281061 WHITE - CITV CLERK ���f���
PINK - FINANCE COURCII v
CANARV - DEPARTMENT GITY OF SAINT PAUL File NO•
BLUE - MAVOR
�
Coun ' �so ut ' n
Presented By • ��
Referred To �"l 1��✓�l�f�–� C mittee: Date � ��� '� �
Out of Committee By Date
RESOLVED, That the Council of the City of Saint Paul does
hereby .accept the settlement for the amount of $28, 000. 00 in the
matter of the Minnesota State Human Rights Department ' s claim
ma.de on behalf of Diane A. Boese against the City and authorizes
the proper City officials to execute the settlement agreement
attached hereto and made a part of this Resolution.
COUIVCILMEN Requested by Department oE:
Yeas Nays �
Fletcher
GaO� In Favor
Masanz
Nicosia ,,�I
Schetbel KJ' _ Against BY
Tedesco
Wilson
Ot,T `�,, p 1983 Fo�m n rne
Adopted by Council: Date `
Certified Y� - y Counc� , c r BY �
B�
• �(-'T ? 1 ��3 AP by Mayor for S n to Council
t�pp v y Mavor: — d
gy B
PUBLlSHED 0 C T 2 9 i983
- � . � � . 2�1061
BEFORE THE HUNiAN RIGHTS DEPARTMENT
OF THE STATE OF MINNESOTA
State of Minnesota, by Irene
Gomez-Bethke, Commissioner, DHR File No. E4245-MF/LS5-2C
Department of Human Rights,
OAH File No. 83-016-JL
Complainant,
vs. SETTLEMENT AGREEMENT
City of St. Paul ,
- Respondent.
THIS AGREEMENT is made by and between Diane A. Boese
("charging party") ; City of St. Paul ( "respondent") ; and the
Minnesota Department of Human Rights (the "Commissioner") .
WHEREAS , all parties to this Agreement desire to avoid
protracted and expensive litigation in the instant action and
have successfully conciliated all issues .in dispute in th$
above matter and have agreed to a full _settlement of all issues
in dispute between them.
NOW THEREFORE, in consideration of the promises and t?�e
mutual agreements, covenants and provisions contained in this
Agreement, the parties hereto agree and declare as follows:
l. This Agreement does not constitute an admission by
respondent of any violation of the Minnesota Human Rights Act, or
of any other state or federal law. .
2. Respondent City of St. Paul agrees that i.t will
not use again as a pre-employment screening device or requirement �.
the physical strength and agility test which is the subject of
the complaint in this action.
- � . � � . ?�1Q61
3. For and in consideration of respondent's payment
to charging party of $28,000 .00 , receipt of which is acknowledged
by charging party's signature below, charging party and the Depart-
ment release, quitclaim, discharge, and covenant not to sue the
respondent with respect to any matters which were contained in the
complaint in this action. Provided, however, that nothing contained
herein shall be construed to in any way limit the right of the
Commissioner or the Department to take action against respondent
in the event there is a violation or failure to comply with the
terms of this Agreement.
4. The Commissioner of Human Rights agrees not to is-
sue any news releases or in any other way to publicize affirmatively
the terms of this Agreement.
5 . This Agreement should not be construed to indicate
that the Commissioner or the Department has approved or authorized
any form of physical testing or screening which may be employed or
relied upon by the City in the future.
6. Charging party, the Commissioner, and respondent
hereby authorize and request Jon Lunde, Hearing Examiner, to dismiss
with prejudice the above entitled action in an order incorporating
the provisions of this Agreement.
DEPARTMENT OF HUMAN RIGHTS
By- �
Date . IRENE GOMEZ-BETHKE, Commissioner
Date DIANE A. BOESE
CITY OF ST. PAUL
By: Mayor
By:
_2_ Council President
. � . � � . �������
� STATE OF MINNESOTA
�,
OFFICE OF THLr AT'PCrli\ET GY:\ER.�I. ADDRESS REPLY TO:
I100 BREMER TOWER
ST. PAUL eri"e�ilu�i RECE�V�� SEVENTH PL.AND MINNESOTA ST.
HUBERT H. HUMPHREY, III ST.PAUL,MN 55101
ATTORNEY GENERAL TELEPHONE:(612)296-9412
August 30 , 19 83 A���� �;; ; �c;;.,j
CITY ATTORiV�
Paul McCloskey
Assistant City Attorney
City of St. Paul
647 City Hall
• St. Paul, MN 55102
- Re: Diane Boese .
