Petition for Writ of Certiorari — California v. Paige

Supreme Court, Ss.

@) - FILED:

ie: @ 6 SNOV 15 2002

“OPPGE OF THE CLERK

IN THE

Supreme Court of the United States

STATE OF CALIFORNIA, CALIFORNIA HIGHWAY

PATROL, DWIGHT HELMICK, and EDWARD GOMEZ,

Petitioners,

v.

JEFF D. PAIGE, et al.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CouRT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Bitt LOCKYER

Attorney General of the

State of California

Sitvia M. Diaz

Supervising Deputy

Attorney General _

300 South Spring Street

Suite 500

Los Angeles, CA 90013

JoEL M. CoHN

Counsel of Record

CHARLES L. WARREN

W. RANDOLPH TESLIKK, P.C.

AKIN Gump STRAUSS HAUER

& FELD LLP

Robert S. Strauss Building

1333 New Hampshire Avenue, N.W.

Washington, D.C. 20036

(202) 887-4000

WILLIAM A. Norris

MICHAEL C. SMALL

AKIN Gump STRAUSS HAUER

& FeELp LLP

2029 Century Park East

Suite 2400

Los Angeles, CA 90067

Attorneys for Petitioners

177321

_ COUNSEL PRESS

(800) 274-3321 » (800) 359-6859

i

QUESTIONS PRESENTED

1. In a disparate impact case brought under Title VII of

the Civil Rights Act of 1964, may a plaintiff establish liability

by using statistical methods that combine data from events

that occurred in the “pre-liability period” (that is, the period

for which claims would be time-barred under this Court’s ©

decisions in National Railroad Passenger Corp. v. Morgan

and United Air Lines, Inc. v . Evars) with data from events

that occurred within the liability period?

2. When an employer uses significantly different

promotional tests for the significamily different supervisory

ranks in its workforce, may a plaintiff prove disparate impact

using a method of statistical aggregation that compares a

single pool of all test applicants for all positions with a single

pool of all successful promotees?

3. May a plaintiff prove that a challenged employment

practice creates a disparate impact using statistical analyses

that lump all minority groups into a single “non-white”

category for comparison against whites?

oa en a ae

il

LIST OF PARTIES

Respondent, Jeffrey D. Paige, is representative of a

class of all past, present, and future non-white sworn

employees in the California Highway Patrol who have been,

are, or will be discriminated against with regard to the terms

and conditions of their employment because of their race,

including the denial of job assignments, transfers, promotions

and other benefits of an effective affirmative action program

as the result of the operation of current practices.

iti

TABLE OF CONTENTS

Page

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EE tee PREECE TERETE TET X

| BO PS MEET E ETE a CT eee l

Statement Of Furiadiction: 2.5... ..6cie eee e eee. |

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I SIR ko o's vee sede kee ade cdecess 5

ASRS oe ere ee ee 5

B

C. Proceedings On Remand From Paige! .... 7

D

- fv

Contents

The Ninth Circuit’s Apparently Un-

precedented Holding That Plaintiffs May

Use Time-Barred Data To Prove Disparate

Impact Creates A Broadly Applicable

Rule That Conflicts With This Court’s

Decisions And The Decisions Of Other

CS SE I on FENN

A. Assessing Disparate Impact Using Data

From Time-Barred Examinations

Conflicts With This Court’s Decisions

Refusing To Give Legal Effect To

Employment Decisions That Were Not

Timely Challenged ..3.....ccccsnsss

B. The Ninth Circuit’s Decision Conflicts

With Ste. Marie v. Eastern Railroad

Ass'n, 650 F.2d 395 (2d Cir. 1981)

CG Bed asian ok ELIS

The Ninth Circuit’s Holding Permitting

The Aggregation Of Data From Different

Examinations And Ranks Defies The

Language Of Title VII And Logic Of This

Court’s Precedents, Creates A Circuit

Conflict, And Is Statistically Indefensible . .

Page

13

13

19

21

Vv

Contents

Page

Ill. The Ninth Circuit’s Holding Permitting The

Indiscriminate Aggregation Of Data From

Different Minority Groups Runs Counter To

This Court’s Jurisprudence And Presents Yet

Another Obstacle To The Proper Adjudication

OF Tie VE CHG: sooo ok arsee anise vo 2s 27

eS Sen. ss os aces ok SOR eens 29

vi

TABLE OF CITED AUTHORITIES

Page

Cases: .

Bouman v. Block,

940 F.2d 1211 (9th Cir. 1991) ............... 14, 21

City of Richmond vy. J.A. Croson Co.,

GES Tes GENET he ebb eae Sa ek he Fence bees 28

Cooper v. Southern Co., p

205 F.R.D. 596 (N.D: Ge: JOON) oo. eccccces 26

Cox v. City of Memphis,

2350 F.36 199 GEG Cor, JOGO) oc ccccscccnces 21

Csicseri v. Bowsher, :

OGs FE. DURD SO7 UDI. TOPE) can esvtacssics 25-26

Delaware State College v. Ricks, :

i ee i) Ee 15, 16, 17, 18

Eldredge v. Carpenters 46 N. Cal. Counties

Joint Apprenticeship and Training Comm.,

S53 F.26 8336 OG Cor, FIST) ww ecw ctcaes 15, 25

Griggs v. Duke Power Co.,

QE Les REPT ED Chesca cecevecieees os 4

Harris v. City of New York,

3G. F308 243 CO6 Coe, TFPS) occ cscvvseeccdes 20-21

vii

Cited Authorities -

Page

Hazelwood School Dist. v. United States,

433 U.S. 299 (1977) . 0... eee e eee e eee eee passim

International Bhd. of Teamsters v.

United States,

431 U.S. 324 (1977) ...... cece reece ee eeees 5, 16

Maddox v. Claytor,

764 F.2d 1539 (11th Cir. 1985) ........-++5:- 25

Morgan v. National R.R. Passenger Corp.,

232 F.3d 1008 (9th Cir. 2000), aff'd in part &

rev'd in part, 122 S. Ct. 2061 (2002) .......-- il

National R.R. Passenger Corp. v. Morgan,

122 S. Ct. 2061 (2002) ...... meee eeeeevees passim -

Pouncy v. Prudential Ins. Co.,

499 F. Supp. 427 (S.D.Tex. 1980), aff'd,

668 F.2d 795 (Sth Cir. 1982) ........-2-ee eee 20

Simmons v. City of Kansas City,

No. CIV.A.88-2603-0, 1992 WL. 403096

(D.Kan. Dec.7, 1992) .......-see eee ee creer 26

Ste. Marie v. Eastern R.R. Ass'n,

650 F.2d 395 (2d Cir. 1981) ........- i, 17-18, 19, 20

United Air Lines v. Evans, Inc.,

431 U.S. 553 (1977) .... ee eee eee eee eens passim

vill

_ Cited Authorities

Page

Valentino v. United States Postal Serv.,

$11 F. Supp. 917 (D.D.C. 1981), aff'd, 674 F.2d

ss Gy CEE Wn Gab eds she cet akatveesan> 26

Wards Cove Packing Co. v. Atonio,

GIO UB. GAZ CITES) oc ccccvcccees 2, 3, 21, 22, 23, 26

Wygant v. Jackson Bd. of Educ.,

PD EA OEE B66 CN edie cctcctecdccers 28

Statutes, Regulations, and Court Rules:

Be Ue B SRUEEY Sac detocdewesvadedavedesi

Ge Wes © OE Cand non scecs cecne er ee

42 U.S.C. § 2000e-2(a)

42 U.S.C. § 2000e-2(k)

Cal. Veh. Code § 2251

DO TN 55 oe in cn daes eck eweeteck ck:

Oe hs 8 feet ere ele

ix

Cited Authorities

Page

Other Authorities:

Michael O. Finklestein & Bruce Levin, Statistics for

Lawyers (1990) ......eceeeee er eeereeeeeees 25

Kevin Gilmartin & John Claudy, PROC

MULTEVENT: Multiple Events Exact Probability

Test, Validation Report (1985) .....----+++++: 25

Ramona L. Paetzold & Steven L.Willborn, The

Statistics of Discrimination (1994) ......--++> 25

x

TABLE OF APPENDICES

Appendix A— Order And Amended Opinion Of The

United States Court Of Appeals For The Ninth

Circuit Filed May 31, 2002 And Amended July

18, 2002 And Order Denying Rehearing Dated

PE SE Kah GA Ke eR Kae se 0es coed Kes

Appendix B — Material Deleted From Pages 7951

& 7952 Of The Opinion Of The United States

Court Of Appeals For The Ninth Circuit Dated

Pg FOE PS Oh, DOS iin 6s aie See

Appendix C — Order Of The United States District

Court For The Central District Of California,

Western Division Dated And Filed April 12,

OE 5 6 eb ice vss Was Nae ek Reon ewe

Appendix D — Order Of The United States District

Court For The Central District Of California Dated

And Filed August 12, 1999 .... 0. cc ecccsessse

Page

23a

1

Petitioners State of California, California Highway Patrol

(“CHP”), Dwight Helmick, and Edward Gomez respectfully

petition for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit in this

case.

OPINIONS BELOW

The amended order and opinion of the Ninth Circuit

(App. 1a) is reported at 291 F.3d 1141. The pertinent opinions

of the district court (App. 23a, 34a) are unreported.

STATEMENT OF JURISDICTION

The court of appeals entered its judgment on July 18, 2002.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

PERTINENT STATUTORY PROVISIONS

42 U.S.C. § 2000e-2(a): It shall be an unlawful employment

practice for an employer — (1) to fail or refuse to hire or to

discharge any individual, or otherwise to discriminate

against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of

such individual’s race, color, religion, sex, or national origin;

or (2) to limit, segregate, or classify his employees or applicants

for employment in any way which would deprive or tend to

deprive any individual of employment opportunities or otherwise

adversely affect his status as an employee, because of such

individual’s race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(k): (1)(A) An unlawful employment

practice based on disparate impact is established under this title

only if—(i) a complaining party demonstrates that a respondent

2

uses a particular employment practice that causes a disparate

impact on the basis of race, color, religion, sex, or national origin

and the respondent fails to demonstrate that the challenged

practice is job related for the position in question and consistent

with business necessity; . . .

42 U.S.C. § 2000e-2(k): (1)(B)(i) With respect to

demonstrating that a particular employment practice causes a

disparate impact as described in subparagraph (A)(1),

the complaining party shall demonstrate that each particular

challenged employment practice causes a disparate impact,

except that if the complaining party can demonstrate to the court

that the elements of a respondent’s decisionmaking process are

not capable of separation for analysis, the decisionmaking

process may be analyzed as one employment practice.

INTRODUCTION

At stake in this disparate impact case is the integrity of

statistical analysis in litigation pursuant to Title VII of the Civil

Rights Act of 1964, as amended. In Wards Cove Packing Co. v.

Atonio, 490 U.S. 642 (1989), and Hazelwood School District v.

United States, 433 U.S. 299 (1977), this Court emphasized that

lower courts must rigorously examine the categories of statistical

data used to assess whether a specific challenged employment

practice actually causes the alleged discrimination. As this Court

recognized in rejecting the unjustified use of statistical proxies

in Hazelwood and the improper grouping of distinct job

categories in Wards Cove, the wrong legal standards for statistical

proof of discrimination undermine the purposes of Title VII by

forcing employers into unwarranted and expensive litigation,

and encouraging them to adopt racial quotas as a prophylactic

against future litigation.

3

The Ninth Circuit in this case (opinion by Reinhardt, J.)

has approved as a matter of law the use of three statistical

methods, each of which violates the teachings of this Court’s

Title VII decisions and also conflicts with the approaches used

by other circuits.

First, the Ninth Circuit held that plaintiffs may use

time-barred data to make a statistical showing of disparate

impact by combining examination results from the “pre-liability -

period” (that is, results that could not themselves give rise to a

claim because they are time-barred) with examination results

from within the liability period. In essence, under the Ninth

Circuit’s holding, time-barred events may serve as the “but for”

cause of a finding of disparate impact liability, enabling plaintiffs

to prevail even when they cannot prove disparate impact within

the liability period. This holding cannot be squared with the

command of United Air Lines, Inc. v. Evans, 431 U.S. 553, 558

(1977), that such data should have “no present legal

consequences” — an admonition that was reinforced just

last Term in National Railroad Passenger Corp. v. Morgan,

122 S. Ct. 2061 (2002).

Second, the Ninth Circuit approved the following method

of statistical aggregation and analysis: combine into a single

pool all exam applicants for all supervisory ranks at issue across

multiple years and compare that single pool with a corresponding

single pool of successful promotees. This “single pool” method,

which takes no account of the differences in the exams given -

for different ranks and treats all employees as being entirely

fungible and assumes they were all available during all of the

exams, violates Title VII, is inconsistent with this Court’s

‘decision in Wards Cove, creates a circuit conflict, and has been

roundly criticized by statistical experts. To summarize the

problem, although disparate impact litigation must identify the

4

“particular employment practice” responsible for the alleged

discriminatory effect, the Ninth Circuit has authorized a method

of proof that muddles together multiple discrete employment

practices and job categories, and thus inevitably produces legally

unreliable results.

Third, the Ninth Circuit held that, instead of determining

the impact of the challenged promotional exams on each

minority group separately, plaintiffs could combine all minority

groups into a single “non-white” group for the purpose of

comparing their performance with whites. However, combining

all minorities into a single, undifferentiated group runs afoul of

this Court’s decisions requiring that differences in the treatment

afforded different minority groups not be blurred in evaluating

claims of discrimination. |

As this Court has recognized, disparate impact analysis may

be a useful tool to prevent employment practices that are neutral

on their face but operate in a discriminatory manner. Griggs v.

Duke Power Co., 401 U.S. 424 (1971). But by granting plaintiffs

a license to gin up the appearance of disparate impact by

combining statistical data from multiple selection events without

regard to their differences, timeliness, or ability to isolate the

causes of any differences in performance, and by combining

distinct minority groups without regard to their different

performances, the Ninth Circuit has turned the search for

discrimination into a game of mathematical manipulation.

Because the Ninth Circuit’s rulings will significantly affect the

nature of the statistical evidence to be presented not only in this

case but also in Title VII cases generally, and will remain the

law of the Ninth Circuit notwithstanding what happens on

remand, this Court should grant review now in order to prevent

5

further misapplication of statistical methods in this important

and frequently litigated aspect of employment discrimination

law.'

. STATEMENT OF THE CASE

A. Background

The career of a peace officer in the CHP begins with being

hired as a cadet followed by rigcrous training and graduation

to an entry level officer position. As required by state statute, ”

the CHP fills all vacancies in its supervisory ranks (sergeant,

lieutenant, captain, assistant chief, and deputy chief) from

internal promotional candidates, who are permitted to rise only

one rank at a time.

