Metropolitan News-Enterprise


Monday, June 3, 2002


Page 1


Ninth Circuit, for Second Time, Rejects District Judge’s Finding That CHP Discriminates in Promotion


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals Friday, for the second time, rejected a district judge’s finding that the California Highway Patrol discriminated against minorities in making promotions.

The panel ruled that Chief Judge Consuelo B. Marshall of the Central District of California erred in holding that a comparison of the number of minority officers in the upper ranks of the CHP to similar numbers for other agencies in the state established a prima facie case of discrimination.

The proper comparison would have been between the number of minority officers in the CHP’s upper ranks and the number of applicants for those positions, Judge Stephen Reinhardt wrote. Since such a comparison is susceptible of conflicting inferences, the claim of bias must go to trial, the judge said.

He was joined by Judges Alex Kozinski and Michael Daly Hawkins.

The plaintiff, Lt. Jeff D. Paige, brought suit in 1994, alleging that the CHP promotional process has an illegal disparate impact on non-white officers from within and without the agency. Under the process as it existed at that time, CHP officers could seek promotion to the ranks of sergeant, lieutenant, captain, assistant chief, and deputy chief through a competitive process not open to outsiders.

Examinations for the ranks of captain and below had oral and written components,  while those for the higher posts were oral only.

The most recent data available at the time Paige filed suit showed that non-whites made up nearly 20 percent of the CHP’s officers and 20.1 percent of those applying for promotion, but only 11.1 percent of the supervisors.

The plaintiffs moved for partial summary judgment, and presented census data showing that 23.1 percent of all persons classified as “Supervisors, Police and Detectives” and 28.8 percent of all “Police and Detectives, Public Service” were non-white. They argued that it was proper to consider the size of this “external pool” because the nature of the process deterred qualified minorities from applying.

Marshall granted the motion. But the appellate panel sent the case back in 1996, saying there was insufficient factual support for the order.

The judge then ordered additional discovery before reconsidering the motion, which she granted a second time.

But Reinhardt said the use of an external pool for comparison was inappropriate in view of a ruling by Marshall after remand, not contested on appeal, that the class of CHP officers lacks standing to contest the requirement that all promotions be made from within.

The requirement that all supervisors be chosen from among those who are already CHP officers obviously does not harm current officers, the judge explained, but helps them by limiting competition. The use of an external pool might be an appropriate means of comparison if the class included members who were barred from obtaining CHP supervisor positions because they aren’t currently employed by the agency, Reinhardt said.

The appellate panel upheld Marshall on another issue, ruling that data considered at the trial need not be broken down according to racial group. Aggregating all non-white officers into a single group is reasonable, Reinhardt said, since the plaintiff’s theory is that all minority group members were victims of the same discriminatory practices.

The CHP, the judge added, did not present evidence that any particular minority group was dissimilarly situated for purposes of the case.

The appeal was argued by Joel M. Cohn of Akin, Gump, Strauss, Hauer & Feld for the CHP and Della Bahan of Pasadena’s Bahan & Associates for the plaintiff.

The case is Paige v. State of California, 01-55312.


Copyright 2002, Metropolitan News Company