Frontera v. Sindell

• Decision Date: 25 August 1975
• Docket Number: No. 75-1038,75-1038
• Citation: 522 F.2d 1215
• Parties: 11 Fair Empl.Prac.Cas. 1132, 10 Empl. Prac. Dec. P 10,375 Damian FRONTERA on his own behalf and on behalf of all others similarly situated, Plaintiff-Appellant, v. David I. SINDELL et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1215

522 F.2d 1215

11 Fair Empl.Prac.Cas. 1132,

10 Empl. Prac. Dec. P 10,375

Damian FRONTERA on his own behalf and on behalf of all others similarly situated, Plaintiff-Appellant, v. David I. SINDELL et al., Defendants-Appellees.

No. 75-1038.

United States Court of Appeals Sixth Circuit.

Aug. 25, 1975.

Kenneth Montlack, Cleveland, Ohio, for plaintiff-appellant.

William J. Brown, Atty. Gen., Andrew J. Ruzicho, Gene W. Holliker, Asst. Attys. Gen., Civ. Rights Section, Columbus, Ohio, for amicus curiae Ohio Civil Rights Commission.

James B. Davis, Robert W. Jones, Cleveland, Ohio, for defendants-appellees.

William Louis Tabac, Gary T. Kelder, Cleveland State University, Cleveland-Marshall College of Law, Cleveland, Ohio, for amicus curiae American Civil Liberties Union/Cleveland Chapter.

Before PHILLIPS, Chief Judge, and WEICK and ENGEL, Circuit Judges.

WEICK, Circuit Judge.

Plaintiff, Frontera, instituted a class action in the District Court in behalf of himself and all Spanish speaking persons, including persons of Puerto Rican and Spanish-American ancestry, against the Civil Service Commission of the City of Cleveland and the Commissioner of Airports.

Frontera alleged in his complaint that he had been employed as a carpenter at the Cleveland Hopkins Airport under temporary appointment, and that he applied for and took the examination for carpenter permanent appointment, which examination was conducted by the Commission.

Frontera failed to pass the examination and was not certified for the appointment. He claimed that he failed because the examination was conducted in the English language and not in Spanish, and that he did not understand some of the language. In his complaint he sought an injunction to restrain the Commission

. . . from maintaining a policy, practice, custom or usage of discrimination against plaintiff and other Spanish-speaking persons in his class because of national and ethnic origin and ancestry by (a) refusing to provide pre-examination announcements and literature in the Spanish language; (b) refusing to administer examination instructions in the Spanish language; (c) refusing to provide the written Civil Service examinations for positions in the City of Cleveland in the Spanish language; and (d) refusing to provide retesting with appropriate safeguards, including the use of Spanish instructions and test material, for Plaintiff and other Spanish-speaking persons denied equal opportunities and protection under the law. (A. 7)

Frontera alleged that his Fourteenth Amendment rights and civil rights under 42 U.S.C. §§ 1981, 1983 and 1985 had been violated and he prayed for damages in addition to injunctive relief.

The case was tried before the District Court on the evidence and arguments of counsel. The Court determined that the case was a proper class action. The Court, in a written opinion in which it adopted findings of fact and conclusions of law, upheld the right of the Commission to conduct the examinations in English. Frontera appealed. We affirm.

Frontera was born in Puerto Rico and educated there through the fourth grade. He moved from Puerto Rico to Cleveland in 1953 at the age of 28. Frontera speaks English poorly and can read basic English only with great difficulty. He is a member of the Carpenter's Union local, having been admitted to the Union on the basis of an oral test and an inspection of his carpentry work.

Counsel stipulated that Frontera has substantial skill as a carpenter. He was a good "handyman."

The position of carpenter permanent appointment for which he applied was one of the highest paid positions in the City of Cleveland. Craftsmen are paid at rates which sometimes exceed that of Commissioners in the various divisions.

Frontera competently performed his job at the airport under the temporary appointment. Frontera's problem with the English language did not interfere with communication between his supervisor and him, nor did it interfere with the performance of the work assigned him. Carpenters at the airport did not work from blueprints, but rather worked from verbal instructions, sketches and work orders. He generally understood his supervisor's instructions and would ask questions if they were necessary to clarify his instructions, and he had no difficulty with the sketches.

