Opposition — County of Fairfax v. United States

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No. 80-541 |

Iu the Supreme Court of the United States

OCTOBER TERM, 1980

COUNTY OF FAIRFAX, VIRGINIA, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCREE, JR.

Solicitor General

Drew S. Days, III

Assistant Attorney General

JESSICA DUNSAY SILVER

DAVID L. ROSE

ELLEN K. WAYNE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

———

Iu the Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-541

CoUNTY OF FAIRFAX, VIRGINIA, ET AL., PETITIONERS

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

QUESTION PRESENTED

Whether the court of appeals erred in reversing,

as based on insufficient evidence, the district court’s

rulings concerning the appropriate use of respond-

ent’s application flow analysis and petitioners’ con-

structive labor force analysis as measurements of

petitioner Fairfax County’s labor market from 1974

to 1978.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Brotherhood of Locomotive Firemen & Engine-

men V. Bangor & Aroostook R.R., 389 U.S. 327.. 10

Hazelwood School District v. United States, 483

i ieeecsiniiadais 8

Hester v. Southern Ry., 497 F.2d 1874 ................ 8

Statutes :

Civil Rights Act of 1964, Title VII, 42 U.S.C.

EE RES AE AEN DEEN DOR c= Ns 10

Crime Control Act of 1978, 42 U.S.C. 8766(c)

(to be recodified at 42 U.S.C. 8789d(c)) ............ 10

State and Local Fiscal Assistance Act of 1972,

I RTE, AGRO Racepoint Aer 10

(III)

_ PREVIOUS PAGE WAS BLANK |

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. C1-

C24)' is unofficially reported at 23 Empl. Prac. Dec.

{| 31,117. The opinion of the district court (Pet. App.

B1-B20 and Appendices) is unofficially reported at

20 Empl. Prac. Dec. {| 30,024.

JURISDICTION

The judgment of the court of appeals was entered

on July 23, 1980. A petition for rehearing was de-

nied by the court of appeals on August 28, 1980.

The petition for a writ of certiorari was filed on Sep-

tember 30, 1980. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

1. In December 1978, the Attorney General filed

suit on behalf of the United States alleging that peti-

tioner Fairfax County, Virginia (“the County’), had

engaged in a pattern or practice of discrimination

against blacks and women in its employment prac-

tices. The complaint alleged both a failure to hire,

assign, and promote blacks and women on the same

basis as white males (disparate treatment) and the

use of unvalidated selection procedures with a dis-

parate impact on blacks and women. In addition, the

complaint alleged that the County refused to supply

the Department of Justice with information neces-

sary to investigate the County’s compliance with the

1The appendix to the petition contains the order of the

district court, the opinion of the district court and the opinion

of the court of appeals. It has not been paginated consecu-

tively. Reference to the appendix in this brief will treat the

order as Appendix A, the district court’s opinion as Appendix

B and the court of appeals’ opinion as Appendix C.

(1)

nondiscrimination provisions of several funding

statutes.

Undisputed evidence at trial showed that until

January 1, 1978, after the initiation of the Justice

Department’s investigation of the County’s employ-

ment practices on October 27, 1977, the County

destroyed records showing the racial and sexual com-

position of the pool of applicants for County jobs

(Pet. App. B38). This destruction of records con-

cededly violated the County’s record keeping obliga-

tions under federal law.

On the merits, the government’s evidence showed

that blacks constituted 5.5% or less of the employees

in seven out of eight job categories,? but 28% of

service/maintenance workers. Women constituted

24% or less of the employees in six of the eight cate-

gories, but 92% in clerical positions (Pet. App. C7).

A comparison of the percentage of blacks and women

who applied for positions with Fairfax County in

1978 in each of the eight job categories (applicant

flow) with the percentages of blacks and women ac-

tually hired by the County from 1974-1978 * showed

disparities in the hiring of blacks in all eight job

categories, six of which were statistically significant

(see Pet. App. B11 n.6; DX 48; A. 962): *

2The job categories used for purposes of much of the

analysis in this case are those adopted by the Equal Employ-

ment Opportunity Commission for state and local government

reporting purposes. The categories are as follows: (1) offi-

cials and administrators, (2) professionals, (3) technicians,

(4) protective service, (5) paraprofessional, (6) office/cleri-

cal, (7) skilled craft, (8) service/maintenance.

