US v. City and County of San Francisco

• Citation: 656 F. Supp. 276
• Decision Date: 26 February 1987
• Docket Number: No. C-84-7089 MHP,C-84-1100 MHP.,C-84-7089 MHP
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES of America, Plaintiff, v. The CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants. Fontaine DAVIS, et al., Plaintiffs, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.

656 F. Supp. 276

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

Fontaine DAVIS, et al., Plaintiffs, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.

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

United States District Court, N.D. California.

February 26, 1987.

Shauna Marshall, Donna J. Hitchens, Terisa E. Chaw, Equal Rights Advocates, San Francisco, Cal., William C. McNeill, III, Pearl, McNeill, Gillespie & Standish, Oakland, Cal., Eva Jefferson Paterson, San Francisco Lawyers' Committee for Urban Affairs, San Francisco, Cal., Henri Norris, Oakland, Cal., Mary C. Dunlap, San Francisco, Cal., David L. Rose, Gerald F. George, Joel W. Nomkin, U.S. Dept. of Justice, Civil Rights Div., Washington, D.C., Theresa Fay Bustillos, Los Angeles, Cal., (MALDEF-intervenor), Edwin M. Lee, Asian Law Caucus, Inc., San Francisco, Cal., for plaintiffs.

George Agnost, Philip S. Ward, Michael C. Killelea, Deputy City Attys., San Francisco, Cal., for City & County of San Francisco, Civil Service Com'n, Emmet Condon, John Walsh.

Noel Edlin, Hassard, Bonnington, Rogers & Huber, San Francisco, Cal., for City of Oakland, Henry Gardner, George Hart, Lawrence Eades, defendants.

Michael C. Killelea, Deputy City Atty., San Francisco, Cal., Christopher D. Burdick, David P. Clisham, Carroll, Burdick & McDonough, San Francisco, Cal., for San Francisco Citizens for the Merit System, Robert Farac, Robert Rey, Oscar Bazurto, Tom Rey, et al., intervenor.

Duane W. Reno, Davis & Reno, San Francisco, Cal., for San Francisco Fire Fighters, Local 798, Intern. Ass'n of Fire Fighters, etc., Patrick K. Ebert, Kenneth R. Ross, Brian A. Ballard, Mark A. Ballard, Timothy M. Smith, Michael J. Smith, Russell S. Sherman, Fontaine Davis, Eric H. Washington, Jerilyn North, Robert L. Demmons, Jimmie Braden, Audry Lee, Early Davis, Brandi Swanson, Susan Moorehead, Anne Young, Mary M. Carder, Theresa Rodigou, Kathleen J. Bradshaw, Patricia Murray, Intern. Ass'n of Black Firefighters San Francisco Chapter, intervenors.

MEMORANDUM DECISION AND ORDER GRANTING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

PATEL, District Judge.

This is an employment discrimination action against the San Francisco Fire Department ("SFFD") initially brought by the United States and now joined in intervention by various individual and organizational plaintiffs and defendants. Plaintiffs allege that the City's administration of certain employment examinations for entry-level hiring and promotional decisions unlawfully discriminated against women and minority groups, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. These examinations include the 1982 H2 entry-level firefighter exam, the 1984 H4 fire inspector exam, and the 1984 H20 fire lieutenant exam. During the pendency of this action, defendants have not hired or promoted anyone from any appointment list generated by the challenged examinations. This is partly attributable to a preliminary injunction entered by the court in February 1986, enjoining the SFFD from utilizing the H2 examination for any employment purpose.

On June 23, 1986, the court found that the H2 entry-level examination adversely impacted women and minorities. In its subsequent pretrial statement, the City conceded that the H20 promotional examination additionally resulted in an adverse impact on certain minority groups. After lengthy settlement negotiations and on the eve of trial, scheduled to begin in October 1986, the City announced that it would no longer attempt to defend the validity of these examinations, as required in a Title VII action after a showing of adverse impact. The City Attorney asked the City's Civil Service Commission to cancel the 1982 H2 and 1984 H20 employment procedures, as well as the 1984 H4 fire inspector procedure. The Civil Service Commission cancelled the H2, H4, and H20 procedures in late October and early November 1986.

