526 F.2d 431 | 10th Cir. | 1975
This civil rights suit challenges both the hiring and promotion procedures of the Albuquerque, New Mexico, Police Department (the Department) as racially discriminatory against Spanish-speaking and surnamed Americans. The plaintiffs are twelve Chicano employees of the Department and the Chicano Police Officer’s Association (the Association).
The complaint essentially alleged that the defendants had deprived plaintiffs, under color of State law, of rights, privileges and immunities secured by the constitution and laws of the United States in violation of 42 U.S.C.A. §§ 1981, 1983 and 1985 (R. I, 9). The complaint averred that defendants employed hiring and promotion procedures including tests and other job criteria which are not substantially related to job performance and have the effect of excluding a disproportionate number of Chícanos from employment and promotions in the Department, thus violating rights secured by the equal protection clause; by 42 U.S.C.A. §§ 1981, 1983 and 1985, and other statutes. Jurisdiction was claimed under 28 U.S.C.A. § 1343(3) and (4), and declaratory and injunctive relief were sought.
. After presentation of the plaintiffs’ evidence, and that of two defense witnesses heard out of turn, defendants moved to dismiss under Rule 41(b), F.R. Civ.P., on the ground that plaintiffs had shown no right to relief. The trial court made written findings and conclusions adverse to the plaintiffs and dismissed.
On appeal plaintiffs argue principally that the trial court erred in that:
1. The court erred in holding that plaintiffs lack standing to challenge the hiring or entry level procedures of defendants; and
2. It was error to find and conclude that plaintiffs had made no prima facie case of the unlawfulness of the promotion procedures used by defendants.
We turn to the findings and conclusions of the trial court which are of critical importance.
I
The Trial Court’s Findings and Conclusions
The trial court made these findings: The Chicano Police Officer’s Organization is an unincorporated association composed chiefly of Spanish-speaking or Spanish surnamed police officers in the Albuquerque Police Department. Its membership is not limited to Spanish-speaking or Spanish surnamed officers and not all such officers are members of the Association. The Association seeks to achieve equal opportunity for Spanish-speaking or surnamed Americans in recruitment and promotions within the Department, and to discourage discrimination.
The court found further that police officers must be high school graduates or have obtained a general equivalency degree. The Department’s General Order 71-23, issued December 17, 1971, requires that all officers to be promoted after January 1, 1972, must have completed at least six semester hours of college accredited study. Those to be promoted during 1974 were required to have completed twelve semester hours, and an additional six hours credit per year is required until a bachelor’s degree is attained.
Promotional examinations were held on June 2, 1973. Four individual plaintiffs were ineligible to take the examination because they lacked the six hours of college credit. The court found, however, that there was ample notice and opportunity for completion of the six hour requirement prior to its application precluding officers from taking the examination. There had been an incentive pay of $1 per month for each hour of college credit, and from April, 1973, to June, 1973, 208 officers of the Department received incentive pay. Fifty-three of approximately seventy Spanish-speaking or surnamed officers received incentive pay under the program. 155 of approximately 305 Anglo officers received incentive pay. It was found that this demonstrates that 75% of the Spanish-speaking/surnamed officers attended college during the period and that the educational requirement did not erect a barrier for a minority group and that the requirement did not have a discriminatory effect on Chícanos as a group.
The results of the June 2, 1973, examination were summarized by the court as follows:
A. Sergeant’s Examination:
1) Total Examinees 90
Passing Examinees 17
Percentage Passing 19%
2) Spanish-surnamed
Examinees 26
Passing Examinees 3
Percentage Passing 11.5%
B. Lieutenant’s Examination:
1) Total Examinees 44
Passing Examinees 7
Percentage Passing 16%
2) Spanish-surnamed
Examinees 7
Passing Examinees 1
Percentage Passing 14%
3) Non-minority
Examinees 36
Passing Examinees 5
Percentage Passing 14%
No Spanish-surnamed Americans took the June 2, 1973, examination for captain. The examinations were achievement tests and their subject matter was taken from tests on police administration, management, psychology, leadership and planning. Members of the Chícanos Police Officer’s Association formed a study group. Some were assigned responsibility for outlining portions of the assigned texts. Several officers read some but not all of the texts and relied on outlines for the material they did not read. The June 2, 1973, examination had not been used before and is not to be used in the future.
The court concluded that the plaintiffs have failed to establish prima facie that the college educational requirement adversely affects minority groups. It concluded that the plaintiffs failed to show that the promotional examinations caused a statistically significant discrimi-. natory impact on Spanish-speaking/surnamed officers. The overall pass ratio for each examination was small. 19 percent passed the sergeant’s examination; 16 percent passed the lieutenant’s examination. The ratio of Spanish-surnamed passing to non-minority passing was one to one on the lieutenant’s examination and slightly less than two to one on the sergeant’s examination.