' Dear Mr. McCloskey:
I wanted to make one slight modification of our
proposed settlement agreement. Please add the name
of Lynn Castner as a signator, identifying him as
attorney for Diane Boese. This will ensure that the
proposed settlement agreement has his approval and
that any attorneys' fees he might charge are already
included in the settlement amount. In addition,
please have the settlement check made out to both
Diane Boese and Lynn Castner.
Sincerely,
��'� �• •
��
MARK B. LEVINGER
Special Assistant
Attorney General
MBL:raa
cc: Lynn Castner
Diane Boese
AN EGIUAL OPPORTUNlTY EMPLOYER
xx
- y � � � ������
.
� STATE OF MINNESOTA
OFFICE OF THLr AT'1'C�l2rET GL\ERA7, ADDRESS REPLY TO:
1100 BREMER TOWER
HUBERT H. HUMPHREY, III �T. PAUL uu1�5 sT PAU�,M�I�MINNESOTA SI'.
ATTORNEY GENERAL TELEPHONE:(612)296-4412
August 24 , 19 83 RECEIVED
l�U�� f; ����`�
. ,
CITY ATTO�i�IEY
Mr. Paul McCloskey
Assistant City Attorn.ey
City of St. Paul
647 City Hall
' St. Paul, MN 551Q2
- Re: Diane Boese
Dear Mr. McCloskey:
Enclosed is a praposed settlement agreement in
this matter. Pl.ease contact me right away if you
would like some modification in the language. Also,
do you need anything for the City Council other than
this letter indicating that both the Commissioner of
Human Rights and Diane Boese approve the terms of
this proposed settlement agreement?
As soon as this agreement is approved, please
forward to me three (3) signed copies of it with the
check made out to Diane Boese. I will hold the check.
in my possession until both Ms. Boese and Cammissioner
Gamez-Bethke have s.igned the agreement, then release
the check and send to you one fully executed capy.
Sincerely,
6(/1/C� • � '
�
����?�
MARK B. LEVINGER
Special Assistant
Attorney GeneraZ
MBL:raa
encl.
AN EQUAL OPPORTUNITY EMPLOYER
_ ::
, ',�,. �. ' . ������
F����T� o. CITY 4F SAINT PAUL
3,��'�
' �`` OFFICE OF THE CITY ATTORNEY
�; � _�.
� y S
:.v ��1111,111'II� a°� .
r�.. „�4� EDWARD P. STARR, CITY ATTORNEY
�.,..
`<:,>`.s:�s� 647 City Hail, Saint Paul,Minnesota 55102
• 612-298-5121
GEORGE LATIMER
MAYpR
August 11, 1983
M E M O R A N D U M
TO: THOMAS GLEASON
Director, City Personnel
'',• ,L
FR: PAUL MC CLOSKEY ��/+`,� . �;^
THOMAS REDING
RE: Discrimination Complaint of Diane Boese.
On March 28, 1983 the City was served with a formal Summons and
Complaint regarding the above-captioned matter. This case con-
cerned the 1977 Police Officer' s examination, specifically the
April 9, 1977 physical strength and agility test. (PSAT) .
The complaint alleged that the PSAT had a disparate impact upon
women in that women failed this test in a significantly higher
percentage than men do. Further, the complaint alleged that re-
quiring each applicant to pass the PSAT is not necessarily for
the safe and efficient operation of the St. Paul Police Depart-
ment and other employment tests or procedures which would have a
less disparate impact upon women would satisfy the City' s legiti-
mate interest in excluding unqualified individuals from becoming
patrol officers.
The complaint specifically alleges that, excluding and refusing
to hire Diane A. Boese because she failed the PSAT, constitutes
an unlawful discriminatory act based on sex and in violation of
Minn. Stat. � 363. 03, subd. 1(2) , (a) (c) , which states in essence
as follows:
(1) Subd. l: Except when based on a bona fide
occupational qualification, it is an unfair
employment practice:
(2) for an employer, because of . . . sex . . .
.� � � � � � - � � ��14b1
Thomas Gleason
Page Two
August 11, 1983
(a) to refuse to hire or to maintain a system
of employment which unreasonably excludes
a person seeking employment; or
(c) to discriminate against a person with respect
to his hire, tenure . . . or privileges of
employment.
The specific facts in the case will be developed later in this
memorandum. Before doing that, however, a full understanding of
the two basic legal theories involved in discrimination cases,
i.e. , "disparate treatment" and "disparate impact" should be ex-
plained. Courts distinguish between disparate treatment and dis-
parate impact and have developed different standards for analyzing_
each. The Supreme Court of the United States has defined the two
basic types of discrimination as follows:
"Disparate treatment" . is the most easily
understood type of discrimination. The employer
simply treats some people less favorably than
- others because of their race, color, religion,
sex or natural origin. Proof of discriminatory
motive is critical, although it can in some
situations be inferred from the mere fact of
differences in treatment.
