Petition — Smith v. Troyan

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IN THE

Supreme Court of the United States

i Octosper TeRM, 1975

No.@D.= 73 4 P

ELIZABETH A. SMITH, etal.,

Petitioner,

Vs.

ROBERT TROYAN, etal.,

Respondents,

PETITION FOR A WRIT OF CERTIORARI

To The United States Court of Appeals

For The Sixth Circuit

Jane M. Picker

Charles E. Guerrier

Barbara Kaye Besser

Barbara H. Mitchell

620 Keith Building

1621 Euclid Avenue

Cleveland, Ohio 44115

Phone: (216) 621-3443

Attorneys for Petitioners

TABLE OF CONTENTS

Citations to Opinions Below .......

peer. « «4 6 60 ee 4 O44

Questions Presented For Review ....

Constitutional Provision Involved ....

Statement OF The Cage. .c«cceceses

The Height Requirement. ......

The Written Examination ......

Reasons For Granting The Writ.....

To Clarify The Standard Of

Review Applicable To Irre-

buttable Presumptions

Adversely Affecting The Right

To Equal Consideration For

Governmental Employment...

To Resolve Conflicts Within

And Among The Circuits Con-

cerning The Standard Of Review

Under The Equal Protection

Clause Applicable To Fair

Employment Practice Litigation

. 13

a. The Proper Standard Of

ROViIOW .ccceccevsece

b. Does "Indirect 'Rational

Support! "' Suffice? .....

c. Remedying The Effects

Of Past Discrimination...

3. To Resolve Conflicts Among

The Circuits Concerning When

A Non-Job Related Test Having

A Racially Disparate Impact

May Nevertheless Be Used...

tik chs eeeesesesina

Appendix:

Opinion and Order of District Court.

Opinion of the Court of Appeals . .

Order On Motion For Rehearing

And Suggestion For Rehearing

En Banc, . . . . . . . * . e . . ° . .

-A-1

- -A-59

-A-71

Certificate of Service .........A-73

iii

TABLE OF AUTHORITIES

Cases

Afro American Patrolmen's League

v. Duck, 503 F. 2d 294

(6th Cir. 1974). . 2.2. ee cececee

Albemarle Paper Co. v. Moody,

U.S. __, 95S. Ct. 2362

Oa ee tee ee ee

Baker v. Columbus Municipal Separate

School District, 462 F. 2d 1112

(5th Cir. 1972), ee ¢ © © @& © *. ee @

Bell v. Burson, 402 U. S. 535 (1971) ,

Boston Chapter of NAACP, Inc. v.

Beecher, 504 F. 2d 1017 (1st

Cir. 1974)

Bradley v. Milliken, 484 F. 2d 3112

(1974) rev'd in part on other

grounds, 418 U.S. 717 (1974), |, .

Bridgeport Guardians, Inc. v.

Members of Bridgeport Civil

Service Commission, 482 F. 2d

1333 (2nd Cir. 1973)...

15, 22

Brinkman v. Gilligan, 518 F. 2d 853

(6th Cir. 1975)....

Carrington v. Rash, 380 U.S, 89 (1965). .

Carter v. Gallagher, 452

F. 2d 315

(8th Cir. en banc, 1971), cert.

denied, 406 U. S. 950 (1972). .... 16,

Castro v. Beecher, 459 F

. 2d 725

(Jet Cir. 1972)... ee ceceeveccveas ;

Chance v. Board of Examiners, 458 F.

ei ae hl

Cleveland Board of Education v. LaFleur,

414 U. S. 632 (1974)

see6 86 6 2 6 hee

Commonwealth of Pa. v. O'Neill, 473

F. 2d 1029 (3rd Cir. en banc, 1973). 15,

Communications Workers

Co., 513 F. 2d 1024

1975), Pet. for Cert.

U.S.L.W. 3684 (June

(No. 74-1601),

Vo Meo he Te

(2nd Cir.

filed, 43

24, 1975)

Dandridge v. Williams, 397 U. S.

471 (1970)...

"+ © @ @ @ 17, 18, 19,

Davis v. Washington, 512 F. 2d

956 (D. C. Cir. 1975),

cert. granted, 44 U.S.L.W.

3179 (Oct. 7, 1975) (No.

74-1492) *_e © © @# @ @ “ef @ 15, 23, 24, 25

Frontiero v. Richardson, 411

U.S. 677 (1973). ee © @ © @ @ @ @

Geduldig v. Aiello, 417 U. S.

464 (1974). .. ce eecvesecs

Gilbert v. General Electric Co.,

919 F. 2d 661 (4th Cir. 1975),

cert. granted, 44 U.S.L.W.

3179 (Oct. 7, 1975) (No. 74-

1589 and 74-1590). . . .. 2 «-

Goesaert v. Cleary, 235 U. S.

464 (1948) _ + © # @ ef @© © @ @

Griggs v. Duke Power Co., 401

U.S. 424 (1071). ws ee eees °

Higgins v. Board of Education of

City of Grand Rapids, 508 F.

2d 779 (6th Cir. 1974) .....

Hutchison v. Lake Oswego School

District, 519 *, 2d 961 (9th

Cir. 39073) «.ccecevnceshaun

10, 12

Keyes v. School District No. 1,

Denver, Colorado, 414 U. S.

883 (1973). . a. . . . . . : . . _ o 21,

Local 189, United Papermakers &

Paperworkers, AFL-CIO, CLC

v. United States, 416 F. 2d 980

(Sth Cir. 1969)... . 2. sce

Long v. Ford Motor Company, 496

F. 2d 500 (6th Cir. 1974) ....

Long v. Sapp, 502 F. 2d 34 (5th Cir.

1974) a — = ££ es es 8&8 & 8& €& € eC OS

Oliver v. Michigan State Board of

Education, 508 F. 2d 178 (1974).

Palmer v. General Mills, Inc., 513

F. 2d 1040 (6th Cir. 1975). ...

Reed v. Reed, 404 U. S. 251 (1971) . 14, 17,

Robinson v. Lorillard, 444 F. 2d

791 (4th Cir. 1971)...... e¢

San Antonio Independent School

District v. Rodriguez, 411 U. S.

je hie a ep 6 6 6 6 ¢

Satty v. Nashville Gas Co., F. 2d

» 11 FEP Cases 1 (6th Cir.

=. '. 6 = 6. 6ee 60 ©

vii viii

Shack v. Southworth, 521 F. 2d CONSTITUTION, STATUTES AND RULES

ek .. Se 22

“ . O* t. d. . . . * ° i

ny _v. S. 955. ; U Const. Amend. XIV. Sec. 1 passim

Ct. 553 (1975)... . . tees 10 28 U.S.C. Sec. 1254(1)......2.2. 2

Stanley v. Illinois, 405 U. S. 645 28 U.S.C. Sec. 1343(3) and (4)..... 4

(1972) ee me Fe ei a a 11

2 . . . . 8 se f=. f+ a @ 7. « «© @« ,

Stanton v. Stanton, U.S. _, 95 ee ee a

S. Ct. 1373 (1975) ...... + 17 42 U.S.C. Sec. 1983..... Te SS

United States v. Chesterfield County D) S 1985

School District, S.C., 484 F. 2d Se Cee ieee eek, Te

70 (4th Cir. 1973)...» 7? 15 42 U.S.C. Sec. 2000(e), et seq... .. passim

U. S. Department of Agriculture v. 38 Fed. R 6415 (1973 19

Murry, 413 U. S. 508 (1973)... 11 dieting er eee eee

Vlandis v. Kline, 412 U. S. 441

[aeene & = 6 6 & 66.6 & 6 3 ee ee oe

Vulcan Society of N.Y. City Fire

Dept., Inc. v. Civil Service

Commission, 490 F. 2d 387

(2nd Cir. 1973). .... oc eee 23

Walston v. County School Board of

Nansemond County, Va., 492

F. 2d 919 (4th Cir. 1974) .... 24

White v. Fleming, 11 FEP Cases

621 (7th Cir. 1975). .. eee 20

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

NO, 75-

ELIZABETH A. SMITH, etal.,

Petitioner,

see

ROBERT TROYAN, etal.,

Respondents,

PETITION FOR A WRIT OF CERTIORARI

To The United States Court Of Appeals

For The Sixth Circuit

The petitioner prays that a writ of certiorari

issue to review the judgment of the United States

Court of Appeals for the Sixth Circuit, reversing

in part and affirming in part a decision of the

United States District Court for the Northern

District of Ohio, Eastern Division.

CITATIONS TO OPINIONS BELOW

The opinion of the United States Court of

Appeals is reported at 520 F. 2d 492 (1975), and

is set forth in the Appendix, infra, at p, A-59,

The order denying rehearing and suggestion for

a rehearing en banc is as yet unreported; it is

set forth in the Appendix, infra, at p. A-71.

The opinion of the United States District Court

is reported at 363 F. Supp. 1131 (1973), and is

set forth in the Appendix, infra, at p. A-1.

JURISDICTION

The judgment of the United States Court of

Appeals for the Sixth Circuit was rendered and

filed on July 3, 1975. A motion for a rehearing

and a suggestion for rehearing en banc was de-

nied on August 21, 1975. The jurisdiction of this

Court is invoked pursuant to Title 28 U.S.C.

§ 1254(1).

QUESTIONS PRESENTED FOR REVIEW

1. Does a police department's five foot

eight inch minimum height requirement create

an irrebuttable presumption which is neither

necessarily nor universally true in violation of

the Due Process Clause of the Fourteenth

Amendment?

2. Does "indirect 'rational support' "

suffice to satisfy the requirement of the Equal

Protection Clause where sex discrimination in

employment is alleged?

3. Does the Fourteenth Amendment permit

use of a non-job related written entrance exami-

nation having a racially disproportionate impact

merely because the employer has recently hired

minorities at a rate comparable to their repre-

sentation in the initial applicant pool?

CONSTITUTIONAL PROVISION INVOLVED

U. S. Const. Amend. XIV, Sec. i

- « « «3 nor shall any state

deprive any person of life, liberty, or

property, without due process of law;

nor deny to any person within its juris-

diction the equal protection of the laws.

STATEMENT OF THE CASE

The petitioner, Elizabeth A. Smith, a black

female five feet five inches tall and weighing

135 pounds, applied for the position of police

officer of the City of East Cleveland Police

Department on March 21, 1973. The petitioner's

application was summarily rejected on March 23,

because she did not meet the City's requirements

of being between five feet eight inches and six

feet six inches in height and between 150 and

235 pounds in weight. The petitioner filed a

complaint in the United States District Court for

the Northern District of Ohio on March 23, 1973,

alleging that the enforcement of the minimum

height and weight requirements unconstitutionally

discriminated against her in violation of the

Fourteenth Amendment to the United States Con-

stitution. Jurisdiction of the District Court was

asserted under the Civil Rights Act of 1871,

42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) and

(4).

On March 23, 1973, the District Court

issued a temporary restraining order to permit

the petitioner to take the physical fitness and

written tests for police officer the next day,

despite the fact that she did not meet the mini-

mum height and weight requirements. While she

passed the physical fitness test, the petitioner

did not score sufficiently high on the written

examination, the Army General Classification

Test (AGCT), to be placed on the certified list

of eligible police candidates. The petitioner

immediately amended her complaint, adding an

allegation that the written examination uncon-

stitutionally discriminated against her in

violation of the Fourteenth Amendment.

The petitioner's complaint had been brought

on behalf of herself and all others similarly

Situated. On May 9, 1973, the District Court

certified the proceedings as a class action with

two subclasses, including: (1) All women who

had been denied the rigut to apply for the exami-

nations for police officer because of their height

or weight; and (2) All black persons who took

the examination and were denied employment

because their scores were too low.

It was established at trial that no woman had

ever been hired as a police officer in East

Cleveland, and that at the time of the hearing,

the City's Civil Service Commission was not

seeking, nor had it ever sought, women appli-

cants for the job of police c*ficer. Indeed,

women were discouraged by Civil Service

Commission employees from applying for police

officer positions. The evidence also revealed

that in 1973, sixty percent of the population of

East Cleveland was black, while only nine (12%)

of the City's seveniy-one police officers were

black. There are no females on the force.

The Height Requirement

After a hearing, the District Court held that

the defendants' enforcement of the minimum

height and weight requirements for police

officer applicants unlawfully discriminated

against the petitioner and the class she repre-

sented, in that the requirements were main-

tained and enforced by the defendants as a part

of a process to hire only males and with the

effect and intent to exclude nearly all women

from consideration as police officers.

The evidence showed that the effect of the

minimum height and weight requirements to-

gether was to exclude 99 percent of the adult

female population in the community from employ-

ment as police officers. The height requirement

alone excluded 95 percent of the adult female

population, but only 46 percent of the male

population.

No rational relationship was established at

trial between the minimum height requirement of

five feet eight inches and the following qualifi-

cations which the defendants alleged were

necessary to perform the duties of a police

officer: Physical strength, physical fitness,

physical agility, the ability to view crowds, the

ability to drive a car, long reach with the arms,

the ability to absorb blows, and the ability to

impress others with physical prowess. Neither

the Law Enforcement Assistance Administration

(LEAA), nor any other agency or authority which

had reviewed the relationship between height

requirements and police work had found con-

vincing evidence supporting minimum height

requirements.

The Written Examination

The District Court held that the defendants'

use of the written examination, the Army

General Classification Test, to screen applicants

unlawfully discriminated against blacks, and that

the petitioner had established a prima facie case

of race discrimination which the defendants had

failed to rebut.

The evidence established that the written

examination was a major factor in the ranking of

applicants for certification as city police officers.

The exclusionary impact which the test had upon

black applicants was shown to be substantial.

From 1969 to 1973, the AGCT eliminated from

further consideration 84% of the blacks who took

the test, but only 42% of the whites who took the

test, thus reducing the applicant pool from 38%

black to 15% black. !

. Between 1969 and 1973, 301 individuals

took the written examination for police officer in

East Cleveland. Of this number, 115 or 38%

were black. As can be seen from the accom-

panying chart, the fail rate for blacks is twice

that for whites, while the pass rate for whites is

almost four times that for blacks.

Hoo [hh 4.

1969-}5 & » a a¢ SS o |2 3

1973 EE ROS 153 (Sle a [33 |S

Zool IZ [Zn lane jue [ea

White 186 62% 107 79 42% 57% 85%

Black 115 38% 18 97 | 84% | 15% 15%

Total 301 | 100% | 125 |176 |} 58% | 41% | 100%

Additionally, black applicants on the average

scored substantially lower on the written exami-

nation than did white applicants. In 1970, the

percentage of whites receiving a raw AGCT score

of over 100 was 63%, while the percentage of

blacks receiving a score of over 100 was 9%. In

1973, these figures were 71% and 22% respect-

ively. The average raw AGCT score for black

applicants in 1973 was 83.2, while the average

score for white applicants was 106.4. Both

petitioner's and defendants' experts agreed that

this difference was highly significant and not

likely to occur by chance alone.

Defendants were unable to establish that the

AGCT was a valid predictor of job performance

of a police officer. Indeed, the only validation

study reported in the Technical Manual for the

AGCT related to the performance of white male

enlisted personnel in military vocational schools.

There was no evidence that the AGCT was a valid

predictor of performance for blacks.

The United States Court of Appeals for the

Sixth Circuit reversed in part and affirmed in

part the District Court's decision. The Court

of Appeals held that the enforcement of the

minimum height requirement did not violate the

Fourteenth Amendment, but that the use of the

weight requirement was unconstitutional. Suffi-

cient "indirect 'rational support' '' was found to

uphold the height requirement, but not the weight

requirement. The Court of Appeals further held

that the written examination was constitutional,

stating that the petitioner had failed to establish

a prima facie case of race discrimination be-

cause the percentage of blacks hired was not

substantially lower than the percentage of black

applicants. The petitioner seeks to have this

Court review the Sixth Circuit Court of Appeal's

decision with respect to the constitituionality of

the enforcement of the minimum height require-

ment and the use of the Army General Classifi-

cation Test by the defendants.

