Maehren v. City of Seattle
| Decision Date | 10 August 1979 |
| Docket Number | No. 44975,44975 |
| Citation | 599 P.2d 1255,92 Wn.2d 480 |
| Parties | , 20 Fair Empl.Prac.Cas. (BNA) 854, 20 Empl. Prac. Dec. P 30,279 Charles L. MAEHREN, Richard J. Schneider, Steve J. Davidson, Rodric S. Mehus, Henry M. Cockerham, Dale T. Smith, Harold L. Jongkindt, Lewis N. Eyman, David W. Craig, Carter W. Hoffman, Keith E. Stevens, Clifford T. Myers, Dale L. Eberling, Paul H. Schneider, Stephen W. Olson, John O. Tennesen, Robert J. Robillard, Michael D. Yager, Michael R. Heaton, James W. Maier, Gary L. Carlsen and Clyde F. Neaville, Appellants, v. CITY OF SEATTLE, Nobie Chan, Donald D. Haley, Robert E. McGinty, Civil Service Commissioners, Respondents. John R. CHURCH, Jack G. Dial, Stuart G. Lorimer, Roger L. Ramsey and Edward J. Shaw, Appellants, v. CITY OF SEATTLE, Wes Uhlman, Mayor, Frank R. Hanson, Chief Seattle Fire Department, Nobie Chan, Donald D. Haley, Robert D. McGinty, Civil Service Commissioners, Respondents. |
| Court | Washington Supreme Court |
Carroll, Rindal, Kennedy & Schuck, James E. Kennedy, Joel A. Rindal, Seattle, for appellants.
Douglas Jewett, City Atty., Dona Cloud, Howell & Smith, Lembhard Howell, Seattle, for respondents.
Appellants, employees of the Seattle Fire Department, seek review of a trial court decision upholding the Affirmative Action Program used by the Fire Department and the City of Seattle in the hiring and promotion of personnel. We affirm the trial court.
At the outset we emphasize that this case does not involve a loss of acquired seniority rights, the displacement of non-minority employees by minority employees, or the downgrading of non-minority employees to favor minority The factual background of the case as evidenced by the pre-trial order, the extensive testimony and documents produced at trial, and the findings of the trial court upheld below can be summarized as follows. Pursuant to a 1972 amendment to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e Et seq., the City of Seattle is under a duty to refrain from engaging in racial discrimination in employment and to take affirmative action to eliminate the effects of past discrimination. A similar duty is mandated by Federal Executive Order 11246, Revised Order 4 of the United States Department of Labor's Office of Federal Contract Compliance, and RCW 49.60, all of which apply to the City. Recognizing this duty, the Mayor of Seattle issued an executive order in August 1972 establishing an affirmative action program for all departments of the City. The stated goal of this program was to increase the number of minorities, women, and persons over 40 years of age employed by the City to correspond with their statistical composition within the available work force of the City's population. The Mayor's Executive Order recognized that the condition of underrepresentation of such persons was "caused by present or past practices, customs or circumstances that have limited employment opportunities for members of the affected group." By Resolution 23849 and Ordinance 101548, adopted in October 1972, the Seattle City Council affirmed the Mayor's Executive Order and mandated the creation of affirmative action programs by all city departments.
employees. Further, the case does not involve the promotion of non-qualified minority employees in place of qualified non-minority personnel. All personnel, both minority and non-minority, have successfully completed the civil service examinations. The name of each man has been advanced to the civil service register as eligible for promotion to the positions in question. In short, this case involves promotion to vacant positions within the Fire Department.
