Penn v. Stumpf, Civ. A. No. C-69 239.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtEdward A. Coggin, City Atty., and William C. Sharp, Deputy City Atty., Oakland, Cal., for defendants
Citation308 F. Supp. 1238
PartiesClarence PENN, individually and on behalf of all others similarly situated, Plaintiff, v. William F. STUMPF et al., Defendants.
Decision Date03 February 1970
Docket NumberCiv. A. No. C-69 239.

308 F. Supp. 1238

Clarence PENN, individually and on behalf of all others similarly situated, Plaintiff,
v.
William F. STUMPF et al., Defendants.

Civ. A. No. C-69 239.

United States District Court, N. D. California.

February 3, 1970.


308 F. Supp. 1239

Clifford C. Sweet and Richard P. Duane, of Legal Aid Society of Alameda County, Oakland, Cal., for plaintiff.

Edward A. Coggin, City Atty., and William C. Sharp, Deputy City Atty., Oakland, Cal., for defendants.

MEMORANDUM OF DECISION

GERALD S. LEVIN, District Judge.

This action arises from a complaint for declaratory and injunctive relief filed by the plaintiff on behalf of himself and that class of persons similarly situated. Jurisdiction is alleged under 28 U.S.C. § 1343 and 42 U.S.C. §§ 1981-1983, and under 28 U.S.C. § 2201.

The plaintiff is an adult Negro male who applied to the Oakland Civil Service Board of Commissioners for an appointment to a position as an officer with the Oakland Police Department. Several steps must be successfully completed before any applicant can be considered for a position as an officer with the Oakland Police Department. These steps include a thirty minute written "Mental Ability" test, a two hour written "General Knowledge" test, a psychiatric test, an "Oral Examination" conducted by three members of the Oakland Police Department, and a "Background Investigation" conducted by members of the Oakland Police Department staff.

The plaintiff took the aforementioned written test, but, upon being informed that he had failed to pass it, was not permitted to complete the other steps prerequisite to employment. Plaintiff alleges that he received a failing score on this test solely because of the discriminatory nature of the test.

Plaintiff contends that the nature of the recruiting and hiring processes involved in employment with the Oakland Police Department are violative of the Constitutional rights to due process of law and of the equal protection of the laws to which he, and other Negro, Mexican American, and Spanish surname people of the class of which he is a member, are entitled.1 Specifically,

308 F. Supp. 1240
plaintiff alleges that the hiring and recruiting of officers for the Oakland Police Department discriminates against members of minority racial and ethnic groups because such activities do not take into account the cultural differences in non-Caucasian communities. In addition, plaintiff alleges that the members of the Oakland Police Department who are active in the hiring and recruiting programs are virtually all Caucasians and not screened for their knowledge of non-Caucasian cultures or for the presence of possible racial or ethnic biases

Plaintiff also cites numerous statistics showing a marked discrepancy between the percentage of the Oakland population as a whole which is non-Caucasian and the percentage of those employed by the Oakland Police Department which is non-Caucasian. The plaintiff contends that this statistical discrepancy is prima facie proof of discrimination in hiring as practiced by the Oakland Civil Service Commission and the Oakland Police Department.

Named as defendants are the commissioners of the Oakland Civil Service Board of Commissioners; the Personnel Director of said Board and his agents; and the Chief of Police of the Oakland Police Department and his agents. These defendants now move to dismiss the action against them.

Following an extensive briefing of the issues by both parties, the court is of the opinion that the complaint states a good cause of action and that the defendants' motion to dismiss will be denied for the reasons given hereafter.

I. The Defendants are Proper Parties

Defendants claim that since the action is against them in their official capacities, it is in essence a suit against the municipality of Oakland and as such is not maintainable under 42 U.S.C. § 1983. This argument relies primarily on Harkless v. Sweeny Independent Sch. Dist. of Sweeny, Tex., 300 F.Supp. 794 (S.D.Tex.1969).