Claims of disparate treatment may be distin-
guished from claims that stress "disparate impact" .
The latter involve employment practices that are
more facially neutral in thei:r treatment of
different groups but that in fact fall more
harshl.y on one group than another and cannot
be justified by business necessity. Proof of
discriminatory motive, we have held, is not
required under a disparate impact theory. "
International Brotherhood of Te'amsters v. United Stat�es, 431 U. S.
324, 335-36 (1977) .
One distinction between the disparate treatment and disparate
impac� theories of discrimination concerns the nature and weight
of the burden of production which shifts to the defendant after
the plaintiff has established a prima facie case of discrimination.
(See Johnson v. Uncle Ben's, Inc. 657 F.2d 750, 752-53 (5th Cir.
, ' - . � �i���J�i
Thomas Gleason
Page Three
August 11, 1983
1981) . Under the disparate impact analysis, once the plaintiff
establishes a prima facie case, the employer must affirmatively
prove a rational and compelling relationship between the practice
and job performance and show that the alternative practices with
a lesser discriminatory impact are not available. Kraft, Inc. v.
Sta�e, 283 N.W. 2d 386, 387 (Minn. 1979) ; Albermarle Paper Co. v.
Moody, 422 U. S. 405, 425 (1975) .
The employer in a disparate treatment case need only raise a
"genuine issue of fact as to whether or not it discriminated
against the plaintiff" through the introduction of evidence that
shows legitimate reasons for rejecting plaintiff. Texas Depart-
ment of Community Affazrs v. Burdine, 450 U. S. 248, 255 (1981) .
Diane Boese' s claim of employment discrimination in the present
action is one alleging a disparity of impact rather than dispar-
ate treatment.
Plaintiff' s attorney can easily show that in 1977, 259 applicants
took the PSAT and of them, 193 were males and 166 females. All
_ 193 males passed. Approximately 25. 50 of the applicant pool taking
the PSAT was female. 1000 of all male applicants passed, while only
13. 6� of the females passed. Thus, a prima facie case of discrimi-
nation through disparate impact has been presented.
Upon their showing, the burden of proof will shift to the City
and this burden simply cannot be overcome. It is anticipated�
that a ruling such as, �
"Defendant City of Saint Paul did not meet the
burden of showing that the PSAT, which had
disparate impact on female applicants was
valid and job-related where job analyses did
not specifically define the degree of physical
strength required; where portions of the test
were never validated; and no justification was
in the record for exercises chosen or passing
grades for each.
will be forthcoming.
Considerable time has been spent by several of City staff in
researching and compiling information with regard to this case.
� ' � ' ' �'���J��
Thomas Gleason
Page Four
August 11, 1983
At the outset, Ms. Boese keyed her complaint on that part of the
PSAT that required her to scale a five-foot high smooth fence
within a certain amount of time. It should be noted that a �ai1-
ure to complete any part of the PSAT (there were five components)
resulted in a total fail, although applicants were not told that
fact.
The State Commissioner of Human Rights, on her own authority,
expanded the discrimination charge to attack all aspects of the
PSAT. As an ironic side note, our research has uncovered a letter
from the State Human Rights Department approving the five-foot
high smooth fence as part of the PSAT for another city' s police
department. However, that does little to salvage the rest of the
PSAT for reasons explained hereinafter.
The complaint of Ms. Boese was not actively pursued by the State
Department of Human Rights until the summer of 1981. Several
meetings were held at that time and all aspects of the case were
discussed. These pleadings culminated in serious settlement dis-
,_ cussions during the fall of 1982 and an offer to Ms. Boese was
submitted to place her in the then starting Police Recruiting
Academy and she in turn would waive all other claims. After a
few weeks of deliberating this offer, she and her .lawyer, Mark
Loevinger, Special Assistant Attorney General, declined.
In March, 1983, the State Human Rights Department filed a formal
complaint and trial of the matter is set for October 17, 1983.
Substantial discovery has been conducted of the test data and
results and our conclusions are as follows:
(1) The PSAT is irrational in that it does not test for those
physical attributes actually needed on the job.
(2) The PSAT of our City is markedly different from those of
other cities in the metropolitan area and those other tests are
apparently valid.
(3) The passing score of the PSAT was arbitrarily set. It
was set "low" which speaks somewhat in our favor, but this after-
the-fact determination cannot rationally be explained.
