Petition — Virginia v. United States

Supreme Court brief1980

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Supreme Court of the United States

October Term, 1980

COMMONWEALTH OF VIRGINIA anp COLONEL

DENNY M. SLANE, SUPERINTENDENT

VIRGINIA STATE POLICE,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARSHALL COLEMAN

Attorney General of Virginia

James E. Moore

Leonarp L. Hopkins, Jr.

Assistant Attorneys General

Supreme Court Building

1101 East Broad Street

Richmond, Virginia 23219

(804) 786-2071

EE —

ge OTe I a el as

QUESTIONS PRESENTED

1. Does Title VII of the Civil Rights Act of

1964 (hereinafter "Title VII"), as interpreted by

this Court in Washington v. Davis, 426 U.S. 229

(1976), permit validation of a written employment

test against training school performance where the

training proaram is substantial and a prerequisite

to permanent employment.

2. Did the Court of Appeals err in permitting

the Government on remand to present additional

evidence where, through no error of the District

Court, the Government failed to prove a prima facie

case under Hazelwood School District v. United

States, 433 U.S. 299 (1977).

3. Did the Court of Appeals err in directing

the District Court to reconsider in light of EEOC

| guidelines the charge that the background

| investigations served as a pretext for eliminating

3 black applicants.

TABLE OF CONTENTS

Table Of Authorities cescesevesevvccccccsess

OpiNiONs BelOW cccececcccevcccccesseccvccces

JUPISGICTION ccccccccccccccecccccccccscccces

Statutory Provisions Involved .ceccccsecsees

Statement of the Case cccccccevcvccvsesceces

Reasons for Granting the Writ cocccccccccees

I. This Case Presents the Opportunity

for this Court to Eliminate Confusion

Which Now Exists in the Federal

Aoplie ape iygrion the tone

plication of Was gion v. Davis

and the Principles of Training School

Validation in Title VII

Actions @eeeeceeeeoeoeeeoeeeeeeeeeeeeeeeeeee

II. The Court of Appeals Decision

Encourages Unending Piecemeal

Litigation Permitting the Errors of

Trial Counsel to be Remedied by the

Granting Of a New Trial wecccccccccccees

III. The Court of Appeal's Decision

Misapplies EEOC Guidelines to Claims

of Intentional Reconsideration

Discrimination and Requires

Reconsideration of the Record Where

There Has Been No Finding of Error .....

Page

Conclusion @eeeeeeeeeceaeeeeeeeeeeeneeeeeeee eee 24

Certificate Of Service eocsccecccesscceseses 24

Court of Appeals Opinion and Order ..... Appendix A

District Court Liability Opinion ....... Appendix B

District Court Relief Opinion ...+seeeee. Appendix C

Sections 703(a) and (h) of Title VII of

the Civil Rights Act of 1964, as

Amended @eeeeeeeeoeeeeoeeeeeoeaeeeeeee eee Appendix D

Sections 518(a), (b) and (c)(1) of the

Omnibus Crime Control and Safe

Streets Act of 1968, as Amended ... Appendix E

EEOC Guidelines on Employee Selection

Procedures, 29 C.F.R. § 1607,

et seq. @eeeeoeee eee e eee eeeeeeeeee ee Appendix F

-_-

ode

TABLE OF AUTHORITIES

Cases

Albemarle Paper Co. v. Moody, 422 U.S. 405

Blake v. City of Los Angeles, 595 F.2d 1367

(9th Cir. 1979), cert. denied, U.S.

+ 48 U.S.LeWe 3098 (1980) @eeeeoeeaeaees

Blue Ridge Elec. Co-op., Inc., 356

Ensley Branch of N.A.A.C.P. v. Seibels, 616

Fe th fe ) @eeeeeeoe eee ee es

E.E.0.C. v. Radiator Specialty, 610 F.2d 178

(4th Cir. @eeeeeeoeaeeeeaeeoeeeeeeeeee

Gri v.- Duke Power Co., 401 U.S. 424

971) eeeeeeeaeeeeoeeeeeeeeeeeeeeeeeee 6,

Byrd v.

U. S.

Harless v. Duck, ___ F.2d » 22 EPD

0871 (6th Cir. SN ie Sidi aviwkee ce

Hazelwood School District v. United States,

U.S. 9 @eeeoeeaoeaeeeeeea eee 3,

Image of Gr. San Antonio Texas v. Brown,

Fe th Cir. 8) @eeeeseeaeaeoeee

McDonnell ae Corp. v. Green, 411 U.S.

@eeeeeoeoeaee eee eeeeeeeeeeeee i

Richardson v. McFadden, 540 F.2d 744 (4th

Te 976 e@eeeeeeeeaeeeeeeeeeaeeeeeee eee

United States v. City of Buffalo, 457

F.Supp. 612 (W.D. Ne tee ) eeeeeeaeenee

Page

19,

ll,

10,

22,

Page

United States v. oy of Chicago, 549 F.2d

15 (7th Cir. eeeeeeeaeaeoeeeeeeeaeeee 14

United States v. Commonwealth, 454 F.Supp.

eve Va. e@eeeeeeeeoeoeeaeeeeeee 1

United States v. Commonwealth, Fodd: ”,

0854 (4th Cir. 1980) eeeeeeeaeae 2

United States v. Shotwell Mfg. Co., 355 U.S.

eeeeeeeeeeeeeeeeoeeeeeeeeeeeee 19, 21

United States v. State of South Carolina, 445

«Supp. 1094 (D. S.C. three judge

court), aff'd mem., 434 U.S. 1026

(1978

e@eeeeeeeoeeoeeeeeeeeeeeeeeeeeeeeeee 14

Washington v. Davis, 426 U.S. 229 (1976) ... 3, 6

11, 12, 14, 15

Statutes

Civil Rights Act of 1964, (Title VII)

42 U.S.Ce § 2000e, et seq. eeeeeeoeaeeoeeee 3, 4

Crime Control Act

42 U.S.C. § 3766 eeeeeceaeoeeeeeeeeeeeee eee

Civil Rights Act of 1866, 42 U.S.C. § 1981.

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

wow +P +

United States Code, Title 28, Sec. 1254(1) .

Regul ations’

E.E.0.C. Guidelines on Employee Selection

Procedures, 29 C.F.R. § 1607, et seq. .. App. F

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

COMMONWEALTH OF VIRGINIA and COLONEL

DENNY M. SLANE, SUPERINTENDENT

VIRGINIA STATE POLICE,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

Petition For a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

The Petitioners, Commonwealth of Virginia, et

al., (hereinafter, "Virginia"), respectfully pray

that a Writ of Certiorari issue to review the

judgment and opinion of the United States Court of

Appeals for the Fourth Circuit entered in United

States v. Commonwealth, et al. on April 17, 1980.

OPINIONS BELOW

The opinion of the Court of Appeals in United

States v. Commonwealth of Virginia is not yet

officially reported and it appears as Appendix A.

That decision has been unofficially reported at 22

EPD 430854. The decision of the United States

District Court for the Eastern District of Virginia

on liabitity is reported at 454 F.Supp. 1077, and

is unofficially reported at 18 EPD 48779. That

decision is reprinted as Appendix B. The decision

of the District Court on relief is not officially

or unofficially reported but is reprinted as

Appendix C. ;

JURISDICTION

The judgment of the Court of Appeals for the

Fourth Circuit was entered on April 17, 1980.

Thereafter, on May 1, 1980, Virginia filed a

petition for rehearing. On June 3, 1980, the

petition for rehearing was denied. The Order

denying a rehearing is reprinted at the end of

Appendix A. This Petition for Certiorari is being

filed within 90 days of the denial of a rehearing.

This Court's jurisdiction is invoked under 28

U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant provisions of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C.

§ 2000e et seq., and the Omnibus Crime Control and

Safe stress Act of 1968, as amended, 42 U.S.C.

§ 3766, are set forth as Appendix 9 and d Appendix E

respectively.

STATEMENT OF CASE

In December, 1976, the United "States

(Government ) brought suit against the Commonwealth

of Virginia and the Superintendent of State !olice

(Virginia) under Title VII of the Civil Rights Act

of 1964, 420U.S.C. § 2000e, et seq., the Crime

Control Act of 1973, as amended, 42 U.S.C.

§ 3766(c)(1), and 42 U.S.C. §§ 1981 and 1983,

claiming that Virginia engaged in a pattern and

practice of employment discrimination. The

Government alleged race and sex discrimination

against applicants for sworn trooper positions and

race discrimination in hiring civilians.

The District Court dismissed the Title VII and

constitutional claims by its Order of April 7,

1977. Trial was conducted and completed in

February, 1978 on the merits of the Crime Control

Act (Act) claims, the anti-discrimination

provisions of which became effective July 1, 1973.

The District Court issued its liability

Opinion on July 24, 1978, finding that since the

effective date of the Act Virginia had not

discriminated against black applicants for trooper

positions or civilian positions, with the exception

of black applicants for the civilian position of

dispatcher who had been affected by the adverse

impact of written examinations required up until

March, 1976. The Court also found that female

trooper applicants had been discriminated against

as a result of the adverse impact of a height and

weight requirement in place until March, 1976 and

by Virginia's failure to more actively recruit

female trooper applicants.

In all other respects, it was the judgment of

the Court that Virginia had not engaged in unlawful

discrimination against black or female applicants.

The District Court found the written test for

trooper applicants to be lawful as a result of its

significant correlation with training and training

school performance. In applying the principles of

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

District Court concluded that Virginia's showing

that the written test was a valid predictor of

training school performance “sustain[ed] its burden

of proof under Griggs as _ interpreted’ by

Washington v. Davis." App. B, at 44. The District

Court did not, therefore, address the evidence in

the record pertaining to the relationship between

performance in the training program and actual

performance on the job.

Similarly, the District Court found that

Virginia's use of a background investigation for

applicants for trooper showed no pattern or

practice of discrimination. Specifically, the

Court concluded that:

“[cJonsidered as a whole’ the background

investigations adduced by the plaintiff do not

show a pattern or practice of _ racial

discrimination. Nor do any cf the individual

background investigations reveal racial

discrimination against any individual

applicant. The defendant has in

every case met its burden to ‘articulate some

legitimate, nondiscriminatory reason for the

emptoyee's rejection.' McDonnell Dougla

Corp. v. Green, 411 U.S. 792, 93 §.Ct. I8I7, 3

~Ede2d 668 (1973). The plaintiff has not

shown that the legitimate reasons stated by the

defendant and found by the Court in this case

were mere pretexts for racial discrimination."

App. B, at 71.

With respect to civilian employees, except

dispatchers, the District Court determined that the

Government failed to prove that Virginia had

engaged in any unlawful discrimination. !

lThe District Court treated civilian dispatchers

separately from other civilian employees. The

District Court's finding that Virginia

discriminated in hiring dispatchers was based upon

the requirement that dispatchers take a written

test shown to have adversely affected blacks.

Other civilian employees were not required to take

this written test.

°s

On September 15, 1978, the District Court

issued an order onrelief and enjoined Virginia

from future discrimination against any female

applicant for the position of trooper or any black

applicant for the position of dispatcher. The

order also required that all previous victims of

discrimination be identified and remedied, and

required, as a further remedial measure, expanded

recruitment of female trooper applicants and black

dispatcher applicants. In connection with the

recruitment required, the Court directed the

establishment of a line item in Virginia's budget

for such recruitment efforts and ordered Virginia

to appoint two additional State Police recruiters.

Quarterly reports to the Court on remedial efforts

were also required.

The Government appealed from the liability

order on September 22, 1978, to the United States

Court of Appeals for the Fourth Circuit. Virginia

cross-appealed from the liability order and

appealed the relief order on October 6, 1978. The

United States, on November 8, 1978, cross-appealed

from the relief order. These appeals were

consol idated.

The Court of Appeals, in an opinion dated

April 17, 1980, affirmed in part and reversed in

part the decision of the District Court, reinstated

claims under Title VII of the Civil Rights Act of

1964, and remanded this case for _ further

consideration of certain issues in light of

Title VII. Specifically, the Court of Appeals

directed the district court to reconsider the

written tests in light of applicable EEOC

guidelines. In addition, the Court directed the

District Court to “consider in light of those

guidelines the charge that the background

investigations used by the Commonwealth served as a

pretext for eliminating black applicants...."

(Emphasis added) See App. A, at 11-12.

Finally, without finding that the District

°%

Court had made any error in considering the

evidence on civilian hiring, the Court of Appeals

directed the District Court on remand to permit the

Government's further development of its statistical

evidence which had, at trial, failed to prove a

prima facie case of discrimination under

Hazelwood School District v. United States, 433

U.S. 299 (1977).

REASONS FOR GRANTING

THE WRIT OF CERTIORARI

THIS CASE PRESENTS THE OPPORTUNITY FOR THIS COURT

TO ELIMINATE CONFUSION WHICH NOW EXISTS IN THE

FEDERAL COURTS CONCERNING THE PROPER APPLICATION OF

WASHINGTOM V. DAVIS AND THE PRINCIPLES OF

TRAINING SCHOOL VALIDATION IN TITLE VII ACTIONS.

The Government alleged that Virginia's

preemployment tests for the position of trocper

were unlawfully discriminatory. The District Court

found, however, that these tests were valid

predictors of success in training and in the

training school (App. B, at 45) and concluded,

therefore, that the tests were lawful in accordance

be ik

with the job relatedness requirements of Title VII

as interpreted by this Court in Washington v.

Davis, 426 U.S. 229 (1976). As stated in Davis:

"This conclusion of the District Judge that

training program validation may itself be

sufficient is supported by regulations of the

Civil Service Commission, by opinion evidence

placed before the District Judge and by the

current views of the Civil Service

Commissioners who were parties to the case.

Nor is the conclusion foreclosed by either

Griggs or Albermarle Paper Co. v. Moody, 422

U.S. 405 (1975); and it seems to us the much

more sensible construction of the job

relatedness requirement.

Id. at 250-51.

In concluding that it is sufficient to show

the job relatedness of a test by demonstrating that

it predicts training and training school

performance, the District Court did not find it

necessary to discuss Virginia's proof of a

significant relationship between performance in the

training program and actual performance on the job.

It did find, however, that the Virginia State

Police training program’ was an important

prerequisite to permanent employment in = sworn

positions. Specifically, the evidence established:

"that the successful completion of the training

program is a requirement for the job of

trooper, that the training school entails

approximately 1,000 hours of study over a

period of more than twenty weeks, that the cost

of training a new trooper is somewhere between

$19,000 and $20,000, and that the attrition

rate in the training school has_ increased

sharply since the written test was dropped in

1975." App. B, at 43-44.

This evidence reinforced the Court:'s opinion that

Virginia's demonstration that the written test was

a valid predictor of training school performance

“sustainLed] its burden of proof under Griggs as

interpreted by Washington v. Davis." App. B, at

44,

On appeal to the Fourth Circuit, however, the

Government disputed the trial court's

interpretation of Davis and argued that in addition

to showing that the tests correlate with training

school performance, Title VII requires proof that

such performance be shown to be a_ valid predictor

of success on the job. That interpretation,

however, is inconsistent with the majority opinion

in Davis in which a positive correlation between a

preemployment test and the police training program

was found sufficient to validate the test without

any showing that the test predicted job

performance. Indeed, as Justice Brennan observed

in his dissenting opinion in Davis, petitioners’

“validity study was unable to discern a significant

positive relationship between training averages and

job performance" and the “record is devoid of

proof" of a positive relationship between the

recruit school average and job performance. Id.

262, 267.

While some support for the Government's

position is found in several recent court of

appeals decisions, those decisions are in apparent

conflict with the opinions of a number of other

courts. Compare . Ensley Branch of N.A.A.C.P. v.

Seibels, 616 F.2d 812, 819-22 (5th Cir. 1980);

Harless v. Duck, Fe2d_, 22 EPD = 30871 (6th

Cir. 1980); and Blake v. City of Los Angeles, 595

i |

F.2d 1367, 1382 n.17 (9th Cir. 1979), cert. denied,

U.S. : 48 U.S.L.W. 3698 (1980); with

United States v. South Carolina, 445 F.supp. 1094,

1113 (D.C. 1977) (three judge court), aff'd mem.,

434 U.S. 1026 (1978); Image of Gr. San Antonio,

Texas v. Brown, 570 F.2d 517, 520-521 (5th Cir.

1978); United States v. City of Chicago, 549 F.2d

415, 431-32 (7th Cir. 1977); Richardson v.

McFadden, 540 F.2d 744, 748 (4th Cir. 1976); and

United States v. City of Buffalo, 457 F.Supp. 612,

622 n.6 (W.D. N.Y. 1978).

