Nos. 83-1624, 83-1650.United States Court of Appeals, First Circuit.Argued June 7, 1984.
June 28, 1985.
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Gerard McG. DeCelles, Providence, R.I., with whom Elizabeth M. Emma, Providence, R.I., was on brief, for City of Providence Fire Department, et al.
Walter R. Stone, Providence, R.I., with whom Stone, Clifton
Clifton, Providence, R.I., was on brief, for Roger Anciel Fudge.
Appeal from the United States District Court for the District of Rhode Island.
Before BOWNES and BREYER, Circuit Judges, and DOYLE,[*]
Senior District Judge.
JAMES E. DOYLE, Senior District Judge.
[1] Fudge, who is black, brought this action against the City of Providence Fire Department (Department), the Division of Training (Academy), and Chief Michael Moise (Chief), alleging the defendants had engaged in discriminatory testing in their hiring procedures in 1974, in violation of 42 U.S.C. §§ 1981, 1983, 1985, and 1988, and of Title VII of the Civil Rights Act of 1964,Page 652
42 U.S.C. § 2000e et seq. The City of Providence was added as a defendant.
[2] The case was tried simultaneously to a jury on all but the Title VII claim and to the court on the Title VII claim. Although the jury found the written examination administered by the Department had had a disparate and adverse impact on blacks, it also found none of the defendants had harbored a racially discriminatory purpose. The non-Title VII claims were dismissed on their merits. Neither party appeals from this disposition. [3] The district court held the defendant City had violated Title VII and it awarded Fudge back-pay in the amount of $8,666, and attorneys fees and costs totalling $12,274.50. Defendant City appeals the judgment against it for back-pay under Title VII and also the award of attorneys fees.[1] Fudge appeals that portion of the judgment limiting back-pay to a period ending in 1978. [4] The district court found explicitly that a certain written examination used in the 1974 hiring procedures had a disparate and adverse impact on black applicants.[2] It held plaintiff had thus established a prima facie case of employment discrimination. It held defendant had not met the burden, then falling to it, to show that the written examination had “a manifest relationship to the employment in question.” Griggs v. Duke Power Co., 401 U.S. 424, 434, 91 S.Ct. 849, 855, 28 L.Ed.2d 158 (1971). It concluded that defendant had violated Title VII.[5] FACTS AS TO DISPARATE AND ADVERSE IMPACT [6] (a) Facts as found by district court, pursuant to Fed.R.Civ.P. 52(a).
[7] Plaintiff is a black resident of the city of Providence, Rhode Island. As of 1974, when plaintiff applied to be admitted to the city fire department’s fire fighter training academy, defendant was imposing a minimum requirement of a tenth grade education, and the selection procedure was based upon a composite score of 60 in three categories: scholastic attainment, military service, and a written entrance examination.[3]
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the military service category, a maximum of ten points was possible, depending upon criteria such as total amount of time served in the military, time served in combat areas, advancement in rank, and decorations. The aggregate of the points scored by an applicant in the two categories (a maximum of 20) was divided by 2 (with a resulting maximum of 10). A maximum of 50 points could be obtained from one’s score on a written examination. Thus, of a perfect composite score of 60 drawn from all three categories, 50 points (83%) were accounted for by the written examination.
