Petition — Banta v. United States

Suprema Court, U. S.

~m FILE D

APR 28 j977

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No. ......... 76-1502

EDWIN DAVID BANTA and GEORGE HOHMANN,

Petitioners,

Vv.

UNITED STATES OF AMERICA and FIREFIGHTERS INSTITUTE

FOR RACIAL EQUALITY, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

| for the Eighth Circuit

JOHN H. GOFFSTEIN

Of Counsel

BARTLEY, GOFFSTEIN, BOLLATO & LANGE

130 South Bemiston Avenue

Clayton, Missouri 63105

mM

TS

V\ St. Louis Law Printing Co., Inc., => Street 63101 314-231-4477

INDEX

“eee eneeneeeneeeeneeneeeeeeneeneneeeeeneeneeeeee ee ee ee

Opinion of the Court of Appeals ...................

Reasons for Granting the Writ ..................4..

The Petition presents an important unresolved is-

sue of constitutional and statutory interpretation

affecting every state and political subdivision which

is an “Employer” within the meaning of Title VII

The failure of the Court of Appeals to consider

the constitutional issue raised on appeal is such a

departure from the accepted and usual course of ju-

dicial proceedings as to call for the exercise of the

Supreme Court's power of supervision .........

The decision of the Court of Appeals is in conflict

with the EEOC Guidelines on Employee Selection

Procedures and the avowed purpose of Congress

in enacting 42 U.S.C. §2000e-2(h) as recognized

by this Court in Griggs v. Duke Power Co., of al-

lowing rather than discouraging the use of profes-

sionally developed ability tests ...............

12

Appendix:

I. Opinion and Judgment, United States Court of

Appeals for the Eighth Circuit ............... A-l

Il. Order, United States Court of Appeals for the

Eighth Circuit (denying Petition of Intervenors for

Rehearing)

III. Order, United States Court of Appeals for the

Eighth Circuit (denying Petition of City of St. Louis

ES cae Bae ee eo A-21

IV. Order and Memorandum, United States District

Court for the Eastern District of Missouri ...... A-22

V. Nune Pro Tunc Order, United States District Court

for the Eastern District of Missouri ........... A-51

VL. Decision, State Board of Mediation, State of Mis-

Be 8e6060 cbvtbbnawededesecidicateniaca A-58

Cases Cited

Aetna Insurance Co. v. Eisenberg, 294 F.2d 301 (8th

ED Bt eae nae ih ie a ag 13

Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975)... 16

oe v. Gilles Cotting, Inc., 504 F.2d 1255 (4th Cir.

Deceeses ,

bed06N6900466606 bedensiasbécBeéce 14

Bridgeport Guardians v. Civil Service Commission, 462

F.2d 1333 (2nd Cir., 1973) .................... 17,19

Casteneda v. Partida, — U.S. —, 45 U.S. Law

Ss. —, S. Week 4

EE Sev ticeccadsctcsdenic. 7 oa 10

Castro v. Beecher, 459 F.2d 725 (ist Cir., 1972) ...... 16

Dandridge v. Williams, 397 U.S. 471 I re et 12

Davis v. County of Los Angeles, — F.2d —, 13 FEP

Cases 1217 (9th Cir., 1976)... 2.66 ee eee 11

Douglas v. Hampton, 512 F.2d 976 (D.C. Cir., 1975)... 17

EEOC v. Detroit Edison, 515 F.2d 301 (6th Cir., 1975).. 16

Espinoza v. Farah Manufacturing Co., 414 U.S. 86 (1973) 17

Ex Parte Virginia, 100 U.S. 339 (1880) .......-..+.-: 9

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) ........--- 8, 13

Gilbert v. General Electric Co., — U.S. —, 13 FEP Cases

RD GD ccc ucedeseccccccceccvceseccceveces 17

Griggs v. Duke Power Co., 401 U.S. 424 (1971). . 15, 16, 17, 22

Hazelwood School District v. United States, — U.S. —, 45

U.S. Law Week 3463 (January 11, 1977) ........-- 9

Hormel v. Helvering, 312 U.S. 552 (1941) ....-.-.--- 13

Jaffke v. Dunham, 352 U.S. 280 (1957) ........--+55- 12

Johnson v. U.S., 434 F.2d 340 (8th Cir., 1970) ........ 13

K-2 Ski Co. v. Head Ski Co., Inc., 506 F.2d 471 (9th

Ci, BEEP a cccenccesecoccesccceuceccenccccces 14

Katzenbach v. Morgan, 384 U.S. 641 (1966) ......... 9

League of United Latin American Citizens v. City of

Santa Ana, — F. Supp. —, 13 FEP Cases 1019 (C.D.

— © A Prrry TeET Tee 11

Mieth v. Dothard, — F. Supp. —, 13 FEP Cases 1412

(M.D. Ala., 1976), probable jurisdiction noted — U.S.

—, 45 U.S. Law Week 3399 (Nov. 30, 1976) ....... 11

National League of Cities v. Usery, 426 U.S. 833

MOD voc iccccceccccccescceccsesoccccsccs 8, 13,14

O'Neill v. U.S., 411 F.2d 139 (3rd Cir., 1969) ........ 14

iv

Pettway v. American Cast Iron Pipe Co., 494 F.2d 211

(Sth Cir., 1974) ...... Sri 16

Rogers v. International Paper Co., 510 F.2d 1340 (8th

Perr re 16

Shield Club v. City of Cleveland, — F. Supp. —, 13 FEP

Cases 1373 (N.D. Ohio, 1976) ..............0000. 10

St. Louis Fire Fighters Ass’n Local No. 73 v. City of St.

Louis, unpublished opinion of Missouri State Board of

Mediation (Feb. 23, 1977) .........cccecccecvces 5, 22

Standard Accident Insurance Co. v. Roberts, 132 F.2d 794

Cis, IBGE 2... sc cccsescevecnebeneeeee 13

Tiedeman v. Chicago, Milwaukee, St. Paul and Pac. R.

Co., 513 F.2d 1267 (8th Cir., 1975) .............. 12

U. S. v. City of Chicago, — F.2d —, 14 FEP Cases 462

(FR Ce, WTI) 20 cv ccvececsecedsauneeeue 11

U. S. v. Georgia Power Co., 474 F.2d 906 (Sth Cir., 1973) 16

Village of Arlington Heights v. Metropolitan Housing De-

velopment Corp., — U.S. —, 45 U.S. Law Week 4073

Gam. 08, BOFF) .. vcccccccceccovsescunnee 14

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

ke Pe 16

Washington v. Davis, 426 U.S. 229

GOVE cccctccsicenenateen 9, 10, 13, 14, 16, 17, 18, 19

Constitutional and Statutory Provisions Cited

Te 3, 8,9

Fourteenth Amendment ................. 3, 5, 8,9, 10, 11

58 USL. SUSIE)... cvcccccecccscnenea 2

TT

v

a

Nn ccovesceseees

i, cc ccecgcasecvoccces 4, 5, 10, 11

ee 4,5, 10

15

42 US.C. $2000e et seq. ... 5.6. - ee cece cece eres 3,4

Other Materials Cited

29 C.F.R. §1607.1 et seq., Equal Employment Opportu-

nity Commission (EEOC) “Guidelines on ae 7

Selection Procedures” ........-- ss secure . 17, 18,

41 Fed. Reg. 29016 et seq., Equal Employment Oppor-

tunity Coordinating Council (EEOCC) “Uniform Guide-

lines on Employee Selection Procedures” ....... 17, 18, 22

Standards for Educational and Psychological Tests and

Manuals (American Psychological Association, 1966). .7, 20

Standards for Educational and Psychological Tests (Amer-

ican Psychological Association, BEEP Séceccoecceces 20

9 Moore's Federal Practice €204.11[13] (2nd Ed., 1975) 13

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

EDWIN DAVID BANTA and GEORGE HOHMANN,

Petit

UNITED STATES OF AMERICA and FIREFIGHTERS INSTITUTE

FOR RACIAL EQUALITY, et al.

Respondents.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Fighth Circuit

Petitioners Edwin David Banta and George Hohmann, In-

tervenors below, pray that a Writ of Certiorari issuc to review

the judgment and opinion of the United States Court of Appeals

for the Eighth Circuit entered on February 2, 1977.

The unreported opimon of the Court of Appeals is reprinted

in the Appendix at pp. 1-19. The Order of the Court of

nemeste Gunsten Gathenee? Patten Gr Gehanties of te Ge

—

Alternative for Rehearing En Banc is reprinted in the Appendix

at p. A 20. The Order of the Court of Appeals denying the

Petition of Defendant-Appellee City of St. Louis for Rehearing

is reprinted in the Appendix at p. A 21.

The opinion of the United States District Court for the

Eastern District of Missouri is reported at 410 F. Supp. 948

and is reprinted in the Appendix at p. A 23. The unreported

Order of the District Court is reprinted in the Appendix at p.

A 22 and the District Court's “Nunc Pro Tunc Order” is re-

printed in the Appendix at p. A 51.

The judgment of the Court of Appeals was entered on Febru-

ary 2, 1977. Petitioners’ timely Petition for Rehearing along

with that of the City of St. Louis were denied on February 25,

1977. Jurisdiction is invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

Whether Title VII of the Civil Rights Act of 1964, as ap-

plied to the States and their political subdivisions by the Equal

Employment Opportunity Act of 1972 mandating the “disparate

” sect of diecriminati ber than he “7 net die

Steet’ toe 9 iste legislation” within the

ing of Section Five of the Fourteenth Amendment?

Whether the Court of Appeals correctly decided that it need

not consider Intervenors’ arguments based on constitutional

issues that were not raised in the District Court where those

arguments were asserted in support of a favorable lower court

ruling and where there were intervening decisions of the Su-

preme Court which arguably changed the state of the law?

= =

Whether the decision of the Court of Appeals, creating its

own standard for employment test validity, conflicts with the

EEOC Guidelines on Employee Selection Procedures and with

the Congressional intent expressed in 42 U.S.C. § 2000e-2(h),

as recognized in Griggs v. Duke Power Co., of allowing rather

than discouraging the use of professionally developed ability

tests?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The pertinent sections of the Constitution of the United

States provide:

Tenth Amendment:

The powers not delegated to the United States by the Con-

stitution, nor prohibited by it to the States, are reserved

to the States respectively, or to the people.

Fourteenth Amendment:

Section 1. . . . No State shall . . . deny to any person

within its jurisdiction the equal protection of the laws.

Section 5. The Congress shall have power to enforce, by

appropriate legislation, the provisions of this article.

The pertinent sections of Title VII of the Civil Rights Act

of 1964, as amended, provide:

Section 701:

(a) The term “person” includes one or more individuals,

governments, governmental agencies, political subdi-

VISIONS a

(b) The term “employer” means a person engaged in an

industry affecting commerce . . . (42 U.S.C. § 2000e)

Section 703:

(a) It shall be an unlawful employment practice for an

employer

(1) to fail or refuse to hire or to discharge any indi-

vidual, or otherwise to discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because

of such individual's race, color, religion, sex, or

national origin; or

(2) 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 ad-

versely affect his status as an employee, because

of such individual's race, color, religion, sex, or

national origin.

(h) Notwithstanding any other provision of this title, it

shall not be an unlawful employment practice for an

employer . . . to give and to act upon the results of any

professionally developed ability test provided that such

test, its administration or action upon the results is not

designed, intended or used to discriminate because of

race, color, religion, sex or national origin. (42 U.S.C.

§ 2000e-2)

STATEMENT OF THE CASE _

This is a consolidated case involving two actions. The first

was brought by the Firefighters Institute for Racial Equality

(FIRE) and certain individual black firefighters (Private Plain-

tiffs) against the City of St. Louis, Missouri and certain City

Officials, alleging violations of the Fourteenth Amendment, Title

VII and 42 U.S.C. §§ 1981 and 1983 by inter alia, using a se-

a a

— =

lection procedure for promotion to the position of Fire Captain

which had a disproportionate impact on blacks. The second

action was brought in the name of the United States of America

also alleging violations of the Fourteenth Amendment, Title VII

and 42 U.S.C. §§ 1981 and 1983. Intervenors are white fire-

fighters who represent a class of 177 white firemen who have

undergone testing and evaluation and who are currently on an

eligibility list for promotion to the rank of Fire Captain.

Pursuant to the Charter of the City of St. Louis, the City is

required to give competitive examinations for positions in the

Fire Department, including the position of Fire Captain. A\l-

though the City had never attempted to validate its tests prior to

the 1972 amendments to Title VII, it did hire an industrial

psychologist, Dr. Lawrence O'Leary, in 1973 to develop valid

selection procedures for the ranks of Fire Captain, Battalion

Chief, Deputy Fire Chief and Fire Chief.

A Fire Captain is a first line supervisor responsible for one

piece of equipment and a crew of three or four other men. He

leads his men at the scene of a fire, he is responsible for his crew's

inservice training, and he performs inspections of buildings

and has other administrative duties. See St. Louis Fire Fighters

Ass'n Local No. 73 v. City of St. Louis, unpublished opinion

of Missouri State Board of Mediation (February 23, 1977)

(A. 58 at A. 61).

Dr. O'Leary performed a detailed job analysis of each posi-

tion and developed selection procedures for each rank. For the

rank of Fire Captain, Dr. O'Leary used an experience and train-

ing score (weighted 45% ), a service rating (weighted 10% )

and a written test (weighted 45%) (Court of Appeals, A.

3). He recommended a working test period (probation) to

be graded on a pass-fail basis after implementation of an im-

proved rating system. Since almost all candidates for promo-

tion scored within a narrow range on both the experience and

—

training rating and on the service rating, the written test was the

most significant factor in determining positions on the eligibility

list. The written test was shown to have had a disparate effect

on blacks. The mean score for blacks on the test was 69.72

while the mean for whites was 76.59. 25.5% of the blacks

passed while 43.6% of the whites passed. A total of 453 per-

sons took the test. Normally, 18 promotions to Fire Captain

are made from each promotional list which is valid for two years

from the date of certification (August, 1976 in this case), and

the first black on the list was fifty-fifth.

OPINION OF THE DISTRICT COURT

With respect to the 1974 Fire Captain written examination,

the trial court found that the test was content valid within the

EEOC Guidelines on Employee Selection Procedures (410 F.

Supp. 948 at 959, A. 43). The Court discredited the criti-

cisms of Plaintiffs’ expert witness and found that the job analy-

sis was carefully and thoroughly done, that the test item selec-

tion was proper, and that the failure to include supervisory

questions on the test was professionally sound, and further,

that supervisory abilities would be tested in the working test

period (410 F. Supp. at 954, 958-59, A. 33-34, 41-43). The

Court held that a possible alternative for testing supervisory

skills, the Assessment Center, was neither feasible nor required

(410 F. Supp. at 955, 959, A. 33, 42).

With respect to the other issues in the case, the District Court

held on the basis of statistical evidence alone, that the entry

level test was discriminatory. The City had attempted no vali-

dation of that test. The Court found that Private Plaintiffs had

net shown disparate impact with respect to the Battalion Chief

and Fire Chief tests and that certain individual plaintiffs had

not been discriminated against. Private discrimination in eat-

ing arrangements, so-called “supper clubs”, was found to in-

volve no illegal conduct by the City.

OPINION OF THE COURT OF APPEALS

With regard to the Fire Captain exam, the Court of Appeals

agreed with the District Court that Dr. O'Leary had performed

a thorough and complete job analysis. The Court held, how-

ever, that there was a “fatal flaw” in that the findings in the

job analysis were not reflected. in the test. “The Captain's exam

admittedly failed to test the one major job attribute that sepa-

rates a firefighter from a fire captain, that of supervisory abil-

ity.” (Court of Appeals, A. 8, emphasis in original). The Court

relied on the fact that a Fire Captain spends more time in

supervision (43%) than in any other job function. This hold-

ing was made in the face of the finding that of six tasks ranked,

supervision was fourth in importance (Court of Appeals, A. 8).

The Court cited as authority the 1974 American Psycholog-

ical Assocation Standards for Educationa' and Psychological

Tests for the proposition that “all or nearly all” important parts

of a job must be tested to achieve content validity (Court of

Appeals, A. 9). The Court concluded:

The test is not content valid. In short, even a common

sense concept of content validity, aside from EEOC and

APA Standards, requires that an important and distin-

guishing attribute be tested in some manner to find the

best qualified applicants. Here, where the exam failed to

test a job component comprising over 40 percent of the

employee's time, the inference of discrimination has not

been rebutted with a finding of the exam’s “job related-

ness.” (Court of Appeals, A. 10, emphasis in original).