(4) Dr. James Fox of Arthur Young & Company has been retain-
ed by us as an expert and his review of our materials can be
summarized by his statement - "you have problems. "
� � � � � � � � � � � - . ����s�
Thomas Gleason
Page Five
August 11, 1983
(5) The obstacle course conducted by us for the Police Recruit
Academy has been validated, but the PSAT has not.
As to other matters, either pro or con, regarding this case, they
should be noted as follows:
(1) The 1977 police recruit hiring was subject to a federal
court order. Seven females were directed to be hired as a part of
the first 27 recruits. This was done.
(2) Unfortunately, that hiring was all the City did in terms
of "administrative affirmative action" as the next 24 hires (for a
total of 51) were all white males.
(3) Motions have been filed to dismiss the suit on juris-
dictional and statute of limitation grounds.
(4) The motions were denied.
(5) Punitive damages were not requested i.n this matter.
(6) Ironically, this case would litigate a practice that the
City apparently will not engage in ever again, with future hires
caming from the post board pool. However, this fact does nothing
to enhance the defense side of this case.
In summary, the facts in this case underscore both disparate treat-
ment and impact in the hiring process. As to disparate treatment,
we have no legal defenses, but several points could be made in
mitigation. As to impact, we have no defenses and the lawsuit
keys on impact. �
The expert we have retained has submitted a $290 bill for services
rendered in attending one meeting and assembling and identifying
data in this case. Employing him for hearing preparation and
testimony, plus utilizing several of City staff at trial, we
estimate several thousand dollars in hearing expenses.
We anticipate losing this case. We do not expect a punitive damage
award, but do expect the hearing examiner to order her employment
and back pay from 1977. Coincidental with this, we, of course,
would have to set up a one-person police recruiting academy in
order to comply with that anticipated order. It is self evident
that this would be most inconvenient and very expensive.
_ _ _ �_..
_ _ , . .. .��m... �s.;_.
• � ' ' , . l6�����
Thomas Gleason
Page Six
August 11, 1983
We have the opportunity to settle this case for money alone and
her latest demand is for $45, 000. 00. Her attorney has noted that
this sum is indeed negotiab].e and we are contemplating her dollar
damages somewhere in the area of $30,000. This is the difference
between what she would have made as a police officer and her
actual income from employers during the period of time in question.
We recommend settlement of this case in the neighborhood of
$30,000. 00.
PFM:cg
cc : Chief Wm. McCutcheon
�
WM1TE - C�TY CLERK • ��� l ������
PINK - FINAN�E � CO{II1CIl J
CANARY - DEPARTMENT G I TY O F SA I NT PA U L File NO.
BLUE - MAYOR
�
Council Resolution
Presented By
Referred To Committee: Date
Out of Committee By Date
RESOLVED, That the Council of the City of Saint Paul does
hereby accept the settlement for the amount of $28 , 000. 00 in the
matter of the Minnesota State Human Rights Department' s claim
made on behalf of Diane A. Boese against the City and authorizes
the proper City officials to execute the settlement agreement
attached hereto and made a part of this Resolution.
COUNCILMEN Requested by Department of:
Yeas Nays
F{etcher
�e��°� In Favor
Masanz '
Nicosia
Scheibel A ga i n s t BY
Tedesco
Wilson
� Form Approved by City Attorney
Adopted by Council: Date
Certified Yassed by Council Secretary BY
B�
Approved by Mavor. Date Approved by Mayor for Submission to Council
R� -- Bv
. • ' ' ������
�� , ,
�- -� STATE OF MINNESOTA
� OFFICE OF THE AT"1'c�22\E7 GIs�ER.�i. ADDRESS REPLY TO:
1100 BREMER TOWER
ST. PAUL 5u1�5 ��CE��[� SEVEM'H PL.AND MINNFSOTA ST.
HUBER"I' H. HUMPHREY, lII � �° TELEPHO EN(6l2)296-9412
ATTORNEY GENERAL
August 30 , 19 83 A+;�_� �;� ; ��;:j
� CITY A��ORi��Y
Paul McCloskey
Assistant City Attorney
City of St. Paul
647 City Hall
• St. Paul, NIN 55102
Re: Diane Boese
Dear Mr. McCloskey:
I wanted to make one slight modification of our
proposed settlement agreement. Please add the name
of Lynn Castner as a signator, identifying him as
attorney for Diane Boese. This will 'erisure that the
proposed settlement agreement has . his approval and
that any attorneys ' fees he might charge are already
included in the settlement amount.. : In addition,
please have the settlement check made out to both
Diane Boese and Lynn Castner.