REASONS FOR GRANTING THE WRIT

1. To Clarify The Standard Of Review

Applicable To Irrebuttable Pre-

sumptions Adversely Affecting The

Right To Equal Consideration For

Governmental Employment

In applying the requirements of the Four-

teenth Amendment to the defendants' minimum

height requirement, the Court of Appeals for the

Sixth Circuit failed to resolve, or even to con-

sider, the appropriate standard of review where

permanent irrebuttable presumptions are alleged.

Indeed, the Court took no note whatsoever of

petitioner's argument that the height require-

ment embodied a conclusive presumption that

individuals shorter than five feet eight inches

or taller than six feet six inches were not capable

of performing the job of police officer, in violation

of the Due Process Clause. Thus, it appears that,

in the Court's view, the "indirect 'rational

support! '' which was held sufficient to legitimize

the height rule under the Equal Protection Clause,

also sufficed for purposes of the Due Process

Clause.

While the Due Process Clause does not re-

quire those conclusive presumptions that create

partial deprivations or are temporary in nature

to be struck down, Sosna v. Iowa, U.S.

95 S. Ct. 553 (1975), decisions of this Court in

recent years uniformly have invalidated broadly

sweeping irrebuttable presumptions which have

deprived women of equal employment opportunity.

In Frontiero v. Richardson, 411 U. S. 677

(1973), the conclusive presumption that wives of

Air Force officers were dependent upon their

husbands for support was upheld only by extending

a like presumption to benefit the husbands of fe-

male officers. The standard of review applied by

this Court was stated in its plurality opinion to be

one of strict judicial scrutiny. While explained

in that opinion by the suspect nature of the sexual

classification there challenged, Frontiero may

also reflect the standard generally applicable to

the review of conclusive presumptions. For

example, just shortly after Frontiero was de-

cided, Justice Burger and Justice Rehnquist,

dissenting in Vlandis v. Kline, 412 U.S. 441 (1973),

interpreted the majority opinion in Vlandis as

subjecting the presumption of non-residency

there in issue to "close judicial scrutiny," 412

U.S. at 460-62, although no racial or other sus-

pect classification was under review.

Similarly in Cleveland Board of Education v.

La Fleur, 414 U. S. 632 (1974), where irrebuttable

presumptions precluded women from working

during certain months both prio: to and after

childbirth, this Court noted that "a more indivi-

dualized determination" was required under the

Due Process Clause as interpreted in Stanley v.

Illinois, 405 U. S. 645 (1972); United States De-

partment of Agriculture v. Murry, 413 U. 5S.

508, 514-17 (1973) (concurring opinion); Bell v.

Burson, 402 U. S. 535 (1971); and Carrington v.

Rash, 380 U. S. 89 (1965). 414 U.S. at 647. In

ruling that the mandatory maternity rule of the

Cleveland and Chesterfield County boards of

education swept too broadly, this Court noted:

The rules contain an irrebuttable

presumption of physical incompetency,

and that presumption applies even when

the medical evidence as to an indivi-

dual woman's physical status might

be wholly to the contrary.

414 U. S. at 643.

In the present case, physical competency was

also the issue before the Court of Appeals. Both

in Frontiero and in La Fleur administrative con-

venience alone was deemed insufficient to save

what otherwise was a violation of due process of

law.

In Vilandis v. Kline, supra, this Court noted

that the conclusive presumption there in issue

could not stand where "reasonable alternative

means for determining bona fide residence are

available.'' 412 U. S. at 451. The Court of

Appeals in its opinion below neither recognized

a conclusive presumption, nor considered the

proper standard of review to which such pre-

sumptions are subject. In so doing it also failed

to note the trial court's findings of readily avail-

able alternative means of determining strength,

the principal characteristic which the height re-

quirement was alleged by the defendants to

measure.

Petitioner believes that this Court, in

clarifying the standard of review applicable to

irrebuttable presumptions should also indicate

to what extent a lower court must consider al-

ternatives to administrative convenience where

conclusive presumptions deny equal employment

opportunity to women, alternatives which are

routinely considered when similar employer

regulations are assessed against the require-

ments of Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000(e), et seq.; Albemarle Paper

Co. v. Moody, U.S. _,, 95S. Ct. 2362,

2375 (1975); Palmer v. General Mills, Inc.,

513 F. 2d 1040, 1044 (6th Cir. 1975); Robinson

v. Lorillard, 444 F. 2d 791, 798 (4th Cir. 1971);

Local 189, United Papermakers and Paperworkers,

AFL-CIO, CLC v. United States, 416 F. 2d 980,

990 (Sth Cir. 1969).

2. To Resolve Conflicts Within And

Among The Circuits Concerning

The Standard Of Review Under The

Equal Protection Clause Applicable

To Fair Employment Practice

Litigation

The Court of Appeals for the Sixth Circuit

appears to have considered the success of

petitioner's equal protection claim to be depend-

ent on the classification under scrutiny being one

that was gender-based. Petitioner contends that

while the determination of whether a classification

is gender-related may be important in selecting

the standard of equal protection used to test its

constitutionality, the protections of the Four-

teenth Amendment are not restricted to the re-

view of classifications which are explicitly

sexually or racially based.

Assuming, arguendo, that "the height re-

quirement is viewed as gender discrimination, "

the Court of Appeals below stated that "it must

be sustained if it 'bears a rational relationship

to a [legitimate] state objective' ", citing to

Reed v. Reed, 404 U. S. 251, 254 (1971). While

recognizing that lower federal courts since Reed

have applied a variety of tests of equal protection

to gender-based classisications, the Court of

Appeals noted that "never has this Court ora

Supreme Court majority required a compelling

state interest to justify such classifications."

Petitioner questions both whether the "rational

relationship" test is the appropriate standard of

equal protection to be used in an employment

discrimination case and, if it is, whether the

Court of Appeals correctly applied this test.

a. The Proper Standard Of Review

Until recently numerous courts, including

the Court of Appeals for the Sixth Circuit, have

assumed that similar or identical standards apply

in fair employment practice cases brought pur-

suant to provisions of the Nineteenth Century

Civil Rights Acts, 42 U.S.C. §§ 1981, 1983,

1985, and to those of Title VII of the Civil Rights

Act of 1964, supra.

In Long v. Ford Motor Company, 496 F. 2d

500, 505 (6th Cir. 1974), the Sixth Circuit first

specifically noted the applicability of Griggs v.

Duke Power Co., 401 U. S. 424 (1971), a Title

VII testing case, to a case filed solely under

§ 1981. In Griggs, a neutral rule having a dis-

parate effect upon racial minorities was held to

be invalid in the absence of a showing of

business necessity. Similarly, in Long v. Sapp,

502 F, 2d 34 (5th Cir. 1974), standards pertain-

ing to Title VII's bona fide occupational qualifi-

cation exemption were applied to a sex discrimi-

nation suit brought only under §§ 1981, 1983 and

1985. Earlier, in United States v. Chesterfield

County School District, S. C., 484 F. 2d 70

(4th Cir. 1973), in a Fourteenth Amendment

case alleging race discrimination in employment,

the Court stated:

. «. . it has been held, and we

think correctly, that the test of

validity under Title VII is not

different from the test of validity

under the fourteenth amendment.

484 F. 2d at 73.

Other courts of appeals decisions which have

applied standards similar to those of Title VII to

litigation under the Nineteenth Century Civil Rights

Acts include Afro American Patrolmens League

v. Duck, 503 F. 2d 294, 301 (6th Cir. 1974);

Davis v. Washington, 512 F. 2d 956, 957-58,

n. 2 (D.C. Cir. 1975), cert. granted Oct. 6,

1975, 44 U.S.L.W. 3179 (Oct. 7, 1975) (No.

74-1492); Bridgeport Guardians, Inc. v.

Members of Bridgeport Civil Service Com-

mission, 482 F. 2d 1333, 1337 (2nd Cir. 1973);

Commonwealth of Pennsylvania v. O'Neill, 473

F. 2d 1029 (3rd Cir. en banc 1973); Castro v.

Beecher, 459 F. 2d 725, 732-33 (1st Cir. 1972);

Chance v. Board of Examiners, 458 F. 2d 1167,

1176 (2nd Cir. 1972); Carter v. Gallagher, 452

F. 2d 315, 325-29 (8th Cir. en banc 1971), cert.

denied 406 U. S. 950 (1972).

Although Title VII and constitutional standards

in recent years have been used interchangeably in

fair employment practice litigation, in the wake

of Geduldig v. Aiello, 417 U. S. 484 (1974),

numerous courts have begun questioning whether

Fourteenth Amendment standards are as strict as

those of Title VII when applied to cases concerning

sex discrimination in employment. Satty v.

Nashville Gas Co., F. 2d » 11 FEP Cases

1, 4 (6th Cir. 1975); Communications Workers v.

A.T. & T. Co., 513 F. 2d 1024, 1031 (2nd Cir.

1975), petition for cert. filed, 43 U.S.L.W. 3684

(June 24, 1975) (No. 74-1601); Gilbert v. General

Electric Co., 519 F. 2d 661, 667 (4th Cir. 1975),

cert. granted, 44 U.S.L.W. 3179 (Oct. 7, 1975)

(No. 74-1589 and 74-1590); Hutchison v. Lake

Oswego School District, 519 F. 2d 961, 66 (9th

Cir. 1975). While all of these cases were de-

cided under Title VII of the Civil Rights Act of

1964, in each of them the appellate court com-

mented on the greater protection provided by

Title V"I when compared with that of the Equal

Protection Clause.

This Court has recognized the variety of

standards which have been used in recent years

to interpret the mandate of the Equal Protection

Clause. Stanton v. Stanton, U.S. , 95

S. Ct. 1373, 1377 (1975); Vlandis v. Kline, supra,

412 U. S. at 458 (White, J., concurring); San

Antonio Independent School District v. Rodriguez,

411 U. S. 1, 98-9 (1973) (Marshall, J., dissenting).

Petitioner submits that direction from this

Court is urgently needed to determine whether

denials of equal employment opportunity under the

Fourteenth Amendment are to be gauged by the

lighter standard of review embodied in Dandridge

v. Williams, 397 U. S. 471, 484-85 (1970), which

was recognized by this Court in Aiello, supra, as

particularly suited to review of economic and

social welfare legislation, or whether the more

active review first heralded by Reed v. Reed,

supra, will continue to be applied. Petitioner

also urges this Court to clarify whether one

standard of review should be used in all fair

employment practice litigation based upon the

importance of the interest to be protected, or

whether the Equal Protection Clause henceforth

will condone a weaker standard of review for those

allegations of employment discrimination based on

sex.

b. Does "Indirect 'Rational

Support' “ Suffice ?

Even if the appropriate test of equal pro-

tection in an employment discrimination case is

the ''rational relationship test, '’ petitioner con-

tends that the Court of Appeals has failed to apply

the standard of Reed v. Reed, supra, selecting

instead a weaker ‘indirect ‘rational support'"

test. In footnote 8 of its opinion, the Court

noted that while it had been unable to find

"indirect ‘rational support' '' for the defendants'

weight requirement, it had found such support

for the height requirement.

That the Court of Appeals found no more than

"indirect 'rational support' " for the height re-

quirement appears clear rom a reading of the

opinions of the district and appellate courts. The

district court judge had received fifteen days of

evidence on the height and weight requirements,

including testimony and depositions from seven

expert witnesses. The Court of Appeals re-

versed the District Court without explicitly

rejecting its findings, stating:

Even if plaintiff's experts were

correct, and even if modern police

practices discount the importance of

height, there would still be ‘rational

support' for the height requirement.

The Equal Protection Clause re-

quires nothing greater than 'rational

support'

citing to Dandridge v. Williams, 397 U. S. 471,

484-85 (1970).

The Court of Appeals did not consider it

necessary to review the lower court's detailed

findings of fact, nor to pay any deference to the

Law Enforcement Assistance Administration's

Equal Rights Guidelines, "Effect on Minorities

and Women of Minimum Height Requirement for

Employment of Law Enforcement Officers", 38

Fed. Reg. 6415 (1973). Instead, the court held

that governmental views disfavoring height re-

quirements "cannot rebut the nearly universal

use of height requirements in hiring police."

Substituting its judgment of the evidence for that

of the District Court, the Court of Appeals chose

to rely on the evidence of three police officers

since, in its view, ''no expert had police

experience", failing to take into account that one

expert was an industrial psychologist employed

by the International Association of Chiefs of

Police, Inc.

Petitioner submits that while the Court of

Appeals may have applied a test of equal pro-

tection compatible with the requirements of

Dandridge, supra, no employment discrimination

case decided by this Court since Goesaert v.

Cleary, 335 U. S. 464 (1948), has employed so

weak a standard. In Goesaert, where this Court

upheld a Michigan statute that prohibited most

women from tending bar, the Court pointed out

that it could not ''cross-examine either actually

or argumentatively the mind of Michigan Legis-

lators nor question their motives." 335 U. S.

at 466-67. As noted recently by the Court of

Appeals for the Seventh Circuit:

While the Supreme Court has

not yet overruled Goesaert v.

Cleary, the judicial and social

climate has changed since that case

was decided. White v. Fleming,

F. 2d » 11 FEP Cases

621 (7th Cir. 1975).

Goesaert was the principal case upon which this

Court had relied in Dandridge v. Williams.

When some courts of appeals apply the standard

of Dandridge to employment discrimination liti-

gation, thereby letting Goesaert in the back door,

petitioner submits that the time for this Court to

reconsider the vitality of Goesaert is due.

c. Remedying The Effects Of

Past Discrimination

Otherwise neutral practices having a dis-

parate impact are routinely enjoined under the

Equal Protection Clause when they have been

shown to perpetuate the effects of past discrimi-

nation. The Court of Appeals of the Sixth Cir-

cuit,in finding "indirect 'rational support''for

the defendants' minimum height requirement

failed to consider whether the District Judge's

ruling that the height requirement would be en-

joined was a proper remedy to correct the

effects of past discrimination against women. 22

The height and accompanying

weight requirement were maintained

and enforced by defendants as a part

of a process to hire only males as_

police officers and with the effect

and intent to exclude nearly all

women applicants.

While this Court has not yet interpreted when

the effects of past discrimination must be

remedied within the context of employment dis -

crimination law under the Fourteenth Amendment,

it has carefully analyzed the requirements of this

doctrine as it applies to schoo) desegregation

litigation. In Keyes v. School District No. 1,

Denver, Colorado, 414 U. S. 883 (1973), a find-

ing of intentional past discrimination was held to

establish a prima facie violation of the mandate

of the Equal Protection Clause, thereby shifting

the burden of proof onto the defendant school

district. This Court further stated:

On the basis of the evidence the District Judge

concluded that the defendants' past sex discrimi-

nation required imposition of "limited affirmative

relief''--namely enjoining further enforcement

of the minimum height and weight requirements.

The Court of Appeals for the Sixth Circuit

has frequently applied the instruction of Keyes

to school desegregation cases. Brinkman v.

