Opposition Brief — San Francisco Fire Fighters Local 798 v. City & County of San Francisco

Supreme Court of the United States

OcTOBER TERM, 1990

SAN FRANCISCO Fire FIGHTERS LOCAL 79§upreme Court, 0A.

INTERNATIONAL ASSOCIATION FILED

FirE FIGHTERS, AFL-CIO,

Petitioner, sfP 6 1990

vs. JOSEPH F. SPANIOL,

CiTy AND COUNTY OF SAN FRANCIBCO, CLERK

FONTAINE DAviIs, et al.,

UNITED STATES OF AMERICA,

Respondents.

On Petition For a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF IN OPPOSITION

Eva JEFFERSON PATERSON WILLIAM C. MCNEILL, III,

SAN FRANCISCO LAWYERS’ Counsel of Record

COMMITTEE For URBAN CHRISTOPHER Ho

AFFAIRS THE EMPLOYMENT Law CENTER,

301 Mission Street, Suite 400 A Project of the Legal Aid

San Francisco, CA 94105 Society of San Francisco

Telephone: (415) 543-9444 1663 Mission Street, Suite 400

San Francisco, CA 94103

SHAUNA I. MARSHALL ay

raneagy oc <taaipgeena Telephone: (415) 864-8848

1663 Mission Street, Suite 550

DENNIS HAYASHI

San Francisco, CA 94103 Asian Law Caucus, INc.

Telephone: (415) 621-0672 468 Bush Street, Third Floor

— San Francisco, CA 94108

MEXICAN AMERICAN LEGAL Telephone: (415) 391-1655

DEFENSE AND EDUCATIONAL

Funp, INC. RUSSELL GALLOWAY

182 2nd. Street, Second Floor 786 Vicente Street

San Francisco, CA 94105 Berkeley, CA 94706

Telephone: ae 543-5598 Telephone: (415) 526-7669

QUESTION PRESENTED

Whether a consent decree settling race and gender discrimination

actions which meets established "fairness" criteria, and which fits

squarely within the precedents of this Court for voluntary affir-

mative action programs, was properly approved by the, District

Court.

TABLE OF CONTENTS

Page

QUESTION PUREED kv osc 6 ca bred beetles i

TAMLE GP ALTE REEED 6s sta ns dace sw hweees iv

STATEAGEICE GP EGU 5 6k kk Meese we cee 1

A. Popeseiiny TE. bs oe kaw ieee Oe ee ee 1

B. Facts Justifying Entry

of Cannell IS 6h iri ea ee ee bs

REASONS FOR DENYING THE WRIT ............ 10

I. The Court Of Appeals Applied The Proper

Standards Of Review, Including Strict Scrutiny

Analysis, To The District Court’s Approval Of

Tie Gomeeat EE... os Fev ne eeeee ee cess 14

II. Even If The Question Of The Relevant Labor

Market Were Appropropriate For Decision By

This Court, It Is Undisputed That The City And

County Of San Francisco Was The Department’s

Labor Market During The Period In Question,

And Therefore The District Court Correctly Used

RASTER «4scec as cue eee 15

Il. The Consent Decree On Its Face Requires That

Only Qualified Firefighters Be Hired Or Promot-

ii

TABLE OF CONTENTS- Continued

Page(s)

IV. The Distric: Court Properly Approved The

Consent Decree’s Provision Of Affirmative Relief

And, Consistent With This Court’s Precedents,

Such Relief Does Not Maintain Racial Or Gender

Balance Within The Fire Department. :

CONCLUSION

ili

TABLE OF AUTHORITIES

Cases Page(s)

Adickes v. S. H. Kress & Co.,

ee eee eee ewes 15

Associated General Contractors

of California, Inc. v. City and

County of San Francisco,

eee 16

Breiseno v. Central Technical

Community College Area,

Fae ae BO ee Ge TOO og gc kc kesoess 13

Carlson v. Green,

Gy Wee IS v5 kb 0s ae ok ce as Sw htae ke 16

City and County of San Fran

cisco v. Fair Employment and

Housing Comm’n, 191 Cal. App.

I Es ing bb eo tae a ee ed 4,8

City of Richmond v. J. A.

CrosonCo., U.S. _,

8 res ere ee 11,14

Connor v. Finch,

ec awe wee bee bn 16

Cooperrider v. San Fran-

cisco Civil Service Comm'n,

Pe Gay Ms ID COED o-oo cb o-6 ce os ww otlb'n 16

Delta Airlines v. August,

co Os I RE a AE a eo eae Re 15

TABLE OF AUTHORITIES- Continued

Cases Page(s)

Duignan v. United States,

py 2 A: errr es os ee ees 15

Fay v. Noia, 372 U.S. 391 (1963) ......-----+e0-- 13

Fontaine Davis, et al. v. City

and County of San Francisco,

CO 6 kG he ce ee eta eee eee ees 2,4,13

Graver Tank Mfg. Co. v. Linde Air

Products Co., 336 U.S. 271 (1949) ..........--6--. 19

Hammon v. Barry,

Be ei oe A) er eee ee 16

Hazelwood School Dist. v.

United States, 433 U.S. 299

CPN sa is ee a ee A ee EOE 11,16

Herb v. Pitcairn, 324 U.S. 117

i... BRRPEPT OCCT Ee TCR eee e ee 13

Higgins v. City of Vallejo,

tg wy BE. Lo Sj rere ee 17

Johnson v. Transportation

Agency, Santa Clara County,

__ US. __, 107S. Ct. 1442

Local 28 of Sheet Metal

Workers Int’] Assn. v. EEOC,

rg EG eee gece oe ae er 20

TABLE OF AUTHORITIES- Continued

Cases Page(s)

Local 93, Int’l Assn. of

Firefighters v. City of Cleveland,

Cee es Ee EE 2x nn SS Wire 6 en a wk Se 10,20

Officers for Justice v. Civil Service Comm'n,

688 F.2d 615 (9th Cir. 1982), cert

denied, sub. nom. Bird v. Civil Service

Comm’n of City and County of San Francisco,

ae por ane 10,14

Parklane Hosiery Company v. Shore,

Te Ga SE a ee ka aes eee 4

Romasanta v. United Airlines, Inc.,

717 F.2d 1140 (7th Cir. 1983),

Ronald J. Van Pool, et al. v. City

and County of San Francisco;

