# Petition — Virginia v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0365%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 1021 ## Text 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 ..... ii 10 10 16 22 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 -_- a 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 iv Page 19, ll, 10, 22, 11 13 21 13 20 12 13 17 14 23 14 14 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 v 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, Ve 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. 1 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 I 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 I. 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 10 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 ll 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 12 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 13 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 14 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 15 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 16 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. i7 * 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, 18 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 19 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. 20 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. 21 - | 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 22 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 23 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 24 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 25 i eA al 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. 3 7% 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 4 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 ***, 6 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 7 7% “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 8 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 9 *% 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). 10 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 11 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 12 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. 13 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. 14 > 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 *y 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 I 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 3 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. II 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 5 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 7 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 9 7% 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 10 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 11 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 12 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 13 vy 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 14 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 15 es 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 16 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 17 % 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 18 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. 19 - IV 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) 20 . 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 21 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, 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. 23 es 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) 24 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 25 | (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 26 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 27 *% 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 28 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. 29 V 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. A. 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 30 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. 31 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 32 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 33 °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 34 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. 35 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. b. 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 36 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) 37 - | (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 38 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. Ce 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 39 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. 40 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. 41 | 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 45 7% 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 46 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. C. 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 plaintif [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0365%3A1. Public record. Not legal advice.