In Harkless, an action had been brought by several Negro teachers against a school district, the superintendent of schools, and the school board for failure to re-employ them.2 The District Court granted defendants' motion to dismiss, finding that the defendants were not "persons" subject to suit within the meaning of the Civil Rights Act.3

The court reasoned from the Congressional history which was available that Congress had not intended the Civil Rights Act to apply to states or their

308 F. Supp. 1241
subdivisions.4 Although finding little direct or conclusive legislative evidence on the matter, the court nonetheless concluded that (300 F.Supp. 807)
Courts that have had occasion to apply Monroe Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 in this situation have uniformly held that suits may be maintained only against the officials individually, and that governmental boards and government officials in their official capacities are not persons within the meaning of § 1983. Footnote omitted.

Plaintiff contends, however, that Harkless is contrary to numerous other cases,5 distinguishable on its facts from the present case, and wrongly decided. While the argument in Harkless appears logical, it does not commend itself to this court as being consonant with the Congressional purpose articulated in the Civil Rights Act. Harkless tells us that because the term "person" in the Civil Rights Act does not envision suit against municipalities, it must follow that suit is also to be barred against municipal officials, since to "punish" such officials, is merely an indirect method to avoid the wording of the statute and thus "punish" the municipality.

The Harkless argument may be sound where the Civil Rights action pursued is one for damages, for it is logical to assume that a judgment against a municipal official often expends itself on the public (municipal) treasury. Where the relief sought is, as here, in the nature of a declaratory judgment and/or injunction, no sound reason presents itself for immunizing municipal officials from suit under the Civil Rights Act. Such relief is merely to vindicate the abrogation of Constitutional rights. With no accompanying loss to the public treasury, it can hardly be in the public interest — or have been within the contemplation of Congress — not to provide a remedy for the claimed wrong, once the latter is proven.

As the Supreme Court said in Newman v. Piggie Park Enterprises, 390 U. S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed. 2d 1263 (1968), in an analogous situation discussing a suit brought under 42 U.S.C. § 2000a-3(a) (discrimination in public accommodations):

When a plaintiff brings an action under that Title, he cannot recover damages. If he obtains an injunction, he does so not for himself alone but also as a "private attorney general," vindicating a policy that Congress considered of the highest priority. Footnote omitted.

The same considerations obtain here. If suit for damages against public officials cannot be maintained under the Civil Rights Act, then at least suit for equitable relief should be available to carry out a policy "of the highest priority." Here, too, since the suit is in the form of a class action, the plaintiff is vindicating not only his own rights, but also those of the class of which he is a member. Without such actions, there would be no practical way in which the public might "watch the watchers."

This latter view is the one sanctioned by the several cases cited supra in footnote

308 F. Supp. 1242
5, and it is the view which this court is disposed to follow

II. There Are Sufficient Allegations of Discrimination

Defendants' main contention is that the facts alleged by plaintiff do not make out a prima facie case of (racial) discrimination, either intentional or incidental. Defendants argue that since the same procedure is followed to determine whether an applicant is qualified to be a member of the Oakland Police Department, no matter what his racial or ethnic background, that therefore no group or class is discriminated against. Defendants contend that the testing and interviewing procedures are themselves "neutral"; if more Caucasians become policemen than do Negroes or Spanish-surname applicants it is an obvious, if unfortunate, result of the fact that Caucasians tend, on the whole, to have "better" educational and cultural backgrounds than do non-Caucasion applicants.

Plaintiff counters by claiming that the testing and interviewing techniques used are not calculated to determine which applicants will make "good" policemen, but merely serve to perpetuate the overwhelmingly Caucasian character of the Oakland Police Department because the procedures are culturally biased against the background of non-Caucasians. Furthermore, plaintiff claims that the recruiting techniques are aimed almost solely at the Caucasian community and by-pass interested and capable persons in the non-Caucasian community. Plaintiff argues finally that such discrimination is not accidental or even unavoidable, but is pursuant to knowing practices on the part of the defendants to keep non-Caucasians, in any significant numbers, out of the Oakland Police Department.

A. The Tests

Plaintiff contends that the tests used to determine fitness are not rationally related to the skills called for in a policeman, and that, in any event, they do not take into account the differing backgrounds and abilities of those persons from non-Caucasian communities.

