Hiatt v. City of Berkeley

CourtCalifornia Court of Appeals
Citation130 Cal.App.3d 298,181 Cal.Rptr. 661
Decision Date29 March 1982
Parties, 29 Empl. Prac. Dec. P 32,872 Rayford R. HIATT et al., Plaintiffs and Appellants, v. CITY OF BERKELEY et al., Defendants and Appellants. Civ. 39033.

Carroll, Burdick & McDonough, Ronald Yank, Christopher Burdick, San Francisco, for plaintiffs and appellants Hiatt et al.

Dennis A. Lee, Acting City Atty., Charles O. Triebel, Jr., Berkeley, for plaintiffs and appellants City of Berkeley et al.

Allan Yannow, San Francisco, Arnold Forster, Jeffrey Sinensky, Richard Weisz, New York City, for amicus curiae Anti-Defamation League of B'Nai Brith.

ROUSE, Acting Presiding Justice.

Plaintiffs, employees of the Berkeley Fire Department (hereafter respondents), brought this action against the City of Berkeley, its City Council, and certain city officials (hereafter collectively appellants), challenging the promotional procedures laid down in the city's Affirmative Action Program (hereafter AAP). Respondents invoked the Fourteenth Amendment of the United States Constitution, article I, section 21 (now § 7) of the California Constitution, 42 United States Code, sections 1983, 2000d, 2000e-2 (Civil Rights Act of 1964), and California Labor Code section 1420 et seq., claiming that the attacked provisions of AAP set up rigid quotas in hiring and promoting city employees which were based solely on race or sex and therefore violated both the constitutional principles of equal protection of laws and the provisions of the Civil Rights Act of 1964 proscribing discrimination premised on race, color, national origin or sex. After trial, a judgment and permanent injunction were issued in favor of respondents. The appeal is taken from the judgment awarding damages to respondents and enjoining City of Berkeley from enforcement of certain provisions of AAP; the cross-appeal is from a denial of attorney's fees and a refusal to promote two of the respondents.

We filed an opinion in which (as modified), we concluded that the judgment should be reversed in three specified respects but should otherwise be affirmed. 1 The Supreme Court granted a hearing and then retransferred the cause to this court for reconsideration in light of Price v. Civil Service Com. (1980) 26 Cal.3d 257, 161 Cal.Rptr. 475, 605 P.2d 1; and Steelworkers v. Weber (1979) 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480. We granted leave to the parties and to an amicus curiae to file supplemental briefs; we have received and considered the briefs. Upon full reconsideration, we reaffirm the conclusions we reached initially.

Background Facts

AAP, the centerpiece of the legal dispute, was adopted by the City of Berkeley in 1972 pursuant to City Council Resolution No. 45,257-N.S., and was amended in 1974 in order to conform to the 1970 census figure. The stated goal of AAP is to achieve and maintain "proportional employment" for all minorities 2 in each city department, job classification, and salary category. In the definition of AAP, proportional employment means that "the percentage of each race and sex in the City of Berkeley work force shall be approximately equal to that of the percentage of each race and sex in the Berkeley population as a whole."

In order to attain the stated goal, AAP introduced a wide ranging, elaborate program which purported to base the city's employment practices solely on race and sex rather than on competitive, free examinations and merit as prescribed by the city charter (see discussion, infra). Thus, at the very outset AAP declared that "The 'minimum qualifications' principle shall guide the establishment of job requirements for all City job classifications." AAP then provided that the personnel department shall use written tests on a nonranking basis only, and the qualification of the applicants shall be determined on the results of oral interviews. AAP made it mandatory that the interview panels include at least one minority person and one woman; while at the same time it precluded the panel members from eliciting information regarding the applicant's test scores, performance appraisals, sick leave record and/or previous disciplinary actions. AAP next provided that the employment lists be restricted to three general categories ("Outstanding," "Well Qualified," and "Qualified"), and that the names of the candidates in each qualifying category be listed in alphabetical order rather than according to the actual test scores achieved on the examinations. AAP also ordered that the appointment register (a list of all qualified applicants taken from the employment list) be arranged in order of hiring priorities; that all future vacancies in the city's civil service be filled from the appointment register; that all applicants be interviewed and recommended in order of hiring priorities; and, most importantly, that vacancies in city service be filled on the basis of hiring priorities and underutilization, unless upon the request of the department head a waiver is granted by the city manager.

