Dawn v. State Personnel Board

PUGLIA, P. J.

I dissent.

Plaintiff John Dawn and Patricia Khan were employed by the State of California in the classified service; they worked in the San Jose office of the California Youth Authority (department) as parole agents grade I. *597Plaintiff and Khan were on a civil service list established by competitive examination for promotion to the next highest class, parole agent grade II. A single vacancy occurred in the San Jose office for parole agent II. At that time plaintiff and Khan were in the three highest ranks on the list certified to the appointing authority and were considered by their supervisor as qualified for and deserving of advancement. Khan received the promotion; contrary to the implication in the majority opinion, plaintiff was not interviewed for the position and in fact was accorded no more than formal consideration for advancement. The uncontradicted evidence conclusively establishes that the decisive factor in the appointment was gender. Khan was successful because she is female; it is equally clear that plaintiff was not seriously considered for promotion because he is male.

The majority find nothing in these facts to commend the intercession of this court, apparently because the two candidates were deemed equally qualified and the appointment was made from among those in the first three ranks on the promotional list. Nevertheless, putting aside constitutional considerations the promotional procedures employed here ignored a clear-cut legislative directive forbidding sex discrimination in the classified service and violated title VII of the federal Civil Rights Act of 1964 (the Act). Plaintiff is therefore entitled to a writ of mandate to relieve him of the consequences of the department’s illegal conduct.

In 1971 plaintiff and Khan took a competitive examination for promotion to parole agent grade II. Thereafter both were placed on an eligible list, plaintiff in the third and Khan in the sixth rank. Between their respective ranks were 27 other candidates in ranks four and five.

In December 1974, a vacancy occurred in the San Jose office in the parole agent II class. By that time, attrition and waivers had reduced the number of interested eligibles on the 1971 list. Aside from plaintiff and Khan there was an interested male candidate in rank two, a female in rank three and another male in rank six.

George Hopkins was the supervisor of both plaintiff and Khan in the San Jose office. Margarét Baer, a parole administrator, was Hopkins’ superior. Baer advised Hopkins that “both Mr. Dawn and Mrs. Khan were eligible for appointment to this [parole agent II] position” and “stated a preference for appointing Mrs. Khan, because of the department’s affirmative action policy, unless [Hopkins] felt Mrs. Khan was unqualified for promotion.” Hopkins informed Baer that “both candi*598dates were equally qualified for promotion and both deserved to be promoted.” Hopkins assured Baer that he “recognized [his] responsibility as a supervisor to support the department’s affirmative action policy in regards to recruitment and promotions.”

After Khan was promoted, plaintiff filed an employee grievance with the department, complaining that he had been passed over for promotion due to “misapplication of Affirmative Action policies . . . .” At the initial review of the grievance Hopkins explained to plaintiff that there were two equally qualified people, plaintiff and Khan, eligible for promotion in the San Jose office; that it was departmental policy to recruit and promote more minorities and women; and that absent a compelling reason to act otherwise, it was his responsibility as a supervisor to support affirmative action in this promotional situation. Hopkins denied plaintiff’s grievance.

Parole Administrator Baer conducted the second level of review. She also denied plaintiff’s grievance, explaining her reasons as follows; “[T]he affirmative action policy would only come into effect when both candidates were equally qualified. . . . Both candidates have demonstrated that they are exceptionally good parole agents and both are ready for promotion and both are qualified for promotion. The appointment of Mrs. Khan was legal in that she was in the first three ranks. With a statement from the supervisor that he found them both equally qualified, the affirmative action policy of the department would call for the appointment of a woman.”

Plaintiff’s grievance was denied at the departmental level and he appealed to the respondent board. The board sustained the promotion of Khan, finding that it was in accord with established standards and with Government Code section 19057.1 which requires that a classified position be filled from among the first three ranks on the list of eligibles. The superior court denied plaintiff’s petition for mandate.

Government Code section 19702 forbids discrimination because of sex in the state classified service. Section 19702.1 requires that hiring and promotion in the state classified service shall conform to the federal Civil Rights Act of 1964. Title VII of the Act applies not only to private employers but by its own terms to state and local governments as employers. (42 U.S.C. § 2000e(a), (b); Monell v. Dept. of Soc. Serv. of City of New York (2d Cir. 1976) 532 F.2d 259, 261.) Únder the Act it is an unlawful employment practice for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or *599privileges of employment because of such individual’s,. . . sex . . . or . . . to limit, segregate, or classify his employees ... in any way which would deprive or tend to deprive ány individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s . . . sex, . . .” (42 U.S.C. § 2000e-2(a)(l) and (2).) “Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed.” (Griggs v. Duke Power Co. (1971) 401 U.S. 424, 431 [28 L.Ed.2d 158, 164, 91 S.Ct. 849].)