The Civil Service Commission announced an examination for the skilled crafts on April 13, 1970. ¹ Frontera applied to take the carpenters' examination. The examination was scheduled for May 20, 1970. Frontera contacted several people in an effort to have the test administered to him in Spanish. He was informed that he would be able to take the test in Spanish and on May 18, 1970 the Commission formally voted to have the test translated if possible. However, due to a lack of both time and a trade dictionary for translating the technical terms in the carpentry test, the Civil Service employee who had been given the assignment of translating the test was unable to do so. Therefore, the test was administered only in English.

Frontera did examine some text books which his daughter and wife obtained for him at the Municipal Reference Library but he testified that he did not understand the books. He asked no one to help him prepare for the examination.

The test consisted of a performance section in which the applicants constructed a wooden frame and a written section in which the applicants were asked questions dealing with carpentry. An applicant could score 50 points on each section of the test. A minimum score of 70 points was required to pass the test. Frontera failed the test, scoring 36 points on the performance section and 31.349 points on the written section. He ranked 103rd of the 127 applicants. Concerning the performance section of the test, Frontera testified that he did not understand that he was allowed to use clamps to help construct the frame which clamps were on the work table. The instructions for the performance section were given orally in English. Frontera testified that he did not understand all of the instructions and that he did not ask any questions. The examiner who administered the performance section of the examination testified that nothing was said at the examination concerning the tools the applicants could use, and that instructions were that the applicants were to build the object shown in a sketch given the applicants within a specified time.

Concerning the written section of the test, Frontera testified that he was unable to understand several of the words in the questions. He was cross- examined concerning several of the test questions and testified that he did not know what "beading work" was, nor what "factory or shop lumber" was. Concerning the statement "Cedar wood is considered to be decay resisting," he testified that he did not understand the meaning of the word "decay." It should be noted that the words or terms that Frontera indicated that he did not understand dealt with the craft of carpentry. The test did not require verbal ability unrelated to the craft of carpentry.

The plaintiffs' statistical evidence, based upon the 1970 census, indicated that persons of Spanish nationality comprised 1.86% Of the Cleveland population and 1.22% Of the Cuyahoga County population. There were 545 Spanish-speaking craftsmen and kindred workers residing in the city of Cleveland. (Pl. Exh. A & M). In 1973, Spanish surnamed Americans comprised approximately .5% Of the employees of the city of Cleveland, but none of the 574 craft positions were filled by Spanish surnamed Americans.

There was no statistical evidence of the number of Spanish surnamed Americans employed by the city of Cleveland in 1970 and no evidence of comparative pass rates for Spanish surnamed and other applicants, other than for the May, 1970 craft examinations.

The evidence was to the effect that Frontera was the only Spanish surnamed applicant taking the May, 1970 craft examinations; that witnesses involved in placing Spanish surnamed Americans for employment believed that more Spanish surnamed people would apply to take the Civil Service examinations if they were given in Spanish; and that some Spanish surnamed craftsmen who were witnesses would, in fact, apply to take the examinations if they were given in Spanish. The District Court was of the view that the failure to give Civil Service tests in Spanish does have a discriminatory impact on the Spanish speaking population. ² Only one permanent appointment was made from the Civil Service list resulting from the May, 1970 carpenter's examination. The permanent appointment was made November 2, 1970 to the person receiving the highest grade. Frontera was furloughed from his job on November 20, 1970 in a massive layoff of employees due to the city's poor financial situation. Frontera's temporary job as carpenter at the airport has never been filled and the job has been eliminated as unnecessary.

In considering this case we are mindful of several facts which help to place the case in perspective. First, although Frontera criticizes the manner in which the test was constructed, his real complaint relates only to the language in which the test was advertised and administered. Second, there is no training program for carpenters hired from the Civil Service list. Carpenters are expected to possess the professional knowledge of the trade when they are hired. Third, the examination did not require a general proficiency in the English language. It used words and terms which ordinarily would be recognized and understood by a person knowledgeable in the carpentry trade.

The principle issue in this case is whether the Fourteenth Amendment and 42 U.S.C. §§ 1981 and 1983 require that information concerning a Civil Service examination be disseminated and the examination itself be administered in Spanish to Spanish-speaking applicants. We hold that they do not. This suit was not brought under Title VII of the Civil Rights Act of...