[9] Plaintiff was one of 248 applicants in 1974 for admission to the academy. He received 2 points in the scholastic attainment category and the maximum of 10 in the military service category, for an aggregate of 12 which, when divided by 2, resulted in a total of 6. At that point, he ranked 6th among the 248. On November 9, 1974, the written examination was given. Plaintiff scored 16 on the scale of a possible 50. His ranking dropped to 195th and he was not admitted to the academy. [10] Of the 248 applicants in 1974, 24 were black and 224 white. Thirty were admitted to the academy, of whom one was black (4 percent of 24) and 29 were white (13 percent of 224). [11] In 1973, 199 applicants took a written examination for admission to the academy, of whom about 20 were black and 179 white. Forty-one were admitted to the academy, of whom one was black (5% of 20) and 40 were white (22% of 179). [12] In 1972, 86 applicants took a written examination, of whom about 9 were black and 75 white (apparently two may have been members of non-black minorities). Twenty were admitted to the academy, of whom none was black (0% of 9) and 20 were white (27% of 75). [13] The black applicants in 1974 had a “higher test failure rate” than white applicants on the written examination. The examination posed more of a hurdle for black applicants than for white. It had a disparate and adverse impact on black applicants.[14] (b) Facts not found by district court, but undisputed in the record
[15] The written examination administered in 1972 contained 53 questions for an aggregate possible total of 50 points. Seventeen questions with an aggregate of 25 1/4 possible points tested knowledge of addition, subtraction, division, multiplication, percentages, fractions, decimals, square roots, and computations of areas and volumes. Eight questions with an aggregate of 6 possible points tested knowledge of definitions of words (multiple choice questions on the meaning of “posterior,” “accentuate,” “impertinence,” “cumbersome,” and “atlas”; other forms of questions on the meaning of “statute,” “decade,” and “autobiography”). Seven questions with an aggregate of 4 1/4 possible points tested knowledge of simple and practical physics or chemistry. One question with a weight of 3/4 point tested basic knowledge of geometrical figures. Twenty questions with an aggregate of 13 3/4 possible points tested general knowledge (e.g., in 1972 was Communist China a member of the UN; did Eisenhower succeed Franklin Roosevelt as president; in 1972 who was vice-president of the United States, who was governor of Rhode Island, who was commander-in-chief of United States Armed Forces; what cities and towns border on the city of Providence; how many seats in the United States Senate does Rhode Island have; name of the navigable waterway connecting Atlantic and Pacific oceans; how many stars in the flag of the United States; names of five states bordering the Gulf of Mexico).
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“abdicate,” “biography,” “inertia,” “fiction,” and “bibliography”). Thirteen questions with an aggregate of 9 possible points tested knowledge of simple and practical physics and chemistry. One question with a weight of 3/4 point tested basic knowledge of geometrical figures. Fourteen questions with an aggregate of 12 1/4 possible points tested general knowledge (e.g., in what city the 1972 Democratic National Convention was held; in 1973 who was Adjutant General of Rhode Island; who was the last vice-president to assume the presidency while in office; by whom was the city of Providence founded; names of the five counties of the state of Rhode Island; what is the usual shape of a yield sign at an intersection; and what four countries comprised what was once known as Indo-China).
[17] The written examination administered in 1974 to plaintiff Fudge and the other 247 applicants contained 43 questions for an aggregate possible total of 50 points. Twenty-one questions with an aggregate of 25 1/2 possible points tested knowledge of addition, subtraction, division, multiplication, fractions, decimals, and computations of areas and volumes (described on the examination as “arithmetic skills”). Two questions with an aggregate of 2 possible points tested, by multiple choice questions, knowledge of definitions of two words: “extricated” and “radiant” (described on the examination as “word comprehension”). Eighteen questions with an aggregate of 21 possible points tested knowledge of simple and practical physics and chemistry (described on the examination as “general science” and “mechanical knowledge”).[4] Two questions with an aggregate of 1 1/2 possible points asked whether most exit doors in public buildings swing out or in and what is the shape of traffic stop signs (described on the examination as “observational aptitude”). No questions tested general knowledge of the sort tested by 20 questions on the 1972 examination (with an aggregate of 13 3/4 possible points) or by 14 questions on the 1973 examination (with an aggregate of 12 1/4 points).[5] [18] Between 1973 and 1974, the number of points awarded for the non-written-examination component of the composite score was reduced from 20 to 10. In 1972 and 1973 this 20-point component was not confined to scholastic attainment and military service, as it was in 1974, but reached the additional factors of age, height, weight, visual acuity, “license category,” and employment experience. [19] The selection procedure used by defendant in 1972, 1973, and 1974, in which the written examinations were the dominant factor, had never been subjected to the validation tests embodied in the Uniform Guidelines on Employee Selection Procedures. 29 CFR §§ 1607.1 et seq. [20] After 1974, the next occasion on which a test was administered was 1978. Consultants were retained to prepare it. The written examination, on the one hand, and, on the other, “physical agility and other areas” were weighted 50-50. Of a total of 505 applicants who took the examination, 479 were white, 18 were black, and 8 were members of other minorities. Of the 107 admitted to the training academy, 105 were white and 2 were black. Thus, of thePage 655
whites taking the examination, 22% were accepted, and of the blacks taking the examination, 11% were accepted. (The record contains no further information about the content of the written examination in 1978 or about the “physical agility and other areas.”)
