# Petition — Brabant v. City of Seattle > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0425%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 429 U.S. 886 ## Text eK Supreme Court, v. &. FILED AUG 9 1976 IN THE SUPREME COURT OF THE UNITED seg ee ae October Term, 1976 No. 76-1 96 MICHAEL E. LINDSAY, RON WATSON and DAVID L. DAY, Plaintiffs, Ve WESLEY BRABANT, Plaintiff-Petitioner, V. THE CITY OF SEATTLE, ALLEN W. MONROE, DONALD D. HALEY, ROBERT E. McGETTY CIVIL SERVICE COMMISSIONER, Defendants-Respondents, ROBERT L. GREEN and the UNITED CONSTRUCTION WORKERS ASSOCIATION, Defendants in Intervention. PETITION FOR WRIT OF CERTIORARI CHARLES R. LONERGAN, JR. and PATRICK W. CROWLEY Counsel for Petitioner Of Counsel: SIDERIUS, LONERGAN & CROWLEY 847 Logan Building Seattle, WAshington 98101 CRAFTSMAN &@ MET PRESS SEATTLE. WASHINGTON EO OT en SUBJECT INDEX Report of Opinion Below ..... . Jurisdiction ...«+s«-e«esee ee Questions Presented for Review .. Constitutional Provision .... Statute Involved ......e.2-s Seattle's City Charter Provision Civil Service Rule ....... Statement of the Case ....... Reasons Why Writ Should be Granted Appendices: AppenGig A «se cece eevee Repenein B wt te eee ee eee Appendix C Repenegas © .ccseeaecsetsee E Appendix rt) * . 7 . 7 . . . Appendix >) Appendix TABLES OF AUTHORITY Table of Cases Anderson v. San Francisco Unified chool Dist., F. Supp. (N.D. Giles 1972) . ° . - . ° . 7 . . nN oc" uw 4) Ww N N ~ * 14 . one ii Page Brown v. Board of Education, 347 U.S. - 4) _ * . > . a. a. > 7 — — _ . - Defunis v. Odegaard, 82 Wn.2d ll, 507 P.2d. ° . . © . . . . . . ~11,12,13 Franks v. Bowman Transportation Companys 44 L.W. 4356, 4363 - Fraternal Order of Police v. City Of Dayton, hio App. ’ Ten Gebewe Bee tiOvaer «+ « « 6 6 6 6 ebt Griggs v. Duke Power Co., 401 U.S. 424 (1971). - . 2 . 7 7 . . . . . . 16 Jackson v. Poston, 40 A.D.2d 19, 337 N.Y.S. 2d 108 (1972). . . « « « «17 Weber v. Kaiser Aluminum, 45 L.W. ‘2018 (U.S.D.C. E.ba., 19 _) « « « « od? Constitutional Provisions U.S. Const. Amen. XIV 7.“ 2©« #« .2,374,9,10 Statutes 28 usc S 1257(3). . . « . . . . . . . . 2 42 USC § 2000e-2(J) . . . « - « « 3,10,18 Other Authority Presidential Executive Order 11246 * _ * . > . . _ . >. —_ - . 9 Seattle City Charter Article 16, Section 9... .5-6,7,8,17 Seattle Civil Service Commission Civil Service Rule 7.033. ... . 6-7,8, 17,18, 2 Aenea — ee er ere IN THE SUPREME COURT OF THE UNITED STATES October Term, 1976 No. *eeee#e:. MICHAEL E. LINDSAY, RON WATSON and DAVID L. DAY, Plaintiffs, Vv. WESLEY BRABANT, Plaintiff-Petitioner, Ve THE CITY OF SEATTLE, ALLEN W. MONROE, DONALD D. HALEY, ROBERT E. McCGETTY CIVIL SERVICE COMMISSIONER, Defendants-Respondents, ROBERT L. GREEN and the UNITED CONSTRUCTION WORKERS ASSOCIATION, Defendants in Intervention. PETITION FOR WRIT OF CERTIORARI REPORT OF OPINION BELOW The opinion of the Supreme Court of the State of Washington, the highest court in Washington State jurisdiction, is officially reported in 86 Wn.2d 698, 3948 P.2d 320, and a copy of this opinion | / a 2 is reproduced in the Appendix to this petition as Appendix A. The remittitur from the Supreme Court returned the case to the Superior Court for the State of Washington in and for the County of King, and provided that the written opinion became the final judgment of the court on May 11, 1976. The opinion of the Supreme Court upheld the ruling of the trial judge. A copy of the trial court's deci- sion is attached hereto as Appendix B. JURISDICTION This petitioner seeks review of the final decision of the Washington State Supreme Court pursuant to 28 USC 1257(3), by Writ of Certiorari. Re The following questions are presented by this petition: a. Whether the 14th Amendment of the United States Constitution pro- hibiting states from denying persons 3 within their jurisdiction the equal protection of laws or the deprivation of life, liberty and property without due process of law is violated by a rule of the Seattle Civil Service Commission giving a preference solely on the basis of race to certain minority persons to the detriment of non-minorities in competition for promotion within the Seattle Civil Service System. b. Whether a rule of the Seattle Civil Service Commission which grants a preference solely on the basis of race to minority persons violates 42 USC § 2000e-2(J) which provides that nothing in Title VII of the Civil Rights Law shall be interpreted to require preferential treatment to remedy racial, sexual or other imbalance in a work force. Constitutional Provision 14th Amendment Section l. All persons born Or naturalized in the United AEE EE 4 States, and subject to the juris- diction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Statute Involved 42 USC 2000e-2(J) Nothing contained in this sub- chapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex Or national origin of such indi- vidual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employ- ment by any employment agency Or labor organization, admitted to membership or classified by a labor organization, or admitted to, or employed in, any apprentice- ship or other training program, in comparison with the total number Or percentage of persons of such race, color, religion, sex, or 5 national origin in any community, State, section, or other area, or in the available work force in any community, State, section, Or other area. Seattle's City Charter Provision Article XVI Section 9. The head of the department or office in which the office classified under this article is to be filled shall notify the commission of any vacancy, and the commission shall certify to the appointing officer the names and addresses, together with the notation of military, naval or marine service, if any, of such number of candidates, not less than five if there shall be so many eligible, standing first upon the register for the class or grade to which such position belongs as shall be equal to twenty-five percent of the total number of candidates on said register. The appointing officer shall notify the commission sepa- rately of each position to be filled, and shall fill such places by appointment from the persons certified to him by the commission therefor, which appointment shall be on probation for a period of twelve months, except for firemen where such period shall be six months. To facilitate the selec- tion of appointees from the persons so certified, the appointing officer may require such persons to come before him, and shall be entitled to inspect such persons' examination papers, and may fill Civil 6 such positions by appointment from the persons so certified without regard to their order of certifi- cation, subject to the preference herein providea for. The commis- sion may strike off the names of candidates from the register after they have remained thereon for a time to be limited by rule. Before the expiration of the period of probation, the head of the department or office in which a candidate is employed may, by and with the consent of the commission, discharge him upon assigning in writing his reasons therefor to the commission. If he is not then discharged, his appointment shall be deemed complete. To prevent the stoppage of public business, or to meet extraordinary exigencies, the head of any depart- ment may, with the approval of the commission, make temporary appoint- ments to remain in force not exceeding sixty days, and only until regular appointments under the provisions of this article can be made. Service Rule 7.03(}) Where a certification of eli- gibles other than in the normal order is requested in writing by the appointing authority as being necessary to implement the Affirma- tive Action Program of the City of Seattle by achieving ratios of minority, female or handicapped employees in all classifications of city employment approximately equal to the ratios of these a Ct a Ri 7 same groups in the Seattle com- munity, and the Secretary deter- mines that the reasons given fully justify the request, a certifica- tion may be made of only the highest ranking eligibles of the particular race, creed, color, national origin or sex or the highest ranking handicapped eli- gibles, as designated in the request. STATEMENT OF THE CASE The City of Seattle maintains a System of Civil Service for municipal employment which is governed by the Seattle City Charter. Article 16, Section 9 of the Charter establishes a merit System by which eligible candidates are selected for municipal employment. A municipal official is required by this Section of the Charter to hire from the top 25% of those who passed the Civil Service Examination or, at least, from the top five candidates examined, whichever number is greater. This City Charter provision governed municipal employment selection until 8 August 20, 1971 when the Seattle Civil Service Commission adopted Rule 7.03}. Civil Service Rule 7.033 changed the previously established hiring policies of the City with respect, to merit hiring in an effort to achieve a more desirable minority employment ratio. Rule 7.03j permits the hiring and promotion of municipal employees who have passed a Civil Service Examination solely on the basis of race, creed, color, national origin or sex without regard to their scores on the examinations. The petitioner, Wesley M. Brabant, was passed over for promotion even though he had scored within the top 25% of those taking the Civil Service Examination, in favor of Emeliano Ponce, who took and passed a promotional examination, but who also was below the percentile established by Article 16, Section 9 of the Seattle City Charter. The petitioner thus inter- vened in a pending lawsuit in the King ’ County Superior Court with other plain- tiffs in order to protect his rights established by the Seattle City Charter and the United States Constitution. The other plaintiffs in that action were dismissed and the petitioner's case went to trial upon agreed facts resulting in an adverse decision by the trial court. In his original complaint (Appendix Cc hereto), petitioner alleged that his constitutional rights were violated by the conduct of the City. In its Answer (Appendix D hereto), the City of Seattle alleged that its change in Civil Service policy was mandated by the 14th Amendment to the United States Constitution and the Civil Rights Act of 1964, as well as Presidential Executive Order 11246. A constitutional argument was made in the affidavit of Thomas F. Hanley, Secretary of the Civil Service Commission of the City of Seattle (Appendix E hereto). Robert L. Green and the United 10 Construction Workers Association