Lindsay v. City of Seattle, 43750

• Decision Date: 08 April 1976
• Docket Number: No. 43750,43750
• Citation: 548 P.2d 320,86 Wn.2d 698
• Parties: , 12 Fair Empl.Prac.Cas. (BNA) 1440, 11 Empl. Prac. Dec. P 10,905 Michael E. LINDSAY et al., Plaintiffs, Wesley Brabant, Appellant, v. The CITY OF SEATTLE et al., Respondents, Robert L. Green and United Construction Workers Association, Respondents, Emeliano Ponce, Respondent.
• Court: Washington Supreme Court

Page 698

86 Wn.2d 698

548 P.2d 320, 12 Fair Empl.Prac.Cas. (BNA) 1440,

11 Empl. Prac. Dec. P 10,905

Michael E. LINDSAY et al., Plaintiffs, Wesley Brabant, Appellant, v. The CITY OF SEATTLE et al., Respondents, Robert L. Green and United Construction Workers Association,

Respondents,

Emeliano Ponce, Respondent.

No. 43750.

Supreme Court of Washington, En Banc.

April 8, 1976.

Siderius, Lonergan & Crowley, C. R. Lonergan, Jr., Seattle, for appellant.

James E. Fearn, Jr., Legal Services Center, Seattle, John P. Harris, Corp. Counsel, Gordon F. Crandall, Seattle, for respondents.

This opinion was prepared by Justice Robert C. Finley before his death. It is adopted by the undersigned Justices as the opinion of this Court.

The central issue raised in this case is whether the City of Seattle may adopt a system or program for the employment of civil service workers that gives special employment preference or priority as to jobs to certain qualified individuals solely because they are members of minority groups.

Wesley Brabant, a civil service employee with the City of Seattle, was passed over for possible promotion to a foreman's position in the engineering department. Instead, Emeliano Ponce, a Spanish surnamed minority eligible, was chosen to fill the vacancy to further the goals of the City's 'affirmative action program,' which was designed to correct preexisting discrimination and to equalize employment opportunities in the City's civil service. Brabant brought suit against the City, alleging his entitlement to promotion to the position which had been given to Emeliano Ponce. The trial court granted defendant's motion for a summary judgment and Brabant has appealed.

Brabant contends the trial court erred in denying him relief because: (1) selective certification under Rule 7.03(j), Seattle Civil Service Laws and Rules, violates the express provisions of article 16, section 9, of the City charter; (2) the selective certification violates the fourteenth amendment to the United States Constitution and Const. art. 1, § 3; (3) the Commission lacks the authority to delegate to its secretary the discretionary power to certify eligible candidates for appointment; and (4) the City's affirmative action program goes beyond existing federal or state requirements. We disagree and affirm the trial court.

The parties have agreed and stipulated as to the facts, which we recap as follows: On August 25, 1972, the Mayor of Seattle issued an executive order establishing an Affirmative action program. The goal of the program was 'to increase the number of underrepresented persons employed by the City to correspond with their statistical composition within the available working force of the population' of Seattle. The City passed an ordinance, approved by the Mayor on October 27, 1972, that provided for implementation of the affirmative action program 'to achieve equality of City employment opportunities for members of minority races.' Under the ordinance, all City departments were required to establish and maintain effective affirmative action programs until the effects of inequality of employment opportunities were eliminated. The Seattle engineering department, on June 21, 1972, promulgated a departmental policy statement that established as the goal of that department the achievement of ratios of minority employment 'comparable to the ratios of . . . minorities in the Seattle Community.' The department adopted as an emergency measure during the years 1972--74 a rule that 'the first of every three vacancies resulting from retirement or termination in under-represented classes will be filled with appropriate minorities.'

Article 16, section 9, of the Seattle City Charter established the method by which the Civil Service Commission shall certify available eligible candidates to a department head for possible employment by the City. Specifically, it provides that, if the head of a department notifies the Commission of a vacancy in an office classified under article 16, the Commission is required to certify to the appointing authority the top five eligible candidates who have successfully passed the civil service examination and are available. In the alternative, the Commission is required to certify the top 25 percent of the available and eligible candidates on the register if that number is more than the top five.