San Francisco Fire Department,

and the Civil Service Commission

of the City and County of San

PUOMGIED, Coe OU nce cc wee ceccscceesn 14

Spagnuolo v. Whirlpool Corp., 717

Poe SEO Ge GL EE, nce cck Sbucsuneehaudua 13

Sure-Tan, Inc. v. N.L.R.B.,

467 U.S. GES CISD) ww ccc cc ccc cccccccsccccee 16

United States v. City and County of

San Francisco, No. C-84-7089 MHP ............... 3

vi

TABLE OF AUTHORITIES- Continued

Cases Page(s)

United States v. City and

County of San Francisco,

656 F. Supp. 276 (N.D. Cal.

as SO ee SS up's 9.gace ee 6 6 08 e608 4,9

United States v. Paradise,

__US. __, 107 S. Ct. 1053

NE ad aS ack oa Ae ele 0 oe 0 06 10,11,12,20

United Steelworkers of

America v. Weber,

Ge, OED v6 wc ccccccccsseesrvcacess 12

Wards Cove Packing Co. v.

Atonio, US.__,

7. |. ees eee ee ee ek 16

Western Addition Community

Organization ("WACO") v.

PL, PPNENEED dc wesccccccacsevesseess l

Western Addition Community

Organization ("WACO") v.

Alioto, 330 F. Supp. 536

CO EE ea re ae 2,6

Western Addition Community

Organization ("WACO") v.

Alioto, 340 F. Supp. 1351

re ee Cees eac cease ¢0en a 6a l

Western Addition Community

Organization ("WACO") v.

Alioto, 360 F. Supp. 733

CCE ceutcnecedeabees eee awa coon

vii

TABLE OF AUTHORITIES- Continued

Cases Page(s)

Western Addition Community

Organization ("WACO") v.

Alioto, 369 F. Supp. 77

(N.D. Cal. 1973), appeal dismissed as

moot, 514 F.2d 542 (9th Cir.), cert.

denied, 423 U.S. 1014 (1975) .. 1... cc eee 1,6

Williams v. City of New Orleans,

Tae © .oe 1554 GO Cit. ISRO) 0. cee w neces 16

Wygant v. Jackson Bd. ot Education,

ee ee eee 10,11,21

Constitutional Provisions

United States Constitution,

Fourteenth Amendment Section ................. 10

Statutes

California Fair Employment

and Housing Act, Cal. Govt.

Sper TL) fs bos of a'e a 4 eb 06 6 OR ae 4

Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e,

Sanka cana ees dan eek ee eee 6 obs ade 3,10,15

og ee ee eee ere ee Tee ee l

Ce ee be Alaa bo ba eee se ces ee eee eee l

TABLE OF AUTHORITIES- Continued

Cases Page(s)

Other Authorities

Stern, Appellate Practice in

ey OE GLD Ceiba we ree au eawes 13

Uniform Guidelines on

Employee Selection Procedures,

SG RE oe cc tec ces et seecsaes }

eG a's 6 o 6. d-5'0'6 0-3 God a ke ee oe 18

DEL as os Gb 0b 0 6s 0 0 oe 488 a 1%

oF ae ee ee ere rer a 5

STATEMENT OF THE CASE

A. Proceedings Below

The petition in this case represents a last gasp challenge to a

Consent Decree that brings to a close, after a eighteen year period

of virtually continuous litigation, minority and female challenges

to the employment practices utilized by the San Francisco Fire

Department (SFFD).'

1 As stated by the District Court, “this litigation must be understood in

conjunction with an earlier suit, Western Addition Community Organization

[WACO] v. Alioto, C 70-1335 WTS...” App. to Pet. for Cert. ("Pet. App.") 31a.

The first challenge to SFFD’s employment practices occurred in 1970, in Western

Addition Community Organization (WACO) v. Alioto, No. C-70-1335-WTS. It

was a challenge, under 42 U.S.C. §§ 1981 and 1983, to the 1968 entry level

examination. This action filed on June 24, 1970, resulted in a series of opinions

that invalidated the entry level procedures for the SFFD for a period cf five

years. Initially, the District Court found that the challenged 1968 test had an

adverse impact on minorities and had not been shown to be job related. See

WACO vy. Alioto, 330 F. Supp. 536, 539-40 (N.D. Cal. 1971).

Pursuant to the court’s ruling, a new examination was developed and

administered in the fall of 1971. That examination was again challenged by the

plaintiffs in the WACO action. Once again the District Court held that the

examination had adverse impact, and there was no showing that the examination

was job related. The use of this examination and the resuiting list of eligibles

was therefore enjoined. See WACO v. Alioto, 340 F. Supp. 1351, 1356 (N.D.

Cal. 1972).

In 1973, the District Court was again presented with the results of an entry-

level examination. This examination also had adverse impact. Once more there

was no showing that the examination was job related. At that point, after having

been presented with three unsuccessful attempts to construct a valid entry level

examination, the court ordered defendants to validate any entry level examination.

See WACO v. Alioto, 360 F. Supp. 733, 740-41 (N.D. Cal. 1973).

Finally, in June of 1973, the District Court concluded, "The [Civil Service]

Commission’s dilatoriness in these matters and apparent stubborn insistence upon

arguments and alternatives which this court has repeatedly found unacceptable,

have created an intolerable situation... .". WACO v. Alioto, 369 F. Supp. 77,

80 (N.D. Cal. 1973), appeal dismissed as moot, 514 F. Supp. 542 (9th Cir.),

cert. denied, 423 U.S. 1014 (1975). As a result, the court ordered one-for-one

hiring of minorities and Whites until the list of minority eligibles was exhausted.