Gilligan, 518 F. 2d 853 (6th Cir. 1975); Oliver

v. Michigan State Board of Education, 508 F. 2d

178 (6th Cir. 1974); Higgins v. Board of Educat-

ion of City of Grand Rapids, 508 F. 2d 779 (6th

intent was not among the factors Cir. 1974); and Bradley v. Milliken, 484 F, 2d

hat motivated their netiens. 3112 (6th Cir. 1974), rev'd in part on other

413 U. S. at 211. | grounds 418 U. S. 717 (1974). It has also recog-

nized as violative of Equal Protection guarantees

those practices that perpetuate the effects of

past racial discrimination in employment.

Shack v. Southworth, 521 F. 2d 51 (6th Cir. 1975);

Afro American Patrolmen's League v. Duck,

Supra. However, the Court of Appeals has

In discharging that burden, it

is not enough, of course, that the

school authorities rely upon some

allegedly logical, racially neutral

explanation for their actions. Their

burden is to adduce proof sufficient

to support a finding that segregative

The District Court in the present case made

findings that the defendants had ''never certified

for hiring or hired a woman as a police officer, "'

although fifty-five percent of the City's population

was female. The Court also held that:

failed to act in similar fashion where, as

here, the nature of the discrimination chal-

lenged is sex discrimination. Petitioner

submits that clear direction from this Court

is, therefore, needed.

3. To Resolve Conflicts Among

The Circuits Concerning When

A Non-Job Related Test Having

A Racially Disparate Impact May

Nevertheless Be Used

While the Court of Appeals for the Sixth

Circuit appears to have admitted that the Army

General Classification Test administered to the

petitioner had a racially disproportionate impact,

it nevertheless held that the petitioner had failed

to establish a prima facie case of racial discri-

mination in employment. The Court apparently

reached this conclusion because the defendants

had recently hired minorities at a rate com-

parable to their representation in the initial

applicant pool.

By refusing to hold that a disproportionate

minority pass or fail rate suffices to establish

a prima facie case of discrimination under the

Fourteenth Amendment, the Court of Appeals

below has diverged sharply from the views of at

least seven other courts of appeals. Davis v.

Washington, supra; Boston Chapter of NAACP,

Inc. v. Beecher, 504 F. 2d 1017 (1st Cir. 1974);

Vulcan Society of N. Y. City Fire Dept., Inc.

v. Civil Service Commission, 490 F. 2d 387

(2nd Cir. 1973); Bridgeport Guardians, Inc. v.

Members of Bridgeport Civil Service Commission,

supra; Commonwealth of Pennsylvania v. O'Neill,

supra; Walston v. County School Board of

Nansemond County, Va., 492 F. 2d 919 (4th Cir.

1974); Baker v. Columbus Municipal Separate

School District, 462 F. 2d 1112 (5th Cir. 1972);

Carter v. Gallagher, supra.

In Davis v. Washington, supra, after careful

analysis of ali of the public employment testing

cases, the Court of Appeals for the District of

Columbua held that a prima facie case of discri-

mination could be established in either of two

ways: by a comparison of the failure rates of

blacks and whites, or, should such statistics not

be available, by comparing the percentage of

blacks in the police department with the per-

centage of the black population in the community.

512 F. 2d at 960. In the present case, blacks

failed the written test at a rate double that of

whites. See note 1, supra, at 7. Of the seven

courts of appeals that have ruled on the issue,

only in Davis was the failure rate of blacks on the

written examination greater than in the present

case. The District Court also found that while

blacks constituted sixty percent of the population

of the City of East Cleveland, only about twelve

percent of its police force was black.

Thus, under either of the tests described in

Davis, petitioner established a prizna facie case

of discrimination requiring the defendants to

demonstrate that the written entrance examination

was job-related. The language of the Court's

decision in Davis would not absolve the defendants

from the requirement of using fair and non-discri-

minatory job screening procedures, despite its

immediate past hiring record. As was stated in

Davis:

Thus, it has been expressly held,

and we agree, that efforts to recruit

minority members have no bearing on

a showing that an employment practice

has a racially disproportionate impact.

Although the Department, quite

commendably, has succeeded in in-

creasing the proportion of black

officers through vigorous efforts, it

is self-evident that use of selection

procedures that do not have a dis-

parate effect on blacks would have

resulted in an even greater percent-

age of black police officers than

exists today.

512 F. 2d at 961 (footnotes omitted)

In support of this statement, the Court of

Appeals for the District of Columbia cited

various precedents, including the District

Court's decision in the present case. The Sixth

Circuit Court of Appeals has thus brought itself

into direct conflict with the appellate decision in

Davis on this point.

CONCLUSION

For the reasons set forth above, this

petition for a writ of certiorari should be granted.

Respectfully submitted,

Jane M. Picker

Charles E. Guerrier

Barbara Kaye Besser

Barbara H. Mitchell

620 Keith Building

1621 Euclid Avenue

Cleveland, Ohio 44115

Phone: (216) 621-3443

Attorneys for Petitioner

APPENDIX

A-L

Memorandum Opinion and Order

of District Court.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN\DIVISION

’

No. C 73-299

(Filed Sep. 6, 1973)

ELIZABETH A. SMITH, et alt., Plaintiffs

“Veo -

CITY OF EAST CLEVELAND et al., Defendants

LAMBROS, DISTRICT JUDGE

Piaintiffs claim that practices and restric-

tions of defendant municipal officials in hiring

police officers in East Cleveland, Ohio, deny

blacks and women their ‘rights to equal pro-

tection under the law in violation of 42 U.S.C.

§1983 and the Fourteenth Amendment to the

Constitution.

Plaintiff represents both a class of all

women who have been denied the opportunity to

apply for employment as an East Cleveland

police officer because they are under 5 feet 8

inches or 150 pounds and a class of all black

applicants who took the East Cleveland exami-

nation for police officer and were denied

A-2

Memorandum Opinion and Order

of District Court

employment because their scores were too low.

In particular, plaintiffs claimed at trial the

following violations of the Equal Protection

Clause of the Fourteenth Amendment:

1. Defendants' enforcement of an ordinance

requiring applicants for police officer to be a

minimum of 5 feet 8 inches in height and a regu-

lation requiring applicants to weigh a minimum

of 150 pounds unlawfully discriminates against

female applicants.

2. The written Army General Classification

Test which is administered by defendants as a

part of the hiring process for police officer un-

lawfully discriminates against black and female

applicants.

3. The preference given to applicants who

are veterans is applied by defendants prior to

determining whether a candidate is qualified to

be a police officer in violation of Ohio Rev. Code

§143.16. This method of applying the preference

results in unlawful discrimination against female

applicants.

For each of these claims plaintiffs seek

declaratory and injunctive relief, costs, and

attorney fees.

I. BACKGROUND OF THIS DISPUTE

The Police Department in the City of East

Cleveland, a suburb of Cleveland, has an

authorized strength of 71 officers, of whom 51

are patroimen, 11 are detectives, and the

A-3

Memorandum Opinion and Order

of District Court

remainder are administrative personnel. The

City population of 39,600 is presently about 60

per cent black and 55 per cent female. Nine

persons or about 12 per cent of the officers are

now black. There are no female police officers.

Historically, the composition of the Police

Department and population has remained fairly

constant with respect to sex but has varied

somewhat with respect to race. The proportion

of women in the population has historically been

about 55 per cent, but the City has never certi-

fied for hiring or hired a women [sic] as a police

officer. The proportion of blacks in the City

increased from 10 per cent in 1965 to the

present 60 per cent. Prior to 1967 the Police

Department had no black officers. From 1967

to the filing of this suit the City hired 24

officers, of whom 8 persons or one third were

black. During this time, about ong, third to one

half of the applicants were black.—

1/ There is no way to ascertain how many

women would have applied but for the height

and weight requirements written on the flyer

accompanying the application forms. One

woman did meet the height and weight require-

ments and took the examination. She did not

score high enough on the written examination

to be certified.

A-4

Memorandum Opinion and Order

of District Court

Defendants, pursuant to ordinances, regu-

lations and policies, accept applications only

from those persons who are over 5 feet 8 inches

and 150 pounds. The qualifying process for

those whose applications are accepted generally

includes a written examination (the Army Gen-

eral Classification Test), an athletic test, a

medical examination, and an oral interview.

These items are scored as will be further dis-

cussed below and are adjusted by a credit if the

applicant is a veteran. The Civil Service Com-

mission then certifies those applicants receiving

the highest scores to the City Manager, who

must hire one of the top three certified for each

position.

The named plaintiff, a black woman who is

5 feet 5 inches and weighs 136 pounds, received

notice that East Cleveland would be accepting

applications for police officer from her class-

mate in law enforcement at Cuyahoga Communi-

ty College. When she inquired about the position

of police officer she was originally discouraged

by a receptionist of the Civil Service Commission.

After applying she was told by the receptionist

that she could not take the examination because

she did not meet the minimum height and weight

requirements. She then filed this suit and took

the examination pirsuant to a temporary

restraining order issued by Judge William K.

Thomas. Upon completion of the examination

defendants reported that plaintiff had scored

102. 1 and that because the ''cut-off"' score

A-5

Memorandum Opinion and Order

of District Court

for the eligibility list was 146, plaintiff was not

placed on the certified list of eligible police

candidates. Defendants maintain that plaintiff

may be prohibited from taking subsequent

examinations because she does not meet the

height and weight requirements.

Il, DEFENDANTS' MOTION TO DISMISS

Defendants have moved to dismiss certain

named defendants on the grounds of legislative

immurity, failure to state a claim against

certain defendants and inapplicability of the

term "person" as used in §1983 to the City. In

addition, defendants have moved to dismiss the

entire suit on the graunds that the Civil Rights

Act of 1964 as amended, 42 U.S.C. §2000e, is

the exclusive remedy for employment discrimi-

nation and that this suit is barred for a failure

to exhaust remedies available before the Equal

Employment Opportunity Commission, as is

required under that statute. The Court deferred

ruling on these motions until after trial. 2/

Defendants correctly argue that this Court

has no jurisdiction over defendant City of East

Cleveland under 42 U.S.C. §1983 and 28 U.S.C.

2/ Defendants also moved to dismiss plaintiffs'

claims against the Law Enforcement Assistance

Administration. Ina pre-trial ruling the Court

severed these claims for purposes of trial and

deferred ruling on them.

A-6

Memorandum Opinion and Order

of District Court

§1343(3) under the holding in City of Kenosha v.

Bruno, U.S. , 37 L. Ed. 2d 109 (1973),

that a municipal corporation is not a "person"

for purposes of §1983. The Court in City of

Kenosha, however, reserved the question of

jurisdiction under the general federal

question statute, 28 U.S.C. §1331, over claims

brought under the Fourteenth Amendment. City

of Kenosha, supra, 37 L. Ed.2d at 117. In

Bivens v. Six Unknown Federal Narcotics Agents,

403 U.S. 388 (1971), the Supreme Court per-

mitted a litigant to raise a Fourth Amendment

claim in federal court under 28 U.S.C. §1331

but did not discuss whether a Fourteenth Amend-

ment claim would also pose a federal question.

Because there has been insufficient argument on

this point, the Court is hesitant to rule that a

litigant may obtain relief for a violation of the

Fourteenth Amendment by a state or subdivision

thereof which denies ''to any person within its

jurisdiction the equal protection of the laws”

under the jurisdiction conferred by 28 U.S.C.

§1331 alone. See generally Bivens, supra, 403

U.S. at 398 (J. Harlan's concurring opinion).

Furthermore, in this case the plaintiffs have

not provided evidence sufficient to determine

whether the amount in controversy as to each

member of the class meets the $10, 000 juris-

dictional minimum required under §1331.

Snyder v. Harris, 394 U.S. 332 (1969) tegard-

ing jurisdiction under 28 U.S.C. §1332); Russo

v. Kirby, 453 F.2d 548, 551 (2d Cir. 1971)

A-7

Memorandum Opinion and Order

of District Court

(applying to jurisdiction under 28 U.S.C. §1332).

Therefore, the Court will dismiss the claims

against the City of East Cleveland without pre-

judice to their reinstatement if plaintiffs show

a basis for jurisdiction within twenty days of

the date of this Order.

Because plaintiffs have failed to show any

non-legislative function performed by the City

Commissioners or any acts by the City Manager

which have denied plaintiffs equal protection of

the laws, the Court must also dismiss these

parties defendant from the suit. It does, however,

find that the Police Chief's functions in definirg

the duties and required skills for the police

officer and the Civil Service Commissions' acts

in promulgating requirements for certifying

applicants are properly before this Court and

that the Police Chief and Civil Service

Commission should not be dismissed.

Finally, the Court finds defendants' argu-

ment that the Civil Rights Act of 1964 as amended

in 1972 is the sole remedy for employment

discrimination to be without merit. The following

cases, many of which were against public

employers and were brought after the 1972

amendment to the Civil Rights Act of 1964,

reject the argument that the provisions of 42

U.S.C. §2000e provide an exclusive remedy for

employment discrimination, particularly ina

case such as this in which a preliminary

injunction is required immediately to prevent

irreparable damage. Castro v. Beecher, 459 F.

2d 725 (1st Cir. 1972); The Shield Club v. City

A-8

Memorandum Opinion and Order

of District Court

of Cleveland, 5 [CCH] EPD $7027 (N. D. Ohio 1972)

(J. Thomas); Harper v. Mayor & City Council, 5

FEP Cases 1050 (D. Md. 1973); Bridgeport

Guardians, Inc. v. Members of the Bridgeport

Civil Service Commission, 354 F. Supp. 778 (D.

Conn. 1973), aff'd 42 L.W. 2059 (2d Cir. 1973);

Waters v. Wisconsin Steel Works of International

Harvester Co., 427 F.2d 476 (7th Cir. 1970),

cert. denied, 400 U.S. 911 (1970); Sanders v.

Dobbs Houses, Inc., 431 F.2d 1097 (3d Cir.

1970), cert. denied, 401 U.S. 948 (1971);

Cantwell v. National Brewing Co., 443 F.2d 1044

(5th Cir. 1971), cert denied. 405 U.S. 916 (1972);

O'Brien v. Shimp, 356 F. Supp. 1259, 1263-1265

(N.D. Ill. 1973).

Il. HEIGHT AND WEIGHT REQUIREMENTS

Applicants for police officer in East Cleveland

must be between 5 feet 8 inches and 6 feet 6 inches

in height and must be between 150 and 235 pounds

in weight. The height requirement is imposed

by ordinance which provides:

To be eligible for appointment as

patrolman or fireman, the applicant

must be at least five feet, eight inches

in height, but not over six feet, six

inches. Ch. 123. 07(d), Codified

Ordinances of the City of E-

Cleveland.

I ei al

A-9

Memorandum Opinion and Order

of District Court

The ordinance was passed in 1964. However,

prior thereto a height requirement was imposed

by practice of the Civil Service Commission.

The weight requirement has been established

by the City pursuant to the medical fitness require-

ment in Ch. 123. 07(c) of the Codified Ordinances

of the City of East Cleveland and is stated in the

flyer given to potential applicants. The mini-

mums and maximums are established for each

height between 5 feet 8 inches and 6 feet 6 inches.

The minimum for the entire exoup is 150 pounds

and the maximum 235 pounds. —

A. Discriminatory Intent and Effect

of Requirements.

The effect of the height and weight require-

ments together is to exclude 99 per cent of the

3/ The approved weights in pounds are as follows:

5'8" 150-181

5'9" 150-186

5'10" 152-192

5111" 154-197

6' 156-203

6'1" 158-209

6'2" 160-214

6'3" 162-219

6'4" 164-225

6'5" 166-230

6'6" 168-235

A-10

Memorandum Opinion and Order

of District Court

adult female population in the community from

employment as police officers. Separately, the

height requirement excludes 95 per cent of the

adult female population and the weight require-

ment excludes between 78 and 84 per cent of

the adult female population. In contrast to this

almost total exclusion of women, the require-

ments permit the majority of the adult male

population to be eligible for such employment.