Notwithstanding these remarkably straightforward strictures, and despite the explicit disavowal of the Act to require preferential treatment to remedy gender imbalance within an employment unit (42 U.S.C. § 2000e-2(j)), the department, in thrall to some misguided notion of affirmative action, accorded preferential treatment to Khan and discriminated against plaintiff, in each case solely on the basis of sex.1

Respondent board claims that Government Code section 19057.1 confers virtually unlimited discretion on the appointing authority in promoting from among those in the top three ranks. The majority accept this thesis as the basis of their decision. In effect, they hold that because there need be no reason for the ultimate selection from among the finalists, reasons therefor which in any other employment context would be proscribed by law as impermissibly discriminatory are acceptable. I cannot accept that a candidate for promotion, otherwise protected by law from discriminatory treatment, is deprived of that protection when he most needs it, that is, when he becomes a viable rather than merely a theoretical candidate for advancement. I cannot accept that discrimination solely on account of sex is any less invidious because the victim has achieved the distinction of rising above most of his competitors to the threshold of advancement.

*600A “rank” as the term is used in Government Code section 19057.1 consists of “one or more eligibles with the same whole percentage score.” “Scores of eligibles . . . shall be rounded to the nearest whole percent.” (Gov. Code, § 19057.1.) Hence, the top three ranks of eligibles will frequently include more than three individuals, perhaps considerably more than three. In direct proportion to the numbers included, the odds are enhanced that in respect to any promotional opportunity the top three ranks of eligibles will include at least one individual who by reason of sex, race, ethnicity or national origin enjoys a preferred status in the employer’s affirmative action scheme. If the majority holding accurately reflects the law, and if, as that holding implies, an employer may in the instant circumstances pursue affirmative action contrary to the clear prohibitions of the federal Civil Rights Act, then an employer need never promote anyone but those upon whom have been bestowed a preferred status. Conceivably then the department may in every similar situation that arises in future, promote a female to parole agent grade II, assuming of course that a female is included among those in the top three ranks of eligibles, a fair assumption in light of current realities.

It is of course true that a public employer has wide discretion to promote or hire from among those in the top three ranks of eligibles. As a concomitant thereof the employer need not expressly justify or otherwise give reasons for his selection of one from among several. Here, although there were five eligibles in the top three ranks the record, particularly the statements of Hopkins and Baer, is susceptible to the unmistakable inference that plaintiff and Khan were the only real contenders for the position. The department unambiguously declared the reason why Khan was selected over plaintiff, i.e., because she is female and, by clear implication, because plaintiff is male. The revelation is gratuitous and is not a sine qua non to a finding of unlawful discrimination. Because of the department’s admission, however, the ultimate fact is not open to dispute and the legal conclusion of unlawful discrimination ineluctably follows therefrom. However, the omission of an employer to state reasons, while it undoubtedly makes the task more difficult, does not necessarily preclude a finding of unlawful discrimination where, for .instance, a pattern of preferential discrimination in prior similar situations can be established.

The majority opinion emphasizes that plaintiff and Khan were deemed “equally qualified” by the department, as if to suggest that what constitutes discriminatory treatment as between two persons of unequal qualifications assumes a benign aspect when practiced upon two persons *601equally well qualified. The proposition is transparently flawed. But even conceding, arguendo, its validity, the record here inspires absolutely no confidence in either the integrity or substantiality of the departmental “finding” that plaintiff and Khan were equally qualified. It is simply not correct as stated in the majority opinion that the finding is supported by substantial evidence. The only such evidence in the record is the conclusionary opinion to that effect of Hopkins, the immediate supervisor of plaintiff and Khan. According to Parole Administrator Baer, Hopkins’ opinion is based upon the two candidates’ “background and . . . functioning as parole agents.” From all that the record discloses, however, Hopkins’ evaluation of these characteristics was totally subjective. More significantly Hopkins’ subjective evaluation was expressed in response to the pointed reminder of his supervisor, Baer, that she preferred the appointment of Khan “because of the department’s affirmative action policy,. . .”

