Western Addition Community Organization v. Alioto, 701335.

• Decision Date: 08 January 1971
• Docket Number: No. 701335.,701335.
• Parties: WESTERN ADDITION COMMUNITY ORGANIZATION et al., Plaintiffs, v. Frank N. ALIOTO et al., Defendants.
• Court: U.S. District Court — Northern District of California

330 F. Supp. 536

WESTERN ADDITION COMMUNITY ORGANIZATION et al., Plaintiffs, v. Frank N. ALIOTO et al., Defendants.

No. 701335.

United States District Court, N. D. California.

January 8, 1971.

Sidney Wolinsky, Robert Gnaizda, Oscar Williams, NAACP Legal Defense, Hector Ortiz, and Louis Garcia, San Francisco, Cal., for plaintiffs.

Thomas M. O'Connor, Davis, Cowell & Bowe, Brundage, Neyhart, Grodin & Beeson, and William J. Murphy, San Francisco, Cal., for defendants.

MEMORANDUM OF DECISION

SWEIGERT, District Judge.

This is a civil rights action brought pursuant to the provisions of Title 42 U.S.C. §§ 1981 and 1983 seeking injunctive and declaratory relief. The jurisdiction of this court is invoked under Title 28 U.S.C. § 1343(3) and (4), Title 28 U.S.C. §§ 2201 and 2202, and Title 28 U.S.C. § 1337.

Plaintiffs, Western Addition Community Organization, National Association for the Advancement of Colored People and the Mexican-American Political Association, all non-profit corporations existing for the purpose, among others, of eliminating racial discrimination in employment, bring this action on behalf of all Negro and Mexican-American San Francisco area adults fully qualified to be firemen with the San Francisco Fire Department but who are allegedly barred from such profession due to their inability to maintain a sufficiently high score on the written examination administered by defendants as a prerequisite to such occupation in San Francisco; also on behalf of all Negro and Mexican-American San Francisco adults desirous of having their homes protected by an integrated fire department.

The action is presently before the court on plaintiffs' motion for a preliminary injunction restraining defendants from further reliance upon written examinations of the kind used at the 1968 Fireman Class H2 Civil Service examination upon the ground that said written examination requirement violates the rights of certain civil service applicants, i. e., Negro and Mexican-American applicants, to due process and equal protection of law under the 14th Amendment to the Constitution of the United States.¹

THE FACTUAL BACKGROUND

As positions with the San Francisco Fire Department in the Fireman Class H2 become available they are filled from a list of applicants certified as eligible by the defendant Civil Service Commission.²

The determination of eligibility for a position with the fire department is made by defendants on the basis of an applicant's performance on a six part test.

The 1968 examination was broken down into a test of physical measurement, a test of athletic ability, a medical examination, a qualifications appraisal, an employment, character and background investigation and a written examination.

Only the score on the written examination determines a qualified applicant's relative position on the certified list of eligibles; success on the other five parts determines an applicant merely "qualified."

The current list is comprised of persons who successfully completed the 1968 Fireman H2 examination; the list of eligibles was certified on August 5, 1969 and will expire in August, 1971.

Of the 1883 potential applicants who took the 1968 written examination for Fireman H2, 101 were Negro and 69 were Mexican-American. A total of 662 applicants passed the written examination, of this number 12 were Negro and 24 Mexican-American.

Ultimately, 350 persons qualified on all further tests to be certified on the list of eligibles, of this number 3 are Negro and 14 Mexican-American.

Plaintiffs allege that only approximately the first 160 persons on the list of eligibles have any real chance of selection to the fire service during the lifetime of the list; only four Mexican-Americans and no Negroes are ranked within the top 160 on the current list.

In terms of percentages it appears that of the 1883 applicants who took the written test in 1968 approximately 662, i. e. 35% passed; of the 101 Negroes who took that test approximately 12, i. e. 12% passed; of the 69 Mexican-Americans who took the test approximately 24, i. e. 34% passed; of the remaining 1713 who took the test approximately 626, i. e. 36% passed.

Of the 1800 firemen currently employed by the San Francisco Fire Department only 4 are Negro, although according to recent statistical data for the City and County of San Francisco, Negroes constitute approximately 14% of the City's adult population.