On the other issues, the Court of Appeals affirmed the rul-

ings of the District Court regarding the other tests and the

alleged discrimination against certain individual plaintiffs. The

Court disagreed with the trial court regarding the “supper

clubs” and ordered the City to forbid the use of City facilities

to any “supper club” which excluded firemen on the basis of

their race. No appeal was taken as to the lower court's ruling

on the entry level.

REASONS FOR GRANTING THF WRIT

1. The Petition Presents an Important Unresolved Issue of

Constitutional and Statutory Interpretation Affecting Every

State and Political Subdivision Which Is an “Employer” Within

the Meaning of Title VII.

The question of whether the application of the “disparate

impact” test of discrimination under the 1972 amendments of

Title VII to the States and their political subdivisions in the

field of employment practices was a proper exercise of con-

gressional authority under Section 5 of the Fourteenth Amend-

ment, is one with which the Supreme Court has not yet dealt.

In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), this Court de-

cided that Congress could appropriately, in accordance with

Section 5 of the Fourteenth Amendment, provide that back

pay and awards of attorneys’ fees and costs against states be

recovered from states in the face of a claim that the Eleventh

Amendment bars such remedies. The Court, however, noted

(Footnote 11) that the application of the substantive provi-

sions of Title VII to the States was not being challenged. 427

U.S. at 456. That is precisely what is being challenged in this

case.

In National League of Cities v. Usery, 426 U.S. 833 (1976),

the Court (while reserving the question of authority under the

Fourteenth Amendment, 426 U.S. at 852, n. 17) held that

Congress had no power under the Commerce Clause to inter-

fere with the setting of minimum wages and hours of empioy-

ees of state and local governments. The Tenth Amendment

was cited in support of the Court's reasoning that there were

limits on the authority of Congress to interfere with the in-

tegrity of the States. If Congress cannot set minimum wages

and hours of state employees, what right, if any, does Con-

gress have to dictate who these employees shall be or what

race, sex or religion they shall have?

—

Obviously, the Fourteenth Amendment plays some part in

answering the above question. The extent of the role of Con-

gress under Section 5 is what is now being put before the

Court. Under the Fourteenth Amendment, a plaintiff must

prove an act of intentional discrimination to prevail in a case

of alleged discriminatory employment practices by a state or

local government. Washington v. Davis, 426 U.S. 229 (1976).

A determination of whether Congress has the power to dis-

pense with the intent requirement of the Fourteenth Amend-

ment in applying that amendment to the States through Title

VII requires, as Petitioners view the question, a balancing be-

tween the States’ rights preserved by the Tenth Amendment

and the later limitation of those rights and corresponding in-

crease in the power of Congress embodied in the Fourteenth

Amendment. To the extent possible, there should be a har-

monizing of these conflicting rights.

The power of Congress, acting under Section 5 of the Four-

teenth Amendment is undoubtedly broad as was held in Ex

parte Virginia, 100 U.S. 339 (1880), and more recently in

Katzenbach v. Morgan, 384 U.S. 641 (1966) and others. It

seems to Petitioners, however, that Congress’ power to enforce

the prohibitions of the Fourteenth Amendment is not appro-

priately exercised when Congress applies a more stringent

standard of discrimination to the States than the Constitution

requires, especially in view of the rights of the States in deter-

mining their own empluyment policies under the Tenth Amend-

ment. In other words, Title VII is not “appropirate legisla-

tion” to enforce the Fourteenth Amendment as it has been

applied to the States.

The importance of this question to state and local govern-

mental employers is patent, and it has already been recognized

by this Court in its grant of certiorari in Hazelwood School Dis-

trict v. United States, 45 U. 8. Law Week 3463 (Jan. 11, 1977,

No. 76-255). This case presents the virtually identical constitu-

as thas

tional issue. As applied to the instant case, a ruling that inten-

tional discrimination must be shown would require reversal of

the Court of Appeals and reinstatement of the judgment of the

trial court at the Fire Captain level and would require a reversal

of the District Court's judgment at the entry level as a matter of

plain error. While plaintiffs attempted to prove intentional dis-

crimination at trial, the evidence with respect to the Fire Captain

exam shows not only no intent to discriminate but also an inten-

tion to avoid discrimination. The evidence regarding the entry

level only shows that blacks did not score as well as whites on

the written test. They were in the past (since 1969), however,

hired in proportion to their occurrence in the population (ap-

proximately 40% ). Cf. Casteneda v. Partida, — U.S. —, 45

U.S. Law Week 4302 (March 23, 1977).

Interestingly, since the decision in Washington v. Davis,

supra, courts without any further guidance from the Supreme

Court have been drawing contrary conclusions as to the effect

of that case on causes of action brought under 42 U.S.C. §§1981

and 1983 and the Fourteenth Amendment which were also al-

leged in this case. A double standard between Title VII and

the other types of cases is sometimes established. (See Court of

Appeals, A. 5.) For instance, in a case based on 42 U.S.C.

$1983, a District Court, reconsidering its prior finding of dis-

crimination held, “Applying the teachings of Washington v.

Davis, it is now manifest that a racially discriminatory purpose

or policy in making assignments and transfers must be shown

in order to establish the Shield Club's claim that assignments

are made within the C.P.D. in a discriminatory manner.” Shield

Club v. City of Cleveland, — F. Supp. —, 13 FEP Cases 1373

at 1380 (N.D. Ohio, 1976). In another case, a court relied

on Washington v. Davis to dismiss plaintiffs’ 42 U.S.C. §1983

claims but held that a test validated against performance in a

training program was not sufficiently validated under Title VII

and distinguished Washington v. Davis on the grounds that it

was a 42 U.S.C. $1981 case. League of United Latin Ameri-

can Citizens v. City of Santa Ana, — F. Supp. —, 13 FEP

Cases 1019 (C.D. Cal., 1976). However, the Ninth Circuit

subsequently held in another case that the validation standards

for tests under 42 U.S.C. $1981 and Title VII are the same

and that good faith was no defense in a 1981 action. Davis v.

County of Los Angeles, — F.2d —, 13 FEP Cases 1217. at

1221 n. 13 and at 1223 n. 17 (9th Cir., 1976). On the other

hand, the Seventh Circuit holds that different standards apply

to Title VII cases than those based on the Fourteenth Amend-

ment. U.S. v. City of Chicago, — F.2d —, 14 FEP Cases 462

(7th Cir., 1977). With regard to validation of tests against

police academy performance the Court said: “Although the ap-

plicability of the [Supreme] Court's holding [in Washington v.

Davis) to cases arising under Title VII is not clear, even if a

relationship between examination performance and police acad-

emy performance would be enough to establish job-relatedness

for Title VII purposes, we do not read the district court's opin-

ion as expressing a finding that such a relationship exists.” (14

FEP Cases at 475, emphasis supplied). The Court reversed the

District Court's finding of a constitutional violation. 13 FEP

Cases at 478. Finally, in a case involving alleged sex discrim-

ination in the Alabama Highway Patrol and Department of

Public Safety, a three-judge district court held that different

standards of discrimination apply in 1983 and Title VII cases.

Mieth v. Dothard, — F. Supp. —, 13 FEP Cases 1412, at

1420 (M.D. Ala., 1976), probable jurisdiction noted — US.

—, 45 US Law Week 3399 (Nov. 30, 1976).

Petitioners respectfully submit that the Court should clarify

the confused state of the law in this area and that if a double

standard is to be applied, it should be a standard distinguishing

between conduct of public and private employers rather than a

double standard applied to public employers depending upon

what statutory or constitutional violation is alleged.

== {2

II. The Failure of the Court of Appeals to Consider the Con-

stitutional Issue Raised on Appeal Is Such a Departure From

the Accepted and Ordinary Course of Judicial Proceedings as

to Call for the Exercise of the Supreme Court's Power of Super-

vision.

In footnote 5 of its opinion the panel of the Court of Appeals

states in part: “Intervenors in this appeal . . . have strongly

contested Congress’ power to dispense with the intemt require-

ment in Title VII cases where state and local governments act

as employers . . . In any event, the court determines that it

need not reach this issue. Counsel for the Intervenors has ad-

mitted under the court’s questioning that the constitutional

issue was not raised below.” (Court of Appeals, A. 5, em-

phasis in original). By failing to consider the substantial and

important issue raised by Intervenors on appeal, the Court of

Appeals has departed from its own precedent and the cases of

this Court.

A. It is generally recognized that in defending a judgment on

appeal, a party may rely on any ground which supports the

judgment. This was recognized by the Eighth Circuit in the

recent case of Tiedeman v. Chicago, Milwaukee, St. Paul and

Pac. R. Co., 513 F.2d 1267 (8th Cir., 1975), where the Court

stated:

“An appellee cannot attack a judgment either to enlarge

his rights thereunder or to lessen the rights of his adver-

sary unless he files a cross-appeal (citations omitted).

However, an appellee may . . . defend a judgment on any

ground consistent with the record . . . Here appellee

does not attack the judgment in its favor rendered below.

It merely asserts additional grounds for affirming the judg-

ment.” 513 F.2d at 1272.

In accord are Supreme Court decisions Dandridge v. Williams,

397 U.S. 471 (1970), note 8 at 475; and Jaffke v. Dunham,

o>---- a>

i MM ee ee OO oe

—

352 U.S. 280 (1957) (“A successful party in the District Court

may sustain its judgment on any ground that finds support in

the record.” 352 U.S. at 281); and Eighth Circuit decisions

Aetna Insurance Co. v. Eisenberg, 294 F.2d 301 (8th Cir.,

1961); and Standard Accident Insurance Co. v. Roberts, 132

F.2d 794 (8th Cir., 1942). See also, 9 Moore's Federal Prac-

tice © 204.11[13] (2nd Ed., 1975), at 932. On this basis alone

the Court of Appeals should have considered the constitutional

question raised.

B. One exception to the general rule that an issue cannot be

raised for the first time on appeal is a change in the controlling

law after the trial court's decision and prior to determination on

appeal. In the instant case, the District Court's decision was

handed down on April 9, 1976. The Supreme Court did not

decide Washington v. Davis, National League of Cities v. Usery

and Fitzpatrick v. Bitzer until June 7, June 24 and June 28,

1976, respectively. Intervenors, citing these cases, suggested

that they changed the law with respect to employment dis-

crimination cases under Title VII and that the cases suggested

the existence of a serious constitutional issue regarding the ap-

plication of Title VII to the States. The Court of Appeals, how-

ever, chose to ignore the issue because it was not raised below.

This choice was contrary to its own prior decision in Johnson

v. U. S., 434 F.2d 340 (8th Cir., 1970), where the Court

stated:

“While the general rule is that issues not raised before

the trial court cannot be considered upon appeal, limited

exceptions to such rule have been recognized. One such

exception is a change in the controlling law subsequent to

the triel court's decision and prior to the determination on

appeal.” 434 F.2d at 342.

In accord is the Supreme Court's decision in Hormel v. Helver-

ing, 312 U.S. 552 (1941), where one of its own decisions inter-

vened in the period between the ruling of the Board of Tax

— 14—

Appeals and the decisions of the Court of Appeals. The Su-

preme Court very recently had no problem in applying its ruling

in Washington v. Davis, supra, to a case where the issue of

intentional discrimination was not considered controlling by

either the trial court or the Seventh Circuit. Village of Arlington

Heights v. Metropolitan Housing Development Corporation, .. .

US. ..., 45 U.S. Law Week 4073 at 4078 (Jan. 11, 1977).

Similarly, this Court has granted certiorari in the Hazelwood

School District case, No. 76-255, where the Petition for Certio-

because the cases relied on (Washington v. Davis and National

League of Cities) had not been decided when the Court of

Appeals ruled. Obviously, the cases relied on by Intervenors

arguably created a change in the controlling law and therefore,

the constitutional issue should have been dealt with by the

Court of Appeals.

C. Another exception to the general rule that an issue cannot

be raised for the first time on appeal is a situation where an

important issue of public policy is called into question. In the

instant case, the constitutionality of the application of Title VII

to the States is such an important public policy question.

Pursuant to 28 U.S.C. §2106, appellate courts may modify,

reverse or remand a lower court decision “as may be just un-

der the circumstances.” The purpose of the existence of courts

is to render justice and not to woodenly apply procedural rules

to defeat this ultimate goal. In cases where substantial ques-

tions of public importance have been raised for the first time

on appeal, Courts of Appeals have exercised their discretion to

consider such important questions. K-2 Ski Co. v. Head Ski

Co., Inc., 506 F.2d 471 at 475 (9th Cir, 1974); Brennan v.

Gilles Cotting, Inc., 504 F.2d 1255 (4th Cir., 1974); and

O'Neill v. U. S., 411 F.2d 139 (30d Cir., 1969). In this case,

the arguments of the Intervenors were fully briefed on the mer-

its in the Reply Brief of the United States and none of the

aed

— a...

-..

— =

Appellants challenged these arguments on the basis that they

were not presented to the District Court. The important con-

stitutional question should have been answered and it was an

abuse of discretion for the Court of Appeals to fail to reach

that issue.

Ill. The Decision of the Court of Appeals Is in Conflict With

the EEOC Guidelines on Employee Selection Procedures and

the Avowed Purpose of Congress in Enacting 42 U.S.C. §2000

e-2(h), as Recognized by This Court in Griggs v. Duke Power

Co., of Allowing Rather Than Discouraging the Use of Profes-

sionally Developed Ability Tests.

A. In Griggs v. Duke Power Co., 401 U.S. 424 (1971), this

Court gives a detailed analysis of the legislative history of Sec-

tion 703(h) (42 U.S.C. §2000c-2(h)) and specifically holds

that job-related tests were to be allowed. 401 U.S. at 433-436.

“Nothing in the Act precludes the use of testing or meas-

uring procedures; obviously they are useful. What Con-

gress has forbidden is giving these devices controlling force

unless they are demonstrably a reasonable measure of job

performance. Congress has not commanded that the less

qualified be preferred over the better qualified simply be-

cause of minority origins. Far from disparaging job qual-

ifications as such, Congress has made such qualifications

the controlling factor, so that race, religion, nationality,

and sex become irrelevant. What Congress has commanded

is that any tests must measure the person for the job and

not the person in the abstract.” (401 U.S. at 436, empha-

sis supplied. )

The Court also stated that administrative interpretations of a

statute by an enforcing agency are entitled to “great deference”

—~ =

“good reason to treat the EEOC Guidelines as expressing the

will of Congress.” 401 U.S. at 434.

The Courts of Appeals since Griggs, however, have split on

how “great” the “deference” to be given to the Guidelines should

be. The First and Second Circuits have developed a moderate

approach which admits of the possibility of satisfying the job-

relatedness standard of Griggs independently of the Guidelines.

Vulcan Society v. Civil Service Commission, 490 F.2d 387, 394

(2nd Cir., 1973) and Castro v. Beecher, 459 F.2d 725, 737

(ist Cir, 1972). The Fifth Circuit at first appeared to recog-

nize that the Guidelines should not be so rigidly applied that

they would be absolute mandates, U.S. v. Georgia Power Co.,

474 F.2d 906, 915 (Sth Cir., 1973) but it has later interpreted

Georgia Power Co. to compel compliance with the Guidelines

to achieve test validity. See Pettway v. American Cast lron Pipe

Co., 494 F.2d 211, 221 (Sth Cir., 1974). The Sixth and the

Eighth Circuits also appear to have adopted a strict compliance

rule. EEOC v. Detroit Edison, 515 F.2d 301, 317 (6th Cir.,

1975); Rogers v. International Paper Co., 510 F.2d 1340, 1345

(8th Cir., 1975). It can be forcefully argued that this Court's

decision in Albermarle Paper Co. v. Moody, 422 U.S. 405, 431

(1975) requires strict adherence to the Guidelines. The prob-

lem with this approach wa: pointed out in Justice Blackmun’s

concurring opinion. “I fear that a too rigid application of the

EEOC Guidelines will leave the employer little choice, save an

impossibly expensive and complex validation study, but to en-

gage in a subjective quota system of employment selection. This,

of course, is far from the intent of Title VII.” 422 U.S. at 449

(Blackmun, J., concurring).

The extent to which the Supreme Court will require strict ad-

herence to the Guidelines, however, is subject to debate since the

decision in Washington v. Davis, supra. There, for instance,

the Court said: “It appears beyond doubt by now that there is

—= =

no single method for appropriately validating employment tests

for their relationship to job performance . . .” (426 U.S. at 247

n. 13, citing 1966 APA Standards). The Guidelines had previ-

ously been interpreted as requiring a criterion related validity

study where this was “technically feasible.” 29 C.F.R. §

1607.5(a). See e.g. Douglas v. Hampton, 512 F.2d 976, 985

(D.C. Cir., 1975); and Bridgeport Guardians v. Civil Service

Commission, 462 F.2d 1333, 1337 (2nd Cir., 1973). The Court

in Washington v. Davis also held that a test validated against

performance in a training program was sufficiently job-related

to be valid. 426 U.S. at 250. This was farther than any other

Court had gone in determining how job-related a test must be to

be considered valid.