Id. at 80-81. 2 (footnote continued on following page)

The challenged Consent Decree resolves two actions that

contested long standing discriminatory hiring practices, promo-

- tional practices and terms and conditions of employment. The first

case is Fontaine Davis, et al. v. City and County of San Francisco,

No. C-84-1100 MHP, and it was filed on March 9, 1984. That

action challenged the legality of the 1978 lieutenants examination,

the 1982 entry level examinations, and the 1984 promotional

examinations; it has only two sets of parties, plaintiffs Fontaine

Davis, et al. and defendants City and County of San Francisco, et

al. The challenged Consent Decree resolved all claims for relief

requested in this action. Pet. App. 80a. No valid notice of appeal

was ever filed with regard to this action; indeed, no party inter-

vened in this action.? By order-dated November 2, 1984, the

District Court dismissed the part of the action regarding challenges

to the entry level and promotional examinations as premature, and

held the rest of the action in abeyaiice, including the challenge to

the 1978 lieutenants examination. On November 11, 1985, the

District Court reinstated this action, and on June 2, 1986, it

The active phase of the WACO litigation was terminated by the entry of a

consent decree on May 17, 1977. This decree acknowledged that plaintiffs had

made out prima facie cases of race and national origin discrimination. It

acknowledged that the City and County of San Francisco had repeatedly failed to

show that the examinations were job related. It also set forth guidelines for the

i976 and subsequent entry level examinations. More importantly, the decree

provided for a one year residency requirement as a prerequisite for any applicant

for a position with the SFFD.

Pursuant to the WACO decree, another entry level examination was given in

1976, and that examination also had a clear adverse impact on Blacks. A

challenge to the 1976 eligibles list was lodged solely under the WACO consent

decree, but that challenge was rejected because the court determined that, while

the examination had an adverse impact against Blacks there was no adverse

impact against “minorities” in toto. WACO v. Alioto, No. C-70-1335 WTS,

Memorandum and Order, June 9, 1978, p.3.

? Local 798 sought intervention in this action, but the District Court denied

its intervention without prejudice to Local 798 seeking intervention at the remedy

stage of the action on August 20, 1984. Local 798 never sought intervention in

this action again.

consolidated this case with United States v. City and County of San

Francisco, et al., No. C-84-7089 MHP.

The second action is United States v. City and County of San

Francisco, No. C-84-7089 MHP. This action was a classic pattern

and practice action under Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e, et seg., as amended. Intervention was granted

solely in the second action to plaintiff/intervenors Fontaine Davis,

et al., and two defendant/intervenors.’ Indeed, the petition before

this Court springs solely from Local 798’s involvement as an

intervenor in this second case.‘

Based on plaintiff-plaintiff/intervenors Fontaine Davis, et al.’s

motion, the District Court enjoined the use of the 1982 entry level

examination to establish a list of eligibles for the SFFD on

February 12, 1986.° The District Court bifurcated the trial of

both actions to provide that challenges to the invalidity of the 1982

entry level examination, and the 1984 lieutenant and fire inspector

examinations, would be tried first in November, 1986. The other

issues were to be tried at a later date. On October 23, 1986, in

open court, defendants City and County, et al. conceded the

invalidity of the challenged examinations, and all lists of eligibles

> The second defendant in intervention, San Francisco Citizens for the Merit

System, et al., sought to withdraw from the action and was allowed to withdraw

on May 25, 1988. Except for a couple of cameo appearances since its withdraw-

al from the case, it has ceased to function as a party in either of these consolidat-

ed actions.

* Two appeals that ostensibly challenged the Consent Decree entered by the

District Court were voluntarily dismissed in the Court of Appeals for the Ninth

Circuit. The United States voluntarily dismissed its appeal on January 30, 1989.

Likewise, certain individual members of the San Francisco Fire Department who

were not parties to either action but who claimed to be adversely affected by the

entry of the Consent Decree voluntarily dismissed their appeal in the Ninth

Circuit on December 5, 1988.

° Plaintiffs-plaintiff/intervenors later successfully moved for partial summary

judgment establishing the fact of adverse impact of the 1982 entry level

examination on Blacks and women.

that had been developed from the challenged examinations were

subsequently cancelled.

The District Court then requested the parties to attempt to settle

the actions, and when no settlement could be reached, Fontaine

Davis, et al. moved for summary judgment on the issue of the

validity of the challenged examinations in both actions. The

United States filed a similar motion for summary judgment soon

thereafter. These motions were granted on February 26, 1987.

See United States v. City and County of San Francisco, et al.,

Fontaine Davis, et al. v. City and County of San Francisco et al.,

656 F.Supp. 276 (N.D Cal. 1987) Pet. App. 104a - 139a.

The District Court entered injunctive relief, and it allowed for

the interim race- and gender-conscious hiring of entry level

firefighters -- provided that the SFFD so requested, and the SFFD

so requested. Pet. App. 130a.

The District Court set the remaining matters for trial on

November 10, 1987. Prior to trial on these matters, the California

Court of Appeal for the First Appellate District issued an opinion

in City and County of San Francisco v. Fair Employment and

Housing Commission, 191 Cal. App. 3d 976 (1987), review

dismissed (8/13/87). This case established the 1978 lieutenants

examination to be invalid under the California Fair Employment

and Housing Act, Cal.Govt.Code § 12940 et seq. Fontaine Davis

et al. had challenged said examination in its complaints, and, based

on Parklane Hosiery Company v. Shore, 435 U.S. 322 (1979),

they moved for and were granted summary judgment on this issue

in open court on October 21, 1987.

The parties had been involved in settlement negotiations during

this time period, and immediately before the scheduled second trial

date, defendants City and County of San Francisco et. al. and

Fontaine Davis et al. entered into a proposed Consent Decree that

would settle all of the remaining litigation’ which was lodged with

the Court.

A fairness hearing was held by the District Court on December

22, 1987, pursuant to Rule 23(e) of the Federal Rules of Civil

Procedure, where testimony was allowed and over one hundred

written comments were received. In a 62-page Order dated June

10, 1988, the District Court approved the Consent Decree. Local

798 and the United States filec timely notices of appeal.

On May 31, 1988, Local 798 filed a Motion with the Ninth

Circuit seeking to enjoin the implementation of the Consent

Decree; that requested relief was denied by unpublished Order

dated July 18, 1988. Local 798 did not seek relief from this Court

after that denial. On or about October 15, 1988, Local 798 filed

a second request with the Ninth Circuit to enjoin the enactment of

one provision of the Consent Decree. That requested relief was

denied, and again Local 798 did not seek relief from this Court

after the second denial of injunctive relief. On December 4, 1989,

the Ninth Circuit affirmed the District Court’s approval and entry

of the Consent Decree. On May 9, 1990, the Ninth Circuit denied

Local 798’s petition for rehearing and rejected its suggestion for

rehearing en banc.