These decisions indicate the degree of

confusion which now exists in the federal courts

concerning’ the proper interpretation and

application of Washington v. Davis in Title VII

cases. At stake is the ability of police

departments across this country to utilize

preemployment tests in screening applicants for the

minimum skills required to enter training schools.

Such schools are used extensively and, as_ in this

case, often involve a cost of thousands of dollars

per recruit and the investment of many weeks of

intensive instruction. As this Court found in

Davis:

"The advisability of the police recruit

training course informing the recruit about his

upcoming job, acquainting him with its demands

and attempting to impart a modicum of required

skills seems conceded. It is also apparent to

us as it was to the District Judge, that some

minimum verbal and communicative skill would be

very useful, if not essential to satisfactory

progress in the training regimen."

426 U.S. at 250-51.

Given the practical significance of the

question of training school validation, it is

important that confusion over application of

Washington v. Davis in Title VII cases be resolved.

This case presents a_ particularly appropriate

Opportunity for such clarification. In _ finding

that Virginia's written tests were valid, the

District Court applied Washington v. Davis in

determining whether Title VII standards and EEOC

guidelines had been met. App. B, at 41-47. The

Court of Appeals, therefore, erred in directing the

District Court to reconsider the test issue in

light of those standards. Moreover, in remanding

for reconsideration under Title VII, the Court of

Appeals provided no guidance as to whether training

school validation meets Title VII requirements.

The only direction given the District Court was

that it retrace the very steps it has already

thoroughly covered. Without clarification from

this Court, great confusion over the proper

application of Davis will continue and law

enforcement agencies throughout the nation will

remain in doubt as to the proper legal standards

for assessing the suitability of written

preemployment tests.

II.

THE COURT OF APPEAL'S DECISION ENCOURAGES

UNENDING PIECEMEAL LITIGATION PERMITTING

THE ERRORS OF TRIAL COUNSEL TO BE REMEDIED

BY THE GRANTING OF A NEW TRIAL

The Government attempted to prove Virginia

discriminated racially in hiring civilian employees

by means of statistical evidence comparing the

percentage of black civilian employees with the

percentage of blacks in the statewide population.

The District court concluded from the record that

certain civilian jobs required specialized

qualifications. Relying upon Hazelwood

School District v. United States, 433 U.S. 299

(1977), the District Court correctly found that the

Government's use of general population statistics

instead of qualified labor market data was not

sufficient to prove racial discrimination in

respect to these skilled positions. App. B, at 23.

With respect to civilian positions not requiring

specialized qualifications, the percentage of

blacks employed by Virginia compared favorably with

the percentage of blacks in the general population.

App. B, at 26. Thus, the District Court properly

concluded from all the evidence that the Government

failed to prove discrimination in hiring civilian

employees.

The Court of Appeals found no error in the

District Court's analysis of the evidence relating

to these civilian positions.* Nor did it find that

the District Court had improperly. excluded any

evidence offered by the Government in support of

its claims. Nevertheless, in remanding the case.

the Court of Appeals instructed that the Government

should “be permitted to develop further the

statistical data bearing upon’ the alleged

discrimination against black applicants for

civilian positions." App. A, at 14. In effect,

under the terms of the Court of Appeals’ decision,

the Government would be permitted on remand to

attempt to cure basic deficiencies in _ its

statistical proof presented at trial. This result

2in fact, the Court of Appeals carefully

explained its views on the proper application of

Hazelwood as set forth in its decision in E.E.0.C.

v. Radiator Specialty, 610 F.2d 178 (4th Cir.

1979). App. i. at 3-13, The District Court's

analysis under Hazelwood follows precisely the

Court of Appeals” views in Radiator Specialty.

App. B, at 19-29,

is contrary to settled principles of appellate

procedure established by this Court.

Where the trial court has not improperly

excluded proferred evidence and there is no error

in its findings from the evidence presented, an

appellate court should not remand to permit a party

to adduce additional evidence in support of its

case. Cf. Byrd v. Blue Ridge Elec. Co-op., Inc.,

356 U.S. 525, 533 (1958); United States v.

Shotwell Mfg. Co., 355 U.S. 233, 244 (1957). The

decision of the Court of Appeals in this case

directly contravenes these settled principles.

Moreover, practical considerations of

importance to employers and the judicial system are

jeopardized by the Court of Appeals’ approach in

this case. The Government filed this suit

following a three year investigation of Virginia's

employment practices in December, 1976 and engaged

in more than year of intensive discovery. During

that time it had access to Virginia's records

describing its civilian positions as well as the

required skills and qualifications for those jobs.

As the District Court found, mere reference to the

job titles of many positions alone signaled the

existence of specialized qualifications. Hazelwood

was decided in June, 1977, thereby fully apprising

the Government that where specialized

qualifications are required discrimination could

not be proved by reliance general population

statistics. Yet during an eleven day trial in

January and February, 1978 the Government chose not

to present the qualified labor force statistics

which were clearly required under Hazelwood. Under

these circumstances there is no justification for

permitting the Government, on remand, to adduce

additional labor market statistics.

3The District Court, in discussing the

Government's failure to introduce the appropriate

statistics, observed that re-opening the record for

further proof was unwarranted since the Government

had every opportunity to adduce the required

evidence at trial. App. B, at 84-85, n. 10.

Pattern and practice discrimination litigation

characteristically involves lengthy and costly

discovery as well as complex trial preparation and

proof. These burdens fall heavily upon the

employer who is usually the object of the bulk of

discovery. The employer defendant, therefore, has

a legitimate interest in reasonably foreseeable

limits on such litigation. Where the Government

fails to present evidence essential to its claims

at trial the employer defendant should not be

required to defend in a second trial on remand

while the Government belatedly attempts to prove

its case. Byrd v. Blue Ridge Elec. Co-op., Inc.;

United States v. Shotwell Mfg. Co., supra. Allowed

to stand as precedent, the Court of Appeals

decision sanctions unending piecemeal litigation

where errors of tria! counsel will be remedied by

the appellate courts granting new trials.

- |

Il.

THE COURT OF APPEAL'S DECISION MISAPPLIES

. EEOC GUIDELINES TO CLAIMS OF INTENTIONAL

RECONSIDERATION DISCRIMINATION AND

REQUIRES RECONSIDERATION OF THE RECORD WHERE

THERE HAS BEEN NO FINDING OF ERROR. .

The Government sought to prove that Virginia

used its employment background investigation as a

means of intentional racial discrimination. It

offered as evidence of its claim comparison of

numerous background investigation reports of black

applicants denied employment and white applicants

that were hired. After an exhaustive review of

each alleged example of discrimination presented by

the Government the District Court concluded that:

"[clonsidered as a whole. the background

investigations adduced by the plaintiff do not

show a pattern or. practice of racial

discrimination. Nor do any of the individual

background investigations reveal racial

discrimination against any individual

applicant. The defendant has in every case met

its burden to ‘articulate some legitimate,

nondiscriminatory reason for the employees'

rejection.’ McDonnell Douglas Corp. v. Green,

411 U.S. 792, 93 S.Ct £. TST 36 ~Ed.2d 6608

(1973). The plaintiff has not shown that the

legitimate reasons stated by the defendant and

found by the Court in this case were mere

Peepers for racial discrimination." App. B,

at /l.

The Court of Appeals found no error in the

District Court's assessment of this evidence.

Nevertheless, the Court of Appeals directed the

District Court on remand to “consider in light of

[EEOC] guidelines the charge that the background

investigations used by the Commonwealth served as a

pretext for eliminating black applicants...",

citing McDonnell-Douglas Corp. v. Green, 411 U.S.

792, 801 (1973). (Emphasis added.)

It is clear that the District Court did, in

fact, carefully consider the question whether the

background investigation was used as a pretext for

intentional race discrimination. The Court of

Appeals' instructions to again consider the same

evidence on that issue is clearly improper where

there has been no finding of error by the District

Court. Moreover, the Court of Appeals' direction

to reconsider this evidence in light of EEOC

guidelines is inappropriate, since those guidelines

have no direct application to cases of alleged

intentional discrimination involving disparate

treatment. See App. F.

CONCLUS ION

For all the foregoing reasons, Virginia prays

that a Writ of Certiorari issue to review the

judgment and decisions of the United States Court

of Appeals for the Fourth Circuit in this case.

Respectfully submitted,

MARSHALL COLEMAN

Attorney General of

Virginia

JAMES E. MOORE

LEONARD L. HOPKINS, UR.

Assistant Attorneys

General

Supreme Court Building

1101 East Broad Street

Richmond, Virginia 23219

CERTIFICATE OF SERVICE

I, James E. Moore, Assistant Attorney General

of Virginia, a member of the Bar of the Supreme

Court of the United States and one counsel for the

Petitioners in the above-captioned matter, hereby

certify that three (3) copies of this petition have

been served upon counsel for all parties required

to be served by depositing the same in the United

States Post Office with first class postage prepaid

this 2nd day of September, 1980.

James E. Moore

Assistant Attorney General

i eA

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 78-1764

UNITED STATES OF AMERICA,

versus

COMMONWEALTH OF VIRGNIA,

COLONEL DENNY M. SLANE,

NO. 78-1765

UNITED STATES OF AMERICA,

versus

COMMONWEALTH OF VIRGINIA,

COLONEL DENNY M. SLANE,

NO. 78-1840

UNITED STATES OF AMERICA,

versus

COMMONWEALTH OF VIRGINIA,

COLONEL DENNY M. SLANE,

Appellant,

Appel lees.

Appellee,

Appellants.

Appellant,

Appel lees.

Appeals from the United States District Court for

the Eastern District of Virginia, at Richmond,

D. Dortch Warriner, District Judge.

Argued December 3, 1979 Decided April 17, 1980

Before HAYNSWORTH, Chief Judge; BUTZNER, Circuit

Judge, and FIELD, Senior Circuit Judge.

Vincent F. O'Rourke, Jr., Dept. of Justice

(Brian K. Landsberg, Walter W. Barnett, Irving

Goldstein, Dept. of Justice; Drew S. Days, III,

Assistant Attorney General; William B. Cummings,

United States Attorney on brief) for the United

States; James Moore and Leonard L. Hopkins, dr.,

Assistant Attorneys General (Marshall Coleman,

Attorney General of Virginia on brief) for the

Commonwealth of Virginia and Colonel Denny M.

Slane.

FIELD, Senior Circuit Judge:

This case involves the application of tle

VII of the Civil Rights Act of 1964, as amended,

and the anti-discrimination provisions of the

Omnibus Crime Control and Safe Streets Act of 1978,

as amended, ina suit instituted by the United

States against the Commonwealth of Virginia and the

Superintendent of the Virginia State Police. The

United States charges that the Commonwealth engaged

in a "pattern and practice" of discrimination

against black applicants for civilian positions

with the state police and against both black and

women applicants for trooper positions.

l. Title 42 U.S.C. § 2000e-2 provides in part:

(a) It shall be an unlawful employment

practice for an employer--

(1) to fail or refuse to hire or to

discharge any individual * * *

because of such individual's

race, color, religion, sex or

national origin.

2. Title 42 U.S.C. § 3766 provides in part:

(c)(1) No person in any State shall on the

ground of race, color, religion, national

origin, or sex. be excluded from

participation in, be denied the benefits

of, or be subjected to discrimination

under or denied employment in connection

with any program or activity funded in

whole or in part with funds made available

under this chapter.

The Virginia State Police is partially

funded under the Crime Control Act.

The basic employment requirements for state

troopers in Virginia prior to March, 1976,

included, inter alia, that an applicant (1) be

between 21 and 29 years of age; (2) be at least

5'9" and weigh at least 156 pounds; (3) be a

graduate of an accredited high school (or the

equivalent); (4) be a licensed driver with a good

record; (5) undergo a _ thorough background

investigation; and (6) pass three written mental

ability tests. Applicants for civilian dispatcher

positions also had to complete’ the written

examinations. The requirements for other civilian

positions varied, but all applicants were subject

to a background investigation. Final employment

decisions for all positions were made by the

Superintendent of State Police.

The United States conducted a three-year

investigation of these hiring practices which led

to the filing of this suit in the Eastern District

of Virginia. The investigation revealed that the

Commonwealth hired no black troopers from its

inception until 1969, and that from 1972 until 1976

only 3.3 percent of the new troopers employed were

black. No black applicants were selected for any

of the eighty-five dispatcher positions until 1977,

and the blacks employed in the remaining civilian

jobs were relegated to lower paying and less

desirable positions. Women were also found to be

under represented in the force with only three

women applicants for trooper positions offered

employment by the time of trial.

Upon pretrail motion by the Commonwealth, the

disrict court dismissed the Title VII claims since

this suit was instituted by the Attorney General

rather than by the Equal Employment Opportunity

Commission (EEOC) as required by federal statute.

The case came to trial based solely on alleged

violations of the Crime Control Act. The court

found for the United States on allegations that the

Commonweal th discriminated against women applicants

for trooper positions’ and against blacks for

civilian dispatcher positions.4 The court further

found that prior to July 1, 1973, the Commonwealth

discriminated against blacks for all other

positions, but since the anit-discrimination

provisions of the Crime Control Act did not take

effect until that date, the district court rule

for the Commonwealth on the remaining charges.

The district court declined to apply the EEOC

3. The sex discrimination violation was based upon

the State Police requirements that an applicant

must be 5'9" in height and weigh at least 156

pounds. The plaintiff's evidence demonstrated

that these requirements would eliminate 98% of

all women. The height and weight requirements

were voluntarily dropped by the Commonwealth in

July, 1976.

4. Black applicants for dispatcher positions were

required to take the same written exam taken by

applicants for trooper positions. The court

found that the test had an “adverse impact" on

blacks and was not a valid predictor of job

performance. This employment requirement is no

longer used by the State Police in selecting

dispatchers.

5. Much of the statistical data relied upon by the

United States to demonstrate a prima facie case

of discrimination against black applicants for

trooper and civilian positions was discarded as

inaccurate by the district court. The court

also rejected the United States’ evidence of

intentional discrimination.

guidelines® applicable to the _ possible

discriminatory nature of the written examinations.

The court also rejected certain statistical

evidence offered by the United States, and

perceived no reason to impose steed quotas to

remedy past discrimination.

Upon appeal, the United States challenges the

district court's dismissal of the Title VII claims,

its rejection of the statistical evidence and the

failure to apply appropriate EEOC guidelines. The

Government also appeals from the district court's

refusal to impose quotas. The Commonwealth

cross-appeals from the liability and remedial

conclusions of the district court, including its

ruling that the United States was not required to

prove intentional discrimination to establish a

prima facie case.

Dismissal of the Title VII Claims

By pretrial order filed April 8, 1977, the

district court dismissed the Title VII claim,

relying upon 41 U.S.C. § 2000e-6(e)/ to hold that

6. The EEOC issues professionally prepared

guidelines to be used to determine whether

employment tests are job related. These

guidelines are the “administrative

interpretation of the Act by the enforcing

agency." Griggs v. Duke Power Co., 401 U.S.

424, 433-43 71).

7. Title 42 U.S.C. § 2000e-6 provides in part:.

Effective two years after March 24, 1972, the

functions of the Attorney General under this

section shall be transferred to the

Commission *** unless the President submits

*** a reorganization plan ***,

the Attorney General was without authority to

maintain a Title VII action since this power had

been transferred to the EEOC. Subsequent to this

dismissal order of the district court, however, on

February 23, 1978, the President submitted to

Congress “Reorganization Plan No. 1 of 1978," under

which full and complete authority to initiate Title

VII actions was transferred to the Attorney

General. The Plan was approved by Congress and was

made effective as of July 1, 1978 In United

States v. North Carolina, 587 F.2d 625 (1978),

cert. denied 99S. Ct. 2820 (1979), we concluded

that Bradley v. School Board of the City of

Richmond, 416 U.S. 696 (1974), required that we

recognize and apply the law with respect to this

transfer of authority in a case which was pending

on appeal on the effective date of the Plan.

Accordingly, we must remand this case to the

district court for further consideration in the

light of Title VII.

Title VII Standards

Applicable to State Governments

Although the district court improperly

dismissed the Title VII claim, it correctly

employed Title VII standards in interpreting the

anti-discrimination provisions of the Crime Control

Act. H.R. Rep. No. 94-1723, 94th Cong., 2d Sess.,

reprinted in i976] U. S. Code Cong. & Ad. News

18. The court held that under Title VII

standards, the United States was not required to

prove intentional discrimination to establish a

prima facie case, but only that the employment

practices of the defendants had an “adverse impact"

on both black and women applicants for employment.

