ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Gibbons, Maris and Hunter, Circuit Judges.
This is an appeal from an order of the district court granting defendants' motion to dismiss the complaint of Lanceda Richardson against certain officials of the Pennsylvania Health Department for failure to state a claim upon which relief could be granted. See Fed. R. Civ. P. 12(b)(6). We reverse.
Richardson, a black woman, filed a complaint on her own behalf and on behalf of a class of similarly situated persons,*fn1 alleging that in violation of 42 U.S.C. § 1981 and § 1983, and of the fourteenth amendment she had been improperly discharged from her employment.*fn2 The defendants are state officers responsible for personnel policies and practices of the Pennsylvania Department of Health. Richardson charges that defendants' practice of using Pennsylvania civil service exam No. 08493 (the "exam") for testing and ranking job applicants for the positions of Laboratory II and Laboratory III Technicians violates her constitutional rights. She alleges that the exam had a discriminatory racial impact on minority job applicants and that the exam was not job-related.
On October 27, 1965, Richardson was given a provisional appointment as a Laboratory Technician II within the Pennsylvania Health Department. Under Pennsylvania law "[a] provisional appointment shall continue only until an appropriate eligible list can be established and certification made therefrom." 71 P.S. § 741.604 (Supp. 1976). After several unsuccessful attempts to establish an eligibility list, the State Civil Service Commission established one in the spring of 1975. Richardson competed in the examination which was used to create this eligibility list, and, in fact, was placed on the list. Pennsylvania law, however, requires that only the three highest ranking individuals on the eligibility list be certified for appointment to the position. See 71 P.S. § 741.601 (Supp. 1976). As Richardson was not one of the top three persons on the list of eligibles she was not certified, and on May 13, 1975, her provisional appointment was terminated.
In her complaint charging that the exam was invalid Richardson alleges: (1) that during her nine and one-half year employment with the Health Department her performance as a Laboratory Technician II was constantly evaluated by her superiors as "Very Good"; (2) that the exam has not been validated to predict success on the job of Laboratory Technician II and III with a reasonable degree of accuracy; (3) that the use of the exam to determine hiring for the position of Laboratory Technician II and III violates 29 C.F.R. § 1607, a regulation of the federal Equal Employment Opportunity Commission; and (4) that the exam has a discriminatory impact on minority applicants in that proportionately fewer minority applicants pass than do whites. The complaint also alleges:
18. The defendants knew or reasonably should have known that the use of this Laboratory Technician II and Laboratory Technician III civil service examination to determine hiring for the job in which plaintiff was engaged, would violate her constitutional rights.
20. Despite their knowledge that the examination for Laboratory Technician II and Laboratory Technician III was not job-related and not validated to predict with a reasonable degree of accuracy success on the job in which plaintiff was engaged and despite their knowledge that the named plaintiff had successfully performed her job for 9 1/2 years, the defendants, acting in bad faith, or with reckless disregard for the named plaintiff's constitutional rights, dismissed the named plaintiff.
In granting defendants' Rule 12(b)(6) motion the district court wrote no opinion. Thus we are somewhat in the dark as to the reasoning behind the court's ruling. We do know, however, that the defendant state officials, in moving for a dismissal, relied on Washington v. Davis, 426 U.S. 229, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976).
Griggs v. Duke Power Co., 401 U.S. 424, 431, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971) holds that "if an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited [under Title VII]." A discriminatory intent on the part of the employer need not be proved to show that a testing practice violates Title VII. Id. at 432. Under Title VII exams having a substantially disproportionate disqualifying effect on minorities must be validated in terms of job performance, and such validation requires a probing judicial review of the choices made by those responsible for the test. See, e. g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 425-36, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975).
In Washington v. Davis, supra, plaintiffs alleged that defendants had utilized employment testing procedures which were racially discriminatory and violated the due process clause of the fifth amendment and 42 U.S.C. § 1981. As in the case sub judice no Title VII violations were asserted. The Court held that as plaintiffs' claims were based on asserted violations of the fifth amendment, rather than Title VII, plaintiffs were required to prove not only a discriminatory impact, but also a discriminatory intent on the part of the defendant employers.
Under Title VII, Congress provided that when hiring and promotion practices disqualifying substantially disproportionate numbers of blacks are challenged, discriminatory purpose need not be proved, and that it is an insufficient response to demonstrate some rational basis for the challenged practices. It is necessary, in addition, that they be "validated" in terms of job performance in any one of several ways, perhaps by ascertaining the minimum skill, ability or potential necessary for the position at issue and determining whether the qualifying tests are appropriate for the selection of qualified applicants for the job in question. However this process proceeds, it involves a more probing judicial review of, and less deference to, the seemingly reasonable acts of administrators and executives than is appropriate under the Constitution where ...