The 11 percent pass rate for Spanish-speaking/surnamed examinees for sergeant is arrived at from a small sample, since only 26 Spanish-speaking/surnamed were eligible to take the examination. Three of the 26 passed. The trial court held that the 11 percent figure is not stable or highly reliable. A variance of two Spanish individuals passing or failing would yield ratios between five to one and one to one.
The court concluded that any significance the two to one ratio might have is undermined by the testimony. There was no showing that any other examinees were able to pass with equal or less preparation. Thus, the court concluded that it cannot be said that the disparity in pass rate is statistically significant.
The court concluded further that the plaintiffs have shown no right to relief. It was observed, however, that had they made a prima facie showing of a discriminatory impact of the tests, the defendants probably could not have carried their burden of persuasion; that defendants need to improve recruitment and promotion policies to alleviate under-representation of the Spanish minority at all levels of the Department; that the heavy reliance placed on the achievement type test seems inequitable and misplaced; and that the test does not go far enough in showing performance, leadership and supervisory ability.
The court said further that the value and reliability of the present promotional scheme was dubious, but that the evidence has not shown the significant adverse impact on minorities which is necessary to support an injunction or imposition’of a court-ordered remedial plan. And the court stated that immediate steps should be taken to solve these problems and eliminate “. . . what could become a breeding ground for future litigation.”
On these findings and conclusions the court dismissed with prejudice.
II
Standing to Challenge The Entry Level Hiring Procedures
First, plaintiffs argue that the trial court erred in holding that no plaintiff has standing to challenge the hiring policies of the Department. As stated, the court reasoned that the injury alleged by the Association and one officer is that the development of power to negotiate for the betterment of the position of Chícanos is stifled by policies perpetuating under-representation of Chícanos. However, the court concluded that the Association and its members have only an indirect stake in the outcome and are not entitled to assert the right of those directly affected and not otherwise present in the suit — persons unsuccessfully seeking employment or discouraged from doing so.
Nevertheless, the standing requirement is not to be applied to defeat constitutional claims. An “identifiable trifle” is enough for standing to fight out a question of principle; the trifle is the basis for standing and the principle supplies the motivation. United States v. SCRAP, 412 U.S. 669, 689, n.14, 93 S.Ct. 2405, 37 L.Ed.2d 254.
In our case we have both individual plaintiff Chicano officers and the Association. This is not, however, a class action maintained for others.
We are satisfied that both the Association and the individual plaintiffs made a sufficient showing of standing. This was demonstrated, we feel, by undisputed proof and reasonable and obvious inferences. The Association had 44 signed members at the time of trial (Nov. 26, 1973), and about 50 members in all (Tr. 82). Of these only one or two were Anglos. Id. In the period from April to June, 1973, the court’s findings state that there were approximately 70 Spanish-speaking/surnamed officers and approximately 312 Anglos officers on the force (see Finding 23). Thus, from the proof it is clear that a substantial portion of Chícanos obtaining employment on the force joined the Association. The Association therefore has a direct stake, independent of its members’ rights under the Civil Rights Act, in challenging barriers against employment of those from whom it might well enhance its membership and resources to attain its goals. Warth v. Seldin, supra, 422 U.S. 511, 95 S.Ct. 2197; Albany Welfare Rights Organization v. Wyman, 493 F.2d 1319, 1322 (2d Cir.).
We are also satisfied that the proof made a sufficient showing of standing of
Moreover, this court recently affirmed a similar order for transfer of school officials, recognizing implicitly the standing of individual students to assert the invalidity of discriminatory personnel policies affecting others because the policies had a secondary effect on the students. See Dowell v. Board of Education of the Oklahoma City Public Schools, Unpublished Order (10th Cir., January 31, 1975), cert. denied, 423 U.S. 824, 96 S.Ct. 37, 46 L.Ed.2d 40 (1975). The fact that harm from discriminatory hiring policies is imposed directly on the rejected or discouraged applicant does not deprive the present Chicano officers of standing to challenge the hiring practices that are asserted to produce an under-representation of Chicanos on the force. The indirectness of the injury to the employees does not necessarily deprive them of standing to vindicate their rights. See Warth v. Seldin, supra, 422 U.S. 504-05, 95 S.Ct. 2197, and to seek removal of the taint of racial discrimination from the work force.