were allowed to intervene in the action as defendants. In the Answer of said inter- venors, the constitutional issue was raised and the court was asked to deter- mine the constitutional rights of the intervenors in addition to their rights under the Civil Rights Act of 1964, 42 USC 2000e, et seq. (Appendix F). All of the constitutional implications of affirmative action taken pursuant to the 1964 Civil Rights Act were raised and argued to the trial court. A "Statement of Stipulated Facts and Issues of Law" is attached as Appendix G. The Washington State Supreme Court, although it answered the 14th Amendment arguments of petitioner, gave indication that it did not feel as though that answer necessariy had to be given. The Supreme Court stated that since the parties had submitted an agreed statement ~. of stipulated facts and issues of law to the trial court in which they agreed that "There is no constitutional question of egual protection of the laws and due process presented", that the Supreme Court need not consider such an issue (see Appendix A). The Supreme Court missed the entire point of the agreed stipulation upon which this case was originally submitted to the trial court. The Supreme Court quoted the stipulation out of context. The true stipulation was worded as follows: "The parties agree that there is no constitutional question of equal Protection of the laws and due process presented, the same having been disposed of in Defunis v. Odegaard, 82 Wn.2d 11" (Emphasis supplied; see Appendix G). This is not a true stipulation of any factual material and was never intended by the litigants to be such. The stipulation in its terms purports to be a waiver of constitutional arguments on both sides of 12 this question and the respondents herein at no stage of these proceedings have ever ceased to raise constitutional issues involving equal protection and due process. Neither has petitioner waived his right to his full constitutional protection. Moreover, the parties to this action were not attempting to stipulate what the constitutional law of the United States shall be. The stipulation by its very terms merely acknowledges for purposes of the trial court's decision, the fact of life in this jurisdiction that we are a DeFunis state. 82 Wn.2d 11, 507 P.2d 1169 (1973). Nothing more was intended nor did the trial court consider the stipulation to go beyond this basic acknowledgment. In fact, the trial court's decision itself clearly shows that the constitutional implications of this case were primary considerations in 13 reaching his decision where in his order he ruled: The court concluded from the records and files and argument that: l. Under Amendment 14 of the United States Constitution and § VII of the Civil Rights Act of 1964, as amended (42 USCA §§ 2000e, et seq.), and Executive Order 11246, as amended, the City of Seattle has a legal duty to take affirmative action to eliminate the effects of past racial discrimina- tion in the City employees selec- tion processes and to prevent such racial discrimination from occur- ring in the future. In any event, our Washington State Supreme Court did, in fact, reach the constitutional issue and thus the language indicating a waiver of constitutional rights by petitioner is purely dicta in the Washington Supreme Court decision. Therefore, the constitutional issue is appropriately before this court for review. 14 REASONS WHY WRIT SHOULD BE GRANTED This case presents to the court a clear instance where a preference was granted to a minority employee and a right denied another not of a minority race where no specific discrimination had actually been proven to occur. Therefore, this case is truly a case of reverse discrimination. The uncertainty of the law in this area legitimately calls for national clarification by this court. The opinion of the Washington State Supreme Court below assumed that the City of Seattle was guilty of such discrimination as would require petitioner to suffer on behalf of a greater good when, in fact, no such discrimination was either admitted by the City nor proven by any party litigant. The Supreme Court said: That the City's selection process through the Civil Service Examina- tions administered in the past have discriminated against minority applicants is borne out by the record and statistical information. (See Appendix A-8) “15 In fact, however, the only evidence the Supreme Court had to consider was the City's statement contained in their Stipulation of facts: 8. That Seattle's Civil Service Tests have had the effect in some cases of discriminating against minority applicants among those deemed eligible for appointment in accordance with provisions of Charter Article XVI, Section 9, as determined by the results of those examinations; and said results tend to cause the minority applicants to be placed at the iower end of the eligible registers and, therefore, have little or no chance of being employed. See Appendix A-46. Thus the City in effect denies that there has been a general condition of discrimination throughout the Civil Service Examination process, and in addition, refuses to acknowledge that there has been any specific discrimination either in the department in which peti- tioner works or any discrimination against Ponce, the minority applicant, indivi- dually. Thus, the City has not been proven to have discriminatory hiring ae: ee ee 16 patterns in practice; such was required by Franks v. Bowman Transportation Company, 44 L.W. 4356, 4363 (1976). In the absence of evidence of a specific discriminatory hiring policy, the court, therefore, approved an affirmative action program that was inappropriate under the circum- stances and violative of the constitu- tional rights of petitioner. Griggs v. Duke Power Co., 401 U.S. 424 (1971). The Supreme Court has stated that reverse discrimination is illegal under the Civil Rights Act of 1964: In short, the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minor- ity group. Discriminatory prefer- ence for any group, minority or majority, is precisely and only what Congress had proscribed. Griggs v. Duke Power Co., 401 U.S. 424, 430 (1971). When actually attempted, reverse discrimination has been ruled illegal. .* Weber v. Kaiser Aluminum, 45 L.W. 2018 (U.S.D.C. E.La., 19 _); Anderson v. San Francisco Unified School Dist., 357 F. Supp. 248 (N.D. Cal., 1972); Fraternal Order of Police v. City of Dayton, 35 Ohio App. 2d 196, 301 N.E.2d 269 (1973); Jackson v. Poston, 40 A.D.2d 19, 337 N.Y¥.S. 2d 108 (1972). Civil Service Rule 7.03j attempts by preferential treatment to the “highest ranking” eligibles of the particular race, creed, color, national origin or sex or the “highest ranking” handicapped eli- gibles to bring all minorities into a desirable ratio with the Seattle Commun- ity. The noble effort, however, makes shambles of the City Charter Provision, Article 16, Section 9, and is an inappro- priate response to non-specific disparate discrimination as was established in the case by the evidence. Title VII permits the court to order such "affirmative 18 action" as may be appropriate in order to remedy intentional discrimination (42 - U.S.C. § 2000e 5(G)). However, it does not mandate, nor does the 14th Amendment of the United States Constitution require, the reverse discrimination preferences as required by Civil Service Rule 7.033. The Supreme Court opinion is very candid in its reasoning, wherein it equates the preference granted Mr. Ponce in this case to a veterans’ preference in public employment and the overtime parking privilege offered the physically handi- capped (See Appendix A-12, 13). However, a preference based on military service or physical infirmity is not relevant to a discussion of preferences based on race. Racial preferences have no constitutional basis for their justification and have been found violative of the equal protec- tion clause of the 14th Amendment. Brown v. Board of Education, 347 U.S. 483 (1954). . This case presents issues which should be decided by this court. The federal questions involved are extremely important because they totally destroy the merit concept of Civil Service employment in municipal government and affect a substantial body of the public. Respectfully submitted, CHARLES R. LONERGAN,JR. PATRICK W. CROWLEY Counsel for Petitioner pe ae APPENDIX A [No. 43750. En Banc. MICHAEL E. LINDSAY, ET AL, Plaintiffs, WESLEY BRABANT, Appellant, v. THE CITY OF SEATTLE, ET AL, Respondents. [1] Civil Rights - Public Employment - Discrim- ination - Determination. A court may determine whether public employment prac- tices violate the equal protection rights of minority applicants by applying the test imposed by title 7 of the Civil Rights Act of 1964, i.e., whether they deprive or tend to deprive such persons of employment opportunities or adversely affect their status as employees on the basis of race or national origin. Discrimination may be inferred from statistics which demonstrate a substantially disproportionate level of minority representation in public employment. (2] Civil Rights - Affirmative Action - Neces- sity - Public Employment. Title 7 of the Civil Rights Act of 1964 mandates an affirma- tive action program for persons of minority background in public employment when neces- sary to eliminate the continuing effects of past discrimination, whether or not current practices are discriminatory. The need and justification for affirmative action are eliminated when minority representation in public employment fairly approximates minority representation in the population of the area; statistical perfection is not required. [3] Civil Service = Discrimination - Federal Supremacy ~- Local Laws. Under the supremacy clause (U.S. Const. art. 6, cl. 2), federal legislation relating to discrimination in public employment is controlling over conflicting state or local enactments rela- ting to selection of public employees. A-2 [4] Appeal and Error = Review - Issues Not Raised in Trial Court - In General. An appellate court will not pass upon issues which were not presented to the trial court. ([5] Administrative Law and Procedure - Delega- tion of Powers - Constitutional Requisites. A delegation of legislative power is consti- tutionally permissible when it provides standards which indicate what is to be done and the administrative body which is to do it, and there are procedural safeguards against arbitrary administrative action and abuse of discretionary power. [6] Civil Rights - Affirmative Action - Public Employment - Use of Goals - Validity. The use of goals in implementing an affirma- tive