[21] As of 1974-1975, of 479 employees of the City fire department, 10 or 11 were members of minorities. As of 1970 and as of 1973, blacks represented 8.9% of the total population of the City of Providence.[22] OPINION I.
[23] Plaintiff clearly made a prima facie showing that he is a member of a black minority, that he applied for admission to the training academy and thus for employment as a fire fighter, and that he was denied such admission and employment. Defendant suggests plaintiff failed to show he was qualified for admission and employment. Plaintiff showed he met the age requirement and he was under no significant physical or mental disability. It is unnecessary to linger over whether he had some obligation initially to show he would have met some reasonable set of requirements other than the set actually imposed on him by defendant, or whether, in articulating its assertedly nondiscriminatory reason for denying him admission and employment, it was defendant’s burden to present the set of requirements and then to contend that plaintiff failed to meet them. In this case defendant did articulate as its reason for rejection that in 1974 it required applicants to rank among the top 30 on the 60-point composite scoring and that plaintiff did not. However the matter is viewed, the litigative stage was clearly reached at which the burden was on the plaintiff to prove by a preponderance of the evidence that in 1974 a disparate and adverse impact was visited on blacks by defendant’s use of the 60-point composite scoring system. Albermarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). We hold that plaintiff failed to meet this burden.
II.
[24] We have summarized above the facts found by the court, and the other facts of record, which bear on the presence or absence of disparate and adverse impact. We note now the absence of certain kinds of findings and the absence from the record of certain kinds of facts which might have supported such findings.
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test measuring already acquired knowledge, that it was not reasonably related to the work of a fire fighter, that it overemphasized arithmetic, and that the weighting of points did not reflect the relative difficulty of the questions.
[27] Lopez testified also that: while he “could not say there was any bias in the test perse, the outcome of the test [I] do say it had an adverse impact on the blacks”; and blacks “had less opportunity to pass the test than the whites.” He based this opinion wholly on the number and racial composition of the group of applicants who took the 1974 examination and who passed it, namely: a total of 248 applicants; 224 whites taking the exam and 30 of them being accepted; and 18 blacks taking the exam and 1 of them being accepted.[6] Considering Lopez’ educational background, work experience, and specialty, he may have been qualified to explain the basis of his opinion about the statistical significance of these figures, but he was not requested to do so and did not. [28] There is no evidence from the witness Lopez or from any source bearing on whether either the form or the content of particular questions or sets of questions in the 1974 examination, or in the 1972, 1973, or 1978 examinations, might be more or less difficult for blacks generally as compared with whites generally. There is no evidence that pen and pencil examinations of this sort are more or less difficult for blacks than for whites. There is no evidence that the heavy emphasis (50 points in 1974) on the written examination as contrasted with the scholastic attainment and the military service (10 points) was more or less favorable to blacks as compared with whites. There is no evidence that the shift between 1973 and 1974 away from awarding points for age, height, weight, visual acuity, license category, and employment experience favored or disfavored blacks as compared with whites. Except for plaintiff Fudge’s 1974 examination paper, showing his answers, there is no evidence of the answers given by any of the applicants, white or black, on any of the 1972, 1973, 1974, or 1978 examinations. [29] The great bulk of the trial was devoted to whether the 1974 written examination was sufficiently job-related and whether its emphasis upon achievement versus aptitude was fair. There was heavy insinuation that an examination is racially discriminatory if it is not job related or if it measures achievement rather than aptitude. This proposition may be valid in some circumstances. But logic alone affords it no support. Only evidence, none of which was presented to the district court, can sustain it.III.