The extent to which the EEOC Guidelines should be given

deference is a question which is now also ripe for reappraisal.

The teachings of this Court in Griggs, Espinoza v. Farah Manu-

facturing Co., 414 U.S. 86 (1973); Washington v. Davis, and

Gilbert v. General Electric Co., 429 US. 125 (1976); es-

tablish that “deference” need only be given when adminis-

trative interpretations of a statute are in accord with the

statute's provisions and with the intent of Congress. As was

pointed out above, the intent of Congress was to allow the use

of employment tests. This suggests that “a more sensible con-

struction of the job relatedness requirement” of the Guidelines

should be used. See Washington v. Davis, 426 U.S. at 251.

On July 14, 1976, the Equal Employment Opportunity Co-

ordinating Council (EEOCC) published its “Uniform Guide-

lines on Employee Selection Procedures”, 41 Fed. Reg. 29016,

which were prepared prior to the decision in Washington v.

Davis. These guidelines differ in significant respects from the

EEOC Guidelines, especially with respect to the preference for

criterion related validity, espoused by the Commission and re-

jected by the Coordinating Council (compare 29 C.F.R. §

1607.5(a) with Uniform Guidelines §5, a, 41 Fed. Reg.

29018); with respect to use of validation techniques other than

those set out in the Guidelines (See, Unform Guidelines § 3,b, 41

Fed. Reg. 29017); and with respect to what is required to

demonstrate content validity. (Compare 29 C.F.R. §§ 1607.5

and 1607.6 with Uniform Guidelines §§ 12,c, (1)-(6) and 13,c,

41 Fed. Reg. 29424, 29021). The EEOC, which did not agree

with the formulation of the Uniform Guidelines published by

the Coordinating Council felt it necessary to republish its 1970

Guidelines in toto and unchanged on November 24, 1976. 41

Fed. Reg. 51984-51986. Even the Court of Appeals in this

case read Washington v. Davis, as “undermining” a requirement

of the E.E.0.C. Guidelines preferring criterion related validity

to content validity. (Court of Appeals, A. 7.)

Petitioners respectfully submit that this Court's recent pro-

nouncements and the significant differences in the published

guidelines of the governmental agencies responsible for the en-

forcement of equal employment laws of the land seriously call

into question the extent, if any, to which the courts should give

deference to these guidelines.

B. Regardless of the issue of “deference”, the decision of the

Court of Appeals is in actual conflict with all the accepted

published guidelines and standards for employment tests, and

with the intent of Congress in Section 703(h). The Court, in

fact, created its own standard, the “common sense concept of

content validity” (Court of Appeals, A. 10) which it applied

in the following manner:

1. The Fire Captain job requires that approximately 43%

of his time be spent in “supervision.”

2. “Supervision” is rated fourth in importance among the

various functions of a Fire Captain.

3. “Supervision” can't be tested for in a written test and

would only be evaluated under Dr. O'Leary's selection

system after the man was placed on the job.

Ne ee ee —E—

— =

4. Therefore, “Here, where the exam failed to test a job

component comprising over 40 percent of the employ-

ee’s time, the inference of discrimination has not been

rebutted with a finding of the exam’s ‘job-relatedness.’ ”

(Court of Appeals, A. 8-10).

The finding of “job-relatedness” referred to by the Court was

the holding of the District Court that: “The job analysis con-

ducted herein convinces this Court that the areas tested suf-

ficiently identify suitable candidates for promotion.” 410 F.

Supp. at 959 (emphasis supplied, App. ...). The Court citing

Bridgeport Guardians, Inc., supra, found support for the proposi-

tion that a non-comprehensive written examination can be lega'ly

used. This proposition has become the law in Washington v.

Davis, 426 U.S. at 252. The District Court found the exam to

be content valid and said: “Neither a perfect examination, nor

an examination without a disparate impact is a necessity, where,

as here, the employer has esiablished that the examination has

been validated in accordance with recognized methods.” 410 F.

Supp. at 959 (Emphasis supplied), A. 43. The Court of Ap-

peals hela that “. . . it is this court’s opinion that an erroneous

legal standard was applied in reaching that conclusion.” (that

the test identified suitable candidates for promofion); (Court of

Appeals, A. 10). Petitioners submit that it was the Court of

Appeals and not the District Court which applied an erroneous

legal standard.

The evidence at trial established, the District Court found,

and the Court of Appeals refused to challenge the finding that

Dr. O'Leary's job analysis of the Fire Captain's job was

“thorough and complete.” (Court of Appeals, A. 8, fn. 9). The

Court of Appeals also refused to hold the exam invalid for the

areas of job knowledges which it attempted to cover. (Court of

Appeals, A. 13). The “fatal flaw” was that the test did not go

far enough in that it did not test “supervisory” skills. (Court

of Appeals, A. 8). (To the extent that the job analysis dem-

onstrated that job knowledge was a mandatory prerequisite for

= =

performing a Fire Captain's functions, the written test did test

“supervisory skills.” )

As was pointed out above, there is no requirement that a

test be thoroughly comprehensive in order to be content valid.

The EEOC Guidelines contain no such requirement. The Amer-

ican Psychological Association's Standards for Educational and

Psychological Tests and Manuals (1966), which are adopted

by reference in the EEOC Guidelines and its recently repub-

lished Guidelines §1607.5(a) (41 Fed. Reg. at 51985), con-

tain no such requirement. The newer 1974 APA Standards

for Educational and Psychological Tests (not “and Manuals”),

which were not adopted by the EEOC and on which the Court

of Appeals placed specific reliance, contain no such require-

ment. Additionally, the 1974 Standards specifically provide:

“A final caveat is necessary in view of the prominence

of testing issues in litigation. This document is prepared

as a technical guide for those within the sponsoring pro-

fessions; if is not written as law. What is intended is a set

of standards to be used in part for self-evaluation by test

developers and test users. An evaluation of their compe-

tence does not rest on the literal satisfaction of every rele-

vant provision of this document. The individual standards

are statements of ideals or goals, some having priority over

others. Instead, an evaluation of competence depends on

the degree to which the intent of this document has been

satisfied by the test developer or user.” (1974 Standards

at 8, emphasis supplied. )

Here the Court of Appeals treated the 1974 Standards as law

and applied them more than literally. Further, the Uniform

Guidelines of the Coordinating Council specifically allow the

use of non-comprehensive tests which still may have content

validity. See §12c(3) which provides in part, Where the do-

main or domains measured are critical to the job, OR consti-

tute a substantial proportion of the job, the selection procedure

will be considered to be content valid for the job.” (41 Fed.

—— ae Eee ~“

= =

Reg. at 29020, emphasis supplied.) Here, the domains meas-

ured are both critical to the job (“It was clear from the inter-

views conducted that knowledge of fire fighting and inspection

were considered to be very important.” 410 F. Supp. at 959,

A. 42, emphasis supplied), and the areas tested constituted a

substantial proportion (over 50% ) of the job.

The portion of the 1974 APA Standards quoted and relied

on by the Court of Appeals provides:

“An employer cannot justify an employment test on the

grounds of content validity if he cannot demonstrate that

the content universe includes all, or nearly all, important

parts of the job.” (Court of Appeals, A. 9, emphasis in

Court's opinion. )

The Court ignored the disjunctive nature of the above-quoted

language and required that the only important area not tested

directly before piacing a man on the job. i.e., supervisory skills,

also be tested in order for there to be content validity. This is

contrary to the applicable law and guidelines and contrary to

the intent of Congress that the use of tests be allowed.

The Court of Appeals suggested the use of a very expensive

selection procedure (the “Assessment Center,” about $500 per

candidate estimated cost if done as for position of Fire Chief)

which has been shown to successfully test supervisory skills.

However, there was absolutely no evidence in the record that

the use of an “Assessment Center” would have any less serious

racial impact than the written test. In fact, a suit is now pend-

ing in the Eastern District of Virginia where an “Assessment

Center” was used for fire department promotions and it did

have a disparate impact on blacks. Roscoe Friend, et al. v.

City of Richmond, et al., Civil Action No. 74-0327R, Eastern

District of Virginia, Richmond Division. It also appears that

the Court of Appeals has placed more importance on the im-

portance of supervisory skills than they carry with respect to

the Fire Captain rank. See the opinion of the Missouri State

Board of Mediation which included Fire Captains in the same

collective bargaining unit with Fire Fighters. St. Louis Fire

Fighters Ass'n, Local No. 73 v. City of St. Louis, unpublished

opinion (February 23, 1977), at A. 64.

The decision of the District Court that the 1974 written

Fite Captain exam was content valid is in accord with the

EEOC Guidelines, the 1966 and 1974 APA Standards, the

new EEOCC Uniform Guidelines and the intent of Congress

in enacting Section 703(h). In Griggs this Court said, “If an

employment practice which operates to exclude Negroes cannot

be shown to be related to job periormance, the practice is pro-

hibited.” 401 U.S. at 431. Here the test has been demonstrated

to be content valid, it is therefore “demonstrably a reasonable

measure of job performance.” 401 U.S. at 436. Candidiates

for promotion are measured for the job of Fire Captain and

not in the abstract.

CONCLUSION

For the reasons stated above, this petition for writ of cer-

tiorari should be granted.

Respectfully submitted,

JOHN H. GOFFSTEIN

JEROME A. DIEKEMPER

130 South Bemiston Avenue

Clayton, Missouri 63105

Attorneys for Petitioners

Of Counsel:

BARTLEY, GOFFSTEIN, BOLLATO

& LANGE

130 South Bemiston Avenue

Clayton, Missouri 63105

APPENDIX

APPENDIX I

United States Court of Appeals

For the Eighth Circuit

Nos. 76-1507 and 76-1663

Firefighters Institute for Racial |

Equality, et al.,

Plaintiffs-Appellants,

Vv.

Appeal from the

United States Dis-

trict Court for the

Eastern District of

Missouri

City of St. Louis, et al.,

Defendants-Appellees,

United States of America,

Plaintiff-Appellant,

City of St. Louis, et al.,

Defendants-Appellees.

Submitted: October 14, 1976

Filed: February 2, 1977

Before Lay, Ross and Stephenson, Circuit Judges.

Ross, Circuit Judge.

In this consolidated action, black firefighters and the Depart-

ment of Justice allege the existence of racially discriminatory

— ee

practices in the St. Louis City Fire Department. In the first

action the Firefighters Institute for Racial Equality (F.I.R.E.)

and several named plaintiffs represent a class who are presently

employees or who seek employment with the St. Louis Fire

Department. The United States subsequently filed suit under

Title VII of the Civil Rights Act of 1964 seeking redress for a

“pattern or practice” of discrimination as well as for individuals

not represented by F.I.R.E. Both actions were filed pursuant

to 42 U.S.C. §§ 1981, 1983 and 2000e et seg. The principal

defendant, the City of St. Louis, is joined in its argument by

the Intervenors who represent a class of nonblack employees

and candidates for employment in the fire department.

Appeal is taken on a number of issues, but no appeal has been

taken with respect to the examination for firefighter which is the

entry level position in the fire department.' The F.I.R.E.-Ap-

pellants do contest the City’s promotional practices with re-

gard to the fire captain’s exam and the battalion chief's exam

Also charged as unlawful are exclusion of blacks from fire-

house eating arrangements known as “supper clubs,” and the

failure to promote a black individual, George Horne, to a fire

captain position. F.I.R.E. also contests the amount of attorney's

fees which the district court indicated it would award.

Of these issues, the United States appeals on only two: the

promotional exam for fire captain and the supper club discrimi-

nation issue. This court considers the latter as the principal

claims, and reverses with respect to them. The district court is

affirmed with respect to the battalion chief exam and in the

matter of George Horne.

' The firefighter exam was shown to have had a disparate racial

effect and was not violated. on June $8 and unc order 2 (June 28,

1976). The order was entered on June 28

1976 memorandum opinion which had included the parties partial

pony doy died yd Pay oy une 28 the court

an r pursuant to stipulation parties granting

similar to the partial consent decree. The J

rrserey ny efter ty Ay Ln AE J Ld,

blacks in filling vacancies at the entry level over the next

a

|

_—Y =

Fire Captain's Examination

The position of fire captain is the first level supervisory job

in the St. Louis Fire Department. According to the findings of

the district court, fire captains are responsible for the super-

vision of a group of men and equipment on a particular work

shift. The in-service training of the firefighters under his com-

mand is a significant part of the fire captain's job. According

to the City’s validation study, the fire captain leads his company

at the fire scene.

Promotion to the fire captain's position is dependent on a

composite score developed from three measurements of an indi-

vidual’s qualifications. For candidates on the 1974 eligibility

list which is at issue here, the “written test” was given a 45

weight as was an “experience and training score.” The

“service rating” score was weighted as 10 percent of the com-

posite.

Attaining the rank of fire captain is a highly sought-after and

competitive goal of both blacks and whites. From the 1974

the eligibility list. The highest ranking black man ranks as num-

ber 55 out of a total of 189 on the lh... As a prerequisite for

The experience and training score, which comprised 45 per-

cent of the total score, is also a function of length of service

with the fire department. According to the district court, points

2

—_ye

are awarded for each month of experience with the department.

In 1974 all applicants with ten or more years experience re-

ceived the maximum score of 45 points. Eighty-one percent of

those who made the 1974 eligibility list for the captain's posi-

tion received the maximum number of points for experience

and training.

While the experience and training score is largely quantita-

tive, the “service rating” is qualitative, and reflects the indi-

vidual’s last supervisory rating prior to announcement of the

written exam. On this measurement of qualification, 93 percent

of the persons on the eligibility list received scores in the narrow

range between 7.8 and 9.2.

At tral Dr. O'Leary, the City’s test analyst and expert wit-

because he felt that experience on the job and the quality of that

experience were important factors in evaluating potential fire

-

ee De CC

—_v

presented established that the test had a disparate impact on

blacks.*

It is a distinguishing feature of a Title VII cause of action

that discriminatory impact suffices to establish a prima facie

showing of discrimination. The recent case of Washington v.

Davis, 426 U.S. 229, 239 (1976) establishes that a law or

official act is not unconstitutional solely because it has a racially

disproportionate impact regardless of whether it reflects a

racially discriminatory purpose. However, Congress statutory

standard for Title VII, where discriminatory purpose need not

be proved, is unshaken by the Washington decision. /d. at

246-47.°

It is now a familiar principle that Title VII was not meant

1

|

7

|

:

—_v a

U.S. 405, 425 (1975). Accepted professional methods of “vali-

dating” exams ‘or their job-relatedness are found in the EEOC

Guidelines published in 29 C.F.R. § 1607.5 (1975). The Su-

preme Court has said of these test validation techniques:

The EEOC Guidelines are not administrative “regulations”

promulgated pursuant to formal procedures established by

the Congress. But, as this Court has heretofore noted, they

do constitute “[t)he administrative interpretation of the

It is also true that in this case Dr. O'Leary, the City’s expert

who developed and validated the test, purportedly considered

omitted). See also, . New . 1

Sers., 520 F.2d 420, 426 (2d Cir. 1975); Vulean Soc’y of New

York City Fire ., Inc. v. Civil Serv. Comm'n, 360 F Supp. 1265,

(S.D.N.Y. 1973).

et. A. th CO. Oe —_

—S

Predictive validation requires a comparison between an appli-

cant’s test scores and subsequent on-the-job performance as

an employee; concurrent validation methods correlate the test

scores of present employees vis-a-vis their present job perform-

ance. Vulcan Society of New York City Fire Dept. v. Civil

Service Commission, 490 F.2d 387, 394 (2d Cir. 1973). These

empirical methods are, of course, dependent on statistical cor-

relations as proof of reliability and validity. Content validity,

the technique chosen by Dr. O'Leary for justification of the fire

captain's exam, generally requires that the examination reflect

a representative sample of the knowledge or behavior that will

be used in performance of the job.