This was based on Griggs v. Duke Power Co., 401

U.S. 424 (1971), in teh the Court determined that

a prima facie case could be demonstrated by

establishing that an empioyment practice had an

“adverse impact" on black employees whether

intended or not. If the plaintiff successfully

proves that in employment practice has an “adverse

impact," on minority applicants, the employer then

has the “burden of showing that any given

requirement *** [has a] relationship to the

employment in question." 401 U.S..at 432. The

Commonwealth contends that the “adverse impact"

test applies only to private employers and that

this is an improper test when Title VII standards

are applied to state government employers. Relying

upon Washington v. Davis, 426 U.S. 229 (1976), the

defendants argue that intentional discrimination

must be proven to establish a prima facie case

against a state. Davis involved a suit which

challenged employment practices of the police force

of the District of Columbia, alleging racial

discrimination in violation of the Due Process

Clause of the Fifth Amendment. The written tests

used by the police force eliminated a large portion

of the black applicants for police positions. The

Court held that the discriminatory impact of a

policy alone was not enough to demonstrate a prima

facie case under the Fifth Amendment, but that

intentional discrimination must be shown. The

Commonwealth contends that such a _ showing of

intentional discrimination is required in the

present case. Davis, however, does not support the

Commonwealth's argument since the Court made it

clear that in Davis its cconsideration was confined

to Fifth Amendment principles. and indicated that

unlike the Amendment, Title VII does not require

proof of intentional discrimination.

Unquestionably, Congress was mindful of the

Griggs “adverse impact" standard applicable to

private employers when it amended Title VII in 1972

to include state and local governments as employers

under the Act; and the legislative history clearly

indicates that the standards to be applied to the

Commonwealth under the 1972 amendments are the same

Title VII standards which were earlier made

applicable to private employers. Dothard v.

Rawlinson, 433 U.S. 321, 331 n. 14 (1977); see HR.

Rep. No. 97-238, reprinted in [1972] U. “S. Code

Cong. & Ad. News 2152.

Although the Supreme Court has not directly

addressed the application of the adverse impact

standard to state governments, the Court has

determined that Congress had authority under § 5 of

the Fourteenth Amendment to “extend [Title VII]

coverage to the states as employers."

Fitzpatrick v. Bitzer, 427 U.S. 445, 453 n 9

(1576). Section 5 grants Congress the power to

“enforce [the equal protection clause of the

Fourteenth Amendment] by appropriate legislation."

U.S. Const. amend. XIV, § 5. The only question is

whether the “adverse impact" standard mandated by

Congress in the 1972 amendments to Title VII and

applied by the district court below is appropriate

legislation under § 5 of the Fourteenth Amendment.

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

the Court stated that Congress was authorized to

pass legislation, consistent with the Constitution,

which was plainly adapted to the enforcement of the

equal protection clause of the Fourteenth

Amendment. Congress was granted discretion to

determine “what legislation is needed to secure the

guarantees of the Fourteenth Amendment." 384 U.S.

at 651. Although this discretion is not unlimited,

it is within congressional authority to extend the

safeguards against discrimination to employees of

state and local governments. United States v. Cit

of Chicago, 573 F.2d 416, 423 re °

agree arth the Ninth Circuit that the 1972

amendments making the Griggs standard applicable to

state employers “are rationally related to the goal

Cof prohibiting] discrimination" and “consistent

with the letter and spirit of the Constitution."

Blake v. City of Los Angeles, 595 F.2d 1367, 1373

(9 Cir. 1975). Accepting this constitutional

premise, we are in accord with those courts who

have held that Title VII applies the Griggs impact

standard to both public and private employees. See

Scott_v. City of Anniston, 597 F.2d ee (5 Cir.

1979); Firefi hters Institute, Etc. v. City of St.

Louis, 549 F.2d 506 (8 Cir. 1977 » cert. denied 434

U.S. 819 (1978); United States v. State of South

Carolina, 445 F.Supp. oSeCe » 2

mem. 434 U.S. 1026 (1978).

Violations of the Crime Control Act

We agree with the district court that the

United States presented sufficient evidence to

demonstrate that the Commonwealth's employment

practices had an adverse impact on black applicants

for dispatcher positions. The district court found

that the written examinations used by the state

police to fill these positions had no valid

correlation with job performance. Under Griggs,

once the adverse impact was established, the Sarees

passed to the Commonwealth to demonstrate that the

test had arational basis and was validated in

terms of job performance. The Commonwealth did not

attempt to show that the test was significantly

related to job performance, but argues that since

the number of black applicants affected was small,

the United States has failed to demonstrate a

pattern and practice of discrimination. The

question, however, is not the number of applicants

which were affected, but rather whether the United

States established "by a preponderance of the

evidence that racial discrimination was the

[Commonwealth's] standard operating procedure--the

regular rather than the wtnusual practice."

Teamsters v. United States, 431 U.S. 324, 336

(1977).

The district court also determined that the former

height and weight requirements had an adverse

impact: on female applicants. The evidence

presented by the Commonwealth did not demonstrate

the need for these physical requirements, and

without such justification, the court properly

concluded that the height and weight standards were

improper under Griggs. Dothard v. Rawlinson,

supra, 433 U.S. 321.

The principal allegations of discrimination

against black applicants for trooper positions were

(1) that written tests used by the state police had

an adverse impact on black applicants, and (2) that

background investigations of applicants constituted

intentional discrimination. The district court

found that the written test had an adverse impact

upon blacks and that it had not been shown to be a

valid predictor of job performance. The court did,

however, find, on the basis of the evidence

presented, that the test, in fact, was a valid

predictor of training school performance, and

relying upon Washington v. Davis, supra, 426 U.S.

229, held that its use by the state police was not

an unlawful or discriminatory employment practice.

The court further found that the test was not a

subterfuge for racial discrimination. In Davis the

Court held that a positive relationship between the

test and training-course performance was a

sufficient validation under standards similar to

those of Title VII. 426 U.S. at 250. While the

evidence presented to the district court was

sufficient to support its conclusion under Davis,

upon remand the court should reconsider this issue

in the light of the applicable EEOC guidelines to

deterine whether a contrary conclusion is required.

Similarly, the district court should consider in

the light of those guidelines the charge that the

background investigations used by the Commonwealth

served as a pretext for eliminating black

applicants or whether there was “some legitimate,

nondiscriminatory reason for the employee's

rejection." McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802 (1973). See EEOC v. United Virginia

Bank/Seaboard National, 7“ 73 1022 -(4~—sCir.

January 24, 1980). In directing that these charges

be further considered, we express no opinion with

respect to the merits or ultimate disposition of

them.

Discrimination in Civilian Hiring

The United States also alleges that the

Commonwealth violated the Crime Control Act by

discriminating against black applicants ffor

civilian positions with the state police. This

allegation was based to some degree upon

statistical evidence that the proportion of blacks

hired for such civilian positions was significantly

less than the proportion of blacks in the available

state work force as a whole. The district court

rejected this statistical analysis since many of

the civilian positions such as clerk-stenographer,

computer programmer, and clerk-typist, require

skills that may not be possessed or readily

acquired by the general population. Accordingly,

the court determined that the United States had

failed to prove a rina facie case under Hazelwood

School District v. ted States, 433 °Se

» in whic th e Court stated that “[wJhen

special qualifications are required to fill

particular jobs, comparisons to the general

population (rather than to the smaller group of

individuals who possess the necessary

qualifications) may have little probative value."

Id., at 308 n. 13.

In Equal Employment Opportunity v. Radiator

Specialty, 210 F-od 173 (4 ar 1S75)- we had

occasion to consider the practical implications of

Hazelwood. Writing for the court, Judge Phillips

recognized "the critical importance of establishing

the existence or non-existence of special job

qualifications when general population statistics

are offered as the base data to prove a prima facie

case based on gross racial disparities in

employment," Id., at 184, and identified three

general classifications of job positions for the

purpose of statistical proof ina Title VII case

such as this. First are those in which it is

manifest from the mere identification of the job

positions in question that no special

qualifications exist as a matter of law. In such

cases, general population statistics are

appropriate in assessing a plaintiff's prima facie

proof. Second are those in which it is equally

manifest that special qualifications do exist, and

in such acase a plaintiff will ordinarilly be

required to produce specially qualified market

statistics in an attempt to establish a prima facie

case. Finally, are those cases in which it will

not be manifest as a matter of law simply from the

identification of the job position whether or not

special qualifications are required, and in such

cases the burden rests upon the defendant to

establish that the positions, in fact, do require

special qualifications not possessed or readily

acquired by the general population. If the

defendant carries this initial burden, then the

plaintiff should have the opportunity to present

statistical proof to reflect a labor pool base

possessing such special qualifications.

Upon remand the parties and the court should

address themselves to each civilian job

classification in the State Police to determine

which positions, if any, require special

qualifications and, based upon’ this threshold

determination, the appropriate statistical proof

required under Radiator Specialty.

CONCLUSION

As we have noted, on remand the district court

should consider the charges of discrimination made

by the United States in the light of Title VII, and

incident thereto, we note that even though some

Title VII standards were applied by the district

court, it considered only those alleged violations

which occurred on or after July 1, 1973, the

effective date of the anti-discrimination

provisions of the Crime Control Act. Since Title

VII became applicable to state and_ local

governments on March 24, 1972, the district court

should consider possible violations which occurred

during that sixteen month period. As we have

noted, the United States should also be permitted

to develop further the statistical data bearing

upon the alleged discrimination against black

applicants for civilian positions. We express no

Opinion in regard to any rememdial steps since any

remedy, of necessity, will depend upon the findings

of the court on the several charges of

discrimination.

AFFIRMED _IN PART;

REVERSED IN PART;

AND REMANDED.

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 78-1764

United States of America,

Appellant,

versus

Commonwealth of Virginia,

Colonel Denny M. Slane,

Appellees.

No. /8-1765

United States of America,

Appellee,

versus

Commonwealth of Virginia,

Colonel Denny M. Slane,

Appellants.

No. /8-1840

United States of America,

Appellant,

versus

Commonwealth of Virginia,

Colonel Denny M. Slane,

Appel lees.

ORDER

Upon consideration of the Commonwealth of

Virginia's petition for rehearing, by counsel,

IT IS ORDERED that the petition for rehearing

is DENIED.

Entered at the direction of Judge Field for a

panel consisting of Judge Haynsworth, Judge

Butzner, and Judge Field.

For the Court,

William K. Slate, II

Clerk

June 3, 1980

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

UNITED STATES OF AMERICA

Ve : CIVIL ACTION

: NO: 76-0623-R

COMMONWEALTH OF VIRGINIA

In accordance with the memorandum this day

filed, it is the judgment of this Court. that

defendant has engaged in an _ unlawful and

discriminatory hiring pattern or practice in that

it maintained a height and weight requirement which

discriminated against women applicants and it

failed actively to recruit women’ for sworn

positions on the Virginia State Police after the

effective date of the Crime Control Act of 1973.

Further, it is the judgment of this Court that the

defendant engaged in an unlawful and discriminatory

hiring pattern or practice in that the Virginia

State Police used a written test as a screening

device for applicants for the position of

dispatcher which discriminated against black

applicants for the position of dispatcher in

violation of the Crime Control Act of 1973.

In all other respects, it is the judgment of

this Court that the defendant has not engaged in

any pattern or practice of unlawful discrimination

against black applicants or female applicants.

The plaintiff shall submit its brief on the

question of appropriate relief within fifteen days

on the entry of this order. Defendant shall have

ten days from the filing of the plaintiff's brief

to reply. Plaintiff's rebuttal shall be filed

within five days thereafter.

And it is so ORDERED.

Let the Clerk send a copy of this order and

the memorandum to all counsel of record.

D. Dortch Warriner

United States District Judge -

Date: 24 July 1978

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINA

RICHMOND DIVISION

UNITED STATES OF AMERICA

Ve : CIVIL ACTION

: NO: 76-0623-R

COMMONWEALTH OF VIRGINIA

MEMORANDUM

On 23 December 1976 the United States brought

suit inthis Court against the Commonwealth of

Virginia and _the Superintendent of the Virginia

State Police! to enforce the provisions of

Title VII of the Civil Rights Act of 1964 as

amended, 42 U.S.C. § 2000e et seq. and of

§ 518(c)(1) of the Omnibus Crime Control and Safe

Streets Act of 1968 as amended, 42 U.S.C.

§ 3766(c)(1), and to protect certain rights

guaranteed by the Constitution. By order entered 7

April 1977 plaintiff's claims under the

Constitution and under Title VII were dismissed,

and the action proceeded to trial on the merits of

plaintiff's claim under the Omnibus Crime Control

and Safe Streets Act of 1968 (hereinafter referred

to as the Act).

The United States alleged that the

Commonwealth of Virginia has discriminated against

black applicants for civilian positions and against

both black and female applicants for sworn

positions in the Virginia State Police. The State

Police is denominated a program or activity funded

in part with Law Enforcement Assistance

Administrative (LEAA) funds made available under

Chapter 46 of Title 42 of the United States Code,

42 U.S.C. §§ 3701, et seq.

The Crime Control Act of 1973 amended Section

518 of the Omnibus Crime Control and Safe Streets

Act of 1968, 42 U.S.C. § 3766, to include for the

first time a prohibition against, inter alia,

racial and sexual discrimination by recipients of

funds under the Act. Section 3 of the Crime

Control Act of 1973, Pub. L. No. 93-83, provided

that the anti-discrimination amendments would take

effect on 1 July 1973. Thus, only those acts of

discrimination which took place after 1 July 1973

will support a finding of discrimination in

violation of § 3766(c). See Hazelwood School

District v. United States, 433 U.S. 299, 309

~ Evidence of pre-Act discrimination is

nonetheless relevant to this case. Hazelwood,

supra at 309-10, n. 15. A showing of pre-Act

discrimination would give meeting to post-Act

patterns and practice of the defendants.

The Court finds that prior to 1 July 1973 the

Virginia State Police discriminated against black

applicants for civilian positions and against both

black and female applicants for sworn positions.

The practice of discrimination against female

applicants for sworn positions was readily admitted

by Captain Meredith S. Urick, who was Personnel and

Training Officer for the Virginia State Police from

the late 1940's until his retirement on 1 April

1972. Tr. 5-48. The discrimination against blacks

in hiring for sworn and unsworn positions is not

admitted by defendants, but is shown by the

evidence nonetheless.

The statistical evidence of pre-Act

discrimination is substantial. The evidence of the

hiring of blacks by the Virginia State Police prior

to 1969 consists of what the Supreme Court and the

Fifth Circuit have termed "the inexorable zero."

rear ttt) United States, 431 U.S. 324, at 342,

ne 2s (1 » quoting from United States v.

TeI1.M.E.-D.C., 517 F.2d 299, at 315 (th Cir.

1975). In the entire history of the Virginia State

Police, only four blacks had ever been hired as

troopers before 1973. No blacks had been hired

prior to 1969. Plaintiff's Exhibit 21A.

Plaintiff's Exhibit 8 is a list of 172 black

applicants for trooper positions who applied

between 1950 and 1972. Although this number is

small in proportion to those who applied for

trooper positions in this period, it is a

substantial number and none were hired.

The statistical evidence of pre-Act

discrimination is substantial. See Roman v. ESB

Inc., 550 F.2d 1343, 1350 (4th Cir. 1976). When

coupled with the direct evidence of discrimination,

a prima facie case of pre-Act discrimination is

made. The defendant's evidence is insufficient as

a matter of law to rebut the plaintiff's prima

facie case. Teamsters v. United States, 431 U.S.

324, 342-3, n. 24 (1977), citin exander v.

Louisiana, 405 U.S. 625, 632 ). he Court

finds that prior to the effective date of the Crime

Control Act of 1973, that is, up until 1969, the

Virginia State Police maintained an all-white

trooper force by purposefully excluding blacks.

The Attorney General of the United States is

empowered to bring suit under § 3766(c) whenever he

has reason to believe a recipient government agency

"has engaged or is engaging in a pattern or

practice in violation of the provisions of this

section." 42 U.S.C. § 3766(c)(3). Before

proceeding to a detailed analysis of the evidence

in this case, the Court must determine what legal

Standard is appropriate to such “pattern or

practice” suits under the Crime Control Act. We

deal with a welter of overlapping and interrelated

laws, regulations and court decisions which make it

difficult to ascertain what burden of proof is

imposed on the federal government in such cases.

The plaintiff contends that the legal

standards applicable to suits under Title VII of

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

seq., are intended by Congress to apply to this

766 case. This view is bolstered by the clear

statement to that effect found in the conference

report on Publ. Le No. 94-503, H.R. Rep. 94-1723,

94th Cong., 2d Sess. (1976). Plaintiff says that

it follows that the legal standard to be applied to

this case is the standard enunciated in arts te

Duke Power Co., 401 U.S. 424 (1971). Under Gr gs,

proof of discriminatory motive is not necessary in

a Title VII case where the plaintiff complains of

facially neutral employment practices that exhibit

a disparate racial impact.