Sincerely.,
.
��/� �•
��
MARK B. LEVINGER
Special Assistant
Attorney General
MBL:raa
cc: Lynn Castner
Diane Boese
AN EGIUAL OPPORTUNlTY EMPLOYER
��zz
... . . ,. . . . i
' ' ' , • . ���V��
� . ...
.� ' 1
� �-` STATE OF MINNESOTA
OFFICE OF TSL� AT'I'UR\ET GI:�EI2AI. ADDRESS REPLY TO:
1100 BREMER TOWER
ST. PAUL J".��IJF SEVENTH PL.AND MINNESOTA ST.
HUBERT H. HUMPHREY, IIl ST.PAUL,MN 55101
ATTORNEY GENERAL 'fELEPHONE:(612)296-9412
August 24 , 1983 �ECEI��E�
�, ��.v
� NUi� �,� ' _�`� �
,
� C1TY P.T�����1( � ���
. ,
Mr. Paul McCloskey
Assistant City Attorney
City of St. Pau1
647 City Hall
' St. Paul, MN 55102
Re: Diane Boese
Dear Mr. McCloskey:
Enclosed is a proposed settlement agreement in �
this ma.tter. Please contact me right away if you
wauld like some modification in the language. A1so,
do you need anything for the City Council other than
- this letter indicating that both the Commissioner of
Human Rights and Diane Boese approve the terms of
this proposed settlement agreement?
As soon as this agreement is approved, please
forward to me three (3) signed copies of it with the
check made out to Diane Boese. I will hold the check
in my possession until both Ms. Boese and Commissioner
Gomez-Bethke have signed the agreement, then release
the check and send to you one fuI.ly executed copy.
Sincerely,
. (�/1/rC. • '
�
������
MARK B. LEVINGER
� Special Assistant
Attorney General
MBL:raa
encl.
AN EGIUAL OPPORTUNITY EMPLOYER
�n
C •
• . � ... ��,� vLf�
BEFORE THE HUMAN RIGHTS DEPARTMENT
OF THE STATE OF MINNESOTA
State of Minnesota, by Irene
Gomez-Bethke , Commissioner, DHR File No. E4245-MF/LS5-2C
Department of Human Rights ,
OAH File No. 83-016-JL
Complainant,
vs . � SETTLEMENT AGREEMENT
City of St. Paul ,
Respondent.
THIS AGREEMENT is made by and between Diane A. Boese
( "charging party") ; City of St. Paul ( "respondent") ; and the
Minnesota Department of Human Rights (the "Commissioner") .
WHEREAS , all parties to this Ar�reement desire to avoid
protracted and expensive litigation in the instant action and
have successfully conciliated ali issues in dispute in the
above matter and have agreed to a full: settlement of all issues
in dispute between them. '
NOW THEREFORE, in consideration of the promises and the
mutual agreements , covenants and provisions contained in this
Agreement, the parties hereto agree and declare as follows :
1. This Agreement does not constitute an admission by
respondent of any violation of the Minnesota Human Rights Act, or
of any other state or federal law.
2 . Respondent City of St. Paul agrees that it will
not use again as a pre-employment screening device or requirement
the physical strength and agility test which is the subject of
the complaint in this action.
,.
.� . . . � .. ��1Q61
3 . For and in consideration of respondent' s payment
to charging party of $28 ,000 .00 , receipt of which is acknowledged
by charging party ' s signature below, charging party and the Depart-
ment release, quitclaim, discharge, and covenant not to sue the
respondent with respect to any matters which were contained in the
complaint in this action. Provided, however, that nothing contained
herein shall be construed to in any way limit the right of the
Commissioner or the Department to take action against respondent
in the event there is a violation or failure to comply with the
terms of this Agreement.
4 . The Commissioner of Human Rights agrees not to is-
sue any news releases or in any other way to publicize affirmatively '
the terms of this Agreement.
- 5 . This Agreement should not be construed to indicate
that the Commissioner or the Department has approved or authorized
any form of physical testing or screening which may be employed or
relied upon by the City in the future.
6 . � Charging party, the Commissioner, and respondent
hereby authorize and request Jon Lunde, Hearing Examiner, to dismiss
with prejudice the above entitled action in an order incorporating
the provisions of this Agreement.
DEPARTMENT OF HUMAN RIGHTS
By-
Date . IRENE GOMEZ-BETHKE, Commissioner
Date DIANE A. BOESE
CITY OF ST. PAUL
By: Mayor
By:
_2_ Council President
� � ,,� . . �GrV����
����_;� � � � � ° CITY OF SAINT PAUL
`�>.
