Officers for Justice v. Civ. Serv. Comm.

• Decision Date: 16 April 1979
• Docket Number: No. C-73-0657,C-77-2884 RFP.,C-73-0657
• Citation: 473 F. Supp. 801
• Parties: The OFFICERS FOR JUSTICE et al., Plaintiffs, v. The CIVIL SERVICE COMMISSION OF the CITY AND COUNTY OF SAN FRANCISCO et al., Defendants. UNITED STATES of America, Plaintiffs, v. The CITY AND COUNTY OF SAN FRANCISCO et al., Defendants.
• Court: U.S. District Court — Northern District of California

473 F. Supp. 801

The OFFICERS FOR JUSTICE et al., Plaintiffs, v. The CIVIL SERVICE COMMISSION OF the CITY AND COUNTY OF SAN FRANCISCO et al., Defendants.

UNITED STATES of America, Plaintiffs, v. The CITY AND COUNTY OF SAN FRANCISCO et al., Defendants.

Nos. C-73-0657, C-77-2884 RFP.

United States District Court, N. D. California.

March 30, 1979.

On Motion to Intervene April 16, 1979.

COPYRIGHT MATERIAL OMITTED

Robert L. Gnaizda, Lois Salisbury, Public Advocates, Inc., San Francisco, Cal., Oliver Jones, Counsel to NAACP (Western Region), Oakland, Cal., for plaintiffs The Officers for Justice.

Gerald F. George, Linda C. Jamieson, U. S. Atty., Maimon Schwartzchild, Civil Rights Division, U. S. Dept. of Justice, Washington, D. C., for plaintiff United States of America.

George Agnost, City Atty., Michael C. Killelea, Philip S. Ward, San Francisco, Cal., for defendant The Civil Service Commission of the City and County of San Francisco.

Jerome A. DeFilippo, San Francisco, Cal., for defendant Charles Gain, Chief of Police, San Francisco Police Dept.

Stephen W. Soloman, Ralph B. Saltzman, Marina del Rey, Cal., for intervenor Police Officers Assn.

ORDER

PECKHAM, Chief Judge.

This court is now asked to approve a settlement agreement reached by all parties in this case. The proposal represents the culmination of almost six years of litigation that included several preliminary injunctions and orders, a settlement tentatively agreed to that eventually collapsed, and two weeks of actual trial before a recess that led to weeks of hard bargaining by all the parties that produced this final agreement. As we have stated on numerous previous occasions, this suit involves issues of extraordinary sensitivity and importance—to the parties who have brought it and to the members of minority groups that they represent, to the incumbent members of the San Francisco Police Department, to the governing bodies and institutions of San Francisco and their members, and to the entire community of this City.

In considering the merits of this proposed decree, we are mindful not only of the favored status of settlements in Title VII litigation, but also the advantages to the parties and the community offered by a consensual resolution of this lawsuit—the avoidance of a long, public and divisive trial of the Police Department and related City institutions and their members, with an outcome potentially involving court-imposed remedies uncomfortable for all and popular with no one. We have considered formal objections filed in response to the court's public notice of a proposed settlement. We discuss below those submissions—one filed by a group of sergeants in the department who protest the decree's effects on their rights and standing, and another filed by a named plaintiff who contends that the decree provides inadequate redress and prospective relief. In short, we have attempted to consider the interests of everyone touched by the proposed settlement of this suit, as well as the facts already established and the relevant law.