[30] Plaintiff’s proof of a disparate and adverse impact on blacks flowing from the 1974 scoring procedure consists, therefore, solely of evidence of a lower acceptance rate among black applicants than among whites. Plaintiff contends that his proof of this kind includes the 1972 and 1973 results and, for a different reason, the 1978 results, as well as the 1974 results.
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it is proper to form an amalgam of the numbers of white and black applicants in 1972, 1973 and 1974 and an amalgam of the acceptance rates in those three years, a finding for plaintiff as to his 1974 experience is facilitated. The district court made no explanation of its implicit determination that the 1972, 1973 and 1974 testing episodes were sufficiently similar to permit such lumping. Our review of the evidence on this point, summarized above, persuades us that the dissimilarities prevent lumping: (1) In 1972 and 1973, a total of 20 points was allocated to eight non-written-examination factors; in 1974, only two of these eight factors were operative and an aggregate of only 10 points was allocated to them. (2) Of the possible 50 points allocated to the written examinations in each of three years, 13 3/4 were allocated to the socalled general knowledge questions in 1972, 12 1/4 in 1973, and 0 in 1974; and 6 points were allocated to definitions of words in 1972, 7 1/4 in 1973, and 2 in 1974.
[33] It is not whether the 1974 examination was better or worse, by some standard, than the 1972 and 1973 examinations; it is whether the 1974 test was sufficiently different to require that its impact be assessed independently. In our view, it was so different as to require such independent assessment. We hold that it was clearly erroneous for the district court to find that the 1972 and 1973 results lent support to a finding that a disparate impact was shown by the 1974 results.[7] IV.
[34] Plaintiff’s proof consists solely of the different rates of acceptance for the 24 black applicants in 1974 (4%) and for the 224 white applicants that year (13%). The question is whether this evidence is sufficient to support a finding that disparate and adverse impact upon blacks flowed from the 1974 test.
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would be expected to occur simply by chance.[8]
[37] The focus in Title VII cases is upon the discriminatory impact a test would have on all blacks and all whites in the relevant population. Where only sample data is available, the disparate impact observed in a single sample of individuals drawn from the relevant population and administered the exam may not justify the conclusion that the test has a discriminatory impact upon the population as a whole. For one sample given the test, the passage rate for blacks may be much lower than that of whites, while for a second sample, drawn from the same population and given the same test, the opposite result may occur. Thus, the issue is: what is the probability that the disparity in passage rates that appeared in the sample would occur by chance if in fact there would be no difference in the passage rates of blacks and whites in the relevant population? [38] Widely accepted statistical techniques have been developed to determine the likelihood an observed disparity resulted from mere chance. Where a plaintiff relies exclusively on a narrow base of data, as here, it is crucial for the court to consider the possibility that chance could account for the observed disparity. [39] We think that in cases involving a narrow data base, the better approach is for the courts to require a showing that the disparity is statistically significant, or unlikely to have occurred by chance, applying basic statistical tests as the method of proof.[9] Peques v. Mississippi State Employment Service, 699 F.2d 760, 768 n. 9 (5th Cir. 1983); E.E.O.C. v. Am. Nat. Bank, 652 F.2d 1176 (4th Cir. 1981 reh’g denied 680 F.2d 965(4th Cir.) cert. denied, 459 U.S. 923, 103 S.Ct. 235, 74 L.Ed.2d 186 (1982); Hameed v. Intern. Ass’n of Bridge, Etc., 637 F.2d 506 (8th Cir. 1980). When statistical tests sufficiently diminish chance as a likely explanation, it can then be presumed that an apparently substantial difference in pass rates is attributable to discriminatory bias, thus shifting the burden to defendants to show job relatedness. If the probability is sufficiently high that the disparity resulted from chance, the plaintiff must present additional evidence of disproportionate impact in order to establish a prima facie case. This test for chance would determine the competency and validity of exclusively statistical proof in a far more reliable manner than wholly intuitive response. [40] In the present case, plaintiff, who bore the burden of persuasion on the point, presented no expert opinion, nor did he request the taking of judicial notice of written sources from which accurate and ready answers could be obtained, Fed.R.Evid. 201, on the role of chance in the results from the 1974 written examination. Defendant provided none. The district court appears to have sought out none. [41] Because the district court relied upon data from 1972 and 1973, as well as from 1974, in making its finding of disparate and adverse impact in 1974, we do not know what finding it would have made on the basis of 1974 data alone. However, considerations of economy in judicial time and effort persuade us we should refrain from remand to permit such a determination by the district court. We are persuaded that the application of any of the more simple statistical techniques would reveal clearly that the role of chance as an explanation is far too high to permit a judicial finding that it was the content of the 1974 examination which caused the disparate rates of passage as between black and white applicants.[10] A new finding by
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the district court, based solely on the 1974 data, that the content of the examination caused the disparate rates of passage would be clearly erroneous.