8 Applicant flow figures for the years 1974-1977 were not

available because of the County’s destruction of records.

“DX” and “PX” refer to defendants’ and plaintiff’s ex-

hibits respectively. “A.” refers to the appendix in the court

of appeals.

1974-1978 Black Hires

Black Expected Disparity

EEO Total Applicant Black Black in Standard

Category Hires % Hires Hires® Deviations

1 Officials 14 12.58% 1(7%) 2 heed

2 Prof. 286 11.26% 20(7%) 82 2.28

8 Tech. 282 12.99% 18(6%) 30 8.35

4 Prot. Serv. 784 22.96% 81(10%) 180 8.40

5 Para-prof. 74 9.78% 4(5%) 7 find

6 Clerical 768 12.60% 44(6%) 96 5.69

7 Sk. Craft 248 18.52% 16(7%) 33 8.16

8 Serv./Maint. 793 19.57% 127(16%) 155 2.52

‘For women, the comparison showed hiring dis-

parities against women in at least six of the eight

categories ° and statistically significant disparities in

five categories (see Pet. App. Bll n.6; DX 49; A.

963) :

1974-1978 Female Hires

Female Expected Disparity

EEO Total Applicant Female Female in Standard

Category Hires % Hires Hires* Deviations

1 Officials 14 34.82% 4(28%) — —

2 Prof. 286 65.35% 97(384%) 158 7.29

8 Tech. 232 44.85% 72(31%) 104 4.23

4 Prot. Serv. 784 12.82% 114(15%) 97 _

5 Para-prof. 74 64.68% 22(80%) 40 4.31

6 Clerical 768 86.21% 684(90%) 658 —

7 Sk. Craft 243 6.89% 6(2%) 17 2.72

8 Serv./Maint. 793 10.54% 26(8%) 84 6.66

5 Rounded to nearest whole number.

*The protective service category includes school crossing

guards, a part time position filled overwhelmingly by women.

Of the 114 female hires from 1974 to 1978, 58 were of school

crossing guards (PX 1b). If those positions are eliminated,

only 56 (7.1%) of the total hires for protective service jobs

were female.

7 Rounded to nearest whole number.

In addition, the United States presented evidence

that tests given by the County, which were prerequi-

sites for jobs constituting approximately 30% of the

County’s work force, had a statistica'ly significant

adverse impact on black employees (Pet. App. C11-

C12).

The County produced no evidence rebutting the

government’s record keeping allegations. Against the

government’s allegations of discrimination in the hir-

ing of blacks and women, the County introduced a

statistical analysis of its labor market based upon

the experienced and employed work force in 1970.

This analysis determined, by using the zip codes of

applicants’ residences, the percentages of the County’s

black and women applicants in 1978 broken down by

the eight job categories in six different geographic

areas. Based upon figures from the 1970 Census that

purported to show the percentage of black and female

employed and experienced unemployed persons in

each job category in each geographic area, the County

derived constructive labor market “availability” sta-

tistics. A comparison of the County’s labor market

figures and its hires in each year from 1974 to 1978

showed significant disparities in the hiring of blacks

in the protective service worker and service/mainten-

ance categories in 1976 and 1977 and in the hiring

of women in the service/maintenance category from

1974-1978 but did not show disparities in other cate-

gories (Pet. App. B14-B17).

With respect to its tests or other selection proce-

dures, the County introduced evidence that it had

commenced a validity study on its entry level exami-

nations for law enforcement and fire fighter jubs, but

did not offer any studies showing the validity of these

or other examinations. Lastly, the County introduced

extensive evidence as to its 1978 affirmative action

plan. The County had had a series of affirmative

action plans since 1972 (Pet. App. C12, C17).

2. The district court found that the County had

not maintained the records required by federal reg-

ulations before January 1, 1978 (Pet. App. B38, Ap-

pendix A I-VII). The court ruled, however, that no

injunction was necessary to ensure further compli-

ance with record keeping requirements (Pet. App.

B4).