B. Facts Justifying Entry Of The Consent Decree

SFFD has a long history of blatantly excluding minorities,

especially Blacks, and women from its ranks. No Blacks were

hired by SFFD prior to 1955. SFFD did not hire another Black

until 1967. SFFD had only 5 Black employees until 1971. In

1972, 15 Blacks were hired to be trained to become firefighters

6 Section VI of the Consent Decree provided for a mechanism to resolve the

claims of racial harassment and other types of racial discrimination. Pursuant to

that provision, the District Court heard five days of testimony; then settlement

was reached for all but three of the remaining 34 claimants, and the City and

County agreed to pay damages in the aggregate amount of $962,000 to 31 of

those claimants.

under the auspices of a federal training program entitled the Fire

Service Technicians program, but no other Blacks were hired until

1974.’ During this period of time, the SFFD had a staffing level

of 1800 uniformed firefighters.

The exclusion of women from employment opportunities in

SFFD was even more blatant. Women were not even allowed to

apply for positions until 1976. No woman passed the physical

agility test until 1982, and, after 1982, no woman had a high

enough score to be eligible for hiring. A more compelling

instance of the “inexorable zero” is hard to imagine. The first

women finally entered SFFD in 1987, pursuant to the District

Court’s order authorizing interim relief.

At the time the lawsuits were filed, SFFD employed only 79

Blacks, 89 Hispanics, 34 Asians and no women out of a work

force of 1408.

In the period since 1971, the United States District Court for the

Northern District of California has found that nine SFFD entry-

level and promotional tests had adverse impact on minorities

and/or women and that three were invalid. The California Fair

Employment and Housing Commission found a lieutenants

examination invalid, and the City has conceded the invalidity of

four more tests. This astonishing record is so extraordinary that

the District Court has referred to SFFD’s “now legendary inability

to devise entry-level and promotional tests that are valid under

Title VII." Order Granting Injunction, Aug. 25, 1988.

Thus, from 1968 through 1982, no SFFD entry level exami-

nation has been found to be job related, although each of the

examinations had an adverse impact on protected classes.

7 The 1974 date is significant because it is the year in which the District

Court, in Western Addition Community Organization [WACO] v. Alioto, No. C-

70-1335 WTS, ordered one-for-one hiring relief. See WACO vy. Alioto, 369

F.Supp. 77, 81.

Another entry-level examination under the auspices of the WACO

Consent Decree was given in 1982. It also limited the candidates

for this examination to residents of the City and County of San

Francisco. This examination had the all too familiar outcome vis-

a-vis Blacks, Asians and Hispanics. The examination had two

parts, a written verbal ability test and a physical agility test. The

written component had an adverse impact on Blacks, Hispanics and

Asians. The physical agility component also had an adverse

impact on women, Hispanics and Asians.

Plaintiffs-plaintiff/intervenors Fontaine Davis, et al. in the

instant litigation challenged the 1982 entry-level examination. The

District Court determined that both components of the examination

had an adverse impact on protected groups and enjoined the use of

the list of eligibles that those components produced. The District

Court also entered summary judgment against all defendants and

petitioner Local 798 with regard to this examination. That

determination by the District Court was never challenged by any

party.

As of November, 1987, the City had still not developed a valid

entry level examination, and over 55% of all minority firefighters

had been hired pursuant to the WACO one-for-one hiring order.

Indeed, a vast majority of SFFD’s current minorities have been

hired based upon court-ordered procedures.

SFFD fills all promotional positions from within and that is done

by examination. SFFD has 352 permanent supervisory positions,

and as of the date of the District Court’s opinion approving the

Consent Decree, none of these positions was held by a woman,

none was held by an Asian, only 4 were held by Blacks, and 16

were held by persons identified as being Hispanic. Thus, the

percentage of minority participation in the supervisory ranks was

less than 6%. Moreover, these minorities were concentrated in the

first level supervisory rank, H-20 Lieutenant."

The first examination for a promotional position that an over-

whelming majority of Blacks and other minorities were eligible to

take was given in 1978. Ten Black firefighters who took the 1978

H-20 examination challenged it, alleging violations of both the

California Fair Employment and Housing Act and Title VII. The

California Court of Appeal for the First Appellate District

sustained the California Fair Employment and Housing Commissi-

on’s determination of invalidity in City and County of San

Francisco v. Fair Employment and Housing Comm'n, 191 Cal.

App. 3d 976 (1987). The Court of Appeal determined that the

examination had an adverse impact on Blacks and that the City had

not established that the examination was job related. id. at 990.

That determination became final on August 13, 1987.

After this ruling, the District Court entered summary judgment

establishing the invalidity of the 1978 H-20 examination on the

basis of collateral estoppel. No appeal was taken from that

determination.

The City administered new promotional examinations for the

positions of H-20, H-30, H-4, and H- in 1984.° The results of

these examinations were contested in the both of the lawsuits. At

the eleventh hour, after extensive pretrial activity, the City

declared in open court that it would not defend the validity of two

of the 1984 promotional examinations, and the Civil Service

Commission cancelled the results of the H-20 and H-4 examina-

tions as well as the previously described entry level examination.

When settlement negotiations broke down, plaintiffs in both actions

8 The breakdown of the supervisory ranks in fire suppression at the time of

the filing of the suits and entry of the Consent Decree was as follows: Chief of

the Department, Deputy Chief, Assistant Chief, Battalion Chief, Captain and

Lieutenant.

9 H-20 is the first level supervisor, Lieutenant; H-30 is for the second level

supervisor, Captain; H-4 is the position of Fire Inspector for the Bureau of Fire

Prevention; and H-6 is the position of Inspector there.

moved for summary judgment, and the District Court found that

these tests had adverse impact on minorities and granted partial

summary judgment on this point.

Thus, three sets of promotional examinations have been deter-

mined to have adverse impact and to be invalid under various civil

rights statutes. The time period spanned the years from 1978 until

the entry of the Consent Decree at issue here.

