Firefighters Inc. for Racial Equality v. Bach

• Decision Date: 25 September 1981
• Docket Number: Civ. A. No. 78-K-119.
• Citation: 522 F. Supp. 1120
• Parties: FIREFIGHTERS INCORPORATED FOR RACIAL EQUALITY, et al., Plaintiffs, v. Ted BACH, et al., Defendants, Denver Fire Fighters Local 858, International Association of Firefighters, AFL-CIO, CLC, Robert Bendixon, Ron Green, Wayne Riegel, Thomas P. Montoya, and David L. Larson, Intervenors.
• Court: U.S. District Court — District of Colorado

522 F. Supp. 1120

FIREFIGHTERS INCORPORATED FOR RACIAL EQUALITY, et al., Plaintiffs, v. Ted BACH, et al., Defendants, Denver Fire Fighters Local 858, International Association of Firefighters, AFL-CIO, CLC, Robert Bendixon, Ron Green, Wayne Riegel, Thomas P. Montoya, and David L. Larson, Intervenors.

Civ. A. No. 78-K-119.

United States District Court, D. Colorado.

September 24, 1981.

As Amended September 25, 1981.

COPYRIGHT MATERIAL OMITTED

Paul A. Baca, Denver, Colo., for plaintiffs.

Walter Brauer, III, Denver, Colo., for intervenors.

Stanley Ereckson, Jr., Asst. City Atty., Denver, Colo., for defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

KANE, District Judge.

This case considers the racial balance in promotions at the Denver Fire Department. The parties to a previous case, DeBan v. Bach, Civil Action No. C-4662 (D.Colo. 1974), entered into a consent decree governing the hiring of new firefighters.¹ This case concerns the racial balance in promotions from firefighter to higher positions in the department.² Plaintiffs brought this class action on behalf of all Mexican American and black firefighters in the Denver Fire Department.³ They allege that defendants have discriminated against them in violation of the Civil Rights Act of 1870, 42 U.S.C. § 1981, the Civil Rights Act of 1871, 42 U.S.C. § 1983, and in violation of Titles VI and VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d through 2000e-17.

In particular, plaintiffs challenge the requirement that a firefighter have four years experience before being eligible to apply for a lieutenant position and the practice of awarding credit for seniority in rating applicants. Plaintiffs also assert that the defendants' promotion practices have an impermissibly disparate impact on minorities, citing the low percentages of minorities in the higher grades. They seek a declaratory judgment that these practices are illegal and an injunction ordering various changes in defendants' hiring practices.

Plaintiff Quintana, now an assistant chief, alleges that defendant Wise, the Chief of the department, retaliated against him because of his efforts at minority recruitment by improperly suspending him and by delaying promotions. He seeks damages for lost wages. This court has jurisdiction to hear all of these claims under 28 U.S.C. § 1343.

I. STIPULATIONS

The parties stipulated to the ethnicity of most of the named plaintiffs and to the capacities of the individual defendants. They also stipulated that, at the time of the pre-trial order, only one of the 28 assistant chiefs was Mexican American, and that there were no black assistant chiefs, captains or lieutenants, one black engineer, and no Mexican American captains. Additionally the parties agreed to the following stipulations:

1. That in addition to examination scores of the candidates, additional points are awarded to candidates on the basis of seniority.

2. That the Plaintiff, Frank E. Quintana, at times material to this action engaged in off-duty activities to assist minority applicants in their efforts to gain employment as firefighters on the Denver Fire Department.

3. That the Denver Fire Department receives Federal financial assistance.

II. FINDINGS OF FACT

I make the following findings of fact:

The Denver Civil Service Commission is responsible for administering promotions in the Denver Fire Department. It may occasionally receive advice from the fire chief, but there was no evidence that the manager of safety played any role in the promotions process. I accordingly dismissed him as a defendant at the close of plaintiffs' case.

Plaintiffs did not attempt to demonstrate that the past hiring practices of the Denver Fire Department discriminated against minorities. They did argue, however, that the consent decree in DeBan v. Bach is strong evidence that there was discrimination in past hiring of firefighters. In December, 1973, 47 out of 479 firefighters were minorities. By January, 1978, 94 out of 492 firefighters were minorities. At that time, 4 of the 89 engineers and 3 out of the 148 lieutenants were minorities; the 51 captains were all whites.