The height requirement excludes only 46 per

cent of the adult male population and the weight

requirement excludes gly 28 per cent of the

adult male population. —

The height and weight requirements must

be examined in the context of the prevailing

policy toward hiring women. Jay Price,

president of the East Cleveland Civil Service

Commission from 1951 to 1971, stated that

there were no positions open for women in the

1950's when the height and weight requirements

were maintained as Civil Service practices.

He further explained that the requirements

represented a figure which was considered

reasonable for male applicants and that, had

the Commission been seeking women, it would

4 / The exact percentages vary slightly depending

on the age group chosen. However, the

differential between males and females remains

fairly constant.

A-11

Memorandum Opinion and Order

of District Court

have modified the requirements accordingly.

The fact that the Civil Service Commission

did not want to hire women is verified by the

testimony of plaintiff and another woman

applicant that the receptionist answering the

phone at the Civil Service Commission attempted

to discourage their applications, stating that

the Police Department was not seeking women.

It ic also significant that two males under

5 feet 8 inches were permitted to take the 1973

examination. During the entire history of the

Police Department no women have either been

certified for hiring or hired as police officers

and only one has been voluntarily permitted to

take the examination. All these factors are

relevant in determining whether the height and

weight requirements discriminate on the basis

of sex. See generally Harper v. Mayor & City

Council, 5 [CCH] EPD §1050 (D. Md. 1973).

The background that the requirements

related to a male-only policy and their

exclusionary effect, considered together, lead

the Court to the conclusion that the height and

weight requirements are discriminatory on the

basis of sex. Moreover, the effect of the

requirement on men and women is so highly

disparate that the effect alone is sufficient to

require a review of the restrictions as

classifications based upon sex.

The practice of permitting consequences

of restrictions and not merely motivation to be

used as proof of discrimination was sanctioned

A-12

Memorandum Opinion and Order

of District Court

under the Civil Rights Act of 1964, 42 U.S.C.

§2000e, in Griggs v. Duke Power Co., 401 U.S.

424 (1971). Three circuits have also ruled

under the Civil Rights Acts of 1866 and 1871,

42 U.S.C. §§1981 and 1983, that a requirement

producing a largely disparate effect on a given

group would be constitutionally impermissible

if the requirement were not rationally related

to job performance. Chance v. Board of

Examiners, 458 F, 2d 1167 (2d Cir. 1972);

Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972);

Carter v. Gallagher, 452 F.2d 315 (8th Cir.

1971) (en banc), cert. denied 406 U.S. 950

(1972); Commonwealth of Pennsylvania v. O'Neill,

348 F. Supp. 1084 (E.D. Pa. 1973), aff'd in

part, rev'd in part 473 F.2d 1029 (3d Cir. 1973)

(en banc); Bridgeport Guardians, Inc. v. Mem-

bers of Bridgeport Civil Service Commission,

354 F. Supp. 778 (D. Conn. 1973) aff'd 42 L.W.

2059 (2d Cir. 1973); Shield Club v. City of

Cleveland, 5 [CCH] EPD $7027 (N. D. Ohio 1972);

Western Addition Community Organization v.

Alioto, 330 E Supp. 536 (N.D. Cal. 1971),

340 F. Supp. 1351 (N. D. Cal. 1972); Fowler v.

Schwarzwalder, 348 F. Supp. 844 (D. Minn.

1972), 351 F. Supp. 721 (1972). In none of

these cases was the disparate effect of the

hiring requirement involved as great as that

of the height and weight requirement in this

A-13

Memorandum Opinion and Order

of District Court

case. ©! Although the Court is aware that the

cases cited related to discrimination based on

race or national origin, it believes the method

of proving discrimination is equally applicable

to women.

Based on the evidence of intent and effect

or, alternatively, effect alone, the Court concludes

that the height and weight requirements in this

case discriminate on the basis of sex. The

question of whether this discrimination is lawful

depends on whether the height and weight

requirements are rationally related to a valid

state interest. Frontiero v. Richardson,

U.S. , 41: L. W. 4609 (1973). In this case,

5/ In Bridgeport Guardians, Inc., supra, 58 per

cent of the whites taking the examination received

a passing score while only 17 per cent of the

minority groups received a passing score. In

The Shield Club, supra, 95.5 per cent of the

whites taking the examination received a passing

score while only 73.7 per cent of the blacks

received a passing score. In Castro, supra, 65

per cent of the whites taking the examination

used received a passing score while only 25

per cent of the blacks and 10 per cent of the

Spanish surnamed persons received a passing

score. In Chance, supra, white candidates

passed supervisory examinations at almost

1 1/2 times the rate of black and Puerto Rican

Candidates. In Carter, supra, blacks constituted

A-14

Memorandum Opinion and Order

of District Court

the question is whether the height and weight

requirements are rationally related to job per-

formance for an East Cleveland Police Officer.

B. Justifications for Requirements

~-Legal Theory

The Supreme Court's holdings regarding

review of classifications based on sex in Reed v.

Reed, 401 U.S. 71 (1971), and Frontiero v.

Richardson, U.S. , 41 L.W. 4609 (1973),

represent a significant departure from the review

given similar classifications in earlier years.

In its earlier holdings, the Supreme Court

upheld restrictions against women under the

Equal Protection C'ause if there was any con-

ceivable justification for the classification which

was related to a valid state interest. In reviewing

the justifications given, the Court did not require

that the state provide any facts to support their

5S/cont'd 6.4 per cent of the population but less

than 1 per cent of the fire department. In

O'Neill, supra, 65 per cent of the whites taking

the examination received a passing score while

only 35 per cent of the blacks received a passing

score. In Alioto, supra, 37 per cent of the

whites taking the examination received a passing

score while only 12 per cent of the blacks received

a passing score. In Fowler, supra, minorities

constituted 6 per cent of the population but only

1 per cent of the fire department.

A-15

Memorandum Opinion and Order

of District Court

view but expressed a willingness to accept any

generalization based upon a stereotype of women.

See generally Brown, Emerson, Falk, Freedman,

"The Equa! Rights Amendment: A Constitutional

Basis for Equal Rights for Women," 80 Yale L. J.

872, 875-882 (1971). For example, in Bradwell

v. Illinois, 83 U.S. 130 (1872), the Supreme Court

upheld legislation prohibiting women from

admission to the bar. Justice Bradley reasoned

that such a restriction was justified because

"the natural and proper timidity and delicacy

which belongs to the female sex evidently unfits

it for many of the occupations of civil life."" 83

U.S. at 141 (J. Bradley, concurring). In 1948

the Supreme Court upheld a statute prohibiting

women from being licensed as bartenders

unless they were a wife or daughter of a male

owner, asserting:

The Constitution does not require

legislatures to reflect sociological

insight, or shifting social standards,

any more than it requires them to

keep abreast of the latest scientific

standards. Goesaert v. Clearly, [sic]

335 U.S. 464, 465-466 (1948).

As late as 1961 the Supreme Court upheld a

statute prohibiting women from jury duty

unless the women volunteered, rationalizing

that a woman's place was in the home. Hoyt v.

Florida, 368 U.S. 57 (1961).

The Supreme Court's earlier holdings

demonstrates the result of accepting the

A-16

Memorandum Opinion and Order

of District Court

state's rationalizations without further review

of the basis for them. In Frontiero, Justice

Brennan, speaking for four members of the

Court, mentioned these earlier holdings and

noted:

There can be no doubt that our Nation

has had a long and unfortunate history

of sex discrimination. Traditionally,

such discrimination was rationalized by

an attitude of 'romantic paternalism'

which, in practical effect, put women

not on a pedestal, but ina cage...

As a result of notions such as these,

our statute books gradually became

laden with gross, stereotypical

distinctions between the sexes.

41 L.W. at 4611-4612.

In both Reed and Frontiero, the Court

refused to accept the ‘gross, stereotype

generalizations’ which would have been

sufficient to uphold the restrictions under

earlier Supreme Court rulings. In Reed,

the Court ruled invalid a statute which

gave men preference for appointment as

administrators of estates and rejected the

justification that men would be more often

qualified because of their involvement in

politics, the professions, business or industry.

Reed, 401 U.S. at 77. In Frontiero, the

Court held invalid a statute which permitted

a presumption of dependency in the case of a

serviceman's family but not in the case ofa

A-17

Memorandum Opinion and Order

of District Court

servicewomen's family, and eight justices

rejected the justification that the man is more

often the breadwinner as sufficient reason to

disqualify all women automatically. © The

lower courts reviewing restrictions against

women have interpreted the recent cases as

representing, first, a willingness to review

those stereotype rationalizations for classifi-

cations to determine whether they rest on some

ground which has a demonstrably fair and

substantial relation to the object of the legisla-

tion and, second, a willingness to reject

administrative cost as a proper justification

6/ Four justices stated that classifications

based upon sex were subject to the close scrutiny

test previously reserved for race and national

origin. It is unclear whether a fifth member of

the Court, Justice Stewart, joined in this

position, thereby making it a majority position.

Because the Court finds the height and weight

requirements are invalid under the rational

relationship test applied by Justice Powell in

his concurring opinion, it does not reach the

question of whether the close scrutiny standard

applies to classifications based upon sex.

A-18

Memorandum Opinion and Order

of District Court

for permitting restrictions against women in

employment. Aiello v. Hansen, F. Supp. _

(N.D. Cal. May 31, 1973); Gunther, "Forward:

In Search of Evolving Doctrine in a Changing

Court: A Model for a Newer Equal! Protection, "

86 Harv. L. Rev. 1, 20, 27-33 (1972); La Fieur

v. Cleveland Board of Education, 465 F. 2d

1184 (6th Cir. 1972), cert filed 41 L.W. 3315

(1 972)¢/ Brenden v. Independent School District

724, 477 F.2d 1292, 1296 (8th Cir. 1973).

Applying the Frontiero standard of review

to this case, the Court rejects as an adequate

justification the unsupported generalization

that large male policemen will perform better

than short or female policemen. The Court

holds that to sustain requirements which

exclude nearly all women from employment as

71. The Court is unable to reconcile the La

Fleur ruling (that requiring pregnant teachers

to take a 5 month pre-delivery and 3 month

post-delivery leave was unconstitutionally

discriminatory) with the ruling in Robinson v.

Board of Regents of Eastern Kentucky University,

__F.2d__(6th Cir. 1973) (that women could

be forced to observe certain curfews while

men would not be under a similar restriction)

on the basis of the opinions. It is not apparent

whether the trial court in Robinson received

evidence on the safety justification prior to

upholding the regulation. If it did not receive

such evidence, then the Court concludes that

the decision in Robinson has been overruled

by implication in Frontiero.

A-19

Memorandum Opinion and Order

of District Court

police officers, the 5 feet 8 inch and 150 pound

minimums must be demonstrably related to

job performance.

C. Justifications for Requirements

--Facts of this Case

In order to decide whether the height and

weight requirements are related to job perfor-

mance for the officer, the Court must examine

the functions of the officers and the skills

required to perform those functions. In making

the determination, the Court received fifteen

days of evidence for the entire case, including

testimony and depositions from seven expert

witnesses on the height and weight require-

ments alone. The Court considered the

functions performed by all officers, since due

to a small demrtment the patrolmen are

rotated between various duties and since it is

reasonable to hire patrolmen capable of

promotion to administrative and other roles

in the Department.

In order to aid the Civil Service Commis-

sion in testing and certifying applicants for

police officer, the Police Department

provided the following list of duties of the

officer:

Summary of Duties: Under supervision

of Police Department officers, performs

general duty police work in the pro-

A-20

Memorandum Opinion and Order

of District Court

tection of life and property. Enforces

laws and ordinances, does work in

the area of crime prevention and

crime repression. Is involved in

regulation of non-criminal! conduct,

provides certain services to the

community and protects individual

freedom of citizens.

At trial, defendants introduced evidence that the

following relevant functions were also in some

instances performed by officers: effecting

arrests, stopping fights, controlling crowds,

carrying persons on stretchers from burning

buildings, and pulling accident victims from

automobiles.

Plaintiffs conceded that these functions

were police functions. They presented evidence,

however, that those functions claimed to be

related to height and weight actually took only

a small portion of the average patrolman's

time and that, in fact, traffic-related matters

accounted for more than three-quarters of the

patrolman's working time. On the other hand,

since defendants claim that the felony-related

functions often resulted in physical injury to

officers, the Court must examine them to

determine whether they are significant functions

for the police officer.

With respect to these functions, certain

skills are necessary or desirable. For pur-

poses of the Civil Cervice Commission, the

A-21

Memorandum Opinion and Order

of District Court

relevant skills were described by the Police

Department as follows:

Required Knowledge and Skills:

Must be above average in social and

general intelligence; ability to under-

stand and carry out complex oral and

written instructions; knowledge of

first aid methods; reliable judgment;

ability to drive automobile; some skill

in the use of firearms; good powers

of observation and memory; excellent

mora! character; physical strength and

agility; excellent physical conditi ..

At trial, defendants contended that the following

relevant qualifications were required in order

to perform the duties: physical strength,

physical fitness, physical agility, ability to

view crowds, ability to drive a car, long

reach with the arms, ability to absorb blows,

and ability to impress others with physical

prowess.

The complex factual problem is to define

these broadly labeled skills in relation to the

functions performed by the police officer and

then to determine whether these narrowly defined

skills are related to a requirement that

officers be at least 5 feet 8 inches and 150

pounds. In order to make this determination,

the Court will separately examine each of the

specific skills listed above as they relate to

functions performed by East Cleveland police

officers.

A-22

Memorandum Opinion and Order

of District Court

1. Physical Strength:

Since strength is the ability to produce a

desired effect, it is impossible to determine

whether the needed strength exists until the

desired effect is defined. In the case ofa

police officer in East Cleveland, the

desired effects include restraint of a

hostile and struggling person during an arrest

or flight, harm to that person in certain

instances when restraint is ineffective,

carrying persons on stretchers, and pulling

persons from wrecked automobiles.

Professor Lawrence Golding, an expert in

applied physiology who has worked with police

departments, testified that these tasks would

in most instances require what he referred

to as "leverage strength," or the ability to

use the body mass at a particular angle in

order to lift or to direct the body. Ina

few instances, the officer who was restraining

or fighting could conceivable use what might

be characterized as ''brute force" or the

strength which results from mass alone, such

as sitting on a person or hurling his body at

someone. These forms of strength will be

discussed in more detail below.

The "leverage strengths" such as lifting

an accident victim, carrying a stretcher, or

twisting an arm to restrain a victim have very

little relationship to height and weight but

are more directly related to training on the

ways to use the body and to fitness and

A-23

Memorandum Opinion and Order

of District Court

conditioning the muscles. Where a relationship

does exist between height and "leverage strengths,"

it is a negative relationship. In other words,

all things being equal, a very tall person would

have a disadvantage because the leverage angle

would be less efficient in such activities as

lifting. To illustrate this, Professor Golding

pointed out that Olympic weighi lifters tend to

be an average of 5 feet 4 inches.

On the other hand, "brute force'’ would be

directly related to the weight of the person,

so that a 200-pound person would exert more

force by throwing his or her body against

another than could a 100-pound person. To the

extent that a larger person could usually weigh

more than a shorter person and still remain

physically fit, there is some relationship

between the ability to exert "brute force" ard

the height of the individual.

However, since the use of "brute force" in

restraining or defending would be more likely

to result in injury to the officer and the person

restrained than the methods of arm twisting,

finger twisting, and applying pressure, the

officers are trained and advised to use the

"leverage'’ methods as preferred mothods.