In sum, we are satisfied that both the Association and the individuals made a sufficient showing of standing to challenge the allegedly discriminatory hiring policies and, of course, there is no indication of a lack of concrete adverseness between the position the plaintiffs take and that of defendants. See Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663. It follows that we must hold that the court was in error in its findings and conclusions denying standing to plaintiffs to challenge the entry level hiring procedures.
Ill
The Trial Court’s Ruling that no Prima Facie Case was made by Plaintiffs
Plaintiffs’ second argument on appeal is that the trial court erred in holding that plaintiffs had not made out a prima facie case against the promotion level procedures and in dismissing their claim for relief from such allegedly unlawful procedures. More specifically plaintiffs say the court erred (1) by excluding evidence relating to prior examinations; (2) by concluding plaintiffs had not established a prima facie case on the evidence presented; (3) by ignoring, as a consequence of its rulings as to standing, the relationship between promotions and discriminatory hiring practices; and (4) by dismissing their showing as not statistically significant because any significance
First, we feel the exclusion of the pri- or examinations poses a serious question. Plaintiffs offered proof of the results of examinations from 1966 to 1971 (Plaintiffs’ Exhibits 7-12). Objections were made on the ground of relevancy to these exhibits, defendants arguing that an intervening and different examination was now being given and that the results of the old examinations were irrelevant (See Tr. 49, 53, and the various objections at 49-60). Other objections are said to have been urged and are now argued on appeal to support the exclusion of the exhibits (Answer Brief of Defendants-Appellees at 12 — 15). We read the record to have raised only relevancy and must assume this was the basis for the trial court’s exclusion of the proof.
We agree with the view that the measure of a claim under the Civil Rights Act is in essence that applied in a suit under Title YII of the Civil Rights Act of 1964. Chance v. Board of Examiners, 458 F.2d 1167, 1175-76 (2d Cir.); see Sabol v. Snyder, 524 F.2d 1009, 1012 (10th Cir. 1975). Relief may be had from artificial, arbitrary and unnecessary barriers to employment when they operate invidiously to discriminate on the basis of racial or other impermissible classifications. Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158. While the employer’s intent may be examined, Griggs supra at 432, 91 S.Ct. 849, the plaintiff needs only to show that the challenged procedures have a discriminatory result, Griggs, supra at 432, 91 S.Ct. 849. This showing would make out a prima facie case, requiring the employer to demonstrate that his employment criteria or tests were validly job-related. Spurlock v. United Airlines, Inc., 475 F.2d 216, 218 (10th Cir.); Chance v. Board of Examiners, supra, 458 F.2d at 1176.
Obviously, the scope of proof must be broad to establish such a prima facie case. It is open to the plaintiff to develop proof of the general overall trends in hiring and promotion policies. See Rich v. Martin-Marietta Corp., 522 F.2d 333, at 343, 345 (10th Cir. 1975), and this may necessitate “a backward glance. . ” EEOC v. University of New Mexico, Albuquerque, 504 F.2d 1296,1304 (10th Cir.). In our type of case we must agree with the view in Chance v. Board of Examiners, 458 F.2d 1167, 1171 (2d Cir.), where examinations given during several past years to large numbers of applicants were considered.
The question of relevance and of remoteness of exhibits in time is, of course, generally within the discretion of the trial court. Here, however, we are satisfied that the proof offered was clearly within a reasonable time frame and should not have been rejected as irrelevant. In this connection we note that such proof need not show a racially disproportionate impact with mathematical nicety; its purpose is initially to premise a finding whether a prima facie case is made; such a finding does not decide the case and instead only places the burden on the defendant to justify the testing criteria in question. Vulcan Society of the New York City Fire Department v. Civil Service Commission of the City of New York, 490 F.2d 387, 393 (2d Cir.).
In the circumstances before us we feel rejection of the exhibits of these plaintiffs as irrelevant was error.
Second, plaintiffs argue the trial court erred in dismissing the 2 to 1 ratio as statistically insignificant because of the smallness of the sample and undermining of its significance by the testimony (Brief of Plaintiffs-Áppellants at 34). They are pointing to the Court’s conclusion that they failed to show that the promotional examinations caused a statistically significant discriminatory impact on Spanish-speaking/surnamed officers, and that “there was no showing that any other examinees were able to pass with equal or less preparations.” (R. 290).
We must disagree with the ultimate findings and conclusions of the trial court. The smallness of the sample should not be grounds here for rejecting the proof. If it were, the tendency would be to deny employees in small plants the type of protection the civil rights statutes afford. Moreover, here the inability to evaluate the test effects on a larger scale resulted in large part from the exclusion of the results of the several prior examinations. And, in any event, we feel the group tested was not too small to be evaluated as significant. See Brito v. Zia Co., 478 F.2d 1200, 1205 (10th Cir.).
