Opposition Brief — Block v. Bouman

Bupreme Court, WS.

FILED

a NOV 18 1992

No. 91-673

OFFIGE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1991

.

SHERMAN BLOCK, SHERIFF OF LOS ANGELES

COUNTY; COUNTY OF LOS ANGELES;

LOS ANGELES COUNTY SHERIFF’S

DEPARTMENT; JOHN P. KNOX,

Petitioners,

V.

SUSAN L. BOUMAN, on behalf of herself

and all others similarly situated,

Respondents.

¢

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

e

RESPONDENTS’ BRIEF IN OPPOSITION

¢

DENNIS MICHAEL HARLEY

2 North Lake Avenue, Suite 590

Pasadena, California 91101

(818) 796-7555

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

Do the Petitioners’ complaints regarding standing,

adverse impact, and retaliation warrant review by this

Court on the grant of certiorari?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ i

TABLE OF CORWEICie s 6 xis vcncncetnten ete sesceves ii

TABLE OF AUST IGG s tee 6 665s vc des eiiraeds news ewes iii

RESPONDENTS’ BRIEF IN OPPOSITION .......... 1

OPINIONS BELOW. oo scccceccanevertnsencestceees 1

SUPPLEMENTAL STATEMENT OF THE CASE..... 2

REASONS WHY THE PETITION SHOULD BE

el) es eer er reer rer ere 4

SUMMARY OF ARGUMENT............eeseeeeeees 5

ST ANIIIIIS 6.06sccvccvas ts ouwbe vane seaeeeeeer goers 5

ADVERSE TREFAY «csv cdceccssanvetetekensetecss 12

RETALAATIIN 0 occ cckecsvncuaecevan ieee eee reece 14

CONCLUBIIN . oon ceusvecsaucauneeie teategeuwe bass 16

ili

TABLE OF AUTHORITIES

CASES

Anderson v. City of Bessemer City, North Carolina,

vc ded dc ere cducrcersepeees

Ang v. The Procter & Gamble Company, 932 F.2d 540

eee reas

Babrocky v. Jewel Food Company and Retail Meatcut-

ters Union, Local 320, 773 F.2d 857 (7th Cir. 1985)

Baker v. Buckeye Cellulose Corporation, 856 F.2d 167

Ra dic ody lnsce cave senicevesecs

Berkman v. City of New York, 705 F.2d 584 (2d Cir.

COSC LCSD andy ck av ses nevyssecsy ens

Boston Chapter N.A.A.C.P. v. Beecher, 504 F.2d 1017,

I oe wea vy 0 5 448 oe tba hie vee ye 0's

Bouman v. Block, 940 F.2d 1211 (9th Cir. 1991)...

Bronze Shields, Inc., v. New Jersey Department of

Civil Service, 667 F.2d 1074 (3d Cir. 1981), cert.

Gemies, 456 US. 1122 (1962)..............-....

Clady v. County of Los Angeles, 770 F.2d 1421 (9th

Cir. 1985), cert. denied, 475 U.S. 1109 (1986) ...

Contreras v. The City of Los Angeles, 656 F.2d 1267

(9th Cir. 1981), cert. denied, 455 U.S. 1021 (1982)....

Delaware State College v. Ricks, 449 U.S. 250 (1980)

Easley v. Empire, Inc., 757 F.2d 923 (8th Cir. 1985)

Ellis v. Dixon, 349 U.S. 458 (1955)...............

Equal Employment Opportunity Commission v. Amer-

ican Telephone & Telegraph Company, 556 F.2d 167

(3d Cir. 1977), cert. denied, 438 U.S. 915 (1978)

Page

passim

iv

TABLE OF AUTHORITIES - Continued

Page

Ezell v. Mobile Housing Board, 709 F.2d 1376, 1382

CE I sarc edare state epabesnceaveest veces 13

Furnco Construction Corp. v. Waters, 438 U.S. 567,

SP in Gn Weis Cee cds SesdeeVeneas F46k een es 12

General Talking Pictures Corp. v. Western Electric

a we SPE BME RO a nen cee ventatnandesrersses 10

General Telephone Co. of The Southwest v. Falcon, 457

SO ee ee ee ee 11

Goodman v. Heublein, Inc., 645 F.2d 127 (2d Cir.