To be eligible for promotion, an officer must complete the

promotional examination for the rank to which he or she aspires.

Because different ranks emphasize different skills and require

increasing responsibility, the promotional examinations differ

depending on the rank in question. For example, although both

the sergeant and lieutenant promotional examinations are

comprised of a multiple-choice written test and oral interview,

the test questions and interview topics for prospective sergeants

1. Although this case involves a claim of disparate impact,

the Ninth Circuit’s rulings on statistical methodology will have a

substantial effect on disparate treatment claims as well because such

claims also frequently involve the use of statistical evidence as proof of

intentional discrimination. See International Bhd. of Teamsters v. United

States, 431 U.S. 324 (1977); Hazelwood Sch. Dist. v. United States,

433 U.S. 299 (1977). Indeed, that may well happen in this very case,

since plaintiffs also filed a disparate treatment claim against the CHP.

2. Cal. Veh. Code § 2251.

6

differ from those for prospective lieutenants. In the same vein,

candidates for the rank of captain do not take a multiple choice

written test; instead, their examination consists of an “in basket”

exercise and an oral interview. Different still is the examination

for assistant chief, which is exclusively oral.

During the time period relevant to this case, the CHP gave

the promotional examinations for each rank at roughly

two-year intervals. After administering each examination for

each rank, the CHP compiled and published an eligibility list

ranked in order of the weighted composite score that each

promotional candidate achieved on his or her examination.

When a vacancy occurred in one of the supervisory ranks, the

CHP would fill it by taking the next name in order from the

eligibility list for the rank in question. Each eligibility list

remained effective until the next promotional examination was

administered and a new, superseding list generated.

B. Paigel

This case began more than eight years ago, on January 5,

1994, when Jeff Paige, an African-American CHP lieutenant,

filed a class action alleging that the CHP’s promotional practices

violate Title VII of the Civil Rights Act of 1964, as amended.

As relevant here, Paige’s suit claimed that “the promotion

selection procedures used by the CHP adversely impact, on the

basis of race, qualified African American officers.” On July 12,

1994, the district court certified a class of incumbent minority

CHP officers under Rule 23 of the Federal Rules of Civil

Procedure.

On March 29, 1995, the district court granted plaintiffs’

motion for partial summary judgment on their claim that the

CHP’s promotional practices created a disparate impact against

7

non-white officers in violation of Title VII, and denied

defendants’ cross-motion for partial summary judgment.

Specifically, the court ruled that plaintiffs had established

disparate impact through statistical analyses that compared the

minority representation in the CHP’s supervisory ranks with

the minority representation in supervisory positions in law

enforcement agencies throughout California as reflected in the

1990 California census. The district court refused to assess

disparate impact using the actual pool of employees eligible for

promotion — that js, by comparing the percentage of minority

officers applying within the CHP for promotion to supervisory

positions with the percentage of minority officers selected for

supervisory positions. 7

The CHP appealed, arguing that the district court erred in

using an external statistical proxy for the pool of actual

applicants. The Ninth Circuit agreed. Because the record

contained “no evidence” that any CHP employment practice

“deterred non-white, non-supervisory employees from applying

for promotion” (thereby justifying use of a measure other than

the pool of actual applicants), the Ninth Circuit held that the

district court’s resort to the external statistical proxy was not

justified. Paige v. State of California, et al., No. 95-56669,

1996 U.S. App. LEXIS 33426, at *5 (9th Cir. Dec. 20, 1996)

(“Paige I’). Accordingly, the court reversed the grant of partial

summary judgment and remanded the case to the district court.

Id. at *7.

C. Proceedings On Remand From Paige I

On remand to the district court, the case continued what

the Ninth Circuit later described as its “difficult” history. In a

3. At the same time, the court affirmed the district court’s class

certification order.

: 8

line of dicta in Paige J, the Ninth Circuit arguably left open the

possibility that use of an external proxy might be justified if

plaintiffs could show that an aspect of the CHP’s hiring practices

somehow tainted the actual pool of promotional candidates. As

a result, the parties continued to spar before the district court

over whether plaintiffs could use an external proxy.

In 1997, the parties again filed cross-motions for partial

summary judgment on plaintiffs’ disparate impact claim.

Notably, even though plaintiffs continued to defend the use of

an external proxy, in seeking partial summary judgment, they

relied solely on internal data regarding the CHP’s promotional

examinations. Plaintiffs, through their statistical witness,

presented multiple analyses purporting to show, using internal

data, that CHP’s promotional examinations had a disparate

impact on non-white officers.

~

For its part, the CHP argued that plaintiffs’ statistical

analyses improperly (i) included examination data that were

time-barred, (ii) combined data from different promotional

examinations across different ranks into a single undifferentiated

pool, (iii) combined examination data from different minority

groups into a single “non-white” pool, and (iv) included

admittedly inaccurate data. The CHP’s statistical expert testified

that, when these methodological errors were corrected, statistical

analysis showed that the CHP promoted minority officers at

rates approximating or exceeding their application rates and that,

therefore, CHP’s promotional processes created no disparate

impact.‘

4. The CHP also proffered evidence that the written portion

of the promotional examinations for sergeant and lieutenant were job-

related and consistent with business necessity so as to comply with Title

VII even if adverse impact were shown.

9

The district court responded with a series of confounding

rulings. Even though plaintiffs moved for summary judgment

based solely on internal CHP promotional data, the district court

granted plaintiffs’ motion for partial summary judgment on the

issue of disparate impact using (once again) an external statistical

proxy rather than the actual pool of promotion candidates.

According to the court, using the external proxy was appropriate

because the CHP’s hiring process had an inhibiting effect on

minority applications for the entry level cadet position and that

inhibition somehow rendered the internal pool of actual

promotion candidates inappropriate.’ App. 30a-32a, 38a-39a.

The district court also ruled on the disputes over plaintiffs’

proffered statistical methodologies. As relevant here, the court

ruled that plaintiffs could aggregate data across multiple

promotion examinations and ranks using what is known as the

“single pool” method of analysis. In particular, the district court

stated without further explanation :hat plaintiffs’ aggregation

of data was “more probative” than disaggregated data. App. 40a.

The court also ruled that plaintiffs could include data from the

pre-limitations period in their statistical analyses and that they

could aggregate all minority groups into a single “non-white”

category for the purpose of comparing minority test results with

those of whites. App. 40a-42a. The court again rejected all of

the CHP’s statistical analyses showing that, when properly

analyzed, the CHP’s promotional examinations produced no

disparate impact.

5. Although plaintiffs had expressly disclaimed reliance on an

external proxy in their summary judgment motion, declarations submitted

by their statistical witness in support of that motion had included

discussions of the cadet hiring process. The district court apparently

viewed this evidence as sufficient to meet the standard suggested in

Paige I for using an external proxy, and then readopted its reasoning in

its earlier reversed ruling even though plaintiffs had not moved for

judgment on that basis.

10

D. Paige II

Appealing again, the CHP once more challenged the district

court’s use of an external proxy to measure disparate impact as

well as its apparent acceptance of plaintiffs’ flawed statistical

approaches to the internal promotions data.

In an opinion issued on May 31, 2002, the Ninth Circuit

again agreed with the CHP on the external proxy issue.

App. 8a-11a.° The Ninth Circuit went on, however, to endorse

the district court’s rulings on the validity of plaintiffs’ statistical

methodologies for manipulating the CHP’s internal promotions

data.

First, the Ninth Circuit approved as a matter of law

plaintiffs’ statistical method of combining the data from multiple

promotional examinations for different ranks by adding together

the number of minority officers that applied for all of the exams

to form a single pool of applicants, and comparing that number

to the total number of minority officers that were selected for

promotion to all of the ranks to form a single pool of selections.

App. 13a. The court also claimed (incorrectly) that other courts

had approved such aggregation, citing, inter alia, Hazelwood,

433 U.S. at 308 n.8. App. 13a-14a. Second, the court also ruled

that plaintiffs could show disparate impact by aggregating all

minority group members into a single “non-white” pool of

promotion candidates that included African Americans,

Hispanics, Asians and Pacific Islanders, American Indians, and

6. As discussed below, the Ninth Circuit issued an amended opinion

on July 18, 2002. Because much of the amended opinion was identical

to the original opinion, only the amended opinion is reprinted in full in

the appendix to this Petition. See App. 1a. The portion of the original

opinion that the Ninth Circuit deleted from the amended opinion is

reprinted in the appendix at App. 20a.

11

others, App. 14a-15a, notwithstanding uncontradicted record

evidence that certain groups performed far better on the

challenged examinations than other groups did.’

Third, the court ruled as a matter of law that plaintiffs could

include in their statistical analysis of alleged disparate impact

the results from promotional examinations before the start of

the liability period. According to the court, inclusion of the

pre-liability period data was permissible under the “continuing

violation doctrine,” which “allows courts to consider conduct

that would ordinarily be time barred ‘as long as the untimely

incidents represent an ongoing unlawful employment practice.”

App. 21a-22a (quoting Morgan v. National R.R. Passenger

Corp., 232 F.3d 1008, 1014 (9th Cir. 2000) (internal citations

omitted), aff'd in part & rev'd in part, 122 S. Ct. 2061 (2002).

Shortly after the Ninth Circuit issued its opinion, this Court

issued its decision in National Railroad Passenger Corp. v.

Morgan, which limited application of the continuing violation

doctrine to Title VII suits alleging a hostile work environment.

The CHP petitioned for rehearing and rehearing en banc.

It argued that the Ninth Circuit panel opinion could not stand in

light of Morgan both because that decision made the continuing

violation doctrine inapplicable to cases challenging discrete

events and because, more generally, Morgan, Evans, and other

cases mandated that statistical data from time-barred events —

that is, events that were no longer actionable — could not be

used to establish a prima facie case of disparate impact within

the liability period.

7. For example, the evidence showed that on some examinations

Asians and Pacific Islanders outperformed whites while on other

examinations Hispanics outperformed whites.

8. The Ninth Circuit also declined to accept the CHP’s business

necessity defense as supporting summary judgment for the CHP, thereby

leaving this issue open for resolution on remand.

12

The CHP also sought further review of the Ninth Circuit’s

endorsement of plaintiffs’ aggregation of data across

examinations, ranks, and racial groups using the “single pool”

method, arguing that these holdings were both wrong and in

conflict with the decisions of other circuits.

On July 18, 2002, the Ninth Circuit denied the CHP’s

petition for panel rehearing or rehearing en banc, but issued an

amended opinion that deleted all references to the “continuing

violation doctrine” and substituted a different rationale to again

hold that plaintiffs could rely on time-barred data. This time,

the Ninth Circuit asserted that the use of time-barred data is

appropriate “if promotional practices remain similar over a long

period of time, as they have in this case,” citing two prior

decisions, App. 15a, neither of which is on point. See infra at

14n.9. The Ninth Circuit’s substitute paragraph also referenced

the Uniform Guidelines on Employee Selection Procedures,

28 C.F.R. § 50.14 at § 4(D) (1978). But that regulation deals

with the augmentation of pools of data too small to be susceptible

to meaningful statistical analysis. Here, plaintiffs have never

contended that the statistical pools are too small. Aside from

the substitute paragraph, the Ninth Circuit left the remainder of

its opinion unchanged.

The CHP sought a stay of mandate pending the filing of a

writ of certiorari with this Court. That motion was denied and

trial on plaintiffs’ disparate impact claim is currently set for

April 8, 2003.

13

REASONS FOR GRANTING THE PETITION

I. THE NINTH CIRCUIT’S APPARENTLY UNPREC-

EDENTED HOLDING THAT PLAINTIFFS MAY USE

TIME-BARRED DATA TO PROVE DISPARATE

IMPACT CREATES A BROADLY APPLICABLE

RULE THAT CONFLICTS WITH THIS COURT’S

DECISIONS AND THE DECISIONS OF OTHER

COURTS OF APPEALS

A. Assessing Disparate Impact Using Data From Time-

Barred Examinations Conflicts With This Court’s

Decisions Refusing To Give Legal Effect To

Employment Decisions That Were Not Timely

Challenged

By permitting a plaintiff to prove disparate impact by

combining pre-liability period data with liability period data,

the Ninth Circuit has held as a practical matter that time-barred

data may serve as a “but for” cause for a finding of disparate

impact liability within the liability period. Put differently, under

the Ninth Circuit’s approach, a plaintiff may succeed on a

disparate impact claim, even when the data from within the

liability period show no statistically significant disparity from

a challenged employment practice, simply by adding time-barred

data to the disparate impact calculus.The Ninth Circuit’s holding

cannot be squared with this Court’s precedents, dramatically

enlarges the potential liability of employers under Title VII, and

conflicts with the decisions of other circuits.

The Ninth Circuit has now invoked two different theories

for letting plaintiffs lump together promotional examination data

from both the pre-liability and liability periods. Initially, the

Ninth Circuit held that such aggregation was justified under the

14

“continuing violation doctrine,” an exception to the usual statute

of limitations rule precluding the use of time-barred data to prove

liability. App. 21a-22a. When this Court’s decision in Morgan,

which sharply limited the continuing violation doctrine, vitiated

that theory, the Circuit substituted its newly-minted justification:

that pre-liability period data may be combined with liability

period data in a disparate impact case “if promotional practices

remain similar over a long period of time.” App. 15a.

This change of rationale, however, does not avoid the

conflict with the Court’s jurisprudence. At bottom, the Ninth

Circuit ruling simply converts the continuing violation doctrine

from a narrow exception to the proscription against time-barred

claims into a broad evidentiary rule permitting data from time-

barred employment decisions to be included in statistical

analyses of timely-challenged decisions. But whether one views

the decision as a variation on the continuing violation doctrine

or as a new evidentiary rule, the result is the same. The Ninth

Circuit’s ruling allows time-barred data to establish disparate

impact liability even when the evidence from within the liability

period, standing alone, fails to establish a disparate impact.

This clearly violates the limits this Court has placed on the use

of time-barred data.’

9. The Ninth Circuit’s comment that the CHP’s promotional

practices had remained “similar” over a long period, App. 15a, is simply

- wrong or, at best, accurate only in the superficial sense that the format

of the examinations and procedures for administering them have not

changed significantly. The specific content of each examination changed

each time a new examination was administered. The Ninth Circuit’s

efforts to bolster its ruling with case law is equally flawed. The court

cited only two cases to support its authorization of the use of time-

barred data, neither of which is on point. In Bouman v. Block, 940 F.2d

1211 (9th Cir. 1991), which the Ninth Circuit characterized as “allowing

plaintiffs in a Title VII disparate impact case to aggregate results from

multiple promotional exams because ‘courts have repeatedly looked at

(Cont'd)

15

The Ninth Circuit’s decision in this case is fundamentally

inconsistent with the rationale underlying this Court’s decisions

limiting the scope of the “continuing violation” exception

to the usual force of the applicable statute of limitations.

