San Francisco Police Officers' Ass'n v. City and County of San Francisco

• Decision Date: 12 March 1987
• Docket Number: No. 85-2180,85-2180
• Citation: 812 F.2d 1125
• Parties: 43 Fair Empl.Prac.Cas. 495, 42 Empl. Prac. Dec. P 36,872, 55 USLW 2528 SAN FRANCISCO POLICE OFFICERS' ASSOCIATION; Lynn Torres; Lillian Chai Mattoch; Henry Kirk, Plaintiffs-Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation; Civil Service Commission; Louis P. Lee; Rev. Dr. Howard S. Gloyd; Carlota Texidor Del Portillo; Genevieve W. Powell; A. Lee Munson, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1125

812 F.2d 1125

43 Fair Empl.Prac.Cas. 495,

42 Empl. Prac. Dec. P 36,872, 55 USLW 2528

SAN FRANCISCO POLICE OFFICERS' ASSOCIATION; Lynn Torres Lillian Chai Mattoch; Henry Kirk, Plaintiffs-Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation Civil Service Commission; Louis P. Lee; Rev. Dr. Howard S Gloyd; Carlota Texidor Del Portillo; Genevieve W. Powell A. Lee Munson, Defendants-Appellees.

No. 85-2180.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 22, 1986.

Decided March 12, 1987.

Christopher D. Burdick, San Francisco, Cal., for plaintiffs-appellants.

Michael C. Killelea, San Francisco, Cal., for defendants-appellees.

Clint Bolick, Washington, D.C., for amicus USA.

Robert Links, San Francisco, Cal., for amicus.

James Wheaton, San Francisco, Cal., for intervenor-appellee.

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

Before MERRILL, WIGGINS and NOONAN, Circuit Judges.

WIGGINS, Circuit Judge:

The Police Officers Association (POA) and three of its members appeal the district court's approval of the procedures followed for the 1983-84 promotion examinations to Police Sergeant (Q-50) and Assistant Inspector (Q-35). The POA challenges the district court's decision to permit the City and County of San Francisco to rescore the promotion examinations in order to comply with its obligations under a Title VII consent decree.

We reverse. We agree with the district court that the examinations as initially weighed were invalid because they had an adverse impact on minorities and women. Rescoring the examinations in order to achieve a specific racial result was, however, improper.

BACKGROUND

The testing resulted from a consent decree entered in consolidated race and sex discrimination actions that the Officers For Justice (OFJ) and the United States brought under 42 U.S.C. Secs. 1981 and 1983, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e to 2000e-16. The POA intervened in those actions and, with the City, the Civil Service Commission (the Commission), the United States, and the OFJ, agreed to the consent decree. The district court approved the consent decree on March 30, 1979, some six years after the plaintiffs filed the initial complaint. Officers for Justice v. Civil Serv. Comm'n, 473 F.Supp. 801 (N.D.Cal.1979), aff'd, 688 F.2d 615 (9th Cir.1982), cert. denied, 459 U.S. 1217, 103 S.Ct. 1219, 75 L.Ed.2d 456 (1983).

The consent decree required that the City employ good faith efforts to achieve particular goals for employment of women and minorities within specified periods of time. The consent decree prohibited the use of selection procedures that had an adverse impact on women and minorities, unless the City proved the procedures were valid under the Uniform Guidelines on Employee Selection Procedures, 28 C.F.R. 1607. The consent decree specifically prohibited the City from unlawfully discriminating in any manner on the basis of sex, race, or national origin.

In order to discharge its obligations under the consent decree, the City established a Consent Decree Unit and charged it with developing and administering the promotional examinations. In 1983, the Unit administered the selection procedures for Q-35 Assistant Inspector and Q-50 Sergeant. The promotional examinations had three parts: (1) A multiple choice test to measure technical knowledge and problem solving; (2) a writing skills examination to test the candidates' written communication skills; and (3) a structured oral examination to measure oral communication, interpersonal qualities, and supervisory abilities. The Commission gave each component of the examination at different times during 1983.