To summarize, defendants truly have a "sorry history” of test

discrimination. United States v. City and County of San Francis-

co, 656 F. Supp. 276, 287. Defendants’ “unenviable record of

behavior reaching back nearly two decades,” id., includes six entry

level and three promotional tests which have been found to have

adverse impact on protected groups. Three of these tests have

been found invalid by the District Court, one has been found

invalid by the California Fair Employment and Housing Commis-

sion, and defendants have conceded the invalidity of four others in

open court. After "twenty years of indifference and failure to

produce valid tests," Memorandum and Order Approving Consent

Decree, Pet. App. 71a, it is no wonder the District Court labelled

defendants’ testing record “legendary,” and that both the District

Court and the Ninth Circuit determined that the entry of the

challenged Consent Decree is warranted.

REASONS FOR DENYING THE WRIT

As is evident, the Consent Decree at issue is the result of years

of arduous, hard-fought litigation. The relief it provides is

necessitated by the City's longstanding failure “to come up with

valid employee selection procedures despite court orders, an earlier

consent decree and a series of promises,” Pet. App. 71a, as well

as the “long history and extensive facts demonstrating past

discrimination,” Pet. App. 77a. Because the Decree meets settled

“fairness” requirements, and clearly comports with the require-

ments of the equal protection clause, U.S. Const. amend. XIV, §

1, as well as Title VII, petitioner's challenges to it are meritless.

Consent decrees must be found by the district court to be

“fundamentally fair, adequate and reasonable.” Officers for Justice

v. Civil Service Comm'n., 688 F.2d 615, 625 (9th Cir. 1982),

cert. denied sub. nom. Byrd v. Civil Service Comm'n of City and

County of San Francisco, 459 U.S. 1217 (1983). In this instance,

both the District Court and the Ninth Circuit found this Decree to

satisfy this standard. Pet. App. 65a - 69a.

This Consent Decree, moreover, fits well within the substantive

parameters established by this Court for an employer's voluntary

adoption of affirmative, race-conscious relief. It is established that

governmental entities may utilize race-conscious remedies needed

t© correct past and present discrimination, United States v.

Paradise, __ U.S. __, 107 S. Ct. 1053 (1987), but that a

municipality's affirmative action plan must pass both constitutional

and Title VII muster, Local 93, Int'l Assn. of Firefighters v. City

of Cleveland, 473 U.S. 501, 517 n.8 (1986).

From the standpoint of the equal protection clause, the remedial

purpose of the Decree is one in which “[t}he government unques-

tionably has a compelling interest,” Paradise, 107 S. Ct. at 1065.

In equal protection analyses of voluntary affirmative action

programs, this Court has looked to whether there exists “a strong

basis in evidence . . . that remedial action was necessary.”

Wygant v. Jackson Bd. of Education, 476 U.S. 267, 277 (1986)

(plurality opinion of Powell, J.). Here, where all Department hir-

ing is entry-level and non-skilled, this “strong basis in evidence”

or “firm basis” test may be met by proof of statistical imbalances

sufficient to make out a Title VII prima facie discrimination case,

see, e.g., Wygant, 476 U.S. at 292 (O'Connor, J., concurring);

City of Richmond v. J. A. Croson Co., U.S. _, 109 S. Ct.

706, 725 (1989); Hazelwood School Dist. v. United States, 433

U.S. 299, 307-08 (1977). Here, as the District Court found and

the City’s “legendary” inability to promulgate lawful testing

procedures and its failure to correct the racially hostile environ-

ment in the Department, these disparities certainly satisfy the

“strong basis in evidence” test.

Moreover, under the analysis established in Paradise, the Con-

sent Decree is “narrowly tailored” to its purposes. The record

amply demonstrates that the affirmative relief the Decree provides

is plainly necessary; the “sorry” history of the Department's in-

ability to correct its longstanding legacy of discriminatory testing

provides no alternative. As the District Court noted:

Affirmative remedies are required because the City has proved

unresponsive to its duties under Title VII and the injunction of

this court to come up with valid employee selection proce-

dures. Affirmative race-conscious relief is the only effective

means to assure the enjoyment of equal employment opportu-

nity and to prevent further delays by the City. [Citations

omitted. ]

Pet. App. 70a. Furthermore, the terms of the Decree are highly

flexible, as they set no quotas for affirmative hiring, only goals

expressly contingent upon the availability of qualified personnel.

See, e.g., Pet. App. 68a, 74a, 76a, 83a. The Decree is tempo-

rary; as amended by the Court of Appeals, it will terminate as

soon as its purposes have been attained, but in any event no later

than seven years from its entry. Pet. App. 16a. Its long-term

hiring goals are tied to the proportion of minorities in the San

ll

Francisco work force, Pet. App. 82a - 83a, with a slightly higher

short-term hiring rate of the sort previously upheld by this Court,

see Paradise, 107 S. Ct. at 1071. Lastly, the Decree does not

unacceptably burden innocent third parties; indeed, far from

requiring that non-minorities be laid off or barring their advance-

ment, the Decree has already resulted in 36 promotions (out of the

81 total authorized by the Decree) for White males. Pet. App.

18a.

Likewise, for many of the same reasons, the Consent Decree

fulfills the requirements of Title VII. The statistical disparities

within the Department with respect to minorities and women bear

out the “manifest imbalance” required of voluntary affirmative

action programs by Johnson v. Transportation Agency, Santa

Clara County, __ U.S. __,, 107 S. Ct. 1442, 1451-52 (1987).

And, under the standards first set out in United Steelworkers of

America v. Weber, 443 U.S. 193, 208 (1979), the Decree neither

“unnecessarily trammels” the interests of non-minority employees

or absolutely bars them from job opportunities, nor is it intended

to maintain a racially balanced workforce. As to the first of these

considerations, the Decree most assuredly did not mandate “the

discharge of white workers and their replacement with new black

hires,” id.; moreover, because the examinations at issue were

invalid, no “legitimate firmly rooted expectations” as to hiring or

promotion could have been disturbed, Johnson, 107 S. Ct. at

1455. And, as already explained, White male firefighters have

been benefitted by the promotions provided for by the Decree, and

remain eligible for future promotions as well. As to the second of

the concerns posed in Weber, the Decree’s temporary nature

proves that it is not aimed at maintaining a particular racial

balance.

As a threshhold matter, this Court should not grant the requested

writ because, regardless of the outcome of this action, the Consent

Decree at issue would still be enforced and enforceable."° Action

by this Court would be analogous to a situation in which adequate

State grounds existed, and thus one in which the Court would in

effect be rendering an advisory opinion. See, e.g., Herb v.