Plaintiffs contend that the written test used by defendants in determining eligibility for service with the fire department consists mainly of questions commonly found in group intelligence tests and scholastic achievement tests; that about 52 percent of the questions on the 1968 examination bear no particular relevance to firefighting and are not practically related to the skills necessary to adequately perform that job. (See Affidavit of Davison attached to plaintiffs' reply to memorandum filed July 28, 1970).

An examination of the 1968 Fireman Class H2 written examination³ used by defendants discloses that it is comprised of questions covering a broad range of topics; the primary emphasis is placed on mathematics, verbal skills and reading comprehension — about 47 percent, we estimate, of the test questions. About 16 percent of the questions require a general knowledge of mechanics and the physical properties of various materials. About 11 percent involves basic chemistry and physics problems. About 13 percent of the test consisted of questions dealing with responses to situations with which a fireman might be confronted; and about 13 percent involved questions requiring a knowledge of bodily functions and basic first aid principles.

THE LEGAL ISSUE

Of course, general aptitude tests of the kind here used are permissible if there is a reasonable relationship between the aptitudes tested and the demands of the work to be performed; a hiring practice thus related to ability to perform is not unfair even if it means that disadvantaged minorities are in fact adversely affected.

On the other hand, where the hiring practice of a public agency (even though it does not intend to discriminate against minority groups) has the effect of producing a de facto pattern of racial discrimination, such a discriminatory effect, although it does not necessarily render the method of selection constitutionally defective, does render the method of selection sufficiently suspect to make a prima facie case of unconstitutionality.

Under such circumstances the burden shifts to the public agency to justify the use of such generalized hiring tests by showing some rational connection between the qualities tested by the written examination and the actual requirements of the job to be performed.⁴

In this case, plaintiffs have shown that the percentage of minority-group persons employed by the Fire Department is grossly and disproportionately less than the percentage of minority-group persons in the general population of the area. Thus, whatever may have been the good intentions of defendants, there is a prima facie case for predicating employment discrimination unless defendants justify the selection method by showing a reasonably necessary connection between the qualities tested in the Fireman H2 examination and the actual requirements of the job to be performed.

Conceivably, such a showing might be made but defendants have not made it up to this point. The response of the named defendants has been mainly a showing that efforts have been made by the Fire Department to attract minority-group persons to apply for the Fire Department and to take the 1968 examination. (See affidavits in Calden, Casper and Noguchi attached to defendants' memorandum in opposition to the motion for preliminary injunction). Indeed, defendants made clear with great candor at hearings on this motion that they are aware of the disproportionate representation of such minorities in the department and that they are desirous of making it more representative if that can be done without impairing departmental efficiency.

DISPOSITION OF MOTION FOR PRELIMINARY INJUNCTION

Upon the present record a preliminary injunction would ordinarily issue restraining the use of the 1968 Fireman H2 format for future examinations — not upon the ground that the format is constitutionally defective (an issue which this court would not have to decide at this point) but only upon the ground that a prima facie case had been made by plaintiffs sufficient to support such temporary relief but subject to defendants' right to justify the H2 examination format at a trial on the merits.

However, for reasons now to be set forth such a preliminary injunction need not be issued.

On July 23, 1970, following submission of the motion for preliminary injunction, the court, noting the expressed desire of defendants to resolve the issue if possible, requested the parties and intervenors to conduct discussions, through their counsel of record with a Civil Service Commission Task Force, concerning the practicability and advisability of modifying the 1968 examination format with a view to widening opportunity for minority group representation in the Fire Department without impairing departmental efficiency.

On October 21, 1970, this court made and filed its further Interim Order, reciting what it considered to be progress in such discussions up to that time, requesting continuance of such discussions and the lodging of a further report with the court on or before December 1, 1970.

Such report, dated November 30, 1970, and signed by counsel for both parties (together with attachment thereto entitled "Matters still unresolved" and further attachment indicating actions taken by the Task Force) has now been lodged with the court and is appended hereto and marked Exhibit A.

The court is pleased to note that these discussions between parties, intervenors and the Civil Service Commission Task Force, have been conducted constructively and in good faith and...