~�� '��- OFFICE OF THE CITY ATTORNEY
�. � _,.
�O „�.
'` ""�"'�° '= EDWARD P. STARR, CITY ATTORNEY
:;_o �_1_. �..
'•�;.. -
� ,��� 647 City Hall, Saint Paul, Minnesota 55102
.'.�`��:�`� 612-298-5121
GEORGE LATIMER
n1A1'OR
August 11, 1983
M E M O R A N D U M
TO: THOMAS GLEASON
Director, City Personnel
�• L
FR: PAUL MC CLOSKEY ��./���� -, �:"
THOMAS REDING
RE: Discrimination Complaint of Diane Boese.
On March 28, 1983 the City was �erved wi.th a formal Summons and
Complaint regarding the above-captioned, matter. This case con-
cerned the 1977 Police Officer' s examin.ation, specifically the
April 9, 1977 physical strength and agility test. (PSAT) .
The complaint alleged that the PSAT ha�d` a disparate impact upon
women in that women failed this test in a significantly higher
percentage than men do. Further, the complaint alleged that re-
quiring each applicant to pass the PSAT is not necessarily for
the safe and efficient operation of the St. Paul Police Depart-
ment and other employment tests or prcrcedures which would have a
less disparate impact upon women would:`satisfy the City' s legiti-
mate interest in excluding unqualified individuals from becoming
patrol officers.
The complaint specifically alleges that, excluding and refusing
to hire Diane _A. Boese because she failed the PSAT, constitutes
an unlawful discriminatory act based on sex and in violation of
Minn. Stat. � 363. 03 , subd. 1 (2) , (a) (c,) , which states in essence
as follows:
(1) Subd. 1: Except when based on a bona fide
occupational qualification, it is an unfair
employment practice:
(2) for an employer, because of . . . sex . . .
�� � � � � . . . � . � , .. 281�+61
Thomas Gleason
Page Two
August 11, 1983
(a) to refuse to hire or to maintain a system �
of employment which unreasonably excludes
a person seeking employment; or
(c) to discriminate against a person with respect
to his hire, tenure . . . or privileges of
employment.
The specific facts in the case wiZl be developed later in this
memorandum. Before doing that, however, a full understanding of
the two basic legal theories involved in discrimination cases ,
i.e. , "disparate treatment" and "disparate impact" should be ex-
plained. Courts distinguish between disparate treatment and dis-
parate impact and have developed different standards for analyzing.
each. The Supreme Court of the United States has defined the two . .
basic types of discrimination as follows:
"Disparate treatment" . . . is the most easily
understood type of discrimination. The employer
simply treats some people less favorably than
- others because of their race, color, religion,
sex or natural origin. Proof of discriminatory
motive is critical, although it can in some
situations be inferred from the mere fact of
differences in treatment.
Claims of disparate treatment may be distin-
guished from claims that stress "disparate impact" .
The latter involve employment practices that are
more facially neutral in their treatment of
different groups but that� in fact fall more
� harshly on one group than another and cannot
be justified by business necessity. Proof of
� discriminatory motive, we have held, is not
� required under a disparate impact theory. °
International Brotherhood of Teamsters v. United Stat�es, 431 U. S.
324 , 335-36 (1977) .
One distinction between the disparate treatment and disparate
impac� theories of discrimination concerns the nature and weight
of the burden of production which shifts to the defendant after
the plaintiff has established a prima facie case of discrimination.
(See Johnson v. Uncle Ben' s, Inc. 657 F.2d 750 , 752-53 (Sth Cir.
� � � � � _ . � � .. 28���
Thomas Gleason
Page Three
August 11, 1983
1981) . Under the disparate impact analysis , once the plaintiff
establishes a prima facie case, the employer must affirmatively
prove a rational and compelling relationship between the practice
and job performance and show that the alternative practices with
a lesser discriminatory impact are not available. Kraft, Inc. v.
State, 283 N.W. 2d 386', 387 (Minn. 1979) ; Albermarle Paper Co. v.
Moody, 422 U. S. 405, 425 (1975) .
The empZoyer in a disparate treatment case need only raise a
"genuine issue of fact as to whether or not it discriminated
against the plaintiff" through the introduction of evidence that
shows legitimate reasons for rejecting p].aintiff. Texas Depart-
ment of Community Affairs v. Burdine, 450 U. S. 248 , 255 (1981) .
