Friend v. Leidinger
| Decision Date | 29 November 1978 |
| Docket Number | Nos. 77-2026,77-2351,s. 77-2026 |
| Parties | 18 Fair Empl.Prac.Cas. 1052 Roscoe FRIEND and Theodore Fuller and Black Brothers Combined of the City of Richmond, Inc., a Virginia Corporation, Appellants, v. William LEIDINGER, Jack M. Fulton, Theodore Thornton and John F. Finnegan, Jr., Individually and in their official capacities, Appellees. Roscoe FRIEND and Theodore Fuller and Black Brothers Combined of the City of Richmond, Inc., a Virginia Corporation, Appellants, v. The CITY OF RICHMOND, William Leidinger, Jack M. Fulton, Theodore Thornton, John F. Finnegan, Jr., Individually and in their respective capacities, Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Anthony W. Robinson, Kenneth L. Johnson and Gerald G. Poindexter, Richmond, Va., for appellants.
Conrad B. Mattox, Jr., and James R. Saul, Richmond, Va., for appellees.
Before BUTZNER and HALL, Circuit Judges, and CHAPMAN, District Judge. *
The appellants are black fire fighters presently or formerly employed by the Richmond Fire Bureau. They instituted this class action pursuant to Title VII of the Civil Rights Act of 1964 () complaining of racial discrimination in certain employment and promotional practices and procedures of the Bureau. A class was certified as being "Negroes who have, within the applicable period of the statute of limitations, been discriminated against with respect to employment practices by defendants and who (a) are presently employed in the Fire Department of the City of Richmond, or (b) formerly have been employed in the Fire Department of the City of Richmond."
The applicable period of the statute of limitations mentioned above is the 180 days established in 42 U.S.C. § 2000e-5(e), which requires that a charge under Title VII be filed with the Equal Employment Opportunity Commission within 180 days after the alleged unlawful employment practice occurred. The charge was filed with EEOC on November 11, 1974, so only those acts and practices which occurred on or after May 11, 1974 were considered by the district court. 1
Plaintiff's complaints as to Bureau policies and practices alleged to be racially discriminatory were as follows:
(a) When making decisions on promotions and wage levels the Bureau's policy of considering the number of garnishments of a fireman's wages operated adversely to members of the black race;
(b) Blacks operating Bureau vehicles involved in traffic accidents were more frequently charged with causing such accident than were white employees and this adversely affected blacks in promotion;
(c) Testing procedures used by the Bureau for entry level and promotion were not sufficiently validated and job related and adversely affected black employees;
(d) The Bureau's practice of considering fitness ratings given by supervisors in determining promotions, which practice adversely affected blacks who usually received lower ratings than whites from their supervisors; and
(e) Black fire fighters were subjected to numerous incidents of harassment by white The case was tried by the district court, without a jury, and resulted in judgment in favor of the defendants. The record in the case is voluminous and the district court filed a very detailed 48 page opinion setting forth his findings of fact and conclusions of law.
fire fighters and the Bureau leadership did nothing to prevent this harassment.
The exceptions now on appeal relate to the failure of the district court to find racial discrimination as claimed in (a) through (e) above.
This was a bench trial and the district court had the opportunity to observe the witnesses, to weigh their testimony and to judge their credibility. The findings of fact by the trial judge are entitled to great weight and are not to be disturbed unless they are clearly erroneous. Due regard must be given to opportunity of the trial court to judge credibility. (Rule 52(a) FRCP). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." 2
After a careful review of the evidence underlying the trial judge's findings and conclusions this Court can not say that they are clearly erroneous and therefore we affirm.
The district judge summarized the evidence presented on the garnishment issue and concluded that in view of the small number of garnishments on which the statistical showing was based and particularly in view of the number of errors 3 in the plaintiff's exhibits, there was no proof that the Bureau's garnishment policy adversely affected blacks. There were 41 garnishments against the wages of black firemen between July 1972 and March 1977 and 20 of this number involved two individuals and at least two of these garnishments were counted twice in the exhibit.
