US v. City and County of San Francisco

• Decision Date: 10 June 1988
• Docket Number: No. C-84-7089 MHP,C-84-1100 MHP.,C-84-7089 MHP
• Citation: 696 F. Supp. 1287
• Parties: UNITED STATES of America, Plaintiff, v. The CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants, and San Francisco Firefighters Local 798, et al., Defendants in Intervention. Fontaine DAVIS, et al., Plaintiffs in Intervention, v. The CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants, and San Francisco Firefighters Local 798, et al., Defendants in Intervention.
• Court: U.S. District Court — Northern District of California

696 F. Supp. 1287

UNITED STATES of America, Plaintiff, v. The CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants, and San Francisco Firefighters Local 798, et al., Defendants in Intervention.

Fontaine DAVIS, et al., Plaintiffs in Intervention, v. The CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants, and San Francisco Firefighters Local 798, et al., Defendants in Intervention.

Nos. C-84-7089 MHP, C-84-1100 MHP.

United States District Court, N.D. California.

June 10, 1988.

Eva Jefferson Paterson, San Francisco Lawyers' Committee for Urban Affairs, William C. McNeill, III, Shauna I. Marshall, Equal Rights Advocates, Denise M. Hulett, Mexican-American Legal Defense & Education Fund, San Francisco, Cal., Russell Galloway, Berkeley, Cal., Mary Dunlap, Edwin M. Lee, William Tamayo, Michael J. Wong, Asian Law Caucus, Inc., San Francisco, Cal., for plaintiff-intervenors.

Duane W. Reno, Susanne L. Clerc, Davis, Reno & Courtney, San Francisco, Cal., for defendant-intervenor Local 798.

Robert T. Moore, U.S. Dept. of Justice, Civil Rights Div., Washington, D.C.

Joann Swanson, Department of Justice, San Francisco, Cal.

Barbara Phillips, Monitor, Rosen & Phillips, San Francisco, Cal.

Dan Siegel, Chief of Complex Litigation, Office of the City Atty., San Francisco, Cal., for defendants City and County of San Francisco, et al.

MEMORANDUM AND ORDER APPROVING CONSENT DECREE

PATEL, District Judge.

This employment discrimination action was originally brought by the United States against the City and County of San Francisco ("the City") citing the illegal practices of the San Francisco Fire Department ("SFFD"). Various individuals and organizations have since intervened as plaintiffs¹ and San Francisco Firefighters Local 798 ("the Union")² has intervened as a defendant. After over four years of litigation, following a change in the political administration of the City which necessitated the postponement of trial, plaintiff-intervenors and the City reached a settlement of both the individual and the class-wide claims of discrimination against women and minorities and memorialized it in a proposed consent decree. The United States declined to participate in the negotiations leading to settlement. The Union, although it took part in settlement negotiations, objects to the terms of the decree and did not sign the agreement.

The case is now before the court for approval of the consent decree. Approval of the decree is opposed by the United States³ and by the Union. The court has also considered the objections filed by members of the public in opposition to the provisions of the decree. In addition, a fairness hearing was held on December 22, 1987 at which counsel for all the parties argued the merits of the decree and the court entertained the statements of various firefighters both for and against the decree. Having considered the submissions of the parties and the objections filed with the court and raised at hearing, for the following reasons, the court approves the consent decree in settlement of all classwide and individual claims for relief raised both in this action and in the concurrent state action, City and County of San Francisco v. Fair Employment and Housing Commission FEHC, No. A024145.⁴ The Stipulation of Undisputed Facts hereinafter "Stipulation" filed August 15, 1986 and the Statement of Undisputed Facts hereinafter "Facts" filed November 12, 1987 are deemed facts found by the court and incorporated herein except as otherwise noted.

BACKGROUND

The SFFD hired no Black firefighters before 1955,⁵ allowed no women to apply before 1976 and hired no women until August 1987. Facts paras. 5, 2 and 1. It is unsurprising then that this action is not the first challenge faced by the City to the employment practices of the SFFD. This litigation must be understood in conjunction with an earlier federal suit, Western Addition Community Organization WACO v. Alioto, C 70-1335 WTS and a concurrent state action, City and County of San Francisco v. Fair Employment and Housing Commission FEHC, No. A024145.⁶ The WACO suit challenged only the SFFD's entry-level hiring practices and only on grounds of racial discrimination. The FEHC suit challenged only promotional practices. The current litigation addresses both entry-level and promotional practices as well as problems of both gender and race discrimination in employment.