History of the Case

A brief historical summary of this litigation will give a proper perspective on the task at hand. In 1973, the private plaintiffs, including individual victims of discrimination and organizations representative of the interests of various minority groups in San Francisco, brought suit against the San Francisco Civil Service Commission, the Police Commission of San Francisco, and the Chief of the San Francisco Police Department, charging racial and sexual discrimination in the employment practices of the department. The San Francisco Police Officers Association (POA) intervened as defendants. In November of 1973 this court issued a preliminary injunction barring the use of discriminatory entrance and sergeant's promotional examinations and imposing a quota of three minority applicants for every two nonminority applicants in hiring patrol officers and a quota of one-for-one in permanent promotions to sergeant. 371 F.Supp. 1328 (N.D. Cal.1973). In 1975 we enjoined the use of the 5'6" minimum height requirement for Q-2 patrol officers, imposed a temporary quota for hiring women to Q-2 positions, and ordered that the physical agility test be scored and weighted so as not to discriminate against women applicants. By then a new Q-2 exam had been developed whose overall impact on minorities was acceptable, so the three-for-two entry level quota was dissolved. 395 F.Supp. 378 (N.D.Cal.1975). In 1977 the one-for-one quota was extended to the temporary appointment of sergeants. 14 E.P.D. 7548 (N.D.Cal.1977). However, the U. S. Court of Appeals for the Ninth Circuit stayed that order pending its appeal. The use of a discriminatory Q-35 assistant inspector's exam was enjoined. 14 E.P.D. 7549 (N.D.Cal.1977). The United States also sued the City for discriminatory employment practices in 1977, and its suit was consolidated with the private plaintiffs' suit. In the spring of 1978 the public and private plaintiffs and counsel for the City reached a tentative settlement. However, the POA vigorously opposed it and a majority of the Board of Supervisors of the City refused to approve it. In September 1978 we granted the government's motion for partial summary judgment with respect to entry-level examinations given in 1969-72 and the Q-50 sergeant's exam given in 1971. The use of these exams was held to violate Title VII of the Civil Rights Act of 1964, the State and Local Fiscal Assistance Act of 1972, and the Omnibus Crime Control and Safe Streets Act of 1968. Trial of the race discrimination issues commenced in November 1978 and recessed after two weeks for further settlement negotiations which eventually produced the instant proposal filed with the court on January 25, 1979. Notice of the proposed settlement was sent to all identifiable members of the class and published in various newspapers. A hearing on the fairness of the proposed consent decree was held on March 5, 1979, and the proposal and objections to it were taken under submission.

Because this settlement was reached after but two weeks of trial, complete findings of fact and conclusions of law were not made, but that does not mean that what went on before is without significance in considering approval of this consent decree. The long history of this litigation includes various evidentiary hearings, stipulations, and findings and conclusions previously made by this court, and it forms an essential part of the record upon which this court must base its decision. We summarize some of its essential aspects.

The ethnic composition of the San Francisco Police Department at the outset and throughout this litigation differed significantly from the ethnic make-up of the City and County of San Francisco. Blacks, Hispanics and Asians were and continue to be substantially underrepresented. This disparity is even more pronounced in the upper ranks of the department—assistant inspector, sergeant and above. Written examinations for the selection of patrol officers and for promotions to sergeant that were administered from 1969 to 1972 displayed a substantial adverse statistical impact on minorities who took them. The job-relatedness of these exams was not established, and their use constitutes a violation of section 703 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a).

The 5'6" pre-selection minimum height requirement that was used by the City until enjoined by this court also impacts adversely on Hispanics, Asians and women. As such it presents a prima facie case of employment discrimination, unrebutted by defendants in this action.

Before the filing of this action, women were totally excluded from the position of patrol officer in the San Francisco Police Department, and Q-20 policewomen were not eligible for promotion to the rank of sergeant or higher. The physical agility test that was administered to applicants when the position of Q-2 patrol officer was opened to women had a very significant adverse impact on women. The City was unable to establish the validity of this test during this litigation, and its use was modified by an order of this court.

We also note the adverse statistical impact on Blacks that the 1976 Q-35 assistant inspector's promotional examination displayed. Although the number of minority officers taking that exam was too small to establish a prima facie case of discrimination based on statistics alone, indications of discriminatory impact were serious enough to justify an injunction against its use in making permanent promotions to that rank.

Finally we offer the observation that during the course of this litigation, including the opening days of its trial that occurred before this settlement was reached, substantial evidence of intentional discrimination was presented to this court.

Objections

A group of police officers currently holding the permanent rank of sergeant in the San Francisco Police Department have objected to the proposed consent decree and have moved to intervene in this lawsuit. They claim that the decree violates their rights under the San Francisco City Charter to have a lieutenant's promotional examination given every four years. They further claim that the decree deprives them of vested seniority rights and their rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., and under 42 U.S.C. §§ 1981 and 1983. Although we have denied their application to intervene in this action, the objections and interests as third parties potentially affected by the operation of the proposed decree are relevant and necessary considerations in our decision on whether to approve this settlement. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, at 371-76, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); Mandujano v. Basic Vegetable Products, Inc., 541 F.2d 832, at 837 (9th Cir. 1976).

The last lieutenant's exam was given in 1972, as the City on...