When a firefighter seeks to be promoted to a higher position, he receives a rating based on four factors. In October, 1977, the written test accounted for 45% of the score, the oral test for 48%, his seniority for 6%, and his efficiency rating for 1%. There was insufficient evidence to conclude that the oral or written tests were culturally biased or that they had a discriminatory impact. There was also insufficient evidence to form any conclusion on whether these tests were not job related.

A firefighter may not apply for promotion to a lieutenant position until he has served as a Firefighter First Grade for at least one year. Because of the seniority structure of the firefighter grades, this means that no one is eligible to apply for a lieutenant job until he has been a firefighter for at least four years. Because minorities have less seniority, this requirement has a discriminatory impact. Testimony conflicted on whether this four-year requirement was necessary. Some witnesses believed that three years was sufficient. I conclude that three years is sufficient. Acting lieutenants sometimes only have three years firefighting experience; four years is not essential. The oral and written examinations assure that no unqualified firefighters are promoted to lieutenant.

Testimony also conflicted on the amount of additional experience that is necessary before a lieutenant can be promoted to captain. One witness testified that no additional experience was necessary. Another thought that at least one year was essential. I conclude that one year additional experience is necessary. One year of experience is also necessary before a captain can be promoted to assistant chief.

An applicant may receive up to six points (out of 100) credit for seniority. After four years service as a firefighter, an applicant receives .1 point for each month of additional service, up to a maximum of 6 points for five years additional service. Plaintiffs' expert statistician testified that the seniority credit had a substantial, but not necessarily statistically significant, discriminatory impact. Testimony conflicted on whether this much seniority credit was job related. I conclude that it is excessive and that additional seniority credit is only job-related for firemen who have served up to seven years.

Although the official promotion procedures in the Denver Fire Department do not discriminate against minorities, there are countless practices in the day-to-day operation of the fire department that purposefully discriminate against minorities. There was considerable uncontroverted evidence that minority firefighters are discriminated against in the assignment of duties and in receiving on-the-job and other training opportunities. In particular, whites with less seniority received assignments and training opportunities that were more desirable than those that higher seniority minorities received. There was also evidence that minority firefighters were discriminated against in the assignment of "acting" lieutenant, engineer and driver positions. Minorities were also discriminated against in the assignment of "roving" positions and in position reassignments. Finally, some firefighters' "leagues" (cooperative company cooking groups) excluded minorities. These leagues are not officially sponsored by the department, but they do utilize department facilities and serve on-duty firefighters. Exclusion from a league constitutes a distinct disadvantage which can have an adverse effect of job performance and the development of job related skills.

Plaintiff Frank Quintana was improperly suspended for 95 days in 1973 by defendant Wise. There is strong evidence that this action was illicitly motivated. The Denver Civil Service Commission reversed this suspension and ordered that Quintana receive back pay. He was not reimbursed, however, for $2,500 attorneys fees. In 1974 defendant Wise delayed Quintana's promotion to secretary and to assistant chief. There is strong, unrebutted evidence that these delays were motivated if not because of Quintana's national origin then clearly as retaliation for his persistent efforts to protect and improve the lot of minorities in the department and those applying for entry to the department.

III. CONCLUSIONS OF LAW

A. Applicable Statutes

Plaintiffs allege violations of four different statutes. 42 U.S.C. §§ 1981, 1983, 2000d—2000d-6 (Title VI), and 2000e— 2000e-17 (Title VII). I find that plaintiffs have stated a cause of action under each of these statutes. Employment discrimination claims are cognizable under § 1981. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459-60, 95 S.Ct. 1716, 1719-20, 44 L.Ed.2d 295 (1975). Because the defendants were acting under color of state law, and allegedly deprived plaintiffs of constitutional rights, plaintiffs have also stated a claim under § 1983. Because the Denver Fire Department receives federal funding, plaintiffs have also stated a cause of action under Title VI.⁴ Plaintiffs clearly have a cause of action under Title VII. 42 U.S.C. § 2000e-2(a) provides:

It shall be an unlawful employment practice for an employer—

(1) ... to discriminate against any individual with respect to his ... terms, conditions, or privileges of employment, because of such individual's race, color, ... or national origin; or

(2) to limit, segregate, or classify his employees ... in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, ... or national origin.

The coverage of these statutes is not coextensive. See, e. g., Johnson v. Railway Express Agency, Inc., 421 U.S. at 459-60, 95 S.Ct. at 1719-20. Plaintiffs have not, however, stated any causes that are actionable under...