Higgins v. City of Vallejo, 86-1904
| Decision Date | 29 July 1987 |
| Docket Number | No. 86-1904,86-1904 |
| Citation | 823 F.2d 351 |
| Parties | 44 Fair Empl.Prac.Cas. 676, 43 Empl. Prac. Dec. P 37,293, 56 USLW 2131 Patrick HIGGINS, Plaintiff-Appellant, v. CITY OF VALLEJO, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Alan C. Davis, San Francisco, Cal., for plaintiff-appellant.
Michael H. Roush, Vallejo, Cal., for defendant-appellee.
Appeal from the United States District Court for the Eastern District of California.
Before CHOY, PREGERSON and CANBY, Circuit Judges.
Appellant Patrick Higgins, a white male, filed a reverse discrimination suit against the City of Vallejo, California ("the City"). In his complaint, Higgins alleges that the hiring of Errol Cooley, a black male, instead of Higgins for the position of firefighter/engineer violates the City's Charter and other local laws, Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e-2000e-17, and the equal protection clause of the fourteenth amendment to the United States Constitution. The district court
granted summary judgment for defendants on all claims, and we affirm.
In December of 1983, a firefighter/engineer position became available in the Vallejo fire department. Patrick Higgins and Errol Cooley, ordinary firefighters in the department, both decided to apply for promotion to the firefighter/engineer position. Along with numerous other firefighters, they took a competitive written examination and three practical examinations. The applicants were ranked according to their performance on the examinations. At the time when the position became available, Higgins ranked first, with a score of 94.17 out of 100, and Cooley ranked third, with a score of 93.09.
The City charter vests the power of appointment to various City positions in the city manager. The chief of the fire department recommended to the city manager that Higgins be granted the promotion to firefighter/engineer. The city manager instead promoted Cooley because the selection of Cooley was consistent with the City's affirmative action plan. 1
The Vallejo Firefighters Union, Local 1186, AFL-CIO, filed a grievance on behalf of Higgins concerning the promotion of Cooley. The grievance alleged that Cooley's promotion violated the labor agreement between the Union and the City. The arbitrator found no violation of the labor agreement. Higgins then filed this action in the district court alleging violations of local law, Title VII, the California constitution, and the United States Constitution. Both parties filed motions for summary judgment. The district court granted defendants' motion for summary judgment on the ground that the promotion of Cooley was consistent with local laws, federal statutes, and the state and federal Constitutions. Higgins appeals on all issues except the state constitutional issue.
We review de novo district court orders granting summary judgment. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986) (citing Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983)); Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986). This court's review is governed by the same standard used by the district court under Fed.R.Civ.P. 56(c). Darring, 783 F.2d at 876. We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
Appellant Higgins argues that by promoting Cooley the City violated the City charter and the City affirmative action ordinance. Because appellant's argument would require us to disregard the underlying purpose of the City's legitimate affirmative action plan and to read the City's laws as inconsistent with one another, we reject it.
The City charter provides for the hiring of City employees and sets forth the basic principle that race should not be considered in employment decisions if such consideration is inconsistent with the merit principle. Section 500 of the charter lists the powers and duties of the city manager, which include the appointment of City employees. At Section 800, the Charter provides that "[a]ll appointments shall be based on ability and experience as determined by tests and records of achievement." The City's Civil Service Commission rules provide that after applicants for a promotion have taken various competitive examinations, their names should be placed on a list in rank order, with extra points given for seniority and veteran status. Once the list is compiled, the names of the top three applicants are certified. The city manager may grant the promotion to any of the certified individuals.
The City Charter stresses the importance of the merit principle. Section 803 states that the City Council shall create a "modern system of personnel administration" that includes provision for:
a. an orderly system of positive recruiting and competitive examinations for entrance to the civil service, free of all political, religious, racial and other considerations not consistent with the merit principle, and properly advertised;
b. a system for promotions within the service based on competitive examinations or demonstrated merit as shown by records of performance and seniority, or some combination thereof....
(Emphasis added.)
When the City promoted Cooley in 1983, the City's affirmative action plan consisted of a resolution passed in July 1982 and an ordinance adopted in September 1982. An investigation conducted by the California Fair Employment Practices Commission before the plan was adopted indicated that the City's employees were not representative of the racial makeup of the City's population.
The July 1982 resolution stated:
It is the goal of the City of Vallejo to hire and to promote within the City Government at the various levels of compensation and in the various groups of classifications such that the racial or ethnic and gender composition of the City Government work force will be consistent with the racial and gender composition of the City, as established by the 1980 Census for the City of Vallejo.
Implementation of the City's goal will be achieved by a hiring and promotion policy aimed at minorities and women that includes a rate in excess of their proportion in the population of the City.
(Emphasis added.)
The September 1982 ordinance stated the same goal of equal employment opportunity, but also reaffirmed the City's adherence to the merit principle. Among the ordinance's statements of findings and declarations was this provision:
B. The Council of the City of Vallejo continues to declare its intention to accomplish this goal of equal employment opportunity within the framework of the City Charter which requires an orderly system of positive recruiting and competitive examinations for entrance to the civil service of the City of Vallejo, and for advancements and promotion in the Civil Service based upon competitive examinations or demonstrated merit as shown by records of performance and seniority or some combination thereof, free of all political, religious, racial and other considerations not consistent with the merit principle.
The district court's unpublished disposition contains a well-supported and well-reasoned analysis of the intricacies of the charter, the ordinance, and the resolution and of the relationship among them. The court cites the basic rule of harmony in statutory interpretation, see Watt v. Alaska, 451 U.S. 259, 267, 101 S.Ct. 1673, 1678, 68 L.Ed.2d 80 (1981), and the strong presumption of validity for municipal laws, see City of Industry v. Willey, 11 Cal.App.3d 658, 663, 89 Cal.Rptr. 922, 924 (1970).
The district court correctly concluded that a harmonious reading of the City's charter, Civil Service Commission rules, and affirmative action plan indicates that promotions should be granted only to qualified individuals, but that race may be used as an additional factor in selecting among a group of qualified candidates. Under this reading, promotions are to be "based on" merit, but the City may also consider additional factors that are consistent with the merit principle. Race is one such additional factor.
Appellant's argument that local law prohibits a consideration of race is based on the unsupported premise that taking race into consideration is inconsistent with the merit principle. The City's mandate that appointment "be based on ability and achievement" does not preclude consideration of an applicant's race. In addition, appellant assumes that the merit principle requires giving a promotion to the applicant with the highest numerical test score. The Civil Service Commission rules do not require an absolute devotion to test scores. The rules do not require the city manager to select the highest ranking eligible candidate; instead, the city manager retains discretion to choose among the top three. As the City's affirmative action ordinance indicates, the City wanted to achieve equal opportunity, but did not want to sacrifice quality in its work force. The promotion of Cooley is in accord with these goals. Thus, the promotion of Cooley does not violate the City charter or the City affirmative action plan.
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Secs. 2000e-2(a) provides:
It shall be an unlawful employment practice for an employer--
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to...
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