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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

San Francisco Police Officers’ Association; Lynn Torres; Lillian Chai Mattoch; Henry Kirk, Plaintiffs-Appellants, v. City and County of San Francisco, a municipal corporation; Civil Service Commission; Louis P. Lee; Rev. Dr. Howard S. Gloyd; Carlota Texidor Del Portillo; Genevieve W. Powell; A. Lee Munson, Defendants-Appellees

No. 85-2180
812 F.2d 1125 (1987)

Race and sex discrimination actions were brought against the city and county of San Francisco, CA under Title VII of the Civil Rights Act of 1964. All interested parties settled the case by entering into a consent decree that required the defendants (“City”) to employ good faith efforts to achieve particular goals for employment of women and minorities within specified periods of time. The consent decree prohibited the use of selection procedures that had an adverse impact on women and minorities, unless the City proved the procedures were valid under the Uniform Guidelines on Employee Selection Procedures, 28 C.F.R. 1607. The consent decree specifically prohibited the City from unlawfully discriminating in any manner on the basis of sex, race, or national origin.

In order to discharge its obligations under the consent decree, the City established a Consent Decree Unit (“Unit” or “Commission”) and charged it with developing and administering new promotional examinations. In 1983, the Unit administered the selection procedures for Assistant Inspector and Sergeant. The promotional examinations had three parts: (1) A multiple choice test to measure technical knowledge and problem solving; (2) a writing skills examination to test the candidates’ written communication skills; and (3) a structured oral examination to measure oral communication, interpersonal qualities, and supervisory abilities. The Unit administered each component of the examination at different times during 1983 and set the weight to be allocated to each component. Test results showed an adverse impact on minorities and women. The Unit decided to address that problem by re-allocating weight among the three test components as follows: grading the multiple choice and written parts on a pass-fail basis and using the oral exam to rank applicants who passed the other parts. The decision to reweigh the various parts of the exam was unsuccessfully challenged in U.S. District Court, which held (i) that the examinations as initially weighed were invalid because they had an adverse impact on minorities and women, and (ii) that the City acted properly in reweighing the components.

Appellants appealed the district court’s approval of the procedures followed for the 1983-84 promotion examinations to Police Sergeant and Assistant Inspector. They challenged the district court’s decision that permitted the City and County of San Francisco to rescore the promotion examinations so as to comply with the Title VII consent decree.
WIGGINS, Circuit Judge:

The critical issue in this case is whether the Commission acted lawfully in reweighing the examination components. The district court viewed this question in terms of fairness and held a fairness hearing in order to determine if the Commission’s decision to reweigh was a valid affirmative action plan under United Steelworkers of America v. Weber, 443 U.S. 193 (1979).

In Weber, the Supreme Court identified four criteria that make an affirmative action plan valid under Title VII: (1) it is designed to break down old patterns of racial segregation and hierarchy; (2) it does not create an absolute bar to the advancement of nonminority employees; (3) it is a temporary measure, “not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance”; and (4) it does not unnecessarily trammel the interests of nonminority employees. Weber, 443 U.S. at 208. Weber did not hold that these criteria were absolute requirements, but did hold that these aspects of the plan in Weber placed it on the permissible side of the line between permissible and impermissible plans. Id. Here, the district court found that reweighing fit all four Weber criteria and was therefore permissible. We reverse the district court because reweighing the examination unnecessarily trammeled the interests of the nonminority police officers.

In analyzing whether the interests of nonminorities were unnecessarily trammeled, the district court focused on what rights the candidates possessed and how those rights were affected by reweighing. It determined that the City did not overtly take into account race or sex in the decision to reweigh. The district court was careful to state, however, that its holding was not intended to suggest that the new selection process was the best the City could have chosen to promote candidates. Rather, the district court merely approved of the City’s action under the arbitrary and capricious standard.

We find that the district court clearly erred when it determined that the decision to reweigh was not a race and gender conscious act.
. . .

Reweighing unlawfully displaced [the] candidates on the basis of their race and gender. The information about the candidates’ performance on the individual components led the Commission to choose the oral component as the sole ranking device. If the results of the examinations had been different, the written component or the multiple choice component might have been the new ranking device. Without readministering the test, the Commission examined the results from each component based on race and gender criteria and rescored the test to achieve specific and identified racial and gender percentages. This type of result-oriented scoring is offensive.

Candidates who participate in promotional examinations expect to have an equal opportunity to score well and to achieve promotion. This neutrality cannot exist if the City can rescore the examinations to achieve a particular race and gender balance after it analyzes the results. Permitting an employer to rescore examinations with knowledge of the ultimate results undermines the integrity of the examination process.
Moreover, candidates for promotion should be on notice of how their performance will be evaluated in order to prepare themselves effectively for an examination. . .

Here, however, the Commission’s decision to reweigh unlawfully restricted the promotional opportunities of nonminority candidates because the tests were scored to achieve a particular racial result. It trammeled the interests of nonminorities, in that the candidates were led to believe that the promotions would be based on merit alone. This harm to nonminorities was unnecessary because a less burdensome alternative, such as administering a new selection procedure, would have better achieved the goals of the consent decree without violating Title VII.

The City was obligated under the consent decree to administer an examination that would not have an adverse effect on minorities and women. When it failed in its first attempt to achieve that goal, the City inappropriately attempted to take short-cuts to meet its obligations. It did so in order to save time. Although we are sympathetic to the City’s time dilemma, using an unlawful procedure is not acceptable. The City was required either to validate its initial examination or, if it could not, to devise and administer an alternative selection procedure that did not have an adverse impact.

The City was additionally obligated under the consent decree not to practice racial or sexual discrimination — no more against white males than against others. . . The reweighing as practiced here violated the consent decree.

We hold that reweighing the promotion examinations after the results of those examinations were known violated Title VII. Therefore the eligibility lists from which the City made the new appointments for Sergeant and Assistant Inspector are invalid. Because the City was unable to validate its initial weighing system, those results must also be discarded. The City must devise and administer a new selection procedure that complies with this opinion. The scoring of the selection procedure must not depend on the actual results of an examination and must adhere to the requirements of the consent decree and Title VII. We remand to the district court in order that it supervise the development of a proper selection device for promotion.

The judgment is REVERSED and REMANDED.
MERRILL, Circuit Judge, dissented.

CASE BRIEF SUMMARY FORMAT

Case: Name of the case, followed by name of court and year of the decision in parentheses
Outcome of the appeal: Who are the parties in the case?
Who won the appeal?
What exactly did that party win? [affirmance, reversal, or reversal with remand for further proceedings (such as a new trial)]
Issue: What is the ONE basic legal question upon which the court’s decision turned? [Be as specific as possible; every assigned case involves a dispute about which law should be applied or what it means.]
An example of a case brief summary:
Case: State v. Worley (Supreme Court of South Carolina 1975)

Outcome of the appeal: James Worley, the Defendant in this case, was an inmate at Richland County Prison camp in 1972. He escaped but was captured two years later and convicted by the State of South Carolina of the crime of escape from lawful confinement. In his appeal to the Supreme Court of South Carolina, he argued that the trial judge should have allowed him to show the jury that his escape was necessary and justified (the trial judge had refused to allow it) because of inadequate medical treatment at the prison camp. The State of South Carolina won the appeal; the conviction was affirmed.

Issue: Did the trial court commit reversible error in refusing to allow the Defendant to present a necessity defense in an escape from lawful confinement case where the Defendant left a prison camp due to inadequate medical treatment and promptly sought proper medical treatment, but failed to report to authorities during the two years that followed? [Supreme Court’s answer: “No.”]

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