.E.S.") are also completed by the assigned F.T.O., who records the significant strengths and weaknesses of the recruit, as well as optional comments.

d. Each F.T.O. is supervised by a Field Training Sergeant. The Field Training Sergeant, in addition to training and evaluating the recruit, completes a Supervisor's Weekly Training Report (hereinafter "S.W. T.R.") on which the recruit's average grade for the week in each performance category is recorded.

5. During her participation in the F.T.O. Program, plaintiff Fadhl rotated among the following regularly assigned F.T.O.'s and Field Training Sergeants: from the eighth through the twenty-eighth day of the Program, Officer Harlan Wilson and Sergeant Philip Dunnigan; from the twenty-ninth through the fifty-sixth day of the Program, Officer Mike McNeill and Sergeant Robert Berry; beginning on the fifty-seventh day of the Program, officer James Hall and Sergeant David Dugger. None of the Police Department employees who trained recruits in the program during plaintiff's participation was female.

6. On the sixty-ninth day of the F.T.O. Program, Ms. Fadhl was relieved of field duty, placed on station duty, and recommended for termination on the basis of unsatisfactory field performance. Plaintiff's employment with the defendant terminated on October 20, 1978.

7. The guidelines upon which plaintiff's F.T.O.'s and Field Training Sergeants based their evaluations of Ms. Fadhl's job performance were subjective. Though the numerical grades given to the plaintiff on her D.O.R.'s and S.W.T.R.'s were designed to convey an objective assessment of Ms. Fadhl's performance, it is clear from the evaluation guidelines themselves, as well as from the evidence of their application, that the grades given are subject to the judgment of the person conducting the evaluation. As a result, the numerical grades received by the plaintiff were often inconsistent with either the guidelines themselves or with the training officer's narrative description of Ms. Fadhl's performance. For example, Officer Wilson's description of Ms. Fadhl's most acceptable performance of the day on D.O.R. 22 characterizes that performance as "flawless," yet the grades given in the applicable performance categories are all fours (4's), indicating minimally acceptable performance. The discrepancy between plaintiff's performance and the scores for her performance bears out the testimony, given either at trial or in deposition by several of the police officers who trained the plaintiff during the F.T.O. Program, concerning the potential for subjective grading inherent in the evaluation system used in the Program.

8. The F.T.O.'s and Field Training Sergeants who trained and evaluated the plaintiff did not apply the evaluation guidelines to Ms. Fadhl's performance in the same manner as they applied the guidelines to the performance of male recruits. The guidelines were applied less favorably to Ms. Fadhl than to male recruits. Male recruits, unlike plaintiff, received scores higher than those called for by the evaluation guidelines, including acceptable scores where unacceptable scores were called for. Compare to Plaintiff's Exhibit 19 (Evaluation Guidelines), e.g., Plaintiff's Exhibits 34 and 37 prepared for male recruits by Officer Hall; Plaintiff's Exhibits 60 and 62, prepared for male recruits by Officer McNeill; Plaintiff's Exhibits 65 and 67 prepared for a male recruit by Officer Wilson.

9. The recommendation to terminate the plaintiff, and her resulting termination, were based principally on evaluation of Ms. Fadhl's performance as documented in her D.O.R.'s. Though the Police Department presented testimony that Ms. Fadhl's overall performance, not simply the D.O.R.'s, were relied upon in terminating the plaintiff, this testimony is completely contradicted by the administrative record of the proceedings leading to termination. That record clearly shows the heavy reliance placed by the defendant on events documented and evaluated in the D.O.R.'s. The assessments contained in the D.O.R.'s reflect the less favorable application to the plaintiff's performance of subjective guidelines applied by the same F.T.O.'s and Field Training Sergeants to male recruits. See Finding of Fact 8., supra. This evidence supports the inference that the plaintiff's termination was in fact based on her sex.

10. The statistical evidence submitted by the plaintiff, while unnecessary to establish Ms. Fadhl's prima facie case of sex discrimination, lends support to Ms. Fadhl's evidence of disparate treatment.

a. Plaintiff's expert testified that he compared, for the years 1977 to 1980, the percentage of all Police Department recruits, by sex, to the percentage of all recruits, by sex, separated from the Police Department, either through termination or resignation. Based on these percentages, the expert testified that the percentage of females separated from the Department was 4.65 standard deviations higher than the average percentage of separations for all recruits. From this, the expert concluded that the selection of separated recruits cannot be hypothesized to be independent of the sex of the recruit.

b. The defendant sought to undermine this statistical evidence by showing that some of those who were treated by the plaintiff's expert as "separated" from the Police Department had in fact "voluntarily resigned" and therefore could not be considered in a statistical analysis such as the one conducted by plaintiff's expert. According to the defendant, exclusion from the statistical analysis of those who voluntarily resigned from the Police Department would reduce the number, and thus the percentage, of all recruits separated. This in turn would reduce the number of standard deviations between the percentage of females separated, which would remain the same, and the percentage of all recruits separated, thus weakening the conclusion drawn by plaintiff's expert.

As plaintiff's examination of defense witnesses revealed, however, the documentary evidence relied upon by the defendant in support of this argument, Plaintiff's Exhibit 71, reflects some errors by the Police Department in allocating individuals to the category of "voluntarily resigned." The defendant thus seeks to use unreliable data to refute the reliability of plaintiff's statistical evidence. Though defendant's evidence raises questions about the reliability of plaintiff's statistical case, it cannot be concluded, in light of the weaknesses in defend...