action program in public employment is constitutionally permissible. A goal, unlike an absolute quote or preference, is a realistic numerical objective which is based on expected job vacancies and qualified applicants available and which does not require displacement of existing employees, creation of unneeded positions, or the hiring of unqualified persons. [7] Administrative Law and Procedure - Admini- strative Rules - Validity - Determination. Rules adopted by an administrative agency pursuant to a specific legislative delega- tion of such authority are presumed to be valid; a person who asserts their invalidity has the burden of proving that the agency abused its discretion in adopting the rules in question. Appeal from judgment of the Superior Court for King County, No. 757364, Solie M. Ringold, J., entered October 5, 1973. Affirmed. Action challenging a civil service affirma- tive action program. One of the plaintiffs appeals from a summary judgment in favor of the defendants. “Ri A-3 - Lonergan, Jr. (of Siderius, Loner- gan & 2 ai, for appellant. John P. Harris, Corporation Counsel, and Gordon F. Crandall, Assistant, for respondents City of Seattle, et al. James E. Fearn, Jr., and Peter Greenfield of Legal Services Center (Seattle), for re- spondents Green, et al. This opinion was prepared by Justice Robert C. Finley before his death. It is adopted by the undersigned Justices as the opinion of this Court. A-4 IN THE SUPREME COURT OF THE STATE OF WASHINGTON MICHAEL E. LINDSAY, RON WATSON and DAVID L. DAY, Plaintiffs, WESLEY BRABANT, No. 43750 Appellant, EN BANC Ve ) ) ) ) ) ) ) ) ) ) THE CITY OF SEATTLE; ALLAN ) W. MUNRO, DONALD D. HALEY, ) ROBERT E. McGINTY, CIVIL ) SERVICE COMMISSIONERS, ) ) Respondents, ) ) ) ) ) ) ) ) ) ) ) ) ROBERT L. GREEN; and UNITED CONSTRUCTION WORKERS ASSOCIATION, Respondents, EMELIANO PONCE, Respondent. Filed Apr 8 1976 The central issue raised in this case is whether the City of Seattle may adopt a system or program for the employment of civil service workers that gives special employment preference or priority as to jobs to certain qualified individuals solely because they are members of minority groups. Wesley Brabant, a civil service employee with the City of Seattle, was passed over for possible promotion to a foreman’s position in the engineering department. Instead, Emeliano Ponce, a Spanish surnamed minority eligible, was chosen to fill the vacancy to further the A-5 goals of the City’s "affirmative action program," which was designed to correct preexisting dis- crimination and to equalize employment opportun- ities in the City’s civil service. Brabant brought suit against the City, alleging his entitlement to promotion to the position which had been given to Emeliano Ponce. The trial court granted defendant’s motion for a summary judgment and Brabant has appealed. Brabant contends the trial court erred in denying him relief because (1) selective certification under Rule 7.03(j), Seattle Civil Service Laws and Rules, violates the express provisions of article 16, section 9, of the City charter; (2) the selective certification violates the fourteenth amendment to the United States Constitution and Const. art. 1, sec. 3; (3) the Commission lacks the authority to delegate to its secretary the discretionary power to certify eligible candidates for appointment; and (4) the City’s affirmative action program goes beyond existing federal or state requirements. we disagree and affirm the trial court. The parties have agreed and stipulated as to the facts, which we recap as follows: On August 25, 1972, the Mayor of Seattle issued an executive order establishing an affirmative action program. The goal of the program was "to increase the number of underrepresented persons employed by the City to correspond with their statistical composition within the available working force of the population” of Seattle. The City passed an ordinance, approved by the Mayor on October 27, 1972, that provided for implementation of the affirmative action program "to achieve equality of City employment opportunities for members of minority races. Under the ordinance, all City departments were required to estabish and maintain effective affirmative action programs until the effects of inequality of employment opportunities were eliminated. The Seattle engineering depart- ment, on June 21, 1972, promulgated a departmental policy statement that established as the goal of A-6 that department the achievement of ratios of minority employment “comparabl< to the ratios of . . + minorities in the Seattle Community." The department adopted as an emergency measure during the years 1972-74 a rule that "the first of every three vacancies resulting from retirement or termination in under-represented classes will be filled with appropriate minorities." Article 16, section 9, of the Seattle City Charter established the method by which the Civil Service Commission shall certify available elig- ible candidates to a department head for possible employment by the City. Specifically, it provides that, if the head of a department notifies the Commission of a vacancy in an office classified under article 16, the Commission is required to certify to the appointing authority the top five eligible candidates who have successfully passed the civil service examination and are available. In the alternative, the Commission is required to certify the top 25 percent of the available and eligible candidates on the register if that number is more than the top five. As a result of the emphasis placed on af- firmative action in public employment and the City’s awareness that its employee selection procedures had discriminated against minorities, the Commission adopted a special certification procedure to further the goals of affirmative action. Rule 7.03(4) allows selective certifi- cation of "only the highest ranking eligibles” of a particular minority when necessary to implement the affirmative action program. A selective certification of a minority eligible must be requested by the department head, approved by the secretary of the Commission, and by the director of the City’s Department of Human Rights. The plaintiff Brabant, a nonminority elig- ible, took the City’s civil service examination for the position of signal electrician foreman in 1969 and was placed on the promotional register of eligibles fourth from the top with a grade of A-7 88.58. In 1970, Brabant was appointed to an intermittent vacancy in the engineering department to serve as relief foreman when a regular foreman was on vacation or sick leave. Emeliano Ponce, a minority applicant, also took and passed the promotional examination in 1969 and was placed on the register of eligibles eighth from the top with a grade of 81.83. In 1972, he also was appointed to an intermittent vacancy in the engineering department to serve as a relief foreman. On January 31, 1973, the engineering depart- ment requested a selective certification to fill a vacancy of signal electrician foreman. The request for selective certification was approved, and Ponce, who was not among the top five on the eligible register at the time, was appointed by the engineering department to fill the vacancy on March l, 1973. The City is an "employer" under Title 7 of the Civil Rights Act of 1964, as amended, 42 U.S.C. sec. 2000e, et seq., and is subject to its provisions. Section 2000e-2(a)(2) of the act provides that it is an unlawful employment prac- tice for an employer to limit, segregate, or classify his employees Or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. Section 2000e-5(g) authorizes courts to “order such affirmative action as may be appropriate" to remedy the effects of unlawful employment prac- tices. Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974). Congress enacted Title 7 of the Civil Rights A-8 Act of 1964 to assure equality of employment opportun- ities by eliminating those practices and devices that discriminate on the basis of race, color, religion, sex, or national origin. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 800 (1973); Griggs v. Duke Power Co., 401 U.S. 424, 429-430 (1971). Cooperation and voluntary com- pliance were selected as the preferred means for achieving this goal. Alexander v. Gardner-Denver Co., supra at 44. Accord: Associated General Contractors of Mass., Inc., v. Altshuler, 490 F.2d 9, 15 (lst Cir. 1973) cert. denied, 416 U.S. 957, __ Le Ed. 2d 94 S. Ct. 1971 (1974). The City voluntarily has established a program of affirmative relief and, in an effort to comply with Title 7, has chosen selective certifi- cation of qualified minority applicants as the most efficacious means to eradicate the effects of past discriminatory practices in its emp loyee selection procedure. That the City’s selection processes through the civil service examinations administered in the past have discriminated against minority appli- cants is borne out by the record and statistical information. By affidavit dated September 7, 1973, Thomas F. Hanley, secretary of the Civil Service Commis- sion, stated that the Equal Employment Opportunity Commission has formally charged the City with unlawful employment practices in violation of Title 7 of the 1964 Civil Rights Act, arising in part because it "“administers unvalidated tests which have the effect of eliminating a dispropor- tionate number’" of minority persons. The formal charge attached to the Hanley affidavit also indicates that the City has maintained a seniority system which operates to perpetuate the effects of A-9 past discriminatory practices and procedures. The affidavit further indicates that it will take the City several years to validate all examinations given for positions by the City’s civil service department i.e., to determine whether the examina- tions are designed to measure reliably an in- dividual’s ability or capacity to perform a particular job. On October 20, 1971, the Civil Service Commission, in conjunction with Rule 7.03(4), Seattle Civil Service Laws and Rules, adopted a resolution that the civil service tests have had the effect, in some cases, of discriminating against minority applicants among those deemed eligible for appointment .. . [and that the] results [of the examinations] tend to cause the minority applicants to be placed at the lower end of the eligible registers and therefore have little or no chance of being employed. The parties stipulated to the factual assertions stated in the Civil Service Commission’s resolu- tion. By affidavit dated June 28, 1973, Philip Hayasaka, the City’s director of the Department