As a result of the emphasis placed on affirmative action in public employment and the City's awareness that its employee selection procedures had discriminated against minorities, the Commission adopted a special certification procedure to further the goals of affirmative action. Rule 7.03(j) allows selective certification of 'only the highest ranking eligibles' of a particular minority when necessary to implement the affirmative action program. A selective certification of a minority eligible must be requested by the department head, approved by the secretary of the Commission, and by the director of the City's Department of Human Rights.

The plaintiff, Brabant, a nonminority eligible, took the City's civil service examination for the position of signal electrician foreman in 1969 and was placed on the promotional register of eligibles fourth from the top with a grade of 88.58. In 1970, Brabant was appointed to an intermittent vacancy in the engineering department to serve as relief foreman when a regular foreman was on vacation or sick leave.

Emeliano Ponce, a minority applicant, also took and passed the promotional examination in 1969 and was placed on the register of eligibles eighth from the top with a grade of 81.83. In 1972, he also was appointed to an intermittent vacancy in the engineering department to serve as a relief foreman.

On January 31, 1973, the engineering department requested a selective certification to fill a vacancy of signal electrician foreman. The request for selective certification was approved, and Ponce, who was not among the top five on the eligible register at the time, was appointed by the engineering department to fill the vacancy on March 1, 1973.

The City is an 'employer' under Title 7 of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, Et seq., and is subject to its provisions. Section 2000e--2(a)(2) of the act provides that it is an unlawful employment practice for an employer to

limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

Section 2000e--5(g) authorizes courts to 'order such affirmative action as may be appropriate' to remedy the effects of unlawful employment practices. Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974).

Congress enacted Title 7 of the Civil Rights Act of 1964

to assure equality of employment opportunities by eliminating those practices and devices that discriminate on the basis of race, color, religion, sex, or national origin.

McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973); Griggs v. Duke Power Co., 401 U.S. 424, 429--430, 91 S.Ct. 849, 852--853, 28 L.Ed.2d 158 (1971). Cooperation and voluntary compliance were selected as the preferred means for achieving this goal.

Alexander v. Gardner-Denver Co., supra at 44, 94 S.Ct. at 1017. Accord: Associated General Contractors of Mass., Inc. v. Altshuler, 490 F.2d 9, 15 (1st Cir. 1973) Cert. denied, 416 U.S. 957, 94 S.Ct. 1971, 40 L.Ed.2d 307 (1974).

The City voluntarily has established a program of affirmative relief and, in an effort to comply with Title 7, has chosen selective certification of qualified minority applicants as the most efficacious means to eradicate the effects of past discriminatory practices in its employee selection procedure.

That the City's selection processes through the civil service examinations administered in the past have discriminated against minority applicants is borne out by the record and statistical information.

By affidavit dated September 7, 1973, Thomas F. Hanley, secretary of the Civil Service Commission, stated that the Equal Employment Opportunity Commission has formally charged the City with unlawful employment practices in violation of Title 7 of the 1964 Civil Rights Act, arising in part because it "administers unvalidated tests which have the effect of eliminating a disproportionate number" of minority persons. The formal charge attached to the Hanley affidavit also indicates that the City has maintained a seniority system which operates to perpetuate the effects of past discriminatory practices and procedures. The affidavit further indicates that it will take the City several years to validate all examinations given for positions by the City's civil service department, I.e., to determine whether the examinations are designed to measure reliably an individual's ability or capacity to perform a particular job.

On October 20, 1971, the Civil Service Commission, in conjunction with Rule 7.03(j), Seattle Civil Service Laws and Rules, adopted a resolution that the

civil service tests have had the effect, in some cases, of discriminating against minority applicants among those deemed eligible for appointment . . . (and that the) results (of the examinations) tend to cause the minority applicants to be placed at the lower end of the eligible registers and therefore have little or no chance of being employed.

The parties stipulated to the factual assertions stated in the Civil Service Commission's resolution.

By affidavit dated June 28, 1973, Philip Hayasaka, the City's director of the Department of Human Rights, stated that in 1969 the City had 10,294 employees, 780 or 7.6 percent of whom where members of minority races. The 1970 census, according to the affidavit, indicated that of the 530,831 persons living...