Plaintiff points as well to the regulations

promulgated under the Crime Control Act on 18

August 1972, almost a year before § 3766(c) became

effective. These regulations impose on recipients

a duty to “conduct a continuing program of

self-evaluation to ascertain whether any of

their...policies...directly or indirectly have the

effect of denying equal employment opportunities to

minority individuals and women. 28 C.F.R.

§ 42.306(a). This provision seems to contemplate

remedies based on an adverse impact theory of

discrimination. Congress did nothing to require a

change in this regulation in 1973 when the

anti-discrimination amendments were adopted nor in

1976 when the tlegislation was re-enacted.

Therefore, the plaintiff argues, Congress must have

meant for the Griggs adverse impact standard to

apply to cases under § 3766(c).

In Lau v. Nichols, 414 U.S. 563 (1973) the

Supreme Court upheld the claims of the plaintiff

class brought by non-English-speaking

Chinese-American students against the San Francisco

public schools under a regulation promulgated by

HEW pursuant to Title VI of the Civil Rights Act of

1964 which regulation prohibited practices which

had the effect of discriminating even though no

discrimination was intended. 414 U.S. at 568.

Justice Stewart, joined by Chief Justice Burger and

Justice Blackmun, concurred in the result but

expressed doubt as to whether Title VI, standing

alone, would sustain plaintiff's position were

there no purposeful discrimination. However, the

regulations which required affirmative action to

overcome any language barriers were, Justice

Stewart said, reasonably related to the purposes of

the enabling legislation, and therefore binding on

the defendant, 42 U.S at 569-71. In the present

case, the regulation was not offered as a basis for

liability but is here considered as a guide for khe

interpretation of the statute which followed it.

Defendant, on the other hand, argues the rule

of Hashingtos v. Davis, 426 U.S. 229 (1976).

Washington held that proof of discriminatory motive

is necessary to establish a case of race

discrimination under the Fifth Amendment (and by

implication under the Fourteenth Amendment). Thus,

defendant argues, mere disparate impact will not

prove acase of discrimination under the Crime

Control Act. Defendant arrives at this limitation

by arguing that the anti-discrimination section of

the Crime Control Act (42 U.S.C. § 3766(c)) was

enacted by Congress under the authority of § 5 of

the Fourteenth Amendment. Since Washington

recognized limits on the Amendment itself, the

legislation adopted pursuant to the Amendment

cannot exceed those same limits. Thus, if proof of

motive is required to support a_ finding of

liability under the Fourteenth Amendment; mere

proof of disparate impact must be insufficient to

support a finding of liability under § 3766(c), a

statute enacted under the authority of that

Amendment.

This Court considered a similar proposition in

the context of Title VII in Friend v. Leidinger,

446 F. Supp. 361, 384-87 (E.D. Va. 1977). In Friend

this Court decided that proof of discriminatory

intent is indeed necessary to establish a case of

race discrimination in employment under Title VII

where the defendant is either a State or a

subdivision of a State. Since Friend was decided,

however, two cases have been decided which cast

doubt on the analysis of the Court in Friend.

In United States v. City of Chicago, 573 F.2d

416 (7th Cir. 1978), the Seventh Create held that

the legal standerd of proving a claim under the

Fourteenth Amendment is not incorporated into

Title VII by virtue of Washington v. Davis. The

court analyzed the analogous cases of Lassiter v.

Northampton Election Bd., 360 U.S. 45 an

fatcemeen i; Morgan, 304 U.S. 641 (1966), dealing

with English literacy tests for voting. In

Lassiter the Supreme Court held that a North

Carolina English literacy test did not necessarily

violate the Fourteenth Amendment. In Katzenback v.

Morgan the Supreme Court considered the

constitutionality of § 4(e) of the Voting Rights

Act, which prohibited states from using English

literacy tests as a requirement of voting. The

Court held that the prior decision in Lassiter was

inapposite to the question of the validity of the

Voting Rights Act, and the question presented was

instead whether the legislation was appropriate to —

enforce the Equal Protection Clause of the

Fourteenth Amendment. 384 U.S. at 649-50. The

Court held in the affirmative. The Seventh

Circuit, by analogy, concluded that Title VII,

including the impact standard of Griggs, was an

appropriate means of enforcing the Fourteenth

Amendment in the employment field even as against a

State subdivision. 573 F.2d at 422-24.

The second case which considered the issue

after Friend is United States v. South Carolina,

445 F. Supp. 1094 (0.S.C. 1977) (three-judge

court), aff'd mem. U.S. , 46 U.S.LeW. 342

(January 16, 1978). In that case, a unanimous

three-judge panel consisting of Haynsworth and

xe Circuit Judges, and Simons, District

udge, discussed the impact of Washington v. Davis

on employment cases under Title VII and conclu

that Washington v. Davis did not disturb the

application of Griggs and that employment practices

which display an adverse impact must be shown to be

valid even where the employer is a governmental

entity. 445 F. Supp. at 1112.

These cases lead the Court to believe that

Congress has the power under § 5 of the Fourteenth

Amendment to apply the impact standard = of

employment discrimination to the States in

Title VII cases.

In any case, the defendant's argument is based

on the assumption that Congress in _ passing

§ 3766(c) was acting pursuant to its power under

the Fourteenth Amendment. Plaintiff contends, and

the Court agrees, that § 3766(c) is more likely

based upon the Spending Clause of Article l,

Secticn 8, of the Constitution. In Lau v. Nichols

supra, the Supreme Court made it clear that Title

I, the model for § 3766(c), was a proper exercise

of the Spending Power: ~ "The Federal Government has

power to fix the terms on which its money

allotments to the States shall be disbursed.

Oklahoma v. CSC, 330 U.S. 127 (1947). Whatever may

be the limits of that power,...they have not been

reached here." 414 U.S. at 569. The fact that the

anti-discrimination provision is tied directly to a

spending program also indicates that it is based

upon the Spending Power. Either way, the

defendant's argument fails.

In this same connection, however, it must be

borne in mind that this is a “pattern or practice”

suit brought by the Attorney General against an

employer under § 3766(c)(3). Pattern or practice

suits in the employment field trace their origins

to the Dirksen-Mansfield amendments to the Civil

Rights Act of 1964. 110 Cong. Rec. 12818-20

(1964). The Attorney General was authorized to

bring a civil action against any employer who he

has reasonable cause to believe “is engaged ina

pattern or practice of resistance” to the rights

secured by Title VII, “and that the pattern or

practice is of such a nature and is intended to

deny the full exercise" of Title VII rights. 42

U.S.C. § 2000e-6(a). (Emphasis added). Although

this intent language is not found in § 3766(c) (3).

which authorized this suit, the connection between

Title VII and the anti-discrimination provisions of

the Crime Control Act is so close that’ the intent

language of . § 2000e-6(a) may be imputed to

§ 3766(c) (3) 4

The language of § 2000e-6(a) thus plainly

contemplates purposeful discrimination as the basis

for a suit by the Attorney General. As the Supreme

Court has noted, “disparate treatment was the most

obvious evil Congress had in mind when it enacted

Title VII." Teamsters, 431 U.S. at 335, n. 15. In

view of the very language of the statute this Court

is of the view that Congress did not intend to

subject a governmental employer to liability ina

suit brought by the Attorney General unless the

employer were engaged in a widespread pattern and

deliberate practice of thwarting the goals of Title

VII. The courts have, however, applied the en gus

impact standard to pattern and practice cases under

Title VII without such analysis.

In United States v. Jacksonville Terminal Co.,

451 F.2d 418 (5th Cir. 1971), cert. den., 406 U.S.

906 (1972), the Fifth Circuit held that the United

States need not prove a specific present intent to

discriminate in a pattern or practice suit. The

court said: 7

[T]he Act proscribes facially neutral

practices perpetuating the effects of past

discrimination. If the practices have

racially determined’ effects, proof of

subjective intent to discriminate’ is

unnecessary; the Government must show only

that the defendant intended to perform the

discriminatory act. [451 F.2d at 443.]

In United States v. City of Chicago, 573 F.2d

416 (7th Cir. 1978) the Seventh — Creuit considered

a pattern or practice complaint against the fire

department of Chicago, Illinois, brought by the

Attorney General under’ Title VII. Without

discussing the question of whether Congress

intended that pattern or practice suits be brought

against employers who had ~»no discriminatory

purpose, the court held that the Griggs standard

should apply to the case, and that proof of

discriminatory motive was unnecessary.

The Eighth Circuit also indicated by

implication that discriminatory motive need not be

proved in pattern or practice cases in Firefighters

i |

st tute ie rec Equality ve of St. Louis,

Fe (8th Cir. 177). The court did not

Fetonteh a Bec the claims of the United States

and those of the private plaintiffs when it held

that discriminatory purpose need not be shown in

Title VII cases brought under an adverse impact

theory. 549 F.2d at 510.

Thus, although the Supreme Court has _ never

considered in a State employee case the question of

whether discriminatory intent is a necessary

element of a prima facie case, the weight of the

authority is that proof of impact alone is

sufficient. This Court, then, will apply the

standard of Title VII to this case with the parce

impact theory rather than the Washington purposefu

discrimination theory.

III

The Court will now proceed to examine the

claims of discrimination raised by the complaint.

These are three: sex discrimination in hiring for

sworn positions with the Virginia State Police,

race discrimination in hiring for civilian

positions with the State Police, and _ race

discrimination in hiring for sworn positions with

the State Police.

The plaintiff has sought to prove both

disparate treatment and the disparate impact of

neutral standards to show that the Virginia State

Police have engaged in sex discrimination in hiring

trooper applicants. The disparate treatment case

rests upon the miniscule number of females hired by

the Virginia State Police, the testimony of two

female applicants, the failure of the Virginia

State Police to recruit females for trooper

positions, and the persistence in use of a height

and weight requirement for trooper applicants. The

prone s case under a disparate impact theory is

ased upon the grossly disparate impact of the

height and weight requirement on women.

The first female trooper was hired by the

Virginia State Police in 1976. Until that time

there had never been a woman State Trooper in

Virginia. Clearly this is an example of “the

inexorable zero." The number of women presently

employed and seeking employment is so low that the

plaintiff does not argue that the proportion of

women in sworn positions of women in the civilian

labor force in Virginia. Plaintiff does argue,

however, that the number of women hired by the

Virginia State Police would be substantially

greater than it presently is in the absence of

discrimination. Thus, the plaintiff's use of these

statistics is in accord with the Supreme Court's

view of the usefulness of such statistics found in

Teamsters as proof of disparate treatment. 431

U.S. at 339, n. 20.

Plaintiff's testimonial evidence of disparate

treatment is, on the other hand, very weak. In

part it consists of tie testimony of two female

applicants for trooper positions, Barbara Penn and

Wanda Ricciardelli.

Barbara Penn, then a secretary in the office

of the Assistant United States Attorney, testified

that she had an interview with a Lieutenant Abbott

of the State Police in the latter part of September

1977. She testified that Lt. Abbott told her that

it would take some time to process her application

and that he didn't hold out much hope that they

could process her application before her 30th

birthday in March of 1978. He invited her to file

an application nevertheless. Despite’ this

indication that time was critical Miss Penn did not

actually submit her application until several weeks

later. At the time of her testimony in February

1978, Miss Penn's application was being processed

by the Virginia State Police. Tr. 1-164-69.

Wanda Ricciardelli testified that she applied

to the Virginia State Police in January of 1977.

In February, she received a letter notifying her

that a freeze was in effect and that the State

Police were not hiring at that time. In mid-May,

Miss Ricciardelli was notified that she would not

be offered employment by the Virginia State Police.

She tried repeatedly to ascertain the reason for

her rejection, but the State Police told her only

that they couldn't release the reasons for her

rejecton because they were confidential. She was,

however, told that she had passed the age limit of

29 years in June of 1977 and that after that time,

she was not’ eligible for employment. Miss

Ricciardelli expressed doubt that this age problem

was the only factor in her rejection. Miss

Ricciardelli's testimony indicated that she had

been hospitalized for an emotional disturbance in

the spring of 1968 and that she had a_ problem with

absences at her secretarial job in Philadelphia.

Tr. Ppp. 3-37-47.

The Court does not believe that the evidence

shows that either Miss Penn or Miss Ricciardelli

was the victim of sex discrimination. When the

Court asked counsel for plaintiff what was the

relevance of Miss Penn's testimony, plaintiff's

counsel said:

We wanted to show Your Honor that there was an

applicant, a female applicant, that we

considered to be qualified, who was under a

certain degree of time restraint and needed to

be considered and was not considered and

there's also, as I think the testimony will

show from other witnesses, there is a class

approaching that is to be employed sometime in

February --

THE COURT: Is it the position of the

government that because she was a woman and

she should have gotten particular treatment?

MR. WHITE: If you have a qualified female

applicant and you're in an affirmative action

posture to hire applicants, we consider that

it might be advisable for the State Police to

consider her application, knowing that her

30th birthday was approaching.

{Tr. 1-168-69. ]

This exchange makes it clear that the plaintiff did

not contend that Miss Penn was an explicit victim

of sex discrimination. The purpose of the

testimony of Miss Penn was to show that despite its

paucity of female troopers, the State Police were

unwilling to bend or waive the application process

to recruit additional women. Adherence to such

rules is not discrimination. Indeed, had defendant

waived the rules because Miss Penn was a woman

discrimination might well have been proven.

With respect to Miss Ricciardelli, the

plaintiff presented no evidence beyond her own

suspicion that she was rejected for a reason other

than her age, i.e., because of her sex. Defendant

argues that even if Miss Ricciardelli's age were

not the reason for her rejection, sufficient other

reason has been. shown by Miss Ricciardelli's own

testimony. The Court concurs. There is no

evidence that the reasons advanced by the Virginia

State Police for their rejection of Miss

Ricciardelli are pretexts for sex discrimination.

Accordingly, the Court finds that neither Miss Penn

nor Miss Ricciardelli was the victim of sex

discrimination.

In juxtaposition to this testimony the

defendant offered the testimony of Trooper Chery]

Nottingham. Trooper Nottingham was the first woman

to be hired as a trooper by the Virginia State

Police. She testified that she was not

discriminated against in any way on account of her

sex either in the application process or in the

training process or as a working trooper. Indeed,

Trooper Nottingham testified that she was

encouraged to apply and become a State Trooper.

Miss Nottingham applied for the job of trooper in

August of 1976. Her 30th birthday came in October

of that year.°

Plaintiff points to the alleged failure of the

Virginia State Police actively to recruit women as

evidence of intentional discrimination. The

evidence shows that only 38 women applied for

trooper positions with the Virginia State Police

from 1973 through 1976. Defendant's Exhibit 110

and 111. This small number of female applicants,

plaintiff contends, is the result of the admitted

discrimination carried on by the State Police prior

to 1973, coupled with the failure of the Virginia

State Police to recruit women as a _ rememdial

measure.

The evidence shows that virtually all of the

recuiting efforts expended by the Virginia State

Police have been aimed at _ recruiting black

applicants. While it is true that Trooper Green

testified that he has sought to recruit women

applicants as well as black applicants,

nevertheless, it is clear that the main thrust of

his efforts has been at recruiting blacks. Colonel

Slane testified that he hoped to add a female

trooper to the recruiting team, but wouldn't be

able to do so until a female trooper could graduate

and have some experience in the field. Tr.

10-147-48. The Virginia State Police has clearly

made a policy decision that the best way to recruit

for the kind of people they want is to senda

trained and experienced trooper, who is a member of

the group they seek to recruit, around to talk to

prospective applicants. Thus, the lack of a

trained and experienced female trooper in the

Virginia State Police has resulted in a_ lack of

recruiting for female applicants.

The record shows that the idea of women

becoming State troopers is a relatively new one.

Colonel Burgess, a police officer of 42 years

standing, had never heard of females as troopers

prior to 1970. Tr. 7-14. Nevertheless, the Court

views the failure of the Virginia State Police

after the effective date of the Act actively to

recruit female applicants as evidence of sex

discrimination against women onthe part of the

Virginia State Police.

The most telling evidence of sex

discrimination, however, is the existence until

1976 of a height and weight requirement for trooper

applicants for the Virginia State Police. Until

July, 1976, an applicant for trooper with the

Virginia State Police was required to be at least

5'9" tall and weigh 156 pounds. Plaintiff's

evidence showed that these requirements disqualify

more than 98% of all women while disqualifying only

about half of all men. Plaintiff's Exhibit No. 16.

Defendant's answer to the plaintiff's contention

that this shows intentional discrimination against

women is that the height and weight requirement was

instituted and was in effect for many years prior

to 1973. During this period the Virginia State

Police admittedly would not consider any woman for

employment as a State trooper. Her height and

weight was no impediment - only her sex. Thus it

is specious to argue that the height and weight

requirement was intended to exclude women.