of Human Rights, stated that in 1969 the City had 10,294 employees, 780 or 7.6 percent of whom were members of minority races. The 1970 census, according to the affidavit, indicated that of the 530,831 persons living in the City, 77,796 or 14.7 percent were minorities. The affiant stated that the following statistics (compiled by the Depart- ment in 1972) were considered by the Department of Human Rights prior to its approval of the use of selective certification in the instant case: (1) of the three signal electrician foremen in the engineering department, no one was of a minority; (2) of the fifty foremen in th engineer- ing department, three or 6 percent were minori- ties; (3) of the 136 unskilled laborers in the A-10 engineering department, fifty or 36.7 percent were minorities; and (4) of the 10,630 persons employed by the City, 1,359 or 12.7 percent were minorities. The statistical information in the record indicates that the employee selection procedures used by the City had, over a period of years, created a substantially disproportionate level of minority representation in public employment. The statistical evidence raises an inference that the racial imbalance is a result of dis~ criminatory examinations and practices. A prima facie case of discrimination based on such evi- dence is established. Rogers v. International Paper Co., 510 F.2d 1340, 1348 (8th Cir. 1975); United States v. Masonry Contractors Ass‘n of Memphis, Inc., 497 F.2d 871, 875 (6th Cir. 1974); Rodriguez v. East Texas Motor Freight, 505 F.2d 40, 55 (Sth Cir. 1974); Carter v. Gallagher, 452 F.2d 315, 323 (8th Cir. 1971), modified on re~ hearing en banc, 452 F.2d 327 (8th Cir.), cert. denied, 406 U.S. 950, 32 L. Ed. 2d 338, 92 S. Ct. 2045 (1972). The test of the validity of employee selec- tion procedures under Title 7 is comparable to the test of their validity over the long run under the Fourteenth Amendment. United States v. Chesterfield County School Dist., 484 F.2d 70, 73 (4th Cir. 1973); see Castro v. Beecher, 459 F.2d 725, 733 (lst Cir. 1972). The test statutorily is defined in 42 U.S.C. sec. 200%e-2(a) (2) which pro- scribes classification of employees "in any way which would deprive or tend to deprive any indi- vidual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race « + + OF na~ tional origin." Thus, in the past, the City’s prior discriminatory examinations and employee selection procedures have violated the cons ti- tutional rights of minority applicants. When state or local officials have deprived a class of individuals of their rights guaranteed by the A-ll equal protection clause of the Fourteenth Amend- ment, the federal courts have 38 not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future. Louisiana v. United States, 380 U.S. 145, 154, 13 L. Ed. 2d 709, 85 S. Ct. 817 (1965); accord - Ct. NAACP ve. Allen, 493 F.2d 614, 617, (Sth Cir. 1974); Carter v- Gallagher, supra at 328. In Griggs v. D Power Co 401 U.S Griggs v. Duke e ° °S. 424, 430, 28 i. Ed. 24 158, 91 8. Ct. 849 (1971), the United States Supreme Court stated: Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to "freeze" the status quo of prior discriminatory employment practices. The effects of past discrimination tend to per- petuate themselves because the resul ting inequali- ties made new employment opportunities less pov ene to minorities. Associated Gen. Con- Factors of Mass., Inc. v. Altshuler, supra at 16; See DeFunis v. Odegaard, 82 Wn.2d 11, 36, 507 P.2d 1169 (1973). Under Title 7, the obligation not te discriminate does not allow indifference to employment procedures outwardly neutral but racially oriented. Opinion of the Attorney General, 115 Cong. Rec. 40024 (1969). Section 2000e-5(g) of the act v the trial court broad equitable powers both ms eliminate the vestiges of past discrimination rn to terminate present discriminatory prac- 5 PT wee) States ve insavorkers Local 86, 443 . : th Cir. 1971), cert. denied 404 U.S. 984, 30 L. Ed. 2d 367, 92 S. Ct. 447 (1971). Transitional affirmative relief authorized by A-12 section 2000e-5(g) of the act to insure that the continuing effects of past discrimination are overcome not infrequently is both appropriate and necessary. NAACP v. Allen, supra at 621; Morrow v. Crisler, 491 F.2d 1053, 1056 (1974); Carter v. Gallagher, supra at 330-31; Castro v. Beecher, supra at 736. The fact that the City voluntarily has sought to achieve equality of employment opportunity in the public sphere rather than by court order does not detract from or lessen the legal validity and necessity of its affirmative action program under Title 7. Voluntary com- pliance, rather than court ordered relief, is the congressionally preferred method of achieving equality of employment opportunity. Selective certification coupled with the engineering department’s policy of filling the first of every three vacancies with a qualified minority candidate is not only appropriate, but also essential to eradicate in the instant case the present effects of past discrimination. Cf. United States v. T.I.M.E.-D.C., Ince, 517 F.2d 299, 319, 320 (Sth Cir. 1975). It is not enough that employment procedures utilized by employers are fair in form. They must be fair in cpera- tion. See Griggs v. Duke Power Co., supra at 431. The ethics of our society would judge people on their ability and their individualized worth. But past discriminatory practices incongruent with those same ethics and with the abstract, idealistic perfection of a color-blind society, envisioned by the Fourteenth Amendment, have left minorities to varying degrees educationally and economically disadvantaged. It may seem somewhat anomalous, at first glance, to aspire to equality by resorting to preference or devices premised upon inequality, namely relief in the form of temporary quotas. Preferences are not alien to this society. It has long been recognized that the need or merit of certain individuals provides a politically and A-13 economically justifiable basis for preferential treatment. Kaplan, Equal Justice in an Unequal World: Equality for the Negro--The Problem of Special Treatment, 61 Nw. U.L. Rev. 363, 364-65 (1966). For example, veterans are given prefer- ence in public employment; the handicapped, quite deservedly, are accorded many advantages, even to the extent of granting overtime parking privileges to some. RCW 46.61.580. ; The thorny problem created by the use of emporary quota relief is that this type o preferential treatment may tend to become oo nently institutionalized. Those minorities who benefit may only reluctantly give up the economic advantage that local, state and federal govern- ments have given them. Nevertheless, the basis and rationale for affirmative relief will dis- appear when the vestiges of past discriminatory effects substantially are eliminated. Morrow v. Crisler, 479 F.2d 960, 971 (Sth Cir. 1973) (dis- senting opinion); Blumrosen, Quotas, Common Sense, and Law In Labor Relations: Three Dimensions of Equal Opportunity, 27 Rutgers L. Rev. 675, 692 (1974); see Swann v. Charlotte-Mecklenbur Board of Educ., 402 U.S. l, 31-32, 28 L. Ed. 2d 554, 91 S. Ct. 1267 (1971); NAACP v. Allen, supra at 621; Carter v. Gallagher, Supra at 330. Affirmative relief is designed to eliminate discrimination, but statistical perfection is not required. Once a fair approximation of minority representation in city employment consistent with the population mix in the arEa is achieved, affirmative relief is no longer necessary or appropriate. See Swann v. Charlotte-—Mecklenbur Board of Educ., Supra at 31-32; Carter v. Gal- lagher, supra at 330. In the absence of Rule 7.03(4j) (Seattle Civil Service Laws and Rules), article 16, section 9 of the City charter would impair or frustrate the purpose of Title 7 of the 1964 Civil Rights Act. The examinations used by the City to rank applicants for certification, as reflected by the record, have created in the past a substantial A-14 racial imbalance. There is no reason to suppose that these same examinations, until validated or shown to be job-related, will not continue to perpetuate discrimination in the City’s public employment sector. State and local laws cannot stand if they impede, burden or frustrate the purpose of Title 7. See Nash v. Florida Indus. Comm’n, 389 U.S. 235, 240, 19 L. Ed. 2d 438, 88 S. Ct. 362 (1967); Hsieh v. Civil Serv. Comm’n, 79 Wn.2d 529, 536, 488 P.2d 515 (1971). If it were not for the presence of Rule 7.03(4), article 16, section 9 of the City charter would violate the supremacy clause of the United States Constitution (U.S. Const. art. 6, clause 2). We hold that the conflict between article 16, section 9 of the City charter and Rule 7.03(j) of the Seattle Civil Service Laws and Rules is excused because of the overriding provisions of Title 7 of the Civil Rights Act of 1964. Plaintiff next contends that the selective certification made in the instant case is viola- tive of equal protection and due proces guaran- tees. This contention need not be considered. Although the trial court in a judgment entitled "Summary Judgment of Dismissal" stated that under the Fourteenth Amendment the "City of Seattle has a legal duty to take affirmative action," the parties submitted an agreed statement of stipu~ lated facts and issues of law to the trial court in which they agreed that “there is no constitu- tional question of equal protection of the laws and due process presented." It is apparent that the trial court did not consider the issue whether selective certification in the instant case violates the Fourteenth Amendment to the United States Constitution and article 1, section 3 of the Washington State Constitution. Under familiar principles of law, issues not considered by the trial court need not be considered on appeal. Kirkland v. New York State Department of Correctional Services, 520 F.2d 420 (2d Cir. 1975), cited by plaintiff, is distinguishable even if we were to address the issue raised by this _ A-15 contention. There the court reversed a district court order which required the imposition of promotion quotas based upon the results of one civil service examination. The court concluded that the imposition of permanent quotas to eradi- cate the effects of past discriminatory practices was unwarranted because of the "paucity of the proof concerning past discrimination." We are not faced with that situation in the instant case. Plaintiff next contends that the Commission lacks the authority to delegate to the secretary the discretionary power vested in it by article 16, section 9 of the City charter to certify eligible candidates for