Teal v. State of Conn.

• Decision Date: 26 March 1981
• Docket Number: D,No. 444,444
• Citation: 645 F.2d 133
• Parties: 25 Fair Empl.Prac.Cas. 529, 25 Empl. Prac. Dec. P 31,702 Winnie TEAL, David Malstrom, Marian Costa, Edith Latney, Rose Walker, Gracie Clack, Jennie Pick, and Linda Brooks, Plaintiffs-Appellants, v. STATE OF CONNECTICUT, Department of Administrative Services of the State ofConnecticut, Department of Income Maintenance of the State of Connecticut; Elisha C. Freedman, individually and in his official capacity; and Edward W.Maher,individually and in his official capacity, Defendants-Appellees. ocket 80-7675.
• Court: U.S. Court of Appeals — Second Circuit

Page 133

645 F.2d 133

25 Fair Empl.Prac.Cas. 529,

25 Empl. Prac. Dec. P 31,702

Winnie TEAL, David Malstrom, Marian Costa, Edith Latney Rose Walker, Gracie Clack, Jennie Pick, and Linda Brooks, Plaintiffs-Appellants, v. STATE OF CONNECTICUT, Department of Administrative Services of the State ofConnecticut, Department of Income Maintenance of the State of Connecticut; Elisha C. Freedman individually and in his official capacity; and Edward W.Maher,individually and in his official capacity Defendants-Appellees.

No. 444, Docket 80-7675.

United States Court of Appeals Second Circuit.

Argued Dec. 22, 1980.

Decided March 26, 1981.

Thomas W. Bucci, Bridgeport, Conn., for plaintiffs-appellants.

Sidney D. Giber, Asst. Atty. Gen., State of Conn., Hartford, Conn. (Carl R. Ajello, Atty. Gen., State of Conn., Bernard F. McGovern, Jr., Asst. Atty. Gen., State of Conn., Hartford, Conn., of counsel), for defendants-appellees.

Before TIMBERS and MESKILL, Circuit Judges, and GAGLIARDI, District Judge. ^*

MESKILL, Circuit Judge:

This is an appeal from a judgment entered in the United States District Court for the District of Connecticut, Daly, J., dismissing appellants' action instituted under § 703(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (1976), ¹ for failure to make out a prima facie case of race discrimination. ² This appeal raises the question whether a plaintiff in a Title VII action may make a prima facie showing of discriminatory impact based upon the disparate results produced by one portion of an employee selection process, where the overall results of the selection process concededly

reveal no such imbalance. For the reasons stated below, we hold that where a plaintiff establishes that a component of a selection process produced disparate results and constituted a pass-fail barrier beyond which the complaining candidates were not permitted to proceed, a prima facie case of disparate impact is established, notwithstanding that the entire selection procedure did not yield disparate results.

BACKGROUND

The plaintiffs, Winnie Teal, Rose Walker, Edith Latney, and Gracie Clack, ³ are black American citizens employed by the State of Connecticut, Department of Income Maintenance. All four plaintiffs were promoted provisionally to the position of Welfare Eligibility Supervisor and served in that capacity for periods in excess of two years. Several of the plaintiffs' superiors testified at trial that the plaintiffs possessed the qualifications for permanent positions as supervisors and praised their performance on the job.

To attain permanent status as supervisors, plaintiffs had to participate in a selection process which requires, as the first step, a passing score on a written examination. Those candidates who pass the written examination form an eligibility pool from which the appointing authority selects persons to fill the permanent positions. In making the final determinations the appointing authority considers the past work performance of the candidates, recommendations of the candidates' supervisors, and to a lesser degree, the candidates' seniority. Additionally, in this final step of the process, the defendants employ an affirmative action program to insure a large representation of minority candidates on the supervisory level. However, only if a candidate passes the written examination and enters the eligibility pool will he be exposed to the rest of the selection process and thus benefit from the consideration of these other factors.