Diane Boese' s claim of employment discrimination in the present
action is one alleging a disparity of impact rather than dispar-
ate treatment. �:
Plaintiff ' s attorney can easily show that in 1977, 259 applicants
took the PSAT and of them, 193 were males and 166 females. All
• 193 males passed. Approximately 25.50 of the applicant pool taking
the PSAT was female. 1000 of all male applicants passed, while only
13. 6% of the temales passed. Thus, a prima facie case of discrimi-
nation through disparate impact has beeri presented.
Upon their showing, the burden of proo� will shift to the City
and this burden simply cannot be overcbme. It is anticipated�
that a ruling such as,
"Defendant City of Saint Paul. did not meet the
burden of showing that the PSAT, which had
disparate impact on female applicants was
valid and job-related where job analyses did
not specifically define the degree of physical
strength required; where portions of the test
were never validated; and no justification was
in the record for exercises chosen or passing
grades for each.
will be forthcoming.
Considerable time has been spent by several of City staff in
researching and compiling information with regard to this case.
, - . . . _ � , . - . , .. 2�1�QS1
Thomas Gleason
Page Four
August 11, 1983
At the outset, Ms. Boese keyed her complaint on that part of the
PSAT that required her to scale a five-foot high smooth fence
within a certain amount of time. It should be noted that a tail-
ure to complete any part of the PSAT (there were five components)
resulted in a total fail, although applicants were not told that
fact.
The State Commissioner of Human Rights, on her own authority,
expanded the discrimination charge to attack all aspects of the
PSAT. As an ironic side note, our research �has uncovered a letter
from the State Human Rights Department approving the five-foot
high smooth fence as part of the PSAT for another city' s police
department. However, that does little to salvage the rest of the
PSAT for reasons explained hereinafter.
The complaint of Ms. Boese was not actively pursued by the State
Department of Human Rights until the summer of 1981. Several
meetings were held at that time and all aspects of the case were
discussed. These pleadings culminated in serious settlement dis-
cussions during the fall of 1982 and an offer to Ms. Boese was
submitted to place her in the then starting Police Recruiting
Academy and she in turn would waive a11 other claims. After a
few weeks of deliberating this offer, she and her .lawyer, Mark
Loevinger, Special Assistant Attorney General, declined.
In March, 1983, the State Human Rights Department filed a formal
complaint and� trial of the matter is set for October 17, 1983 .
Substantial discovery has been conducted of the test data and
results and our conclusions are as follows:
. (1) The PSAT is irrational in that .it does not test for those
physical attributes actually needed on the job.
. (2) The PSAT of our City is markedly different from those of
other cities in the metropolitan area and those other tests are
apparently valid.
(3) The passing score of the PSAT was arbitrarily set. It
was set "low" which speaks somewhat in our favor, but this after-
the-fact determination cannot rationally be explained.
(4) Dr. James Fox of Arthur Young & Company has been retain-
ed by us as an expert and his review of our materials can be
summarized by his statement - "you have problems . "
� ' � ' . ,• + �. . �����
Thomas Gleason
Page Five
August 11, 1983
. (5) The obstacle course conducted by us for the Police Recruit
Academy has been validated, but the PSAT has not.
As to other matters, either pro or con, regarding this case, they
should be noted as follows:
(1) The 1977 police recruit hiring was subject to a federai
court order. Seven females were directed to be hired as a part of
the first 27 recruits . This was done.
(2) Unfortunately, that hiring was aII the City did in terms
of "administrative affirmative action" as the next 24 hires (for a
total of 51) were all white males.
(3) Motions have been filed to dismiss the suit on juris-
dictional and statute of limitation grounds .
(4) The motions were denied. �
, (5) Punitive damages were not requested in this matter.
(6) Ironically, this case would litigate a practice that the
City apparently will not engage . in ever' again, with future hires
coming from the post board pool. However, this fact does nothing
to enhance the defense side of this case.
In summary, the facts in this case unc�erseore both disparate treat-
ment and impact in the hiring process: As to disparate treatment,
we have no legal defenses, but several points could be made in
mitigation. As to impact, we have no defenses and the lawsuit
keys on impact. �
The expert we have retained has submitted a $290 bill for services
rendered in attending one meeting and assembling and identifying
data in this case. Employing him for hearing preparation and
testimony, plus utilizing several of City staff at trial, we
estimate several thousand dollars in hearing expenses.
We anticipate losing this case. We do not expect a punitive damage
award, but do expect the hearing examiner to order her employment
and back pay from 1977. Coincidental with this, we, of course,
would have to set up a one-person police recruiting academy in
order to comply with that anticipated order. It is self evident
that this would be most inconvenient and very expensive.
' �. ' _ , ' ... ������
. � � .