Defendant also defends its height and weight

requirement on grounds that the Federal Bureau of

Investigation used a height and weight requirement

for employing special agents until as late as June

of 1975. Defendant does not argue that the FBI is

incapable of discriminating against women.

Instead, its argument is that the Virginia State

Police was mindful that the FBI is an arm of the

Attorney General of the United States and it

reasonably assumed that the U. S. Department of

Justice would not maintain the policy if it were

prohibited by law. Defendant maintains that its

reliance on the standards set by the FBI is

evidence of good faith and the nondiscriminatory

purpose of the Virginia State Police.

Recognizing that in years past no woman had

indicated an interest in becoming a State trooper

(a woman police offier was “unheard of") and that

even in recent years it is rare for a woman to be

so motivated, the Court cannot lay at the feet of

the Virginia State Police all the blame for the

lack of female troopers on its force. However,

after the Congress acted in 1973 to bar sex

discrimination to recipients of LEAA funds the

State Police had a legal duty to remove barriers

imposed by it which had the effect of

discriminating against female applicants.

The defendant had a duty to review its

employment practices when it became subject to the

Act, and either to modify those practices which

resulted in extreme adverse impact to a protected

group, such as women, or to seek to justify by

empirical evidence the necessity for such

standards. The defendant did not remove the height

and weight barrier until July 1976 and in this suit

it made no effort to justify the retention of the

requirement on empirical grounds. The only

evidence of the job-relatedness of the height and

weight requirement found inthe record is the

opinions of five members of the Virginia State

Police that height and weight are useful in police

work. This evidence was not offered to prove

job-relatedness but to prove a good faith belief of

job-relatedness. There is no evidence’ that

justified a 5'9" requirement or a 159 pound weight

requirement. Such evidence would be necessary to

establish the job-relatedness of the standard used

by the Virginia State Police.® In fact, the only

empirical evidence in the record as to the validity

of the height and weight requirement is Dr.

Edgerton's finding that neither height nor weight

of the officers correlated substantially with any

criterion of job performance in his 1973 validity

study. Defendant's Exhibit 12, p. 96.

It was not, of course, the implementation of

the height and weight requirement in the pre~-Act

period when no women were considered, nor even its

continued use after the Act when it arguably could

be considered a bona fide job-related facially

neutral requirement that was illegal. But the

persistence of the practice well after the

enactment without evidence of its enhancement of

job performance can only mean that the State Police

intended to keep the number of women on its force

low. Thus, the Court concludes that from and after

the effective date of the Act the defendant

purposefully discriminated against women’ in

employment as State troopers.

The foregoing discussion also affirms

plaintiff's contention that the height and weight

requirement is an illegal employment practice under

the disparate impact theory of Griggs.

The plaintiff alleges that the Virginia State

Police discriminates on the basis of race in hiring

for civilian positions. Plaintiff's case is based

almost entirely upon the statistical evidence on

the numbers of blacks hired by the defendant

compared with the numbers of blacks that would have

been hired by the defendant if the defendant had

hired blacks in proportion to their representation

in the civilian labor force in Virginia.

Plaintiff seeks to prove its case by a

statistical analysis involving the use of the

standard deviation of a population sample. The

argument is that if there were no discrimination

practiced by the Virginia State Police the

proportion of blacks employed in civilian positions

by the Virginia State Police would be equal to the

proportion of blacks in the civilian labor force.

A slight deviation would not be strong evidence of

discrimination. A major deviation would be

significant. Therefore, the plaintiff has used the

standard deviation analysis to show’ that the

numbers of blacks hired by the Virginia State

Police in civilian positions is significantly

smaller than the number of blacks that would have

been hired if blacks had been hired in the same

proportion as their representation in the civilian

labor force. This analysis has resulted in Table

Ts:

TABLE I

Statistical Analysis of Black Employees

in Civilian Positions with the Virginia

State Police, 1973-1976.

(Source: Plaintiff's Exhibit 23D)

. Difference

Blacks Between

Total Actually Expected Actual &

Employed Employed Employed Expected

12/31/74 412 18 70 52

12/31/75 438 22 75 43

12/31/76 451 28 77 49

Number of

Standard

Standard Deviations

Deviation Difference

12/31/73 7.51 6.3

12/31/74 7.66 6.8

12/31/75 7.90 5.4

12/31/76 8.01 6.1

Table I ¢s derived by first multiplying the

total number of persons employed in civilian

positions for each of the years 1973 through 1976

by the number .172 which is the proportion of

blacks in the civilian labor force in Virginia as

of the 1970 census. This calculation results in

the “expected employed" statistic - the number of

blacks who would have been inthe employ of the

Virginia State Police had the Virginia State Police

employed blacks in proportion to their membership

in the civilian labor force. The plaintiff then

subtracts the number of blacks actually employed by

the Virginia State Police from this figure for

expected employees and divides the figure thus

obtained by the standard deviation for the

population. The number thus obtained is the number

of standard deviations between the mumber of blacks

who would have been employed had the hiring of the

Virginia State Police been random, and the number

of blacks actually hired. If that number were no

more than two or three, then the inferesce that

hiring inthe Virginia State Police was unbiased

with respect to race would be supported. When, as

here, the number is five or more, the inference

that hiring in the Virginia State Police for

civilian positions is unbiased with respect to race

is not supported.

This analysis necessarily makes several

assumptions. First, it is assumed that the

civilian labor force for the entire Commonwealth of

Virginia is the labor pool from which the Virginia

State Police draws its civilian employees. The

evidence shows, however, that the lk, of its

civilian employees are located at the State Police

Headquarters in Richmond and thus are drawn from

the Richmond area. Accordingly, the civilian labor

force statistics for the State as a whole are not

applicable. Plaintiff's analysis does not take

into account the present effects of pre-Act hiring.

The analysis further fails to take into account

other population characteristics which are not

shown to be randomly distributed with regard to

race. One such non-random population

characteristic may be the distribution of various

skills required by the civilian positions offered

by the Virginia State Police. Another such

characteristic, shown by the evidence to be

concentrated among blacks, is an antipathy toward

law enforcement as a career. Tr. 9-104. The

entire history of black deprivation which has made

affirmative action necessary refutes an assumption

of even or random distribution of job skills and

motivations.

As the Supreme Court has said, “[w]Jhen special

qualifications are required to fill particular

jobs, comparison to the general population (rather

than to the smaller group of individuals who

possess the necessary qualifications) may have

little probative value." Hazelwood, 433 U.S. at

308, nw 13. Areview of Plaintiff's Exhibit 22,

however, shows that the civilian employees of the

Virginia State Police include persons in such

positions as accountants, building construction

inspectors, clerk stenographers, clerk typists,

computer programmers, computer systems analysts,

highway equipment mechanics, radio engineers, radio

technicians, photographers, and other skilled

positions.

In the absence of any evidence from plaintiff

as to the percentage of blacks holding the

indicated skills, or, alternatively, evidence that

the skills are commonly held and easily learned,

cf. Hazelwood, 433 U.S. at 308, n. 13, the Court

Simply has no basis for finding that blacks are so

underrepresented in the skilled civilian positions

that racial discrimination may be inferred.

The Court has attempted to separate out from

the civilian job titles found in Plaintiff's

Exhibit No. 22B positions that presumably many

persons can fill or which can be filled with

minimal training. The distribution of black and

white employees in these positions is set out in

Table II-A. The ngnainder of the positions are set

out in Table II-B.

Table II-A

Civilian Employees in Unskilled Positions

as of 31 December 1976

(Source: Plaintiff's Exhibit 22B)

Clerk D

Clerk C

Clerk B.

Clerk-Mess. B

Comp. Oper. A

Comp. Oper. B

Cook A

Corr. Off.

Cust. Worker

Fing. Tech. A

Fing. Tech. B

Food Serv. Aid A

Off. Dup. Mac. Op. A

Painter

PhotoCpy. Eqp. Oper. B

Rec. Info. Dispatcher

Staff Photo.

Stat. A

Storekeeper Asst.

TOTAL (Percent)

White Black

6 i.

19 l

47 4

2 os

2 l

2 ie

- 2

- 1

5 2

3 2

5 oF

1 5

3 ch

1 a

1 é

1 ss

2 ¥

1 1

1 a

102 (84.3) I9 (15.7)

TABLE II-B

Civilian Employes in Skilled Positions

as of 31 December 1976

(Source: Plaintiff's Exhibit 22B)

White Black

Acct. B 1

Acct. A l

ADO Mgr. A l

ADP PC Supv. 1

ADP P. Tech A. l

Bldg. Const. Insp. 1

Bldg. & Gds. Supv. A 1

Cent. Crim. Rec. Asst. Dir. 1

Cent. Crim. Rec. Exc. Dir. 1

Cent. Crim. Rec. Supv. l

Clerk-Steno D 15

Clerk-Steno C. 53

Clerk-Steno B 10

Clerk-Typist C 22

Clerk-Typist B 48

Comp. Oper. Supv.

Comp. Prog. B

Comp. Prog. A

Comp. Syst. An. A

Comp. Syst. Dev. Supv.

Conf. Sec.

Data Entry Op. A

Data Entry Supv.

Dict. Unit Supv. A

Hwy. Equip. Supv. A

Hwy. Equip. Rep. For. A

Hwy. Equip. Mech. A

Hwy. Equip. Mech. B

Hsk. Supv. A

Info. Dir. A

Police Dispatcher

(Continued on Page 25)

Nt es oe ee es ee cee ee Oe ee ee ee a, ee Oe ek Se Hae ne ee Re,

Sus — Oe — 1 ~Ommnwre

(Continued from Page 25)

, TABLE II-B (Continued)

White Black

Pur. & Stores Supv. B

Radio Asst. Eng.

Radio Eng.

Radio Mech.

Radio Mech. LD Man.

Radio Tech. B

Radio Tech. A l

Radio Tower Asst. Supv.

Radio Tower Supv.

Soft Wr. Syst. Prog. B

Staff Photo

Storekeeper Fore.

Storekeeper Supv. C

Storekeeper Supv. A

TOTAL (Percent) 331 (97.6%) 8 (2.42)

NFER RR ON PR ee

S-@ - Ag. 6.0 (82 e-Os- 6 8-8

These tables, the Court recognizes, have very

little probative value. There is, for instance, no

evidence in the record to support the Court's

determination that the jobs found in Table I are

those which require skills that many persons

possess or may easily acquire. The Court's choice

was based entirely on the name of the position as

set forth in Exhibit 22B. Nevertheless, it is

apparent that the proportion of blacks in those

jobs which the Court speculates are those in which

comparison with general population . statistics is

appropriate, is very close to the proportion of

blacks in the Sfate civilian labor force according

to census data. These figures do not suffice to

prove that the. Virginia State Police have not

discriminated against blacks in hiring for civilian

positions. However, it is not the burden of the

Virginia State Police to prove that they have not .

discriminated. It remains the burden of the United

States to prove that they have discriminated.

Roman v. ESB, Inc., 550 F.2d 1343, 1350 (4th Cir.

The plaintiff introduced the testimony of only

one witness to show that there had been racial

discrimination in hiring for civilian positions in

the Virginia State Police. Miss Evelyn C. Faison

testified that she had taken the civil service test

for aclerical position with the Virginia State

Police. Her application, Defendant's Exhibit 148,

shows that she did not list the fact that she had

taken and passed a State civil service examination

for a clerical position. The work experience

listed in her application shows work as a presser

in a cleaning establishment, as a utility aid ina

paper company, as anelevator operator at the

Medical College of Virginia and in the cleaning

department of a cleaning establishment. On _ the

basis of her application Miss Faison was offered a

food service job at the Virginia State Police

Headquarters. The plaintiff argues that this

incident shows the method by which blacks were

channeled into lower paying clerical and food

service positions in the Virginia State Police. In

fact, it shows nothing of the kind. The job Miss

Faison was offered was commensurate with her

abilities as they appeared from her application.

Thus, the testimony of Miss Faison is of no value

in showing discrimination by the defendant against

blacks in hiring for civilian positions.

Plaintiff also argues that the concentration

of black civilian employees in food service and

custodial positions shows racial discrimination on

the part of the Virginia State Police. The

evidence shows that of 15 civilian employes in the

jobs of cook, food service aid, and custodial

worker, six are white and nine are black. However

there is no evidence in the record to show whether

this disproportional assignment of black workers to

custodial and food service positions is the result

of post-Act hiring, or if this pattern is merely a

holdover from the time before the effective date of

the Act. In the latter case, no liability could be

found on the basis of these statistics. Hazelwood,

433 U.S. at 309. The evidence that the Court does

have, however, shows that the proportion of blacks

in these positions has declined from 77% in 1974 to

60% in 19/6. (See Table III). Finally, there is

no evidence inthe record that food service or

custodial jobs are lower paid or less desirable

jobs in the Virginia State Police than such jobs as

clerks, clerk typists or office duplicating machine

operators.

TABLE III

Civilian Employees in Food Service and Custodial

Positions by Race as or 31 December 1974 and as

of 31 December 1976

(Source: Plaintiff's Exhibit 22B)

1974 1976

White Black White Black

Cook A - 2 - 2

Cust. Worker 3 3 5 2

Food Svc. Aid A - 5 l 5

TOTAL 3 10 6 g

Percent 23.1% 76.9% 40.0% 60.0%

The Court treats separately the civilian

position of police dispatcher. Applicants for the

job of police dispatcher with the Virginia State

Police were required to take the same written

examination taken by applicants for trooper

positions. This written examination is discussed

in Part IV of this memorandum. The analysis of

adverse impact found there applies equally to the

test when used to test applicants for dispatcher

position. Thus, the test, as will be seen in Part

IV, is shown to have an adverse impact upon blacks,

and may be used as a_ selection device only if it

has also been shown to be a valid predictor of job

performance.

The defendant has not even attempted to show

that the written test is in any way related to any

criterion of job performance in the job of police

dispatcher. Unlike the job of trooper, successful

completion of a _ training program is not a

requirement for the job of dispatcher. The

evidence shows, it is true, that some dispatchers

are sent to the State Police training school, if

space permits, to familiarize them more fully with

the tasks of the troopers they support. However,

it is clear from the evidence. that. the training

school is not a requirement of the job of

dispatcher. Thus, the Court finds that it was a

violation of § 3766(c) for the Virginia State

Police to use the written test as a_ selection

device for applicant for the dispatcher position.

Plaintiff's Exhibit 15 shows that only five

black applicants for dispatcher positions failed

the State Police written test from 10 May 1973 to

31 December 1975. The record does not show how

many of these were failed prior to the effective

date of the Act, 1 July 1973. It is clear in any

event that the unlawful employment practice found

by the Court had a very small impact.

Nevertheless, relief must be fashioned to make

whole those persons who are the victims of that

unlawful employment practice.

The court will now consider the main thrust of

plaintiff's case, that the Virginia State Police

discriminated against blacks in hiring for trooper

positions. Plaintiff seeks to prove its case

through five basic modes of proof. First, the

plaintiff has offered statistical evidence on the

hiring of blacks by the Virginia State Police

compared with the statistics on the proportion of

blacks in what is alleged to be the relevant labor

market. Second, the plaintiff contends that the

use of a written test from the effective date of

the Act to December 1975 had an adverse impact upon

black applicants and that the test has not been

shown to be validated as as job-related. Third,

the plaintiff contends that the background

investigation of trooper applicants was conducted

in such away as to discriminate against black

applicants. Fourth, the plaintiff has presented

the testimony of several black applicants and

conditionally appointed troopers who claim to have

been discriminated against in the employment

process by the Virginia State Police. Fifth, the

plaintiff contends that the minority recruiting

program of the Virginia State Police is inadequate,

and that the failure of the Virginia State Police

to run an adequate minority recruiting program is

evidence of discrimination.

The race of Virginia State Police sworn

personnel on the last day of December 1973 to the

last day of December 1976 is shown in Table IV.

TABLE IV

Virginia State Troopers by Race

1973-1976

Total

Date Employed White (%) Black (%)

31 December 1973 1055 1047 (99.2%) 8 (0.8%

31 December 1974 1096 1087 (99.2%) 9 (0.8%

31 December 1975 1104 1093 (99.2%) 11 (1.0%

31 December 1976 1132 1101 (97.3%) 31 (2.7%

These figures, of course, reflect the results of

hiring practices of the Virginia State Police over

a period of decades. This Court must necessarily

concern itself with the hiring record of the

Virginia State Police since the July 1973 effective

date of the Act.

The statistics on hiring in the Virginia State

Police since 1973 are set out in Table V.