appointment. In Barry & Barry, Inc. v. Department of Motor Vehicles, 81 Wne2d 155, 159, 500 P.2d 540 (1972), the court held that the delegation of legislative power is justified (1) when it can be shown that the legislature has provided standards which define in general terms what is to be done and the adminis- trative body which is to accomplish it, and (2) when procedural safeguards exist to control arbitrary administrative action and abuse of discretionary power. Article 16, section 4 of the City charter provides that the Commission shall meke "rules to carry out the purposes of this article, and for examinations, appointments, promotions, .. . and for seniority, transfers, demotions and removals." Article 16, section 15, provides that the secretary is to be the chief examiner and is to "perform such other duties as the Commissin may prescribe." Rule 7.03(c)(1) of the Seattle Civil Service Laws and Rules provides: If a vacancy is to be filled from a promotional register, the Secretary shall certify to the appointing authority the names of the five available eligibles or 25% of the total available eligibles, whichever is greater, who stand highest on the appropriate register... A-16 In order to make a selective certification under Rule 7.03(4), a request in writing must be made by the appointing authority to the secretary that selective certification is necessary in order to implement the affirmative action program; and the secretary must determine that the reasons given fully justify the request. Rule 2.05(a) provides that the Commission may on its own motion review or modify any action or decision of the secretary. Rule 2.05(b) also provides that any person adversely affected by any action or decision of the secretary may request the Commis- sion to revise or modify such action or decision. These standards or guidelines carefully define what is to be done by the secretary and that he is vested with the obligation to make the certifi- cations. Finally, procedural safeguards exist which allow either the Commission or the indi- vidual adversely affected by the secretary’s action to review or to request a hearing by the Commission to revise or modify any action or decision. We are convinced that the conditions outlined in the Barry case are met in the instant case and that the challenged delegation of legis- lative power is valia. Plaintiff finally contends that the City’s affirmative action program is overly broad under existing federal or state requirements. It is contended that a joint policy statement issued by the Equal Employment Opportunity Commission, and the Department of Labor’s Office of Federal Contract Compliance does not allow an affirmative action program to subordinate considerations of relative abilities and qualifications . . . to considerations of race, religion, sex or national origin in determining who is to be hired, ... in order to achieve a certain numerical position [because such a program] has the attributes of a quota system which is deemed to be impermissible under the standards set forth. A-17__ Joint Policy Statement, March 23, 1973. The policy statement specifically recognizes that “goals and timetables are in appropriate circumstances a proper means for helping to implement the nation’s commitments to equal employment opportunities through affirmative action programs." A goal is defined to be a realistic numerical objective fixed in relation to the number of expected vacancies and the number of qualified applicants available in the relevant labor pool. A goal, as opposed to an absolute quota or preference, does not subject an employer to sanction. An employer is not expected to displace existing employees or to create unneeded positions to meet his goal. An employer is never required to hire an unqualified applicant. None of the characteristics of an absolute quota or preference is present in the instant case. See Jones, The Bugaboo of Employment Quotas, 1970 Wis. Le. Rev. 341, 378; Comment, Developments in the Law: Employment Discrimination and Title VII of _ the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109, 1301 (1971); cf. Opinion of the Attorney General, 115 Cong. Rec. 44024 (1969); see also Blumrosen, Strangers in Paradise: Griggs v. Duke Power Co. and the Concept of Employment Discrimi- nation, 71 Mich. L. Rev. 59, 102-06 (1972). In fact, several courts have required affirmative hiring relief by public agencies that have engaged in employment practices which have been shown to have a racially discriminatory impact. See, e.g., Morrow v. Crisler, 421 F.2d 1053 (5th Cir. 1974); Vulcan Soc. of New York City Fire Dept., Inc. v. Civil Serv. Comm’n, 490 F.2d 387 (2d Cir. 1973); Bridgeport Guardians, Inc. v. Members of the Bridgeport Civil Serv. Comm'n, 482 F.2d 1333 (2d Cir. 1973); Castro v. Beecher, 459 F.2d 725 (lst Cir. 1972); Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971), modified on rehearing en banc, 452 F.2d 327 (8th Cir.), cert. denied, 406 U.S. 950, 32 Le Ed.2d 338, 92 S. Ct. 2045 (1972). With respect to state guidelines, WAC A-18 162-18-040(2) specifically recognizes that selective certification may be the only effective method for a public employer to implement an affirmative action program. Where the legislature specifically delegates to an administrative agency the power to make rules, there is a presumtpion that such rules are valid, and the burden is upon the person asserting the invalidity to prove that the administrative agency abused its discretion in adopting the rule. Weyerhaeuser Co. v. Department of Ecology, 86 Wn.2d 310, 314, __ pe2d ___ (1976). Plaintiff provides no evidence to support his contention, and we find that it lacks merit. The judgment of the trial court should be affirmed. It is so ordered. WE CONCUR: LAC 162-18-040(2) provides, in part: "The purpose of a corrective employment program is to include persons of the underrepre~ sented protected class into the employment pro- cess; not to exclude others from it. . . . It is permissible to ask for applications of only the underrepresented protected class of persons from a particular source, or at 4 particular time, if other applicants are not excluded from the total hiring process but have access from another source, or are considered at another time.” pe APPENDIX B IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KING COUNTY MICHAEL E. LINDSAY, RON WATSON and DAVID L. DAY, Plaintiffs, WESLEY BRABANT, NO. 757 364 Plaintiff in Intervention, SUMMARY JUDGMENT OF DISMISSAL VS. Copy Received Oct. 1, 1973 CITY OF SEATTLE, ALLAN W. Siderius, Lonergan & MUNRO, DONALD D. HALEY, Crowley SERVICE COMMISSIONERS, Received Oct. 1, 1973 Defendants, Legal Services Center ROBERT L. GREEN and Central Area UNITED CONSTRUCTION Office WORKERS ASSOCIATION, Defendants in Intervention, EMILIANO PONCE, Additional ) ) ) ) ) ) ) ) ) ) ) ) ) ) ROBERT E. McGINTY, CIVIL ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Defendant. ) THIS MATTER came on before the undersigned Judge for hearing on the motions for summary judgment of plaintiff in intervention (13)* and of defendants (36) on September 10, 1973. * Clerk’s sub-number A-20 The complaint of the original plaintiffs (1) was filed on or about September 25, 1972, alleg- ing that their rights to City employment or promotion had been violated by the failure of the City and its Civil Service Commission to certify eligibles for vacancies in accordance with the procedure provided in Article XVI, Section 9 of the Charter of The City of Seattle. Defendants filed their answer (6) on December 19, 1972 denying the essential allegations of the complaint. Thereafter all of the original plaintiffs were employed or promoted by the City, rendering their complaint moot, and the action was dismissed as to them on March 15, 1973 (12). However, plaintiff in intervention’s (Brabant) motion to intervene (8) was granted by agreement (9) and his complaint in inter- vention (10) was filed on or about March 14, 1973, alleging that his rights were violated by the Civil Service Commission’s action in refusing to certify his name for a vacancy of Signal Electrician Foreman and in certifying only one name, that of Emiliano Ponce, to the appointing authority for the position. The certification of only Ponce’s name to the appointing authority, even though he ranked below plaintiff in intervention on the eligible register, was done pursuant to a policy of "selective certification" because Ponce was a member of an underrepresented minority race. Defendants in intervention were allowed to intervene (21) in the matter by agreement of all parties pursuant to motion (17), supported by an answer in intervention (19) and the affidavit of Harley Bird alleging the interest of Robert L. Green in possible city employment through selective certification. Plaintiff moved for summary judgment (13) and noted it for the Motion Calendar for July 29, 1973 (14). The matter was continued by the Court to September 10, 1973, and several pre- trial conferences were held to establish the facts of the case by affidavit or agreement, 0 A-21 and to define and narrow the issues to be re- solved. Emiliano Ponce was ordered named as an additional defendant (25) and served with Summons and complaint. On August 10, 1973 Mr. Ponce filed an acknowledgment of service and a declaration of his intention not to em ploy an attorney in the case (28). On September 10, 1973 the parties sub- mitted an agreed Statement of Stipulated Facts and Issues of Law to the Court (34). The City also filed its motion for summary judgment (36)at the prior suggestion of the Court, and plaintiff and defendants in intervention orally waived the lack of timeliness of said motion. The Court then heard argument of counsel, and in addition to the foregoing considered the following papers filed in the case: Document Title Be cnchl Complaint in Intervention 10 Answer (of City defendants) 6 Answer in Intervention 19 Affidavit of Wesley Brabant in Support of his Motion for Summary Judgment ll Affidavit of Thomas F. Hanley 15 Affidavit of Philip Y. Hayasaka 16 Affidavit of Harley Bird 19 Affidavit of C. R. Lonergan, Jr. 23 Affidavit of John F. Fenton 31 Affidavit of Thomas F. Hanley 29 A=-22 Clerk’s Document Title (Cont“d) Subnumber Affidavit of Thomas F. Hanley 32 Third Affidavit of Thomas F. Hanley 33 Statement of Stipulated Facts and Issues of Law 34 Brief in Support of Motion [of UCWA and Green] to Intervene 18 City’s First Brief on Summary Judgment 22 Memorandum on Motion of Plaintiff for Summary Judgment 24 Memorandum on Motion for Plaintiff Summary Judgment by Defendant in Intervention 27 City’s Second Brief on Summary Judgment 30 Memorandum of Plaintiff in Intervention in Answer to Defendant City, etc. 35 Charter of the City of Seattle -- The Court concluded from the records and files and arguments that: l. Under Amendment 14 of the United States Constitution and Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C.A. secs. 2000(e) et seq.), and Executive Order 11246, as amended, The City of Seattle has a legal duty to take affirmative action to eliminate the effects of past racial discrimination in City emp loyee selection processes and to prevent such racial discrimination from occurring in the future. 