Moreover, we note that although the court found that no prima facie case was made, it was observed that:
Defendants need to improve recruitment and promotion policies in order to alleviate the underrepresentation of the Spanish minority at all levels of the department (R. 291).10 -
There remains the trial court’s reference to the lack of a showing that “any other examinees were able to pass with equal or less preparation.” (R. 290), an apparent allusion to the testimony that outlines prepared by others, and not the text books, were studied by the Chicano officers.
We have noted no authority supporting the imposition of such a burden on the plaintiff. If the proof surrounding a test showed a lack of a good faith effort by minorities to pass, we do not say this factor should be ignored. But in this case we feel the burden imposed was unjustified in connection with a showing for a prima facie case. Our conclusion here is re-enforced when we recall the trial court’s unfavorable observations concerning the type of tests used:
The heavy reliance placed on the achievement type test seems inequitable and misplaced. It does not go far enough in showing performance, leadership and supervisory ability. (R. 291).
It seems illogical to say the type of test was improper and at the same time to hold the prima facie showing of plaintiffs was defective because they did not prove that any other examinees were able to pass such tests with equal or less preparation.
Other arguments are made by the parties but we need not discuss them. What we have said shows our reasons for concluding that errors in the standing determination on the entry level issue as well as in the treatment of the promotional level proof require a retrial. Accordingly, the findings, conclusions and judgment are vacated and the case is remanded for further proceedings.
On Petition for Rehearing
This matter comes on for consideration of the petition filed by defendants for rehearing together with a suggestion that there be a rehearing en banc.
Upon consideration whereof, we conclude that the rehearing should be denied and it is ordered denied. No judge having requested a poll on the suggestion for rehearing en banc, that suggestion is denied. Rule 35(b), Federal Rules of Appellate Procedure. Our reasons follow:
First, defendants argue that the opinion is at odds with Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343, saying that neither the Association nor the individual plaintiffs have shown injury to themselves sufficiently to meet the requirements of Warth, and that they may not assert the rights of third parties.
The opinion details the showing of standing we feel sufficient under Warth. We need only emphasize that there is an adequate showing, we feel, of a personal stake by the Association and individuals to challenge the hiring policies. Warth, supra at 499, 95 S.Ct. 2197. The Association, as indicated by the evidence, see note 1 of the opinion, seeks to encourage racial harmony and to discourage racism and discrimination. The underrepresentation of Chicanos on the police force, see notes 4 and 10 of the opinion, would have an obvious effect in restricting membership and resources available to the organization for furthering these purposes
We are convinced that for standing purposes injury to the Association and individuals is sufficiently shown in connection with composition of the workforce, and the fact that specific harm occurs to third parties not hired does not deprive these plaintiffs of standing to vindicate their own rights. Warth, supra at 504-05, 95 S.Ct. 2197.
Second, defendants turn to the opinion’s treatment of the trial court’s ruling that a prkna case was not made to challenge the promotion level procedures. In part they challenge our holding that it was error for the trial court to exclude as irrelevant the proof concerning the prior examinations from 1966 to 1971 (Plaintiffs’ Exhibits 7-12).
Defendants say that reversal is not warranted because in addition to the relevancy objections, they made renewed objections raising the grounds of errors in tabulation, erroneous conclusions and authentication, citing record objections in Vol. VI, at 116 and 119. It is clear, however, that these other objections were directed to other exhibits, that is Exhibits 3 and 4, and not to the examinations in question (R. VI, 108,116,119).
Defendants argue also that even if the trial court erroneously excluded the exhibits as irrelevant,
Without considering whether such rule would apply here, this record convinces us that rejection of all the proof of prior examinations cannot be sustained here. The trial court admitted, without objection, plaintiffs’ summary of the 1973 examinations, Exhibit 14, containing tabulations made apparently in the same way and by the same witness, Mr. Chavez (R. V, 63; VI, 144), whose tabulations for the other exhibits covering the prior examinations are challenged as inaccurate, et cetera. Exhibit 14 was apparently accepted and relied on by the trial court whose findings cite Chavez’ figures (R. I, 288). Thus it would be unfair here to say that the other grounds of objection to Exhibits 7-12 concerning the prior examinations — such as unreliability and the like — existed and 'were “tenable.”
The prior examinations were not mentioned in the findings or conclusions of the trial court and there was no express ruling on the relevancy objections made. The 1973 examination was discussed in detail. We are satisfied that the exhibits concerning the earlier examinations were excluded from consideration by the trial court as irrelevant, and that this is the only tenable ground to consider in the posture of this appeal. And regardless of whether the exhibits were excluded as irrelevant, or considered unreliable and wholly discounted, we are convinced we cannot sustain the failure to give any consideration to them.