WE i cachksy winter ond nern ane aaa ane as 15

Guardian Association of New York City Police Depart-

ment, Inc., v. Civil Service Commission of The City

of New York, 633 F.2d 232 (2d Cir. 1980), aff'd, 463

U.S. 582, cert. denied, 463 U.S. 1228 (1983).......... 7

Gupta v. East Texas State University, 654 F.2d 411

ee IS a Sa ea el ven cane eecee's een ni etoe 3 15

International Brotherhood of Teamsters v. United

SO, Ee SE Eade never divenccedss tess 8

].I. Case Co. v. Borak, 377 U.S. 426 (1964)............ 10

Jordan v. Wilson, 649 F.Supp. 1038 (M.D. Ala. 1986),

rev'd in separate proceeding on different issue, 851

Poe FEU MEW GE WOUNDS Cav cree cncescterceveccns. 7

Layne & Bowler Corporation v. Western Well Works,

ee | err ee err eee 8

Lorance v. AT&T Technologies, Inc., 490 U.S. 900, 109

ey CI Ue aca cee dun hear eutebe toes 5, 6

Marshall v. Holiday Magic, Inc., 550 F.2d 1173, 1176

ke A re oe pee peer ear Pep 10

TABLE OF AUTHORITIES —- Continued

Page

National Labor Relations Board v. Pittsburgh Steam-

Sep Ca, FOE UB TO ED occ ce rtsegncasecss 10, 14

Oubichon v. North American Rockwell Corporation,

oe eo ee ef eer rere 14, 15

Ramirez v. National Distillers & Chemical Corp., 586

of OU ee ee re ree 14

Ratliff v. Governor's Highway Safety Program, 791

ee ge | eer er ee 8

Ruggles v. California Polytechnic State University,

FIT Fi FE NE Se POP cca cecsasaewenteeva. 15

Southern Power Company v. North Carolina Public

Service Company, 263 U.S. 508 (1924).............. 10

Underwood v. District of Columbia Armory Board,

* BP Wie Cee as Ge PT one bere ceecksec sven 8

United States Postal Service Board of Governors v.

A ee Be ee ee ere 12, 13

Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109

ADs SEO MUP e625 58 Ci denns esa eder takin ta, 33

OTHER:

| Peer e rere eee re ye ere re ree 5

RESPONDENTS’ BRIEF IN OPPOSITION

Respondent Susan L. Bouman on behalf of herself

and all others similarly situated respectfully submits that

because of the detailed fact based findings of the district

court the petition for a writ of certiorari received on

October 22, 1991 should be denied and files this brief in

opposition.

OPINIONS BELOW

The Opinion of the United States Court of Appeals

for the Ninth Circuit is reported at 940 F.2d 1211 (9th Cir.

1991) and is partially reproduced in the Petitioners’

Appendix (A-1 to A-65). Petitioners have failed to include

the appendix to the court of appeals decision. Respon-

dents have included the missing documents as Appendix

A-1 to A-2 to this opposition.

The Opinion of the United States District Court is

unreported in the official reports and is unofficially

reported, Bouman, et al. v. Pitchess, et al., 42 EPD 46,307

(C.D. Ca. 1985), Bouman, et al. v. Pitchess, et al., 42 EPD

46,318 (C.D. Ca. 1987), Bouman, et al. v. Pitchess, et al., 46

EPD 37,947 (C.D. Ca. 1988) and Bouman, et al. v. Pitchess,

et al., 47 EPD 53,226 (C.D. Ca. 1988). The Amended Mem-

orandum After Trial is reproduced in the Petitioners’

Appendix (B-1 to B-11).

SUPPLEMENTAL STATEMENT OF THE CASE

Susan L. Bouman was hired by the County of Los

Angeles as a Deputy Sheriff in 1971. Bouman v. Block, 940

F.2d 1211, 1217 (9th Cir. 1991). In 1974 she applied for a

promotion to sergeant and took a three-part examination

in 1975 to qualify for promotion. Id. at 1217.

From the examination score a promotion eligibility

list was developed and used for two years. At the time

the list expired on May 21, 1977, Bouman was at the top

of the list and would have received the next appointment.