See National Railroad Passenger Corp. v. Morgan, 122 S. Ct.

2061 (2002); Delaware State College v. Ricks, 449 U.S. 250

(1980); United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977).

These cases hold that employment decisions that are not

challenged within the limitations period are generally not

actionable. As the Court explained in Evans, “[a] discriminatory

act which is not made the basis for a timely charge is the legal

equivalent of a discriminatory act which occurred before the

statute was passed. . . . [i]t is merely an unfortunate event in

history which has no present legal consequences.” 431 U.S.

at 558. The Court made the same point in Hazelwood School

District v. United States, 433 U.S. 299 (1977), a disparate

treatment case against a public employer. The Court held that a

plaintiff could not base a Title VII claim on statistical evidence

relating to hiring decisions before the effective date of the

(Cont’d)

trends from past examinations to see if the total pass rate showed evidence

of discrimination,’” App. 15a, the test results that were aggregated all

related to examinations whose eligibility lists expired within the liability

period, and whose applicants sought promotion to a single rank —

sergeant. Similarly, in Eldredge v. Carpenters 46 Northern California

Counties Joint Apprenticeship and Training Committee, 833 F.2d 1334

(9th Cir. 1987), the Ninth Circuit held that aggregated data covering

nine years presented “a more complete and reliable picture of the effects

of the JATC’s admission practices.” 833 F.2d at 1339. However, the

data covered the years 1976 through 1984. The lawsuit had been filed

in 1977. Therefore, all of the data that were aggregated fell within the

limitations period, and related to a single job classification and a single

unchanged employment practice.

16

amendments extending Title VII to public employers. As the

Court explained:

[r]acial discrimination by public employers was not

made illegal under Title VII until March 24, 1972.

A public employer who from that date forward

made all its employment decisions in a wholly

nondiscriminatory way would not violate Title VII

even if it had formerly maintained an all-white work

force by purposefully excluding Negroes.

433 U.S. at 309 (footnote omitted). See also International Bhd.

of Teamsters v. United States, 431 U.S. 324, 340-41 (1977)

(statistical analyses purporting to show racial imbalance

misleading because they failed to identify how much of

imbalance was due to pre-Act hiring decisions).

The reason for these holdings is simple: “[t]he limitations

periods, while guaranteeing the protection of the civil rights

laws to those who promptly assert their rights, also protect

employers from the burden of defending claims arising

from employment decisions that are long past.” Ricks, 449 U.S.

at 256-57.

In Ricks, and again last term in Morgan, this Court

reaffirmed this basic tenet. As the Court explained in Morgan,

Ricks established that a plaintiff “could not use a termination

_ that fell within the limitations period to pull in the time-barred

discriminatory act. Nor could a time-barred act justify filing a

charge concerning a termination that was not independently

discriminatory.” 122 S. Ct. at 2072. And in Morgan, the Court

rejected the plaintiff’s allegations based on time-barred events,

emphasizing that “only incidents that took place within the

timely filing period are actionable.” 122 S. Ct. at 2073.

17

While Morgan continues to recognize a narrow role for the

continuing violation doctrine in Title VII hostile work

environment cases, it makes crystal clear that this doctrine has

no application in “discrete act” cases, such as those involving

“termination, failure to promote, denial of transfer, or refusal to

hire” — in other words, the kind of case at issue here.

Id. (emphasis added). By amending its original opinion (in the

face of Morgan) to delete any references to the continuing

violation doctrine, the Ninth Circuit tried to avoid an explicit

collision with the Evans/Ricks/Morgan line of cases. But this

effort fails. The only way the Ninth Circuit could circumvent

the li nitation on the continuing violation doctrine recognized

in Morgan was to create an evidentiary rule to accomplish

precisely what Evans, Ricks, and Morgan forbid.

The key inquiry is whether the Ninth Circuit’s rule conflicts

with these cases by vesting time-barred events with “present

legal consequences.” There can be no doubt that it does. Suppose

that the data from a defendant’s promotional exams within the

liability period fail to show any disparate impact. Under the

Ninth Circuit’s evidentiary rule, a plaintiff would still be

- permitted to cure that failure of proof using evidence from the

pre-liability period. Under these circumstances, the plaintiff’s

recovery would be entirely dependent on time-barred events —

sins of the past that the statute of limitations, as this Court has

repeatedly held, is meant to have rendered an artifact of history.'°

10. The Court in Evans and Morgan suggested that time-barred

data might serve as “background” evidence for a Title VII claim.

However, that suggestion has no application in this case. As the Second

Circuit (Friendly, J.) has pointed out, in a disparate treatment case,

non-statistical pre-liability period evidence may be used as background

evidence to show discriminatory intent during the liability period.

See Ste. Marie v. Eastern R.R. Ass'n, 650 F.2d 395, 405-07 (2d Cir.

(Cont’d)

18

As far as petitioners can discern, the Ninth Circuit’s

authorization of using time-barred statistical data as proof of a

disparate impact claim is without precedent. This holding is

virtually guaranteed to generate significant confusion and

controversy regardir.g its application in future cases. Although

the amended opinion omits any reference to the continuing

violation doctrine and does not discuss this Court’s recent

decision in Morgan, the circumstances and timing of its issuance

will be understood to mean that, at least in the Ninth Circuit,

the continuing violation doctrine remains viable as a practical

matter for “discrete” employment decisions even after Morgan,

as long as the time-barred decisions are used only as “evidence”

and are not characterized as independently actionable.

Even if this result could somehow be squared with Morgan,

Evans, Ricks, and Hazelwood, the practical problems it will

create are enormous. Statistical analyses have come to play a

common and important part of most employment discrimination

litigation. The Ninth Circuit placed no limit on how far back in

time a plaintiff will be permitted to go to gather data to include

in statistical analyses, and under the court’s treatment there is

no theoretical limit. Neither the beginning of the limitations

(Cont’d)

1981). For example, pre-liability period racist comments by a supervisor

may be introduced as evidence on the issue whether that same supervisor

acted with discriminatory intent during the liability period. Thus, in

Hazelwood (a disparate treatment case), this Court remarked that “[p]roof

that an employer engaged in racial discrimination prior to the effective

date of Title VII might in some circumstances support the inference that

such discrimination continued. . . .” 433 U.S. at 309 n.15. But even if

the concept of background evidence has any application in a disparate

treatment case, it cannot possibly apply to the kind of statistical evidence

covered by the Ninth Circuit’s ruling. Here, the evidence is not being

used as “background.” Rather, it is being given equal and undifferentiated

weight as the data coming from decisions made within the liability period.

19

period nor even the effective date of Title VII will provide a

reliable benchmark for limiting discovery requests, and the

potential for costly and disruptive discovery requests for data is

likely to be huge. Without some limit on the use that can be

made of pre-liability period data, nothing will prevent findings

of liability to be based on the combination of a relatively small

number of decisions during the liability period with a much

larger number of decisions outside the period. Discrete and stale

events that this Court declared should have “no present legal

consequences” will come to dominate a significant number of

employment discrimination cases, including virtually all class

actions, which are already frequently unwieldy and difficult.

The Court should grant review to preserve the integrity of its

own decisions and prevent this disruption before it occurs.

B. The Ninth Circuit’s Decision Conflicts With

Ste. Marie v. Eastern Railroad Ass’n, 650 F.2d 395

(2d Cir. 1981) (Friendly, J.)

The Ninth Circuit’s endorsement of the use of data from

time-barred examinations in statistical analyses conflicts with

decisions from at least one other court of appeals. In Ste. Marie

v. Eastern Railroad Ass'n, 650 F.2d 395 (2d Cir. 1981), a plaintiff

attempted to make out a prima facie case of disparate treatment

on the basis of sex through statistical data showing the

proportions of men and women in the defendant’s workforce at

two dates during the liability period. The district court had

compared the percentages of each sex in the total workforce to

their representation in various job categories, and concluded

that women were grossly overrepresented in clerical positions

and grossly underrepresented in managerial positions.

Wniting for the Second Circuit, Judge Friendly rejected these

Statistical comparisons as “invalid on their face” because they

20

“fail[ed] to recognize that a large proportion of the technical

and managerial positions had been filled before .. . the date

when defendants’ potential liability began.” Jd. at 401 (citing,

inter alia, Evans and Hazelwood). Judge Friendly went on to

discuss how inclusion of pre-liability period data had served to

create a false finding of discrimination, and characterized the

effect of the errors on the plaintiffs’ statistical evidence as

“devastating.” Jd. at 402."' See also Pouncy v. Prudential Ins.

Co., 499 F. Supp. 427, 445 (S.D. Tex. 1980) (“[T]he relevant

Statistics for purposes of analyzing the disparate impact claims

of the plaintiff class are those statistics which reflect defendant’s

personnel actions taken during the relevant time period covered

by this law suit, i.e., for claims under 42 U.S.C. § 1981, on or

after October 31, 1973, and for Title VII claims, on or after

October 13, 1974.”) (footnote omitted), aff’d, 668 F.2d 795

(5th Cir. 1982).

The Ninth Circuit’s decision is also inconsistent with

decisions of those courts, including the Ninth Circuit, which

have analyzed promotion practices such as those at issue here

involving the administration of discrete examinations that result

in eligibility lists with specified expiration dates from which

promotions are made during the period in which the list is used.

These decisions recognize that each promotion examination

represents a discrete event that has no continuing effect once

the results of the examination are posted or, at the latest, once

the list it generates is exhausted or expires and a new list is

established. “See, e.g., Harris v. City of New York, 186 F.3d 243,

11. The Second Circuit drew a sharp distinction between the use

of pre-liability period statistical evidence, which it characterized as

“invalid on its face,” 650 F.2d at 401, and the use of non-statistical pre-

liability period evidence tending to show discriminatory intent, which it

considered admissible as background evidence under Hazelwood.

Id. at 405-07.

21

248 (2d Cir. 1999); Cox v. City of Memphis, 230 F.3d 199,

202-05 (6th Cir. 2000); Bouman v. Block, 940 F.2d at 1221.

But petitioners are aware of no case prior to the Ninth Circuit’s

ruling here that permitted the inclusion in statistical analyses of

examinations that were given prior to the liability period and

whose eligibility lists expired prior to the liability period.

In sum, the Ninth Circuit’s decision creates a direct conflict

with the established law of several circuits regarding the use of

time-barred data in statistical analyses to evaluate claims of

disparate impact. Review should be granted in order to resolve

this conflict.

II. THE NINTH CIRCUIT’S HOLDING PERMITTING

THE AGGREGATION OF DATA FROM DIFFERENT

EXAMINATIONS AND RANKS DEFIES THE

LANGUAGE OF TITLE VII AND LOGIC OF

THIS COURT’S PRECEDENTS, CREATES A

CIRCUIT CONFLICT, AND IS STATISTICALLY

INDEFENSIBLE ;

In a second holding of broad application, the Ninth Circuit

has established as a matter of law that a plaintiff may attempt to

prove a disparate impact claim under Title VII by aggregating

statistical data from different promotional examinations and

different ranks into a single pool of applicants and promotees.

Embedded in this holding are two profound flaws. First, by

endorsing the aggregation of results from the different

promotional exams used to screen for different ranks, the Ninth

Circuit has defied both the plain language of Title VII and this

Court’s decision in Wards Cove, both of which demand a high

level of statistical rigor when plaintiffs seek to aggregate

statistics for different employment tests used to qualify for

different job categories. Second, by endorsing what is known

22

as the “single pool” method for analyzing multiple selection

events, the Ninth Circuit has authorized a discredited statistical

approach specifically rejected by the Eleventh Circuit as well

as various federal district courts.

In its provision dealing with disparate impact claims,

Title VII emphasizes that a complaining party must identify

a “particular employment practice” in stating a claim and

“shall demonstrate that each particular challenged employment

practice causes a disparate impact.” 42 U.S.C. § 2000e-

2(k)(1)(A). That statutory requirement of particularity is

destroyed if, as the Ninth Circuit now permits, a plaintiff can

prove a disparate impact claim with statistical analyses that mix

the results of distinct promotional practices.

t

Here, the Ninth Circuit has developed a new and dangerous

permutation of the categorization error this Court identified and

corrected in Wards Cove. In that decision, this Court rejected

the Ninth Circuit’s statistical approach to a disparate impact

claim involving the hiring of two different classes of workers

(cannery and non-cannery) at an Alaska salmon fishing

operation. At bottom, Wards Cove requires a separate disparate

impact analysis for every different job category, “even where

workers for the different positions may have somewhat fungible

skills.” Wards Cove, 490 U.S. at 653. Simply put, each part of

_ an employer’s work force must be assessed separately, because

“{r]acial imbalance in one segment of an employer’s work force

does not, without more, establish a prima facie case of disparate

impact with respect to the selection of workers for the employer’s

other positions.” Jd.

The Ninth Circuit’s ruling mixes apples and oranges in just

the fashion that the statute and Wards Cove prohibit. To take

but one example, the Ninth Circuit has authorized plaintiffs to

combine the results of the 1992 examination for prospective

23

sergeants with the results of the 1990 examination for

prospective captains. App. 13a-14a. In this way, the Ninth Circuit

has not only jumbled distinct job categories (much like the same

court had done with the cannery and non-cannery workers in

Wards Cove), it has also jumbled completely different types of

examinations. For example, although the sergeants examination

included a multiple choice test, the captains examination

included an “in-basket” exercise."

Second, in endorsing the data aggregation ruling of the

district court, the Ninth Circuit has endorsed the discredited

and statistically inappropriate “single pool” method of

aggregating data.'? That method works as follows. First, all the

CHP officers who applied to take multiple promotional

12. The Ninth Circuit justifies its cross-ranks aggregation on the

ground that the CHP groups its supervisory positions together when

submitting its census reporting. App. 13a. The grouping of certain

positions for census purposes, however, in no way suggests that such

groupings are appropriate for purposes of determining liability under

Title VII. Uncontradicted evidence shows that there are material

differences between the duties and skills required for the various

supervisory positions; that officers compete for promotion only against

other officers in the same rank; and that the qualifications and experience

requirements for each rank are different. In addition, the promotional

examinations, which test whether candidates have the requisite

knowledge required for the rank being sought, are markedly different.

In these respects, the CHP is no different than other law enforcement

agencies with structured hierarchies of increasing responsibility and

experience. :

13. Although the Ninth Circuit’s opinion never refers expressly to

a “single pool” methodology, its acceptance of that methodology is clear

in footnote 5 of its opinion, which describes the “internal pool”

as consisting of “2,842 officers who applied to be promoted.” App. 7a.