2. While Civil Service Commission Rule 7.034 is in apparent conflict with Article XVI, Section 9 of the Charter of The City of Seattle, A-23 said conflict is excused by the overriding pro- visions of federal law referred to in the pre- ceding paragraph. 3. Rule 7.034 does not constitute an illegal delegation of discretionary authority from the Civil Service Commission to its Secretary. 4. That portion of the affirmative action program of the Engineering Department by which the first of every three vacancies created by retirement or resignation will be filled with a minority application who has passed the required civil service examination does not constitute the adoption of a quota system, but is rather a tool to accomplish the legitimate goals of said program within the timetable established to reach such goals. 5. Selective certification is lawful in connection with promotional eligible registers because the opportunities for minorities on promotional registers are probably even more limited than on open competitive eligible regi- sters. 6. The existence of other methods of taking affirmative action to eliminate the effects of past and present discrimination does not preclude the use of selective certification. 7. The fact that the duty to take affirma- tive action was recognized voluntarily by The City of Seattle, rather than being imposed by judicial mandate, is immaterial. 8. The elimination of the effects of past and present discrimination is a legitimate public purpose, and selective certification is a reason- able and effective means of accomplishing such purpose. 9. The City of Seattle has satisfied the burden of shewizg the necessity for taking A-24 affirmative action to eiminate the effects of past and present discrimination in its employees selection processes; and a showing that the City’s civil service tests have had the effect, in some cases, of discriminating against minority applicants among those deemed eligible for appointment in accordance with provisions of charter Article XVI, Section 9, as determined by the results of those examinations, and that said results tend to cause the minority appli- cants to be placed at the lower end of the eligible registers and therefore to have little or no chance of being employed, is sufficient in such connection. Now, Therefore, it is ORDERED, ADJUDGED AND DECREED that plain- tiff’s motion for summary judgment be, and it is hereby denied; and it is FURTHER ORDERED, ADJUDGED AND DECREED that defendants’ motion for summary judgment of dis- missal be, and it is hereby, granted, and the complaint is hereby dismissed with prejudice and without costs to any party. DONE IN OPEN COURT this 5 day of October, 1973. /s/ Ringold JUDGE Presented by: GORDON F. CRANDALL GORDON F. CRANDALL Of Counsel for Defendants Copy received, approved as to form: Ys A-25 APPENDIX C IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KING COUNTY MICHAEL E. LINDSAY, RON ] WATSON and DAVID L. DAY, ] ] Plaintiffs, ] ] WESLEY BRABANT, ] NO. 757 364 ) Plaintiff in ] COMPLAINT IN Intervention, ) INTERVENTION ] v8. ] Copy Received ] Mar. 15, 1973 CITY OF SEATTLE, ALLAN W. ] A.L. Newbould, MUNRO, DONALD D. HALEY, ] Corporation ROBERT E. McGINTY, CIVIL ) Counsel SERVICE COMMISSIONERS, ) ] Filed Defendants, ] °73 Mar 19 PM 3:46 COMES NOW the plaintiff and for cause of action alleges as follows: I. Plaintiff is a resident of Seattle, King County, Washington. II. In response to advertisements issued by the defendant announcing a “promotional” examina- tion for the Civil Service position of signal electrician foreman, plaintiff applied for and took the examination. A copy of said announcement is attached hereto., marked Exhibit "A", and incorporated herein by reference. A-26 III. Thereafter plaintiff was notified that he had passed the examination and his name was placed upon the eligible register for signal electrician foremen. IV. Section 8, Article XVI, Seattle City Charter, requires the defendants to rank candidates who pass Civil Service examinations upon eligible registers for the position examined for, in the order of their excellence, as determined in said examinations. V. At all times herein, Article XVI, Section 9, of the City Charter of the City of Seattle, provides in part as follows: ", « «+ mumber of candidates, not less than five if there shall be so many eligible, standing first upon the register for the class or grade to which such position belongs as shall be equal to twenty-five percent of the total number of candidates on said register." VI. The defendants, in violation of the pro- visions of the City Charter as referred to above, did on or about March lst purport to certify an individual for the position of signal electician foreman the name of Ponce, whose true Christian name is unknown to plaintiff. The defendants refused to certify plaintiff’s name although plaintiff ranked second on the list at the time of said certification. Said Ponce ranked last on said eligible register, and the defendants refused to certify any other names than said Ponce’s for consideration for the appointment to the position. A-27 VII. Plaintiff spent considerable time preparing for said examination and defendants” action in refusing to certify his name was wholly beyond defendants” authority and in violation of the Constitution of the State of Washington and the United States of America in that it discriminated against plaintiff, and further, that actions of said defendants are in violation of the City Charter and the authority confered upon the Civil Service Commissioners of the City of Seattle, and that said actions of the defendants should be nullified and enjoined and the defendants should be required to nullify the appointment of said Ponce made in violation of said provisions. WHEREFORE, plaintiff prays for judgment, declaring the actions of the defendants herein- before referred to to be wholly illegal and of no effect whatsoever, and that the defendants be enjoined from certifying any employees appointed to positions in the Civil Service of the City of Seattle except in the manner prescribed by Article XVI, Section 9, of the City Charter; and that the defendants be required to make proper certifica- tion for the position of signal electrician foreman, and for such other further relief as the Court may deem equitable in the premises. /s/ C.R. Lonergan, Jr. C.R. Lonergan, Jr. STATE OF WASHINGTON] ) ss. County of King ] WESLEY BRABANT, being first duly sworn, upon oath deposes and states: I am the plaintiff in intervention in the foregoing cause; I have read the above complaint, know the contents thereof and believe the same to be true. ls/ Wesley M. Brabant Wesley Brabant A-28 SUBSCRIBED AND SWORN TO before me this 9th _ day of March, 1973. /s/ Helsie I. O’Brien NOTARY PUBLIC in and for the State of Washington, residing at Seattle A-29 APPENDIX D IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KING COUNTY MICHAEL E. LINDSAY, RON WATSON and DAVID L. DAY, Plaintiffs, NO. 757 364 ANSWER VSe Copy Received Dec. 19, 1972 CITY OF SEATTLE, ALLAN W. Siderius, Lonergan & MUNRO, DONALD D. HALEY, Crowley ROBERT E. McGINTY, CIVIL SERVICE COMMISSIONERS, Filed | *72 Dec 19 PM 4:52 Defendants, i Comes now defendaats and for their answer the the Complaint, admit, deny and allege as follows: I. Defendants admit Paragraph I. Il. Defendants admit Paragraph II, except the allegation regarding reliance of which defendants lack sufficient knowledge to form a belief and therefore deny the same. IIl. Defendants admit Paragraph III. IV. Defendants admit Paragraph IV. A-30 V. Defendants admit Paragraph V. VI. Defendants admit Paragraph VI except the allegation that the acts alleged violate the City Charter, which is denied. VII. Defendants deny Paragraph VII. VIII. Defendants deny Paragraph VIII. IX. DEFENDANTS ALLEGE AFFIRMATIVELY that on October 2, 1971 the Civil Service Commission of the City of Seattle adopted the following resolution: "Whereas, civil service tests have had the effect, in some cases, of discriminating against minority applicants among those deemed to be eligible for appointment in accordance with provisions of Charter Article XVI, Section 9, as determined by the results of those examinations, and; "Whereas, said results tend to cause the minority applicants to be placed at the lower end of the eligible registers and therefore to have little or no chance of being employed, and; "Whereas, said results deny these same minorities the equal protection of the laws guaranteed to all persons by the 14th Amend- ment to the Constitution of the United States; A-31_ "Be It Resolved that Rule 7.03 Certifica- tion be amended by adopting a new section j-" "j. Where a certification of eligibles other than in the normal order is requested in writing by the appointing authority as being necesssary to implement the Affirmative Action Program of the City of Seattle by achieving ratios of minority employees in all classifications of city employ- ment approximately equal to the ratios of these same minorities in the Seattle community, and the Secretary determines that the reasons given fully justify the request, a certifi- cation may be made of only the highest ranking eligibles of the particular race, creed, color, national origin or sex designated in the request. Xx. That on August 25, 1972 the Mayor of The City of Seattle issued an executive order establishing an affirmative action program for city employment, which provided in part that - "The goals of this affirmative action program shall be to increase the number of underrep- resented persons employed by the City to correspond with their statistical composition within the available working force of the population of The City of Seattle." and ordered or requested each department of the City to - "Instruct all staff in hiring responsibili- ties that underrepresented persons are to be sought for appointments and that Civil Service selective certification procedures