The City's Affirmative Action Program was adopted in May 1973. The Seattle Fire Department had adopted an Both the City's and the Fire Department's programs approve the use of "selective certification" as a method of increasing minority representation in employment. Article 16, of the Seattle City Charter, establishes the basic method by which the Seattle Civil Service Commission is to certify eligible candidates for possible employment by the City. Initially a department head notifies the Commission of a vacancy. The Commission certifies either the top five eligible candidates, that is, those who have passed the civil service examination, or the top 25 percent of the eligible candidates, whichever is the greater. City Charter, Art. 16 § 9. Pursuant to rule making power created by Article 16 the Commission promulgated Rule 7.03j providing for selective certification. Since 1971 the selective certification procedure has been available as an alternative method for certifying the highest ranking Eligible minority candidates on the register not otherwise certifiable under regular procedures. Selective certification is used to implement the City's Affirmative Action Program when necessary to achieve increased representation of minority, female or handicapped employees. Such certification of a minority person may be requested by a department head and must be approved by the director of the Department of Human Rights and the Civil Service Commission. The rule allows selective certification only from the list of those Eligible for the vacant position, that is, Only those who have successfully passed the civil service examination. Further, only the highest ranking eligibles of a particular minority may be certified. Selective certification does not assure that a minority employee will be appointed to the position. Rather it assures that an eligible minority employee will be represented in the final pool of candidates from which the department head appoints. Selective certification is available to fill both entry-level and promotional vacancies.
Affirmative Action Program in September 1972. That program subsequently was revised by the Fire Department and approved by the Seattle Human Rights Commission in September 1976.
In 1974, certain of the appellants took and passed a promotional examination for Fire Battalion Chief administered by the Civil Service Commission. These appellants are caucasian employees of the Fire Department. Each placed within the top quartile on the eligibility register and thus was eligible to be certified under regular procedures for the position of Fire Battalion Chief. Claude Harris, a black employee of the Fire Department, also took and passed the promotion examination for Fire Battalion Chief and was placed on the eligibility register. However, he did not place within the top quartile.
In 1976 three Fire Battalion Chief positions became available and the Fire Chief made a request for certification to fill these positions. No request was made for selective certification. Subsequently, the Commission made a regular certification of employees from the register which included appellants' names and also made a selective certification of Claude Harris, the only minority employee on the eligibility register. The Fire Chief appointed two persons from the regular certification and Claude Harris from the selective certification as Fire Battalion Chiefs.
The remainder of the appellants also are caucasian employees of the Fire Department. In 1974 each took and passed a civil service promotional examination for the position of Fire Lieutenant. Each placed in the top 25 percent of the eligibility register. Donald Taylor, a black employee of the Fire Department, took and passed the examination. Although he achieved the eligibility register, he did not place in the top quartile. Between November 1973 and May 1975, 14 Fire Lieutenant positions became available in the Fire Department. The Fire Chief filed requests for certification, one of which was a request for selective certification of an eligible racial minority employee. Appellants were among those certified under the regular procedure. One selective certification was made containing Taylor's name, the only minority employee on the eligibility register. Thirteen caucasians and Taylor were appointed to these positions.
Those persons certified under the regular certification procedures but who were not appointed as Fire Battalion Chiefs filed suit challenging the selective certification procedures as violative of both Title VII of the Civil Rights Act of 1964, as amended and the equal protection guarantees of the federal and state constitutions. Those who were certified but not appointed as Fire Lieutenants filed a similar suit. Both groups also challenged the selective certifications of Harris and Taylor as invalid for failure to comply with the procedures required by Rule 7.03j. Because they present the same issues, the two suits were consolidated for trial. The trial court upheld the statutory and constitutional validity of selective certification and the procedural validity of Taylor and Harris's certifications. Appellants obtained direct review of the trial court's decision by this court pursuant to RAP 4.2.
The preliminary issues raised by appellants are evidentiary in nature. Appellants challenge a number of findings of fact made by the trial court as either lacking in substantial evidentiary support or as overbroad and misleading. We do not agree with these challenges and affirm the trial court.
When findings of fact are challenged, our consideration is limited to whether there is sufficient evidence to support them. If such support is established, the findings will not be disturbed on appeal. Culinary Workers Union v. Gateway Cafe, Inc., 91 Wash.2d 353, 588 P.2d 1334 (1979); Seattle-First Nat'l Bk. v. Brommers, 89 Wash.2d 190, 570 P.2d 1035 (1977). In reviewing the evidence, we will not substitute our judgment for that of the trial court. Lantis v. Pfarr, 67 Wash.2d 994, 410 P.2d 900 (1966).
The trial court found:
On October 20, 1971, the Seattle Civil Service Commission, by resolution, promulgated Civil Service Rule 7.03j which provides for selective certification of eligibles from any register other than in the...
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