This number is taken directly from plaintiffs’ single pool analysis, which

adds together the applicants for all the examinations.

}

'

24

examinations (including, in this case, examinations outside the

limitations period) are lumped into a single pool. Next, all the

applicants actually selected for promotion from the eligibility

lists created from those examinations are lumped into a single

pool. Then, a comparison of the two pools is made to assess

whether members of the plaintiff class within the single pool of

applicants suffered a disparate impact in the selection process.

As explained succinctly in a study of statistical methods

prepared for the Department of the Navy by the American

Institutes for Research, the single pool method is “inherently

wrong” because it treats all employees as being entirely fungible

and assumes that they were all equally available for all of the

aggregated selection events.

When many selection events have occurred

(e.g., a series of hiring decisions or promotion

decisions), a primary concern in the statistical

analysis is how to combine the data from the various

selection events. A common (but incorrect) method

is simply to add the numbers of protected class

members and other employees who applied and who

were selected across the selection events to form a

single pool of applicants, divided by class

membership and a single pool of selections, also

divided by class membership. .. . This “single pool”

approach is inherently wrong, will almost always

lead to incorrect calculations of the expected number

of class members selected, and can result in incorrect

conclusions. . . . The single pool approach treats all

employees as being entirely fungible and assumes

that they were all available during all of the selection

events. Consequently, calculations of the expected

25

number of class members selected and the

probability of actual number selected will be

incorrect.

Kevin Gilmartin & John Claudy, PROC MULTEVENT: ©

Multiple Events Exact Probability Test, Validation Report

(1985) at 3 (emphasis in original). See also Ramona L. Paetzold

& Steven L. Willborn, The Statistics of Discrimination, $94.17,

5.08 (1994); Michael O. Finklestein & Bruce Levin, Statistics

for Lawyers, ch. 8, at 241-49 (1990).

Not surprisingly, the Ninth Circuit’s endorsement of this

statistically unsound method has created a confiict with other

federal courts. The Eleventh Circuit has expressly rejected the

statistical method embraced by the Ninth Circuit here.

In Maddox v. Claytor, 764 F.2d 1539 (11th Cir. 1985),

the Eleventh Circuit affirmed summary judgment for the

defendant in a disparate impact claim in significant part because

the plaintiff’s statistical methods for proving disparate impact

improperly muddled distinct selection events and, like the single

pool method used here, suffered “from the faulty assumption

that all workers at the lower levels were qualified and applied

for all jobs at the higher levels.” Jd. at 1550, 1554-55.

Other lower courts have reached the same conclusion."*

See, e.g., Csicseri v. Bowsher, 862 F. Supp. 547, 565 (D.D.C.

14. The Ninth Circuit cited Hazelwood to justify its aggregation

holding. But Hazelwood does not discuss the propriety of including data

for a number of different positions in analyzing a hiring procedure that

was apparently identical for all positions and had none of the

characteristics of the multiple selection events at issue here. Another

case that the Ninth Circuit cited as supporting aggregation, Eldredge v.

Carpenters 46 Northern California Counties Joint Apprenticeship and

Training Committee, 833 F.2d 1334 (9th Cir. 1987), did not involve

different ranks, levels of applicants, or employment practices.

26

1994) (explaining how single pool method of aggregation

“can create the appearance of discrimination when in reality

none exists”), aff'd, 67 F.3d 972 (D.C. Cir. 1995); Simmons v.

City of Kansas City, No. 88-2603-O, 1992 WL 403096, at *4

(D. Kan. Dec. 7, 1992) (error to group all promotion positions

rather than looking at sergeant, detective, and lieutenant

separately); Valentino v. United States Postal Serv., 511 F. Supp.

917, 939, 954 (D.D.C. 1981) (error to combine data for multiple

positions that are not “fungible”), aff'd, 674 F.2d 56 (D.C. Cir.

1982); Cooper v. Southern Co., 205 F.R.D. 596, 612-15

(N.D. Ga. 2001) (promotion claims analyzed properly using

“multiple pools method”).

Because the proper method of data aggregation is a critical

issue in virtually every employment discrimination action in

which statistical evidence is used and multiple selection events,

such as promotional examinations, are implicated, the Ninth

Circuit’s decision will have enormous consequences. It raises

the same problem that prompted this Court to grant review of

the Ninth Circuit’s decision in Wards Cove — namely, that the

decision will allow blameless employers to be “haled into court

and forced to engage in the expensive and time consuming task

of defending the ‘business necessity’ of the methods used to

select the ... members of his work force.” Wards Cove, 490

U.S. at 652. Indeed, as a result of the Ninth Circuit’s decision

in this case, the CHP faces an imminent and unwarranted trial —

as inevitably will many other employers should this decision

stand.'*

15. To the extent that the Ninth Circuit attempts to justify the use

of a single pool method on the ground that the use of aggregated data is

“particularly appropriate” where small sample size may distort the data,

App. 12a, it is mistaken. As petitioners’ expert explained without

contradiction, the sample sizes in this case are sufficient to permit valid

statistical analyses.

27

Ili. THE NINTH CIRCUIT’S HOLDING PERMITTING

THE INDISCRIMINATE AGGREGATION OF DATA

FROM DIFFERENT MINORITY GROUPS RUNS

COUNTER TO THIS COURT’S JURISPRUDENCE

AND PRESENTS YET ANOTHER OBSTACLE TO

THE PROPER ADJUDICATION OF TITLE VII

CLAIMS

In a third holding of broad applicability, the Ninth Circuit

affirmed the district court’s ruling that it is “more probative”

to aggregate data for distinct minority groups into a single

“non-white” group for purposes of statistical analysis than to

examine the impact of petitioners’ promotional practices on each

group separately. App. 14a-15a. According to the Ninth Circuit,

plaintiffs were entitled to claim that the challenged employment

practices affected all minority groups identically and further

noted that the CHP had “not put forth any evidence that certain

minority groups should be évaluated differently than others or

that the promotional process has treated particular minority

groups differently.” App. 14a.

As a threshold matter, it must be noted that the Ninth

Circuit’s decision is patently inaccurate. The CHP presented

unrebutted evidence that the minority groups at issue performed

very differently on the challenged exams. '®

But wholly apart from that case-specific complaint, the

Ninth Circuit’s holding, taken at face value, is unprecedented

16. Specifically, petitioners presented unrebutted evidence that

Asian and Pacific Islander applicants outperformed white applicants

and exceeded their expected promotions for all ranks combined.

The evidence also showed that Hispanic applicants outperformed white

applicants and exceeded their expected promotions on the 1992 sergeant,

1991 lieutenant, and 1990 and 1992 captains examinations.

28

(so far as petitioners can determine) and is in significant tension

with this Court’s decisions in City of Richmond v. J.A. Croson

Co., 488 U.S. 469 (1989), and Wygant v. Jackson Board of

Education, 476 U.S. 267 (1986). In City of Richmond, this Court

held unconstitutional a race-based set aside program on the

grounds that it was not narrowly tailored due, in part, to the

“random inclusion of racial groups that, as a practical matter,

may never have suffered from discrimination,” including Aleuts

and Eskimos, even though, as this Court observed, “[i]t may

well be that Richmond has never had an Aleut or Eskimo

citizen.” 488 U.S. at 506. And in Wygant, the Court held

unconstitutional a layoff plan favoring several minority groups

because the plan did not identify which of those groups had

suffered discrimination. 476 U.S. at 284 n.13. These decisions

teach that treating all minorities as a single undifferentiated

group is improper in the absence of evidence that each group

separately suffered discrimination. The Ninth Circuit here

violated that principle by permitting all minority officers to be

aggregated into a single “non-white” group without any

evidentiary basis for doing so.

More generally, the Ninth Circuit’s ruling on minority

group aggregation is part and parcel of its overall failure to

enforce statistical rigor in disparate impact analysis. Even though

disparate impact litigation calls for an exceptionally discerning

approach — after all, it provides that an employer may be held

liable despite an absence of any discriminatory animus — the

Ninth Circuit has licensed a veritable orgy of aggregation —

across ranks, across job categories, across racial boundaries,

and sweeping back through time — in what will become, if this

Court does not grant review, a game of statistical “gotcha” in

Title VII claims within that circuit.

29

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari

should be granted.

Respectfully submitted,

JoEL M. Coun

Counsel of Record

CHARLES L. WARREN

W. RANDOLPH TESLIK, P.C.

AKIN Gump Strauss HAUER

& FELp LLP

Robert S. Strauss Building

1333 New Hampshire Avenue, N.W.

Washington, D.C. 20036

(202) 887-4000

WILuiaM A. Norris

MICHAEL C. SMALL

AKIN Gump StRAuss HAUER

& Fetp LLP

2029 Century Park East

Suite 2400

Los Angeles, CA 90067

Bit Lockyer

Attorney General of the

State of California

Sitvia M. Diaz

Supervising Deputy

Attorney General

300 South Spring Street

Suite 500

Los Angeles, CA 90013

Attorneys for Petitioners

APPENDIX

la

APPENDIX A — ORDER AND AMENDED OPINION

OF THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT FILED MAY 31, 2002 AND

AMENDED JULY 18, 2002 AND ORDER DENYING

REHEARING DATED JULY 18, 2002

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 01-55312

D.C. No. CV-94-00083-CBM

JerF D. Paice, individually & on behalf of

others similarly situated,

Plaintiff-Appellee,

v.

STATE OF CALIFORNIA; CALIFORNIA HIGHWAY PATROL;

EDWARD RICHARD GOMEZ; DwiGuTt HELMICK,

Commissioner of California Highway Patrol,

Defendants-Appellants,

and

BUSINESS, TRANSPORTATION & Housinc AGENCY, of the

State of California; MAURICE NMI HAnNniIGAN,

in his official capacity as Commissioner

of the California Highway Patrol,

Defendants.

2a

Appendix A

Appeal from the United States District Court

for the Central District of California

Consuelo B. Marshall, District Judge, Presiding

Argued and Submitted

January 23, 2002—San Francisco, California

Filed May 31, 2002

Amended July 18, 2002

Before: Stephen Reinhardt, Alex Kozinski and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Reinhardt

OPINION

REINHARDT, Circuit Judge:

This case has a long and difficult history. The allegations

are serious; the plaintiffs, highway patrol officers who are

members of racial minorities, allege that their employer,

the California Highway Patrol (“CHP”), maintains a

promotional process that discriminates against them on the

basis of race. The district court and this court have struggled

with the issues involved, both because of the nature and

importance of the allegations, and the complex legal and

factual issues involved in racial discrimination cases.

In 1994, Jeff D. Paige, a black CHP lieutenant, brought

this class action pursuant to 42 U.S.C. § 1983 on behalf of

all current and future non-white CHP officers. He alleged

3a

Appendix A

that the promotional process of the CHP has a discriminatory

impact on non-white officers in violation of Title VII of the

1964 Civil Rights Act. After a lengthy discovery period and

a great number of submissions, the district court found that

the CHP’s promotional process resulted in a disparate impact

on the plaintiff class and, accordingly, granted partial

summary judgment for the plaintiffs. The CHP appealed,

and we reversed and remanded for further factual findings.

See Paige v. State of California, 102 F.3d 1035 (9th Cir.

1996); Paige v. State of California, No. 95-56669, 1996 WL

740839 (9th Cir. Dec. 20, 1996) (unpublished memorandum

disposition) [hereinafter collectively referred to as Paige J}.

Upon remand, the district court ordered additional discovery,

and again granted partial summary judgment for the plaintiffs.

The CHP again appealed, and again we consider the issues.

Background Facts

As of December 31, 1993 (the last reporting date prior

to the filing of the lawsuit), the CHP employed approximately

5,675 officers, approximately 1,119, or 19.7%, of whom were

officers of color. Only 102 of these non-white officers were

in positions above the entry-level rank; they constituted

approximately 11.1% ofthe total number of officers in super-

visory positions. In contrast, non-white officers comprised

approximately 20.9% of the CHP officers in non-supervisory

positions.

In order to become a peace officer with the CHP, an

applicant must first be hired as a cadet and complete a six

month training program. Thereafter, the successful applicant

is assigned to an entry-level peace officer position. An officer

4a

Appendix A

may subsequently apply for a promotion in rank and advance

to sergeant, lieutenant, captain, assistant chief, and finally,

to deputy chief. No outside hiring occurs beyond the entry-

level position.

In order to be eligible for promotion, an officer must

pass a promotional examination.' There is a different

examination process for each supervisory rank. For example,

the exam for the sergeants rank includes an oral and written

component whereas that for the position of assistant chief

is oral only.? Although certain ranks may share the same

examination format, the exam for each rank is comprised of

different questions and covers different exam topics. Written

exams generally consist of a multiple-choice component

and an essay component. The oral exam is labeled a

“qualifications appraisal interview.” For the exams with a

traditional written and oral component (sergeants and

lieutenants), the applicants are notified by letter after the

1. During the period relevant to this lawsuit, the examinations

were given approximately every two years. The questions differed

each time the exams were administered. Although individuals who

reach the higher supervisory ranks may apply for the position of Chief,

there is no promotional exam for that position, and the record does

not reflect whether outside candidates are eligible to apply.

2. During the relevant period of time for this lawsuit, the

sergeants and lieutenants promotional exams were comprised of a

written and oral component; the captains exam consisted of an

“in-basket” exercise and an oral interview; and the assistant

chiefs and deputy chiefs exams consisted of oral interviews only.

An “in-basket” exam is a written exam in which the applicants write

answers to hypothetical problems that they may confront in their

future employment.

5a

Appendix A

written portion that they either passed or failed. Only if they

passed are they permitted to take the remainder of the exam.

When the promotional examinations are completed,

an eligibility list is compiled. The eligibility list is a list of

the successful applicants, ranked according to their “weighted

composite score” on the completed exam. As vacancies in

the supervisory ranks occur, officers are promoted in the order

in which their names appear on the eligibility list. The list is

used only until new exams are conducted at which time a

new list is created.

Analysis

In order to make a prima facie case of “disparate impact”

under Title VII, the plaintiffs must show “that a facially

neutral employment practice has a ‘significantly discrimi-

natory’ impact upon a group protected by Title VII.” Moore

v. Hughes Helicopters, Inc., 708 F.2d 475, 481 (9th Cir.

1983); see also Wards Cove Packing Co. v. Atonio, 490 U.S.

642, 645-46 (1989). This showing consists of two parts:

the plaintiffs must demonstrate 1) a specific employment

practice that 2) causes a significant discriminatory impact.