The first time a garnishment is received by the Bureau, the fireman is counseled on his financial affairs. Subsequent garnishments result in a written reprimand, but there is no disciplinary action beyond the reprimand. The court found that there was no testimony that blacks had been penalized in pay or promotion because of the garnishment. There is considerable inconvenience and expense to the Bureau in handling the paper work, the withholding and the payment under garnishments and bad community relations are created when firemen fail to pay their just debts. The district judge found that failure to pay one's debts is evidence of irresponsibility and could be considered in determining promotion of firemen so long as this was not used as a pretext for racial discrimination. The court also found there was no racial discrimination in the Bureau's handling of garnishments and no violation of Title VII.
The district judge's findings on garnishment are amply supported by the record and plaintiff's position on the garnishment issue has been greatly weakened, if not destroyed, by the numerous errors contained in plaintiff's exhibits.
There is a Fire Bureau Accident Review Committee charged with the responsibility of investigating traffic accidents involving fire equipment and determining whether the fireman driver should be "chargeable" therefor. Chargeable appears to be synonymous with negligence. Plaintiffs contend that between July 1, 1972 and March 1977 black fire fighters were involved in 22 vehicular accidents and were found chargeable by the Accident Review Committee in 76%, while during the same period white fire fighters were involved in The district court found that the sample size used in these comparisons was too small to give significant meaning to the conclusions drawn by the plaintiffs, but even if the statistics supported a finding of adverse impacts to blacks the defendants had met the burden of showing a compelling business necessity for the procedure.
76 vehicular accidents and found chargeable in only 37%. Plaintiffs contend that this difference is statistically significant and adversely affects black promotion. They also assert under Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) that the Bureau has failed to show a business necessity for this difference in treatment before the Accident Review Committee.
The record amply supports the district judge's finding. Fire fighting equipment is very expensive and it is necessary for the Bureau not only to protect its equipment from damage due to the negligent operation by certain of its firemen, but also the Bureau has the responsibility to the public to see that such equipment is operated on busy city streets by careful and competent drivers. Accidents must be investigated and negligent drivers identified and transferred to other duties if the Bureau is to serve its proper function.
There has been no testimony that the Accident Review Committee is biased or prejudiced or does not properly investigate accidents and truthfully report its findings. Plaintiffs have not attempted to show that another system could serve the same purpose and eliminate an adverse impact.
The district court found that 24.8% Of the employees of the Fire Bureau were black and that employees of the Bureau resided throughout the Richmond metropolitan area. In the Standard Metropolitan Statistical Area, which includes Richmond, the last census showed blacks to be 26.1% Of the population. Therefore, the percentage of blacks in the Fire Bureau is only 1.35% Less than that of blacks in the population. Plaintiffs complain that the percentage of black applicants eventually hired by the Bureau was only 18.6%, while the percent of white applicants hired was 32.1%. The trial court, however, found that the test (Fire Fighters B-1(M) developed by the International Personnel Management Association) used at the entry level was properly validated and job related. Although there was a dispute between the parties as to whether validation of the test should meet the EEOC guidelines or the guidelines prepared by the Federal Executive Agency on Employee Selection Procedures, 4 as adopted by the Justice Department, the trial court found the Department of Justice standards to be the most recent and reliable. Neither this Court nor the trial court must look solely to the EEOC guidelines particularly when the Department of Justice and a majority of other federal departments and agencies have adopted and use the more recent guidelines of Federal Executive Agency on Employee Selection Procedures.
The dispute in guidelines deals with whether Fire Fighter B-1(M) Test used by the Bureau had been properly validated. A part of the validation study was done in California and plaintiffs objected to a study not conducted in Richmond. However, plaintiffs have shown no difference in the duties of a fireman in the 55 areas of...
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