From the list, four females and 127 males were promoted.

Bouman was not promoted from this list. /d.

Prior to the list’s expiration, Bouman inquired about

her chances of appointment. Bouman testified that her

superior “basically told her not to hold her breath.” /d.

Others in the department also knew that Bouman was not

likely to be promoted. One deputy from another sheriff's

station who was behind Bouman on the eligibility list

called her because he heard that she was not going to be

promoted and was concerned about how this would

affect his promotion chances. /d.

The Employers’! own investigation concluded that

there was strong evidence of sex discrimination on the

examination and as regards the decision to not promote

Bouman. After presentation of the investigative report,

1 Petitioner Sherman Block is the elected sheriff of Peti-

tioner Los Angeles County. John P. Knox was in charge of

personnel matters for Petitioner Los Angeles County Sheriff’s

Department and a subordinate officer of the Sheriff. They are

referred to herein collectively as “the Employer.”

the investigator was ordered to prepare a false communi-

cation. Higher ranked officers denied the existence of the

investigative report even after confronted with a copy

during cross-examination, and the district court found

such testimony “not credible.”

Another sergeant examination was administered in

1977, but Bouman did not take it because she believed it

would be futile and that the testing procedures discrimi-

nated against women.

Bouman brought several claims on behalf of herself

and the class. For the class, she alleged that the sergeant

examinations discriminated against women. She argued

that the design of the 1975 examination was flawed.

Bouman submitted statistical evidence showing that the

examination had a statistically significant disparate

impact on women. The Employer admitted that women

deputies suffered adverse impact on the written portion

of the 1975 examination, but argued that any differences

in performance were not statistically significant and were

explained by nondiscriminatory factors such as job expe-

rience. Id. at 1218. Bouman also contended that the

Employer engaged in intentional discrimination against

her and retaliated against her in connection with a

request for transfer for filing a claim with the United

States Equal Employment Opportunity Commission. /d.

at 1218.

Bouman argued that job experiences in the Los

Angeles County Sheriff’s Department were not gained in

a neutral fashion, citing the discriminatory assignments

she and other female deputies endured. Bouman was not

permitted to serve in a solo radio car at night in certain

areas because her supervisors felt it would be inappropri-

ate. Meanwhile, male deputies were allowed to serve in

such areas. The station commander also had a policy of

having women deputies rotate on the station front desk.

At one point, she was told to leave a radio car and work

the station front desk. Men were not required to rotate on

the front desk. Id.

The district court, after a twenty-two day trial with

over fifty witnesses, found that the Employer engaged in

intentional retaliatory discrimination against Bouman for

filing her complaint with the EEOC. The district court

also found that the Employer for years used discrimina-

tory promotional examinations, which had a statistically

significant disparate impact on women, and engaged in

intentional discrimination against Bouman by failing to

promote her to sergeant. The court of appeals found that

substantial evidence supported those conclusions and the

district court did not commit clear error. Id.

¢

REASONS WHY THE PETITION SHOULD BE DENIED

The Petitioners have presented three “categories” of

complaint, labeled “standing,” “adverse impact,” and

“retaliation.” An examination of the Petitioners’ current

contentions amply reveals that the decision below was

properly rendered with respect to each type of complaint.

Moreover, in the absence of any special and important

reasons for granting certiorari, conflict among courts or

any other compelling reason warranting a grant of cer-

tiorari, this case does not merit this Court’s review.

¢

SUMMARY OF ARGUMENT

This case presents no “special and important” reason

warranting this Court’s review. Sup. Ct. R. 10. It involves

no conflict between the circuits, departure from the usual

courses of proceedings, or any other reason to grant

certio eri. The case involves nothing more than a heavily

fact based decision which was proper on the merits.

Moreover, the decision of the court below will have none

of the asserted ill social effects, but might, admittedly,

encourage employers to observe the dictates of the law.

+

STANDING

The court of appeals properly held that the Respon-

dent had standing to contest both the 1975 and the 1977

examinations. Bouman v. Block, 940 F.2d 1211, 1221-22 (9th

Cir. 1991). The Petitioners’ limitations claims regarding

the 1975 exam are belied by the applicable case law and

present no special or important issue for resolution by

this Court.