At the time the Unit devised the examination procedures, the Commission did not adopt a rating system. The Consent Decree Division Director and the test creator advised against setting the weights of the components until after the Commission administered the examinations and analyzed the results. Acquiescing to the wishes of the POA, however, the Commission established a weighing procedure part-way through the examination process. On September 12, 1983, after the Commission administered the multiple choice component of the examinations, the Commission established the cut-off scores for the multiple choice component and set the weights for all three components. It set the cut-off scores for the multiple choice examinations at 55 percent for the Q-35 Assistant Inspector and 50 percent for the Q-50 Sergeant. These cut-off scores were above the minimum competency level and did not have an adverse impact on minorities. The Commission set the weights for the examination components as follows:

                                        Q-35  Q-50
                                        ----  ----
                Multiple choice:        45%   41%
                Written communications  29%   29%
                Oral examination        26%   30%
                

After it administered all three components, the Commission informed the parties of the examination results. While it did not reveal the actual identities of the candidates, the Commission ranked them by their assigned examination numbers and specified their race and gender. ¹ The candidates taking the examinations fell into the following categories:

Based on the September 1983 selection formula, the eligibility statistics were as follows:

                       Total  Ethnic Minorities    Women
                       -----  -----------------  ---------
                Q-35:    75        6 (8%)         4 (5.3%)
                Q-50:   125      13 (10.4%)      12 (9.6%)
                

The percentages represented an adverse impact on minorities in both ranks, and a slight adverse impact on women for the Q-35 Assistant Inspector examination. There was no adverse impact on women for the Q-50 Sergeant examination.

The United States and the OFJ objected to the weighing of the test components because the results demonstrated an adverse impact on minorities and women in violation of the consent decree and Title VII. After discovery, the City Attorney recommended that the Commission revise the cut-off and weighing standards. In June 1984, the Commission agreed and revised the scoring procedures for the examinations.

Under the revised formula, the Commission graded the multiple choice and written communication components of the tests on a pass-fail basis, with 55 percent being the passing grade for Q-35 Assistant Inspector and 50 percent being the cut-off grade for Q-50 Sergeant. It set the passing grade for the written communication component at 60 percent for both Q-35 and Q-50. As a result of the cut-off scores, approximately 200 candidates were eliminated. ² The multiple choice examination screened out 25 candidates for Sergeant and 23 for Assistant Inspector. The written examination screened out 130 candidates for Sergeant and 160 for Assistant Inspector. Close to 700 candidates took the examinations. The Commission then ranked the oral examinations of those who survived the multiple choice and written examinations in order. The POA objected to the new selection decision, but the grading proceeded on the basis of the revised weights.

There were 45 vacancies for Q-35 and 75 vacancies for Q-50. Using the revised formula, the top applicants were:

                Q-35:    30 caucasian males
                                    (65.9%)
                       10 ethnic minorities
                                   (22.29%)
                           5 women (11.11%)
                Q-50:    46 caucasian males
                                    (61.4%)
                       18 ethnic minorities
                                      (24%)
                           11 women (14.6%)
                

A few days after the Commission adopted the revised formula in June of 1984, the POA filed this action for declaratory and injunctive relief in San Francisco County Superior Court against the City, the Commission and its members. The OFJ later intervened. The defendants removed the case to federal court under the Civil Rights Removal Statute, 28 U.S.C. Sec. 1443(2). Judge Peckham granted a preliminary injunction against the use of the revised formula pending disposition of the action. On March 14, 1985, he granted the City partial summary judgment, holding that Title VII and the consent decree preempted a San Francisco Civil Service rule that required motions for reconsideration to be filed within 30 days of the Commission's action. ³ In May of 1985, Judge Peckham held a fairness hearing to determine if the new formula unnecessarily injured the examination participants.

In June of 1985, Judge Peckham ruled for the City. City and County of San Francisco v. San Francisco Police Officers Association, 621 F.Supp. 1221 (N.D.Cal.1985). He approved the changes in the selection process and also ruled that the procedures were sufficiently fair. The POA appealed. Both this court and the Supreme Court denied a stay pending appeal. Appointments to the vacancies from the list developed under the revised weights were made in April of 1986 while the appeal was pending.

ANALYSIS

I Standard of Review

We treat the district court's grant of partial summary judgment as a conclusion of law, which is reviewed de novo. See Foster v. Arcata Assoc., 772 F.2d 1453, 1459 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1267, 89 L.Ed.2d 576 (1986). We review the district court's findings of fact under the clearly erroneous standard. Operating Engineers Pension Trust v. Charles Minor Equip. Rental, Inc., 766 F.2d 1301, 1303 (9th Cir.1985).

II Mootness

Under Article III, section 2, of the Constitution, the federal courts lack power to decide questions that cannot affect the rights of litigants in the case before them. De Funis v. Odegaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 1705-06, 40 L.Ed.2d 164 (1974) (per curiam). An appeal becomes moot when: (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1...