Wards Cove Packing Co., 490 U.S. at 656-67; Watson v. Fort

Worth Bank & Trust, 487 U.S. 977, 994 (1988). Statistical

evidence is used to demonstrate how a particular employment

3. We review the district court’s conclusion as to a prima facie

case of disparate impact de novo but review the underlying findings

of fact for clear error. See Tiano v. Dillard Dept. Stores, Inc., 139 F.3d

679, 681 (9th Cir. 1998). In particular, we give deference to a district

court’s findings regarding statistical evidence. See Hazelwood Sch.

Dist. v. United States, 433 U.S. 299, 312 (1977).

6a

Appendix A

practice causes a protected minority group to be under

represented in a specific area of employment (for example,

hiring or promotion). See Watson, 487 U.S. at 994. The

statistical analysis must show a disparity that is “sufficiently

substantial” as to “raise such an inference of causation.”

Id. at 995.

In evaluating the impact of a particular process, we must

compare the group that “enters” the process with the group

that emerges from it. Here, the plaintiffs challenge several

parts of the promotional process of the CHP as having a

disparate impact on non-white officers. Ordinarily, we would

analyze this claim by determining whether the group of

officers that received promotions looks statistically different

from the group that applied for such promotions — that is,

we would compare the racial composition of the officers

who are appointed to supervisory positions as a result of

a challenged examination with the racial composition of

the officers who applied for promotion to those positions.

We have previously stated that “[t]he best evidence of

discriminatory impact is proof that an employment practice

selects members of a protected class ... in a proportion

smaller than in the actual pool of eligible employees.” Moore,

708 F.2d at 482. However, we have also stated that this

general principle is true only if there is not “a characteristic

of the challenged selection device that makes use of the actual

pool of applicants or eligible employees inappropriate.” Jd.

4. A plaintiff need not prove discrimination with “scientific

certainty”; he must, however, prove any such charge by a

preponderance of the evidence. Eldredge v. Carpenters 46 N. Cal.

Counties Joint Apprenticeship and Training Comm., 833 F.2d 1334,

1338 (9th Cir. 1987) (quoting Bazemore v. Friday, 478 U.S. 385

(1986)).

7a

Appendix A

Here, the parties do not dispute that the officers who

successfully made it to the CHP supervisory ranks constitute

one group for comparison. The parties do dispute, however,

the group to which this first group should be compared

(“the comparative group”). The defendants argue that we

should conduct our statistical analysis as we ordinarily would

in a promotion case and use an “internal pool” (the actual

pool of promotional applicants) as the comparative group.

In contrast, the plaintiffs argue that an internal pool is not

appropriate because the CHP’s discrimination in hiring

renders that pool an inaccurate reflection of the number

of qualified non-white candidates who should be eligible,

and would apply, for promotions. Accordingly, the plaintiffs

argue that an “external pool” should be used — that is, a pool

consisting of similarly skilled peace officers in the state of

California.*

5. The “external pool” is defined by the categories of the 1990

California Census that correspond to the similarly skilled positions

in the CHP. According to the census, the state-wide percentage of

non-white “Supervisors, Police and Detectives” (census code 414

— supervisory positions) is 23.1%. The state-wide percentage of

non-white “Police and Detectives, Public Service” (census code 418

— non-supervisory positions) is 28.8%. The district court adopted

the 1990 California Census codes as the appropriate measurements

of qualified non-white applicants for the supervisory CHP positions.

With regard to the internal pool, of the 2,842 officers who applied

to be promoted, 572, or 20.1%, were non-white. Thus, the difference

between using an internal and an external pool is that in the former

case, non-whites would constitute 20.1% of the total number of

(actual) applicants and in the latter, 28.8% of the total number of

(potential) applicants. The internal pool would, of course, vary

(Cont'd)

a -

8a

Appendix A

Prior to Paige J, the district court concluded that an

external rather than internal pool was the appropriate

comparative group to use in this case. On appeal, we held

that the district court made insufficient factual findings to

justify that conclusion. Accordingly, we remanded for further

findings as to which type of pool was appropriate for use in

this case and whether, using whichever pool was appropriate,

a disparate impact had been demonstrated. After further

discovery, the district court again found an external pool to

be the appropriate comparative group, and again found a

disparate impact. It found that the use of the internal pool

was inappropriate because of barriers to the hiring process

that resulted in an underrepresentation of non-whites in the

group eligible to apply for promotions.

Much of this case’s history has concentrated on the

debate over the use of an external versus internal pool.

We may have inadvertently contributed to this diversion from

the controlling issues. In Paige J, in holding that the use of

the external pool was unjustified on the record before us,

we stated that “[t]here was no evidence offered that the CHP

discriminated in hiring, or of any employment practice that

deterred non-white, non-supervisory employees from apply-

ing for promotion.” Paige J, 1996 WL 740839, at *2. The

parties and the district court then devoted their efforts in large

part to examining whether the CHP engaged in discriminatory

hiring at the entry-level and assessing the appropriateness of

(Cont'd)

depending on the aspect of the promotional process challenged.

For example, if the analysis focused solely on the sergeants written

exam, the internal pool would consist of the officers who applied

for promotion to the sergeants rank.

9a

Appendix A

using an external pool. However, at the time of Paige I,

the district court had not yet made a critical ruling that turns

out to be determinative of the appropriate comparative group

issue. Following our remand in Paige I, the district court

held that, in light of the limited nature of their pleadings,

the plaintiffs lacked standing to challenge the “closed promo-

tion process” of the CHP. This ruling, which plaintiffs do

not contest on appeal, leads to the inevitable conclusion that

the use of an external pool in this case is inappropriate.

The district court’s standing ruling was issued in response

to the plaintiffs’ efforts to invalidate the CHP’s practice,

pursuant to Cal. Veh. Code § 2251, of promoting only

from within, as opposed to allowing officers from other

police departments to apply for CHP supervisory positions.

Obviously, as the district court noted, hiring only from within

could not harm the plaintiffs, who are all members or future

members of the CHP. In fact, prohibiting outside competition

and thereby limiting the numbers of persons eligible to seek

supervisory positions to those in the plaintiff class could only

benefit the class members and improve their chances for

promotion. As the district court explained, “[p]laintiffs are

not subject to the limitations of § 2251 because, as members

of the CHP, they are eligible to apply for supervisory

vacancies.” It therefore found that they lacked standing

to challenge the practice. in short, the district court held

that the plaintiffs may only challenge the aspects of the

promotional process that adversely affect them, and that a

closed promotional process causes them no injury.

The use of an external pool might well be appropriate in

a case in which the plaintiffs are free to challenge the validity

of a closed promotionai process and to seek relief in the form

10a

Appendix A

of an order requiring that candidates both from within and

without an employer’s ranks be allowed to compete for

supervisory vacancies. In that circumstance, the court would

have to determine whether the employer’s closed promotional

process served to limit disproportionately the number of non-

whites who obtain supervisory positions with the employer,

and accordingly, the comparative group would consist of all

potential applicants. Where, however, as here, the plaintiffs

are by class definition all members of the CHP who may

only contest the aspects of the closed promotional process

that adversely affect their own opportunities for promotion,

the only relevant question is whether the examination process

adversely affects non-white as compared to white CHP

officers. In other words, does the challenged practice favor

white officers over non-white officers? To answer this

question, an internal pool — the pool of all officers who

apply for promotion — constitutes the appropriate

comparative group.°

In sum, we hold that an internal pool is the proper

comparative group for use in determining whether the various

parts of the CHP’s promotional process have a disparate

impact on non-white officers.’ Although this holding requires

6. The plaintiffs have not offered any evidence to suggest that

non-white officers who are eligible for promotion aie dissuaded from

actually applying for these promotions. Therefore, the pool of actual

applicants is appropriate for statistical analysis as opposed to using

the pool of officers who are eligible to apply.

7. The fact that the plaintiffs in this case are required to contest

particular aspects of the promotional process comports with the

general rule that, unless the factors are incapable of separation,

(Cont’d)

lla

Appendix A

us to reverse the district court’s grant of summary judgment

for the plaintiffs, it does not require us to direct that summary

judgment be awarded to the defendants. Instead, we must

ask which parts of the promotional process, if any, have a

disparate impact on non-white officers. This can only be

answered by employing a statistical analysis based on the

proper comparative group. Because the parties offer conflic-

ting inferences drawn from the evidence they each offered

as to whether the use of an internal pool shows such a

discriminatory effect, there is a genuine dispute of material

fact as to whether the promotional exams have a disparate

impact, and this action must proceed to trial.

(Cont'd)

a plaintiff must demonstrate that a particular factor or aspect of a

decisionmaking process has a disparate impact. See Watson, 487 U.S.

at 994; Stout v. Potter, 276 F.3d 1118, 1124 (9th Cir. 2002) (stating

that plaintiffs generally cannot attack overall decisionmaking process,

rather they must identify a particular element or practice); see also

42 U.S.C. §§ 2000e-2(k)(1)(A)(i) and (B)(i). But see Powers v.

Alabama Dept. of Educ., 854 F.2d 1285, 1293 (11th Cir. 1988)

(“[P)laintiffs alleging class-wide discrimination in promotions are

not required to isolate the particular aspect of the promotional process

that is responsible for the discriminatory impact.”).

8. It appears from the district court’s order that the judge may

have already considered some of the plaintiffs’ data in which they

used an internal pool for their statistical analysis. The district court

stated that it granted partial summary judgment for the plaintiffs

“on the issue of disparate impact resulting from the use of written

examination for promotional eligibility.” However, such a conclusion

would not be possible using an external pool because the external

pool data is not subdivided according to various types of exam-

(Cont'd)

12a

Appendix A

There are, however, questions of law bound up in these

factual questions. In order to give guidance to the parties

and the district court, and because this case was filed eight

years ago and has been before this court twice already,

we address these issues now. The defendants challenge the

validity of the plaintiffs’ statistical analyses in three ways:

First, the defendants argue that the plaintiffs improperly

aggregate data from the various written examinations; second,

they contend that the plaintiffs erroneously group all non-

white officers together rather than analyzing the data

according to each separate minority group; and third,

the defendants argue that the plaintiffs may not include data

from before the beginning of the liability period.

With regard to the first two arguments against the

aggregation of data, it is a generally accepted principle that

aggregated statistical data may be used where it is more

probative than subdivided data. See Eldredge v. Carpenters

46 N. Cal. Counties Joint Apprenticeship and Training

Comm., 833 F.2d 1334, 1339-40 nn.7&8 (9th Cir. 1987).

Such use is particularly appropriate where small sample size

may distort the statistical analysis and may render any find-

ings not statistically probative. See Int’l Brotherhood of

Teamsters v. United States, 431 U.S. 324, 340 n.20 (1977);

Stout v. Potter, 276 F.3d 1118, 1123 (9th Cir. 2002). Indeed,

(Cont’d)

inations. Nevertheless, the district court explicitly stated that an

external pool was the appropriate measure for determining disparate

impact in this case. If only because of this internal inconsistency,

we cannot affirm the district court’s grant of summary judgment in

favor of the plaintiffs on the alternate ground that it is supported by

statistical data based on the use of an internal pool.

13a

Appendix A

some commentators suggest that stratification should be

upheld only if the employer can demonstrate that “the

stratification is appropriate, and that the stratifying variable

is business justified.” Ramona L. Paetzold & Steven L.

Willborn, The Statistics of Discrimination § 5.08 at 35 (1996

& Supp. 2001).

The defendants first argue that the plaintiffs improperly

group data from the various written exams for the supervisory

ranks.’ The district court found aggregation of the supervisory

positions to be more probative than subdivided data. We

agree. The plaintiffs demonstrated, by pointing to the State

Personnel Reports, the Census reports, and the CHP’s own

descriptions of the positions, sufficient commonality among

the duties and skills required by the various supervisory

positions to justify aggregation. The defendants themselves

group the supervisory positions together for purposes of

their reports to the State Personnel Board and the EEOC.

Additionally, aggregation of similar employment positions

has been done in other Title VII race discrimination cases.

See Hazelwood, 433 U.S. at 308 n.13 (aggregating various

9. The defendants also contest categorizing the “in-basket”

Captains exam as a written examination. However, the defendants’

own witness, the Commander of the CHP’s Selections and

Examination Section, made clear that the in-basket exam is a written

exam. He described the captains examination process as follows:

“Candidates are required to respond in writing to the problems

contained in the in-basket exercise. These written responses are

evaluated for technical content and writing proficiency by panel

members of the qualifications appraisal oral interview that follows

the in-basket exercise.” Thus, it is clear that the in-basket exam

qualifies as a written exam.

l4a

Appendix A

types of public school teacher positions for purposes of

analysis); Simmons v. City of Kansas City, No. CIV.A.

88-2603-0, 1992 WL 403096, at *6 (D. Kan. Dec. 7, 1992)

(upholding statistical analysis that grouped testing procedures

for all supervisory ranks of police department).

Second, the defendants contest the district court’s ruling

that aggregating non-white officers resulted in more probative

data than would dividing them according to individual

minority groups. Again, we agree with the district court.

In general, “the plaintiff should not be required to

disaggregate the data into subgroups which are smaller than

the groups which may be presumed to have been similarly

situated and affected by common policies.” Eldredge, 833

F.2d at 1340 n.8 (quoting D. Baldus & J. Cole, Statistical

Proof of Discrimination § 7.0-7.2 (1980 & 1986 Supp.)).

Here, plaintiffs’ theory is that the employment practices have

the identical discriminatory effect upon members of all

minority groups, and that those practices unlawfully benefit

solely the members of the white majority. Right or wrong,

they are entitled to attempt to prove their case. In addition,

the defendants have not put forth any evidence that certain

minority groups shoulda be evaluated differently than others

or that the promotional process has treated particular minority

groups differently. Cf, Rich v. Martin Marietta Corp., 522

F.2d 333, 346 (10th Cir. 1975) (holding that inclusion of

“Orientals and American Indians” was not appropriate

because they were not similarly situated in terms of numbers

in upper echelon of the labor force). Finally, the defendants

15a

Appendix A

have not presented any evidence that suggests that the

stratification of data on the basis of particular minority groups

is business justified. '°

The defendants’ final argument regarding plaintiffs’

statistics is that the plaintiffs erroneously rely on data taken

from examinations and corresponding eligibility lists that

expired before the start of the liability period. However,

we have held that it is appropriate to admit pre-liability period

data into evidence in a disparate impact case if promotional

practices remain similar over a long period of time, as they

have in this case. See, e.g., Bouman v. Block, 940 F.2d 1211,

1226 (9th Cir. 1991) (allowing plaintiffs in a Title VII

disparate impact case to aggregate results from multiple

promotional exams because “courts have repeatedly looked

at trends from past examinations to see if the total pass rate

showed evidence of discrimination”); Eldredge, 833 F.2d

at 1339 n.7 (finding data in a Title VII disparate impact case

“more complete and reliable” when aggregated over nine

years than when shown year-by-year); see also 28 C.F.R.