TABLE V

Troopers Hired by the Virginia State Police by Race

1973-1977

Total

Year Hired

1973* 96

1974 64

1975 86 63 (73.3%) 23

1976 63 52 (82.5%) 11

1977 (As of

12 August 1977) “400 355 (88.75%) 45 (17.5%)

TOTAL

* Hiring figures for 1973 reflect hiring for the

entire year, not merely the six months after the

effectve date of the Act.

The Supreme Court's opinion in Hazelwood

indicates that there are two comparisons that may

be made using the data found in Table V. One is to

compare the gto 9 Bite of blacks hired by the

Virginia State Police with the proportion of blacks

in the relevant labor market. The other comparison

that may be made is to compare the proportion of

blacks hired with the proportion of blacks among

natea who sought employment with the Virginia State

olice.

Before the first comparison can be drawn,

however, it is necessary to determine what

constitutes the relevant labor market for the

position of trooper in the Virginia State Police.

Plaintiff contends that the best statistics

available for a relevant labor market are the

figures from the 1970 census for the civilian labor

force aged 21 to 29 in Virginia. Defendant argues,

however, that these undifferentiated work force

statistics include many persons who could not meet

the minimum requirements for the job of State

trooper. The defendant offers statistics which

purport to include those individuals who at the

time of the 1970 census were 21 through 29 years of

age, had completed twelve years of education or had

a General Education Development (GED) certificate,

were not disabled for six months or more, were not

in jail or in a long term hospital, and were in the

“labor force" as defined by the Bureau of Census.

The plaintiff's method of calculating the relevant

labor market results ina relevant § labor market

that is 16.3% black. The defendant's method gives

a relevant labor market that is 10.67% black.

The method chosen by the defendant appears to

be by far the more relevant. However, the

plaintiff raises two objections to defendant's

approach. First, the plaintiff argues that the

adjustments made by the defendant are made not in

an attempt to more closely define the proper labor

market but in an attempt to reduce the proportion

of blacks in the relevant labor market. Second,

the plaintiff argues that the defendant's figures

are not up-to-date with respect to the proportion

of blacks in the relevant age group and with

respect to the proportion of blacks who have

achieved the required educational level.

The Court believes that the plaintiff's first

objection is not well taken. Despite the view of

plaintiff's industrial physchologist that aggregate

data should be used even where more precise data is

available because there is no agreement among

experts as to what adjustments are appropriate, the

Supreme Court in Hazelwood made it clear that the

district court should define the relevant labor

market with as much precision as possible. 433

U.S. at 312. The entire purpose of a comparison

between hiring statistics and labor force

statistics is to show that the hiring of the

defendant is or is not random with respect to race.

Unless other non-random factors are first accounted

for, this purpose will necessarily be defeated, and

the entire analysis will be utterly lacking in

probative value. It would be simply a cover for

statistically justifying a pre-conceived

conclusion.

The plaintiff's second objection is far more

valid. Plaintiff presented the testimony of Dr.

Larry Suter, Chief of the Education Statistics

Branch of the Population Branch of the Bureau of

the Census, to show that certain population trends

since 1970 have resulted in an increase in the

proportion of blacks in the defendant's defined

labor force. Dr. Suter testified that the

°F

proportion of blacks in the 21-29 year old age

group has increased in Virginia since the latest

decennial census. He also testified that the

proportion of blacks meeting the minimum

educational standards of the Virginia State Police

has increased in Virginia since 1970. Dr. Suter

suggested increasing the proportion of blacks in

the eligible labor force as defined by the

defendants from 10.67% to either 12.47% or 15.47%

in 1977. Tr. Pe 11-13.

Dr. Suter testified that his analysis of the

increase in black educational attainment since 1970

would indicate that the eligible labor force for

the Virginia State Police as defined in Defendant's

Exhibit 119 should be increased by perhaps 1.8% or

even by as much as 4.8% because of the increase in

the proportion of blacks in the 20-29 age group and

the increase in the proportion of blacks who are

high school graduates. The 1.8% figure comes from

Dr. Suter's analysis of the current population

survey for the nation as a whole. Tr. p. Il-ll.

The 4.8% figure is derived from the Virginia

segment of the national current population survey,

but Dr. Suter was reluctant to put great confidence

in the Virginia figure because the current

population survey was based on an intended national

sample, not a sample reflective of the population

of Virginia. The Virginia sample is so small that

the standard error of the sample is relatively

high. In addition, Dr. Suter’s analysis is limited

to persons not in the armed forces, a fertile

recruiting ground for the State Police. Also, Dr.

Suter's competence inthe field of determining

relevant labor markets was notconceded by defen-

dant nor, indeed, was it claimed by Dr. Suter. Tr.

11-5. Finally, Dr. Suter's testimony was not

claimed to be and was not presented by the

plaintiff in an effort to prove the proportion of

blacks in the eligible labor force. It was instead

presented on rebuttal to show that the figures in

Defendant's Exhibit 119 should not be accepted by

the Court as an accurate portrayal of the eligible

labor force because the figures are now eight years

old and change has taken place. Dr. Suter's

testimony clearly supports this objection. The

plaintiff argues that defendant's calculations

based on the 1970 census are incorrect because they

are out-of-date. Unfortunately for the Court, the

same argument applies with equal force’ to

plaintiff's statistics.

The purpose of establishing the relevant labor

market of trooper applicants to the Virginia State

Police is to raise an inference, by comparison of

that figure with the number of blacks actually

hired, that the Virginia State Police discriminated

against blacks in hiring. Thus, the burden of

proving the relevant labor market rests squarely

upon the plaintiff inthis case. The foregoing

discussion makes it clear that the plaintiff has

not carried its burden. Neither party has offered

the testimony of an expert in demography or of a

witness qualified by his experience or training to

testify as to the racial breakdown of the relevant

‘labor market for a trooper in the Virginia State

Police for any period covered by this law suit.

Plaintiff protests that other courts in similar

cases have used the aggregate, undifferentiated

census figures it offered in this case. If this be

true it still is not justification in this Court's

view for imposing liability upon a defendant on the

basis of unreliable or missing evidence. This case

has been pending since December 1976. The United

States does. not lack the resources to develop the

proof necessary to show the relevant labor market.

The reliance upon unanalyzed data copied from the

1970 census, even coupled with Or. Suter’s

projections, cannot replace reliable proof in an

important case such as this.

In Hazelwood, the district court failed to

make a finding of fact on the relevant labor market

for teachers inthe St. Louis area. The court

ruled no discrimination upon a finding that the

proportion of black teachers was roughly equal to

the proportion of black pupils in the school

district. The Supreme Court disapproved of this

comparison, but also disapproved of the action of

the court of appeals in accepting the plaintiff's

argument that the relevant labor market should be

determined by including teachers from the entire

St. Louis metropolitan area. The’Supreme Court

remanded the case to the district court for a

precise finding on the actual relevant icbor market

of qualified teachers in the area from which

applicants were drawn. In the present case, unlike

Hazelwood, the plaintiff has failed to introduce

evidence sufficient for a finding of the relevant

labor market. Under these circumstances, no

comparisons can validly be drawn and the standard

deviation data offered by plaintiff in reliance

upon Castaneda v. Partida, 430 U.S. 482, 496-97,

n. 17 (1977), is meaningless.

Even if the relevant labor market were, as

plaintiff contends, 16.3% black, the Castaneda

analysis would not support a finding of racial

discrimination. First, the Court considers it

inappropriate to apply the Castaneda analysis to

the statistics for the total sworn work force of

- the Virginia State Police. Because only such

discrimination as took place after the effective

date of the Act may be considered in making a

finding of liability in this case, only the hiring

behavior of the defendant since 1 July 1973 is

relevant to the question of liability. Thus, the

proper statistics to which the Castaneda analysis

may be applied are the figures for troopers hired

from 1973 to 1977. More precisely the proper

statistics to use in this analysis would be the

Statistics showing the racial makeup of persons

offered employment with the Virginia State Police

in sworn positions after 1 July 1973. The Virginia

State Police has no power to conscript persons into

its work force. If 16.3% of those persons offered

employment in sworn positions by the Virginia State

Police were black, the plaintiff's argument would

fail even if no blacks accepted the offer from the

State Police (assuming nothing more were shown).

Thus, the fact that the plaintiff uses only hiring

statistics necessarily requires the Court to

assume, in order to find liability on the basis of

those statistics, that the applicants from both

races accepted employment when offered at the same

rate. Nothing in the record will support this

assumption, and this fact makes the Court uneasy

about using plaintiff's Castaneda analysis to

impose liability upon the defendant. In any case,

the plaintiff's Castaneda analysis is set out in

Table VI.

TABLE VI

Statistical Analysis of Black Employees

in Trooper Positions with the Virginia State Police

1973-77

(Source: Plaintiff's Exhibit 21B)

Difference

Blacks Blacks Between

Total Actually Expected Actual &

Employed Hired Hired Expected

1973 91 6 14.8 -8.8

1974 96 3 15.6 -12.6

1975 64 2 10.4 -8.4

1976 86 23 14.0 +9.0

1977 63 11 10.3 +0.7

(Continued on Page 38)

- |

(Continued from Page 37)

TABLE VI

Number of

Standard

Standard Deviations

Deviation Difference

1973 3.52 -2.5

1974 3.62 -3.5

1975 2.95 -2.8

1976 3.42 +2.6

1977 2.93 +0.2

Table VI shows that the difference between the

number of black troopers actually hired and the

number of black troopers that would have been hired

if the defendant had hired blacks in proportion to

their numbers in the civilian labor force was

significant in 1973, 1974 and 1975. In each case,

the difference between the number actually hired

and the number eyrpected to be hired was more than

two standard dev ations from the mean. However,

the numbers involved are very small. For example,

if in 1973 the Virginia State Police had hired two

more blacks than they actually hired, 8 instead of

6, the difference between the actual number hired

and the expected hired would have been only 6.8,

less than 2 _ standard deviations difference.

Furthermore, in 1976 the defendant hired many more

blacks than the plaintiff's formula would have

expected it to hire. In 1977, the defendant hired

almost exactly the number that plaintiff's Formure

expected it to hire.

The Court does not believe that is a

coincidence that defendant's statistics on hiring

of blacks should change so dramatically at the same

time that the defendant abolished its written test,

that is, the end of 1975. Thus, the Court believes

that the low numbers of blacks hired prior to 1976,

far from being the telltale sign of intentional

discrimination, is in fact, the unintentional (and

apparently undesired) result of defendant's use of

a written test as a selection device.

It should be noted that if the defendant's

10.67% figure be used then the hiring practices

during the overall post-Act period are

proportionate to random hiring in the designated

population and no inference of discrimination

arises. As will be shown hereafter, the Virginia

State Police force is not composed of persons

randomly hired. The hirjng of State troopers is a

highly selective process.

The other comparison which may be made is a

comparison between the hiring of blacks and the

applicant flow of blacks. If the proportion of

blacks offered employment by the defendant is

significantly smaller than the proportion of blacks

among applicants, then the inference that the

defendant is discriminating against blacks with

respect to hiring for trooper’ positions is

supported. If, on the other hand, the proportions

are roughly equal, the position of the plaintiff

that the defendant discriminates against blacks in

hiring is not supported.

In making this analysis, the Court is faced

immediately with two serious problems in the

evidence presented by the plaintiff. First, the

applicant statistics introduced by the plaintiff in

Plaintiff's Exhibit 34 are, for the years 1974,

1975, and 1976, not broken down between

applications received for civilian positions and

applications received for trooper positions. Tr.

2-21-AM. The second problem is that in any given

year the persons listed in Plaintiff's Exhibit 34B

are not necessarily the same persons who applied

during that particular year, but may include

persons who applied during an earlier year. Thus,

year-by-year comparisons are impossible.

Taken as a whole, however, the applicant-flow

data available shows that from 1973 through 1976

10.8% of all applicants for both civilian and sworn

positions were black. Plaintiff's Exhibit 34A.

Table VI shows that over the same period 34 of 337

or 10.1% of all troopers hired were black. Thus,

the analysis of such applicant-flow data as is

available to the Court fails to reveal any evidence

of a pattern or practice of discrimination.

The Court notes that in 1973, 1974 and 1975

the proportion of blacks hired as troopers was much

lower than the proportion of blacks hired in 1976

and 1977. Although, as has been shown year-by-year

comparisons of applicant flow data and hiring data

are difficult or impossible to draw and the proper

comparison in any case is between the number of

applicants and the number of _ persons offered

employment with the Virginia State Police, the

Court nevertheless recognizes that the relatively

low number of blacks hired may be a_ telltale sign

of discrimination inthe early years immediately

following the effective date of the Act.

The plaintiff has attempted to attribute the

increased hiring of blacks in 1976 and 1977 toa

combination of the pressure put on the defendant by

“the Justice» Department.in the negotiations that

preceeded the filing of this lawsuit and the desire

of Dr. Phillip Ash for a sample of at least 20

black troopers for his differential validity study.

Defendant did not display evidence of bending to

threats or pressure from the Justice Department.

It was because defendant refused to bend that the

suit was instituted. The Court believes that the

abolition in 1976 of the written test used by the

Virginia State Police was the factor which led to

the sharp increase in hiring of blacks. This test

had a substantial adverse impact on blacks and its

abolition coincided with a sharp increase in the

hiring of blacks. Further, by the middle of the

1970's the minority recruiting program commenced in

1973 had begun to have favorable effects.

From the effective date of the Act until

December 1975 the Virginia State Police

administered a written test to all applicants for

trooper positions consisting of a battery of three

tests: the Army Alpha Test, the Otis Test of

Intelligence, and the O'Rouke Test of Mechanical

Aptitude. Plaintiff's Exhibit 11. The defendant

does not dispute plaintiff's contention that this

test has a severe adverse impact upon blacks. (See

Table VII). Thus, under Griggs, the burden of

proof passed to the defendant to show that the test

was valid.

TABLE VII

kesults of Written Aptitude Tests for Trooper and

Dispatcher Positions by Race, 1973-1975

Plaintiff's Exhibit 15)

Whites

1973

1974

1975

TOTAL

Blacks

1973

1974

1975

TOTAL

(Source:

Trooper

Dispatcher

Trooper

Dispatcher

Trooper

Dispatcher

Trooper

Dispatcher

TOTAL:

Trooper

Dispatcher

Trooper

Dispatcher

Trooper

Dispatcher

Trooper

Dispatcher

TOTAL:

. Total Total

Taking Exam Passing

194 147

31 24

335 247

53 34

126 101

62 46

655 495

146 104

801 599

Total Total

Taking Exam Passing

37 12

2 1

87 28

4 1

21 4

2 1

145° 44

8 3

153 47

Pass

Rate

75.8%

77.4%

73.7%

64.2%

80.2%

74.2%

75.6%

71.2%

74.8%

Pass

Rate

32.4%

50.0%

32.2%

25.0%

19.0%

50.0%

30.3%

37.5%

30.7%

The pass rate for black applicants is equal to

41.0% of the pass rate for whites.

It is clear that the test has not been shown

to be a valid predictor of on-the-job performance.

The validity study conducted by Dr. Harold A.

Edgerton in 1973 did not prove any substantial

correlation between performance on the written test

and any measure of job performance. The defendant

argues that the test is nevertheless valid because

performance on the test is significantly related to

training school performance. Dr. Edgerton's study

showed that the test score had a_ significant

correlation with two measures of school

achievement, school grades and class standing. Of

course, one's class standing is a closely related

function of his school grades, so these two

measures may be considered, in reality, one.

Nevertheless, the testimony shows that each of

these correlations was both statistically and

practically significant. In other words, one who

did well on the entrance test could be expected to

do well in school.

In Washington v. Davis, 426 U.S. 229, 249-52

(1976) the Supreme Court considered the question of

whether validation of a selection test against

training school perfcrnance was sufficient under

the standard in Griggs and Albemarle Paper Co. v.

Moody, 422 U.S. aOe (1975). ‘The Court held

squarely that a written test may be validated

against training school performance alone even in

the absence of evidence that performance in the

training program is related to the actual

performance of the job. In the instant case, the

evidence shows that the successful completion of

the training program is a requirement for the job

of trooper, that the training school entails

approximately 1,000 hours of study over a period of

more than twenty weeks, that the cost of training a

new trooper is snare between $19,000 and

$20,000, and that the attrition rate in the

training school has increased sharply since the

written test was dropped in 1975. Tr. 9-142-146.

Under these circumstances, the Court believes that

it is sufficient for the defendant to show that the

written test was a valid predictor of training

school performance in order to sustain its burden

of proof under Griggs as _ interpreted by

Washington v. Davis.

Plaintiff presents the testimony of Dr.

James J. Kirkpatrick in an attempt to show that the

validity study relied upon by the defendant was not

conducted in accordance’ with federal and

professional standards for such studies. The

substance of Dr. Kirkpatrick's objection to the

study is that it did not test for differential

validity. It is obvious that differential validity

test was technically infeasible at the time Dr.