I. Previous Federal Litigation: The Entry-Level Test

Although Blacks represented 14% of the City's population in 1970, of the 1800 uniformed firefighters employed by the SFFD only four were Black.⁷ Western Addition Community Org. WACO v. Alioto, 330 F.Supp. 536, 538 (N.D.Cal.1971) hereinafter "WACO I". That year the NAACP in concert with several community groups filed a class action suit⁸ in this court against the City pursuant to the Civil Rights Act, 42 U.S.C. §§ 1981 and 1983,⁹ to challenge the validity of the format used for the 1968 H2 entry-level firefighter test. WACO I, 330 F.Supp. at 537.

The 1968 H2 test determined eligibility for entry-level positions in the SFFD. The test comprised six components: physical measurement; athletic ability; medical examination; qualifications appraisal; employment, character and background check; and a written examination. Success on the first five components determined that an applicant was qualified. Only the written examination score determined an applicant's rank on the Civil Service list of eligibles. Id. at 538. According to Civil Service rule, hiring was by rank order from the eligibility list.¹⁰ The WACO plaintiffs challenged only the written component of the 1968 H2 test.

The WACO plaintiffs charged that the 1968 H2 written exam had an adverse impact on minority applicants without having any relationship to the requirements of the job. See Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). The results of the written portion of the 1968 H2 test were as follows:

                                      Tested   Passed   Pass Rate
                  Total                1883      662       35%
                  Black                 101       12       12%
                  Hispanic               69       24       35%
                  Other11          1713      626       37%
                

See WACO I, 330 F.Supp. at 538; Facts para. 13. Thus, the pass rate for Black applicants on the 1968 H2 written exam was about one-third that of White applicants. Facts para. 13.

In 1971 Judge Sweigert found that the plaintiffs had demonstrated that the 1968 H2 test had an adverse impact on minorities and that the City had failed to carry its burden to show any connection between the qualities tested on the written exam and the job requirements of an entry-level firefighter.¹²WACO I, 330 F.Supp. at 539-40. In defense of the exam, the City responded only that the SFFD had made efforts to recruit minority applicants for the 1968 H2 test. The court ruled that "whatever may have been the good intentions of defendants, there is a prima facie case for predicating employment discrimination." Id. at 539.¹³

A revised H2 entry-level test was administered in September 1971. The 1971 H2 test comprised three parts given in two stages. The first stage required the applicant to pass a written examination by answering 90 out of 130 questions correctly. If the applicant passed the written exam, he then had to pass an athletic ability exam and an oral exam. The results of the second stage exams determined an applicant's rank on the eligibility list. Western Addition Community Org. WACO v. Alioto, 340 F.Supp. 1351, 1352 (N.D.Cal.1972) hereinafter "WACO II". The WACO plaintiffs again came before the court in 1972 seeking to enjoin, on the grounds of adverse impact, the use of the resulting eligibility list. The results of the written portion of the 1971 H2 test were as follows:

                                Tested   Passed   Pass Rate
                Total            1741     831       48%
                White            1187     676       57%
                Black             333      67       20%
                Hispanic/Asian    221      88       40%
                

WACO II, 340 F.Supp. at 1353. Thus, instead of eliminating adverse impact, the 1971 H2 test only perpetuated the 1968 H2 test's approximately three-to-one passing advantage of White over Black applicants.

The court held that the 1971 H2 entrylevel test had an adverse impact on minority applicants and was not shown to be job-related. Specifically, the court found that the City was unable to validate¹⁴ the 1971 H2 test because it had not, in the first instance, conducted a job analysis. Because there was no way of knowing what the job required, there was no way to determine whether the test was reasonably related to job requirements. See WACO II, 340 F.Supp. at 1356. After noting that the City's own experts had "virtually confessed" that validation was impossible and affirming the City's good intentions while bemoaning its failure "to comply with the fairly well-established requirements of the law in this field," the court enjoined the use of the 1971 H2 entry-level firefighters exam and the resulting eligibility list. WACO II, 340 F.Supp. at 1356; Facts para. 14.

In 1973 the City presented the court with a new written test, which it claimed to have properly validated. The court found that although the City had conducted a job analysis substantially in accordance with federal guidelines, it had failed entirely to validate the written test empirically (as required by the guidelines if feasible) and further that it had not shown the adequacy of the attempted content validation. Western Addition Community Org. WACO v. Alioto, 360 F.Supp. 733, 739 (N.D.Cal.1973) hereinafter "WACO III". Judge Sweigert refused to approve the written exam and issued the following admonishment to the City:

The time has come—especially after the City has twice failed to satisfactorily demonstrate the validity of its Fireman H-2 written examination tests — for the City to seriously, rather than superficially and speciously, face up to the problem presented to it by new federal law by further

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