Pitcairn, 324 U.S. 117, 125-26 (1954) (Court will not review state

court judgments resting on adequate and independent state grounds;

if same judgment were subsequently rendered by state court after

Court corrected its views of federal laws, Court review could

amount to no more than advisory opinion); see also Fay v. Noia,

372 U.S. 391, 428-30 (1963).

In addition, another preliminary consideration lies with petition-

er’s apparent central concern — the promotion of individuals to the

rank of lieutenant pursuant to the Consent Decree. Since the entry

of the Decree on June 10, 1988, all but one of these lieutenants

have become permanent for all purposes in the Department. Thus,

action by this Court could upset the supervisory structure of the

Department. Indeed, such action would be palpably unfair and

inequitable where it would impact upon incumbents. See Romas-

anta v. United Airlines, Inc., 717 F.2d 1140 (7th Cir. 1983) cert.

denied, 466 U.S. 944 (1984) (retroactive seniority denied because

of adverse impact on incumbents and members of protected

classes); Brieseno v. Central Technical Community College Area,

739 F.2d 344 (8th Cir. 1984) (reinstatement denied where would

affect incumbent); cf. Spagnuolo v. Whirlpool Corp., 717 F.2d

114, 119 (4th Cir. 1983) (reinstatement order reversed under

ADEA because it would require displacement of innocent incum-

bent)."’

10 As set forth above, no party successiully intervened in the Fontaine Davis,

et al v. City and County of San Francisco No. C-84-1100 MHP action.

Therefore, there is and can be no challenge to the Consent Decree in that matter.

It is axiomatic that only a party may appeal from a judgment or order of the

district court, see Stern, Appellate Practice in the United States (2d ed.) 74

(1989).

11 Sumilarly, this case may be considered to be moot. The appointment of the

81 leutenants under the Consent Decree in essence moots out petitioner's

contentions. This is 4 facial attack on a consent decree; it is not a case where

13

Petitioner’s specific contentions are addressed separately below.

I. The Court Of Appeals Applied The Proper Standards

Of Review, Including Strict Scrutiny Analysis, To The

District Court’s Approval Of The Consent Decree.

Petitioner disingenuously would persuade this Court that the

Ninth Circuit failed to apply "strict scrutiny” analysis in its

approval of the Consent Decree, as required by Croson, 109 S. Ct.

at 719-20. This assertion, however, is not only meritless; it is

deceptive.

In its carefully structured opinion, the Court of Appeals first

considered the "fairness" aspect of the Consent Decree - i.e., the

standard of review applicable under Fed.R.Civ.P. 23(e) pertaining

to the settlement of class actions.'* Citing to Officers for Justice,

the Court noted that the District Court must find the proposed

settlement to be "fundamentally fair, adequate and reasonable." It

also observed that the District Court’s approval may only be re-

versed given "a strong showing that [such approval] was a clear

abuse of discretion.” Pet. App. 9a - 10a.

Having concluded that the District Court did not abuse its

discretion in finding the Consent Decree to be fair, the Court of

Appeals then proceeded to the "constitutional and statutory

considerations” step of its legal analysis, finding that the Consent

there have been complaints that petitioner has been discriminated against.

Instead, petitioner seeks to attack the race- and gender-conscious remedies

afforded in the Consent Decree. Thus, there is no question of there being any

continuing remedy to be provided to petitioner. A more appropriate challenge

to the alleged discriminatory impact of the Consent Decree is presently before the

United States District Court for the Northern District of California in an action

styled Ronald j. Van Pool, et al. v. City and County of San Francisco, San

Francisco Fire Department, and the Civil Service Commission of the City and

County of San Francisco, No. C-89-4304 MHP.

12 Fed.R.Civ.Pro. 23(e) provides in relevant part that "{a] class action shall

not be dismissed or compromised without the approval of the court.”

14

Decree met the "strict scrutiny” test required by the equal protec-

tion clause.” Pet. App. lla - 16a. Indeed, the Court of Appea-

ls’ step-by-step equal protection analysis cited with approval the

District Court’s finding of a “compelling governmental purpose"

behind the City’s adoption of the Decree. Pet. App. 12a.

Further, it specifically found there was sufficient evidence to

justify the relief granted and that, with the exception of the fixed

seven-year duration of the Consent Decree, the Decree was “nar-

rowly tailored” to meet its remedial purposes. Pet. App. 13a - 16a.

The undisputed record therefore makes plain that the Court of

Appeals did independently apply a strict scrutiny analysis in

affirming the District Court’s approval of the Consent Decree.

Thus, the question presented by petitioner to this Court is wholly

illusory and undeserving of review.

II. Even If The Question Of The Relevant Labor Market

Were Appropriate For Decision By This Court, It Is

Undisputed That The City And County Of San Francis-

co Was The Department’s Labor Market During The

Period In Question, And Therefore The District Court

Correctly Used It As Such.

It is well-settled that, ordinarily, this Court does not decide

questions not raised or involved in the lower court. See, e.g.,

Duignan v. United States, 274 U.S. 195, 200 (1927) ("It is only

in exceptional cases coming here from the federal courts that

questions not pressed or passed upon below are reviewed");

Adickes v. S. H. Kress & Co., 398 U.S. 144, 147 n.2 (1970)

(Court refused to consider question raised in petition for certiorari

but not before Court of Appeals); Delta Airlines v. August, 450

U.S. 346, 362 (1981) (question nct raised in Court of Appeals not

properly before the Court). Exceptions to this rule will be made

Only in unusual situations, such as where an error if not reviewed

13 At this point in its opinion, the Court of Appeals also found the Consent

Decree to fall within the requirements for voluntary race-conscious remedies

under Title VII. Pet. App. 17a - 19a.

15

would "seriously affect the fairness, integrity or pubiic reputation

of public proceedings," Connor v. Finch, 431 U.S. 407, 421 n.19

(1977), or where a change in controlling law has occurred after the

filing of a petition for certiorari, see, e.g., Sure-Zan, Inc. v.

N.L.R.B., 467 U.S. 883, 896 n.7 (1984), or where the respondent

has not objected to its decision and the issue is properly raised in

another petition for certiorari currently pending before the Court,

see Carlson v. Green, 446 U.S. 14, 17 n.2 (1980).