. Throughout this opinion we will use the term “Chicano” to designate the racial minority of Spanish-speaking and Spanish surnamed Americans whom the suit concerns.
. Plaintiffs’ exhibit 1, a brochure of the Association, states that the Association’s aims include, inter alia:
STATEMENT OF PURPOSE
The Chicano Police Officers Association also known as the Concerned Police Officers Association is dedicated to the following principles and purposes:
* * * * * #
*434 2. To achieve equal opportunity in recruitment, promotion, assignment, evaluation, and other areas within all Police Departments.
* * * * * #
6. To actively support the recruitment of personnel for police work in such a manner as to insure proportionate representation within the profession of all cultural and ethnic groups of the population of our community.
7. To encourage racial and ethnic harmony within the profession, as well as between the profession and the community and to discourage racism and discrimination.
* * * * * *
10. To expand our knowledge of the various cultures and heritages of other people and to educate other members of the police profession on our own culture.
. This makes inapposite the class action cases relied on by plaintiffs which support the “across the board” theory permitting one plaintiff to challenge all discriminatory practices of an employer. We do not reach this theory in our disposition.
. There is a substantial factual basis for the claim that discrimination exists at the entry level. The evidence of under-representation throughout the police force appears in Part III, infra. Additional evidence reflects a racial dis-proportionality in the results of entrance examinations administered by the defendants between 1971 and 1973. Based upon a large sampling of examinees, it appears that the pass rate among Spanish-sumamed Americans was approximately 43.2% for the years 1971 through 1973, while the non-Spanish-surnamed Americans passed at a 78.9% rate; a pass rate ratio of 1.83:1. (Exhibit 2; R. 328).
. Although not explicitly set out in the findings, the two to one pass rate ratio derived by the court is apparently the correct statistical comparison of the pass rate of non-minority examinees to the pass rate of the minority examinees. See Bridgeport Guardians, Inc. v. Members of Bridgeport Civil Service Commission, 482 F.2d 1333 at 1335, n.3 (2d Cir. 1973), cert. denied, 421 U.S. 991, 95 S.Ct. 1997, 44 L.Ed.2d 481 (1975); see also cases cited therein.
. There was no express ruling on the objection. However the trial court’s detailed findings treat only the latest promotional examinations given on June 2, 1973, and it is apparent that the court did not weigh the earlier examinations in its considerations.
On the further trial for which we are remanding, the trial court may, of course, consider authenticity or other objections timely made and the defendants may develop the weaknesses which they say exist as to the exhibits covering past years.
. We note that a compilation of prior test results was relied upon in Bridgeport Guardians, supra, 482 F.2d at 1335 (five years of entrance exams; twelve years of promotional exams were admitted, although for some reason the court did not compile the statistics on the promotional exams), see 354 F.Supp. 778 at 795; in Chance v. Board of Examiners, 330 F.Supp. 203 at 209 (S.D.N.Y.1971) aff’d, 458 F.2d 1167 (2d Cir. 1972) (“50 supervisory examinations given over the past few years.”); in Commonwealth of Pa. v. O’Neill, 348 F.Supp. 1084 at 1101 (E.D.Pa.1972) aff'd, 473 F.2d 1029 (3d Cir. 1973) (three written promotion exams given between 1968 and 1970); and in Harper v. Mayor and City Council of Baltimore, 359 F.Supp. 1187 (D.Md.1973) modified sub nom.
. The trial court found that the examinations given on June 2, 1973, had not been given before and are not to be given in the future (R. 289).
. We assume that an employer would regularly change at least the specific questions on examinations to avoid them becoming simply a memory exercise to recall answers to available prior tests.
. There was some testimony that the Chicano group assigned reading of books to certain persons and relied on review of outlines prepared by them (R. 94 — 95, 158-59).
. The record in the present case reflects a statistical discrepancy between the Chicano population of Bernalillo County, and the Chicano representation in the Albuquerque Police Department. The Chicano population of Bernalillo County is approximately 39.2% (Exhibits 26, 27; R. 471, 472). The statistical breakdown of the Albuquerque Police Department as of August, 1973, based on testimony of plaintiffs’ witness is approximately as follows:
No. %
Chicano 86 21.4
Non-Chicano 316 78.6
Total 402 100.0
(Tr. 643). .
. Although the Chicano population of the county is approximately 39.2%, only 21.4% of
. Defendants also contend that we should presume that the exhibits were actually considered and discounted as unreliable. (See Petition for Rehearing, 13).