Thus, in a modern police force, the ability to

use "brute force" is not a necessary skill to

perform job functions.

In summary, therefore, there is no

positive relationship between "leverage strength"

A-24

Memorandum Opinion and Order

of District Court

needed to perform police tasks and an individual's

height and weight. Furthermore, there is a

tenuous positive relationship between ‘brute

force'' and height and a positive relationship

between "brute force" and weight, but there is

very little need for the use of such force by

a modern police officer.

2. Physical Fitness

Physical fitness includes both stamina

(cardiovascular efficiency) and the proper

balance of body muscle and body fat. There

is no doubt that some level of physical fitness

is related to job performance. Physical

fitness is unrelated to height. Therefore, the

question is whether it is related to the minimum

weight requirement, which is set forth in

Footnote 3 above.

Professor Golding testified that a physically

fit person should have a proper level of muscle

and of body fat. In his opinion, while, in the

extreme, obese or underweight conditions

would indicate that a person did not have the

proper allocation of body fat and muscle, the

exact weights listed on the table in Footnote 3

are not indicia of fitness (although they would

represent average weights for fit persons).

He suggested that it is a common practice

in some police departments and schools to

measure the percentage of body fat through a

formula. The person's fat layer is measured

A-25

Memorandum Opinion and Order

of District Court

in three points in the body. When these

measurements are inserted into a formula,

an accurate measure of body fat results. There-

fore, there would be no reason for utilizing a

minimum weight to measure body fat and there-

fore fitness, except perhaps a five minute

timesavings in testing.—’ For this reason, the

requirement of a 150-pound minimum weight is

not related to physical fitness as required for

the police officer.

3. Physical Agility.

pe iosaias meng of the functions described

above, the police officer must react quickly.

Although agility may relate to many skills, the

only conceivable relationship between agility

requirement and height or weight for the

police officer is with respect to running after

a suspect. However, Professor Golding

testified that the height requirement would

relate to such speed only in the case of long-

range running, while the agility required for

the police officer's job performance is only

short-range running. He further testified

that there was no relationship between the

8/7 Administrative cost savings does not

justify the maintenance of a requirement

which excludes on the basis of sex. Reed,

supra; Frontiero, supra.

A-26

Memorandum Opinion and Order

of District Court

minimum weight requirement and agility. His

expert testimony was uncontradicted in these

respects.

4. Ability to View Crowds.

Foiice patrolmen are at times required to

patrol in crowds such as at athletic events.

They also retain the readiness to patrol at

riots, should a riot develop. The Police Chief

testified that, since the average person is about

5 feet 8 inches in height, a police officer should

if possible, be taller than the average person

so that he may see and be seen in crowds.

His conclusion is, however, based upon

two erroneous assumptions. He assumes,

first, that the crowd is a uniform 5 feet 8 inches,

so that a person taller than the average could

see and be seen in crowds. However, about

15 per cent of all persons between 18 and 79

years of age are over 5 feet 10 inches in

height. About 5 per cent of that group are more

than 6 feet in height. Therefore, when one

speaks of having a height above the crowd, one

must refer to someone well over the average

height. Second, he assumes that, as far as

viewing the crowd or being viewed is concerned,

the officers or crowd participants' eyes will be

located at the top of the head. Since this is

usually not the case, one must add an additional

several inches to the height required to see or

be seen in the crowd. Thus, a 5 feet 8 inch

height requirement obviously has no logical

A-27

Memorandum Opinion and Order

of District Court

relationship to either viewing crowds or being

viewed by them.

5. Ability to Drive Car.

Since the uncontradicted expert testimony

of Dr. Stoudt of Harvard University was that

cars were designed to accommodate 90 per cent

of the population without modification and since

this would include everyone over 5 feet in height,

a 5 feet 8 inch height requirement could have

no relationship to the requirement that police

officers must be able to drive cars.

6. Arm Reach.

The expert testimony established that the

length of the arms is directly related to height.

Therefore, the question is whether the length

of the arm is related significantly to job

performance of the police officer.

Defendants argue that in the situation of a

person resisting arrest, when twisting arms

and other restraining methods fail, there

might be an occasion when a fist fight would

ensue in which the person who had the advantage

as to reach could conceivably hit the other

person while standing far enough away to

avoid blows from the other person. Defendants

were unable to show that this situation was one

which occurred with any degree of frequency.

Plaintiffs' expert, an instructor in self-

defense techniques at Case Western Reserve

University and in restraining techniques

taught to several police departments, testified

that with respect to either restraining or

A-28

Memorandum Opinion and Order

of District Court

self-defense techniques, arm length was not

a significant factor. (The officers are also

taught some aspects of juijitsu and the use

of the night stick to restrain without necessarily

harming the resisting person.) For example,

with respect to juijitsu tournaments, there are

no height and weight classifications. In fact,

the expert witness, who was herself 5 feet 2

inches, was often matched in tournaments

against persons six feet and above. The

evidence of the juijitsu tournaments is helpful

in pointing out the minor role which arm length

would have in all other aspects of physically

subduing a resisting person. 8/

7, Ability to Absorb Blows.

Defendants argued, without expert

testimony, that a person over 5 feet 8 inches

and over 150 pounds could more adequately

absorb blows received while restraining a

resisting person. No substantive evidence

supports this argument.

8/ Plaintiffs proffered a demonstration

regarding restraining and self-defense

techniques. The Court permitted the demon-

stration but now rules that it is inadmissible

as substantive evidence.

A-29

Memorandum Opinion and Order

of District Court

8. Ability to Impress Other with Physical

Prowess and Other ''Unmeasurable"

Advantages of Height.

Those testifying for the Police Department

and Civil Service Commission were apparently

most concerned with what they considered to

be the psychological impact of having all their

officers over 5 feet 8 inches. They theorized

that, if the officer was taller than the

person he was controlling or arresting, the

shorter person would be deterred from

assaulting the officer by the officer's

apparent physical superiority. They claimed

that their experience demonstrated that

taller officers were less often attacked and,

when attacked, less often and less severely

injured than shorter officers. Thus, they

contended, if those shorter officers among

persons in the 5 feet 8 inch to 6 feet 6 inch

range were more often and most successfully

attacked, it would be logical to assume that

those under 5 feet 8 inches would be attacked

even more often and injured ever more

severely.

However, the facts supplied by defendants

regarding assaults and injury records do not

substantiate the arguments regarding the

A-30

Memorandum Opinion and Order

of District Court

effect of height among those already employed.

Of the 30 reported assaults of East Cleveland

Police officers from 1969 through 1972, more

than half involved situations in which the

assailant was shorter than the police officer.

Therefore, in more than half of the situations,

the height differential did not deter an attack

on the officer. The weight differential evidence

is inconclusive since weights of the officers

and attackers were available only in a few

instances.

The figures regarding the heights of those

officers assaulted relative to the rest of the

Department do not substantiate the argument

that shorter officers are assaulted more often.

From 1969 through 1971, the median height of

the officers was apparently about 5 feet 11

inches. During that period 6 of the officers

assaulated were under 5 feet 11 inches, 6 of

the officers assaulted were 5 feet 11 inches,

and 8 of the officers assaulted were over 5

feet 11 inches. At the end of 1972, the median

height was 6 feet (because 7 of the 9 officers

hired during 1972 were 6 feet and over). Of

the officers assaulted during 1972, 7

officers were under 6 feet and 3 were over

6 feet. When the assaults for the entire

period of 1969 through 1972 are totalled, the

issue of whether shorter officers were

assaulted more often depends on whether the

median height for the first years is used or

whether the median heig' t as it existed at

A-31

Memorandum Opinion and Order

of District Court

the end of 1972 in [sic] used. In any case,

the figures supplied as to assaults do not

substantiate the argument that shorter

officers were assaulted more often.

Defendants also total the days taken off

for injury incurred during an arrest from

1969 through 1972 by officers under 6 feet

and compare this total with a similar total

for officers over 6 feet. However, this

comparison provides no real measure of

the relationship between height and injury.

Of the 117 days taken off as the result of

such injuries, 101 were taken off by 3 men

as the result of 3 injuries. Two of the

three men were shot and one was injured

in the eye by a mental patient--obviously

not injuries related to height or weight

disadvantage. Thus, these figures provide

no assistance to the Court in determining

the general effect of height regarding

injury.

D. Conclusion

The height and accompanying weight re-

quirement were maintained and enforced

by defendants as a part of a process to hire

only males as police officers and with the

effect and intent to exclude nearly all women

applicants. The Court is unable to find

A-32

Memorandum Opinion and Order

of District Court

rational support for the height and weight

requirements and concludes that the

requirements are based solely on the

stereotype of the large male police officer.

The expert testimony from other parts |

of the nation leads the Court to believe that

the failure of defendants to provide a

rational explanation for the height and

weight requirements is not unusual. Terry

Eisenberg, an industrial psychologist

employed by the International Association

of Chiefs of Police, Inc., stated that as

a result of substantial inquiry, he had

found no support for a relationship

between height and police work. Carl K.

Wettengel, Director of Personnel for the

State of Wisconsin, and his subordinate,

Richard Brainerd, stated that in his

opinion, based on inquiry and study of

height requirements in 34 city police

departments, there was no rational support

for a relationship between height and police

work.

It is significant that the Court has been

unable to find any agency or authority

which has reviewed the relationship between

the height and weight requirement and police

work on the basis of facts and which has

arrived at a contrary conclusion. The Law

A-33

Memorandum Opinion and Order

of District Court

Enforcement Assistance Administration

refuses to permit departments receiving its

funds to retain height requirements unless

they first show through supportive factual

data such as professionally validated studies

that the requirement is an "operational

necessity" for designated job categories.

38 Fed. Reg. 4553, G. 5 (March 8, 1973).

The Administration's Guidelines provide

in part:

The use of minimum height require-

ments, which disqualifies dispropor-

tionately women and persons of

certain national origins and races

-« » « will be considered violative

to this Department's regulations

prohibiting employment discrimi-

nation. Id. G. 4.

The Iowa Civil Rights Commission after

a finding that the height and weight require-

ments for the Des Moines Police Depart-

ment had a disparate effect against women

and had no rational basis, order the Police

Department to cease using it "until such

time as they are properly able to validate

in a professional manner such requirements

for job-relatedness.'' Nancy L. Moore v._

City of Des Moines Police Department, CP

#881, Iowa Civil Rights Commission (July 11,

1973). The Pennsylvania Attorney General

ordered a 5 feet 6 inch requirement for state

A-34

Memorandum Opinion and Order

of District Court

police suspended until it could be demonstrated

as related to job performance because it

excluded women and some minority groups.

[CCH] EPD 95177 (1973).

The Court therefore finds that the height

and weight requirements arbitrarily discrimi-

nate against women in restricting them from

employment as police officers in violation of

the Civil Rights Act of 1871, 42 U.S.C. §1983,

and the Equa! Protection Clause of the Four-

teenth Amendment.

IV. WRITTEN EXAMINATION

The written examination, the Army

General Classification Test (AGCT), is a

major factor in the rating of applicants for

certification. In particular, the AGCT

score is added to the physical fitness and

weighted as a possible 60 points out of a

possible 130 points. Plaintiffs claim that the

examination is discriminatory against black

and female applicants and that the examination

is not related to job performance under the

standards set by law.

The AGCT has been administered by the

Civil Services [sic] Commission as part of

the qualifying process for police officers

since 1957, with the exception of 1972 when

a different examination was administered.

It was developed for Army use to classify

enlisted personnel during World War Il.

A-35

Memorandum Opinion and Order

of District Court

In 1947 it was released for civilian use as a

general aptitude test and it has not been modi-

fied since that date. The 150 questions on

the examination are divided into 50 questions

each on spatial relations, vocabulary, and

mathematical reasoning. The test is ad-

ministered as a timed examination with a

calculation for wrong answers designed to

penalize guessing.

A. Race Discrimination Claim.

1. Prima Facie Showing

The overwhelming majority of courts

faced with claims of racial discrimination in

employment under 42 U.S.C, §1983 have

ruled that plaintiffs may make a prima facie

showing of discrimination without actual

proof that the defendants were motivated by

racial prejudice in their choice and use of

the examination. Carter v. Gallagher, 452

F. 2d 315, 323 (8th Cir. 1971) (en banc);

Chance v. Board of Examiners, 458 F. 2d 1167

(2d Cir. 1971); Castro v. Beecher, 459 F.2d

725 (1st Cir. 1972); Bridgeport Guardians, Inc.,

supra; Harper v. Mayor & City Council 5 FEP

1050 (D. Md. 1973); The Shield Club, supra.

See also cases cited in Footnote 5, supra.

The Court may consider the fact that

defendants have continued using an examina-

tion with the knowledge that it has a highly

A-36

Memorandura Opinion and Order

of District Court

disparate effect on minority groups as

sufficient to create a prima facie showing_of

discrimination which may be rebutted only

by a showing that the examination is rationally

related to job performance. In this case,

therefore, it is relevant to inquire into both

the impact and the evidence of disparate impact

which was available to the defendants in

choosing the test. The Civil Service Commis-~-

sion had available to it both the Technical

Manual! on the AGCT, provided by Science

Research Associates, and the results of

examinations in previous years.

The Technical Manual indicates that

the AGCT was originally normalized only

on adult white enlisted men. Later sicdies

attempting to normalize the AGCT with respect

to blacks indicated that the blacks scored

lower than whites in the given groups tested.

Science Research Associates, Inc., Technical

Report for the First Civilian Edition of the

Army General Classification Test 29. The

Technical Manual warns:

Since the AGCTquantitative and

verbal parts have items that are

informational in type, and since

speed is a factor, it may be expected

that scores for those items would

be somewhat depressed for

culturally deprived groups. Id.

A-37

Memorandum Opinion and Order

of District Court

The examination clearly had a disparate

effect on blacks taking the examination in

East Cleveland. The Court was provided with

statistics from the administration of the

AGCT in 1969, 1970, and 1973, to 101, 97,

and 103 applicants respectively. In each case

a third or more of the applicants were black

(33 per cent of the applicants in 1969, 44 per

cent in 1970 and 39 per cent in 1973 were

black). The calculations regarding the

comparison of black and white applicants

who received a raw AGCT score of over 100,

listed in the table below, demonstrate the

highly disparate effect:

PERCENTAGE OF RACIAL GROUP

RECEIVING RAW AGCT SCORE

OVER 1002!

Blacks White

1969 15 per cent 41 per cent

1970 9 63

1973 22 71

9/There is no "passing score” on the

examination. However, in the past most of

those placed on the certified list had a raw

AGCT score of 100 or better on the examina-

tion. Therefore, 100 has been chosen for

purposes of this comparison.

A-38

Memorandum Opinion and Order

of District Court

In 1973 the average raw AGCT score for black

applicants was 83. 2 while the average raw

AGCT score for white applicants was 106. 4.

Both plaintiffs’ and defendants' experts agreed

that the disparate effect of the AGCT on the basis

of race was highly significant and that the

likelihood of the difference in scores occurring

by chance alone was minimal.

In addition to the evidence conce rning the

effect of the examination, the Commission

was aware that as late as 1973 that the popu-

lation of East Cleveland was 60 per cent

black while only 12 per cent of the officers

were black.

When the facts available to the Commission

are compared with those found to be disparate

enough to warrant a prima facie finding of

discrimination in other public employment

cases under 42 U.S.C. §1983, it is clear

that they are sufficient to warrant a prima

facie showing of discrimination. See cases

cited in Footnote 5, supra.