The department asserts the right in certain circumstances to practice a form of affirmative action that confers preferential treatment upon certain classes of individuals, . here females, to the exclusion and accordingly the detriment of nonpreferred classes of individuals, here males (who necessarily do not possess ethnic, racial or other characteristics entitling them to preferred treatment in their own right). Departmental policy is committed to implementation of affirmative action whenever possible. According to departmental policy, affirmative action comes into play when competing candidates otherwise eligible for promotion are of equal qualifications. The crucial determination of equal qualifications is confided to a lower level supervisor whose own interests are obviously servéd, to quote Hopkins, by “support [of] the department’s affirmative action policy in regards to recruitment and promotions.” The supervisor’s determination of equal qualification is utterly standardless and subjective. Under these circumstances it is fair to ask whether it was departmental commitment to affirmative action which stimulated Hopkins’ “finding” of equal qualifications rather than an objective finding of equal qualifications which triggered affirmative action.

While it may be true that there is gender imbalance represented by a preponderance of males in the department’s work force, that fact confers absolutely no benefit on plaintiff and those who are dependent upon him; nor does that fact disadvantage Khan so long as she is afforded the opportunity to compete on an equal, nondiscriminatory basis for advancement and other benefits and rewards of employment. The rights of plaintiff and Khan to treatment free of sex discrimination are rights *602personal to them. They are not rights accorded classes segregated by gender.

Moreover, it is important to point out that there is absolutely no evidence that plaintiff discriminated against Khan or anyone else or that Khan has herself been the victim of discrimination. In fact, the record suggests the contrary. After only 9 years as a parole agent, Khan has now achieved a more responsible and remunerative position in the department than plaintiff who has been a parole agent for 12 years. So far as plaintiff is concerned, the record suggests what the future holds for him under the department’s affirmative action policy. Since the Khan promotion, 100 new names have been added to the promotional list for parole agent II. Presumably some of those are women and members of other classes accorded preferential treatment, some of whom will undoubtedly vie with plaintiff from among the first three ranks of eligibles for future promotions. Under the circumstances, then, plaintiff’s prospects for advancement are anything but promising. In my view, such treatment is in clear violation of Government Code section 19702, forbidding sex discrimination in the classified service and of title VII of the federal Civil Rights Act of 1964. Not incidentally, it is also a callous and shabby way to treat a professional civil servant of long tenure who is himself blameless in the premises and is by the department’s own assessment an “exceptionally good parole [agent].”

It must be acknowledged that plaintiff has virtually no prospect of gaining promotion even were he to win this lawsuit. The only relief to which he is entitled is mandate to the board to vacate its decision and implement civil service laws without discrimination. If the promotion of Khan were set aside and the matter reconsidered in a sex-neutral setting, the department, in the exercise of discretion conferred by section 19057.1, could again promote Khan over plaintiff for any reason not prohibited by law or for no reason at all. What the department may not do, however, is to display “Discriminatory preference for any group, minority or majority, ...” (Italics added; Griggs v. Duke Power Co., supra, 401 U.S. at p. 431 [28 L.Ed.2d at p. 164].) The fact that plaintiff stands little chance of promotion even if he prevails here is not grounds to deny relief. The importance of the issue here involved far transcends the narrow interests of the parties to this lawsuit as it will affect virtually all appointments and promotions by the department in the future.

I would reverse the judgment and remand the proceedings to the superior court with directions to issue a writ of mandate directing the *603respondent board to set aside its decision sustaining the appointment of Khan, to order the appointment vacated, and to proceed to fill the resulting vacancy in accordance with civil service rules and procedures applied without discrimination.

Appellant’s petition for a hearing by the Supreme Court was denied June 8, 1979. Bird, C. J., did not participate therein.

Affirmative action has developed along a number of disparate lines. In many of its manifestations it provides the necessary impetus to insure equal opportunities for all individuals. At times, however, what is styled “affirmative action” is in reality a scheme which operates unlawfully to deprive an individual (i.e., anv member of the human race) who is himself without fault of rights to which he is lawfully entitled. The latter type of “affirmative action” was the subject of trenchant comment by a leading constitutional scholar: “The lesson of the great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation: discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society. Now this is to be unlearned and we are told that this is not a matter of fundamental principle but only a matter of whose ox is gored. Those for whom racial equality was demanded are to be more equal than others. Having found support in the Constitution for equality, they now claim support for inequality under the same Constitution.” (Bickel, The Morality of Consent (1975) p. 133 quoted in University of California Regents v. Bakke (1978) 438 U.S. 265, 295, fn. 35 [57 L.Ed.2d 750, 774, fn. 35, 98 S.Ct. 2733], opn. of Powell, J.)