In its decision below, the court analyzed the Peti-

tioners’ limitations argument by employing as the date of

accrual of the claims the date of the expiration of the

promotion eligibility list. Jd. at 1221. The court consid-

ered, and properly distinguished, the holdings of the

courts in Lorance v. AT&T Technologies, Inc., 490 U.S. 900,

109 S.Ct. 2261 (1989); Delaware State College v. Ricks, 449

U.S. 250 (1980); and Bronze Shields, Inc. v. New Jersey

Department of Civil Service, 667 F.2d 1074 (3d Cir. 1981),

cert. denied, 458 U.S. 1122 (1982); the termination or non-

promotion in the latter cases “was a delayed but inevita-

ble result of being denied tenure or not scoring well

enough,” Bouman v. Block, supra, 940 F.2d at 1221, while

the Court in Lorance simply held that a claim of inten-

tional discrimination in the alteration of contract rights

accrued at the time of such alteration. Lorance v. AT&T

Technologies, Inc., supra, 109 S.Ct. at 2265. In the instant

case, by contrast, “not until the list expired was it certain

that [Respondent] would not be promoted. She did not

know until that date that she had suffered an injury.”

Bouman v. Block, supra, 940 F.2d at 1221. This factor distin-

guishes the instant case from the holdings relied upon by

the Petitioners.

As described above, the different circumstances at

issue in Bronze Shields, Inc., v. New Jersey Department of

Civil Service, supra, 667 F.2d at 1074, rendered appropriate

that court’s use of the date of promulgation of an eligi-

bility list for determining the timeliness of the charge. In

that case, the plaintiffs had complained of the “defen-

dants’ refusal to place them on the hiring roster.” Id. at

1083 (emphasis added). Thus, the Third Circuit reasoned

that, as of the date of promulgation of the list, “plaintiffs

knew they would not be hired by the . . . police depart-

ment.” Id. This reasoning is actually consistent with and

supportive of that of the Ninth Circuit in the instant case;

in the circumstances now under consideration, not until

the list expired would the Respondent know she had not

been promoted. Bouman v. Block, supra, 940 F.2d at 1221.

Thus, the unlawful employment practice took place on

that date and since her EEOC charge was filed within 300

days the action was timely filed. Until the Employer

intentionally allowed the list to expire, with her set to get

the next appointment, Bouman could not know she had

suffered an injury.

Courts of other jurisdictions which have had occa-

sion to apply these principles to circumstances like those

now at bar have reached the same conclusions as has the

Ninth Circuit. See, e.g., Guardian Association of New York

City Police Department, Inc. v. Civil Service Commission of

The City of New York, 633 F.2d 232 (2d Cir. 1980), aff’d, 463

U.S. 582, cert. denied, 463 U.S. 1228 (1983); Jordan v. Wilson,

649 FSupp. 1038 (M.D. Ala. 1986), rev'd in separate proceed-

ing on different issue, 851 F.2d 1290 (11th Cir. 1988). Thus,

the decision below is not only proper on the merits, but it

is also supported by a consistent body of case law. There

exists no conflict among courts of different jurisdictions

nor any other special or important reason for this Court

to grant certiorari on this issue.

Finally, the Respondent feels compelled to respond

briefly to the Petitioners’ characterization of the Respon-

dent as a successful examinee who was harmed, not by

the exam itself, but as a result of a failure to promote

from the eligibility list. The Respondent was clearly not a

successful applicant for a position she was not given. The

contention that the administration of an exam, which

results directly in the creation of an eligibility list, ren-

ders all ensuing harm the product of the list, and not of

the exam, is a poor and nonsensical exercise in semantics.

With respect to the Petitioners’ suggestion that they are

not parties properly held responsible for the processes

here involved, that contention, not raised below, is not

open for analysis here. Ellis v. Dixon, 349 U.S. 458, 460

(1966).

The Respondent respectfully suggests that no special

or important issues have been raised meriting this

Court’s review. In fact, the tenor of certain of the Peti-

tioners’ fact-specific complaints clearly shows that this

case falls within the rule that certiorari is to be granted

only “in cases involving principles the settlement of

which is of importance to the public, as distinguished

from that of the parties.” Layne & Bowler Corporation v.