As is clear from the briefing before the Court of Appeals, all

parties including petitioner took it as assumed that the relevant

labor market for statistical comparisons was that of the City and

County of San Francisco.“ This is hardly surprising given the

undisputed fact that, as the District Court pointed out in its June

10, 1988 order, "[rJesidence in the City has always been a

prerequisite for employment in the SFFD .. ." Pet. App. 71a.

As such, this issue was neither joined below nor considered by the

court below.

In any event, petitioner’s citations to Hazelwood; Wards Cove

Packing Co. v. Atonio, __ U.S. __, 109 S. Ct. 2115 (1989);

Associated General Contractors of California, Inc. v. City and

County of San Francisco, 813 F.2d 922 (9th Cir. 1987); Williams

v. City of New Orleans, 729 F.2d 1554 (Sth Cir. 1984); and

Hammon v. Barry, 826 F.2d 73 (D.C.Cir. 1987), lend it no

support. These cases simply stand for the well-established

proposition that the proper labor market for comparison is that

which the employer actually utilized. As noted above, it has never

been disputed in this litigation that, at all relevant times, there was

a San Francisco residency requirement for applicants for positions

in the Department.

Petitioner cites Cooperrider v. San Francisco Civil Service

Comm'n, 97 Cal. App. 3d 495 (1979), in support of its assertion

that the San Francisco "standard metropolitan statistical area” is the

14 See, e.g., Appellant's Opening Brief at 41-42; Brief of Appellee City at 20

and 28; and Brief of Appeilees Davis, et al. at 24 and 46-47.

16

proper labor market for comparison purposes, despite the fact that

a San Francisco residence requirement has historically applied to

Department applicants..° As is readily apparent, however,

petitioner in effect asks this Court to adjudicate the wholly separate

and fact-bound issue of whether the Department’s ongoing

residency requirement is unlawful as claimed. This Court should

decline that invitation.

Because this question was not raised in the court below, because

the applicable law is settled, and moreover, since it is undisputed

that the City and County of San Francisco was in fact the labor

market from which applicants came during the relevant time

periods, this question is not appropriate for review by this Court.

III. The Consent Decree On Its Face Requires That Only

Qualified Firefighters Be Hired Or Promoted.

Petitioner baldly asserts that the Consent Decree required or

permitted the promotion of "unqualified" individuals to the rank of

lieutenant "based upon the scores achieved by these firefighters on

an admittedy [sic] invalid examination [i.e., the 1984 lieutenant’s

examination]." Pet. for Cert. 21. This contention is misleading

and specious, and does not merit review by the Court.

On its face, the Consent Decree states:

The hiring and promotional objectives set forth herein are

goals rather than quotas. Nothing herein shall be interpreted

to require the hiring or promotion of unqualified persons.

Pet. App. 83a. Moreover, in its Memorandum and Order approv-

ing the Decree, the District Court noted that its goals “are

15 The Ninth Circuit recently upheld the affirmative action plan of another

California municipality that used an identical city residency requirement. Higgins

v. City of Vallejo, 823 F.2d 351 (9th Cir. 1987), cert. denied, U.S. , 109

S. Ct. 1310 (1989).

17

expressly subject to the availability of qualified applicants,” Pet.

App. 68a; that "[pJast performance and work history wilil also be

considered in making the promotion decision," Pet. App. 74a; and

that “[aJll candidates must be qualified; the decree does not

mandate, nor does it permit, blind hiring.” Pet. App. 76a.

Consistent with this, counsel for the City assured the District Court

at the December 22, 1987 fairness hearing that the Department

would undertake an

[independent assessment of each of the persons who are

promoted pursuant to the decree and will promote only those

persons who are found to be qualified based upon an assess-

ment of their work histories . . . their performance evaluations

and so on.

Transcript of 12/22/88, Fairness Hearing at 32:9 - 14. Because

the Department subsequently determined that all but one of the

firefighters promoted to lieutenant pursuant to the Decree were

qualified by virtue of successfully completing the longstanding

probationary requirements, petitioner’s contention is patently

incorrect.

At bottom, petitioner’s challenge relies solely on the unfounded

assumption that promotional decisions must be made on the basis

of competitive examinations — even in preference to supervisory

evaluations and other work records. This assumption is of course

erroneous. Particularly since the 1984 lieutenants examination was

only one of many factors considered, and was never used to

establish a right to promotion, the question presented simply does

not arise in this case.

Lastly, petitioner’s claim that even the carefully limited use that

was made of the 1984 examination somehow irreparably infected

the promotional decisions that were reached ignores the fact that

the Uniform Guidelines on Employee Selection Procedures, 29

C.F.R. § 1607.1 et seq. (1989), provide that the invalidity of a

selection device is remedied by utilizing it in a manner that

counteracts its unlawful discriminatory effect. 29 C.F.R. §§

18

1607.3B, 1607.5G (1989). In the instant case, where those

minority applicants who scored higher on the examination than

others of their racial group simply gained some advantage in their

individualized, multi-factored promotional decisions, petitioner can

hardly argue that those eventually chosen for promotion were ei-

ther unqualified or invalidly selected.

Because this question rests on questionable assertions of fact

and, moreover, involves no substantial issue of law, it does not

merit this Court’s review.

IV. The District Court Properly Approved The Consent

Decree’s Provision Of Affirmative Relief And, Consis-

tent With This Court’s Precedents, Such Relief Does Not

Maintain Racial Or Gender Balance Within The Fire

Department.

Petitioner relies on the District Court’s statement in its February

26, 1987 order that the injunctive relief contained therein would

not include affirmative race- or gender-conscious remedies, Pet.

App. 128a - 129a, for the proposition that the affirmative relief

later afforded by the Consent Decree is unlawful. This reliance is

entirely misplaced, as it rests on a fundamental misapprehension

of this Court’s clear precedents on this point.

Leaving aside petitioner’s seriously mistaken assertions as to the

extent of unremedied discrimination within the Department prior

to entry of the Consent Decree," it is settled that consent decrees

16 See, e.g., the Court of Appeals’ discussion of the inadequacy of the relief

resulting from the WACO litigation, Pet. App. 13a - 14a. In this connection,

petitioner appears simply to argue its disagreement with the factual findings of the

courts below on this point. However, it is the established practice of this Court

that it “cannot undertake to review concurrent findings of fact by two courts

below in the absence of a very obvious and exceptional show of error.” Graver

Tank Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 275 (1949). Review

should not be granted on the basis of petitioner's fact-bound contention without

an “obvious and exceptional” evidentiary showing plainly lacking here.