Defendants rest their contention that

there has been no prima facie showing on

three arguments. First, they argue that

a third of those hired since 1968 have been

black, which is not substantially lower than

the percentages (about 33 to 44 per cent)

of the applicants who have been black, and

that there has therefore been no discrimina-

tion. However, the explanation for the high

A-39

Memorandum Opinion and Order

of District Court

numbers of blacks hired is that 75 per cent

of the black applicants were veterans and were

therefore entitled to a 20 per cent veterans'

preference while only 36 per cent of the white

applicants were veterans. Since defendants

admit that military experience is related to

job performance, these statistics would

indicate that in one aspect blacks were more

often better qualified than whites. The fact

that some blacks were better qualified in one

aspect does not justify defendants in unfairly

pena lizing blacks on the examination if it

is not also job related. Therefore, this

argument does not dispel the prima facie

finding made by the Court.

Second, defendants argue that the

disparate effect on the examination results

from the fact that 63 per cent of the white

applicants had some college experience

(had taken at least one college course), while

only 35 per cent of the black applicants

had some college experience. A similar

argument was made by defendants in

Bridgeport Guardians, Inc. v. Members of

the Bridgeport Civil Service Commission,

supra » where the educational background of

the white applicants was also arguably >

superior to that of the minority applicants.

In rejecting the argument, the Court was

apparently influenced by the desire not to

permit past discrimination in educational

A-40

Memorandum Opinion and Order

of District Court

opportunities to exclude minority applicants

where that education was not related to job

qualifications. Judge Newman pointed out:

More fundamentally, this date fails

to remove the prima facie showing

of discrimination because it dees

not alter but only tries to explain,

the difference in passing rates.

Even if defendants' evidence couid

establish that this difference is due in

large part to the quality of schooling,

a prima facie showing of discrimination

would nonetheless remain if a test

is used that significantly separates

the applicants by any factor,

including poor quality of schooling,

and race or ethnic origin correlate

highly with this factor. See Castro

v. Beecher, supra; cf. Beal v.

Lindsay, 468 F.2d 287 (2d Cir. 1972).

Of course this does not mean that a

test cannot be used whenever those

with poor schooling score less well than

those with good schooling. But if

members of a minority group score

significantly less well than others,

then even if this result seems from

the poor schooling many of them

received, the burden shifts to the

employer to provide some adequate

A-41

Memorandum Opinion and Order

of District Court

justification for use of the test.

It may well be that good schooling

provides attributes needed for job

performance; if so, it should not be

difficult to demonstrate the validity

of the test. Id. 8502. See also

McDonnell Douglas Corp. v. Green,

U.S. , 36 L.Ed. 2d 668,

680 (1973).

Third, defendants emphatically deny any

intent to discriminate. They point out that

they conducted an extensive campaign to

recruit black applicants in 1968 and 1969

and that two of the three Civil Service

Commissioners as well as six of the ten

named defendants are black. They also

note that the Civil Service Commission

discussed the disparate effect of the AGCT

examination on blacks but were unable to

locate awritten aptitude examination which did

not also have a disparate effect. While impressed

with the good faith of defendants from 1968

to date, the Court cannot, as a matter of law,

rule that the good faith efforts are sufficient

to negate a prima facie showing ‘of discrimi-

nation on the examination. The law permits

an inference of a discriminatory intent when

a practice having a highly disparate racial

effect is used without an investigation to

A-42

Memorandum Opinion and Order

of District Court

ascertain if the rest is predictive of job

performance, regardless of the good faith

of the individuals involved. Furthermore,

the inability of defendants, after a few tele-

phone inquiries, to locate a fairer test does

not excuse the continued use of an examination

with a highly disparate effect if the test is

not predictive of job performance.

For these reasons, plaintiffs have

presented a prima facie showing of racial

discrimination. This is not, of course,

equivalent to a showing of unlawful discrimina-

tion but is sufficient to require that defendants

demonstrate that the AGCT results are

predictive of job performance.

2. Validity of AGCT for

Police Department.

Once a prima facie showing of racial

discrimination has been presented, it is unclear

what standard of review is applied regarding

the justifications given for using the examina-

tion. The First Circuit standard of review

was stated in Castro v. Beecher, 459 F. 2d

725, (1st Cir. 1972):

It (the public employer) may not...

rely on any reasonable version of the

facts, but must come forward with

convincing facts establishing a fit

between the qualification and the job.

Id. 732.

A-43

Memorandum Opinion and Order

of District Court

In accord, The Shield Club v. City of Cleveland,

supra. The Second Circuit in Chance v- Board

of Examiners, 458 F. 2d 1167, 1177 (2d Cir.

1972), required defendants after a prima facie

showing to satisfy a "heavy burden of proof"

on the question of whether the examination

was job-related. See Bridgeport Guardians,

Inc., supra. See also Harper v. Mayor & City

Council, 5 FEP Cases 1050, 1038 (D. Md. 1973)

("Employment tests which are shown to eliminate

a disproportionate percentage of one racial

group must be demonstrably accurate measures

of job performance. ''); Commonwealth of

Pennsylvania v. O'Neill, 348 F. Supp. 1084,

1090-1092 (E. D. Pa. 1972) aff'd in part by

equally divided court, rev'd on other grounds,

473 F.2d 1029 (3d Cir. 1972) (en banc). In

essence, the defendant is required to prove

to the Court that the examination having a

disparate effect is demonstrably job-related.

Defendants here attempt to provide such

evidence that the AGCT is a valid predictor

of job performance through three arguments.

a. AGCT Manual

Defendants argue that the Te chnical

Manual for the AGCT provides adequate

evidence that the AGCT is job related. How-

ever, the Manual discusses no study relating

the AGCT to performance as a police officer.

The only validation studies reported in the

Manual related to performance in the

A-44

Memorandum Opinion and Order

of District Court

military vocational schools (including a police

academy) and other educational institutions.

Moreover, the AGCT validation studies were

apparently done with respect to whites only.

There is no evidence in the Manual that the

AGCT ‘is a valid predictor of performance for

blacks. Therefore, the AGCT Manual is

inadequate to show that the examination is

job-related.

b. Subjective Analysis

Defendants reason that because their

Police Department is, in their opinion and in

that of some others, a good police department,

the AGCT must have done a good job of screen-

ing police candidates. The number of assump-

tions implicit in this conclusion are too

numerous to mention. If the Court accepted

this conclusion, it would also permit the use

of discriminatory testing procedures in

every instance in which the present employees

were performing adequate work. Certainly,

more is required prior to permitting the

coniinued exclusion of large numbers of black

applicants. As Judge Young commented in

Harper v. Mayor & City Council, supra:

"T]he law does not afford public employers

the luxury of reliance on an untested assump-

tion when the tests which proceed from that

assumption adversely effect [sic} one racial

group. "

A-45

Memorandum Opinion and Order

of District Court

c. Objective Analysis

Because testing procedures themselves

are a product of the psychological community,

the proof of their validity must also be based

on the psychological standards. Bridgeport

Guardians, supra. Both plaintiffs' and

defendants' experts agreed on the proper

procedure in attempting to validate a test

regarding job performance.

The method of validation considered

preferable by trial experts is criterion-

related validity. See EEOC Guidelines, 29

C.F. R. §1607.5(a). Under criterion-related

validity, the defendant is required to demon-

strate that the test scores correlate significant-

ly with external variables which arena direct

measure of job performance. a ae

requires a job analysis, testing, and then an

objective review to determine whether

performance on the test relates to success

in significant job functions. Bridgeport

Guardians, supra.

10) The Guidelines adopt the procedures

approved by the American Psychological

Association in "St andards for Educational and

Psychological Tests and Manuals." The latter

publication discussed test validity on pages

12 through 24.

A-46

Memorandum Opinion and Order

of District Court

Defendants attempted to meet the criterion-

related validity test by showing that AGCT

scores correlated significantly with the police

training course grades, promotion, and

criteria for promotion--the promotional

examination score and the efficiency-in-service

ratings. Defendants' expert, Dr. Byron Svetlik,

admitted however that he was unable to state

that any of the above-listed measures correlated

with job performance and admitted that he knew of

no job analysis. In addition, he admitted that

the efficiency-in-service ratings were subjective

in nature and were not done in such fashion

that he would predict them to be reliable

measures of job performance. There was no

indication that the promotional examination

results, the police academy grade, or the

promotion (a partial result of the efficiency

in service and promotional examination)

were related to job performance. Furthermore,

defendants could not relate the AGCT scores

with any measures relating to blacks. In fact,

the numbers of blacks hired are insufficient

to provide the analysis. The fact that no

blacks have ever been promoted makes

slightly suspect the fairness of the efficiency

in service ratings, promotional exam and

other indicia of promotion. In essence,

all defendants have done is related one unvali-

dated testing or evaluating method with

another. The other testing methods may or

A-47

Memorandum Opinion and Order

of District Court

may not have a disparate effect on blacks as

well and may be totally unrelated to job

performance.

The Court also permitted evidence on two

additional methods of validation-content and

construct validity. Content validity involves

the identification and testing of certain job-

related skills. Since applicants for police

officer are trained and are not expected to

have certain skills at the time of application,

this method of validation would not be

relevant here. Constructive validity involves

the determination of which constructs or

traits are required for job performance, the

selection of a test to measure those traits,

and then the subsequent testing to determine

if the test is predictive of the traits desired.

Defendant's expert, Dr. Lawrence Perney,

testified that in his opinion the AGCT screened

for eighth grade level vocabulary (although a

better educated person would be expected to

excel) space perception and twelve-grade

level mathematics. However, he admitted

that he did know whether and to what degree

these traits were those which would be

necessary for job performance as the police

officer. Defendants also presented testimony

that some level of reasoning, language, math

and perceptual ability was needed to make

reports of traffic accidents and testify in court.

A-48

Memorandum Opinion and Order

of District Court

However, there was no evidence of the level

of skill required for performance. With no

job analysis to determine the level of ability

required in a given area, defendants may well

be screening out persons for lack of skill in

an area .) the level tested is not

required.— Furthermore, defendants did not

follow-up the test to determine whether scoring

on the AGCT correlated with the existence of

the traits desired.

In essence, defendants are contending that

a general aptitude test to measure ability may

be used because they want fairly intelligent

police officers. If sucha justification were

permitted for police officers without research

as to the level of competence required with

respect to language or mathematics, it is

difficult to imagine what kind of employment

could not also justify the use of such a test.

11/ For example, it is conceivable that the

level of vocabulary required to score sufficiently

well to be certified is well beyond that needed

for daily police activities. Vocabularly [sic]

tests are often particularly discriminatory

against minority groups and may result in

screening out many blacks sufficient to pe:form

police work well.

A-49

Memorandum Opinion and Order

of District Court

At the same time, the expert testimony

related that the studies to date indicate that

blacks often perform far better on the job

than aptitude tests indicate. Thus, a ruling

that the need for such vague traits as general

intelligence, language skills and ability to

reason may support the use of such aptitude

tests as the AGCT which have a highly

disparate effect on blacks, without a study

of the level of skill required for the job, will

effectively preclude any challenge to testing

procedures. For this reason, the Court will

require a more specific job validation than

that attempted by defendants prior to subse-

quent use of the AGCT.

B. Sex Discrimination Claim.

Since only two female applicants have

taken the AGCT to qualify for police officer

in East Cleveland, the major issue presented

by the claim that the examination discriminates

on the basis of sex is the method of review to

be applied when the numbers are too small to

permit a conclusion as to the disparate effect

of the examination.

Several courts faced with a similar issue

have refused to rule that a prima facie case of

discrimination has been established. Castro

vy. Beecher, supra; Bridgeport Guardians, Inc.,

supra. Indeed, the Court is unable to find any

authority for requiring defendants to validate

A-50

Memorandum Opinion and Order

of District Court

the test where the statistical evidence of

disparate effect is insufficient and there is no

evidence of discriminatory intent. in adopting

the examination. :

At the same time, it is troublesome that

the evidence presented indicates a high

probability that the examination will have

such a disparate effect. Although the studies

in the field show that women and men score

differently with respect to math and verbal,

defendants have used an examination designed

and originally normalized for men only.

Furthermore, the AGCT Technical Manual

indicates that when attempts were made to

normalize the AGCT with respect to women,

the women scored lower on the average than

men in the same group. Technical Manual,

supra at 14-16, 30. Finally, one of plaintiffs’

experts testified to a likelihood of disparate

effect regarding the spatial relations portion

of that examination and regarding the guessing

penalty.

While normalization would therefore be

advisable, the Court is without authority

to compel it as a constitutional requirement.

Cc. Conclusion

Although the discussion must of necessity

deal with the evidence and the law related to

discrimination, the Court cannot help but

A-51

Memorandum Opinion and Order

of District Court

consider the effect a finding of racial discrimi-

nation with respect to the written examination

will have on a small suburban police department.

Proper validation of the testing under the

procedures described by plaintiffs' expert

Dr. Barrett and defendants' expert Dr. Svetlik

will be costly and time-consuming.

It does appear, however, that practical

means to achieve a fair test do exist through

a pooling of efforts. What is most offensive

is the use of a discriminatory examination

which has not been related to performance of

the police officer anywhere known to defendants.

The Court may take judicial notice of a growing

number of police departments which are

seeking a test which either does not have a

disparate effect on blacks or which is related

to the job performance of a police officer.

Bridgeport Guardians, Inc., supra; The

Shield Club, supra. It is reasonable to conclude

that, just as individual police departments have

not written their own examinations in the past,

they may also draw on a common fund for a

new examination which will meet the require-

ments of the Fourteenth Amendment.

The Court is also concerned with the fear

expressed during trial by plaintiffs' expert

Dr. Svetlik that the Court decisions regarding

discrimination may impair the progress made

in the adoption of objective rather than sub-

jective examination for public employment.

A-52

Memorandum Opinion and Order

of District Court

Still, it concludes on the basis of the trial

testimony that because the factors which

produce a cultural bias in test results are

known in the testing field, it will be feasible

to write a culture fair test for police

applicants. In addition, the Court is uncon-

vinced that tests which discriminate are really

"objective'’ where they are not demonstrably

job related. The Court agrees with Judge

Goldberg's analysis in his dissent to Allen v.

City of Mobile, 466 F. 2d 122 (5th Cir. 1972);

It is now recognized that a test

can be impeccably 'objective' in

the manner in which the questions

are asked, the test administered,

and the answers graded, and still

be grossly 'subjective' in the

educational or social milieu in

which the test is set. Id. 123.

For these reasons, the Court concludes that

its ruling in this case should not set back

the healthy trend toward the use of objective

standards in public employment.

The evidence shows that the examination

in this case discriminates against black

applicants. In light of this discrimination,

defendants have the burden of demonstrating

to the Court that the examination is job

related. The evidence indicates that the

menener ss one

A-53

Memorandum Opinion and Order

of District Court

AGCT which was developed on white enlistees

to classify within the segregated Army has

never been validated regarding performance

of either whites or blacks as police officers.

The Court rejects the attempts to validate

the test in East Cleveland with respect to

promotional criteria, since these criteria have

never themselves been related to job perfor-

mance and since no black has been promoted

in the history of the Department, and with

respect to a police training test score, since

this too has not been shown to relate to job

performance. Given an examination which has

a grossly disparate effect on black applicants,

the defendants' evidence was not sufficient

to demonstrate job-relatedness.

Regarding the claim of sex discrimination,

a different situation is presented. Plaintiffs

have not shown that the examination has been

a barrier to employment for women. Therefore,

the Court does not find a sufficient basis to

invalidate the examination as it relates to sex.

V. VETERAN'S PREFERENCE

Plaintiffs challenge the timeliness of

applying a preference for veterans on the

grounds that it discriminates on the basis of

sex, that it amounts to a special law which is

prohibited under the Ohio Constitution, and

that it violates Ohio Rev. Code §143. 16.