The F.1.R.E.-Appellants have argued on this appeal that a

content validity study should not have been undertaken by the

City and that type of test should be used only when a criterion-

related study has proved to be technically infeasible.’ This

argument is now undermined by the Supreme Court's recent

observation in Washington v. Davis, 426 U.S. 229 (1976),

that “[i}t appears beyond doubt by now that there is no single

method for appropriately validating employment tests for their

relationship to job performance.” /d. at 247 n.13 (emphasis

added). Although in this court's opinion content validation,

if properly done, could be an acceptable means of evaluation

for the City to undertake, it is no more acceptable than a

criterion-related test, especially if such criterion-related test in-

—_y

formed. The district court concluded, and this Cov,. does not

challenge the finding, that Dr. O'Leary's analysis »>f the fire

captain's job was thorough and complete.”

It is in fact the fatal flaw in the validation study that the

test Dr. O'Leary devised did not reflect his findings in the job

analysis. The captain's exam admittedly failed to test the one

major job attribute that separates a firefighter from a fire cap-

tain, that of supervisory ability. From the interviews conducted

for the job analysis, the City’s expert determined that almost

43 percent of a fire captain's time was spent in supervision, a

higher percentage of time than on any other single element.

Of the six tasks ranked as the “most important,” supervision

was fourth. There was no attempt to test supervisory skills

* Twenty-seven fire captains were interviewed i = ee

cement of Gt bb andl cas Gee abies | ce. Capains

importance.

dents of the job, and the essential and desirable qualities of a fire

captain.

A pool of questions for the exam were obtained through the Inter-

national Governmental Personnel Associauion; accord-

ing to Dr. O , a Series of items ane Se Sp Cena

were also i . Questions on the exam were accord-

ing to the importance of cach area of . The best items

‘©

=

m .

o

See United States v. City of St. Louis, 410 F.Supp. 948

Mo. 1976).

Dr. Barrett's main to the job was that in his

the of job activities and levels were incom-

He also pees, Cae Se Sagas ean.

interview technique, and of information used by

O'Leary were reasonable Considering the district court's

the lower court's conclusion about the job analysis. Compare the

job analysis in this case with the cursory in

Vulcan Soc’y of New

whan

The EEOC Guidelines accept evidence of content validity

for tests “that consist of suitable samples of the essential knowl-

edge, skills or behaviors composing the job in question.” 29

C.F.R. § 1607.5(a) (1975) (emphasis added). Similarly, the

APA Standards, which the EEOC Guidelines refer the reader

to, clearly warn that:

An employer cannot justify an employment test on grounds

of content validity if he cannot demonstate that the con-

tent universe includes all, or nearly all, important parts

of the job.

AMERICAN PSYCHOLOGICAL ASSOCIATION, STAND-

ARDS FOR EDUCATIONAL AND PSYCHOLOGICAL

TESTS 29 (1974) (emphasis added).

It is clear that this court's objection to this test is similar to

the objections of other courts. In a decision where Blacks and

Hispanics challenged the content validity of a correction offi-

cer’s exam, the court also questioned the test’s lack of com-

prehensiveness:

More serious perhaps than specific item flaws is the fact

that, regardless whether 34-944 adequately tests the at-

tributes it is intended to measure, it fails to examine a

number of traits, skills and abilities which witnesses for

both sides singled out as important to the Sergeant job.

Among these are leadership, understanding of inmate re-

socialization, ability to empathize with persons from dif-

ferent backgrounds, and ability to cope with crisis situ-

ations.

Kirkland v. New York State Dept. of Correctional Services, 374

F.Supp. 1361, 1378 (S.D.N.Y. 1974), aff'd in relevant part,

520 F.2d 420 (2d Cir. 1975). In Vulcan Society of New York

City Fire Department, Inc. v. Civil Service Commission, supra,

360 F.Supp. at 1274, aff'd, 490 F.2d 387 (2d Cir. 1973), the

court quite simply stated: “[ajn examination has content va-

= Aptian

lidity if the content of the examination matches the content of

the job.”'® Though the district court was “convinced” from

the job analysis that the “areas tested sufficiently identify suit-

able candidates for promotion,” it is this court's opinion that

an erroneous legal standard was applied in reaching that con-

clusion. The job analysis here may have appeared impressive

in relation to those challenged in other cases, but a good

analysis in any situation is of little use when the examination

fails to reflect what is found in the job analysis. The test is not

content valid. In short, even a common sense concept of con-

tent validity, aside from EEOC and APA Standards, requires

that On important and distinguishing attribute be tested in some

manner to find the best qualified applicants. Here, where the

exam failed to test a job component comprising over 40 percent

of the employee’s time, the inference of discrimination has not

been rebutted with a finding of the exam's “job-relatedness.”

Both experts agree that there is no good pen and paper test

for evaluating supervisory skills. In his validation study Dr.

O'Leary had anticipated that supervisory ability would be judged

after an employee had been selected and placed on the job

through the use of a “six month working test period.” Accord-

ing to the validation study, the individual's supervisory abilities

would be “closely scrutinized” and his performance evaluated

on a pass/fail basis. Whatever merit this idea may have as a

means of eliminating unfit employees after they are chosen, it

aoe ene “It is essential that the examination test

t attributes in ion to their relative importance on

the job and atthe level of dificulty demanded by the Jo 360 F.

Supp. at 1274. See also Douglas v. Hampton, 512 F.2d 976 (D.C.

Cir. 1975). “ ‘Content’ validity is established when the content of

the test closely approximates the tasks to be ormed on the job

by the cant.” Jd. at 984 (emphasis ) (footnote omitted).

See also Bridgeport Guardians, Inc. v. Members of Bridgeport Civil

Serv. Comm'n, 482 F.2d 1333, 1338 (2d Cir. 1973). Dr. O'Leary

said at trial: “Content validity is validity demonstrated when one can

sumtabae Deaaace i * * * are very close to the

content j person is going to be orming.” (Em-

phasis added ). 2

— Ss — ES ES ———

—_<

cannot substitute for a valid selection method utilized at the

outset to fairly pick the best employees in a nondiscriminatory

manner. The many who are not picked for the “working test

period” obviously have no opportunity to compete or to raise

their rank by a demonstration of their ability. Significantly,

the City’s director of personnel testified that though the work-

ing test portion has “always existed” he did not know whether

a fire captain had ever been eliminated because of his perform-

ance during that period. Used in this manner, the probation-

ary period would prove even less valuable as a means of se-

lection.

Both experts also testified at trial concerning an excellent

method of supervisory evaluation known as the Assessment Cen-

ter technique. Dr. O'Leary had himself used it for the deputy

and fire chief examination in St. Louis, labeling it as “one of

the most effective methods” available. He described the Assess-

ment Center as a selection procedure which uses individual and

group exercises that simulate job responsibilities while asses-

sors evaluate a candidate’s performance. The Assessment Cen-

ter was apparently rejected for choosing fire captains because

of the large number of persons who wish to take that test. The

evidence indicates that the assessment technique takes at least

one day and costs as much as $500 per person.

Dr. Barrett, who is enthusiastic about this approach as well,

has suggested a means for reducing the expense through the use

of a content valid screening test. As the court understands his

testimony, the written test would be a screening device only,

eliminating those persons who obviously did not possess the

requisite job knowledge to perform at the captain's level. The

Assessment Center could then be used to rank those persons

who successfully complete the written exam. Dr. Barrett, how-

ever, also testified that this cutoff score would need to be rela-

tively low. As Dr. Barrett testified, another possible screening

device is performance ratings given from the lower level job.

: — A-i2 —

This court clearly does not have enough evidence in the

record or testing expertise to devise a complete remedy for

testing supervisory skills using the Assessment Center or any

other method. Other courts have dealt with the problem and

in similar causes of action concerning invalid exams have di-

rected “executive or administrative officials to live up to their

responsibilities and to prepare and conduct an examination con-

sonant with the Fourteenth Amendment.” Vulcan Society of New

York City Fire Dept., Inc. v. Civil Service Commission, supra,

360 F.Supp. at 1278.

Other courts have also dealt with the necessity of testing

supervisory skill where that attribute was critical. In affirming

the district court’s rejection of New York City’s exam for school

principals, the court of appeals said:

The [district] judge did not outlaw other written examina-

tions or indicate that none could be created to test more

fairly the qualities necessary for a supervisory job. It may

well be that new testing procedures will be devised by the

parties themselves and be approved by the district court.

Chance v. Board of Examiners, 458 F.2d 1167, 1179 (2d Cir.

1972) (footnotes omitted ).

This court will take the same general approach of urging

the parties on remand to devise a test of supervisory skills to

be approved by the district court. The one caveat is that the

final test must be validated in accordance with the published

EEOC Guidelines. This may be accomplished by devising a

content valid test or by a concurrent criterion-related validity

test. The Assessment Center is a concededly good device, but

the court will not at this point require that approach to be the

sole method finally used. Whatever test is used should provide

equal reliability and validity. Because of the difficulty of de-

vising a test properly reflecting the supervisory skills of the ap-

— A-13 —

plicants, it is possible that a criterion-related concurrent valida-

tion test coupled with a limited use of the Assessment Center

would meet the guidelines. Cost to the City is one factor which

may be considered in deciding whether to use the Assessment

Center technique,'' but it may not be the sole deciding factor.

The district court shall have continuing jurisdiction until a

valid exam is devised by the parties to these cases, if possible,

and may require reports or take evidence on testing procedures

as it deems necessary. The final plan will be subject to that

court’s approval.

Both appellants also argue that the test has a number of

“flawed items” which invalidate the written exam even for the

areas of job knowledge it has attempted to cover. At trial

Dr. Barrett had criticized many of the individual questions that

were used on the test.'* Tnough Dr. Barrett gave examples

of each of his specific criticisms, his testimony does not render

the trial court clearly erroneous. When asked if each item on a

test had to be valid in order for the whole test to be valid, he

replied that it did not. He previously admitted not having made

a study of the entire fire captain's exam to determine the total

number of poor and unrelated questions. This court agrees that

some improvement could be made in this area.

11 Jf a screening device is used in conjunction with the Assess-

ment Consee, Gpalanment of a fair cutoff score is obviously im-

portant. The EEOC Guidelines provide:

It is expected that each operational cutoff score will be reason-

able and consistent with normal expectations of proficiency

within the work force or group on which the study was con-

ducted

29 C.F.R. § 1607.6 (1975).

12 Dr. Barrett objected to “tenuous linkage” in some questions,

questions where a correct answer did not guarantee adequate per-

formance on the job; and questions that gave a um to the

test-wise individual. Other items, he said, called for “esoteric in-

formation” not related to job performance.

— A-14—

Supper Clubs

The second principal claim concerns the exclusion of blacks

from the “supper clubs.” Supper clubs are informal eating

arrangements among on-duty firefighters at firehouses in the

St. Louis Fire Department. Cooking facilities, stove, refrigera-

tor, and cabinets for storage, are provided by the City for the

use of its on-duty personnel. Each supper club provides for

its own utensils and condiments and buys food for the shared

meals. A cook is chosen, who the district court found, “has

the discretion and authority to determine who is a member of

the club.” The clubs are not organized or regulated by the

Fire Department.

As a finding of fact the district court concluded that blacks

have been excluded from many of these clubs. These exclusions,

the court found, frequently result in blacks, where a minority in

a firehouse, cooking and eating apart from their white associates.

The district court felt that such segregation was “offensive”

and “incomprehensible” but concluded that because no Fire De-

partment directive or order promoted the exclusivity, the court

would not intervene. The district court did indicate that if the

problem persisted it would seek a solution.

The existence of segregated supper clubs was accepted as a

fact by the district court and that fact is accepted here. This

court as well finds the exclusion of black co-workers by whites

highly offensive, and regards the situation as one which the Fire

Department could remedy by appropriate regulations.

In Rogers v. Equal Employment Opportunity Commission,

454 F.2d 234, 238 (Sth Cir. 1971), cert. denied, 406 U.S. 957

(1972), the court in determining tl.at the Commission possessed

“the statutory authority to investigate psychological fringes in an

employment relationship,” discussed the scope of Title VII's

authority to alleviate race discrimination:

— A-15 —

This language evinces a Congressional intention to define

discrimination in the broadest possible terms. Congress

chose neither to enumerate specific discriminatory prac-

tices, nor to elucidate in extenso the parameter of such

nefarious activities. Rather, it pursued the path of wisdom

by being unconstrictive, knowing that constant change is

the order of our day and that seemingly reasonable prac-

tices of the present can easily become the injustices of the

morrow. Time was when employnient discrimination

tended to be viewed as a series of isolated and distinguish-

able events, manifesting itself, for example, in an em-

ployer’s practices of hiring, firing, and promoting. But

today employment discrimination is a far more gomplex

and pervasive phenomenon, as the nuances and subtleties

of discriminatory employment practices are no longer con-

fined to bread and butter issues. As wages and hours of

employment take subordinate roles in management-labor

relationships, the modern employee makes ever-increasing

demands in the nature of intangible fringe benefits. * * *

* * * Therefore, it is my belief that employees’ psycho-

logical as well as economic fringes are statutorily entitled to

protection from employer abuse, and that the phrase “terms,

conditions, or privileges of employment” in Section 703 is

an expansive concept which sweeps within its protective

ambit the practice of creating a working environment

heavily charged with ethnic or racial discrimination. * * *

One can readily envision working environments so heavily

polluted with discrimination as to destroy completely the

emotional and psychological stability of minority group

workers, and I think Section 703 of Title VII was aimed at

the eradication of such noxious practices.

See also Wilson v. Woodward Iron Co., 362 F.Supp. 886, 896

(N.D. Ala. 1973). The language in Rogers is apposite to the

situation in this case.

— A-16 —

The City provides the cooking facilities in each firehouse for

use by its on-duty personnel as part of their employment; it is

clear that city officials have been made aware of the segregated

eating arrangements in the firehouses for sometime and have

protested their inability to solve the problem to the district court.

On remand of this case to the district court, that court should

renew the interest it had indicated it had in an ongoing review

of the supper club problem by supervising the Department's

promulgation of new regulations. Those regulations should pro-

vide that use of city facilities by supper clubs may not continue

in a discriminatory and segregated manner. In other words the

supper clubs may not use City kitchen facilities if they refuse

membership to blacks. In this way the City may comport with

its duty to provide a nondiscriminatory working environment;

additionally, the inclusion of blacks and the reduction of racial

tension in firehouses cannot help but aid the City as an employer

where the job at hand requires the close cooperation of its em-

ployees and a concerted team effort.

Battalion Chief's Exam and the Matter of George Horne

The F.I.R.E.-Appellants have appealed the district court's

decision that a prima facie case of racial discrimination was not

shown with respect to the use of the battalion chief's examina-

tion. We affirm. It is undisputed that results from the exam

showed no disparate racial impact. Two of the three blacks

who took the examination passed it and at least one will be

appointed to the higher level supervisory position. F.I.R.E. ar-

gues, however, that a comparison of the racial composition of

the employment pool with the lack of black battalion chiefs

clearly suffices for a prima facie showing of racial discrimina-

tion. This argument is rejected. In Carter v. Gallagher, 452

F.2d 315, 323 (8th Cir. 1971) this court held that demo-

graphical “([s}tatistical evidence can make a prima facie case of

eS ees

a

—_Y

discrimination” in a situation where an all white 535 man Fire

Department operated in a large city with a 6.44 percent black

population. In St. Louis, eleven percent of the existing force is

black, and blacks will be hired at a 50 percent rate on the entry

level pursuant to the district court's order.

In the case on which F.L.R.E. makes its primary claim for

support, the court used census figures to supplement “meager

exam statistics” which had shown a racial disparity. See Boston

Chapter N.A.A.C.P., Inc. v. Beecher, 504 F.2d 1017, 1020 (Ist

Cir. 1974). This is obviously not the case here.

Likewise, the district court is affirmed in the matter of George

Horne. The district court found that a union official had written

a letter to Mr. Horne in which he told him that six vacancies

would be available. The district court also found that a Deputy

Chief had told Horne he would speak to the Fire Chief concern-

ing a promotion. However, only four new fire captains were

requisitioned by the Fire Department at that time, eliminating

Horne from consideration prior to the expiration of the cligi-

bility list. .

F.1.R.E. points to no evidence which suggests that racial dis-

crimination was the Department's motive in making a request

for four new captains. In fact, George Horne was sixth on the

eligibility list, and a white man who was fifth and would precede

Horne was also passed over for promotion.

As a final matter, St. Louis has raised the issue of whether

or not the district court erred in not dismissing the suit brought

by the United States under 42 U.S.C. §§ 2000e-5(f) and 2000e-

6(b). It is the City’s contention that the United States could

only participate in this suit as an intervenor, that to bring their

own suit is duplicative and contrary to the intent of the statute.