Plaintiff-intervenors now move for partial summary judgment and declaratory relief on the basis of the City's abandonment of the validity of its H2, H4, and H20 exams. Their motion is "partial" insofar as it does not encompass the entirety of their pattern and practice claim, additional elements of which they contend must be tried at a later date. Plaintiff United States moves separately for summary judgment on essentially the same grounds, but seeks injunctive relief. For the reasons herein set forth, the court grants partial summary judgment and awards injunctive relief pursuant to the terms outlined below. In response to the informal application of defendant City of San Francisco, the court additionally outlines the procedures to be used by the City if it wishes to engage in interim hiring to avert a "firefighting crisis" which Fire Chief Condon now declares "could occur at any time."

I. FACTUAL BACKGROUND

A. Previous Litigation

Prior to 1955, the San Francisco Fire Department employed no black firefighters. In 1970, the City of San Francisco had approximately 1800 uniformed fire personnel, of whom four were black. The same year, the N.A.A.C.P. and various other community organizations brought suit against the SFFD for employment discrimination in Western Addition Community Organization WACO v. Alioto, C-70-1335 WTS. The action proceeded as a class action, although the court never formally certified a class save for purposes of settlement only in its consent decree of May 18, 1977.

In 1971 the court in WACO v. Alioto declined to preliminarily enjoin the SFFD from utilizing its 1968 H2 entry-level firefighter examination for further employment purposes, even though the court had found that the examination adversely impacted minority applicants. WACO v. Alioto, 330 F.Supp. 536 (N.D.Cal.1971). The court indicated that an injunction was not necessary in light of representations made by the City that it intended to modify the examination "with a view to widening minority group representation in the Fire Department. ..." 330 F.Supp. at 540. The court noted that discussions between the parties regarding the modification of the exam had been conducted "constructively and in good faith," and that the City was "aware of the disproportionate representation of minorities and is desirous of making the Fire Department more representative if that can be done without impairing departmental efficiency." Id.

As a result of the negotiations among the parties, the City administered a modified examination in 1971. This examination again adversely impacted minority groups, and hiring from the new list was enjoined by the WACO court after the City failed to make any persuasive showing of the new exam's job-relatedness. WACO v. Alioto, 340 F.Supp. 1351, 1356 (N.D.Cal. 1972). The court stated that "this is doubly regrettable first, because with a little more effort to comply with the fairly well-established requirements of the law in this field, the defendants might have been able to do so; secondly, there is no doubt that the Commission, far from entertaining any intent to racially discriminate, means well and has tried in its own way to improve minority representation in the Fire Department without impairing departmental efficiency...." 340 F.Supp. at 1356.

In 1973 the City again approached the court with a reconstructed entry-level examination. Again the court found that the City could not demonstrate the validity of the examination, and expressed its increasing exasperation at the City's repeated failure to establish an acceptable entry-level employment procedure. WACO v. Alioto, 360 F.Supp. 733, 739-41 (N.D.Cal.1973). The court wrote that "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 Title VII by further efforts to rebut or correct the already legally established presumptive discriminatory effect of its selection procedures." 360 F.Supp. at 739. The court enjoined the use of the written portion of the examination, ordered the Civil Service Commission to utilize only the oral and athletic components of the employment procedure to rank applicants, and further ordered the Commission to proceed with diligence to empirically validate its H2 written test. 360 F.Supp. at 740.

Late in 1973, after the City failed to either validate the H2 written exam or hire additional firefighters pursuant to the terms authorized by prior opinions, the court in WACO ordered affirmative relief. The court recited a litany of the City's failures to comply with previous orders of the court, and concluded that "the Civil Service Commission's dilatoriness in these matters and apparent stubborn insistence upon arguments and alternatives which this court has repeatedly found unacceptable, have created an intolerable situation; the adequacy of Fire Department manpower for the safety of the City is coming into question; all Fireman H-2 applicants, both minority and non-minority, have been kept in a state of uncertainty for several years and the rights of minority applicants to a more prompt correction of the City's still unvalidated selection procedures are involved." WACO v. Alioto, 369 F.Supp. 77, 80 (N.D.Cal.1973), aff'd, 514 F.2d 542 (9th Cir.1975), cert. denied, 423 U.S. 1014, 96 S.Ct. 446, 46 L.Ed.2d 385 (1975). The court accordingly ordered the City to hire one minority for each non-minority hired from the H2 appointment list until all minority applicants on the list had been employed. 369 F.Supp. at 81. The list expired in 1978. Over 55% of the minorities who have joined the SFFD were hired pursuant to this court-ordered arrangement.

A consent decree dated May 18, 1977, terminated WACO v. Alioto. In the decree, the court stated that "plaintiffs have demonstrated a prima facie case of racial and national origin discrimination in defend...