Western Well Works, 261 U.S. 387, 393 (1923).

The Petitioners assert the vague and unsupported

objection that the Respondent has challenged an exam-

ination — the 1977 exam — for which she did not apply. In

its opinion below, the Ninth Circuit correctly followed the

rule established by this Court, that “[a] plaintiff is not

barred from bringing such an action where ‘an applica-

tion would have been a useless act serving only to con-

firm a discriminatee’s knowledge that the job he wanted

was unavailable to him.’ ” Bouman v. Block, supra, 940 F.2d

at 1221 (quoting International Brotherhood of Teamsters v.

United States, 431 U.S. 324, 367 (1977)). (The rationale

behind this rule is explained, in part, by this Court’s

observation that “[t]he denial of Title VII relief on the

ground that the claimant had not formally applied for the

job could exclude from the Act’s coverage the victims of

the most entrenched forms of discrimination.” Interna-

tional Brotherhood of Teamsters v. United States, supra, 431

U.S. at 367). The firm establishment of this rule by this

Court has been followed by the recognition and applica-

tion of the rule in circuit courts throughout the country.

See, e.g., Underwood v. District of Columbia Armory Board,

816 F.2d 769, 775 (D.C. Cir. 1987); Ratliff v. Governor's

Highway Safety Program, 791 F.2d 394, 402 (5th Cir. 1986);

Babrocky v. Jewel Food Company, and Retail Meatcutters

Union, Local 320, 773 F.2d 857, 867 (7th Cir. 1985)

(“Because an employer may create an atmosphere in

which employees understand that their applying for cer-

tain positions is fruitless, even nonapplicants can in

appropriate circumstances qualify for relief under Title

VII”); Easley v. Empire, Inc., 757 F.2d 923, 930 n.7 (8th Cir.

1985) (“formal application for a job will be excused when

a known discriminatory policy . . . deters potential job-

seekers”); Berkman v. City of New York, 705 F.2d 584, 594

(2d Cir. 1983) (“Those who have been deterred by a

discriminatory practice from applying for employment

are as much victims of discrimination as are actual appli-

cants whom the practice has caused to be rejected”); Equal

Employment Opportunity Commission v. American Telephone

& Telegraph Co., 556 F.2d 167, 180 (3d Cir. 1977), cert

denied, 438 U.S. 915 (1978). The decision below clearly

conforms with a well-established rule of law; there exists

no conflict among the circuits or with this Court so as to

justify a grant of certiorari.

The district court in this case did, in fact, conclude

that the Respondent “had demonstrated that she would

have applied for the 1977 list but for the futility of com-

peting with discriminatory practices” (Amended Mem-

orandum After Trial, Aug. 16, 1985, App. B-5). The Ninth

Circuit properly applied the standard set out in Anderson

v. City of Bessemer City, North Carolina, 470 U.S. 564 (1985),

to uphold the lower court’s findings of fact and cred-

ibility determinations regarding this issue. (This Court

has established that a “clearly erroneous” standard_

applies to review of factual findings and that “due regard

shall be given to the opportunity of the trial court to

10

judge the credibility of the witnesses.” Id. at 573.) The

Petitioners’ current claim is apparently directed at certain

evidentiary rulings and weighing of the evidence con-

ducted below; these complaints clearly present no “spe-

cial or important” reason for this Court to grant certiorari

in this case. This Court does not sit to review such mat-

ters. National Labor Relations Board v. Pittsburgh Steamship

Co., 340 U.S. 498, 503 (1951) (“This is not the place to

review a conflict of evidence nor to reverse a Court of

Appeals because were we in its place we would find the

record tilting one way rather than the other”); see also J.1.

Case Co. v. Borak, 377 U.S. 426, 431 (1964) (the Court

refused to engage in extended discussion of “questions of

fact to be resolved at trial, not here”); General Talking

Pictures Corporation v. Western Electric Company, 304 U.S.

175, 178 (1938) (“Granting of the writ would not be war-

ranted merely to review the evidence or inferences drawn

from it”); Southern Power Co. v. North Carolina Public Ser-

vices Co., 263 U.S. 508, 509 (1924) (the Court stated that

the presentation of questions regarding the sufficiency of

the evidence “would not have moved us” to grant cer-

tiorari).