§ 50.14 at § 4(d) (1977) (stating that in a Title VI disparate

impact case, when the data indicate that a procedure has

discriminatory impact, but the data set is too small to be

10. As additional support for the aggregation of the statistics

concerning non-white officers, we note that the class was certified

as a class of “non-white” officers and the CHP did not contest this

aspect of the certification. See Paige I, 102 F.3d at 1042 (affirming

use of class-based action and stating how case would look at use of

race in all applications for promotions); see also Wards Cove, 490

U.S. at 647 (action in which plaintiff class comprised of all non-

white workers); Domingo v. New England Fish Co., 727 F.2d 1429,

1442 (9th Cir. 1984) (same).

16a

Appendix A

reliable, plaintiffs may supplement data with evidence

concerning the impact of the procedure over a longer period

of time). We agree with the district court that pre-liability

period data may properly be included in the statistical analysis

in this case.

In sum, we reject the defendants’ three arguments

contesting certain aspects of the plaintiffs’ statistical analyses.

The plaintiffs may aggregate data from the various super-

visory written examinations and may group all non-white

officers together for comparison purposes. Additionally,

“pre-liability period” data may be included in the statistical

analyses. The defendants are of course equally free to

introduce whatever data they may deem to be appropriate,

subject to the further rulings of the district court."

The defendants also argued before the district court that

even if its promotional process did have a disparate impact

on non-white officers, the process “fulfill[s] a genuine

business need” and is therefore job related and permissible

under Title VII. Griggs v. Duke Power Co., 401 U.S. 424,

432 (1971); see also 42 U.S.C. § 2000€-2(k)(1)(A)(i).

11. On summary judgment, the plaintiffs presented statistical

analyses using an internal pool in support of their contentions as to

the disparate impact on non-white officers of (a) the sergeants written

examination standing alone; (b) the sergeants, lieutenants, and

captains written examinations combined; and (c) the use of a weighted

composite score for determining the eligibility lists for the sergeants

rank. Upon remand, the plaintiffs are not limited to challenging these

aspects of the promotional process but may offer appropriate

Statistical evidence regarding any of the classifications or

examinations involved.

17a

Appendix A

We agree with the district court that the CHP failed to show

an appropriate validation of the promotional process as a

whole or of its individual parts, in part because it did not

present any evidence regarding how the examinations actually

test for the skills identified by the CHP as critical to

performing well in a particular supervisory rank. See Griggs,

401 U.S. at 432; Assoc. of Mexican-American Educators

v. State of California, 231 F.3d 572, 585 (9th Cir. 2000)

(en banc); Bouman, 940 F.2d at 1228. Therefore, on the record

before us, the defendants have failed to meet their burden of

production demonstrating that the promotional process is

“job related.”

Because we hold that an external pool is not the

appropriate comparative group for determining disparate

impact, the summary judgment in favor of the plaintiffs

cannot stand. We also hold that the defendants have failed

to demonstrate that the promotional process at issue fulfills

a genuine business need; thus, they also are not entitled to

summary judgment. Genuine issues of material fact remain.

We therefore remand for trial at which time the parties may

submit appropriate statistical and other evidence in light of

our holding. We also vacate the injunction issued by the

district court because it was based in part on its granting of

summary judgment to the plaintiffs and its finding of

disparate impact using an external pool. We express no view

as to whether injunctive relief would otherwise be

appropriate.

REVERSED AND REMANDED.

al

18a

Appendix A

ORDER AND DENIAL OF REHEARING

FILED MAY 31, 2002 AND AMENDED JULY 18, 2002

The opinion filed May 31, 2002, is amended as follows:

1. At page 7951 of the slip opinion, delete the last sentence

of the first full paragraph and the two subsequent paragraphs.

2. At page 7951 of the slip opinion, add to the end of the

first full paragraph (following “liability period”):

However, we have held that it is appropriate to

admit pre-liability period data into evidence in a

disparate impact case if promotional practices

remain similar over a long period of time, as they

have in this case. See, e.g., Bouman v. Block,

940 F.2d 1211, 1226 (9th Cir. 1991) (allowing

plaintiffs in a Title VII disparate impact case to

aggregate results from multiple promotional

exams because “courts have repeatedly looked at

trends from past examinations to see if the total

pass rate showed evidence of discrimination”);

Eldredge, 833 F.2d at 1339 n.7 (finding data in a

Title VII disparate impact case “more complete

and reliable” when aggregated over nine years

than when shown year-by-year); see also 28 C.F.R.

§ 50.14 at § 4(d) (1977) (stating that in a Title VII

disparate impact case, when the data indicate that

a procedure has discriminatory impact, but the

data set is too small to be reliable, plaintiffs may

supplement data with evidence concerning the

impact of the procedure over a longer period of

19a

Appendix A

time). We agree with the district court that pre-

liability period data may properly be included in

the statistical analysis in this case.

3. At page 7952, line 25 of the slip opinion, delete “under

the continuing violation theory.”

4. At page 7953, line 14 of the slip opinion, replace “Bouman

v. Block, 940 F.2d 1211, 1228 (9th Cir. 1991)” with “Bouman,

940 F.2d at 1228.”

With these amendments, the panel has voted to deny the

Petition for Rehearing and Petition for Rehearing En Banc.

The Full court has been advised of the Petition for

Rehearing En Banc and no judge of the court has requested

a vote on the Petition for Rehearing En Banc. Fed. R. App.

P. 35.

The Petition for Rehearing and Petition for Rehearing

En Banc are DENIED.

| 20a

APPENDIX B — MATERIAL DELETED FROM

PAGES 7951 & 7952 OF THE OPINION OF THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DATED AND FILED MAY 31, 2002

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 01-55312

D.C. No. CV-94-00083-CBM

Jerr D. Paice, individually & on behalf of

others similarly situated,

Plaintiff-Appellee,

V.

STATE OF CALIFORNIA; CALIFORNIA HIGHWAY PATROL;

EDWARD RICHARD GOMEZ; DwiGuT HELMICK,

Commissioner of California Highway Patrol,

Defendants-Appellants,

and

BUSINESS, TRANSPORTATION & Hous AGENCY, of the

State of California; MAURICE N24) AHANNIGAN,

in his official capacity as Commissioner

of the California Highway Patrol,

Defendants.

Halk eceensimenssienseen iii

2la

Appendix B

Appeal from the United States District Court

for the Central District of California

Consuelo B. Marshall, District Judge, Presiding

Argued and Submitted

January 23, 2002—-San Francisco, California

Filed May 31, 2002

Before: Stephen Reinhardt, Alex Kozinski and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Reinhardt

OPINION

* * *

[7951] . . . However, we agree with the district court that

pre-liability period data is proper for inclusion in the

Statistical analysis in this case.

Where a systemic policy of discrimination is ongoing,

a plaintiff may allege a continuing violation under Title VII.

See Moore v. City of San Jose, 615 F.2d 1265, 1274 (9th Cir.

1980). We have recognized that continuing violations

are most likely to occur in cases involving placements or

promotions. See Morgan v. Nat’l R.R. Passenger Corp.,

232 F.3d 1008, 1016 (9th Cir. 2000); Williams v. Owens-

Illinois, Inc., 665 F.2d 918, 924 (9th Cir. 1982). The

“continuing violation” doctrine “allows courts to consider

conduct that would ordinarily be time barred ‘as long as

22a

Appendix B

the untimely incidents repre[7952]sent an ongoing unlaw-

ful employment practice.’ ” Morgan, 232 F.3d at 1014

(internal citations omitted). Thus, an ongoing and system-

wide discriminatory employment practice is actionable “even

if some or all of the events evidencing its inception occurred

prior to the limitations period.” Williams, 665 F.2d at 924;

’ see also Green v. Los Angeles County Superintendent of

Schs., 883 F.2d 1472, 1480 (9th Cir. 1989).

In this case, the plaintiffs allege that the CHP’s promotional

process operates as a system-wide ongoing discriminatory

policy and practice. The district court found that the “[p]lain-

tiffs submitted evidence that the CHP’s promotion policy is

a continuing violation of Title VII.” Therefore, the district

court is correct that it is permissible for the plaintiffs to

include pre-liability data in support of their allegations.

Because the plaintiffs raise their claim of disparate impact

under a viable “continuing violation” theory, they may use

pre-liability period data to demonstrate “a systematic policy

or practice of discrimination that operated, in part, within

the limitations period.”"' Morgan, 232 F.3d at 1015.

* * * *

11. There is no debate over the fact that the CHP employed

the promotional process at issue here during the liability period.

Accordingly, there is no question that this action is timely. See Reed

v. Lockheed Aircraft Corp., 613 F.2d 757, 760 (9th Cir. 1980);

see also United Air Lines, Inc. v. Evans, 431 U.S. 553, 559-60 (1977).

23a

APPENDIX C — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE CENTRAL DISTRICT

OF CALIFORNIA, WESTERN DIVISION

DATED AND FILED APRIL 12, 2000

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

Case No. CV 94-83 CBM (Ctx)

JEFF D. PAIGE, individually and on behalf of others

similarly situated

Plaintiffs,

V.

STATE OF CALIFORNIA,

CALIFORNIA HIGHWAY PATROL, et al.

Defendants.

ORDER RE: MOTION FOR RECONSIDERATION;

MOTIONS FOR PARTIAL SUMMARY JUDGMENT

I. JURISDICTION

This Court has jurisdiction over this matter pursuant to

42 U.S.C. § 2000¢e et. seq. #

II. BACKGROUND

This action was filed against Defendants on January 5,

1994, alleging promotion discrimination on the basis of

race in violation of Title VII of the Civil Rights Act of 1964

24a

Appendix C

(“Title VII”) on behalf of a class, later certified by the Court,

consisting of all past, present and future minority officers of

the California Highway Patrol. On March 29, 1995, the Court

entered summary judgment in favor of Plaintiffs on their class

claim of disparate impact in promotions and entered an

injunction that required future promotions to include a certain

percentage of qualified minority officers. On December 20,

1996, the Ninth Circuit reversed the Court’s March 29 order,

vacated the injunction, and remanded the case to this Court.

The Ninth Circuit found that this Court, on the record before

her, improperly rejected the internal pool as a basis for deter-

mining whether Defendants’ promotion practices had a disparate

impact on Plaintiffs. The Ninth Circuit stated that “[t]here

was no evidence offered that the CHP discriminated in

hiring, or of any employment practice that deterred non-white,

non-supervisory employees from applying for promotion.”

Paige v. State of California, et. al., 105 F.3d 666, 1996 WL

740839 ** 2 (9th Cir. 1996) (“inhibiting factors”). Consequently,

on April 9, 1997, at Plaintiffs’ request the Court ordered

discovery on the issue of hiring discrimination and set

August 1, 1997 as the discovery completion date.

Plaintiffs and Defendants brought cross-motions for

partial summary judgment. Defendants argued that no

statistically significant adverse impact exists using an internal

pool, and that Plaintiffs’ statistical methodology is flawed

so they cannot establish a prima facie showing of disparate

impact. Defendants also argued that their written exami-

nations are business related, and that its promotions from

within policy is consistent with Title VI. On August 13, 1998,

the Court granted Plaintiffs’ and denied Defendants’ motion

for partial summary judgment on the theory of disparate

25a

Appendix C

impact, finding ten inhibiting factors or characteristics of

the employment practice that justify the use of an external

pool rather than the internal pool.

Defendants filed a motion for reconsideration of the order

granting partial summary judgment, arguing that the Order

exceeded the scope of Plaintiff’s motion. On March 10, 1999,

the Court issued an order disagreeing with Defendants

but allowing them to conduct limited discovery on the

issues of recruitment and hiring and to file a supplemental

opposition addressing the alleged inhibiting factors and

the appropriateness of relying on an external pool. The Court

deferred ruling on Defendants’ motion to reconsider the

August 12, 1998 Order pending a review and analysis of the

supplemental filings.

III. DISCUSSION

A. Plaintiffs’ Supplemental Evidence

Plaintiffs filed supplemental evidence, which includes

the declarations of Richard Biddle and the declaration of

Della Bahan.

B. Defendants’ Supplemental Evidence

Defendants filed supplemental evidence, including the

declaration of Michael Ward,' the declaration of Michael B.

Davis, the declaration of Alan B. Deal, and supporting exhibits.

1. Plaintiffs do not object to the admission of Ward’s

Declaration. Defendant had previously identified Ward as a defense

expert and Ward’s Declaration is limited to a critique of the

declaration of Plaintiffs’ expert Biddle.

26a

Appendix C

Plaintiffs object to the admission of the declarations of

Deal and Davis. Plaintiffs argue that Defendants failed to

identify Deal and Davis as experts in violation of Federal

Rule 26(e) and Local Rule 6.2.2 and that during discovery

Defendants failed to produce most of the documents attached

to the declarations. Bahan Decl, { 2.

Federal Rule 26(e) requires parties to supplement

discovery responses, including expert disclosures, “if the

party learns that in some material respect the information

disclosed is incomplete or incorrect and if the additional or

corrective information has not otherwise been made known

to the other parties during the discovery process or in writ-

ing.” Federal Rule 37(c)(1) provides that if a party fails to

supplement its discovery responses pursuant to Rule 26(e),

the party will not be permitted to utilize the documents or

witnesses not properly disclosed unless the party can provide

“substantial justification” or show that the failure was

harmless. Local Rule 6 imposes on the parties a continuing

duty to promptly advise the other of additional witnesses and

additional documents, data compilations and tangible things

as they become known, subject to Local Rule 6.3.2 sanctions

in the case of non-disclosure:

If a witness, document or other item has not

been disclosed as required by Rules 6.2.1, 6.2.2,

or 6.2.3, the witness, document, or other item

may be subject to exclusion at the trial.

Plaintiffs declare that they first heard of Defendants’ wit-

ness when the declarations arrived in the mail on June 30,

1999. Bahan Decl. ¢ 3. Alan B. Deal is Bureau Chief of the

27a

Appendix C

Standards and Evaluation Services Bureau for the California

Commission on Peace Officer Standards and Training.

His declaration addresses the selection devices that are used

in the hiring of peace officers in California. Michael B. Davis

is Commander of the Selection Standards and Examinations

Section of the Personnel and Training Division of the

California Highway Patrol. His declaration describes the

CHP’s policies and practices in place from September 1989

to December 1993.