The United States argues that St. Louis is precluded from raising

this issue because of failure to cross-appeal; that the suit by the

— A-18 —

United States is brought on the basis of 47 charges filed with the

EEOC, 30 of which were not included in the F.LR.E. com-

plaint; that the United States also proceeded under the pattern

and practice authority of § 2000e-6 on behalf of the “public

interest” and accordingly. presents policy considerations dif-

ferent from those preseuted by private litigants; and finally that

the consolidation of the cases provides an equivalent practical

effect.

We agree with each of the reasons advanced by the United

States, (with the exception of the second reason) and, in view

of the consolidation of the cases for trial, and the fact that

F.LR.E. raised the same questions as the United States on appeal,

we do not consider our determination to be in conflict with

EEOC v. Missouri Pacific Railroad Co., 493 F.2d 71 (8th Cir.

1974).

A question is also raised concerning the jurisdiction of the

district court to enter its nunc pro tunc order of June 28, 1976.'*

Without passing on this question we direct that at the time the

listri estadiction of the a 1 it

should reenter its order as of that date.

Also at that time the district court should award appropriate

attorney's fees to F.1.R.E. for work prior to this appeal. The

court had previously indicated it was without jurisdiction to do

so after an appeal was taken. Attorney's fees under Title VII

may be awarded pursuant to 42 U.S.C. § 2000e-5(k). The fees

awarded in this case, both on remand and upon completion of

the balance of the case, should be in a fair and reasonable

amount in accordance with twelve guidelines set by the court in

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (Sth

Cir. 1974). In our opinion the award of $3,000 suggested by

the trial court is grossly inadequate under these guidelines for

work done prior to appeal.

'* See note |, supra.

- -

eee ee ee ee -

— A-19 —

Accordingly, the judgment of the district court is affirmed

in part, and reversed and remanded in part for further proceed-

ings consistent with the views expressed in this opinion. Attor-

ney’s fees for this appeal will be awarded to F.1.R.E. upon

submission of affidavits relating to the guidelines described in

Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d 714.

A true copy.

Attest:

Clerk, U. S. Court of Appeals, Eighth Circuit.

—_r

United States Court of Appeals

for the Eighth Circuit

76-1507

Firefighters Institute of Racial Equal-

ity, etc., et al.,

Appellants,

VS.

The City of St. Louis, Missouri, etc.,

et al.,

Appellees.

76-1663

United States of America,

Appellant,

vs.

The City of St. Louis, Missouri, etc.,

et al.,

September Term, 1976

Appeals from the

United — States— Dis-

‘ trict Court for the

Eastern District of

Missouri.

Appellees. |

The Court having considered petition for rehearing en banc

filed by counsel for intervenors-appellees and, being fully ad-

vised in the premises, it is ordered that the petition for rehearing

en banc be, and it is hereby, denied.

Considering the petition for rehearing en banc as a petition

for rehearing, it is ordered that the petition for rehearing also be,

and it is hereby, denied.

February 25, 1977

ee ee ewe

— A-21 —

APPENDIX Ill

United States Court of Appeals

for the Eighth Circuit

76-1507 ;

Firefighters Institute of Racial Equal-

ity, etc., et al.,

Appellants.

vs.

The City of St. Louis, Missouri, etc.,

et al.,

September Term, 1976

Appeals from the

United States Dis-

Appellees. > trict Court for the

The City of St. Louis, Missouri, etc.,

et al.,

Appellees. /

Eastern District of

Missouri.

Petition of appellees for rehearing fiiled in these appeals hav-

ing been considered, it is now here ordered by this Court that

the same be, and it is hereby, denied.

- February 25, 1977

— A-22 —

APPENDIX IV

United States District Court

Eastern District of Missouri

Eastern Division

United States of America, )

Plaintiff,

. No. 74-200 C (4).

City of St. Louis, et al.,

Defendants.

Firefighters Institute for Racial )

Equality, et al.,

Plaintiffs,

VS. > No. 74-30 C (4).

City of St. Louis, et al.,

Defendants. /

ORDER

(Filed April 9, 1976)

Pursuant to the memorandum filed this date,

It Is Hereby Ordered, Adjudged, and Decreed that defend-

ants shall have judgment against plaintiffs, and that these causes

be and are dismissed at plaintiffs’ costs.

/s/ JOHN F. NANGLE

United States District Judge

Dated: April 9, 1976

"

— A-23 —

United States District Court

Eastern District of Missouri

Eastern Division

United States of America, >

Plaintiff,

= . No. 74-200 C (4).

City of St. Louis, et al.,

Defendants. _

Firefighters Institute for Racial \

Equality, et al.,

Plaintiffs,

VS. . No. 74-30 C (4).

City of St. Louis, et al.,

Defendants. |

MEMORANDUM

(Filed April 9, 1976)

Plaintiffs brought these actions pursuant to Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., and 42

U.S.C. §§1981 and 1983.

These cases were tried before the Court sitting without a

jury. The Court having considered the pleadings, the testimony

of the witnesses, the documents in evidence, the stipulations of

the parties, and being otherwise fully advised in the premises,

hereby makes the following findings of fact and conclusions of

law as required by Rule 52, Federal Rules of Civil Procedure:

ao 496 a=

Findings of Fact

1. Plaintiff, Firefighters Institute for Racial Equality, Inc. is

a not-for-profit corporation, organized under the laws of the

State of Missouri. Plaintiff, Preston Sims, is a black citizen of

the United States, resident of the City of St. Louis, Missouri.

Plaintiff Sims was denied employment by the Fire Department,

based in part at least upon his failure to pass a written test

which was given as a prerequisite for employment by the St.

Louis Fire Department. Plaintiffs, George Baker, Robert D.

Morgan, Robert Grady, Sherman George, George Redford

Turner, Lawrence L. Britt, Vernon Ammons, Wendell H. Goins,

Charles Gay, George E. Horne, William L. Young, Daniel S.

Austin, Robert Anderson, John H. Harvey, Joseph P. Hughes,

and Eugene Stanton are all black citizens of the United States,

and residents of the City of St. Louis. All are presently em-

ployed by the St. Louis Fire Department. The Attorney Gen-

eral has brought suit on behalf of the United States.

2. Defendant City of St. Louis is a municipality incorpo-

rated pursuant to the laws of the State of Missouri and is a

political subdivision of that State. Defendant Division of Fire

and Fire Prevention is one division within the Department of

Public Safety of the City of St. Louis. It operates all firefight-

ing facilities of the City of St. Louis. Defendant Frank C. Cum-

mings is the Acting Chairman of the Civil Service Commission

of St. Louis. Defendants Fred Gould and Charles Marino are

members of the Civil Service Commission. Defendant Joseph

B. Clark is the Director of the Department of Public Safety

of the City of St. Louis. Defendant Charles Kamprad is the suc-

cessor to the originally named defendant Denis Broderick, who

subsequently retired as Chief of the Fire Department. Defend-

ant R. Elliott Scearce is the Director of the Department of Per-

sonnel for the City of St. Louis, responsible for establishing

eligibility lists for employment and promotion by the Fire De-

partment.

_—

ne —————EE——OeeeEOEEEEOOeEEEEUECOeEEEEEEeEEEEEEEEEEEEE EE a

— A-25 —

3. Intervenor Michael Davis is a non-black employee of the

City of St. Louis who has applied for employment with the St.

Louis Fire Department. He has a position on both the promo-

tional hiring list and the open competitive hiring list. Inter-

venors Edwin David Banta and George Hohman are members

of a class of 177 non-black firefighters, all of whom have under-

gone testing for evaluation and promotion to the rank of Fire

Captain and all of whom are on the current eligibility list for

such promotion. Intervenors Donald Blackwell, Nick Altmeyer

and George Tschlis are members of a class of 100 non-black

Fire Captains, all of whom have undergone testing and evalu-

ation for promotion to the rank of Battalion Chief and all of

whom are on the current eligibility list for such promotion.

4. The Fire Department of the City of St. Louis is a division

of the Department of Public Safety of the City of St. Louis.

The Director of the Department of Public Safety, Mr. Joseph

B. Clark, is an appointee of the Mayor. The Fire Chief is re-

sponsible to the Director of the Department of Public Safety.

The Fire Chief is responsible for the day-to-day operation and

policies of the department. Under the Fire Chief are the Deputy

Fire Chiefs, responsible for the management of the department

in its day-to-day functions. The Deputy Fire Chiefs each su-

pervise one-third of the Fire Department's personnel, as each

is assigned to one of the three shifts. The Deputy Fire Chiefs

respond to any and all major alarms of fire. The City of St.

Louis is divided, for the purposes of the Fire Department, into

seven districts. In charge of each district is the Battalion Chief,

who reports to the Deputy Fire Chief. The Battalion Chief has

supervision over approximately eight companies, the number

varying depending upon the size and fire hazards within each

district. The Battalion Chief is responsible for the companies,

including the men, officers, equipment, houses, and the fire

safety of the individuals and property located within the district.

The Fire Captain serves below the Battalion Chief. The Fire

Captains work in shifts and are responsible for the men and

— A-26 —

equipment under their supervision. The Fire Captain is also

responsible for the training of individuals under his supervision.

5. The rank structure of uniformed personnel in the St. Louis

Fire Department, in ascending order of rank, is Firefighter, Fire

Captain, Battalion Chief, Deputy Chief, and Fire Chief.

6. As of November 30, 1974, there were approximately 1,000

uniformed personnel employed in the St. Louis Fire Department,

of whom approximately 110 (11%) were black.

7. Applicants for the entry level position of firefighter are

required to be residents of the City of St. Louis on their date

of application.

8. On November 30, 1974, there were approximately 180

persons in the rank of Fire Captain, of whom 4 (2.2%) were

black. No black has ever held a uniformed position in the Fire

Department above the rank of Fire Captain.

9. In the period since November 30, 1964, 95 whites and 1

black have been promoted to the position of Fire Captain. The

black was Daniel Austin, promoted to Fire Captain on May

22, 1966.

10. Pursuant to the provisions of the City Charter, appoint-

ments to the entry level position of Firefighter, and promotions

to higher positions within the Fire Department, are made from

eligibility lists prepared by the Personnel Department of the

City of St. Louis. The Personnel Department, in response to

a requisition for personnel made by the Fire Department and

approved by the Director of Public Safety and the Budget De-

partment, certifies to the Fire Department, in order of rank

from the appropriate eligibility list, a number of persons equal

to the number of vacancies to be filled, plus two. The Fire De-

partment then appoints from those certified the persons it wishes

to fill the vacancies.

een es ee ee er Pe

eet ee ee

en ee

OO

—_< =

11. In certifying persons for the entry level position of Fire-

fighter, the Personnel Department first certifies, in order of rank,

persons from an eligibility list of qualified applicants who are

then permanent city employees (the promotional list). After

that list is exhausted, certification is made in order of rank

from a list of all other qualified applicants (the open competi-

tive list).

12. An eligibility list expires two years from the date it is

established, or when it is pre-empted, whichever is sooner. In

the period since November |, 1964, eligibility lists for the entry

level position of Firefighter were established on October 15,

1974; September 28, 1971; March 6, 1969; October 31, 1966;

and November 6, 1964. Since January 1, 1962, eligibility lists

for the position of Fire Captain have been established in 1962,

1964, 1967, 1969, 1971, and 1974. Eligibility tests for the

rank of Battalion Chief were established in 1967, 1969, 1971,

and 1974.

Entry Level Positions

13. All persons appointed to the entry level position of Fire-

fighter are required to complete successfully a probationary

period of up to one year, including an initial training course in

firefighting. Of the 307 persons appointed to the entry position

of Firefighter since November 30, 1964, 3 have been termi-

nated for inability to perform satisfactorily the duties of a Fire-

fighter.

14. In 1969 ranking on the open competitive eligibility list

was based on the applicant's scores on a written test, a physical

strength and agility test and an evaluation of the applicant's

experience and education. Minimum passing scores were es-

tablished for the written and physical tests. Those attaining

passing scores on the written and physical tests were ranked on

the eligibility list, with the results weighed as follows: 50%

— A-28 —

on the written test; 35% on the physical test; and 15% on the

education and experience evaluation.

15. In 1971 and 1974, ranking on the oper competitive eli-

gibility list was based on the applicant's score on a written test

and on a physical strength and agility test, with a minimum

passing score established for each test. The results of each test

were weighed 50% in the ranking.

16. The mean scores for blacks and whites on the written

examination for the entry level position utilized in 1974 were

approximately 56.70 and 71.95 respectively. The approximate

mean scores attained by blacks and whites on the physical

agility test administered in 1974 were 51.24 and 49.13 re-

spectively.

17. Seven hundred thirty-four persons took the written test

for the entry level position in 1974, of whom 267 (36.4%)

were black. The cut-off score utilized in 1974 for placement

on the eligibility list eliminated approximately 51% of the

black applicants and 25% of the white applicants who took the

two examinations.

18. The current promotional and open competitive eligi-

bility lists contain 26 and 360 mames, respectively. Eight

(30.8%) of the 26 persons on the promotional list are black.

Eighty-one (24.3%) of the 334 persons on the open competitive

list (not counting those persons also on the promotional list)

are black, including 10 (10%) of the first 100 persons.

19. On June 16, 1975, the parties agreed, with the consent

of the Court, to allow the City of St. Louis, its officers and

agents, to proceed with the hiring of individuals for the entry

level position in accordance with the terms of a “Partial Con-

sent Decree” which is incorporated herein. See Appendix A.

— A-29 —

Fire Captain Position

20. For the examinations for the position of Fire Captain,

for the eligibility lists established in 1962 through 1965, and

in 1974, applicants were required to have served at least five

years in the position of Firefighter or above. For the exami-

nation for the position for the lists established in 1967 through

1971, applicants were required to have served seven years in

the position of Firefighter or above. The increase in the required

number of years of service from five to seven years was made

on the recommendation of an outside consultant hired by the

Fire Department. The decrease for the 1974 eligibility list from

seven to five years required service was also made on the advice

of an outside consultant.

21. From 1962 through 1971, ranking on the eligibility list

for Fire Captain was determined by a written test, an experi-

ence and training score, and a service rating. These scores were

weighed as follows: 45% on the written test; 40% on the ex-

perience and training score; and 15% on the service rating.

22. Ranking on the eligibility list for Fire Captain for 1974

was determined as follows: written test score weighed 45%;

experience and training score weighed 45% and service rating

weighed 10%.

23. Applicants for the position of Fire Captain were required

to meet minimum requirements for experience and service rat-

ings, and achieve a minimum passing score on the written exami-

nation in order to be ranked on the eligibility list.

24. The experience and training score of the applicants in

1970 and 1974 was determined by the positions held in the Fire

Department in the ten years preceding the application. Points

in the final ranking were awarded for each month of experience.

In 1974, all applicants with ten or more years experience re-

ceived 45 points. Applicants with the lowest experience and

— A-30 —

training score received 31.5 points. One hundred fifty-four

(81%) of the 189 persons on the 1974 eligibility list for Fire

Captain received the maximum 45 points for experience and

training.

25. The service rating score for applicants in 1971 and 1974

was based on the last supervisory rating received by the appli-

cart prior to the cut-off date on the examination announcement.

Applicants who made the minimum scores on the other parts

of the examination for the position of Fire Captain received

from seven to ten points for service ratings in the final ranking

on the eligibility list. One hundred seventy-six persons (93%)

of the total 189 persons ranked on the 1974 eligibility list re-

ceived between 7.8 and 9.2 points for service ratings.

26. The mean scores for black and white applicants on the

written test for Fire Captain in 1974 were 69.72 and 76.59

respectively. Forty-seven blacks and 406 whites took the 1974

written examination. Twelve blacks and 177 whites achieved

u passing score on the examination. Twelve of the 189 persons

(6.3% ) on the current eligibility list for Fire Captain are black,

with the highest ranked black on the list ranked at number 55.

27. Only approximately 18 persons will be promoted from

the 1974 eligibility list.

Battalion Chief

28. For the examinations for Battalion Chief for the eligibility

lists established in 1962 through 1965, and in 1974, applicants

were required to have served at least five years in the position

of Fire Captain or above. For the examination for Battalion

Chief for the eligibility list established in 1967 through 1971,

applicants were required to have served at least eight years in the

position of Fire Captain or above.

29. As stated above, there are currently only 4 black Fire

Captains. Of the 3 black Fire Captains who took the 1974

~.

— A-31 —

Battalion Chief Exam, 2 passed. One of those two has a suf-

ficiently high ranking that appointment is possible. An adverse

impact on blacks has not been established.

Deputy Chief and Fire Chief

30. There is simply no evidence from which to conclude that

the examinations for these positions have an adverse impact on

blacks.