The statute requiring a preference for

A-54

Memorandum Opinion and Order

of District Court

veterans provides in relevant part:

All applicants for positions and places

in the classified service shall be

subject to examination which shall be

public,. .«- provided any soldier,

sailor, marine, coast guardsman,

member of the auxiliary corps as

established by congress, member of

the army nurse corps or navy nurse

corps, or red cross nurse who has

served in the army, navy, or

hospital service of the United States,

and such other military service as

is designated by contress, [sic]

including World War I, World War HU,

or during the period beginning May 1,

1949, and lasting so long as the

armed forces of the United States

A-55

Memorandum Opinion and Order

of District Court

given in the regular examination in

which he receives a passing grade.

Such examination may include an

evaluation of such factors as education,

training, capacity, knowledge, manual

dexterity, and physical or psychological

fitness. Examinations shall consist

of one or more tests in any combination.

Tests may be written, oral, physical,

demonstration of skill, or an evaluation

of training and experience and shall

be designed to fairly test the relative

capacity of the persons examined to

discharge the particular duties of the

position for which appointment is

sought. Ohio Rev. Code §143. 16

Defendants apply the veterans preference

are engaged in armed conflict meal to the written examination before deciding

occupation duty, or the selective whether the applicant may take the oral

service or similar conscriptive acts examination. In addition, they apply the

are in effect in the United States, preference prior to determining whether the

whichever is the later date, who has applicant has passed the examinations. Such

been honorably discharge therefrom, ; practices are in violation of the procedure

or transferred to the reserve with evi- prescribed by state statute-namely that the

dence of satisfactory services and department should first determine whether

is a resident of Ohio, may file with the applicant has passed the entire examination

the director a certificate of service

. or honorable discharge, whereupon apply the veterans preference.

he shall receive additional credit of . Since the Court may rule on this claim

twenty per cent of his total grade under state law on the basis of its pendent

(including both written and oral) and only then

A-56

Memorandum Opinion and Order

of District Court

jurisdiction, it does not reach the constitutional

arguments raised by plaintiffs.

VI. ATTORNEYS' FEES

Since there is no statutory provision for

attorneys' fees under 18 U.5. C. §1983,[sic]

attorneys' fees should be allowed only when

publi: policy would require it. Knight v.

Auciello, 453 F.2d 853 (1st Cir. 1972),

cited in Northcross v. Board of Education,

U.S. , 37 L. Ed. 2d 48, 51 n.2 (1973).

The Court should consider the degree to which

a public right is asserted by plaintiff and the

extent to which defendant has engaged in

deliberate wrongdoing. Id.; Lee v. Southe rn

Home Sites Corp., 444 F.2d 143 (5th Cir. 1971).

In this case, defendants have not deliberately

embarked on a course of discrimination at least

with respect to racial discrimination and

have, in fact, prevailed in their defense

against one of plaintiffs' claims. In the

exercise of its discretion, the Court declines

to award attorneys' fees to plaintiffs.

VIl. RELIEF

On the basis of the reasoning above the

Court rules that:

1. Defendants' enforcement of the

minimum height and weight requirements

for police officer applicants in East

A-57

Memorandum Opinion and Order

of District Court

Cleveland unlawfully discriminates

against women;

9. Defendants' use of the AGCT to

screen applicants unlawfully discriminates

against blacks; and

3, Defendants' application of the

veterans' preference prior to

determining whether the candidate

is qualified violates Ohio law.

In determining the proper relief, the

Court must also consider any history of

discrimination. With respect to the dis-

crimination, the evidence indicates that

defendants have already made positive

efforts to erase the effects of past

discrimination through recruitment.

Therefore, the Court is not inclined to order

affirmative relief with respect to past dis-

crimination. However, it will enjoin the

further use of the AGCT examination which

unlawfully discriminates against black

applicants.

With respect to sex discrimination, the

Court is convinced that there has been past

discrimination. However, because the Court

does not know the numbers of those women

who have applied but for the height and weight

requirements, it is inclined to order only

A-58

Memorandum Opinion and Order

of District Court

limited affirmative relief for the past

discrimination. It will, however, enjoin

further enforcement of the minimum height

and weight requirements.

The Court is aware that there is some

leeway in fashioning relief. It therefore

requests the defendants to file a proposed

plan for implementation of the Court's

rulings within twenty days of the date of this

Order. The plaintiffs are ordered to respond

to the plan within ten days thereafter. A

hearing to discuss final relief will be held on

October 12, 1973. Pending such a hearing

the interim relief heretofore granted will

remain in effect.

IT IS SO ORDERED.

(signed) Thomas D. Lambros

Thomas D. Lambros

United States District

Judge

Dated: September 6, 1973

A-59

Nos. 73-2226 and 73-2227

UNITED STATES COURT OF APPEALS

Evizapetu A. Situ, on behalf of)

herself and all others similarly sit-

uated,

Plaintiff-Appellee,

Vv.

Ropert TrROYAN, Recinatp GOWER,

James Rircue and James Barrett, Appreat from the

Defendants-Appellants. United States District

Court for the North-

ern District of Ohio,

Evizasetu A. Situ, on behalf of Fastern Division.

herself and all others similarly sit-

uated,

Plaintiff-Cross-Appellant,

Vv.

City or East CLEVELAND, ET AL.,

Defendants-Cross-Appellees. |

----—— ---———-—- - ee

Decided and Filed July 3, 1975.

Before: Weick, CELEBREZZE and Peck, Circuit Judges.

Peck, Circuit Judge. Plaintiff-appellec, a five-foot, five-inch,

136-pound black woman, filed in district court a class action

against certain “city defendants”' and certain “federal defen-

‘ Plaintiff named as “cit defendants” East Cleveland, its city

manager, its police chief, five city commissioners, and three city

civil serwice commissioners. The district court dismissed plaintiff's

A-60.,

[2 } Smith v. Troyan, et al. Nos. 73-2226-27

dants”? charging that the city’s use of minimum height and

“proportionate” weight requirements in hiring its police officers

unconstitutionally discriminated against her on the basis of

sex and that the city’s similar use of the Army General Classifi-

cation Test (AGCT) unconstitutionally discriminated against

her on the basis of race and sex.®

The district court found that the height and weight require-

ments discriminated against women, that the AGCT discrim-

claims against the city for lack of jurisdiction and against the city

manager and the city commissioners because plaintiff “ha[d] failed

to show any non-legislative function [they had] performed ...

which had] denied plaintiffs equal protection of the laws.” 363 F.

upp. 1131, 1135 (N.D. Ohio 1973). There has been no appeal of

those dismissals.

2 Plaintiff named as “federal defendants” the administrator and

regional director of the Law Enforcement Assistance Administration

(LEAA). Allegedly, LEAA awarded funds to the city, the funds

were used for a community service officer program, and no women

were enrolled in the program. By pretrial order, the district court

severed plaintiff's claim against the federal defendants from her

claim against the city defendants. After trial, plaintiff moved the

district court to dismiss her claim against the federal defendants

without prejudice. The city’s law director, apparently representing

the federal defendants, thereafter moved that plaintiff's claim against

the federal defendants be dismissed with prejudice. The record

reflects no disposition of the motions to dismiss.

3 Plaintiff also alleged that the use of the height and weight re-

uirements and of the AGCT violated 42 U.S.C. §§ 1981, 2000d. With

e severance of plaintiff's claim against the federal defendants, see

footnote 2, supra, plaintiff apparently abandoned her section 2000d

claim because of representations that East Cleveland uses no federal

funds in hiring police officers. Noteworthily absent in plaintiff's

complaint, which was filed on March 23, 1973, were references to

Title VII of the Civil Rights Act of 1964. 42 U.S.C. §2000e et seq.

Section 2000e(a) was amended in 1972 to bring governments, govern-

mental agencies, and political subdivisions within Title VII. Pub.

L. No. 88-352, § VII, 78 Stat. 253. See Zichy v. City of Philadephia,

—— F. Supp. —— (No. 72-1810, E.D. Pa., filed March 19, 1975);

Kirkland v. New York State Dep’t of Correctional Services, 374 F.

Supp. 1361, 1364 (S.D.N.Y. 1974). Of course, what Title VII compels

may differ from what the equal protection clause, in itself, compels.

See Communications Workers of America Vv. American Tel. & Tel.,

513 F2d 1024 (2d Cir. 1975); Wetzel v. Liberty Mut. Ins. Co.,

511 F.2d 199, 203 (3rd Cir. 1975), petition for cert. filed 43 US.L.W.

3540 (April 2, 1975); Satty v. Nashville Gas Co., 384 F. Supp.

765, 768-771 (M.D. Tenn. 1974), appeal pending —— F.2d ——

(6th Cir. —————). But see Afro American Patrolmens League v.

Duck, 503 F.2d 294, 301 (6th Cir. 1974); Davis v. Washington, 512

F.2d 956, 957-58 n. 2 (D.C. Cir. 1975).

A-61""

Nos. 73-2226-27 Smith v. Troyan, et al. (3).

inated against blacks, and that, as a matter of state law, a

veteran’s preference had been applied improperly. The court,

however, found insufficient evidence that the AGCT discrim-

inated against women. 363 F. Supp. 1131 (N.D. Ohio 1973).

Defendants have appealed from the district court’s findings

of unconstitutional discrimination as to the height and weight

requirements and as to the AGCT.* Plaintiff has cross-appealed

from the district court’s refusals to find that the AGCT un-

constitutionally discriminates against women and to award

attorney's fees.

HEIGHT REQUIREMENT

East Cleveland Administrative Code § 123.07(d) requires

police applicants to “be at least five feet, eight inches in height

"__” The district court found no “rational support” for and

invalidated the requirement. A detailed, in-depth discussion

probing the height requirement's relationship, or lack thereof,

to physical strength, physical fitness, physical agility, ability

to view crowds, ability to drive cars, arm reach, ability to

absorb blows, and psychological advantage, however, preceded

the court’s finding.

On appeal, defendants claim that the height requirement,

though disqualifying disproportionately more women than

men, is a non-gender-based classification and, consequently,

constitutionally permissible through the relaxed standard of

equal protection review. Even if the height requirement were

considered a gender classification, defendants claim it would be

constitutionally permissible.

Few reported opinions have directly assessed the constitu-

tionality of height requirements. See Callis, Minimum Height

4 By order, a panel of this court on April 4, 1974, rejected plaintiff's

motion to dismiss defendants’ appeal for lack of subject matter

jurisdiction. The order read,

“(T]o the extent the Memorandum Opinion and Order issued

by the District Court on September 6, 1973, is not a final

judgment, but is an interlocutory order grantin injunctive

relief, the same is appealable under 28 U.S.C. § 1292(a) (1).

‘A-62

[4] Smith v. T'royan, et al. Nos. 73-2226-27

and Weight Requirements as a Form of Sex Discrimination,

25 Labox L. J. 736 (1974). Hardy v. Stumpf, 37 Cal. App.

3rd 958, 1i2 Cal. Rptr. 739 (1st Dist. 1974), invalidating a

five-foot, seven-inch requirement for Oakland police officers,

relied heavily on the instant district court’s reasoning and on

the “suspect” character of the height classification. Other

height requirements for various occupations have been inval-

idated on the basis of state statutes. See, e.g., New York State

Div. of Human Rights v. New York City Dep't of Parks &

Recreation, 38 App. Div. 2d 25, —— N.Y.S. 2d — (1971)

(municipal lifeguard), New York State Div. of Human Rights

v. New York-Pennsylvania Professional Baseball League, 36

App. Div. 2d 364, —-— N.Y.S.2d —, aff'd, 29 N.Y.2d 921, —~

N.Y.S.2d —— (1972) (baseball umpire), and Moore v. City of

Des Moines Police Dep't, 2 CCH Empl. Prac. Guide 5184

(CP No. 881, Iowa Civil Rights Comm’n, filed July 11, 1973)

(police). See also In Re Shirley Long, U.S. Civil Serv,

Comm'n Bd. of Appeals & Review (Nov. 13, 1972). Of four

courts which have refused to invalidate police height require-

ments, only one sustained the height requirement in light of

evidence of the sexually disparate impact of the height require-

ment. Compare Hail v. White, 8 CCH Empl. Prac. Dec.

1 9637 (N.D. Cal. 1973) (sustaining height requirement against

Title VII claim), with Castro v. Beecher, 459 F.2d 725, 734

(1st Cir. 1972), Arnold v. Ballard, 9 CCH tmpl. Prac. Dec.

19921 (N.D. Ohio 1975), and Mulligan v. Wilson, 110 N.J.

Super. 167, 264 A.2d 745 (1970). Still other courts have

found it unnecessary to decide the legality of certain height

requirements. See, e.g., Pond v. Braniff Airlines, Inc., 500 F.2d

161, 162 (5th Cir. 1974), rev’'g 6 CCH Empl. Prac. Dec.

1 8756 (N.D. Tex. 1973); Lum v. New York City Civil Serv.

Comm'n, 9 CCH Empl. Prac. Dec. {9947 (S.D.N.Y. 1975).

The Supreme Court and this court, however, have recently

dealt often with gender or gender-related classifications.

Geduldig v. Aiello, 417 U.S. 484 (1974), recognized that for

constitutional purposes a classification even with an impact

‘A -63

Nos. 73-2226-27 Smith v. Troyan, et al. [5 ]

exclusively on one gender need not necessarily be treated as if

an explicit gender classification.

“While it is true that only women can become preg-

nant, it does not follow that every legislative classification

concerning pregnancy is a sex-based clossification .. . .

Absent a showing that distinctions involving pregnancy

are mere pretexts designed to effect an invidious dis-

crimination against members of one sex or the other,

lawmakers are constitutionally free to include or exclude

pregnancy from the coverage of legislation such as this

on any reasonable basis .. . .

“The lack of identity between the excluded disability

and gender as such under this insurance program becomes

clear upon the most cursory analysis. The program

divides potential recipients into two groups — pregnant

women and nonpregnant persons. While the first group

is exclusively female, the second includes members of

both sexes.” 417 U.S, at 496-97 n, 20,

See Comment, Gedulgig v. Aiello, Pregnancy Classifications

and the Definition of Sex Discrimination, 75 Colum. L. Rev.

441, 443-48 (1975) [hereinafter Pregnancy Classifications].

Height requirements create even less exclusively gender-re-

lated classes. While one of the two Geduldig classes was ex-

clusively of one gender, neither of the East Cleveland classes

is exclusively of one gender. The class of persons too short to

be eligible consists approximately of 95 per cent of the women

and 45 per cent of the men between the eligible ages; the

class of persons tall enough to be eligible consists approx-

imately of five per cent of the women and 55 per cent of the

men.$

5The East Cleveland height requirement, as the district court

recognized at trial, was applied to men and women and, consequently,

disqualified men as well as women. Such height requirement

differs from applying requirements only to women, see Laffey v.

Northwest Airlines, Inc., 366 F. Supp. 763, 773-74, 790 (D.D.C. 1973),

and likewise differs from applying more stringent requirements to

women than to men. See Berkelman v. San Francisco Unified

A-64

[ 6) Smith v. Troyan, et al. Nos. 73-2226-27

Like the Supreme Court in Geduldig, lower federal courts

have sustained state action disproportionately, or exclusively,

affecting one gender. See, e.g., Reynolds v. McNichols, 488

F.2d 1378, 1383 (10th Cir. 1973) (city “hold and treat”

ordinance for prostitutes); Bond v. Virginia Polytechnic Insti-

tute & State University, 381 F. Supp. 1023 (W.D. Va. 1974)

(university student health plan’s failure to provide for gyne-

cological examinations and pap tests).

