Fudge v. City of Providence Fire Dept.

• Decision Date: 28 June 1985
• Docket Number: Nos. 83-1624,83-1650,s. 83-1624
• Citation: 766 F.2d 650
• Parties: 38 Fair Empl.Prac.Cas. 648, 37 Empl. Prac. Dec. P 35,421 Roger Anciel FUDGE, Plaintiff, Appellee, v. CITY OF PROVIDENCE FIRE DEPARTMENT, et al., Defendants, Appellants. Roger Anciel FUDGE, Plaintiff, Appellant, v. CITY OF PROVIDENCE FIRE DEPARTMENT, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 650

766 F.2d 650

38 Fair Empl.Prac.Cas. 648,

37 Empl. Prac. Dec. P 35,421

Roger Anciel FUDGE, Plaintiff, Appellee, v. CITY OF PROVIDENCE FIRE DEPARTMENT, et al., Defendants, Appellants.

Roger Anciel FUDGE, Plaintiff, Appellant, v. CITY OF PROVIDENCE FIRE DEPARTMENT, et al., Defendants, Appellees.

Nos. 83-1624, 83-1650.

United States Court of Appeals, First Circuit.

Argued June 7, 1984.

June 28, 1985.

Gerard McG. DeCelles, Providence, R.I., with whom Elizabeth M. Emma, Providence, R.I., was on brief, for City of Providence Fire Department, et al.

Walter R. Stone, Providence, R.I., with whom Stone, Clifton & Clifton, Providence, R.I., was on brief, for Roger Anciel Fudge.

Before BOWNES and BREYER, Circuit Judges, and DOYLE, ^* Senior District Judge.

JAMES E. DOYLE, Senior District Judge.

Fudge, who is black, brought this action against the City of Providence Fire Department (Department), the Division of Training (Academy), and Chief Michael Moise (Chief), alleging the defendants had engaged in discriminatory testing in their hiring procedures in 1974, in violation of 42 U.S.C. Secs. 1981, 1983, 1985, and 1988, and of Title VII of the Civil Rights Act of 1964 The case was tried simultaneously to a jury on all but the Title VII claim and to the court on the Title VII claim. Although the jury found the written examination administered by the Department had had a disparate and adverse impact on blacks, it also found none of the defendants had harbored a racially discriminatory purpose. The non-Title VII claims were dismissed on their merits. Neither party appeals from this disposition.

42 U.S.C. Sec. 2000e et seq. The City of Providence was added as a defendant.

The district court held the defendant City had violated Title VII and it awarded Fudge back-pay in the amount of $8,666, and attorneys fees and costs totalling $12,274.50. Defendant City appeals the judgment against it for back-pay under Title VII and also the award of attorneys fees. ¹ Fudge appeals that portion of the judgment limiting back-pay to a period ending in 1978.

The district court found explicitly that a certain written examination used in the 1974 hiring procedures had a disparate and adverse impact on black applicants. ² It held plaintiff had thus established a prima facie case of employment discrimination. It held defendant had not met the burden, then falling to it, to show that the written examination had "a manifest relationship to the employment in question." Griggs v. Duke Power Co., 401 U.S. 424, 434, 91 S.Ct. 849, 855, 28 L.Ed.2d 158 (1971). It concluded that defendant had violated Title VII.

FACTS AS TO DISPARATE AND ADVERSE IMPACT

(a) Facts as found by district court, pursuant to

Fed.R.Civ.P. 52(a).

Plaintiff is a black resident of the city of Providence, Rhode Island. As of 1974, when plaintiff applied to be admitted to the city fire department's fire fighter training academy, defendant was imposing a minimum requirement of a tenth grade education, and the selection procedure was based upon a composite score of 60 in three categories: scholastic attainment, military service, and a written entrance examination. ³

In the scholastic attainment category, one point was awarded, up to a total of ten, for each grade completed beyond tenth. In Plaintiff was one of 248 applicants in 1974 for admission to the academy. He received 2 points in the scholastic attainment category and the maximum of 10 in the military service category, for an aggregate of 12 which, when divided by 2, resulted in a total of 6. At that point, he ranked 6th among the 248. On November 9, 1974, the written examination was given. Plaintiff scored 16 on the scale of a possible 50. His ranking dropped to 195th and he was not admitted to the academy.

the military service category, a maximum of ten points was possible, depending upon criteria such as total amount of time served in the military, time served in combat areas, advancement in rank, and decorations. The aggregate of the points scored by an applicant in the two categories (a maximum of 20) was divided by 2 (with a resulting maximum of 10). A maximum of 50 points could be obtained from one's score on a written examination. Thus, of a perfect composite score of 60 drawn from all three categories, 50 points (83%) were accounted for by the written examination.