are available for use to this end." A-32 XI. That The City of Seattle is required by the federal Civil Rights Act of 1964, as amended, and by Executive Order 11246, as amended, to take reasonable, affirmative action to remove or overcome the consequences of prior discriminatory practices or usage in order to accomplish the purposes of said Act. WHEREFORE, defendants pray that the complaint be dismissed with prejudice and with costs. DATED this 18 day of December, 1972. _/s/ A. L. Newbould A. Le NEWBOULD, Corporation Counsel /s/ Gordon F. Crandall GORDON F. CRANDALL, Assistant Attorneys for Defendants A-33 APPENDIX E IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KING COUNTY MICHAEL E. LINDSAY, RON WATSON and DAVID L. DAY, Plaintiffs, WESLEY BRABANT, NO. 757 364 Plaintiff in AFFIDAVIT OF Intervention, THOMAS F. HANLEY CITY OF SEATTLE, ALLAN W. MUNRO, DONALD D. HALEY, ROBERT E. McGINTY, CIVIL SERVICE COMMISSIONERS, Filed °73 Jun 26 PM 4:56 meee ee ee ee ee Defendants, STATE OF WASHINGTON ) ) ss. COUNTY OF KING ) THOMAS F. HANLEY, being first duly sworn, on oath deposes and says: That he is the Secretary of the Civil Service Commission of The City of Seattle, and makes this affidavit from his own personal knowledge and information and is competent to testify hereto. That on October 20, 1971, the Civil Service Commission of The City of Seattle adopted the following resolution: "Whereas, civil service tests have had the effect, in some cases, of discriminating against minority applicants among those deemed to be eligible for appointment in A-34 accordance with provisions of Charter Article XVI, Section 9, as determined by the results of those examinations, and; "Whereas, said results tend to cause the minority applicants to be placed at the lower end of the eligible registers and therefore to have little or no chance of being em- ployed, and; "Whereas, said results deny these same minorities the equal protection of the laws guaranteed to all persons by the 14th Amend- ment to the Constitution of the United States; "Be it Resolved that Rule 7.03 Certifica- tion be amended by adopting a new section j- "4. Where a certification of eligibles other than in the normal order is requested in writing by the appointing authority as being necessgsary to implement the Affirmative Action Program of the City of Seattle by achieving ratios of minority employees in all classifications of city employ- ment approximately equal to the ratios of these same minorities in the Seattle community, and the Secretary determines that the reasons given fully justify the request, a certifi- cation may be made of only the highest ranking eligibles of the particular race, creed, color, national origin or sex designated in the request." That on March 4, 1969, the Civil Service Commission advertised a promotional examination for Signal Electrician Foreman. Exhibit "A," attached, is the official advertisement of the examination. Wesley M. Brabant (Brabant) filed an applica- tion, took and passed the exam, and was placed in A-35 the promotional register of eligibles for that class in grade order, fourth from the top. A copy of the register is attached as Exhibit "B". On April 23, 1969, Brabant’s name was certified to the Engineering Department in response to a request for the top five names to fill a vacancy. Another man, Joseph Sherman, was appointed. Brabant was subsequently appointed on April 1, 1970 to an intermittent vacancy in the Engineering Department to serve as relief foreman when regular foremen were on vacation or sick leave, and he has served in that position from time to time. Emeliano Ponce (Ponce) also applied for, took and passed the promotional examination and was placed on the promotional register of eli- gibles for that class in grade order, eighth from the top. (See Exhibit "B"). On March 6, 1972, Ponce was also appointed to an intermittent vacancy in the Engineering Department to serve as relief foreman when regular foremen were on vacation or sick leave, and he has served in that position from time to time. On January 31, 1973, the Engineering Depart- ment initiated a request to the Civil Service Commission for a selective certification of minority persons to fill onc vacancy of Signal Electrician Foreman. The request stated that the request was made "to assist in the furtherance of our Affirmative Action Program in this class. Rule 7.03 j. We have 3 Signal Electrician Foreman (sic) in the Department none of which are minor- ity." The request for certification is attached as Exhibit "C". The request was routed through and approved by the Office of Management and Budget and the Human Rights Department, together with a "Request to Fill Position” (Exhibit "D"), and was received by the Civil Service Commission on February 2, 1973. The Commission certified the only minority name on the register of eligibles, which was Ponce. (See Exhibit "C"). On March l, 1973 the Engineering Department appointed Ponce to the vacancy. A-36 The Engineering Department now has four Signal Electrician Foreman positions, and there is one additional position of this class in the General Services Department, which is filled by Robert McCurdy, a minority person. s/ Thomas F. Hanle THOMAS F. HANLEY SUBSCRIBED AND SWORN to before me this 26th day of June, 1973. /s/ T. W. Listow Notary Public in and for the State of Washington, residing at Seattle. COPY RECEIVED June 26, 1973 Siderius, Lonergan & Crowley A-37_ APPENDIX F IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KING COUNTY MICHAEL E. LINDSAY, RON WATSON and DAVID L. DAY, Plaintiffs, WESLEY BRABANT, NO. 757 364 Plaintiff in ANSWER IN Intervention, INTERVENTION vs. Copy Received July 5, 1973 Siderius, Lonergan & Crowley CITY OF SEATTLE, ALLAN W. MUNRO, DONALD D. HALEY, ROBERT E. McGINTY, CIVIL SERVICE COMMISSIONERS, Copy of Within Received July 5, 1973 A. L. Newbould, Corporation Counsel Defendants, ROBERT L. GREEN and UNITED CONSTRUCTION WORKERS ASSOCIATION, Defendants in Intervention. a ee ee ee ee COME NOW intervenors Robert L. Green and United Construction Workers Association (herein- after U.C.W.A.) and as a defense for which inter- vention is sought allege as follows: I. Intervenors Green and U.C.W.A. incorporate by reference paragraphs I through XI of Defen- dants” Answer. By Way of defense and for cross and counter- claim, Intervenors Green and U.C.W.A. allege A-38 affirmatively that: II. U.C.W.A. is a non-profit association organ- ized in June, 1970 for the purpose of promoting equal employment opportunities. On April 6, 1972, said association entered into an agreement with the Department of Lighting of Defendant City of Seattle (hereinafter referred to as “the Depart- ment) in which a commitment was made to institute a specified affirmative action program for the purpose of increasing the number of its minority emp loyees. A true copy of the agreement is attached as Exhibit A. III. Pursuant to its agreement, a memorandum was issued by the Department setting forth its pledge, objectives and policy with regard to implementing the affirmative action plan. A true copy of its memorandum is attached as Exhibit B. IV. In its memorandum, it was recognized by the Department of Lighting that affirmative action was necessary "to correct the racial imbalance of the department work force." V. U.C.W.A. is informed and believes that the agreement and the memorandum implementing it are part of a larger program instituted by the defendants herein (as more particularly described in paragraphs IX through XI of their answer) to insure that artificial barriers are not created which have the effect of excluding members of minority groups from employment by the city. VI. As part of that program and in order to A-39 fulfill its agreement with U.C.W.A., the defen- dants rely upon a process of "selectively certify- ing" for employment members of underrepresented groups who have taken and passed relevant civil service examinations, for placement in those departments when there is found to be a racially imbalanced work force. Provision for this pro- cedure is set forth in paragraphs IX and X of defendants” answer. VII. U.C.W.A. has placed many members of minority groups, including its own members, in jobs, as a direct result of the agreement and affirmative action program of which it is a party and which is challenged herein. VIII. Intervenor Robert L. Green is a member of a minority group by virtue of his being a Black American. He is also a member of U.C.W.A. IX. As a result of the agreement between U.C.W.A. and the Department of Lighting of Defendant City of Seattle and the city’s affirmative action plan, he was hired by said Department on a pro- visional basis in May of 1972. He took the relevant Civil Service Exam for his job in July of 1972. Except for a period in which he recuperated from an injury incurred on the job, he continued in the employ of the Department of Lighting until December 15, 1972 when he was laid off due to the phasing out of his job. x. Subsequent to his lay-off, intervenor Green’s name was placed upon the eligible Civil Service Register for re-employment by the Department of Lighting. A-40 XI. Intervenor Green believes that he has been and will be benefited by the Defendants” affirma- tive action program which is challenged in this action. XII. The intervenors believe that so long as the defendants utilize Civil Service Examinations and conform to the requirements of Article XVI, section 9 of the City Charter, the employment of members of minority groups will be substantially prevented, resulting in a racially imbalanced work force. Failure to adopt the actions herein described and challenged will result in failure of defendants to satisfy the standards imposed by relevant laws which prohibit discrimination on the basis of race, creed, color, national origin and sex. XIII. The intervenors believe that this action constitutes an interference with their contractual relations with the defendants and that either a negotiated settlement or judgment herein will render impossible performance of the duties and obligations owed them under the agreement between U.C.W.A. and the City of Seattle. XIV. Intervenor Green believes that invalidation of the city’s affirmative action program, as requested herein by the plaintiff will exclude him from employment with the city. UPON THE ABOVE allegations, intervenors Green and U.C.W.A. cross and counterclaim as follows: XV. FOR A FIRST CLAIM, the intervenors seek to enforce their rights under a contract with the A-41_ named defendants to which they are a party and third party beneficiary. XVI. FOR A SECOND CLAIM, the intervenors seek to prevent the interference with their contractual relationship with the defendant that is the necessary product of this suit. XVII. FOR A THIRD CLAIM, the intervenors seek to enforce their rights under Title VII of the 1964 Civil Rights Act, 42 U.S.C. 2000e et seq. which prohibits discrimination against members of a minority group on account of their race, color and national origin in their attempts to secure employment opportunities. XIX. FOR A FOURTH CLAIM, the intervenors seek to enforce their rights under the Civil Rights Act, 42 U.S.C. sec. 1981, namely “the same right + « « to make and enforce contracts, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens... ." XX. FOR A FIFTH CLAIM, the intervenors seek to enforce their rights to the equal protection of the laws guaranteed by the Fourtheenth Amend- ment of the United States Constitution and Article I, section 12 of the Washington Constitution. XxI. FOR A SIXTH CLAIM, the intervenors seek to enforce their rights under the Civil Rights Act, 42 U.S.C. 1983, which prohibits the depri- vation of any rights, privileges or immunities secured by the Constitution and laws of the United States. A-42 WHEREFORE, the defendants in intervention respectfully pray: l. That the complaint of the plaintiff be dismissed with prejudice and with costs. 