31. Plaintiffs oppose the time-in-grade requirement for these

positions. Although time-in-grade requirements have been in-

creased in the past, they have been lowered to the original re-

quirement in the recent past. Any adverse impact suffered from

the increase is no longer in existence.

Selection Procedure

32. It is clear that the differences found in performance by

blacks and whites on the Firefighter written examination and

the Fire Captain examination are statistically significant.

33. Prior to the effective date of Title VII, as amended to

include state and local governments (March 24, 1972), the City

of St. Louis made no attempt to validate any of the written tests

or other standards or requirements utilized in the selection of

persons for entry level or promotional positions in the St. Louis

F ..e Department.

34. In the spring of 1973, the City of St. Louis hired an

outside consultant, Dr. Lawrence O'Leary, to develop a proper

selection device.

35. Dr. O'Leary's report indicates that the content valida-

tion approach was used in devising the selection procedure be-

cause (a) the possibility of collusion by applicants existed, mak-

— A-32 —

ing the use of an identical test from year to year undesirable:

and (b) because the number of promotions per eligibility list is

small, it would be difficult to rely on evidence of a predictive

nature derived from small samples. In addition, the lack of

valid criteria for work performance precluded the use of a

criterion related validity study.

36. Dr. O'Leary proceeded to conduct a job analysis for the

position of Fire Captain and Battalion Chief. The methods used

for the analysis of the two jobs were essentially the same. Cap-

tains, and Battalion Chiefs, were selected at random from each

of the districts. Lengthy interviews of up to two hours were

conducted. Twenty-seven Fire Captains were interviewed as

was one Battalion Chief from each district.

37. The interviews asked for a complete specification of all

components of the job, critical incidents, and qualities con-

sidered to be necessary or desirable for satisfactory performance

of the job. The information obtained was then summarized by

tabulating the number of times each different component was

mentioned, its ranking in importance by each person interviewed;

and the percentage of time spent on each component.

38. Dr. O'Leary made a decision to increase the length of

the Fire Captain's examination, from 100 to 125 questions, to

achieve higher reliability. He also decided not to measure skills,

abilities and personal characteristics, but only the knowledge re-

quired for the job. This decision was made because of the un-

desirability of measuring such items in a paper-and-pencil test.

39. Questions on the examinations were distributed among

the knowledge areas required, in accordance with the areas’ im-

portance. Questions from which the test was constructed were

obtained from the test exchange service of the International

Government Personnel Management Association from questions

constructed specifically for the tests by researchers. Questions

were checked for their applicability to the City of St. Louis.

—————————_———————

— A-33 —

The best questions were selected. These questions were then

shown to the Fire Chief and a Deputy Fire Chief for their ap-

proval. The questions were selected after passing the following

aacfies

a) approved by at least two members of the three-man

validation task force as job related;

b) acknowledged to be job related by an expert panel of

technical advisors from the Fire Department,

¢) judged to have the least number of words necessary to

successfully convey the meaning of the question.

The last criteria resulted from a determination that in prior

examinations, minority candidates had difficulty with the longer

questions.

40. Dr. O'Leary suggested that supervisory skills, which

could not feasibly be included in a written examination, be

tested during the working test period.

41. Dr. O'Leary recommended a range within which to

establish a cut-off score. The cut-off score chosen, 78, was

within the range.

42. Of the 189 persons on the eligibility lists, only a small

fraction will actually be appointed during the life of the list.

43. Another possible method of testing for promotions is

the Assessment Center approach. Because of the large num-

ber of candidates, however, the costs of utilizing such an ap-

proach would be prohibitive. The estimated cost was $500.00

per candidate.

44. Dr. Richard Barrett, plaintiffs’ expert, raised various

criticisms of the examination. Dr. Barrett, however, had never

performed a content validity study for a fire department. had

not made any study of the knowledge and skill required for

the jobs of Fire Captain and Battalion Chief, and had not

—_<*

even studied any manuals relating to the skills and knowledge

needed. Dr. Barrett approved of the use of the working test

period and service ratings. He conceded that budgetary con-

siderations would have to be given weight in devising a selec-

tion procedure. Although critical of 10 of the 125 questions,

Dr. Barrett stated that not every question on the examination

needed to be content valid for the test itself to be valid. He

further conceded that there had never been a perfect exam-

ination.

45. While the Court is aware of Dr. Barrett's credentials in

the field, the Court concludes that his opinions herein are not

entitled to credence. He was not at all familiar with the jobs

involved. His criticisms of the examination amounted to no

more than nit-picking. Dr. Barrett was critical of only a small

portion of the examination and yet was of the belief that not

every question needed be valid in order for the test itself to

have validity. His conclusion, that the examination lacked

validity, was not supported even by his own testimony. In

sum, Dr. Barrett was not an impressive witness herein.

Supper Clubs

46. The evidence establishes that Fire Department person-

nel have established supper clubs on a very informal basis for

the benefit of club members, at the various firehouses. There

is mo evidence tying or connecting any one club with any

other. The members contribute money for the expenses of

utensils and food. One member is the cook, who has the dis-

cretion and authority to determine who is a member of the

club.

47. The cooking facilities themselves belong to the Fire

Department. The utensils, however, are the property of the

supper clubs.

i A

— A-35 —

48. There is evidence that blacks have been excluded from

many of these clubs. There is no evidence, however, to indi-

cate that the exclusions were anything more than the indi-

vidual decisions of some white firemen not to dine with black

firemen: these decisions were not the result of any Fire De-

partment directive or order. These exclusions frequently result

in blacks, where a minority in a firehouse, cooking and eating

apart from their white associates."

49. The problem created by the supper club obviously ex-

acerbates racial tensions and as such, runs counter to the poli-

cies of the laws of this country. Yet should a federal court

issue some type of mandatory order to each firehouse setting

out regulations relating to buying food, preparing it, serving

it and eating it? The answer seems obvious. The Director of

Public Welfare, Joseph Clark, testified that the problems with

the supper clubs were coming vacer control. Mr. Clark, who

himself is black, pledged all his efforts to eradicate this rep-

rehensible practice from the St. Louis Fire Department. This

Court believes that, at this time, it is inadvisable to involve

itself in these supper clubs. In the event that this problem

persists and remains without improvement six months from

this date, the Court will reconsider this issue and seek specific

proposals from city officials and the parties.

Overt Discrimination

50. George Horne applied for, and was examined for, pro-

motion to the position of Fire Captain in 1969. After the ex-

amination, he was ranked twenty-first on the 1969 eligibility

list.

$1. In the spring of 1971, the Director of Public Safety

met with officials of the local firefighters union, and agreed to

end the delay in filling Fire Captain vacancies.

1 This t of segregation is both offensive and incomprehensible

in groups very survival depends upon togetherness.

— A-36 —

52. Thomas Vetter. a vice-president of the union, surveyed

the Fire Department for vacancies. He found that six vacan-

cies existed and so notified Horne of this fact by a letter post-

marked August 13, 1971. At that time, Horne was sixth on

the list.

53. Alfred Newman, a Deputy Chief of the Fire Depart-

ment, told Horne that he would speak with the Fire Chief

concerning an appointment to Fire Captain.

54. On August 31, 1971, the Department issued a requisi-

tion for only four Fire Captains. Therefore, Horne was not

appointed. Shortly thereafter, the 1969 eligibility list expired.

55. On December 13, 1971, the Fire Department issued a

requisition for four Captains to be appointed from the 1971

eligibility list. That requisition form indicates that two of the

positions as Fire Captain had been vacated by death and res-

ignation on September 21, 1971 and July 17, 1971 respec-

tively.

56. The Court is unable to find that Horne was denied pro-

motion because of his race. The requisition form is signed by

Denis Broderick, who was the Fire Chief and appointing au-

thority. There is no indication in the record that either Thomas

Vetter, a union official or Alfred Newman, a Deputy Fire

Chief, had the authority to determine the necessary number

of Fire Captains, and requisition the same. Nor does there

appear to be a requirement that all vacancies in a position be

filled as soon as they appear. Budgetary considerations could

well have forced the Fire Chief, assuming that there were in

fact six vacancies, to request only four appointments. There

is no evidence from which to conclude that the Fire Chief

confirmed the fact of six vacancies. Under these circumstances,

the Court cannot find that Horne was denied promotion be-

cause of his race.

57. There is absolutely no evidence from which to conclude

that Preston Sims was denied employment because of his race.

—_s

Conclusions of Law

This Court has jurisdiction over the subject matter and of

the parties to this action. Defendants’ and intervenors’ objections

to the presence of the United States as plaintiff herein are with-

out merit. See 42 U.S.C. § 2000e-5(f) (1).

As has been frequently stated, Title VII of the Civil Rights

Act, 42 U.S.C. § 2000¢e et seq.,

. . . proscribes not only overt discrimination but also prac-

tices that are fair in form, but discriminatory in operation.

The touchstone is business necessity. If an employment

practice which operates to exclude Negroes cannot be

shown to be related to job performance, the practice is

prohibited.

Nothing in the Act precludes the use of testing or measur-

ing procedures; obviously they are useful. What Congress

has forbidden is giving these devices and mechanisms con-

trolling force unless they are demonstrably a reasonable

measure of job performance. Griggs v. Duke Power Co.,

401 U.S. 424, 431, 436 (1971) (emphasis added).

The statistical evidence presented establishes that the tests in-

volved had a disparate impact on blacks. Accordingly, the de-

fendant City must establish that the tests are a “reasonable

measure of job performance.” See also, Boston Chapter, NAACP,

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

421 U.S. 910 (1975) (means of selection must be substantially

related to job performance); Castro v. Beecher, 459 F.2d 725

(1st Cir. 1972 (there must be a fit between the qualifications and

the job; Douglas v. Hampton, 512 F.2d 976 (D.C.Cir. 1975)

(the test must bear a demonstrable relationship to successful job

performance); United States v. Georgia Power Company, 474

F.2d 906 (Sth Cir. 1973) (manifest relationship between the

test and the job is required).

— A-38 —

There are various means of establishing the relationship be-

tween the examination and job performance.

The preferred method of test validation is criterion-related

or empirical validity, which includes what are referred to

as the predictive and concurrent methods of validation.

Predictive validation consists of a comparison between the

examination scores and the subsequent job performance of

those applicants who are hired. If there is a sufficient

correlation between test scores and job performance, the

examination is considered to be a valid or job related one.

Concurrent validation requires the administration of the

examination to a group of current employees and a com-

parison of their relative scores and relative performance on

the job.

An examination has content validity if the content of the

examination matches the content of the job. Tor a test to

be content valid, the aptitudes and skills required for suc-

cessful examination performance must be those aptitudes

and skills required for successful job performance. It is

essential that the examination test these attributes both in

proportion to their relative importance on the job and at the

level of difficulty demanded by the job. Vulcan Society of

New York City Fire Department, Inc. v. Civil Service Com-

mission of the City of New York, 360 F.Supp. 1265, 1273-

assem 1973), modified, 490 F.2d 387 (2nd Cir.

).

See also, Boston Chapter, NAACP, Inc. v. Beecher, 371 F Supp.

507 (D.C. Mass. 1974), aff'd, 504 F.2d 1017 (1st Cir. 1974)

cert. denied, 421 U.S. 910 (1975); Douglas v. Hampton, ougie:

Bridgeport Guardians, Inc. v. Members of the Bridgeport C ivil

Service Commission, 482 F.2d 1333 (2nd Cir. 1973), cert

denied, 421 U.S. 991 (1975). }

The Guidelines of the Equal Employment Opportunity Com-

mission authorize the use of a content validation approach

— A-39 —

“where criterion-related validity is not feasible.” 29 C.F.R.

$ 1607.5. Dr. O'Leary stated that criterion-related validity was

not possible in the present context. Such validation was not

feasible because of the lack of valid criteria for work perform-

ance, the small number of persons promoted from each eligibility

list and the possibility of collusion. Predictive validation, con-

sisting of a comparison between test scores and job performance,

raises an additional problem, not mentioned by Dr. O'Leary.

Defendants herein were required by law to establish a valid selec-

tion procedure. Such a duty was an immediate one. Predictive

validation of necessity requires a great deal of time since pre-

sumably the applicants must be given a sufficient orientation

period in the jobs before their performance is analyzed against

their examination scores. See Commonwealth of Pennsylvania

v. Glickman, 370 F.Supp. 724, 732 (D.C. Pa. 1974). But de-

fendants had the duty to establish a valid selection procedure

immediately. If the predictive validation approach were used, a

test would have to be constructed, persons chosen for positions

on the basis of the results of that test, and at a later date, analyses

of their performance made. If the test were found not to be

valid, the process would have to begin again. This Court is

unable to find authority for granting an employer an exemption

from the requirements of the law while a validation study is

underway. It is the Court's conclusion that predictive validation

would not be feasible and the Court is of the opinion that a con-

tent validity approach was the only feasible approach in the pres-

ent context.

While the Equal Employment Opportunity Commission Guide-

lines are entitled to great deference, Albemarle Paper Co. v.

Moody, 43 U.S.L.W. 4880 (1975), it is worth noting that the

Guideline requirement that the content validity approach be

used only when the other methods are not feasible has been dis-

puted by the Courts. In Vulcan Society of New York City Fire

Department, Inc. v. Civil Service Commission of the City of

New York, 360 F.Supp. 1265, 1273-74 (D.C.N.Y. 1973),

— A-40 —

modified, 490 F.2d 387 (2nd Cir. 1973), the experts involved

were of the opinion that concurrent validation was less desir-

able than predictive validation “because of the possibility that

some distortion may result from either the experience or lack

of motivation of the current employees who participate in the

examination for experimental purposes.” /d. at 1273. See Vulcan

Society of the New York City Fire Department, Inc. v. Civil

Service Commission of the City of New York, 490 F.2d 387

(2nd Cir. 1973) (today’s preferred method may be rejected

tomorrow); Kirkland v. The New York State Department of

Correctional Services, 374 F.Supp. 1361, 1371 (D.C.N.Y.

1974), modified, 520 F.2d 420 (2nd Cir. 1975) (a content-

valid examination will not be set aside simply because the other

methods of validation were not used). The required burden

that the employer must meet is not one of compelling interest or

lack of feasible alternative, Chance v. Board of Examiners, 458

F.2d 1167 (2nd Cir. 1972); Castro v. Beecher, 459 F.2d 725

(Ist Cir. 1972), but simply that there is a substantial relation-

ship between the scores and job performance.

Having found that Dr. O'Leary was justified in choosing the

content validation approach, the Court must now determine if

the examination is valid. In order to be valid, the content of

the examination must match the content of the job. In Vulcan

Society, supra, 490 F.2d at 396, the court stated

If an examination has been badly prepared, the chance that

it will turn out to be job-related is small. Per contra, care-

ful preparation gives ground for an inference, rebuttable to

be sure, that success has been achieved. A principle of

this sort is useful in lessening the burden of judicial exami-

nation-reading and the risk that a court will fall into error

in umpiring a battle of experts who speak a language it

does not fully understand.

See also Kirkland v. New York State Department of Correctional

Services, 520 F.2d 420 (2nd Cir. 1975). This Court is not

— A-41 —

holding that plaintiffs must rebut an inference created by Dr.

O'Leary's qualifications. Nonetheless, it is important to note

that the examinations involved were the result of careful and

extensive research. In many of the cases cited to this Court,

such was not the case. See e.g., Boston Chapter, NAACP, Inc.

v. Beecher, supra (the test was not professionally developed nor

had there been any analysis of the required job skills); Fowler

v. Schwarzwalder, 351 F.Supp. 721 (D.C. Minn. 1972), rev'd

on other grounds, 498 F.2d 143 (8th Cir. 1974) (no attempt

made to relate the relative importance of job duties or to cor-

relate the same to the number of test questions; no systematic

or empirical review of the elements of the job); Kirkland v. New

York State Department of Correctional Services, 374 F.Supp.

1361, modified, 520 F.2d 420 (2nd Cir 1975) (inadequate

job analysis); Western Addition Community Organization v.

Alioto, 340 F.Supp. 1351 (D.C.Cal. 1972), appeal dismissed

as moot, 514 F.2d 542 (9th Cir. 1975) (no job analysis per-

formed ).

To prove that an examination has content validity,

_. . defendants must demonstrate not only that the knowl-

edge, skills, and abilities tested for by [the examination] . . ,

coincide with some of the knowledge, skills and abilities

required successfully to perform on the job, but also that

1) the attributes selected for examination are critical and

not merely peripherally related to successful job perform-

ance; 2) the various portions of the examination are ac-

curately weighted to reflect the relative importance to the

job of the attributes for which they test, and 3) the level

of difficulty of the examination matches the level of diffi-

culty for the job. Kirkland v. The New York State Depart-

ment of Correctional Services, 374 F.Supp. 1361, 1372,

modified, 520 F.2d 420 (2nd Cir. 1975).