The most egregious, racially discriminative nature of AAP was demonstrated by the scheme under which the so-called "hiring priorities" and "underutilization" 3 were to be determined. For the purpose of achieving the overall policy goal of proportional employment, AAP set up a rigid quota system which worked as follows: First, AAP classified the city population by race and sex. Next, it required that the race and sex of the employees be ascertained within each department, job classification and salary category. As a following step, the percentage of race and sex was to be compared to the population of the City of Berkeley as a whole, as indicated in the census. If the percentage of a particular race or sex in a department, job classification or salary category was below its percentage in the Berkeley population, the group was deemed "underutilized" and became a priority group for hiring and promotion.

The present lawsuit grew out of the application of AAP in filling certain vacancies in the Berkeley Fire Department. As the record indicates, on or about June 5, 1974, there were four vacancies for the promotional position of fire captain and three for the job title of fire lieutenant. The city had eligibility lists with respect to both job categories. Contrary to the mandate of AAP, the lists were compiled on the basis of competitive examinations and contained a numerical ranking of the candidates based upon their performance in the examinations. The eligibility list for fire captain comprised nine names. Although respondents Hiatt and Rinne ranked higher on the list than Melvin E. Thompson, a minority candidate, Thompson was promoted to fire captain solely because of his race. The very same occurred with regard to the promotion of Clinton Beacham, a minority employee, to the position of fire lieutenant. The record affirmatively shows that despite the fact that Beacham ranked tenth in the group, and respondents Salter, Parks, Jones, Littley, Wolf and Leimone were more qualified and outranked Beacham, he was promoted solely on the basis of his race.

While it appears that a racial imbalance existed in the command structure of the fire department, the evidence introduced at trial indicated, and the superior court so found, that the City of Berkeley had not discriminated in the past on any occasion against any person on the ground of his or her race or sex concerning employment opportunities with the City of Berkeley in general or with its fire department in particular. The record likewise disclosed that the City of Berkeley had adopted AAP in recognition of a "history of discriminatory employment practices throughout all segments of American society" but AAP contained no legislative declaration of past discriminatory conduct on the part of the City of Berkeley itself.

Based upon the foregoing considerations, the trial court inter alia concluded that the promotions under challenge were made solely on the basis of race, and that lesser qualified persons were appointed to the positions of fire captain and fire lieutenant pursuant to the directives of AAP. The court also held that certain provisions of AAP directing or facilitating employee appointments or promotions on the sole basis of race or sex, rather than on merit, were unduly discriminatory and therefore violative of the constitutional and statutory provisions proscribing racial and sexual discrimination. 4 In accordance therewith, the trial court enjoined appellants: (1) from promoting any person except on the basis of eligibility lists established by open, competitive examination which shall reflect the scores achieved by the candidate on both the written and oral examinations as prescribed by city charter, article XVI, section 119; (2) from denying promotion to any person on the grounds of race, color, sex, national origin or ancestry or from granting any applicant for promotion any preference or advantage on the aforestated bases; and (3) from adopting or implementing any personnel policy or system which fails to promote candidates on the basis of open, competitive and free examinations uniformly and fairly administered to each candidate.

The Appeal

The trial court expressly concluded that in pertinent respects AAP conflicted with the equal protection clauses of both federal and California Constitutions, as well as with California Labor Code section 1420 and following, title VII of the Civil Rights Act of 1964 (42 U.S.C., § 2000e et seq.), and section 37 of the Berkeley Charter. Appellants' broad attack on the propriety of the court's judgment implicitly challenges each of the alternative conclusions on which the judgment was based: If any one of the alternative conclusions is correct, the judgment insofar as it enjoins the specified elements of AAP and awards damages to respondents should be affirmed. In this court, the parties have directed their arguments primarily to the...

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