The written test was administered on December 2, 1978 to 329 candidates. The mean score on the examination was 70.4 percent. However, because the black candidates had a mean score 6.7 percentage points lower than the white candidates, a disparity that the defendants admitted was statistically significant, and because a cutoff score of 70 would have resulted in a disproportionately large number of black candidates failing the exam, the defendants set the passing score at 65. ⁴ With the passing score set at 65, the following results were obtained:

The above table reveals that the passing rate of the identified black candidates (54.17 percent) was approximately 68 percent that of the passing rate of the identified white candidates (79.53 percent). All four of the plaintiffs received a score on the written examination lower than 65. Faced with these results, the plaintiffs instituted this action claiming that the written exam discriminated against them on account of their race in violation of Title VII. The plaintiffs asserted their Title VII claims below under both the disparate treatment formula and the disparate impact analysis. ⁵

More than a year after this action was instituted, and approximately one month prior to trial, the defendants made their first promotions from the eligibility list generated by the written exam. Forty-six persons were promoted to permanent supervisory positions, 11 of whom were black and 35 of whom were white. Of the 48 identified black candidates who entered the selection process, 11, or approximately 23 percent, were promoted; of the 259 identified white candidates who applied, 35, or about 13.5 percent, were promoted. Thus, the actual promotion rate of blacks (23 percent) was approximately 170 percent that of the actual promotion rate (13.5 percent) of identified whites.

The district court initially determined that the plaintiffs' discrimination claims should be evaluated under the disparate impact analysis formulated by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Judge Daly evaluated the results of the selection process under the four-fifths rule of the Uniform Guidelines of Employee Selection Procedures prepared by the Equal

                Employment Opportunity Commission, 29 C.F.R. § 1607.4(D) (1979).  The four-fifths rule provides that "(a) selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded ... as evidence of adverse impact."  6 While noting that the results of the written test did not satisfy the four-fifths rule, Judge Daly concluded that the results of the entire selection process should be used to determine whether the plaintiffs had made out a prima facie case of race discrimination under the disparate impact formula.  Since the results of the entire selection procedure actually were more favorable to the black candidates than to the white applicants, Judge Daly dismissed the plaintiffs' action for failure to prove a prima facie case.  Thus, the district court found it unnecessary to reach the issue whether the written examination was, indeed, job-related.
                

DISCUSSION

The plaintiffs contend on this appeal that the district court erred in using the results of the overall selection process in determining that the plaintiffs failed to make a prima facie showing of disparate impact. Alternatively, the plaintiffs argue that the proof adduced at trial was sufficient to establish a prima facie case under the McDonnell Douglas disparate treatment formula. The defendants, on the other hand, maintain that the district court was correct in its decision to dismiss the plaintiffs' complaint and, in any event, contend that the written examination given to the plaintiffs was job-related.

Although the disparate impact and treatment analyses are not necessarily mutually exclusive, see, e. g., Grant v. Bethlehem Steel Corp., 635 F.2d 1007 (2d Cir. 1980) (prima facie case established under both analyses), we believe that the district court was correct in evaluating this case under the disparate impact formula. Contrary to the assertion of the plaintiffs, their qualifications for the permanent supervisory positions were in dispute. Indeed, the resolution of that issue turned directly upon the validity of the written examination. But employers certainly cannot be compelled to come forward and prove the job-relatedness of an eligibility examination upon a plaintiff-employee's bald assertion that he or she is qualified for the position in question. Indeed, since the burden of proof is upon the plaintiff to prove his or her qualifications for the job to establish a prima facie case of disparate treatment, see McDonnell Douglas Corp. v. Green, supra, evaluating a case such as the one at bar under that analysis might require placing the burden upon the plaintiffs to prove that the written examination was not job-related. We believe that the resolution of the latter issue is best undertaken under the disparate impact analysis that was formulated by the Supreme Court precisely to accommodate cases such as this.

Turning to the disparate impact claim, we conclude that the district court erred in ruling that the results of the written examination alone were insufficient to support a prima facie case of disparate impact in violation of Title VII. While we noted in Kirkland v. New York State Department of Correctional Services, 520 F.2d 420, 425 (2d Cir. 1975), cert. denied, 429 U.S. 823, 97 S.Ct. 73, 50 L.Ed.2d 84 (1976), that proof concerning the disparate impact of certain sub-tests was of "little relevance ... on the issue of whether or not the examination as a whole had an unconstitutional discriminatory impact," there, the passing grade was dependent upon the cumulative results of the sub-tests. Thus, all of the candidates in Kirkland were exposed to the challenged selection device in its entirety, and, therefore, were able to benefit from the components of the exam that apparently offset the allegedly discriminatory sub-test. In other words, all of the candidates in Kirkland were subjected to the complete selection process, which, when viewed as a whole, did not produce unlawful disparate results. Likewise, in Smith v. Troyan, 520 F.2d 492, 497-98 (6th Cir. 1975), cert. denied, 426 U.S. 934, 96 S.Ct. 2646, 49 L.Ed.2d 385 (1976), a disparate impact...