Officers for Justice v. Civil Service Com'n of City and County of San Francisco

• Decision Date: 21 September 1982
• Docket Number: No. 79-4285,79-4285
• Citation: 688 F.2d 615
• Parties: 29 Fair Empl.Prac.Cas. 1473, 30 Empl. Prac. Dec. P 33,064 The OFFICERS FOR JUSTICE, et al., Plaintiffs-Appellees, and Jesse J. Byrd, Plaintiff-Appellant, v. The CIVIL SERVICE COMMISSION OF the CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellee, v. The CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 615

688 F.2d 615

29 Fair Empl.Prac.Cas. 1473,

30 Empl. Prac. Dec. P 33,064

The OFFICERS FOR JUSTICE, et al., Plaintiffs-Appellees, and Jesse J. Byrd, Plaintiff-Appellant, v. The CIVIL SERVICE COMMISSION OF the CITY AND COUNTY OF SAN

FRANCISCO, et al., Defendants-Appellees.

UNITED STATES of America, Plaintiff-Appellee, v. The CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants-Appellees.

No. 79-4285.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 11, 1981.

Decided Sept. 21, 1982.

Roland Mallory, Mallory, Shamiyeh & Bowie, San Francisco, Cal., for plaintiff-appellant.

Michael C. Killelea, Deputy City Atty., Lois Salisbury, Maimon Schwartzchild, Asst. U. S. Attys., San Francisco, Cal., argued for defendants-appellees; George Agnost, City Atty., San Francisco, Cal., on brief.

Appeal from the United States District Court for the Northern District of California.

Before ANDERSON and NORRIS, Circuit Judges, and TAKASUGI, ^* District Judge.

J. BLAINE ANDERSON, Circuit Judge:

I.

This appeal requires us to review a consent decree negotiated in settlement of a class action suit challenging allegedly discriminatory employment practices in the San Francisco Police Department. Jesse Byrd, a named party plaintiff and class representative, renews the objections to the settlement that he raised in the court below. The district court, 473 F.Supp. 801, rejected his and others' objections and entered judgment. We now affirm the district court's order validating and approving the consent decree.

II.

Most of the pertinent background of this lawsuit can be gleaned from the several published orders (referenced below) issued by the district court at various stages in this lengthy litigation. Rather than further clutter and unnecessarily enlarge the federal reporter system with all the factual details of the case, we will repeat and expand upon only those aspects particularly relevant to the specific objections advanced by Byrd.

The suit was initiated in April, 1973, and was styled as a class action. The named plaintiffs were eleven individuals, including Byrd, and five organizations ¹ representative of the interests of various minority groups in San Francisco. The complaint named as defendants the San Francisco Civil Service Commission and the Police Commission. The Chief of Police and various other officials were sued in their official capacities. The San Francisco Police Officers Association, the certified collective bargaining agent for the police officers of San Francisco, intervened as defendants.

The complaint charged defendants with having promulgated a widespread pattern and practice of racial and sexual employment discrimination in hiring, promotion, and job assignments, in violation of 42 U.S.C. § 1981 and § 1983, and sections of the United States and California Constitutions. In addition to specific allegations of discrimination by the named plaintiffs, the complaint set forth a rather forceful statistical demonstration. The statistics reflected striking differences between the racial and sexual composition of the S.F.P.D. and that of the city. These groups appeared to be vastly underrepresented in the In November, 1973, plaintiffs moved for a preliminary injunction suspending the use of the hiring and promotional written examinations. The district court found plaintiffs' statistical demonstration sufficient to establish a prima facie case of racial discrimination ⁴ with respect to the entry-level hiring of patrolmen and promotions to the rank of sergeant, which the defendants were unable to defend as indicative of job performance. ⁵ Officers for Justice v. Civil Service Commission ("O.F.J."), 371 F.Supp. 1328, 1331-1333 (N.D.Cal.1973). However, the number of minority applicants taking the examinations for promotions to ranks higher than sergeant was too small to support a statistically reliable statement of the differential effects of those examinations. Id. at 1333-1334. The district court enjoined the further use of the entry-level and sergeant-level promotional examinations and ordered that entry-level patrolmen be hired at a ratio of three minority applicants for every two non-minority applicants, and, similarly, imposed a one-to-one ratio for appointments to the rank of sergeant. Both ratio quotas were to remain effective until the minority composition in each category reached a minimum of thirty per cent. Id. at 1342-1343. The district court further ordered that future examinations and selection procedures were to be submitted to the court for review and approval.

upper ranks of the department. Moreover, minorities and women appeared to be concentrated in certain units, bureaus, and subdivisions in the department, while virtually absent in others. Plaintiffs claimed these discrepancies resulted primarily from the use of unvalidated written examinations and various other class-biased screening and selection devices. They sought classwide ² relief, including declaratory, preliminary, and permanent injunctive relief, various affirmative remedial measures, class damages, ³ costs and attorneys' fees.