19

may provide broader relief than that which the court could have

awarded after trial. Local 93, 478 U.S. at 525-26.

Consistent with Local 93, it is apparent that the District Court’s

statement in its February 26, 1987 order as to the scope of

permissible relief was made in the context of the involuntary

injunctive relief it ordered on that occasion.'’ The court did not

purport to assess the appropriateness of affirmative relief within

the framework of a voluntarily adopted consent decree, since that

was not the question before it that day."* Indeed, in its June 10,

17 Indeed, it is clear that the District Court was using the “persistent or

egregious discrimination” standard applicable to court-ordered affirmative relief

enunciated in Local 28 of Sheet Metal Workers Int'l Assn. v. EEOC, 478 U.S.

421, 445, 475-76 (1986). What is more, as the District Court noted, by the time

the Consent Decree came before the court for approval the record had been

augmented with additional evidence of racial harassment that had occurred since

the court’s previous order, see, e.g., Pet. App. 70a.

18 Petitioner states that “[t]he District Court specifically recognized in its

order of February 26, 1987, that the City’s abandonment of the 1982-83 entry-

level examination and the 1984 promotional examinations eliminated any claim

by the females and minorities who took those examinations that they had been

denied individual employment opportunities in violation of Title VII." Pet. for

Cert. 23 - 24. This is a significant misrepresentation of the District Court's

order. The order was in response to plaintiff-intervenors’ motion for partial

summary judgment based on the City’s cancellation of those examination

procedures. Pet. App. 10Sa - 106a. Pilaintiff/intervenors had argued that the

cancellation of the examinations itself denied minority and women applicants em-

ployment opportunities and perpetuated past discrimination. See, ¢.g., Pet. App.

116a - 123a. Thus, petitioner’s semantic attempt to portray the District Court as

concluding that plaintiff/intervenors’ claims of discrimination had been “elimi-

nated” is patently flawed. Indeed, the court specifically addressed this conten-

tion:

Certain of the defendants suggest as a threshold consideration that since the

City voiuntarily withdrew the examinations prior to any use for hiring

purposes, the absence of a discriminatory result must preclude any finding

of illegal activity and thus bar the award of relief.

(footnote continued on following page)

20

1988 Memorandum and Order approving the Decree, the court

specifically distinguished between the two forms of remedies. Pet.

App. 70a.”

Moreover, contrary to petitioner’s suggestion, the evidence of

discrimination before the District Court more than justified the

affirmative relief contained in the Consent Decree, consistent with

the standards set out by this Court in Johnson and Wygant.

Johnson held that employers implementing voluntary affirmative

action plans “need point only to a ‘conspicuous . . . imbalance in

traditionally segregated job categories’” in order to satisfy Title

VII concerns. Johnson, 107 S. Ct. at 1451. Likewise, Wygant

established that a “strong basis in evidence" may justify such

voluntary policies on equal protection grounds. Wygant, 476 U.S.

at 277-78. The District Court as well as the Court of Appeals

found that both of these tests had been met by the Consent Decree.

Pet. App. 14a - 15a, 17a and 70a.

Petitioner also intimates that the affirmative relief provided by

the Consent Decree is designed to permanently maintain, rather

than simply attain, racial and gender balance within the Depart-

Pet. App. 124a. Rejecting this assertion, the District Court went on to enjoin the

City, inter alia, from unlawfully discriminating against employees or applicants

with the Department, and from using any tests that had adverse impact against

protected groups. Pet. App. 131a. The court also noted that whether or not the

cancellation of the examinations “averted the infliction of compensable injuries”

on applicants was a question that could only be resolved at trial. Pet. App.

12Sa. Thus, petitioner's suggestion that the District Court found plaintiff-

intervenors’ claims to have been “eliminated” is misleading and entirely

fallacious.

19 For this reason, petitioner's reliance upon Local 28 is misplaced. As has

been previously noted, Local 28 involved affirmative, race-conscious relief that

was imposed upon the employer by the court, not a voluntarily-established plan.

Even assuming arguendo that the affirmative relief here had been court-imposed,

however, such relief would have been amply justified. See Paradise, 107 S. Ct.

1053 (court-ordered, race-conscious promotion requirements permissible where

employer had consistently failed to comply with consent decrees and court orders

to remedy past discrimination).

ment. However, the simple facts that the Decree has a temporary,

limited duration, see, e.g., Johnson, 107 S. Ct. at 1456, and that

the promotional remedies petitioner complains of here are of a

“one-time” nature, make the inaccuracy of this claim obvious.”

Because petitioner’s question presents no unresolved issues of

law, review thereof by this Court is unnecessary.

20 Notwithstanding the above, as it is undisputed that labor force parity has

not been attained by the Department in any job category, the claim that the

Consent Decree would function to maintain such parity is unripe and non-

justiciable.

es Ceiba

CONCLUSION

For all of the reasons set forth above, the petition for writ of

certiorari should be denied.

Eva Jefferson Paterson

San Francisco Lawyers’

Committee for Urban Affairs

301 Mission Street, Suite 400

San Francisco, CA 94105

Telephone: (415) 543-9444

Shauna L. Marshall

Equal Rights Advocates

1663 Mission Street, Suite 550

San Francisco, CA 94103

Telephone: (415) 621-0672

Denise Hulett

Mexican American Legal

Defense and Educational

Fund, Inc.

182-2nd Street, Second Floor

San Francisco, CA 94105

Telephone: (415) 543-5598

William C. McNeill, II,

Counsel of Record

Christopher Ho

The Employment Law Center,

A Project of the Legal Aid

Society of San Francisco

1663 Mission Street, Suite 400

San Francisco, CA 94103

Telephone: (415) 864-8848

Dennis Hayashi

Asian Law Caucus, Inc.

468 Bush Street, Third Floor

San Francisco, CA 94108

Telephone: (415) 391-1655

Russell Galloway

Attorney at Law

786 Vicente Street

Berkeley, CA 94706

Telephone: (415) 526-7669

Counsel for Respondents Fontaine Davis, et al.