Edgerton conducted his study in 1973. There simply

were not enough blacks on the force at that time to

conduct such a_ study. Dr. Kirkpatrick, on

cross-examination, admitted this but nevertheless

insisted that the study was flawed. Such

insistence was of a piece with Dr. Kirkpatrick's

approach to the issues in this lawsuit.

The defendant presented the testimony of Dr.

Phillip Ash, an industrial psychologist who is

presently engaged in designing a new test battery

for the Virginia State Police. Dr. Ash conducted a

re-analysis of the data gathered by Dr. Edgerton in

1973. Dr. Ash testified on the basis of his

analysis of Dr. Edgerton's data that the written

test was a valid predictor of training school

performance. Tr. 9-202. Dr. Ash also testified

that Dr. Edgerton “could have written a much more

oer Mapa of positive results than he did.”

Tr. - 7

The Court found Dr. Ash's testimony wholly

satisfactory. His impartiality and professional

attitude was apparent from his demeanor and

responses. The Court accepts Dr. Ash's views on

the validity of the written test as correct, and

rejects the views to the contrary which Dr.

Kirkpatrick professed to hold.

Although such regulations as the EEOC

Guidelines on Employee Selection Procedures and the

Department of Justice Guidelines are entitled to

great weight, the validity of a test does not rise

or fall solely on the basis of whether the test and

the validity study concerning that test meet the

Guidelines. Validity is determined by the

capapcity of a given test to _ predict job

performance. This is a question of fact, and in

making this determination the trier of fact must

depend heavily upon the opinions of experts in the

field. In this case, the Court has the benefit of

the views of three experts, Drs. Edgerton, Ash, and

Kirkpatrick. Two of these three, after reviewing

the criteria, the Guidelines and the statistical

evidence, say that the written test used by the

Virginia State Police is a valid predictor of

training school performance. The third, Dr.

Kirkpatrick, says that the test is not valid. The

view of Drs. Edgerton and Ash is supported by the

statistical proof, and buttressed by Dr. Ash's

experience, competence and objectivity. The Court

finds on the basis of this evidence that the

written test used by the Virginia State Police was,

in fact, a valid predictor of training school

performance. Thus, under the rule in Washington v.

Davis, its use by the Virginia State Police was not

an unlawful or discriminatory employment practice.

Plaintiff contends that even if the test is

valid the cut-off score was placed too high by the

Virginia State Police. In order to be eligible for

employment, an applicant had to achieve a_ score of

75 on each of the three written tests given by the

Virginia State Police. The plaintiff argues that

this cut-off score could have been placed much

lower and still have been suitable for the

defendant's purpose to select those applicants who

were capable of passing the training school

program.

Defendant apparently agrees that there are

some applicants who could pass the training school

program even though they received a score on the

written test of less than 75. Defendant argues,

however, that a lower cut-off score would result in

a larger number of "false positives" - persons who

pass the written test but are incapable of passing

the training school. Tr. 10-80.

The Court believes that the investment

necessary to train a State trooper is great enough

to justify a cut-off score which would minimize the

number of “false positives” and thus save the

people of the Commonwealth a substantial sum of

money. The Court further believes that such a

decision is within the sound discretion .of the

Virginia State Police. The Department of Justice

may believe that a lower cut-off score would have

beer more appropriate and it may use lower scores

in areas it administers, but that is not sufficient

pad ag liability upon the defendant in this law

suit.

The Court recognizes that the testimony showed

that when the entrance test was in use very few

persons failed the training school because of low

grades, that trainees who received low passing

grades in the training school may perform well as

troopers, and that training school grades are of

little utility after a trooper has completed the

training school. These things are all factors

which the Superintendent of the Virginia State

Police should have taken into account in deciding

the proper cut-off score for the written test.

They do not, however, prove that the written test

was used by the State Police as a subterfuge for

the purpose of excluding blacks.

In summary the Court finds that the defendant

has carried its burden to show that the use of the

written test was justified by a valid governmental

purpose, in that the written test was a valid

predictor of training school performance. The

plaintiff, on the other hand, has not proven that

the use of the written test, although valid, was in

fact a subterfuge for racial discrimination.

The plaintiff challenges the defendant's use

of background investigations as part of its

selection process for new troopers. Plaintiff's

challenge has two parts: First, the plaintiff

argues that the background investigation shows an

adverse impact on black applicants. Second, the

plaintiff claims that in certain particulars the

background investigation was applied in a disparate

manner so as to discriminate against blacks.

Plaintiff's disparate impact analysis rests

upon two objections. First, the plaintiff contends

that the background investigation had the result of

weeding out a disproportionate number of black

applicants, and second, the result was achieved

through the purposeful use of credit~ ratings, .

cohabitation, venereal disease, and iltegitimacy as

factors in the background selection process.

7 o

The plaintiff's first attack on the background

investigation is based on highly questionable

statistics. The plaintiff has chosen to provide

the Court with full statistics for black

applicants, but has not chosen to provide the Court

with the statistics for white applicants, without

which no meaningful comparison - indeed, no

comparison at all - is possible. The Court was

able, with some difficulty, to extract from Mr.

Stanley Lechner, the witness for the plaintiff's

exhibits, a “conservative” estimate of the white

selection rate based on the background

investigation. The result of the Court's inquiry,

ng though they are, are recorded in Table

TABLE VIII

Results of Background Investigation on Trooper

Applicants who passed written test

May 1973 - December 1975

White Black

Total Passing Exam: 495 44

Total Investigated: 406* 33

Number Offered Employment: == 186* 10

Number Hired: co 8

% of those investigated either

hired or offered employment: 45.8 30.3

Black rate as a % of White rate - 66%

* Estimated by Mr. Stanley Lechner. Transcript,

p pe 2-83-PM-2-86-PM.

Table VIII is questionable for two reasons.

First, the estimates made by Mr. Lechner were made

on the basis of his examination of a sample of 247

of these applications. His testimony shows that

his sample consisted of the set of applications

from the year 1974. Tr. 2-91-PM. Although Mr.

Lechner was satisfied with this sampling the

device, the Court is not. In view of the other

statistical changes there is no reason to believe

that 1974 was a typical year, a fact which in the

Court's eyes is far more significant than Mr.

Lechner’s observation that there is no reason to

believe that there is any difference between what

happened in different years.

Second, the sample of blacks involved in Table

VIII is relatively small. If only two more blacks

had been offered employment in this period, the

selection rate for blacks would have been 80% of

the selection rate for whites, and so this

selection rate would not have been evidence of

adverse impact under the Federal Agency Guidelines.

Further, the evidence shows that during the

period represented by Table VIII the Virginia State

Police was engaged in a substantial recruitment

effort which had as its purpose increasing the

number of black applicants for trooper positions.

The Court does not believe that applicants whose

applications are the result of defendant's

recruiting efforts can properly be compared

directly with applicants who submitted their

application on their own volition. In addition,

the period covered by Table VIII is only from May

1973 through 1975. The evidence shows that since

1975 the abolition of the written test has resulted

in a sharp increase in the number. of black

applicants who have_ received a_ background

investigation. Plaintiff's Exhibit 60. However,

the plaintiff has not introduced evidence which

i |

would permit the Court to make a comparison between

the selection rate of blacks who were investigated

since 1975 with the selection rate for white

applicants investigated since 1975. The Court

cannot find on the basis of this conjectural and

incomplete evidence that the use of the background

investigation as a selection device by the Virginia

State Police has had an adverse impact upon black

applicants.

The plaintiffs contend, however, that the use

of certain information gathered in the background

investigation has an adverse impact upon blacks.

Plaintiff does not contend that the factors in

question are inappropriate for inquiry. It argues

only that the manner in which the information was

used discriminated against blacks. Plaintiff

examined the file of three by five cards prepared

by the State Police personnel officer from 1974 to

1977 showing the notes of the personnel officer on

points he considered of interest to be discussed

with the superintendent prior to the

superintendent's decision on an application. The

plaintiff's argument is that since certain factors

showed up more frequetniy on the background

investigation of black trooper applicants than they

did on the investigation of white trooper

applicants, the use of those factors in the

employment process by the defendant constituted an

unlawful employment practice unless the defendant

could come forward with proof that the factors were

somehow predictive of job performance.

The Court sees no merit in the plaintiff's

argument. First, the Court notes that the

plaintiff apparently compared the cards of rejected

black applicants with those of rejected white

applicants. Thus, only those who failed to pass

the background investigation are included in the

plaintiff's sample. There is no showing that the

factors studied by the plaintiff are in fact the

cause of a differential selection rate between

blacks and whites. In fact, as noted above, no

such differential selection rate has been proven in

this case. The Court believes that it is perfectly

reasonable for the defendant to take note as part

of a comprehensive background investigation of

prospective State troopers that any given applicant

had a_ bad credit record, was living with another

person out of wedlock, had veneral disease or any

other disease, communicable or non-communicable, or

had an illegitimate child or illegitimate children.

The fact that consideration of these factors may

weigh more heavily against black applicants than

against white applicants (a fact not proven by the

evidence in this case) does not by itself

invalidate these quest jons as unlawful = and

discriminatory practices.

The evidence shows that no specific weight is

given to any one factor in a_ person's background

when he is considered for a position in the

Virginia State Police. The plaintiff argues that

this, in itself, is evidence of discrimination -

- that "standardless discretion" in the hands of

the superintendent of the Virginia State Police is

itself in violation of Title VII. If this came to

be the law, it would mean that job selection even

for sensitive and responsible positions such as

State trooper must be performed exclusively by a

computer or a dullard. Only "“yes-no" data could be

considered by those making employment decisions,

and this data could easily be punched onto a card

and inserted into a computer. The critical factor

of human judgment, the informed jugment of one

whose training and responsibility uniquely fits him

for this decision-making role, would be

irretrievably lost to the great detriment of all

concerned.

Le |

The plaintiff's most serious challenge to the

defendant's background investigation procedure

involves the claim that the background

investigation as conducted in such a way as to

discriminate against black applicants who were

investigated. This is a disparate treatment claim,

and, unlike the disparate impact claims discussed

above, involves a showing of discriminatory intent.

The method plaintiff has chosen to use in showing

disparate treatment of black applicants subjected

to background investigation is to compare the

background investigation of white applicants who

were offered positions in the Virginia State Police

with those of black applicants who were rejected.

Plaintiff begins the comparison by showing

that three white applicants who were hired had

failed to list traffic convictions or certain

previous jobs in their applications. The

superintendent, Colonel Burgess, said that any such

falsifications were adverse factors in a decision

to hire an applicant. The white applicant in

Plaintiff's Exhibit 1-8 did not list a conviction

for speeding on his application. Page 6 of his

background investigation shows that this conviction

was a six year old speeding ticket from the Park

Police at the Petersburg Battlefield Park which did

not appear on the Division of Motor Vehicles report

which the applicant had sought and obtained. This

background investigation shows outstanding

recommendations from all employers for honesty and

_ an excellent credit record entirely without blemish

and frequently reflecting payments in advance of

the due date.

The white applicant in Plaintiff's Exhibit 1-4

did not list two schools and three jobs on his

background investigation. The two schools were a

Base Extension of Troy State College, Montgomery,

Alabama, where the applicant took some courses

while he was in the Air Force, and Virginia Western

Community College, which plaintiff attended in the

Summer of 1971. The jobs were a summer job with

the Virginia Department of Highways which the

applicant held in high school (1966 or before) a

job which the applicant took immediately after high

school and held for two weeks in 1967, and a job

that the applicant held for one month after leaving

the Air Force. This applicant also had a credit

record entirely without blemish, and was

recommended by a_ sheriff and two Virginia State

troopers. Further, this applicant had worked as an

air policeman in the Air Force.

The white applicant in Plaintiff's Exhibit 1-1

lied to the investigator concerning working for his

father-in-law to cover up for living with the

daughter of his employer prior to their marriage.

The investigation shows a good credit rating for

this applicant and uniformly good recommendations.

The background investigation reports of the

white applicants, as compared with the rejected

black applicants, show considerable concern on the

part of the Virginia State Police for the veracity

of white applicants for trooper positions. It is

clear that questions of veracity were fully

explored and were either explained to the

satisfaction of the investigator or were overcome

by the positive factors in the applicant's

background. The evidence does not justify an

inference that veracity is more severely judged for

black applicants.

The black applicant in Plaintiff's Exhibit 2-4

is one of those pointed out by plaintiff as having

been rejected in part for bad credit. The

background investigation reveals four’ credit

transactions all with a history of late payment,

and one judgment rendered against the applicant.

The background investigation also shows two

convicttons for defective equipment, one conviction

for improper driving, and three convictions for

speeding. This applicant also purchased luxury

items before paying prior commitments, a factor

which Colonel Burgess found significant. Tr. 7-68.

The applicant in Plaintiff's Exhibit 2-5 is

another black applicant who had bad credit. This

applicant also had a bad academic record, having

failed English in the eleventh grade. His civilian

employer did not know how this applicant could

handle the paperwork for trooper. The applicant

had three speeding convictions on his record. The

applicant had earned $13,000 in the previous year

and would have had to take a pay cut in order to be

a trooper. Also, this applicant indicated in his

interview that he disliked about his current job

things which are also factors ina job as State

trooper - long hours, no overtime pay, no union.

The black applicant in Plaintiff's Exhibit

2-11 was also rejected in part because of bad

credit. This applicant did not list on his

application one part-time job, which he had left

without notice. His supervisor on this part-time

job gave him a bad recommendation. The applicant

had been convicted of reckless driving and of

speeding. He claimed that one of his bad accounts

was caused by a family member opening an account in

his name while the applicant was in Viet Nam. But

according to the investigator, the date of the

applicant's service in Viet Nam and the opening of

the account did not bear out this claim. The

applicant also claimed that the speeding ticket was

caused by his speeding home on the day his father

died, but the relevant dates determined by the

investigator failed to support this claim as well.

The applicant had an overdue loan at his credit

union which was overlooked by plaintiff in its

brief at footnote 12, page 28. Further, this

applicant's wife thought that a trooper's job was

too dangerous.

These three cases are to be compared on

plaintiff's suggestion with the white applicant in

Plaintiff's Exhibit 1-9. This applicant had a very

poor academic record and failed to list several

jobs on his application. The applicant had two

speeding convictions. He explained his poor credit

rating by relating that money he sent home while he

was in the army was not used to pay bills. The

investigator apparently believed this explanation

but the applicant was denied employment. He then

went to see Colonel Burgess personally and as a

direct result of this personal interview he was

hired. Colonel Burgess admitted that he gave this

applicant the benefit of the doubt and that it

might have been a mistake to have done so since the

applicant did not stay with the Virginia State

Police very long. Tr. 8-46-8.

The Court cannot find that the white applicant

in Plaintiff's Exhibit 1-9 had as bad a record,

apart from his bad credit rating, as_ the black

applicants with whom he is asked to be compared.

The Court notes that with respect to the background

investigation, including adverse recommendations,

the applicants were all treated exactly the same up

to the point at which the applicant in Plaintiff's

Exhibit 1-9 on his own inititative obtained a

personal interview with Colonel Burgess. There is

no evidence that any applicant was ever denied an

interview with Colonel Burgess on account of race.

Indeed, a black applicant who testified at trial,

Charles White, testified that he had been accorded

an interview with Colonel Burgess. Tr. 1-152.

Plaintiff asks that the black applicant in

Plaintiff's Exhibit 2-3 be contrasted with the

white applicant in Plaintiff's Exhibit 1-10.

Colonel Burgess testified that the fact that the

black applicant in Plaintiff's Exhibit 2-3 had a

bad temper was a factor in his rejection of that

applicant. The background investigation revealed

that this applicant left a job in 1968 without

notice. It revealed that the applicant was

divorced and his former wife said that he didn't

adequately support their child. The applicant's

reference at the Norfolk Naval Shipyard gave the

applicant a bad recommendation. On the other hand,

the applicant's credit rating was good. He had one

speeding conviction. The investigator reported

that the applicant appeared tense at his interview

and did not appear to really want the State Police

job. The investigation revealed that the applicant

said that he paid food and clothing for his child

and he took the child as a dependent on his federal

income tax. The plaintiff says that there is no

mention or indication of bad temper except. the

investigator's undocumented conclusion. The

evidence of the temper was found by the

investigator in the involvement of the applicant in

a fight during acrap game and in his becoming

upset on his job at the Newport News ShipBuilding

and DryDock Company.

The white applicant in Plaintiff's Exhibit

1-10 also was reported to have a temper. This

applicant had quit a job at Uniroyal without proper

notice but was still recommended by them because

although he quit without a full two week notice, he

did give sufficient notice for their purposes.