The Petitioners’ challenges to the certification of the

class are similarly specious. As was correctly recognized

by the Ninth Circuit, “[t]he determination as to whether

to certify a class is committed to the discretion of the

district court and will not be disturbed on appeal absent a

showing of abuse of discretion.” Bouman v. Block, supra,

940 F.2d at 1232 (citing Marshall v. Holiday Magic, Inc., 550

F.2d 1173, 1176 (9th Cir. 1977)). Contrary to the Peti-

tioners’ claim that the lower court failed to engage in a

1]

“rigorous examination” of Rule 23(a) factors, as recog-

nized by the Ninth Circuit, these factors were ordered

fully briefed by the court and carefully considered at a

hearing. At the hearing, the judge “reviewed each of the

elements required for a class under Rule 23(a) and stated

briefly why each was satisfied.” Bouman v. Block, supra,

940 F.2d at 1232. This analysis will demonstrate that the

lower court did not engage in an “across the board”

certification, but, rather, gave consideration to each ele-

ment necessary to maintain a class action suit. This anal-

ysis included a demonstration of common issues,

problems, and harms existing among class members. The

court expressly found that the challenged practices had

the same adverse effect on all class members. Since the

case involved common discriminatory practices and all

claims fell within the same category of legal theory the

court properly certified the class. Cf. General Telephone Co.

of Southwest v. Falcon, 457 U.S. 147, 159 (1982) (if “one

allegation of specific discriminatory treatment were suffi-

cient to support an across-the-board attack, every Title

VII case would be a potential companywide class

action”). The Petitioners’ current claims are wholly with-

out merit and do not warrant this Court’s attention. |

The above discussion demonstrates that the resolu-

tion of this case as decided below does not encourage

litigation by persons without standing. The proper anal-

ysis of the standing issues, as engaged in by both courts

below, reaffirms the fact that the courts will require the

proper observance of the rules related to standing.

¢

12

ADVERSE IMPACT

The Petitioners’ claims regarding the circuit court’s

findings of discrimination are without merit and do not

warrant review by this Court.

The Petitioners’ complaint regarding the standard of

review is incorrect. As recognized in the opinion below,

this Court has gone so far as to explain that “[w]here the

defendant has done everything that would be required of

him if the plaintiff had properly made out a prima facie

case, whether the plaintiff really did so is no longer

relevant.” United States Postal Service Board of Governors v.

Aikens, 460 U.S. 711, 715 (1983). It is well settled that

“(t]he prima facie case method . . . was ‘never intended to

be rigid, mechanized, or ritualistic.’ ” Id. at 715 (quoting

Furnco Construction Corp. v. Waters, 438 U.S. 567, 577

(1978)). Thus, in its opinion below, the court properly

stated that “[o]nce a Title VII case proceeds to judgment

the issue is no longer whether plaintiff has established a

prima facie case, but whether there was discrimination.”

Bouman v. Block, supra, 940 F.2d at 1223.

The opinion below acknowledges that the standard

would differ had the trial court found an absence of a

prima facie case. Id. The court’s opinion is thus perfectly

consistent with the case relied upon by the Petitioners,

Clady v. County of Los Angeles, 770 F.2d 1421 (9th Cir.

1985), cert. denied, 475 U.S. 1109 (1986). The actions

appealed from in Clady included the lower court's finding

that no prima facie case had been established. Id. at 1426.

Similarly, in Wards Cove Packing Co. v. Atonio, 490 U.S.

642, 109 S.Ct. 2115 (1989), only after the trial court ruled

against the plaintiffs did the circuit court hold that a

13

prima facie case had been made out. 109 S.Ct. at 2120. In

Atonio, the Supreme Court itself did not specifically

address the issue, which, as described above, had been

settled in Aikens.

Contrary to the Petitioners’ suggestion, the trial court

did acknowledge that the federal guidelines (incorporat-

ing the “so-called 80 percent rule”) are instructive, but

not dispositive. Bouman v. Block, supra, 940 F.2d at 1225.