By similar analysis, the district court ordered further preliminary injunctive relief in 1975. O.F.J., 395 F.Supp. 378 (N.D.Cal.1975). The court found that the 5'6 pre-selection height requirement for patrol officers had a statistically disproportionate, adverse impact on Asians, Latins and women Disgruntled by the early results of hiring from the eligibility list generated by the newly designed entry-level examinations, plaintiffs returned to court in January, 1977, seeking to have a minority hiring ratio reinstated, but in the proportion of three-to-one. While disappointed by the initial results, Judge Peckham concluded that the shortcomings were largely attributable to unforeseen budgetary restraints and various other factors that were not likely to recur in the immediate future, thus the request for reimposition of hiring quotas was denied. O.F.J., 20 FEP Cases 1304 (N.D.Cal.1977). However, the district court did extend its previously ordered quota on permanent promotions to the rank of sergeant to cover temporary promotions to that rank. These temporary promotions were necessitated by defendants' failure to devise a non-discriminatory examination to generate eligibility lists for permanent promotions. The sole criteria for making the temporary promotions was seniority. In ordering the quota extended, the court declared:

                that the defendants could not justify by demonstrating job-relatedness, and its further use was enjoined.  Id. at 381.  Likewise, the defendants failed to defend the application of the physical agility test for patrol officers which was demonstrated to have an "almost total" adverse impact on women applicants.  6  Id. at 381-385.  The court ordered adoption of an experimental program to select and place on patrol sixty female officers.  Id. at 386.  The court also withdrew its previously ordered minority hiring quota, permitting the defendants to proceed with hiring based upon a new entry-level list composed of nearly forty percent minority applicants.  Id. at 387
                

"We note with dismay that, given a free choice, defendants have chosen to utilize what is perhaps the most discriminatory possible criteria in light of this court's finding of discrimination at the Q-2 level (patrol officer), from whose ranks such promotions are made. It therefore comes as no surprise that virtually none of the temporary promotions made to date are minorities. We also note that defendants' ability to promote for an indefinite period on the basis (of) seniority under the limited tenure rule dissipates any incentive to design a validated exam permitting permanent appointments in accordance with our 1973 order. We find the inference strong that the three-years delay in designing such an exam is not a mere coincidence."

Id. at 1308. The district court's order, however, was stayed by our court pending appeal.

Plaintiffs invoked the district court's jurisdiction again in January, 1977, seeking preliminary injunctive relief from the examination used for promotions to the assistant inspector rank. In 1973, the district court found plaintiffs' statistical demonstration insufficient to establish a prima facie case of racial discrimination at that rank and preliminary relief was denied. Plaintiffs supported this motion, however, upon the results of a more recently administered examination in which a substantial number of minorities had participated. The district court again found the statistical showing inadequate to establish a prima facie case of discrimination, ⁷ but, upon closer analysis of the available data, preliminarily enjoined permanent promotions to assistant inspector. The court concluded that the test results raised serious questions regarding the adverse impact on minorities that, when coupled with the balance of hardships weighing sharply in favor of plaintiffs, justified the imposition of preliminary As mentioned above, plaintiffs' original claims were brought primarily under 42 U.S.C. § 1981 and § 1983. On January 6, 1977, plaintiffs were permitted to amend their complaint to state claims under Title VII. The amended complaint contained the specific allegations of twenty-five additional, individually named plaintiffs, each of whom had received a "right to sue" letter from the EEOC, as had some of the eleven original plaintiffs, including appellant Byrd. Plaintiffs' amendment came on the heels of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), wherein the Supreme Court held that, in contrast to Title VII standards, Constitution-based claims of racial discrimination cannot rest solely on racially disproportionate impact, but rather, must be premised upon a discriminatory motive or purpose. It should be noted here that each of the above referenced decisions by the district court rested on the recognized disparate impact theory of Title VII, even...