It is clear from the facts that Dr. O'Leary's analysis and exami-

nation comported with these requirements. The job analysis

— A-42 —

was thorough and complete. The questions were distributed

among the areas of knowledge required in accordance with the

importance given to the area by the persons interviewed. The

Court is aware of case law indicating that “all or substantially

all the critical attributes” of the job must be included in the

examination. Kirkland, supra at 1372. Plaintiffs herein con-

tend that the examination is invalid because certain skills, such

as supervisory skills, were not included in the written exami-

nation. Nonetheless, the Court concludes that the examination

was valid. Even plaintiffs’ own expert approved the use of the

working test period, during which time supervisory skills could

be more adequately evaluated. He also approved of the use

of service ratings. The Equal Employment Opportunity Com-

mission Guidelines themselves impliedly recognize the use of

written and evaluative examination. See 29 C.F.R. § 1607.13.

Furthermore, there is support in the law for the use of non-

comprehensive written examinations. See Bridgeport Guardians,

Inc., supra. The job analysis conducted herein convinces this

Court that the areas tested sufficiently identify suitable candi-

dates for promotion. It was clear from the interviews conducted

that knowledge of fire fighting and inspection were considered

to be very important.

The Court further concludes that the cut-off score was validly

established. The Equal Employment Opportunity Commission

Guidelines require that the “cut-off score will be reasonable

and consistent with normal expectations of proficiency within

the work force or group. . .”. 29 C.F.R. § 1607.6. It was clear

from the evidence that only a few persons from the eligibility

list would be promoted. Under such circumstances, the Court

can not conclude that the cut-off score was unreasonable, or

inconsistent with the required criteria.

Even plaintiffs’ expert conceded that a perfect examination

is not possible. A perfect test is a goal “as illusory as perfect

—_—Y

schools or perfect courts . . .”. Boston Chapter, NAACP, Inc.,

supra, 504 F.2d at 1022. The Court concludes that the exami-

nation had content validity. This is all that the law requires

of an employer. Neither a perfect examination, nor an ex-

amination without a disparate impact is a necessity, where, as

here, the employer has established that the examination has been

validated in accordance with recognized methods. The exami-

nation for Fire Captain meets the criteria established by law.

The Court has found that there was no evidence of a disparate

impact in connection with the examinations for Battalion Chief,

Deputy Chief and Fire Chief. Accordingly, the burden of estab-

lishing that those examinations were valid does not shift to the

employer. See Griggs v. Duke Power Co., supra at 431.

The Court has found that the exclusions of blacks from the

supper clubs was not the result of any actions by defendants, but

instead the result of private decisions by individual fire per-

sonnel. Under such circumstances, defendants have not violated

any statutory duties. Because of the tensions created by the

situation, however, the Court will request that defendants do

all that they can to eradicate the problem, and will allow plain-

tiffs to return to Court should the situation persist.

The parties are in dispute as to the meaning of a certain

aspect of the partial consent decree. That decree requires the

St. Louis Fire Department to establish a racial composition that

approximates the racial composition of the City of St. Louis as

a whole. The issue disputed is whether the reference group

should be the total uniformed personnel of the Fire Department

(approximately 1,000 persons) or the total number of Fire-

fighters (approximately 750 persons). It is the Court's con-

clusion that the latter figure shall control. The terms of the

partial consent decree provide that it shall remain in effect until,

after a period of five years from the date of entry, defendants

move that it be dissolved.

—_—

The Court has found that the examination for Fire Captain

was properly validated as required by law. Plaintiffs failed

to provide a disparate impact as the other promotional examina-

tions. The evidence failed to established that either George

Horne or Preston Sims were denied promotion or employment

because of their race. Similarly, the evidence failed to establish

that the exclusion of blacks from the supper clubs were the re-

sult of any actions by defendants. Accordingly, judgment will

be entered for defendants.

/s/ JOHN F. NANGLE

United States District Judge

Dated: April 9, 1976.

— A-45 —

APPENDIX A

In the United States District Court for

the Eastern District of Missouri

Eastern Division

United States of America,

Plaintiffs,

ss | Civil Action No.

74C #4

City of St. Louis, a municipal corpora- '

tion, et al.,

Defendants. |

Firefighter’ Institute for Racial

Equality, et al.,

Plaintiff, | Civil Action No.

“ - 74-200 C (4)

City of St. Louis, Missouri, et al.,

Defendants.

j

PARTIAL CONSENT DECREE

The United States filed its complaint herein on March 18,

1974, alleging that the defendants were engaged in a pattern

and practice of discrimination based on race in hiring for and

promotion within the City of St. Louis Fire Department (known

formally as the Division of Fire and Fire Prevention of the De-

partment of Public Safety) in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended

by the Equal Employment Opportunity Act of 1972, Public

Law 92-261 (March 24, 1972) and the Fourteenth Amendment

to the Constitution of the United States, 42 U.S.C. § 1981, and

42 U.S.C. § 1983.

=f thas

Plaintiffs’ Firefighters Institute for Racial Equality, et al.,

consisting of FIRE and 10 named individuals filed suit on Janu-

ary 11, 1974, alleging inter alia, discriminatory practices on

part of defendants in their hiring and promotion practices within

the fire department of the City of St. Louis. Because of the

identity of issues involved, the two cases were consolidated by

the Court on March 17, 1975 with the assent of the parties.

It now appears to the Court that the parties have waived a

hearing and findings of fact and conclusions of law on those

issues raised by the complaint relating to the initial employment

of blacks to the position of firefighter, and have agreed to the

entry of this partial Consent Decree, which shall in no manner

constitute findings on the merits of the case nor be construed

as an admission by defendants of any violation of Title VII or of

rights guaranteed by the Fourteenth Amendment, 42 U.S.C.

$ 1981 and 42 U.S.C. § 1983. All issues raised by the com-

plaint with respect to the promotion of blacks and their terms

and conditions of employment within the Fire Department are

reserved for hearing and adjudication by this Court. Therefore,

it is hereby ORDERED, ADJUDGED, and DECREED:

1. Inasmuch as it is a matter of policy and of law for the

City of St. Louis not to engage in any act or practice which has

the purpose or effect of discriminating against any employee of

or any applicant or potential applicant for employment with

the City of St. Louis Fire Department because of such indi-

vidual’s race or color, it hereby consents to the entry of an order

permanently enjoining such conduct, and defendants are so or-

dered and enjoined. This does not constitute an adjudication or

finding of discrimination against the defendant City. Also, the

City maintains its denial of any act or practice of discrimination.

2. The defendants shall, as a long range goal, seek to recruit

and hire blacks in sufficient numbers so as to achieve a racial

composition in the ranks of Firefighters within the City of St.

Louis Fire Department that is more representative of the racial

—_Y

and ethnic composition of the City of St. Louis as a whole. The

goal shall be to achieve a racial composition of Firefighters in

the St. Louis Fire Department which is comparable to the

civilian labor force for the City of St. Louis subject to the avail-

ability of qualified applicants. In order to fulfill this goal and

subject to the availability of sufficient qualified black applicants,

defendants shall adopt and seck to achieve a goal of hiring

blacks for at least fifty percent (50%) of the vacancies for the

entry level of Firefighter personnel in the Fire Department for

each year during the life of this decree. For purposes of com-

pliance with this goal, only those blacks completing their proba-

tionary period shall be counted. In no case shall defendant be

required to displace incumbent employees or to hire unneeded

employees or unqualified employees in order to meet the goal.

3. The defendant City, through its officials and agents, shall

take all reasonable steps consistent with its obligation to meet

the goals set forth in paragraph 2 above, including contact with

community organizations in the black communities, such as the

Urban League and NAACP, and high schools with substantial

miniority enrollments, for the purpose of soliciting their help in

informing minorities of employment opportunities in the fire

department. The City shall also use its own resources, such as

the facilities of the Personnel Department to recruit qualified

minorities. Such effort on the City’s part shall include announce-

ments to radio, television, and other media directed at the black

communities. The City shall also cooperate with and assist

available independent programs which are aimed at recruiting

minorities for the City Fire Department. The defendant City

shall also utilize the services of incumbent black Firefighters in

its recruiting efforts to the extent that such incumbents are will-

ing and able to assist.

4. Defendants may make appointments from the current

eligibility list for Probationary Firefighter so long as they meet

the interim goals set out in paragraph 2, but in no event beyond

~— A-48 —

the expiration of 2 years from the date of establishment of the

list. Those blacks on the current list who are not appointed

during this interim period and those blacks who applied and

completed the written and physical agility tests in the 1971 and

1974 examinations but were not placed on the eligibility list

shall be informed by defendants that they are eligible for the

next examination for the position of Probationary Firefighter

without regard to the maximum age limitation.

5. In fulfilling the hiring goal set forth in paragraph 2 above,

the defendants may use such written screening devices or alter-

native systems of testing together with age and physical fitness

criteria now used for measuring qualifications to become a Fire-

fighter; provided, however, that the use of any written screening

device shall not be a defense for failure to meet the interim

hiring goals set forth in paragraph 2 above. Residence in the

City of St. Louis shall continue to be a requirement for the selec-

tion of Firefighters.

6. If the defendants wish to use written examinations for

qualifying or ranking applicants for the position of Firefighter

in a manner inconsistent with the goal provided in paragraph 2,

any such written examination must have been found to be job-

related and validated by a criterion related study in accordance

with Title VII of the Civil Rights Act of 1964, as amended,

and the Guidelines enunciated thereunder, including the Guide-

lines contained in 29 C.F.R. 1607.1, et seq., or otherwise have

been shown to have no discriminatory impact. If defendants

wish to utilize any such written examination, they shall furnish

to plaintiffs, subject to appropriate protective orders, at least

sixty days prior to any intended use, evidence of the absence of

adverse impact and/or a copy of the validation study, and any

other relevant information concerning the test and its validity.

If the parties agree that the test has no adverse impact or has

been validated in accordance with Title VII of the Civil Rights

Act of 1964, as amended, and the GuidelinéS thereunder, de-

fendants may thereafter utilize the test. If the parties disagree,

— A-49 —

the examination shall not be utilized unless and until the Court

determines upon motion and such evidentiary hearing as it

deems appropriate that the test has no adverse impact, or that

it has been validated in accordance with Title VII as amended,

and the Guidelines thereunder.

7. Defendants shall retain for a period of five years all records

relating to the recruitment, selection and appointment of persons

for the position of firefighter, including applications submitted

by all applicants, identified by race, all medical and background

investigation files, evaluations of applicants, eligibility lists and

requisition forms with persons identified by race. Defendants

shall also retain for a period of five years all records relating

to performance in the firefighter training program and during

the probationary period, including a statement in detail of the

reasons for termination of any individual during training or

during his probationary period. The plaintiffs’ attorneys shall

have the right to inspect and copy any or all such documents

subject to appropriate protective orders upon reasonable notice

to defendants without further order of the Court. In addition,

defendants shall furnish the plaintiffs with such information or

records as they may request in writing, provided that such re-

quests shall not be unduly burdensome and that plaintiff pay all

reasonable costs incurred in furnishing such information and

records.

8. For purposes of this Decree, a reporting period shall run

from July 1 through December 31 and from January | through

June 30 for each year. The first reporting period shall begin

on July 1, 1975. Within thirty days after the close of each re-

porting period, the defendants shall submit to the plaintiffs a

written report (covering the preceding reporting period) contain-

ing the following information:

(a) The name, address, telephone number, date of appoint-

ment and race of each person appointed to the position

of firefighter.

— &-09 —

(b) The number of persons, identified by race, disqualified

for appointment to the position of firefighter, classified

by reason for disqualification.

(c) The name, address, telephone number, date of termi-

nation, and race of each person who was terminated

or who resigned from the fire department prior to the

completion of probation.

(d) The total number by race and rank of uniformed per-

sonnel] on the Fire Department as of the close of the

reporting period.

(e) A racially-identified copy of any eligibility list for fire-

fighter established during that reporting period.

9. In case of conflict between the terms of this Decree and

the Statutes of the State of Missouri, any rules or regulations

of the Civil Service Commission, or any charter or ordinances

of the City of St. Louis respecting the employment of employees

of the fire department, the terms of this Decree shall prevail.

10. The Court retains jurisdiction of this action with respect

to the issues raised by the plaintiffs with respect to promotion

and terms and conditions of employment within the Fire De-

partment and for such further relief or other orders as may be

necessary Or appropriate to enforce and insure rights to equal

employment opportunity. At any time after five (5) years from

the date of entry of this partial decree, defendants may move

this Court on forty-five (45) days notice to plaintiffs for dissolu-

tion of this partial decree; and upon their showing that the

goals of this decree in providing equal employment opportuni-

ties have been fully achieved, the decree may be dissolved.

——

— A-51 —

APPENDIX V

United States District Court, Eastern District of Missouri

Eastern Division

United States of America,

Plaintiff,

- No. 74-200 C (4)

City of St. Louis, et al.,

Defendants. |

Firefighters Institute for Racial Equal-

ity, et al.,

Plaintiffs,

VS. , No, 74-30 C (4)

City of St. Louis, et al.,

Defendants. )

NUNC PRO TUNC ORDER

(Filed June 28, 1976)

It Is Hereby Ordered that paragraph 19 of the memorandum

filed herein on April 9, 1976 be and is deleted and there be

substituted in licu thereof the following:

19. With regard to entry levei positions, the parties stip-

ulated with the conseat of the Court that the terms con-

tained in Appendix A (Partial Consent Decree) would

be observed by the parties pending final decision by this

Court and would be incorporated in the final decree herein.

19a. The statistical evidence adduced establishes that the

entry level examination had a disparate impact upon black

applicants. Defendants have come forward with no evi-

— A-52 —

dence of validation tending to show that this examination

is related to job performance.

It Is Further Ordered that the first paragraph on page 26

of the memorandum commencing with the words “The parties

are in dispute . . .” be and is deleted and there be substi-

tuted in lieu thereof the following:

The statistical evidence established that the entry level ex-

amination had an adverse impact upon black applicants.

Defendants have presented no evidence of validation. Ab-

sent such evidence, the examination may not be used to

preclude appointment to entry level positions. See Griggs

v. Duke Power Co., supra; Boston Chapter, NAACP,

Inc. v. Beecher, supra. Accordingly, relief will be granted

plaintiffs.

it Is Further Ordered that the order of this Court filed on

April 9, 1976 be and is deleted and there be substituted in lieu

thereof the following order:

Pursuant to the memorandum filed this date,

It Is Hereby Ordered, Adjudged, and Decreed that, pur-

suant to the stipulation of the parties,

1. The defendants shall, as a long range goal, seek to re-

cruit and hire blacks in sufficient numbers so as to achieve

a racial composition in the ranks of Firefighters within

the City of St. Louis Fire Department that is more repre-

sentative of the racial and ethnic composition of the City

of St. Louis as a whole. The goal shall be to achieve a

racial composition of Firefighters in the St. Louis Fire

Department which is comparable to the civilian labor force

for the City of St. Louis subject to the availability of qual-

ified applicants. In order to fulfill this goal and subject

to the availability of sufficient qualified black applicants,

defendants shall adopt and seek to achieve a goal of hir-

— A-53 —

ing blacks for at least fifty percent (50% ) of the va-

cancies for the entry level of Firefighter personnel in the

Fire Depariment for each year during the life of this de-

cree. For purposes of compliance with this goal, only

those blacks completing their probationary period shall be

counted. In no case shall defendants be required to dis-

place incumbent employees or to hire unneeded employees

or unqualified employees in order to meet the goal.

2. The defendant City, through its officials and agents,

shall take all reasonable steps consistent with its obligation

to meet the goals set forth in paragraph | above, including

contact with community organizations in the black com-

munities, such as the Urban League and NAACP, and high

schools with substantial minority enrollments, for the pur-

pose of soliciting their help in informing minorities of em-

ployment opportunities in the fire department. The City

shall also use its own resources, such as the facilities of the

Personnel Department to recruit qualified minorities. Such

effort on the City’s part shall include announcements to

radio, television, and other media directed at the black

communities. The City shall also cooperate with and assist

available independent programs which are aimed at re-

cruiting minorities for the City Fire Department. The de-

fendant City shall also utilize the services of incumbent

black Firefighters in its recruiting efforts to the extent that

such incumbents are willing and able to assist.

