Firefighters Institute for Racial Equality v. City of St. Louis

• Decision Date: 25 February 1977
• Docket Number: 76-1663,Nos. 76-1507,s. 76-1507
• Parties: 14 Fair Empl.Prac.Cas. 1486, 13 Empl. Prac. Dec. P 11,476 FIREFIGHTERS INSTITUTE FOR RACIAL EQUALITY et al., Plaintiffs-Appellants, v. CITY OF ST. LOUIS et al., Defendants-Appellees, UNITED STATES of America, Plaintiff-Appellant, v. CITY OF ST. LOUIS et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 506

549 F.2d 506

14 Fair Empl.Prac.Cas. 1486,

13 Empl. Prac. Dec. P 11,476

FIREFIGHTERS INSTITUTE FOR RACIAL EQUALITY et al., Plaintiffs-Appellants, v. CITY OF ST. LOUIS et al., Defendants-Appellees, UNITED STATES of America, Plaintiff-Appellant, v. CITY OF ST. LOUIS et al., Defendants-Appellees.

Nos. 76-1507, 76-1663.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 14, 1976.

Decided Feb. 2, 1977.

Rehearing and Rehearing En Banc Denied Feb. 25, 1977.

Marie E. Klimesz, Dept. of Justice, Washington, D. C., for United States; Barry A. Short, U. S. Atty., St. Louis, Mo., J. Stanley Pottinger, Asst. Atty. Gen., Walter W. Barnett, Atty., Dept. of Justice, Washington, D. C., on brief.

David A. Lang, Clayton, Mo., Forriss D. Elliott, St. Louis, Mo., for appellants.

James J. Gallagher, St. Louis, Mo., for appellees; Jack L. Koehr, City Counselor, St. Louis, Mo., on brief.

Jerome A. Diekemper, Clayton, Mo., for intervenors; John H. Goffstein, Burton Newman, of Bartley, Goffstein, Bollato & Lange, Clayton, Mo., on brief.

Before LAY, ROSS and STEPHENSON, Circuit Judges.

ROSS, Circuit Judge.

In this consolidated action, black firefighters and the Department of Justice allege the existence of racially discriminatory practices in the St. Louis City Fire Department. In the first action the Firefighters Institute for Racial Equality (F.I.R.E.) and several named plaintiffs represent a class who are presently employees or who seek employment with the St. Louis Fire Department. The United States subsequently filed suit under Title VII of the Civil Rights Act of 1964 seeking redress for a "pattern or practice" of discrimination as well as for individuals not represented by F.I.R.E. Both actions were filed pursuant to 42 U.S.C. §§ 1981, 1983 and 2000e et seq. The principal defendant, the City of St. Louis, is joined in its argument by the Intervenors who represent a class of nonblack employees and candidates for employment in the fire department.

Appeal is taken on a number of issues, but no appeal has been taken with respect to the examination for firefighter which is the entry level position in the fire department. ¹ The F.I.R.E.-Appellants do contest the City's promotional practices with regard to the fire captain's exam and the battalion chief's exam. Also charged as unlawful are exclusion of blacks from firehouse eating arrangements known as "supper clubs," and the failure to promote a black individual, George Horne, to a fire captain position. F.I.R.E. also contests the amount of attorney's fees which the district court indicated it would award.

Of these issues, the United States appeals on only two: the promotional exam for fire captain and the supper club discrimination issue. This court considers the latter as the principal claims, and reverses with respect to them. The district court is affirmed with respect to the battalion chief exam and in the matter of George Horne.

Fire Captain's Examination

The position of fire captain is the first level supervisory job in the St. Louis Fire Department. According to the findings of the district court, fire captains are responsible for the supervision of a group of men and equipment on a particular work shift. The in-service training of the firefighters under his command is a significant part of the fire captain's job. According to the City's validation study, the fire captain leads his company at the fire scene.

Promotion to the fire captain's position is dependent on a composite score developed from three measurements of an individual's qualifications. For candidates on the 1974 eligibility list which is at issue here, the "written test" was given a 45 percent weight as was an "experience and training score." The "service rating" score was weighted as 10 percent of the composite.

