Moore v. City of San Jose
| Decision Date | 01 April 1980 |
| Docket Number | 77-3087,Nos. 77-2874,s. 77-2874 |
| Citation | 615 F.2d 1265 |
| Parties | 22 Fair Empl.Prac.Cas. 1053, 22 Empl. Prac. Dec. P 30,806 Ann Cooney MOORE et al., Plaintiffs-Appellees, v. The CITY OF SAN JOSE; San Jose Police Department; Ted Tedesco; ClintonHilliard, Defendants, and San Jose Peace Officers' Association, Defendant-Intervenor-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ronald Yank, Carroll, Burdick & McDonough, San Francisco, Cal., for san jose.
Jacqueline Stewart, Wylie, Blunt & McBride, San Jose, Cal., Willie Lott, Jr., Oakland, Cal., for Moore.
Appeal from the United States District Court for the Northern District of California.
Before DUNIWAY and ANDERSON, Circuit Judges, and GRANT, * District Judge.
These are appeals from a judgment of the district court approving as "fair, reasonable and adequate" a settlement agreement (the Agreement) between the fourteen named plaintiffs (the Assistant Policewomen) and the original defendant, the City of San Jose, but opposed by the intervenor, the San Jose Peace Officers' Association (the Association), and dismissing all claims by the Assistant Policewomen against the Association and all cross claims by the Association against San Jose. In No. 77-3087, the Assistant Policewomen attack the district court's dismissal of their claims against the Association, including their claim for attorneys' fees. In No. 77-2874, the Association attacks the district court's dismissal of its claim against San Jose and its upholding the Agreement insofar as it grants retroactive seniority to the Assistant Policewomen. The Association also claims that the approval of the Agreement was error because the Assistant Policewomen's claims were barred by the statute of limitations.
We affirm the district court on all points.
This case was filed in 1975 as a class action alleging that San Jose had violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Supp. V, 1975), the Equal Pay Act, 29 U.S.C. § 201 et seq., and San Jose's affirmative action plan, by discriminating against the women in the assistant policewoman job classification, by maintaining sex-segregated job classifications, and by paying the assistant policewomen less than it paid men in the police officer job classification. Later, the class action allegations were stricken and thirteen additional assistant policewomen joined the suit as named plaintiffs, after having filed charges with the Equal Employment Opportunity Commission in 1976. 1 The Association was allowed to intervene for the limited purpose of contesting the fairness of a settlement of the charges reached by the Commission, the Assistant Policewomen and San Jose, which was presented to the court in settlement of all of the Assistant Policewomen's claims against San Jose. The Association filed suit in state court to prevent implementation of that agreement. San Jose and the Association agreed to a temporary restraining order to prevent such implementation.
In September, 1976, the Assistant Policewomen filed supplemental pleadings joining the Association as a defendant, alleging that it had violated Title VII and the Equal Pay Act, and had breached both its duty of fair representation and the nondiscrimination clause of its negotiated contract with San Jose. The Assistant Policewomen requested equitable relief, back pay and attorneys' fees from the Association. The Association filed a cross-complaint against San Jose to prevent implementation of the settlement agreement.
In 1977, the Commission, San Jose and the Assistant Policewomen negotiated a new settlement agreement, the one ultimately approved. Under the terms of the Agreement, the Assistant Policewomen are to be appointed to the police officer job classification, and must satisfactorily complete the training required of police officers. Their seniority as police officers will date from their appointment as assistant policewomen. Some of the Assistant Policewomen's seniority dates pre-date March 24, 1972, the date Title VII became applicable to public employers.
After hearing extensive evidence from 28 witnesses and reviewing 57 exhibits, the district court concluded that the Agreement was fair, reasonable and adequate and that its implementation would not have a significant adverse impact on the incumbent police officers. In support of these conclusions, the court found that San Jose had discriminated against the plaintiffs both before and after 1972. It also found that the Association was not a party to such discrimination. It entered a judgment incorporating the settlement of the Assistant Policewomen's Title VII claims against San Jose and dismissing all remaining claims among the Assistant Policewomen, San Jose and the Association.
The Association moved for reconsideration and amendment of the judgment and for an injunction restraining implementation of the Agreement in light of the intervening decision of International Brotherhood of Teamsters v. United States, 1977, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (hereafter Teamsters ). The district court denied the motion.
The evidence received at the hearing relating to San Jose's employment practices showed the following: Before 1973, the police officer job classification was exclusively male. 2 The first woman was appointed a police officer in that year, but remained the only woman in that classification until 1976. As of 1977, there were only 12 women out of approximately 587 police officers. Before these appointments of women to police officer positions, women were hired and assigned only to the identification officer classification, and after its elimination, to the assistant policewoman classification. As recently as 1975, city publications referred exclusively to men in speaking of job eligibility for police officers.
The identification officer classification (ID officers) was exclusively female, with the exception of one male incumbent. He was later appointed a police officer with the assistance of the Association, upon waiver of some of the usual entrance requirements for that position, including the physical agility test. The women ID officers were uniformed, gun-carrying sworn personnel who performed a combination of police and clerical duties. They were virtually the only women members of the sworn police force.
In September, 1970, the 26 women ID officers were reclassified to a new civilian position identification technician (ID technician) and their salaries were frozen. At the same time, a new position assistant policewoman was created. Originally, nine of these positions were available to be filled by examination from the ranks of the ID technicians (former ID officers). Assistant policewomen are sworn, uniformed, weapon-carrying police personnel performing tasks essentially the same as those performed by the ID officers. The district court found that their work was not substantially the same as that of police officers. Since its creation, the assistant policewoman position has been held only by women, and has been considered an entry-level position with promotion to a policewoman classification but not to the separate entry level police officer classification.
In 1973, San Jose and the Assistant Policewomen reached an agreement to provide access for them to police officer positions by modifying or waiving some of the usual entrance requirements. 3 Four of them attempted to become police officers under the terms of this agreement but none was successful at least two of them were not able to pass the physical agility test.
The Association became the exclusive bargaining agent for sworn police personnel in 1969. It represented the ID officers before the elimination of that classification and it later represented the assistant policewomen. Before the first collective bargaining agreement, "seniority" (normally from the date of appointment) within a job classification determined the order of choice for assignment to particular shifts, beats, days-off, supervisors and vacations, but did not affect either earnings or promotions. The first and subsequent collective bargaining agreements do not mention this use of seniority, but contain a "zipper clause" providing that existing practices and benefits not referenced in the collective bargaining agreement will continue without change unless modified by mutual agreement of the parties.
The Agreement reached in settlement of the Assistant Policewomen's Title VII claims against San Jose provided that the Assistant Policewomen would be assigned to the police officer job classification, with seniority dating from the date of their appointment as assistant policewomen. The usual college credit requirement and age limitations for appointment as a police officer were waived, but each of the named plaintiffs is required to satisfactorily complete the training required of all police officers and, within five years of her appointment to complete the requisite number of college credits.
The district court found that the Agreement would not result in any deterioration of employment standards, because all the women were required to complete the same training as new police officers. It found insignificant the effect of waiving or adjusting the usual age limitations, noting that "the City's past discrimination has been partially responsible for excluding women from police officer jobs until they passed the age limit and until it became difficult for them to pass the agility test." 4
The district court also found that the effect of the seniority provisions of the Agreement would be minimal because the number of women involved is so small (12) in relation to the total number of police officers (590) that the impact of seniority adjustments would be diffused.
The Association approaches ...
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