Plaintiffs declare that during discovery Defendants failed

to produce some of the documents that are exhibits to the

declarations. Bahan Decl. § 2. In letters dated June 10, 1999

and June 23, 1999, Defendants sent to Plaintiffs five

documents that had not been previously produced in response

to Plaintiffs’ Requests for Production Nos. 176, 188, 199,

207 and 209. Specifically, four documents were attached to

Defendants’ June 10, 1999 letter: (1) POST Reading and

Writing Test Validation Research (1994); (2) Entry-level

Reading and Writing Tests for California Law Enforcement:

Final Relatedness (1976); (3) Background Investigation

Project: Final Report (1977); and (4) Procedural Job-

Relatedness (1976). Bahan Decl., Ex.Al. The fifth “recently

discovered” document, entitled “Final Report on the

Validation of Physical Maintenance Standards for State

Traffic Officer (1984),” was attached to Defendant’s

June 22, 1999 letter. Bahan Decl, Ex. A2.

This Court will not consider the declarations of Deal

and Davis and the recently produced documents because they

were not previously disclosed pursuant to Federal Rule 26(e)

and Local Rule 6. Plaintiffs’ objections are sustained.

28a

Appendix C

C. Defendants’ Motion for Reconsideration

Having considered the arguments and evidence in

support of and in opposition to the original motion and the

supplemental papers filed by Plaintiffs and Defendants,

this Court GRANTS Defendants’ motion for reconsideration

and revisits the motions for partial summary judgment on

adverse impact grounds.

D. Standard for Summary Judgment

Federal Rule of Civil Procedure 56 states that summary

judgment may be granted when “the pleadings, depositions,

answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Ina

motion for summary judgment, “[i]f the party moving for

summary judgment meets its initial burden of identifying for

the court those portions of the materials on file that it believes

demonstrates the absence of any genuine issues of material

fact,” the burden of production then shifts so that the

non-moving party must set forth, by affidavit or as otherwise

provided in Rule 56, “specific facts showing that there is a

genuine issue for trial.” 7: W. Elec. Serv., Inc. v. Pacific Elec.

Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quoting

Celotex Corp. V. Catrett, 477 U.S. 317, 324 (1986)).

If the factual context make the non-moving party’s claim

implausible, that party must come forward with more persua-

sive evidence than would otherwise be necessary to show

that there is a genuine issue for trial. California Architectural

Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d

29a

Appendix C

1466, 1468 (9th Cir. 1987), cert. denied, 484 U.S. 1006

(1988) (citing Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986)).

Finally, if the non-moving party bears the burden of proof

with respect to an element essential to the case, and that party

fails to make a sufficient showing to establish a genuine

dispute of fact with respect to the existence of the element,

summary judgment is appropriate. California Architectural,

818 F.2d at 1468 (citing Celotex 477 U.S. at 317).

1. Disparate Impact

Title VII provides that it is an unfair employment practice

for an employer to discriminate against any individual in

hiring or in the terms and conditions of employment based

on the individual’s race, color, religion, sex, or national

origin. The limitation, classification, or segregation of

employees in ways that would adversely affect them based

on race, color, religion, sex, or national origin is also an unfair

employment practice. Ward Cove Packing Co., Inc. v. Atonio,

109 S.Ct. 2115, 2118 (1989). Title VII allows the complaining

party to advance a claim under a theory of disparate impact

or disparate treatment. Jnt’] Bd. of Teamsters v. United States,

97 S.Ct. 1843, 1854 n. 15 (1977). Disparate impact theory

provides that a facially neutral employment practice may

violate Title VII without evidence of an employer’s subjective

intent to discriminate. Ward Cove, 109 S.Ct. at 2119. Plain-

tiffs, to establish a prima facie case under the disparate impact

theory, must prove by a preponderance of the evidence that

the challenged employment practice created an adverse

impact on a protected class. Connecticut v. Teal, 457 U.S.

440, 446 (1982).

30a

Appendix C

The starting point of a disparate impact analysis is the

determination of the appropriate candidate pool and its racial

composition. In promotion cases, “ ‘[t]he best evidence of

discriminatory impact is proof that an employment practice

selects members of a protected class ... in a proportion

smaller than in the actual pool of eligible employees.’

Disparate impact should not be measured against the

actual pool of applicants, however, if ‘there is a characteristic

of the challenged [employment practice] that makes the

use of the actual pool of applicants or eligible employees

inappropriate.’ In such cases, ‘disparate impact may be

established through reference to a reasonable proxy of the

pool of individuals actually affected by the alleged

discrimination.’ ”Paige v. State of California, et. al., 105 F.3d

666, 1996 WL 740839 **2 (9th Cir. 1996) (quoting Moore v.

Hughes Helicopters, Inc., 708 F.2d 475, 482 (9th Cir. 1983)).

2. Use of the External Pool

Defendants argue in their Supplemental Opposition

that “an external measure of availability ... can never be

a ‘reasonable’ proxy for the pool of actual minority

applications.” Defendants’ Supplemental Opposition 9: 13-15.

The Ninth Circuit has already rejected this argument in this

case. Paige, 1996 WL 740839 **2. Defendants also argue

that the “existence of inhibiting factors in the hiring process

is legally and factually irrelevant to evaluation of Plaintiffs

promotional claim.” Defendants’ Supplemental Opposition

3:11-12. The Ninth Circuit, however, aware that this is a

promotions case, noted that there “may be inhibiting factors

that result in the internal pool of applicants being unrepre-

sentative” and remanded to permit this Court to determine

31a

Appendix C

whether the record establishes the existence of “any employ-

ment practice that deterred non-white, non-supervisory

employees from applying for promotion” or “a practice that

expressly or implicitly deters non-white officers from joining

the CHP or applying for supervisory positions,” Paige,

1996 WL 740839 **2.

Defendants assert that Plaintiffs’ original motion was

solely based on the use of an internal measure of availability

and therefore did not require a ruling on the use of an external

proxy. An examination of the papers submitted in support

of both parties’ motions for partial summary judgment

reveals that Plaintiffs indeed address characteristics of the

employment practice that make the use of the actual pool

inappropriate. See Plaintiffs’ Memo of Points and Authorities,

4:10-7:1; Biddle Decl, | 58 (Plaintiffs’ expert).

Plaintiffs identified ten entrance requirements or inhibit-

ing factors that make the actual pool unrepresentative of the

local labor force: 1) applicant screening; 2) discouragement

before the written test; 3) passing the written test; 4) passing

the physical ability test; 5) passing the quality appraisal panel;

6) passing the psychological test; 7) passing the background

investigation; 8) appointment from the eligibility list;

9) graduating from the academy; and 10) the large percentage

of nonwhites in the small pool of cadets added to the large

pool of state traffic officers with a small pool of nonwhites.

Fifteenth Biddle Decl., {9 44, 95-99, 117, 12, 148-261, 263.

Defendants provide evidence in an attempt to challenge

the entrance requirements. Regarding requirement two,

discouragement before written test, Ward declares that the

32a

Appendix C

conclusion is only true for African Americans, whereas

Hispanics are proportionately more likely to appear for

written exams than whites. Ward Decl, J 9. Regarding

requirement three, passing the written test, Ward declares

that there are actually two tests, a multiple choice and an

essay test. In particular, Ward points out that minorities

passed the essay portion “at 89.9% of the white rate.” Ward

Decl, § 10-12. Regarding requirement five, passing the

quality appraisal panel, Ward declares that selection rates

for minorities exceed the selection rates for whites. Ward

Decl, § 17. Regarding requirement nine, graduating from

the academy, Ward declares that Biddle incorrectly reaches

his results by improperly including pending status cadets,

which reduces the standard deviation from -2.17 to -1.98.

Ward Decl, ¥ 19.

The only evidence Defendants present to challenge

requirements four, six, seven are the inadmissible

declarations of Deal and Davis. Even if the Court were to

assume that Defendants successfully challenge requirements

two, three, four, five, six, seven, and nine, Defendants fail to

provide any evidence that challenges inhibiting requirements

one, applicant screening, and eight, appointment from the

eligibility list. Plaintiffs therefore succeed in establishing the

existence of requirements that make the use of the internal

pool inappropriate. The Court finds that Plaintiffs’ use of an

external pool to illustrate statistically significant adverse

impact is the appropriate measure for determining disparate

impact.

The Court hereby orders that the August 13,1998 Order

remain in full force and effect. IT IS SO ORDERED.

33a

Appendix C

DATE: April 12, 2000

s/ Consuelo B. Marshall

CONSUELO B. MARSHALL

UNITED STATES DISTRICT JUDGE

34a

APPENDIX D — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE CENTRAL DISTRICT OF

CALIFORNIA DATED AND FILED AUGUST 12, 1999

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

No. CV 94-0083 CBM

JEFF D. PAIGE, et. al.,

Plaintiffs,

V.

STATE OF CALIFORNIA, et. al.,

Defendants.

ORDER RE: (1) PLAINTIFF’S MOTION FOR PARTIAL

SUMMARY JUDGMENT; (2) DEFENDANTS’ MOTION

FOR PARTIAL SUMMARY JUDGMENT; (3) PLAINTIFF’S

EVIDENTIARY MOTION; (4) DEFENDANTS’

EVIDENTIARY MOTIONS

The matters before this Court, the Honorable Consuelo

B. Marshall, United States District Judge, presiding, are

Plaintiff Jeff D. Paige, et. al.’s (“Plaintiffs’ ”’) Motion for

Partial Summary Judgment and Defendants the State of

California, et. al.’s (“Defendants’ ”) Motion for Partial

Summary Judgment. Defendants also bring a Motion to Strike

the Supplement to the Declaration of Richard Biddle as well

as a Motion to Reopen Discovery on Hiring and Recruitment

35a

Appendix D

Issues for Defendants Only. Plaintiffs file a Motion to Reopen

Discovery after Remand from the Ninth Circuit. Based on

the papers and argument of Counsel, this Court issues the

following Order.

I. JURISDICTION

This Court has jurisdiction over this matter pursuant to

28 U.S.C. § 1331.

II. BACKGROUND

Plaintiffs filed this action against Defendants on

January 5, 1994, alleging promotion discrimination on

the basis of race in violation of Title VII of the Civil Rights

Act of 1964 (“Title VII’). On March 29, 1995, the Court

entered summary judgment in favor of Plaintiffs on their class

claim of disparate impact in promotions and entered an

injunction that required future promotions to include a certain

percentage of qualified minority officers. On December 20,

1996, the Ninth Circuit reversed the Court’s March 29 order,

vacated the injunction, and remanded the case to this Court.

The Ninth Circuit found that this Court, on the record before

her, improperly rejected the internal pool as a basis for

determining whether Defendants’ promotion practices had a

disparate impact on Plaintiffs.

On April 9, 1997, the Court ordered discovery reopened

on the issues of hiring and recruitment and set August 1,

1997 as the discovery completion date. Plaintiffs and

Defendants bring cross-motions for partial summary

36a

Appendix D

judgment. Plaintiffs contend that a prima facie case of

disparate impacts exists because Defendants’ use of written

examinations for promotion eligibility causes a statistically

significant adverse impact on non-white CHP officers.

Plaintiffs also contend that Defendants’ promote from within

policy is an unlawful business practice under Title VII.

Defendants argue that no statistically significant adverse

impact exists using an internal pool. Moreover, Defendants

argue that Plaintiffs’ statistical methodology is flawed so he

cannot establish a prima facie showing of disparate impact.

Furthermore, Defendants argue that their written

examinations are business related, and that its promotions

from within policy is consistent with Title VII.

Ill. DISCUSSION

Under Title VII, it is an unfair employment practice for

an employer to discriminate against any individual in hiring

or in the terms and conditions of employment based on

the individual’s race, color, religion, sex, or national origin.

The limitation, classification, or segregation of employees

in ways that would adversely affect them based on race, color,

religion, sex, or national origin is also an unfair employment

practice. Ward Cove Packing Co., Inc. v. Atonio, 109 S.Ct.

2115, 2118 (1989). Title VII allows the complaining party

to advance a claim under a theory of disparate impact or

disparate treatment. Jnternat’] Bhd. of Teamsters v. United

States, 97 S.Ct. 1843, 1854 n. 15 (1977). Under the disparate

impact theory, a facially neutral employment practice may

be held violative of Title VII without evidence of an

employer’s subjective intent to discriminate. Ward Cove, 109

37a

Appendix D

S.Ct. at 2119. To establish a prima facie case under the

disparate impact theory, Plaintiffs must prove by a prepon-

derance of the evidence that the challenged employment

practice of written exams created a significant adverse impact

on a protected class. Connecticut v. Teal, 102 S.Ct. 2525,

2530 (1982).

A. Standard for Summary Judgment Under Fed. R.

Civ. P. 56.

Federal Rule of Civil Procedure 56 states that summary

judgment may be granted when “the pleadings, depositions,

answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Ina

motion for summary judgment, “[i]f the party moving for

summary judgment meets its initial burden of identifying for

the court those portions of the materials on file that it believes

demonstrates the absence of any genuine issues of material

fact,” the burden of production then shifts so that the non-

moving party must set forth, by affidavit or as otherwise

provided in Rule 56, “specific facts showing that there is a

genuine issue for trial.” 7: W. Elec. Serv., Inc. v. Pacific Elec.

Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quoting

Celotex Corp. V. Catrett, 477 U.S. 317, 324 (1986)); Kaiser

Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100,

1103-1104 (9th Cir. 1986), cert. denied, 479 U.S. 949 (1986).

If the factual context make the non-moving party’s claim

implausible, that party must come forward with more

persuasive evidence than would otherwise be necessary to

38a

Appendix D

show that there is a genuine issue for trial. California

Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc.

818 F.2d 1466, 1468 (9th Cir. 1987), cert. denied, 484 U.S.

1006 (1988) (citing Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986)).

Finally, if the non-moving party bears the burden of proof

with respect to an element essential to the case, and that party

fails to make a sufficient showing to establish a genuine

dispute of fact with respect to the existence of the element,

summary judgment is appropriate. California Architectural,

818 F.2d at 1468 (citing Celotex 477 U.S. at 317).

C. Use of An External Pool

In a disparate impact case, the proper measure of adverse

impact is a comparison between the racial composition of

qualified persons in the labor market and the person holding

the at-issue jobs. Ward Cove, 109 S.Ct. at 2121. The group

of “qualified persons” is the pool of actual applicants unless

there is a dearth of non-white applicants due to the practices

by a defendant which deter non-whites from applying for

the position. Jd. at 2122 & n. 7. Disparate impact may be

established by reference to a “reasonable proxy” for the actual

pool of applicants if there is a characteristic of the challenged

selection device that makes the actual pool of applicants

inappropriate. Moore v. Hughes Helicopters, Inc., 708 F.2d

475, 482 (9th Cir. 1983). In Moore, the Ninth Circuit found

that in promotion cases, the best evidence of discriminatory

impact is proof that an employment practice selects members

of a protected class in a proportion smaller than in the actual

pool of eligible employees. /d. Disparate impact should not

39a

Appendix D

be measured against the actual pool of applicants, however,

if “there is a characteristic of the challenged employment

practice that makes the use of the actual pool of applicants

or eligible employees inappropriate. /d. In such cases, disparate

impact may be established through reference to a reasonable

proxy for the pool of individuals actually affected by the

alleged discrimination. The Ninth Circuit found that the

disparity in the pool of nonwhite supervisory applicants does

not make the use of an internal pool inappropriate, without a

showing that an employment practice deters nonwhites from

joining or applying for supervisory positions in the CHP.