[42] Our disposition of this appeal makes it unnecessary to decide defendant’s appeal from the amount of the district court’s award of attorneys fees to plaintiff or to decide plaintiff’s appeal from the district court’s refusal to award back-pay after 1978. [43] For the reasons stated, we reverse the judgment of the district court and direct entry of judgment dismissing this action on its merits.(1975). Here, however, no such evidence was presented. Plaintiff’s expert, for example, might have testified that one could expect differences in educational opportunity to make the sorts of questions found on the 1974-type test more difficult for relevant minority job applicants; but he did not so testify. Cf. Beecher, 504 F.2d at 1021. Nor is there any evidence about whether or not this type of test or the earlier 1972 and 1973 tests may have disproportionately discouraged minority applicants from applying. Cf. Beecher, 504 F.2d at 1021 n. 6. Nor is there any evidence that blacks taking the 1974 test had a lower mean
score (as opposed to a lower pass-rate) than whites. Evidence about the earlier 1972 and 1973 tests is sparse, to say the least; and there is no testimony or even argument about whether the earlier tests were similar in any relevant respect to the 1974 test. Since a reading of the tests themselves shows important differences, and since 1974 seems to have represented a transitional year between the use of tests that apparently did discriminate and the use of tests that apparently did not, one needs at least some evidence, not total silence, to infer that there are relevant (discriminatory) similarities between the two sets of tests. [46] Second, the 1974 test results simply will not bear the near total weight that plaintiff, plaintiff’s expert, and the district court put upon them. As Judge Doyle’s opinion points out, a perfectly fair test given to a pool of blacks and whites will not always produce results that precisely mirror the racial percentages in the pool. Indeed, virtually all the time the perfectly fair test would lead to some deviations favoring either whites or blacks. A perfectly fair 1974 test (that is, a test having no systematic disparate impact on blacks) would, if repeatedly applied to racially similar pools, yield one (or no) successful black applicant(s)
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out of thirty 18 percent of the time (82 percent of the time it will yield two or more). See Shoben, “Differential Pass-Fail Rates In Employment Testing: Statistical Proof Under Title VII,” 91 Harv.L.Rev. 793, 812 (1978) (setting out probability formula). A perfectly fair coin, if flipped twice, will come up two heads 25 percent of the time. Flipped three times, the fair coin will yield three heads 12.5 percent of the time.
[47] Under these circumstances, I agree that the numbers alone in so small a sample do not show bias. Had the 1974 test been repeated, of course, one would have better evidence. A perfectly fair test would produce similar results in two instances only about 3.2 percent (18 percent X 18 percent) of the time — well below the number that statisticians, for scientific purposes, consider “significant.” But where the likelihood of pure “chance” bulks as large, as here, I agree with the court that the plaintiff must present some reason to believe that the explanation is not “fairness plus pure chance.” In Beecher, we spelled out a few, apparently easy, ways in which this might be done. But, I also agree that virtually no such “other” evidence or reason was presented here.