While general intelligence tests are a commonly used method of screening applicants in many phases of public and private employment, recent studies on culture differences have made the validity of such tests increasingly suspect. See G. Cooper and R. Sobol, "Seniority and Testing under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion", 82 Harv.L.Rev. 1598, 1642-1643 (1969).

In Griggs v. Duke Power Company, 292 F.Supp. 243...

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29 practice notes
  • Klim v. Jones, Civ. A. No. 52332.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • July 17, 1970
    ...and hence incapable of pecuniary measure. See Willis v. Reddin, 418 F.2d 702, 703 (9th Cir. 1969); Penn v. Stumpf (N. D.Cal.1970) 308 F.Supp. 1238, 1245-1246, and cases cited therein. See also Note, "The `Property Rights' Exception to Civil Rights Jurisdiction — Confusion Compounded," 43 N.......
  • Walker v. City of Houston, Civ. A. No. 69 H 168.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • May 4, 1972
    ...faced the issue of whether Stone's property right exception is of any continuing validity. In one of these cases, Penn v. Stumpf, 308 F.Supp. 1238, 45 (N.D.Cal.1970), the court declared that it favored rejecting a strict "property-personal liberty" test. In an earlier case, Joe Louis Milk C......
  • Jackson v. Sargent, Civ. A. No. 74-2463-F.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • February 4, 1975
    ...or other equitable relief if ordered by a federal court. Carter v. Gallagher, 452 F.2d 315, 322 (8th Cir., 1971) ; Penn v. Stumpf, 308 F.Supp. 1238, 1240-1241 (N.D.Cal., 1970). Cf., Castro v. Beecher, 459 F.2d 725 (1st Cir., 1972). Consequently, this Court properly has subject matter jurisd......
  • Feinerman v. Jones, Civ. No. 72-94.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • January 10, 1973
    ...1972); Chance v. Board of Examiners, 458 F.2d 1167 (2d Cir. 1972); Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1972); Penn v. Stumpf, 308 F.Supp. 1238 (N.D. Calif.1970); Arrington v. Massachusetts Bay Transp. Auth., 306 F.Supp. 1355 (D. Mass.1969), Cf. Griggs v. Duke Power Co., 401 U.S. 424......
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29 cases
  • Klim v. Jones, Civ. A. No. 52332.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • July 17, 1970
    ...and hence incapable of pecuniary measure. See Willis v. Reddin, 418 F.2d 702, 703 (9th Cir. 1969); Penn v. Stumpf (N. D.Cal.1970) 308 F.Supp. 1238, 1245-1246, and cases cited therein. See also Note, "The `Property Rights' Exception to Civil Rights Jurisdiction — Confusion Compounded," 43 N.......
  • Walker v. City of Houston, Civ. A. No. 69 H 168.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • May 4, 1972
    ...faced the issue of whether Stone's property right exception is of any continuing validity. In one of these cases, Penn v. Stumpf, 308 F.Supp. 1238, 45 (N.D.Cal.1970), the court declared that it favored rejecting a strict "property-personal liberty" test. In an earlier case, Joe Louis Milk C......
  • Jackson v. Sargent, Civ. A. No. 74-2463-F.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • February 4, 1975
    ...or other equitable relief if ordered by a federal court. Carter v. Gallagher, 452 F.2d 315, 322 (8th Cir., 1971) ; Penn v. Stumpf, 308 F.Supp. 1238, 1240-1241 (N.D.Cal., 1970). Cf., Castro v. Beecher, 459 F.2d 725 (1st Cir., 1972). Consequently, this Court properly has subject matter jurisd......
  • Feinerman v. Jones, Civ. No. 72-94.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • January 10, 1973
    ...1972); Chance v. Board of Examiners, 458 F.2d 1167 (2d Cir. 1972); Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1972); Penn v. Stumpf, 308 F.Supp. 1238 (N.D. Calif.1970); Arrington v. Massachusetts Bay Transp. Auth., 306 F.Supp. 1355 (D. Mass.1969), Cf. Griggs v. Duke Power Co., 401 U.S. 424......
  • Request a trial to view additional results

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