3. Defendants may make appointments from the current

eligibility list for Probationary Firefighter so long as they

meet the interim goals set out in paragraph 1, but in no

event beyond the expiration of 2 years from the date of

paren moti Those blacks on the current list

who are not appointed during this interim period and those

blacks who applied and completed the written and physical

agility tests in the 1971 and 1974 examinations but were

—

not placed on the eligibility list shall be informed by de-

fendants that they are eligible for the next examination for

the position of Probationary Firefighter without regard to

the maximum age limitation.

4. In fulfilling the hiring goal set forth in paragraph 1

above, the defendants may use such written screening de-

vices or alternative systems of testing together with age and

physical fitness criteria now used for measuring qualifica-

tions to become a Firefighter; provided, however, that the

use of any written screening device shall not be a defense

for failure to meet the interim hiring goals set forth in para-

graph | above. Residence in the City of St. Louis shall

continue to be a requirement for the selection of Fire-

fighters.

5. If the defendants wish to use written examinations for

qualifying or ranking applicants for the position of Fire-

fighter in a manner inconsistent with the goal provided in

paragraph |, any such written examination must have been

found to be job-related and validated by a criterion related

study in accordance with Title VII of the Civil Rights Act

of 1964, as amended, and the Guidelines enunciated there-

under, including the Guidelines contained in 29 C.F.R.

1607.1, et seq., or otherwise have been shown to have no

discriminatory impact. If defendants wish to utilize any

such written examination, they shall furnish to plaintiffs.

subject to appropriate protective orders, at least sixty days

prior to any intended use, evidence of the absence of ad-

verse impact and/or a copy of the validation study, and

any other relevant information concerning the test and its

validity. If the parties agree that the test has no adverse

impact or has been validated in accordance with Title VII

of the Civil Rights Act of 1964, as amended, and the Guide-

lines thereunder, defendants may thereafter utilize the test.

If the parties disagree, the examination shall not be utilized

+ ome Ae 8 ee

— A-55 —

unless and until the Court determines upon motion and

such evidentiary hearing as it deems appropriate that the

test has no adverse impact, or that it has been validated in

accordance with Title VII, as amended, and the Guidelines

thereunder.

6. Defendants shall retain for a period of five years all

records periaining to the recruitment, selection and ap-

pointment of persons for the position of Firefighter, in-

cluding applications submitted by all applicants, identified

by race, all medical and background investigation files,

evaluations of applicants, eligibility lists and requisition

forms with persons identified by race. Defendants shall

also retain for a period of five years all records relating

to performance in the firefighter training program and

during the probationary period, including a statement in

detail’ of the reasons for termination of any individual

during training or during his probationary period. The

plaintiffs’ attorneys shall have the right to inspect and

copy any or all such documents subject to appropriate

protective orders upon reasonable notice to defendants

without further order of the Court. In addition, defend-

ants shall furnish the plaintiffs with such information or

records as they may request in writing, provided that such

requests shall not be unduly burdensome and that plain-

tiffs pay all reasonable costs incurred in furnishing such

information and records.

7. For purposes of this Decree, a reporting period shall

run from July 1 through December 31 and from January

1 through June 30 for each year. The first reporting pe-

riod shall begin on July 1, 1975. Within thirty days after

the close of each reporting period, defendants shall sub-

mit to the plaintiffs a written report (covering the pre-

ceding reporting period) containing the following infor-

mation:

— A-56 —

(a) The name, address, telephone number, date of

appointment and race of each person appointed

to the position of Firefighter.

(b) The number of persons, identified by race, dis-

qualified for appointment to the position of Fire-

fighter, classified by reason for disqualification.

(c) The name, address, telephone number, date of

termination, and race of each person who was

terminated or who resigned from the fire depart-

ment prior to the completion of probation.

(d) The total number by race and rank of uniformed

personnel on the Fire Department as of the close

of the reporting period.

(e) A racially-identified copy of any eligibility list

for Firefighter established during that reporting

period.

8. In case of conflict between the terms of this Decree

and the Statutes of the State of Missouri, any rules or

regulations of the Civil Service Commission, or any char-

ter or ordinances of the City of St. Louis respecting the

employment or employees of the fire department, the

terms of this Decree shall prevail.

9. At any time after five (5) years from the date of entry

of this partial decree, defendants may move this Court

on forty-five (45) days notice to plaintiffs for dissolution

of this partial decree; and upon their showing that the

goals of this decree in providing equal employment op-

portunities have been fully achieved, the decree may be

dissolved.

It Is Further Ordered, Adjudged, and Decreed that de-

fendants shall have judgment against plaintiffs on all re-

maining issues in these causes.

—_Y

It Is Further Ordered, Adjudged, and Decreed that each

party shall bear its own costs herein.

/s/ JOHN F. NANGLE

United States District Judge

Dated: June 28, 1976

— A-58 —

APPENDIX VI

Before the

State Board of Mediation

State of Missouri

St. Louis Fire Fighters Association, ~

Local No. 73, International Asso-

ciation of Fire Fighters, AFL-CIO,

Petitioners, Public Case

v. . No. 76-013

City of St. Louis, Missouri,

Respondent. /

FINDINGS OF FACT, CONCLUSIONS OF LAW,

AND DECISION

Findings of Fact

This case appears before the State Board of Mediation upon

St, Louis Fire Fighters Association, Local No. 73, International

Association of Fire Fighters, AFL-CIO (hereinafter referred to

as “Petitioner”, filing a Petition for Certification with this Board

for exclusive bargaining rights for all Fire Department em-

Ployees of the City of St. Louis, (hereinafter referred to as

“City”), inclusive of the ranks of Private, Captain, Battalion

Chief, Deputy Chief and Fire Alarm employees, all consist-

ing of approximately one thousand (1,000) employees.

The State Board of Mediation has jurisdiction to hear and

decide this matter pursuant to Section 105.525 R.S.Mo. 1969,

which states in pertinent part:

— A-59 —

“Issues with respect to appropriateness of bargaining units

and majority representative status shall be resolved by the

state board of mediation.”

A hearing was conducted by the Board at the St. Louis County

Government Center in the City of Clayton, Missouri, at which

time the following evidence was adduced.

The Fire Department of the City presently includes the ranks

of Fire Chief, Deputy Fire Chief, Fire Marshall, Battalion Fire

Chief, Fire Captain, Fire Lieutenant, Fire Prevention Inspector,

Fire Fighter and Fire Equipment Dispatchers I, Il, Ill. The

Petitioner seeks to represent any and a‘! units which may be

found appropriate by this Board. The City has objected to the

inclusion in an appropriate unit the positions of Fire Chief,

Deputy Fire Chief, Fire Marshall, Battalion Fire Chief, Fire

Captain, Fire Lieutenant, and Fire Equipment Dispatchers Il

visory personnel. The City contends that an appropriate unit

should consist of Fire Prevention Inspector, Fire Fighter, and

Fire Equipment Dispatcher I.

A description of the duties of the positions in dispute will

be set forth in separate paragraphs in this opinion. The par-

ties have stipulated that the position of Fire Chief be excluded

from an appropriate unit, therefore we will not address ourselves

to that position.

The Deputy Chief, of which there are four, (one presently |

serving as the Fire Marshall, whose duties will be described in

the following paragraph) is a member of the General Staff of

the Chief and assists in the administration of the Departmen t.

He is responsible for the effective application of the policy, Rules

and Regulations, practices and procedures of the Departme nt.

His duties entail responding to multiple alarm fires, directing

— A-60 —

for additional equipment. Further, he plans, schedules, super-

vises, and reviews the work of subordinates. He is responsible

for making periodic inspections of personnel, quarters, engines,

apparatus, tools, equipment, and records; prepares reports of

and reports upon the work of fire companies at fire drills and

the conduct of in-service training programs. He works a twenty-

four hour shift and lives with the other men, but during normal

business hours he spends a majority of his time at the Fire Chief's

Office which is located in City Hall.

The position of Fire Marshall is presently held by a Deputy

Chief and is a member of the General Staff of the Chief and

assists in administration. This individual is responsible for the

effective application of the policy, Rules and Regulations, prac-

tices and procedures of the Department in matters relating to

fire prevention and fire protection. Further, he plans and super-

vises the inspection of designated occupancies throughout the

City by Inspectors in his command, and he makes such inspec-

tions and investigations that may be necessary to evaluate the

overall fire hazards in the City. He also has the authority to

order subordinate officers to make necessary inspections. He

works a five-day, forty-hour week and does not live with the

other men.

A Battalion Fire Chief, of which there are presently thirteen

of the twenty-three authorized positions, is in charge of the

activities of one of the nine fire districts of the City. He has a

number of Fire Captains under his command and he in turn re-

ports to the Deputy Chief. He responds to alarms when dis-

patched, assumes command of fire fighting activities, and posi-

tions companies and apparatus for efficient rescue and extin-

guishment operations. He also has the responsibility of maneu-

SO as to maximally utilize the available manpower. In addition,

he has the responsibility for the paperwork of his district which

—_y

includ ‘li of his C . oo on .

schedules, reports and requisitions. He also has the duty of en-

works a twenty-four hour shift and lives in the fire house during

his duty hours with the other men.

The position of Fire Captain, of which there are presently

approximately one hundred sixty-one (161) of one hundred

seventy-four (174) authorized positions, is in charge of the ac-

tivities of a company of fire fighters which comprises approxi-

mately four (4) men. It is his responsibility to supervise and

motivate the men in his company in all aspects of their jobs.

It is his responsibility to insure that all apparatus and equip-

ment to which he is assigned is in top condition, and that the

house and quarters be kept clean and orderly. He leads his

company at the fire scene. In addition, he handles the adminis-

trative duties which include keeping a daily log, preparing

also has the responsibility of instructing his men in various as-

pects of the fire fighting profession. This individual works a

twenty-four hour shift and lives in the fire house during his duty

hours with the other men.

Fire Equipment Dispatcher III, of which there is one, is re-

sponsible for directing the activities of several groups of skilled

workers engaged in the installation, maintenance, and repair of

a variety of telephone and electrical equipment comprising a

municipal alarm and signal communication center, and in the

reception and transmission of fire alarm and emergency calls.

He plans, assigns, and supervises the work of subordinate super-

visors (Equipment Dispatcher II) and employees (Equipment

Dispatcher I). He works independently, determining his own

Alarm and Signal Superintendent.

Fire Equipment Dispatcher II, of which there are approxi-

mately four, is responsible for supervising and participating

— A-62 —

in the receipt of fire, rescue, and other emergency alarms, and

the dispatching of fire fighting equipment. He supervises a crew

of dispatchers (Equipment Dispatcher I) on an assigned shift.

He is also responsible for posting entries in the section's daily

log and reallocates fire fighting equipment to maintain constant

coverage of all areas in the City. He works a rotation shift as

does Dispatcher I.

The positions of Fire Equipment Dispatcher I, Fire Fighter,

and Fire Prevention Inspector are not in issue and therefore will

not be mentioned.

Conclusions of Law

Section 105.525 R.S.Mo. 1969 states:

“Issues with respect to appropriateness of bargaining units

and majority representative status shall be resolved by the

state board of mediation .. .”

Appropriate unit is defined in Section 105.500 (1) R.S.Mo.

1969 as:

“. . . @ unit of employees at any plant or installation or

in a craft or in a function of a public body which estab-

lishes a clear and identifiable community of interest among

the employees concerned.”

It is the position of this Board that supervisors cannot be

included in the same bargaining unit as employees whom they

supervise, because of a lack of community of interest. There-

fore, it is necessary to make a determination as to the positions

which possess supervisory qualities. In the case of Western Mis-

souri Public Employees, Local 1812 and Missouri State Coun-

cil 72, AF S.C.M.E. v. Jackson County, Missouri (Department

of Corrections), Public Case No. 90, this Board set forth the

factors which are considered in determining whether an em-

ployee is a supervisor. They are as follows:

eee eee Sn a

— A-63 —

1. The authority to effectively recommend the hiring,

promotion, transfer, discipline or discharge of em-

ployees.

2. The authority to direct and assign the work force.

3. The number of employees supervised , and the num-

ber of other persons exercising greater, similar or

lesser authority over the same employees.

4. The level of pay, including an evaluation of whether

the supervisor is paid for his skill or for his super-

vision of employees.

5. Whether the supervisor is primarily supervising an ac-

tivity or is primarily supervising employees.

6. Whether the supervisor is a working supervisor or

whether he spends a substantial majority of his time

7. The amount of independent judgment and discretion

exercised in the supervision of employees.

tyen.0 ae tte fi Se One Ot eS

position of Deputy Fire Chief, it is quite pos-

seme suparviey cutbority and tharsiove should be-cncinded

from an appropriate unit of non-supervisory employees. With-

out going into a detailed review of the Deputy Fire Chief's

duties, it can be readily seen that all factors which constitute

a supervisor are applicable to this position.

The position of Fire Marshal is cxcluded from an appro-

lack of inter-

pervisory identity and further, because of the

change between this position and that of the other employees.

The Fire Marshal does not normally partake in the fighting of

fires, nor does he work with or live with the other fire fighters.

— A-64 —

This Board has carefully considered the duties and responsi-

bilities surrounding the position of Battalion Fire Chief and is

of the opinion that this individual constitutes supervisory per-

sonnel for the reasons that the majority of his time is spent in a

supervisory capacity. It is true that he works the same shift and

lives in the same house as the other fire fighters, however he has

the responsibility of an entire fire district with direct authority

to assign the work force. It is also true that he may fight a fire

along with the other fire fighters, but this would only be in an

emergency situation. The evidence is quite clear, therefore, that

the position of Battalion Chief is supervisory and is to be ex-

cluded from a unit of non-supervisory personnel.

The position of Captain is not one of a supervisory nature as

defined by this Board for the reasons that it is questionable as

to whether the Captain has the authority to effectively recom-

mend the hiring, promotion or discharge of employees, in this

instance Fire Fighters. He supervises a small number of men

and the evidence clearly indicates he is a working supervisor or

leadman. There is a definite showing of a community of interest

between the position of Captain and Fire Fighter. They fight

the fire together in every aspect, they live together and work the

same hours.

The position of Equipment Dispatcher III should be excluded

from an appropriate unit of nom-supervisory employees because

of a lack of community of interest with the related positions of

Equipment Dispatcher II and |. The competent and substantial

evidence upon the whole record clearly supports this position.

The position of Equipment Dispatcher I, although clothed

with the same supervisory activities which would warrant exclu-

sion from an appropriate unit, has sufficient interest with the

position of Equipment Dispatcher I so as to permit inclusion.

Equipment Dispatcher II supervises a minimal amount of em-

ployees and spends his time working side by side the employees

he supervises. This Board views the position of Equipment Dis-

patcher II as that of a lead or working foreman.

— A-65 —

It should be noted that no evidence was offered regarding

the position of Fire Lieutenant because it exists only as an ordi-

nance classification and as of the date of this hearing it had not

been effectuated. This position will be included in an appropri-

ate unit.

Decision

It is the decision of the State Board of Meditation that an ap-

propriate unit of Fire Department employees of the City of St.

Louis is as follows:

All Fire Department employees of the City of St. Louis

including the positions of Fire Fighter, Fire Prevention In-

spector, Fire Liewtenant, Fire Captain, Fire Equipment

Dispatcher I and Fire Equipment Dispatcher II, but exclud-

ing the positions of Fire Equipment Dispatcher III, Bat-

talion Fire Chief, Deputy Chief and Fire Chief.

Direction of Election

An election by secret ballot shall be conducted by the Chair-

man of the State Board of Mediation among the employees

in the unit found appropriate, as early as possible, but not

later than ninety (90) days from the date below. The exact

time and place will be set forth in the notice of election to be

issued subsequently, subject to the Board’s rules and regula-

tions. Eligible to vote are those in the unit who were em-

ployed during the payroll period immediately preceding the

date below, including employees who did not work during that

period, because they were out ill or on vacation. Ineligible to

vote are employees who quit or were discharged for cause

since the designated payroll period and who have not been

rehired or reinstated before the election date. Those eligible

shall vote whether (or not) they desire to be represented for

the purpose of exclusive recognition by St. Louis Fire Fighters

—_e =

Association, Local No. 73, International Association of Fire

Fighters, AFL-CIO.

It is hereby ordered that the City shall submit to the Chair-

man of the State Board of Mediation, as well as to the Peti-

tioner, within fifteen (15) days from the date of receipt of this

decision, an alphabetical list of the employees in the unit de-

termined above to be appropriate who were employed during

the designated payroll period.

Entered this 23rd day of February, 1977.

STATE BOARD OF MEDIATION

/s/ MICHAEL HORN, Chairman

/s/ HARRY R. SCOTT, Employer Member

Dissenting

/s/ RICHARD MANTIA, Labor Member