2. That an order be entered requiring, defendants City of Seattle, Munro, Haley and McGinty to specifically perform the terms and conditions of the agreement entered into by U.C.W.A. and the Department of Lighting of the City of Seattle. 3. That this court enter a judgment declar- ing this action to be in interference with the rights of intervenors under the agreement entered into by U.C.W.A. and the Department of Lighting and dismissing this action accordingly. 4. That an order be entered requiring defendants City of Seattle, Munro, Haley and McGinty to comply with the standards imposed by relevant laws cited herein which prohibit disc- rimination in employment on the basis of race, color, creed, national origin and sex. Respectfully submitted, /s/ James B. Fearn, Jr. JAMES E. FEARN, JR. /s/ Stephen M. Randels A-43 APPENDIX G IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KING COUNTY MICHAEL E. LINDSAY, RON WATSON and DAVID L. DAY, Plaintiffs, WESLEY BRABANT, MO. 757 364 Plaintiff in ANSWER IN Intervention, INTERVENTION VSe MUNRO, DONALD D. HALEY, ROBERT E. McGINTY, CIVIL SERVICE COMMISSIONERS, Defendants, ROBERT Le. GREEN and UNITED CONSTRUCTION WORKERS ASSOCIATION, Defendants in ) ) ) ) ) ) ) ) ) ) ) ) CITY OF SEATTLE, ALLAN W. ) ) ) ) ) ) ) ) ) ) ) ) Intervention. _) STEPHEN M. RANDELS Attorneys for Defendant Intervenors Green and U.C.W.A. The undersigned hereby stipulate to the following facts: l. The City of Seattle is a city of the first class, governed by the Charter of The City of Seattle. 2. That the City of Seattle is an "employer" under Title VII of the Civil Rights Act of 1964, and subject to the duties of an employer fixed by that act to refrain from 3. 4. A-44 engaging in racial discrimination in employ- ment, and to take affirmative action to eliminate the effects of past discrimination. That The City of Seattle is a contractor with the United States for millions of dollars of federal financial assistance and as such is obligated by Executive Order 11246, as amended, to take affirmative action to avoid and eliminate racial discriminatin in city employment. That on August 25, 1973, the Mayor of Seattle issued his "Executive Order Establishing an Affirmative Action Program for City Employ- ment," described therein as a "program to increase the number of employees of a par- ticular race, age, color, national origin, or sex employed by the City in order to correct a condition of underrepresentation of such persons caused by present or past practices, customs or circumstances that have limited employment opportunities for members of the affected group." The goal of the affirmative action program was "to increase the number of underrepresented persons employed by the City to correspond with their statistical composition within the available working force of the population of the City of Seattle." The order called upon each City department head to “establish, administer and maintain an affirmative action program tailored to the particular set of circum- stances applicable to that department and designed to carry out the principles and purposes of this executive order." In particular, each department was ordered to, among other things, ". . . (c) Review, and as necessary, modify performance rating systems and all other qualification and testing requirements used in selecting personnel for city positions to ensure that they are job-related, valid under Federal, State and local law, and to the greatest extent pos- sible, free from cultural bias and institu- 5. 6. 7. A-45 tionally discriminatory practices.", and "(f) Instruct all staff with hiring responsibili- ties that underrepresented persons are to be sought for appointments and that Civil Service selective certification procedures are available for use to this end." That Resolution 23849 of the City Council of The City of Seattle, passed October 16, 1972, declares the policy of the City for Affirma- tive Action Programs by City departments to achieve equality of City employment oppor- tunities for members of minority races, women, and persons over 40 years of age, and affirms the Mayor’s Executive Order of August 25, 1972. That Ordinance 101548 of The City of Seattle, approved by the Mayor on October 27, 1972, provides for implementation of the affirmative action program for City employment and requires all departments to establish and maintain effective affirma- tive action programs of employment oppor- tunity as set forth in the Mayor’s Executive Order of August 25, 1972, including the setting of goals and timetables for the achievement of equality of work force rep- resentation. Said ordinance also provides that no departmental budget shall be approved as to any department which fails to submit reports required by said ordinance. The Civil Service Commission is established by Article XVI of the City Charter, and is authorized thereby to make rules to carry out its functions. Article XVI, Section 9 of the City Charter provides that where a head of a department notifies the Civil Service Commission of a vacancy in an office classified under Article XVI, the Commission shall certify to him such number of candidates, not less than five if there shall be so many eligible, standing first upon the register for the class or grade to which such position belongs 9. 10. i as shall be equal to twenty-five percent of the total number of candidates on said register. That Seattle’s civil service tests have had the effect, in some cases, of discrinm- inating against minority applicants among thos deemed eligible for appointment in accordance with provisions of Charter Article XVI, Section 9, as determined by the results of those examinations; and said results tend to cause the minority appli- cants to be placed at the lower end of the eligible registers and therefore have little or no chance of being employed. The Seattle Civil Service Commission has promulgated rules for the administration of the Civil Service Department, including Rule 7 relating to certification of can- didates. That Rule 7.03(4) authorizes certification of minority persons only when requested by an appointing autority as necessary to implement the affirmative action policy of the city. That pursuant to the City’s affirmative action policy for employment opportunities for minorities, the Engineering Department on June 21, 1972 promulgated a departmental policy statement which established 4s the goal of that department the achievement of ratios of minority employment in each Civil Service classification comparable to the ratios of these same minorities in the Seattle Community, and adopted as an emer- gency measure during 1972, 1973 and 1974 a rule that the first of every three vacancies resulting from retirement or termination in under-represented classes will be filled with appropriate minorities. Such appoint- ments are to be made from Civil Service registers whenever possible and by pro- visional appointments as necessary. ll. 12. A-47 That plaintiff, a Caucasian, is on the promotional eligible register for signal electrician foreman, established after an examination in 1969, with a department grade of 88.58. That Emeliano Ponce, a minority applicant, is also on the eligible register with a department grade of 81.83. That to fill a vacancy of Signal Electri- cian Foreman for the City Engineering Depart- ment requested and the Civil Service Com mission certified the only minority appli- cant on the eligible. register, Emeliano Ponce, and passed over a non-minority eligible, Wesley Brabant, who had a higher test score. ISSUES OF LAW The parties agree that the following are the issues of law presented by the foregoing facts: l. 2. 3. 4. 5. 6. Whether Rule 7.03(4) conflicts with Article XVI, Section 9 of the City Charter. Whether compliance with Article XVI, Sec- tion 9 is excused by overriding provi- sions of state or federal law. Whether the selective certification of Mr. Ponce to a vacant position of Signal Electrician Foreman pursuant to Rule 7.03(j4) conformed to law. Whether Rule 7.03(4) constitutes illegal delegation of the Civil Service Commission’s discretionary power to its Secretary. Whether The City of Seattle has a legal duty to take affirmative action to elimi- mate the effects of past discrimination. Whether the City’s duty referred to in Paragraph 5 is as to particular positions, 7. 8. A-48 by particular departments of the City, or in civil service positions generally? Must it be shown that a civil service test for a particular position is discriminatory, or is it sufficient to show that civil service tests generally of the City, as presently devised, are discriminatory. Whether Rule 7.03(4) conflicts with Sec- tion 703(4) of Title VII of the Civil Rights Act of 1964. Whether Rule 7.03(j) is a reasonable and necessary method of eliminating the effects of past discrimination. The parties agree that there is no con- stitutional question of equal protection of the laws and due process presented, the same having been disposed of in De Funis v. Odegaard, 82 Wn.2d 1l. DATED this 7th day of September, 1973. Attorney for Plaintiffs Attorney for Defendants Attorney for Intervenors --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0425%3A1. Public record. Not legal advice.