Of the 248 applicants in 1974, 24 were black and 224 white. Thirty were admitted to the academy, of whom one was black (4 percent of 24) and 29 were white (13 percent of 224).

In 1973, 199 applicants took a written examination for admission to the academy, of whom about 20 were black and 179 white. Forty-one were admitted to the academy, of whom one was black (5% of 20) and 40 were white (22% of 179).

In 1972, 86 applicants took a written examination, of whom about 9 were black and 75 white (apparently two may have been members of non-black minorities). Twenty were admitted to the academy, of whom none was black (0% of 9) and 20 were white (27% of 75).

The black applicants in 1974 had a "higher test failure rate" than white applicants on the written examination. The examination posed more of a hurdle for black applicants than for white. It had a disparate and adverse impact on black applicants.

(b) Facts not found by district court, but undisputed in the

record

The written examination administered in 1972 contained 53 questions for an aggregate possible total of 50 points. Seventeen questions with an aggregate of 25 1/4 possible points tested knowledge of addition, subtraction, division, multiplication, percentages, fractions, decimals, square roots, and computations of areas and volumes. Eight questions with an aggregate of 6 possible points tested knowledge of definitions of words (multiple choice questions on the meaning of "posterior," "accentuate," "impertinence," "cumbersome," and "atlas"; other forms of questions on the meaning of "statute," "decade," and "autobiography"). Seven questions with an aggregate of 4 1/4 possible points tested knowledge of simple and practical physics or chemistry. One question with a weight of 3/4 point tested basic knowledge of geometrical figures. Twenty questions with an aggregate of 13 3/4 possible points tested general knowledge (e.g., in 1972 was Communist China a member of the UN; did Eisenhower succeed Franklin Roosevelt as president; in 1972 who was vice-president of the United States, who was governor of Rhode Island, who was commander-in-chief of United States Armed Forces; what cities and towns border on the city of Providence; how many seats in the United States Senate does Rhode Island have; name of the navigable waterway connecting Atlantic and Pacific oceans; how many stars in the flag of the United States; names of five states bordering the Gulf of Mexico).

The written examination administered in 1973 consisted of 63 questions, for an aggregate possible total of 50 points. Twenty-one questions with an aggregate of 20 3/4 possible points tested knowledge of addition, subtraction, division, multiplication, percentages, fractions and decimals. Fourteen questions with an aggregate of 7 1/4 points tested knowledge of the definitions of words (multiple choice questions on the meaning of "posterior," "incandescence," "clientele," "becloud," "clique," "equine," and "cursory"; other forms of questions on the meaning of "alien," "ancestor," The written examination administered in 1974 to plaintiff Fudge and the other 247 applicants contained 43 questions for an aggregate possible total of 50 points. Twenty-one questions with an aggregate of 25 1/2 possible points tested knowledge of addition, subtraction, division, multiplication, fractions, decimals, and computations of areas and volumes (described on the examination as "arithmetic skills"). Two questions with an aggregate of 2 possible points tested, by multiple choice questions, knowledge of definitions of two words: "extricated" and "radiant" (described on the examination as "word comprehension"). Eighteen questions with an aggregate of 21 possible points tested knowledge of simple and practical physics and chemistry (described on the examination as "general science" and "mechanical knowledge"). ⁴ Two questions with an aggregate of 1 1/2 possible points asked whether most exit doors in public buildings swing out or in and what is the shape of traffic stop signs (described on the examination as "observational aptitude"). No questions tested general knowledge of the sort tested by 20 questions on the 1972 examination (with an aggregate of 13 3/4 possible points) or by 14 questions on the 1973 examination (with an aggregate of 12 1/4 points). ⁵

"abdicate," "biography," "inertia," "fiction," and "bibliography"). Thirteen questions with an aggregate of 9 possible points tested knowledge of simple and practical physics and chemistry. One question with a weight of 3/4 point tested basic knowledge of geometrical figures. Fourteen questions with an aggregate of 12 1/4 possible points tested general knowledge (e.g., in what city the 1972 Democratic National Convention was held; in 1973 who was Adjutant General of Rhode Island; who was the last vice-president to assume the presidency while in office; by whom was the city of Providence founded; names of the five counties of the state of Rhode Island; what is the usual shape of a yield sign at an intersection; and what four countries comprised what was once known as Indo-China).

Between 1973 and 1974, the number of points awarded for the non-written-examination component of the composite score was reduced from 20 to 10. In 1972 and 1973 this 20-point component was not confined to scholastic attainment and military service, as it was in 1974, but reached the additional factors of age, height, weight, visual acuity, "license category," and employment experience.

The selection procedure used by defendant in 1972, 1973, and 1974, in which the written examinations were the dominant factor, had never...