Three persons interviewed had the following to say

about the applicant: “Shows a little temper but

controls it;" “Has a little temper but only

exhibit: it at ballgames, never got into any

trouble over it." This applicant was recommended

by a Virginia State Trooper, and had a credit

record entirely without blemish. The applicant had

some traffic violations on his record, but said

that he had changed his driving habits considerably

an this was apparenty accepted by the investigator.

The file reveals a letter of recommendation from a

trooper brother-in-law of the applicant. The Court

does not believe that these two applicants are

equally worthy of hire. Accordingly, the failure

of the defendant in hiring the white applicant

cannot be said to be evidence of racial

discrimination.

The plaintiff also argues that some white

applicants are hired with four or five unfavorable

factors, pointing to the applicants in Plaintiff's

Exhibit 1-4 and 1-5, while blacks with so many

unfavorable factors are denied employment. The

applicant in Plaintiff's Exhibit 1-4 is discussed

above. The applicant in Plaintiff's Exhibit 1-5 is

described by plaintiff in brief as having had a bad

high school record, his wife being very opposed to

his taking the job, and some interviews included

questions about his maturity and attitude.

However, this applicant's credit record was very

good, and his only speeding conviction was six

years old at the time of the investigation. It is

true that the applicant's wife expressed some

concern about the prospect of separation from the

applicant during training, but she does not say

that she is "very opposed to his taking the job"

although the investigator does say that he thinks

that if the applicant's wife prevails, he will not

accept the position. This applicant was hired but

quit during training. The plaintiff asserts that

[nJothing in the black applicant's files, rejected

and accepted, from 1973 through 1977 indicates that

a black applicant that made this kind of showing

would ever have been hired as a trooper." The fact

that this applicant quit during his training tends

to prove that his hiring was a mistake. The

defendant cannot be expected to conduct error-free

hiring proceedings. The fact that this isolated

mistake was made on a white person's application is

not in itself evidence of racial discrimination.

Further, the bare assertion by plaintiff,

unsupported by an analysis of all b}ack applicants’

files cannot be accepted as proven.

Plaintiff suggests that the rejected black..

applicant in Plaintif's Exhibit 4-7 should be

contrasted with the hired white applicants in

Plaintiff's Exhibit l-1, 1-11, and 1-12. Plaintiff

suggests that the conduct which resulted in the

black applicant being rejected, living with a

person out of wedlock, was overlooked in the case

of the white applicants. The applicant. in

Plaintiff's Exhibit 4-7 had a bad credit record as —

well as her co-habitation. Her credit record

includes three judgments and five overdue accounts.

It is clear from the recommedation of the

investigator that the bad credit record of the

applicant was as important a factor as _ the

co-habitation. The investigation revealed that

although the applicant wished to marry the man with

whom she was living, no marriage was planned .

because he did not wish to settle down. The couple

had lived together for a considerable period of

time, and a child was being reared in their home. |

The applicant in Plaintiff's Exhibit 1-11,

during a three-month interval, lived with a woman

out of wedlock. The investigation showed that the

applicant felt very bad about the incident. The

applicant first went to live with his girlfriend

after his mother had forged some checks on his.

checking account, and he came back to live with his

mother after three months. The applicant was.

ashamed of the situation and expressed remorse to

the investigator. Unlike the applicant in

Plaintiff's Exhibit 4-7 this applicant had an

excellent credit record.

The applicant in Plaintiff's Exhibit 1-12 also

had accredit record without blemish. He was a

former employee of the F.B.I. end: had very good

recommendations. The investigation revealed that

this applicant moved in with his wife-to-be two

months before their marriage when he came back from

a trip to find that his roommates had moved out of

the apartment they were sharing and he was stuck

with the rent. Rather than pay the high rent

alone, he moved in with his fiancee and moved their

wedding date from August to May 1976. This was in

March of 1976. The investigator recommended that

this applicant be employed, but the Captain who

reviewed the investigation recommended against the

employment of this applicant solely on grounds of

the two-month cohabitation prior to _ marriage.

Colonel Burgess overrode the Captain's objections.

The applicant in Plaintiff's Exhibit 1-13

dated other women while he was separated but still

married. The woman involved said that the

relationship between her and the applicant was

merely friendship and not an “affair,” and that

they had been to the movies together and to her

home several times. This applicant had a good

credit rating and only one speeding conviction

several years earlier. He was not recommended for

employment by one investigator because of his

marital difficulties, but he was hired nonetheless.

The Court sees with respect to cohabitation

fundamental difference between the situation of the

black applicant who was not hired and that of the

white applicants who were hired. The behavior of

the white applicants who were hired is more

properly compared with the behavior of the black

applicant in Defendant's Exhibit 122(E). This

applicant lived with his wife before marriage, but

married her during the background investigation.

The investigation revealed that he was $94.50

delinquent on his college loan. This applicant was

offered employment by the Virginia State Police

despite the fact that he was not recommended by the

investigator because of his cohabitation and

delinquency on his college’ loan. When the

applicant declined to accept the employment

offered, he was called by Captain Olive who

attempted to get him to reconsider. This history

of an effort to employ a black applicant who had

cohabited before marriage with his wife-to-be

demonstrates that brief anti-nuptial cohabitation

by black applicants is considered by the Virginia

State Police on the same basis as cohabitation by

white applicants is considered.

This may be an appropriate point to remark

that the Court is disturbed by the manner in which

the Plaintiff has presented the evidence on

disparate treatment of black applicants on the

cohabitation issue. This presentation is the

product of either a failure to glean the record or

a failure to fairly present the evidence known to

the plaintiff. In either case, the plaintiff's

handling of the cohabitation issue has cast a pall

over its entire case on the disparate treatment of

black applicants in the background investigation.

With respect to poor employer references the

plaintiff suggests that the black applicant in

Plaintiff's Exhibit 4-11 should be compared with

the successful white applicants for clerk-typist

positions at Plaintiff's Exhibit 3-4 and 3-7. The

black applicant in Plaintiff's Exhibit 4-11 was

fired from a part time job in 1974 for not doing

what her boss told her to do. The recommendations

received from her present employment with Culpeper

County were mixed - some recommended her while .

others said that her work was sloppy. Of the five

"satisfactory" accounts mentioned by the plaintiff,

one was three months behind in payment and one was

one and one-half months behind and showed two late

notices. This is in addition to the account rated

slow and the New York account turned over toa

collection agency. When the investigator went to

the applicant's place of work, the Culpeper

Juvenile Probation Office, the applicant was

reading a book called The Prostitute and when she

put the book down she put it in plain sight of

visitors. The investigator said that the nts

is hard to understand when answering the telephone.

The applicant said that she quit a part-time job on

the ground that though she had been told by the

manager when she was hired that she wouldn't have

to stock shelves the assistant manager insisted

that she stock shelves. This incident was the most

important factor (named first by the investigator)

in the investigator's decision not to recommend the

appl icant, This applicant was 21 years when she

applied.

The white applicant in Plaintiff's Exhibit 3-4

was 35 years old at the time she applied. Her

references at the Gravely Furniture Co. were mixed.

Her immediate supervisor said the problem was

incompatability and that her work was good. The

applicant had an excellent credit rating. The

investigator's visit to her place of employment

found the applicant busy and neat.

The white applicant in Plaintiff's Exhibit 3-7

had mixed recommendations from the Salem Police

Department. Her immediate supervisor said she was

a good worker, while others said that she wasn't.

The Roanoke County Circuit Court Clerk gave a bad

recommendation but the investigator thought that

the Clerk had confused the applicant with another

girl by the same name who worked there at the same

time. The applicant had a fair credit rating. The

investigator said “nothing derrogatory was

developed in her background investigation.”

The Court does not find that the applicants in

Plaintiff's Exhibit 3-4, 3-7, and 4-11 are of equal

or of nearly equal merit. Accordingly, the failure

of the defendant to hire the black applicant is not

evidence of racial disci . ination.

Plaintiff questions the Superintendent's use

of background investigations. The plaintiff argues

that the reasons given by the Superintendent for

rejecting the black applicant in Plaintiff's

Exhibit 2-7 were in fact pretexts for racial

discrimination. The Superintendent testified that

he rejected the black applicant mainly because he

admitted participating in a breaking and entering

episode, had contracted venereal disease twice

while being investigated, and had had his driver's

license revoked for two charges of speeding. (Tr.

8-59). Exhibit 2-7 indictes that there was

evidence in two interviews that this applicant had

a generally good employment record with only one

bad recommendation, that of the Yellow Cab Company.

The applicant's Exxon account was unpaid and had

been turned over to a collection agency. Two cases

of gonnorrhea were treated shortly before his

backgrour 1 investigation began. The breaking and

entering charge was a juvenile charge against the

defendant which was nolle prossed. The defendant

asserts that the investigator's report on the

applicant's criminal history which was attached to

the background investigation showed that the

applicant admitted direct involvement in the crime.

The Court accepts that as an accurate

representation though the report furnished as a

part of Plaintiff's Exhibit 2-7 is almost

illegible. The defendant also claims that the

Department of Motor Vehicles record which is listed

as an attachment to the report in Plaintiff's

Exhibit 2-7 reflects that the applicant's driver's

license had been suspended. This record was

omitted from Plaintiff's Exhibit 2-7. The Court

cannot conclude on the basis of this evidence that

the Superintendent's reasons for refusing to hire

this applicant are mere pretexts for racial

discrimination.

The plaintiff impugns the professed skepticism

of the Superintendent about the honesty of the

black applicant in Plaintiff's Exhibit 2-12. The

background investigation reveals that this

applicant had a very poor academic record, but was

very highly recommended by his current employer and

had excellent credit. He was recommended for

favorble consideration by the investigator. The

investigation revealed that he had been convicted

of passing a bad check in December, 1968, nine

years before the background investigation. The

applicant was sentenced to nay the amount of the

check and explanation of the circumstances behind

his bad check charge.

The investigation a!so revealed that the

applicant got his Virginia driver's license in 1965

by lying about his age. When the investigator

first confronted the applicant with this

discrepency, he said that at the time he thought

that his age was correct. The next day the

applicant told the investigator that he had lied to

the investigator on the previous day, and that he

had in fact advanced his age when he applied for

his driver's license in order to get a_ license to

be eligible for a job. After he was rejected, this

applicant spoke to Captain Olive about tie

circumstances surrounding his rejection. Captain

Olive wrote that but for this misrepresentation to

the investigator, he would have recommended

reconsideration to the superintendent. It is true

°s

that had the applicant not voluntarily revealed his

misrepresentation to the investigator, the lie

would have gone undiscovered. Nevertheless, the

incident showed that the applicant would succumb to

the temptation to tell a lie when it was to his

advantage.

This is contrasted by plaintiff with the white

applicant in Plaintiff's Exhibit 32-6, who is

presently employed by the Virginia State Police.

This applicant also advanced his age one year to

get a driver's license. However, the applicant

volunteered this information to the investigator,

and never misrepresented the circumstances. The

investigation revealed that he moved his age up one

year so that he could get a license to drive a

truck while his father was sick. The two

applications on this issue are not of equal weight.

It is clear from the contemporaneous memorandum of

Captain Olive that the misrepresentation that

concerned the Virginia State Police in considering

the application in Plaintiff's Exhibit 2-12 was not

the original misrepresentation to get a driver's

license, but the ~misrepresentation to the

investigator at the time of the background

investigation. No such misrepresentation appears

in Plaintiff's Exhibit 32-6.

Plaintiff is critical of the investigator's

conclusions with respect to the academic record of

the black applicant in Plaintiff's Exhibit 2-2.

This applicant graduated from high school 86th in a

class of 143. The investigation revealed that one

possible explanation for this low class standing

was the applicant's part-time work during his high

school career. However the Court believes that

this applicant's poor academic record had very

little to do with his not being offered a job. The

applicant's wife told the investigator that she was

amazed that the Virginia State Police could find

people to work for such low pay as they were

paying. She said that she opposed her husband's

taking the job of trooper because it would mean

that she could not go to college. The applicant

said that his take home pay at the ting of the

investigation was between $16,000-$18,000+’ and he

was clearly concerned that he couldn't get by ona

trooper's salary. In the course of the background

investigation, the applicant withdrew his

application, then asked later to be considered. It

is not surprising that this applicant was not

offered a position with the Virginia State Police.

The plaintiff claims that the background

investigation of the black applicant in Plaintiff's

Exhibit 32-7 shows bias on the part of the

investigator because the investigator questioned

the applicant's veracity in concluding that the

applicant was involved with a woman’ who was

separated from her husband. The plaintiff points

to the fact that both the woman and the applicant

denied that the relationship was a romantic one.

Both claimed that they were just good friends. The

investigator, however, after face-to-face

interviews with both parties formed the conclusion

that each was attempting to conceal the true nature

of the relationship. Surely the investigator would

have been derelict in his duty had he not given the

Superintendent the benefit of his conclusion in

this matter. The applicant also wrote on his

application that he had left his first job to

“return to school." His employer, on the other

hand, said that he was fired from his job when he

failed to report to work one day, and the applicant

admitted this to be true, but said that he could

get the job back anytime he wanted. Under these

circumstances, the Court cannot conclude that the

investigator's opinion as to the veracity of the

applicant is the result of racial bias.

The plaintiff contends that the background

investigation in Plaintiff's Exhibit 2-6 is

incomplete, inaccurate, and misleading. This black

applicant was not recommended for police employment

by his supervisor at his previous job with the

Richmond Public ‘Schools. The plaintiff says the

background investigation reflects that he converted

to his own use a $7.00 check. Actually, the

background investigation reveals that he accepted a

check from a client of his employer and then failed

to turn it in to his employer. He said he lost the

check when asked later. His supervisor at the

Richmond Public Schools also claimed that the

applicant was a sloppy dresser and once used a-~

school camera for personal gain. The background

investigation reflects that this applicant had two

bad check accounts in 1972. The investigator

reported that the applicant came shabbily dressed

to his interview and that the interview indicated

that the applicant could not accept’ close

Supervision without rebellion. The plaintiff

complains that a letter from the applicant's

present employer was not included in_ the

investigation. However, the letter was included in

the file and would have been available for review

by the Superintendent when making his decision

whether or not to hire the applicant. The letter

arrived at the Virginia State Police before the

investigative report was typed up but after the

investigation was completed, according to the dates

on page one of the _ investigation. The

investigator's report of the applicant's interview

does not reveal any explanation from the applicant

as to the supervisor's statement that the applicant

had lost a $7.00 check and had used a camera

belonging to his employer for personal gain. This

is somewhat unusual, at least judging from the

investigations that the Court has reviewed in this

case, but it is not sufficient to base a conclusion

of racial discrimination.

The plaintiff complains of the investigator

administering a_ literacy test to the black

applicant in Plaintiff's Exhibit 2-5. The

investigator had the applicant write a short paper

on why he wanted to be a trooper and asked the

applicant to read two sections of the Code of

Virginia. The plaintiff contends that “such

measures were not taken with similarly situated

whites and suggests further harassment of black

applicants." However, the evidence shows that the

white applicant in Plaintiff's Exhibit 1-4 also was

given a writing test. On page ten, paragraph three

of the background investigation, the investigator

talks about “reviewing "s essay" and

asking the applicant about his spelling errors.

Despite plaintiff's claim in its brief that such

measures were not taken with “similarly situated

white," plaintiff was aware of this writing test

given to this white applicant. On page twenty-nine

of plaintiff's post trial brief, the plaintiff

points to this applicant as a white applicant with

four or five unfavorable factors including the

factor “cannot spell (p. 18, BI)."

Plaintiff refers to the background

investigation of the black applicant in Plaintiff's

Exhibit 2-5 as being distorted because the

investigator listed fourteen notices sent to the

applicant in an account that should have been paid

on 27 March 1972 but was actually paid on 18 April

1972. The background investigation clearly

reflects the fact that the applicant got behind in

his payments by one month and never caught up.

This was the occasion for the fourteen notices.

The investigation also reveals four credit accounts

that reflected late payment. There was, § in

addition, sufficient cause not to hire this

applicant independent of both his academic ability

and his credit problems as the Court has noted

above.

In addition to its review of the investigation

reports plaintiff presented the testimony of three

black applicants for trooper positions who failed

to pass the background investigation. One of

these, Harvey Louis Graves, testified that an

investigator for the Virginia State Police

disclosed to Graves' wife some information that was

developed in the course of the background

investigation which had a deleterious effect upon

his relationship with his wife. He also testified

that he withdrew his application for a trooper

position after the investigator warned him that if

the investigation disclosed that he had violated

the law he might be prosecuted for that violation.

Graves testified that he was not afraid at the time

of the investigation that any information would

come to light indicating that he had _ broken the

law. Graves said that

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