On the merits, the district court rejected the gov-

ernment’s applicant flow data as being misleading

for the 1974-1977 period on the theory that the Coun-

ty’s 1978 affirmative action plan increased the per-

centage of biacks and women applying to the County

in 1978 (Pet. App. B11-B13). The court also sug-

gested that the plan might have resulted in an in-

creased number of unqualified applicants (id. at

B11). The court accordingly held that the applicant

flow data did not establish a prima facie case (id.

at B13). The court accepted the County’s construc-

tive labor force analysis, which was based upon the

1978 applicant data and the 1970 Census data, as

the most accurate measurement of the black and

female percentages of the County’s labor pool (id. at

B14-B16). Based upon this data the court found

discrimination as to blacks in protective service and

service/maintenance jobs in 1976 and 1977 and as

to women in service/maintenance jobs for 1974-1978

(id. at B17-B18). The remedy imposed was a general

injunction against discrimination in the hiring of

women for service/maintenance jobs (id. at B20).

The court concluded that no injunction prohibiting

discrimination against blacks was necessary in light

of the County’s existing affirmative action program

(id. at B19-B20).

With respect to the government’s evidence that the

selection procedures had a discriminatory impact, the

court agreed that the County’s law enforcement and

firefighter tests had not been validated (Pet. App.

B18). The court, however, gave no further consider-

ation to the evidence (see id. at C13).

3. The court of appeals vacated and remanded

(Pet. App. C1-C24). On the issue of record keep-

ing, the court of appeals held that the district court

should have granted injunctive relief requiring com-

pliance with record keeping requirements and should

have imposed periodic reporting requirements to en-

able it to monitor compliance (id. at C20-C21). With

respect to the government’s disparate treatment case,

the court found unpersuasive the district court’s rea-

sons for rejecting the government’s applicant flow

data—that the County’s 1978 affirmative action plan

likely resulted in larger percentages of black and

female applicants than in earlier years and that

a larger proportion of those applicants might have

been unqualified. First, the court noted that the

County had had several affirmative action programs

in place since 1972 and there was no reason to be-

lieve that the applicant flow in 1978 was signifi-

cantly different from prior years. Second, there was

no evidence in the record that a higher percentage

of the 1978 applicants were unqualified, and even

if the County could make such a showing, that was

a matter to be proved on rebuttal; it did not alter

the fact that the government had shown a prima

facie case (id. at C16-C18). The court of appeals also

held that the district court erred in finding the Coun-

ty’s constructive labor force analysis to be a more

accurate reflection of the 1974-1978 labor market for

two reasons. First, the analysis relied on 1970

Census data that probably did not reflect actual con-

ditions in 1974-1978. Second, the analysis used only

the population figures for employed and experienced

workers although many of the County’s jobs require

no prior experience (id. at C18-C19). The court thus

concluded that the government had proved a “more

extensive prima facie case than the district court

recognized,”’ but it declined to define “the exact con-

tours of the case” (id. at C19).

Accordingly, the court of appeals vacated the judg-

ment of the district court and remanded for findings

as to the extent of the prima facie case of disparate

treatment established by the government and for an

assessment of any evidence adduced by the County

in rebuttal. With respect to the government’s dis-

parate impact case, the court noted that the County

had failed to offer any evidence of professional valida-

tion of its tests, with one possible exception (Pet.

App. C19-C20, C22). The court, however, declined to

reach a final decision on this aspect of the case and

also remanded it to the district court for factual

findings, particularly on the rebuttal evidence offered

by the County (id. at C23-C24).

On September 5, 1980, the court of appeals denied a

motion to stay the mandate pending disposition of this

petition (Pet. 2). A similar motion to stay the man-

date was presented to the Chief Justice, who denied

it on October 9, 1980. However, on October 24, 1980,

the district court stayed all proceedings on remand,

including discovery, pending disposition of this

petition.

ARGUMENT

Petitioners contend (Pet. 5-17) that the court of

appeals’ decision that the government’s applicant flow

analysis established a prima facie case of disparate

treatment is contrary to this Court’s decision in

Hazelwood School District v. United States, 483 U.S.

299 (1977). This contention is without merit. More-

over, the interlocutory nature of the court’s decision

and the fact that it is closely tied to the specific facts

of this case make the decision inappropriate for re-

view by this Court.

1. The decision of the court of appeals is fully in

accord with this Court’s opinion in Hazelwood School

District v. United States, supra. In Hazelwood, the

Court directed the consideration on remand of a

number of factors relevant to the determination of

the racial composition of the school district’s labor

market. 433 U.S. at 310-812. Many of these factors

concerned the geographic definition of the labor mar-

ket because that was a critical issue in the controversy

below. Consideration of the geographic factors was

necessitated by the absence of any evidence as to the

racial composition of the applicants, which the Court

noted would be “very relevant” proof of the work

force to be compared with the school district’s hiring

practices. 4383 U.S. at 308 n.13. See also Hester v.