The court noted that the question is whether the “statisti-

cal disparity is ‘substantial’ or ‘significant’ in a given

case. Id. at 1225. The court concluded that both the

adverse impact of the examinations and the bottom-line

adverse impact were statistically significant and proven

by “several generally accepted techniques.” Id. at 1225.

Moreover, as noted in the opinion below, courts do look

at trends from past examinations to assess evidence of

discrimination with respect to a total pass rate. Id. at 1226

(citing Ezell v. Mobile Housing Board, 709 F.2d 1376, 1382

(11th Cir. 1983); Boston Chapter NAACP v. Beecher, 504 F.2d

1017, 1021 (1st Cir. 1974), cert. denied, 421 U.S. 910 (1975)).

The court’s combination of the 1975 and 1977 results is

thus proper.

With respect to the asserted “insubstantial differ-

ences” in the statistics, the Petitioners’ argument comes

perilously close to misleading. The court assessed the

expert evaluations and concluded that they showed sta-

tistical significance. Bouman v. Block, supra, 940 F.2d at

1226. Importantly, the court rejected the Petitioners’ inter-

pretation of prior Ninth Circuit authority; it held both

that the combination of small sample size and small

success rate calls into question the significance of an 80%

rule violation and that a showing of significance at the .05

14

level distinguishes the instant case from Contreras v. The

City of Los Angeles, 656 F.2d 1267 (9th Cir. 1981), cert.

denied, 455 U.S. 1021 (1982). The Petitioners’ current

attempt to foist upon this court their own interpretation

of Ninth Circuit authority which has been rejected by that

circuit well merits this Court’s refusal to take up this

case.

Finally, the Petitioners have failed to observe that the

Ninth Circuit’s rejection of this contention by the Peti-

tioners is based, in part, on the trial court’s crediting the

Respondent’s experts with respect to a possible correla-

tion between disparate performance and experience. Bou-

man v. Block, supra, 940 F.2d at 1227. The lower court's

factual findings are entitled to deference and constitute

no proper basis upon which to seek certiorari. Anderson v.

City of Bessemer City North Carolina, supra, 470 U.S. at 573;

National Labor Relations Board v. Pittsburgh Steamship Co.,

supra, 340 U.S. at 503.

RETALIATION

The Petitioners’ argument concerning retaliation

completely ignores the governing precedent firmly estab-

lished in the Ninth Circuit and relied upon in the decision

below. Based upon the principles set out in Ramirez v.

National Distillers & Chemical Corp., 586 F.2d 1315 (9th Cir.

1978), and Oubichon v. North American Rockwell Corp., 482

F.2d 569 (9th Cir. 1973), the court below held that the

Respondent's retaliation claim of March 1978 was “rea-

sonably related” to her prior filed discrimination claim of

January 1978 and rejected the contention that a separate

15

retaliation charge should have been filed with the EEOC.

Bouman v. Block, supra, 940 F.2d at 1229. In so concluding,

the court followed its own precedent, which dictates that

“[w]hen an employee seeks judicial relief for incidents

not listed in his original charge to the EEOC, the judicial

complaint nevertheless may encompass any discrimina-

tion iike or reasonably related to the allegations of the

EEOC charge, including new acts occurring during the

pendency of the charges before the EEOC.” Oubichon v.

North American Rockwell Corp., supra, 482 F.2d at 571. The

decision below is also consistent with the conclusions of

other circuit courts which have had occasion to state that

retaliation claims such as those involved: in the instant

case need not be the subjects of separate EEOC filings.

See, e.g., Ang v. The Procter & Gamble Co., 932 F.2d 540,

546-47 (6th Cir. 1991); Baker v. Buckeye Cellulose Corpora-

tion, 856 F.2d 167, 168-69 (11th Cir. 1988); Gupta v. East

Texas State University, 654 F.2d 411, 413-14 (5th Cir. 1981);

Goodman v. Heublein, Inc., 645 F.2d 127, 131 (2d Cir. 1980).

There is no conflict among the circuits regarding this

issue; a grant of certiorari is not warranted.