Attaining the rank of fire captain is a highly sought-after and competitive goal of both blacks and whites. From the 1974 procedure now under scrutiny a total of 453 persons are seeking the higher position of captain, while only approximately 18 persons are needed to fill vacancies during the two-year life of the eligibility list. The highest ranking black man ranks as number 55 out of a total of 189 on the list. As a prerequisite for consideration all applicants for fire captain must have served five years as a firefighter. ²

The experience and training score, which comprised 45 percent of the total score, is also a function of length of service with the fire department. According to the district court, points are awarded for each month of experience with the department. In 1974 all applicants with ten or more years experience received the maximum score of 45 points. Eighty-one percent of those who made the 1974 eligibility list for the captain's position received the maximum number of points for experience and training.

While the experience and training score is largely quantitative, the "service rating" is qualitative, and reflects the individual's last supervisory rating prior to announcement of the written exam. On this measurement of qualification, 93 percent of the persons on the eligibility list received scores in the narrow range between 7.8 and 9.2.

At trial Dr. O'Leary, the City's test analyst and expert witness, testified that these two work-related ratings were included because he felt that experience on the job and the quality of that experience were important factors in evaluating potential fire captains. ³

It appears that as a practical matter these two scores carry less weight than their assigned value indicates. For many of those 189 persons who made the eligibility list, these two experience-based scores are closely clustered, making the written exam of much greater weight in determining final rank than the allotted weight of 45 percent.

It is not disputed here that the 1974 written exam for the fire captain's position adversely affected black candidates as a whole. The district court concluded that the statistical evidence presented established that the test had a disparate impact on blacks. ⁴

It is a distinguishing feature of a Title VII cause of action that discriminatory impact suffices to establish a prima facie showing of discrimination. The recent case of Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) establishes that a law or other official act is not unconstitutional solely because it has a racially disproportionate impact regardless of whether it reflects a racially discriminatory purpose. However, Congress' statutory standard for Title VII, where discriminatory purpose need not be proved, is unshaken by the Washington decision. Id. at 246-47, 96 S.Ct. 2040. ⁵

It is now a familiar principle that Title VII was not meant to preclude the use of testing devices, and that what is forbidden is the controlling use of such tests "unless they are demonstrably a reasonable measure of job performance." Griggs v. Duke Power Co., 401 U.S. 424, 436, 91 S.Ct. 849, 856, 28 L.Ed.2d 158 (1971).

Once a racially adverse impact is demonstrated, the burden of proof shifts to the employer to prove the job relatedness of the exam he has utilized. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). Accepted professional methods of "validating" exams for their job-relatedness are found in the EEOC Guidelines published in 29 C.F.R. § 1607.5 (1975). The Supreme Court has said of these test validation techniques:

The EEOC Guidelines are not administrative "regulations" promulgated pursuant to formal procedures established by the Congress. But, as this Court has heretofore noted, they do constitute "(t)he administrative interpretation of the Act by the enforcing agency," and consequently they are "entitled to great deference." (Citation omitted).

Albermarle Paper Co. v. Moody, supra, 422 U.S. at 431, 95 S.Ct. at 2378.

Though it has been argued here that the EEOC Guidelines, which refer to the standards of the American Psychological Association (APA), should be considered "guidelines only " these standards have often been sanctioned as a means by which courts may professionally evaluate the validity of employment tests when called upon to do so. ⁶

It is also true that in this case Dr. O'Leary, the City's expert who developed and validated the test, purportedly considered and reviewed the APA and EEOC publications as guidelines in preparing the examination.

Accepted validation techniques under these standards include two forms of criterion-related validity, plus the content and construct validity methods. Criterion-related studies involve the correlation of job performance with success on an examination. Predictive validation requires a comparison between an applicant's test scores and subsequent on-the-job performance as an employee; concurrent validation methods correlate the test scores of present employees vis-a-vis their present job performance. Vulcan Society of New York City Fire Dept. v. Civil Service Commission, 490 F.2d 387, 394 (2d Cir. 1973). These empirical methods are, of course, dependent on statistical correlations as proof of reliability and validity. Content validity, the technique chosen by Dr. O'Leary for justification of the fire captain's exam, generally requires that the examination reflect a representative sample of the knowledge or behavior that will be used in performance of the job.

The F.I.R.E.-Appellants have argued on this appeal that a content validity study should not have been undertaken by the City and that this type of test should be used only when a criterion-related study has proved to be technically infeasible. ⁷ This argument is now undermined by the Supreme Court's recent observation in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) that "(i)t appears beyond doubt by now that there is no single method for appropriately validating employment tests for their relationship to job performance." Id. at 247 n. 13, 96 S.Ct. at 2051 (...