# Fudge v. City of Providence Fire Department

> Court of Appeals for the Fifth Circuit · June 28, 1985 · 766 F.2d 650

URL: https://www.frixlaw.com/law-library/cases/8932236

## Case

- **Full name:** Roger Anciel FUDGE v. CITY OF PROVIDENCE FIRE DEPARTMENT, Appellants Roger Anciel FUDGE v. CITY OF PROVIDENCE FIRE DEPARTMENT
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** June 28, 1985
- **Citations:** 766 F.2d 650; 38 Fair Empl. Prac. Cas. (BNA) 648; 37 Empl. Prac. Dec. (CCH) 35,421; 1985 U.S. App. LEXIS 20171
- **Precedential status:** Published
- **Opinion:** Concurrence by Breyer
- **Judges:** Breyer, Doyle
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8932236

## Opinion text

BREYER, Circuit Judge
(concurring).
While I join the court’s opinion, I add the following comments. First, this case strikes me as highly unusual in that, as I read the briefs and the record below, the plaintiff 1) has challenged the 1974 test as having a “disparate impact” see Griggs v. Duke Power Co., 401 U.S. 424 , 91 S.Ct. 849 , 28 L.Ed.2d 158 (1971), but 2) must rely entirely upon the 1974 black/white accept/reject ratios in order to show that impact. This court has held that, where samples are small, other evidence of “disparate impact” may be highly relevant. Boston Chapter, N.A.A.C.P., Inc. v. Beecher, 504 F.2d 1017, 1021 (1st Cir.1974) (“what conclusively tips the scale in plaintiffs’ favor is the uncontroverted testimony, from experts ... that black and Spanish surnamed candidates typically perform more poorly on paper-and-pencil tests of this type”), cert. denied sub nom. Director of Civil Service of Massachusetts v. Boston Chapter, N.A.A.C.P., Inc., 421 U.S. 910 , 95 S.Ct. 1561 , 43 L.Ed.2d 775 (1975).. Here, however, no such evidence was presented. Plaintiff’s expert, for example, might have testified that one could expect differences in educational opportunity to make the sorts of questions found on the 1974-type test more difficult for relevant minority job applicants; but he did not so testify. Cf. Beecher, 504 F.2d at 1021 . Nor is there any evidence about whether or not this type of test or the earlier 1972 and 1973 tests may have disproportionately discouraged minority applicants from applying. Cf. Beecher, 504 F.2d at 1021 n. 6. Nor is there any evidence that blacks taking the 1974 test had a lower mean score (as opposed to a lower pass-rate) than whites. Evidence about the earlier 1972 and 1973 tests is sparse, to say the least; and there is no testimony or even argument about whether the earlier tests were similar in any relevant respect to the 1974 test. Since a reading of the tests themselves shows important differences, and since 1974 seems to have represented a transitional year between the use of tests that apparently did discriminate and the use of tests that apparently did not, one needs at least some evidence, not total silence, to infer that there are relevant (discriminatory) similarities between the two sets of tests.
Second, the 1974 test results simply will not bear the near total weight that plaintiff, plaintiff’s expert, and the district court put upon them. As Judge Doyle’s opinion points out, a perfectly fair test given to a pool of blacks and whites will not always produce results that precisely mirror the racial percentages in the pool. Indeed, virtually all the time the perfectly fair test would lead to some deviations favoring either whites or blacks. A perfectly fair 1974 test (that is, a test having no systematic disparate impact on blacks) would, if repeatedly applied to racially similar pools, yield one (or no) successful black appli *660 cant(s) out of thirty 18 percent of the time (82 percent of the time it will yield two or more). See Shoben, “Differential Pass-Fail Rates In Employment Testing: Statistical Proof Under Title VII,” 91 Harv.L.Rev. 793, 812 (1978) (setting out probability formula). A perfectly fair coin, if flipped twice, will come up two heads 25 percent of the time. Flipped three times, the fair coin will yield three heads 12.5 percent of the time.
Under these circumstances, I agree that the numbers alone in so small a sample do not show bias. Had the 1974 test been repeated, of course, one would have better evidence. A perfectly fair test would produce similar results in two instances only about 3.2 percent (18 percent X 18 percent) of the time — well below the number that statisticians, for scientific purposes, consider “significant.” But where the likelihood of pure “chance” bulks as large, as here, I agree with the court that the plaintiff must present some reason to believe that the explanation is not “fairness plus pure chance.” In Beecher , we spelled out a few, apparently easy, ways in which this might be done. But, I also agree that virtually no such “other” evidence or reason was presented here.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8932236. Public record. Not legal advice.