Finally, it should be noted that the decision of the

court in Ruggles v. California Polytechnic State University,

797 F.2d 782 (9th Cir. 1986), merely discusses the nature

of a retaliation claim; it does not address the issue at

hand (which issue has, as discussed above, been

addressed elsewhere by the Ninth and other circuits). The

Ruggles decision is thus inapposite; it in no way affects an

analysis of the merits of the question and provides no

conflicting counterprinciple which might warrant the

Court’s consideration.

16

CONCLUSION

Since the court of appeals correctly applied the law,

there is no issue of national importance worthy of the

attention of this Court, and the decision below turns on

its own facts, and, as a precedent, will affect relatively

few other litigants, the petition for writ of certiorari

should be denied.

DATED: November 15, 1991

Respectfully submitted,

DENNIS MICHAEL HARLEY

Counsel for Respondents

App. 1

APPENDIX “A”

COMPUTER COUNTS OF LOS ANGELES COUNTY SERGEANT AND DETECTIVE SERGEANTS SELECTION PROCESS®

STANDARD ONE CHANCE

YEAR STEP ISSUE DEVIATIONS _ PROBABILITY IN CASE

1975 Available vs. Applied (H) Discouragement &

Experience Requirements 4.61 000004 242,671 48

1975 Available vs. Applied (G) Discouragement &

Experience Requirements 5.73 -00000001 99,000,000 49

1975 Applied vs. Took Written Discouragement 2.43 015113 66 50

1977 Available vs. Applied (H) Discouragement &

Experience Requirements 5.08 00000037 2,700,000 60

1977 Available vs. Applied (G) Discouragement &

Experience Requirements 6.52 000000000068 14,000,000,000 61

1975 Took Written vs. Passed Passing Written 2.29 0121773 46 51

1975-77, = Applied* vs. Took Written Discouragement 2.83 004618 217 76

1975-77 Took Written* vs. Passed

Written and Made AP Passing of Written 3.07 002147 466 77

1975-77 Took Written* vs. Passed

Written & Passed AP Passing Two Cutoffs

& Took Oral (Written & AP) 2.23 025963 39 97

1975 Available vs. Promoted Bottom Line 2.70 006995 143 58

1977 Available vs. Promoted Bottom Line 2.05 040251 25 71

1975 - 1977 Counting Candidates only once

Applied vs. Promoted Bottom Line 2.31 .020649 48 89

In Pool vs. Applied Discouragement &

Experience Requirements 6.24 00000000042 2,300,000,000 90

Applied vs. Took 1 Written Discouragement 2.93 003363 297 91

Took 1 Written vs. Passed

1 Written Passing Written 3.26 .001100 909 92

Took Written vs. Passed

Both Written & AP Cutoffs Pass 2 Cut 2.44 014603 68 96

‘and not promoted early

;

ud

,

REVISED 4/15/86

App. 2

APPENDIX “B”

ADVERSE IMPACT SUMMARY

A B cs D

1975 ADDED to

1975 1977 1977 1975 or 1977

SELECTION PROCESS

STEPS M F T M F T M F 5 M F T

Deputy I, II, Ill, IV (1974) 3479 364 38434 (1976) 3596 477 4073e¢ (1975) 3619 415 4034f ~ - -

Applied 1506 101 1607 1628 141 1769 3134 242 3376 2159 190 2349

Did Not Promote Early - - - 1616 141 + 1757¢ 3122 242 3364 - - -

Took Written Test 1312 79 =1391 1259 102 1361 2571 101 2752 1826 145 1971

Took written Test

Not Promoted Early - - - 1254 102 1356 2566 101 2747

Passed Cutoff for Written

Test 491 19 510 562 34 596 1053 53 1106 849 48 897

(70% 1975) (70% 1977)

Passed Cutoff for Written and

Not Promoted Early - = = 5958 34 592 1049, =53—-1102

Appraisal of Promotability

Made (AP) 487 19 506 558 34 592 1045 53 1098 846 48 894

Passed Cutoff of AP and

Written 250 10 260 331 18 349 581 28 609 502 24 526

(53.78 1975) (53.75 1977)

Took Oral Interview 250 10 260 329 18 347 579 28 607 515 28 541

Placed on Eligible List 249 10 259 331f 18 349 580 28 608 514 28 542

Promoted 127 4 131 93 5 98 220 9 220 9 229

229

Notes: See attached.