Plaintiffs have identified ten entrance requirements or

inhibiting factors which make the actual pool unrepresentative

of the local labor force: 1) applicant screening; 2) discou-

ragement before the written test; 3) passing the written test;

4) passing the physical ability test; 5) passing the quality

appraisal panel; 6) passing the psychological test; 7) passing

the background investigation; 8) appointment from the eligibility

list; 9) graduating from the academy; and 10) the large

percentage of nonwhites in the small pool of cadets being added

to the large pool of state traffic officers with a small pool of

nonwhites. Biddle Decl. in Opp. to Def.’s Mot. For Summ. J.,

{4 17-18. Defendants do not provide evidence to challenge the

existence of these inhibiting factors, nor do they challenge them

in argument. Defendants merely continue to insist that the

internal pool should be used. Since there is no evidence to the

contrary, Plaintiffs have established the existence of the

inhibiting factors which make the se of the internal pool

inappropriate. Therefore, Plaintiffs’ use of an external pool

to illustrate statistically significant adverse impact is the

appropriate measure for determining disparate impact.

40a

Appendix D

D. Existence of Flaws to Plaintiffs’ Adverse Impact

Analyses

Defendants contend that Plaintiffs’ analyses are flawed

because Plaintiffs: (1) aggregated the results of multiple

written and promotional examinations, as well as aggregated

different minority groups; (2) relied on incorrect written

test data; and (3) relied on events outside the liability period

using the continuing violation doctrine, creating the false

appearance of adverse impact.

1. Aggregation

Plaintiffs aggregated the results from the exams for each

rank and each non-white group to illustrate the significant

adverse impact on the class in an attempt to establish a prima

facie case of disparate impact. Aggregated statistical data

can be used when it is more probative than subdivided data.

Eldredge v. Carpenters 46 N. Cal. Counties JATC, 833 F. 2d

1334, 1340 n. 8 (9th Cir. 1987), cert. denied, 487 U.S. 1210

(1988). Courts have viewed the trends in previous exam-

inations to determine if the total pass rates illustrate evidence

of discrimination. Bouman v. Block, 940 F. 2d 1211 (9th Cir.

1991), cert. denied, 502 U.S. 1005 (1991). Defendants

contend that the aggregation approach is flawed, and that a

more appropriate statistical methodology is the Multiple

Events Exact Probability Test (““MEEPT”). Bickle Decl., | 9

and Lorden Decl., 10. However, even using the MEEPT

methodology, Plaintiffs still illustrate statistical significance,

albeit lower than the statistical result under Plaintiffs’

aggregation methodology. Biddle’s Reply Decl. in Supp. of

Pl. Mot. for Partial Summ. J., ¢ 16. Moreover, this Court

4la

Appendix D

previously determined that aggregating the statistics for

different non-white groups and different supervisory positions

is more probative in this matter. Furthermore, the Ninth

Circuit did not address this issue on appeal. Thus, aggregation

did not flaw Plaintiffs’ disparate impact analysis.

2. Reliance on Incorrect Data

Defendants contend that the data regarding multiple

written tests is false. Defendants provide evidence that the

State Personnel Board does not have data on the 1990

sergeant exam or on the 1991 lieutenant exam, and Plaintiffs’

analysis assumed everyone who took these two exams passed.

Landes Decl., ¥ 5. Further, the captain examination does not

include a written test. Lopez Decl. in Opp. to Pl. Mot. for

Partial Summ. J., § 7. Plaintiffs provide evidence that he

obtained documents with information on those who took and

passed these written tests independent of the State Personnel

Board. Biddle Reply Decl. in Supp. of P1l.’s Mot. for Summ.

J., 4 23. Moreover, Plaintiffs provide evidence that statistical

significance is obtained with the original data, as well as

with data that did not use the 1990 and 1991 examination

results in the disparate impact analysis. Jd. at Ex. A.

Furthermore, even without the results of the captains’ written

examination, adopting Defendants’ evidence that there is no

written examination in the captain’s promotion process,

Plaintiffs still provide evidence that statistical significance

exists using only the results from the sergeants’ and

lieutenants’ examinations. /d., 9 52. Since these omissions

do not alter the showing of statistical significance, their

existence does not flaw Plaintiffs’ adverse impact analysis.

42a

Appendix D

3. Reliance on Data Outside the Liability Period

Defendants contend that Plaintiffs’ adverse impact anal-

ysis relies on data from outside the liability period of this

matter. Defendants rely on Bouman v. Block, which held that

the limitation period did not begin to run until the promotion

eligibility list expired. 940 F.2d 1211, 1221 (9th Cir. 1991).

Defendants contend that only information relating to events

after August, 1992 and before January 5, 1994 is appropriate

in the adverse impact analysis because any test before August,

1992 is time barred. However, Plaintiffs are not attempting

to bring a claim based on the data outside of the liability

period. Plaintiffs are using pre-August, 1992 information to

support his showing of statistical significance by illustrating

the statistical results caused by the same practices at issue

in this matter over a longer period of time. Bouman also

holds that the statute of limitations may bar causes of action

on certain evidence, “but the evidence may provide relevant

background information in determining present discrimi-

natory action.” Jd at 1218 (citing United Air Lines v. Evans,

97 S.Ct. 1885, 1889 (1977)). Thus, Plaintiffs’ can use data

outside the liability period to support-his present Title VII

claim, and his adverse impact analysis was not flawed by

its inclusion.

Defendants provide no evidence to support their claim

that Plaintiffs’ adverse impact analysis was flawed. Therefore,

Plaintiffs establish the existence of statistically significant

disparities in the Defendants’ written examinations. Thus,

Plaintiffs establish a prima facie case of disparate impact.

43a

Appendix D

C. Job Relatedness of Written Examinations

Once a prima facie case of disparate impact is shown,

the burden shifts to the defendant to prove that the adverse

impact is justified because the employment practice at issue

is job related. Griggs v. Duke Power Co., 91 S.Ct. 849, 853-54

(1971). Defendants provide evidence relating to how and why

the written examinations were created. See Davis Decl. and

Donnoe Decl. This evidence also described, in great length,

the format of the written examinations as well as the type of

knowledge for which the exams were testing each applicant.

Donnoe Decl., | 24. Although, Defendants’ evidence goes to

great length to describe the creation of the examination and

the examination procedures, Defendants’ evidence does not

explain how the written examinations validate the skills

required for the job. The evidence generally discusses

the type of skills tested, but it does not explain why these

skills are related to the job performance of a CHP supervisor.

Nor do Defendants establish that the examinations test the

candidate’s ability to perform the job. Moreover, Defendants

do not provide the Court with a copy of the written

examinations or evidence as to how each question relates to

the required skill, characteristic or ability for the position.

Since Defendants do not demonstrate that the written

examinations are job related, Defendants cannot show that

the adverse impact of the examinations is justified.

D. Promotion From Within

Plaintiffs separately contend that California Vehicle Code

§ 2251, which requires the CHP to fill supervisory vacancies

by promoting front the next lower rank, is an unlawful

d4a

Appendix D

employment practice adversely impacting non-whites.

Plaintiffs further contend that an alternative practice of

opening the examination process to all otherwise qualified

peace officers would prevent the adverse impact on non-white

peace officers. Defendants argue that § 2251 is a protected

seniority system under § 703(h) of Title VII. Bona fide

seniority systems are not violative of Title VII even though

they may have a discriminatory impact. American Tobacco

Co. v. Patterson, 102 S.Ct. 1534, 1541 (1982).

A seniority system is a plan that gives employees

improving rights and benefits as their length of employment

increases. California Brewers Ass'n v. Bryant, 100 S.Ct. 814,

819 (1980). A seniority system is bona fide if it does not

have a discriminatory purpose. Jrans World Airlines, Inc. v.

Hardison, 97 S.Ct 2264, 2276 (1977) (“[A]bsent a

discriminatory purpose, the operation of a seniority system

cannot be an unlawful employment practice even if the system

has some discriminatory consequences.”) Plaintiffs do not

contend that § 2251 has a discriminatory purpose, but do

contend that § 2251 is not a seniority system. Section 2251

provides that vacancies in supervisory. positions be made

available only to internal applicants in the immediately lower

rank. However, there is no evidence before the Court which

shows that § 2251 gives CHP officers an ever increasing

opportunity to advance to a higher rank as their employment

tenure increases. Since § 2251 does not increase an officer’s

opportunity to be promoted based on the length of her

employment, it is not a seniority system.

However, Defendants argue that Plaintiffs do not have

standing to challenge § 2251 because the section only

45a

Appendix D

adversely affects persons outside of the CHP, whereas

Plaintiffs are a class of nonwhite CHP officers. To have

standing, a plaintiff must demonstrates that she suffered an

“injury in fact” that is fairly traceable to the defendant, and

that the grievance falls within the zone of interest protected

by the statutory provision at issue in the suit. Bennett v. Spear,

117 S.Ct. 1154, 1161 (1997). In the context of a discrimi-

nation action, standing should be denied when the plaintiff

is not personally subject to the challenged discriminatory

conduct. Allen v. Wright, 104 S.Ct. 3315, 3324, 3327 (1984).

In this action, Plaintiffs are not subject to the limitations of

§ 2251 because, as members of the CHP, they arc eligible to

apply for supervisory vacancies. Although § 2251 may

operate to preclude nonwhite non-CHP peace officers from

applying for supervisory positions, and may have a disparate

impact on nonwhite peace officers, this limitation does not

personally subject Plaintiffs to discriminatory conduct.

Moreover, since Plaintiffs are not personally subject to the

limitations of § 2251, no determination is reached on whether

the § 2251 grievance is within the zone of interest of

Title VII. Hence, Plaintiffs do not have standing to challenge

the legality of § 2251.

Although Defendants did not prove that § 2251 was a

seniority system under § 703(h) of Title VII, Plaintiffs do

not have standing to challenge the legality of the statute. Thus,

Plaintiffs cannot challenge § 2251 as an unlawful

employment practice having an adverse impact on nonwhite

CHP officers.

46a

Appendix D

IV. EVIDENTIARY MOTIONS

A. Motion to Strike Supplement to Declaration

In Support of Plaintiffs’ Motion for Partial

Summary Judgment

Defendants request that the Supplement to the Decla-

ration of Richard Biddle in support of Plaintiffs’ motion for

partial summary judgment be stricken because it contains

legal claims and arguments that exceed Plaintiffs’ basis for

partial summary judgment. Defendants also contend that

Biddle was unqualified and unauthorized to present legal

arguments. Plaintiffs do not dispute these arguments,

but claims that Defendants’ true intentions are to gain an

opportunity to depose Biddle when it did not previously seek

his deposition during the relevant discovery period. Although

the information contained in the Supplement may be relevant

and probative, its contents are outside of the scope of

Plaintiffs’ motion for partial summary judgment. Plaintiffs

sought partial summary judgment on the adverse impact issue

based on two grounds. The first attempts to establish adverse

impact based on the results of the sergeants, lieutenants,

and captains promotions test, and the overall results of the

promotions for all ranks. The second challenges Defendants’

promote from within policy. The Supplement, on the other

hand, discussed the justification of the external proxy pool,

the discovery of a new inhibiting factor, and alternative

employment practices that Defendants could have imple-

mented to prevent the adverse impact. Since the content of

the Supplement to the Biddle Declaration exceeds the subject

matter of both motions for partial summary judgment and

Defendants’ opposition, the declaration is stricken.

47a

Appendix D

B. Request for Additional Discovery

Plaintiffs request that discovery be reopened to identify

inhibiting factors that could have existed prior to the liability

period. Discovery regarding inhibiting factors is relevant

because their existence or lack thereof play a pivotal role in

determining whether an internal pool is an appropriate

measure for an impact analysis. As stated above, the external

proxy pool is more appropriate than the internal actual

applicant pool because of Plaintiffs’ showing of inhibiting

factors. Because this Court determines that the external proxy

pool is more appropriate than the internal pool, there is no

longer a need to discover evidence of inhibiting factor prior

to the liability period. Therefore, Plaintiffs’ request to reopen

discovery is denied.

C. Motion to Reopen Discovery on Hiring and

Recruitment Issues for Defendants Only

. Defendants seek to reopen discovery on the hiring and

recruitment issues pursuant to this Court’s April 9, 1997

Order. Defendants contend that without an opportunity to

pursue discovery regarding these issues, they will be unable

to defend effectively against Plaintiffs’ allegations concerning

hiring and recruitment. Defendants also contend that they

should be provided with the same discovery opportunities

provided to the Plaintiffs on this matter. Defendant requests

that discovery on these issues be reopened for them only for

ninety days. Plaintiffs do not oppose reopening discovery on

this issue for both parties, but requests that it be reopened

for a period longer than 90 days.

48a

Appendix D

Defendants have previously requested Magistrate Judge

Turchin to compel responses to its discovery requests pursuant

to the April 9 Order. Judge Turchin, after conferring with this

Court, denied Defendants’ motion because the April 9 Order

was meant to only apply to Plaintiffs. Defendants do not

request discovery relating to specific topics or individuals,

they only make a general request to seek discovery regarding

hiring and recruitment. Information regarding Defendants’

hiring and recruitment practice should be within Defendants’

control, and Defendants do not contend that this information

is beyond their control. Hence, Defendants’ request to reopen

discovery is denied.

Vv. CONCLUSION

For the foregoing reasons, this Court GRANTS in part

Plaintiffs’ Motion for Partial Summary Judgment and DENIES

in part Defendants’ Motion for Partial Summary Judgment

on the issue of disparate impact resulting from the use of

written examination for promotional eligibility. This Court also

GRANTS in part Defendants’ Motion for Partial Summary

Judgment and DENIES in part Plaintiffs’ Motion for Partial

Summary Judgment on the issue of the California Vehicle Code

§ 2251 being an unlawful employment practice. This Court

GRANTS Defendants’ Motion to Strike the Supplement

to the Biddle Declaration; DENIES Plaintiffs’ Motion to

Extend Discovery; and DENIES Defendants’ Motion to Reopen

Discovery.

IT IS SO ORDERED.

s/ Consuelo B. Marshall

CONSUELO B. MARSHALL

DATED: August 12, 1998 United States District Judge