Even if the height requirement is viewed as gender discrim-

ination, see Satty v. Nashville Gas Co., 384 F. Supp. 765, 771

n. 1 (M.D. Tenn. 1973), appeal pending, -— F.2d —— (6th

Cir. ——), it must be sustained if it “bears a rational relation-

ship to a [legitimate] state objective.” Reed v. Reed, 404 U.S.

251, 254 (1971). The Supreme Court, and this court, have re-

cently upheld even explicit gender classifications. See, e.g.,

Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572 (1975); Kahn

v. Shevin, 416 U.S. 351, 94 S.Ct. 1734 (1974); Robinson v.

Board of Regents, 475 F.2d 707 (6th Cir. 1973), cert. denied,

416 U.S. 982 (1974). More importantly perhaps, the classifica-

tions the Supreme Court has found unconstitutional have been

explicit gender classifications, where the members of the result-

School Dist., 501 F.2d 1264, 1268-70 ‘9th Cir. 1974): A

ne hd eos | sae. . F. i? pl Wit Va. 197). —- My

' pl. Prac. Dec. 4 .D. Mich. :

Lee, 337 F. Supp. 934 (D. Mass. 1972). a

6 Although several lower federal courts have deem

classifications constitutionally “suspect” and, bn gg Fs ny.

by a compelling state interest, see, e.g., Johnston v. Hodges, 372 F.

Wn ny age 2. Ky. oe oa yO Indemnity

, ; be . Supp. q -42 (E.D. Pa.

Monell v. Department of Social Services, 357 F. Supp. 105," (SD NY

1972), other courts have refused to deem such classifications “sus-

pect, thereby applying a greater or lesser demanding “rational rela-

tionship” test. ee, e.g. United States v. Baechler, 509 F.2d 13

(4th Cir. 1974), Green v. Waterford Bd. of Educ., 473 F.2d 629. 632-4

(2d Cir. 1973), Edwards v. Schlesinger, 377 F. Supp. 1091, 1094-96

(D.D.C. 1974), Ritacco v. Norwin School Dist.. 361 F. Supp. 930

(W.D. Pa. 1973). Still other courts have deemed such classifications

subject to an arguably intermediate “close scrutiny” test. See, e.g

Gilpin v. Kansas State High School Athletic Ass'n, 377 F. Supp. 1233.

= = wag or importantly, however, never has this

ourt maiority r i i

interest to justify such classifications. as a

A-65

Nos. 73-2226-27 Smith v. Troyan, et al. [ 7]!

ing classes have, by definition, only their gender in common.

See, e.g., Stanton v. Stanton, —— U.S. ——, 95 S. Ct. 1373 (1975);

Weinberger v. Wiesenfeld, —— U.S. ——, 95 S. Ct. 1225 (1975),

Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692 (1975); Fronti-

ero v. Richardson, 411 U.S. 677 (1973); Stanley v. Illinois, 405

U.S. 645 (1972); Reed v. Reed, 404 U.S. 71 (1971). Like

Geduldig, however, the members of the classes in Cleveland

Bd. of Educ. v. LaFleur, 414 U.S. 632, 94 S. Ct. 791 (1974),

aff g 465 F.2d 1184 (6th Cir. 1972), had more (their pregnan-

cies or lack thereof) in common than their genders, but the

Supreme Court, instead of equal protection analysis, relied

upon the “fundamental” choice to have a child to invalidate

mandatory pre- and post-partum leaves. See 94 S. Ct. at 802

(Powell, J., concurring in result); Pregnancy Classifications,

supra, at 454-55. The Court, however, found “no rational re-

lationship” between the mandated leaves and “the valid state

interest of preserving continuity of [educational] instruction.”

94 S. Ct. at 798.

We think the district court erred in finding no “rational

support” for the height requirement. If East Cleveland's height

requirement lacks “rational support,” so do height requirements

elsewhere. Plaintiff's own exhibits demonstrate that forty-seven

of forty-nine state highway patrols and police forces and

twenty-nine of twenty-nine municipal police departments

surveyed have, or at least then had, height requirements

(ranging from five feet, six inches to six feet). See Note,

Height Standards in Police Employment & the Question of

Sex Discrimination: the Availability of Two Defenses for a

Neutral Employment Policy Found Discriminatory Under

Title VII, 47 So. Calif. L. Rev. 585, 586-9 (1974) [herein-

after Height Standards]. That certain government entities,

including the Wisconsin highway patrol, the Pennsylvania state

police (2 CCH Empl. Prac. Guide {5177 [1973]) and the

Law Enforcement Assistance Administration (33 Fed. Reg.

6415 [March 9, 1973]), no longer utilize or favor height

requirements cannot rebutt the nearly universal use of height

_ Ar66

[8 }) Smith v. Troyan, et al. Nos. 73-2226-27

requirements in hiring police. Such widespread use, of course,

does not compel a finding of constitutionality, but “is plainly

worth considering” in determining the “rationality” and con-

stitutionality of height requirements. Manning v. Rose, 507

F.2d 889, 892 (6th Cir. 1974), quoting Leland v. Oregon, 343

U.S. 790, 798 (1952).

Moreover, at least three East Cleveland Police officials testi-

fied uncontradictedly and adamantly to the need for the height

requirement. The chief of detectives, with twenty-six years’

police experience, testified to the psychological advantage of

a taller officer; a shift commander, with over seventeen years’

experience, testified to the advantage of height in effecting

arrests and emergency aid; and, the police chief testified

similarly. Though plaintiffs expert witnesses discounted the

importance of height and though the district court accepted

that discounting, 363 F. Supp. at 1140-4, noteworthily, no

expert had police experience.

The district court also discounted certain “functions claimed

to be related to height and weight [because those functions]

actually took only a small portion of the average patrolman’s

time and .. . [because] traffic-related matters accounted for

more than three-quarters of the patrolman’s working time.”

That an occupational function consumes a de minimis pro-

portion of one’s workday, however, does not necessarily dimin-

ish the need for selecting one who can best perform that

function. A lifeguard may well spend all but fifteen minutes

of an entire summer observing swimmers and keeping the

beach free of litter, but in those fifteen minutes swimming

ability to rescue a drowning swimmer becomes vitally crucial.

See Height Standards, supra, at 611.

Even if plaintiffs experts were correct, and even if modern

police practices discount the importance of height, there would

still be “rational support” for the height requirement. The

equal protection clause requires nothing greater than “rational

support.” As Mr. Justice Stewart has written,

“A267

Nos. 73-2226-27 Smith v. Troyan, et al. [ 9]

“(The Fourteenth Amendment no longer gives courts]

power to strike down state laws ‘because they may be

unwise, improvident, or out of harmony with a particular

school of thought.’ That era long ago passed into history.”

Dandridge v. Williams, 397 U.S. 471, 484-85 (1970)

(citations omitted).

WEIGHT REQUIREMENT

East Cleveland Administrative Code § 123.07(c) authorizes

the Director of Health to establish physical standards for

police applicants. In their appellate brief, defendants admit

that “[a]s a matter of custom, East Cleveland has followed

certain weight ‘guidelines’ or ‘ranges’ to judge the fitness of

an applicant.” See 363 F. Supp. at 1136 n.3. The 150-pound

minimum weight requirement disqualifies approximately 80%

of the women, but only 26% of the men, meeting the height

requirement.”

Despite a thorough review of the record, we can find no

rational support for the weight requirement.* Defendants’

brief asserts that the weight requirement was designed “to

judge the fitness of an applicant.” But plaintiff's expert witness

uncontradictedly testified that weight, in itself, is, at best, a

poor predictor of fitness; he testified that body composition —

the relationship between muscle and body fat — is much

better, and that body composition can be determined quite

simply. Moreover, the weight requirement is neither rationally

7? The height requirement disqualifies approximately 95 per cent of

the women. The weight oy disqualifies an additional four

per cent. Thus, it disqualifies 80 per cent of the women meeting

the height requirement. The height requirement disqualifies ap-

proximately 45 per cent of the men. The weight requirement dis-

qualifies an additional 14 per cent, or just over 26 per cent of the

men meeting the height requirement.

8 Neither can we find indirect “rational support” for the weight,

unlike the height, requirement in widespread use of such weight

requirements. e record is silent concerning whether such weight

ae oe a are near-universal, widespread, or even unique to t

eve '

A-68

[10 } Smith v. Troyan, et al. Nos. 73-2226-27

related to physical strength nor to psychological advantage.

East Cleveland utilizes other tests? to determine strength, and

plaintiff's expert denied a correlation between strength and

weight. Most of the police officials’ testimony concerning

psychological advantage was confined to height, and in any

event a police officer’s clothing would make it difficult for the

potential police assaulter to differentiate closely concerning a

police officer’s weight. The assaulter could hardly tell whether

a fully clothed police officer weighs 145, or 155, pounds, even

assuming that if he could such knowledge would be relevant

in his decision as to whether to assault an officer or not.

AGCT — RACE

Defendants claim that the district court erred in invalidating

the AGCT for its racially disparate impact because the “total

examination process” has no such impact. Defendants claim

that the difference between the 33% of black applicants and

the 29% of black police hires (seven of twenty-four from

1969-73) is insufficient to require defendants to justify the

AGCT as job-related. Even if defendants had the burden of

justifying the AGCT, they argue that the use of the test would

be permissible as being job-related.

Without reaching the question of the AGCT’s job-related-

ness, or lack thereof, we hold that plaintiff has failed to dem-

onstrate prima facie that the test is unlawfully discriminatory.

Though general ability, or intelligence, tests have often been

invalidated for their racially disproportionate impacts, see,

e.g., Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d 1017

(1st Cir. 1974), Bridgeport Guardians, Inc. v. Bridgeport Civil

Serv. Comm'n, 482 F.2d 1333 (2d Cir. 1973), Walston v.

County School Bd., 492 F.2d 919 (4th Cir. 1974), Baker v.

Columbus Municipal Separate School Dist., 462 F.2d 1112

(5th Cir. 1972), Carter v. Gallagher, 452 F.2d 315 (8th Cir.

1971), cert. denied, 406 U.S. 950 (1972), Davis v. Washington,

% The athletic, or a fitness, test consists of kneebends, push-

ups, sit-ups, and side-hops.

A-69

Nos. 73-2226-27 Smith v. Troyan, et al. [11]

512 F2d 956 (D.C. Cir. 1975), the disproportionate

impacts have been in the hiring, rather than in the

test results in and of themselves. See, e.g., Davis, supra, at 961

n. 32 (blacks 72% of applicants taking test, but only 55% of

new police officers); Vulcan Society v. Civil Serv. Comm'n,

490 F.2d 387, 392 (2d Cir. 1973) (blacks and Hispanics 11.5%

of applicants, -but less than 5% of those with more than “a

marginal chance” of appointment); Arnold v. Ballard, 9 CCH

Empl. Prac. Dec. { 9921 (N.D. Ohio, 1975) (blacks more than

13% of applicants, but less than 4% of appointed officers);

Kirkland v. New York State Dep't of Correctional Services,

374 F. Supp. 1361 (S.D.N.Y. 1974) (blacks and Hispanics

8.1% of those taking test, but only 1.3% of those “likely to be”

promoted); Commonwealth v. O'Neill, 348 F. Supp. 1084,

1087-89 (E.D. Pa. 1972), modified, 473 F.2d 1029 (3rd Cir.

1973) (blacks approximately 35% of applicants, but only 27.5%,

25.3%, 15.3%, 11.2%, and 7.7% of new police hires from 1966-70).

The Second Circuit has observed that,

“[w]here the plaintiffs have established that the disparity

between the hiring of Whites and minorities is of suffi-

cient magnitude, then there is a heavy burden on the

defendant to establish that the examination creating the

discrimination bears a demonstrable relationship to suc-

cessful performance of the jobs for which they were

used ... .” Bridgeport Guardians, supra, 482 F.2d at

1337.

Similarly, Kirkland, supra, rejected defendants’ attempt to

fragment the examination process to show no racially disparate

impact.

“Any . . . approach [other than scrutinizing the over-

all examination procedure] conflicts with the dictates

of common sense. Achieving at least a passing score on

the examination in its entirety determines eligibility for

appointment, regardless of performance on individual

sub-tests. Accordingly, plaintiffs’ case stands or falls on

comparative pass rates alone.” 374 F. Supp. at 1370.

A-70

12] Smith v. Troyan, et al. Nos. 73-2226-27

That blacks fare less well than whites on the AGCT, a “sub-

test” in the process of hiring East Cleveland police officers, is

insufficient in itself to require defendants to justify the AGCT

as being job-related. Carried to its logical extreme, such a

criterion would require the elimination of individual questions

marked by poorer performance by a racial group, on the

ground that such a question was a “subtest” of the “subtest.”

AGCT-SEX

Plaintiff cross-appeals that the district court erred in refusing

to find that she had established prima facie that the AGCT

unconstitutionally discriminates against women. We hold

that the district court properly refused to find prima facie

discrimination because of the only two women who have

taken the AGCT in applying for the East Cleveland police

one fared better than the national norm, one lower; and

because testing and psychological data, though perhaps fore-

casting that women wiil fare less well on the AGCT than

men, is far from being “uncontroverted testimony” that

women will fare less well. Boston Chapter, NAACP vy. Beech-

er, 504 F.2d 1017, 1021 (1st Cir.), affg 371 F. Supp. 507 (D.

Mass. 1974); Bridgeport Guardians, Inc. v. Bridgeport Civil

Serv. Comm'n, 482 F.2d 1333, 1338-39 (2d Cir. 1973); Castro

v. Beecher, 459 F.2d 725, 734 (lst Cir. 1972); Officers for

Justice v. Civil Serv. Comm'n, 371 F. Supp. 1328, 1333-34

(N.D. Cal. 1973). Rather than being “uncontroverted” that

women will fare less well, defendants’ expert testified that

black women will fare better than black men on “test{s] of

aptitude, intellectual aptiiude.”

ATTORNEY'S FEES

Especially considering our view of the merits, we find no

abuse of discretion in the district court’s denial of attorney's

fees.

Reversed in part; affirmed in part.

A-71 |

Opinion of Court of Appeals Denying

Motion for Rehearing

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ELIZABETH A. SMITH, On behalf of herself

and all others similarly situated

Plaintiff-Appellee

ROBERT TROYAN, REGINALD GOWER,

JAMES RITCHIE and JAMES BARRETT

Defendants-Appellants

ELIZABETH A. SMITH, On behalf of herself

and all others similarly situated

Plaintiff-Cross-Appellant

CITY OF EAST CLEVELAND, ETAL.

Defendant-Cross-Appellees

Before: WEICK, CELEBREZZE and PECK,

Circuit Judges.

A-72

Opinion of Court of Appeals Denying Motion

for Rehearing

Plaintiff-appellee's petition for rehearing

having come on to be considered and of the

judges of this Court who are in regular active

service less than a majority having favored

ordering consideration en banc, the petition

has been referred to the panel which heard

the appeal, and it further appearing that the

petition for rehearing is without merit,

IT IS ORDERED that the petition be, and

it hereby is denied.

ENTERED BY ORDER OF THE COURT

(signed) John P. Hehman

Clerk

Filed: August 21, 1975

A-73

CERTIFICATE OF SERVICE

Three copies each of the Petition for

a Writ of Certiorari and Appendix have been

hand-delivered this th day of November,

1975, to Charles T. Riehl, Esq., 1215

Terminal Tower, Cleveland, Ohio 44113

and Henry B. Fischer, Esq., Williamson

Building, Cleveland, Ohio 44113, Attorneys

for Defendants- Respondents.

Jane M. Picker

Attorney for Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.