Southern Ry., 497 F.2d 1374, 1879 (5th Cir. 1974).

Thus, as the court of appeals noted (Pet. App. C16),

its reliance on applicant flow data was in accordance

with the guidelines of Hazelwood.

The disagreement between the court of appeals and

the district court in this case is not over the legal

question of the relevance of applicant flow informa-

tion. Indeed, the County’s geographic labor force

analysis was itself based upon 1978 applicant flow

data (see Pet. App. B15). The major disagreement

concerned what legitimate inferences could be drawn

from the 1978 records and applied to the racial and

sexual composition of applicants from 1974-1977,

when the County had unlawfully destroyed the rec-

ords that would have directly showed that informa-

tion. This question, as is apparent from petitioners’

numerous references to the record (Pet. 7-9, 13-16),

turns upon the sufficiency of the evidence to support

the district court’s conclusions. No legal issue is pre-

sented that warrants this court’s review.

In any event, the court of appeals correctly found

that there was no adequate basis for the assumption

that the County’s 1978 affirmative action plan caused

a higher black and female applicant flow in that

year than had existed from 1974 to 1977. The court

noted that the County had had affirmative action

programs since 1972, that some of the features of the

1978 plan were continuations of earlier programs, and

that some of the earlier affirmative action efforts had

actually been discontinued by 1978 (Pet. App. C17).°

In addition, the court correctly found no basis in the

record for assuming that 1978 black and female appli-

8 The statistics cited by petitioners (Pet. 7-8) do not con-

flict with the court of appeals’ opinion. Evidence of an in-

crease in black certifications from the Fairfax County Office

of Personnel to the Police Department reflects a change in the

manner of processing and certification of black applicants

by the personnel office (A. 399) rather than a change in

the number or percentage of blacks applying to the personnel

office for police officer positions. Police minority recruitment

efforts involving black colleges (A. 758-760), media adver-

tising (A. 764-765), and special testing procedures (A. 765)

were all originated prior to 1978. Even in 1978, only four

of 57 police officers hired by the County were black (PX

2e at code 4118C).

cants were more likely to be unqualified than white

male applicants. Thus, as the court of appeals held,

the district court erred in ruling that the government

had not established a prima facie case of disparate

treatment. Moreover, given the conceptual ® and pro-

cedural *° flaws in the County’s work force analysis,

the court of appeals correctly concluded that the dis-

trict court erred in finding that analysis to be prefer-

able to the applicant flow analysis.

2. Apart from the merits of the court of appeals’

decision, it is clearly not ripe for review at this time.

The case has been remanded to the district court for

further proceedings that may obviate any necessity

for further review. Accordingly, review by this Court

would be premature. See Brotherhood of Locomotive

Firemen & Enginemen v. Bangor & Aroostook R.R.,

389 U.S. 327 (1967). Moreover, petitioners have not

challenged that portion of the court of appeals’ opin-

ion remanding for further findings on the prima

facie case of disparate impact that has been estab-

®*The County relied upon 1970 Census data of persons

employed and experienced at that time. That data reflects

the discriminatory patterns of employment then in existence,

which necessitated the enactment in 1972 of the amendments

to Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e

et seq., and the non-discrimination provisions of the State and

Local Fiscal Assistance Act of 1972, 31 U.S.C. 1242, and the

Crime Control Act of 1978, 42 U.S.C. 8766(c) (to be recodi-

fied at 42 U.S.C. 8789d(c)). Moreover, those figures are

of no relevance for most entry level County jobs, which

do not require prior experience (Pet. App. C18-C19).

10The derivation of the data supporting the County’s

analysis was not explained, and the person who prepared

them did not testify (Pet. App. C19 n.10). The government’s

first opportunity to examine the demographic data on which

this analysis was based came after the close of discovery, and

the exhibits submitted contained no reference to the source

of the data (see A. 1718-1745).

lished by the government. Whatever the disposition

of this petition, the disparate impact case provides

an independent basis for a remand and may ulti-

mately provide a basis for relief ordered in this case

irrespective of the issues raised by this petition.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. MCCREE, JR.