Thomas Gleason
Page Six
August 11, 1983
We have the opportunity to settle this case for money .alone and
her latest demand is for $45, 000. 00. Her attorney has noted that
this sum is indeed negotiable and we are contemplating her dollar
damages somewhere in the area of $30, 000. This is the difference
between what she would have made as a police officer and her
actual income from employers during the period of time in question.
We recommend settlement of this case in the neighborhood of
$30, 000. 00.
PFM:cg � �
cc : Chief Wm. McCutcheon
�v�V��
Agenda
Finance, Management $ Personnel Committee
October 13, 1983
- Page 2
10. Resolution amending the Civil Service P.ules by inserting a special provision for
newl�pointed Substitute Library Specialists. (Personnel)
11. Resolution amending the Civil Service Rules by removing the Substitute Library
Specialists from the Special Employments category and placing them in a grade.
(Pers�el)
12. Resolution declaring the intention that the six resolutions and one ordinance
relating to the Substitute Librarian Specialist title be effective retroactively
to September 15, 1983.
13. Resol�o n establishing the title and class specification of EDP Lead Programmer
in the Civil Service Rules. (Personnel)
14. Reso��on approving securities pledged by Summit State Bank of Phalen Park to
protect funds of the City of Saint Paul while held in said bank - $350,000.
(Finan� .
15. Resolution approving securities pledged by Capital City Bank of St. Paul to
protect funds of the City of St. Paul while held in said bank - 5 treasury notes.
� (Finance)
�ieid_ �
16. Fesolution approving the securities pledged by Exchange State Bank to protect
funds of the City of St. Paul while held in said bank - $50,000, $100,000.
(Finan�
17. Resolution transfering $720,500 between Community Health Administration and
various CHS accounts. {Community Services) L.v:a O<J�i'
18. Resolution amending Capital Improvement Budget to provide increased financing
for the Hillcrest Recreation Center Sitework Project. .q,o�
�( 19. Resolution accepting the settlement of $28,000 in the Minnesota State Human
�� Rights Department's claim on behalf of Diane A. Boese against the City. �,o
20. Resolution for issuance of revenue bond in the amount of �6,378,000 to finance
the acquisition of space at Conwed Tower. (Port Authority) .��/�
21. Resolution for issuance of revenue bonds in the amount of $6,135,000 to finance
the acquisition of space at Conwed Tower for Albion Limited��nership II�. (P.A.)
22. Resolution for issuance of revenue bonds in the amount of $7,275,000 to finance
the acquisition of space at Conwed Tower for Albion Limited��nership III. (P.A.)
23. Resolution for issuance of revenue bonds in the amount of $5,475,000 to finance
� the acquisition of space at Conwed Tower for Albion Limited�fr�nership IV. : (P.A.)
\
�.r-`'� ` •,, , ` ! �����
�. �, CITY OF SAINT PAUL
�s�, OFFIC� OF THE CITY COIIl\TCIL
�, s��i,.��
- �,�.....�,,..,,'
�''•'=*_"=�=�'� . D d t e ; Octoberl3, 1983
,� �
,
� COMMITTEE REPORT
TO = Sa�nt Pau 1 City Councit �
F� � M = C o m m it t e e O h FINANCE, MANAGEMENT �� PERSONNEL
- - C M A 1 R COUNCI LMAN SCHEI BEL
� 1. Approval of minutes of ineeting held September 29, 1983.
2. Consideration of an Affirmative Action Plan. (Committee of the Whole) _
.C.9iOD�/Pr - -
3. Resolution establishing a contract between t}ie City and Model Cities Health
Center for a consultant to develop a plan for the transfer of the Model Cities
Health Project from the City to the Mode1 Cities Health Center, In�. (Com Services)
(y�. .-^_...�__�_..✓
4. Resolution indicating to Region V, U.S. Department of Health and Human Services,
the City's intention to transfer control and �unding of_the Model Cities Health Project
t ��te- Model Ci��es ealth Center, Inc.- {Cor�munity Services)
�l/�- l.�y!l�r.l�x�C��
5. Resolution amending�the Salary Plan and Rates of Compensation Resolution to
provide a five-step range for the Substitute Library Specialists. • (Personnel)
!��
6. Resolution amending the Civil Service Rules with regard to promotion for Sub-
stitu� Library Specialists. (Personnel)
� .
7. Ordinance providing for retroactive certification of the members of the clas.s of
Substitute Library Specialists to the date of original hiring. (Personnel)
���
8. Resolution amending the Salary Plan and Rates of Compensation Resolution to delete
special refe:�ences to Substitute Library Specialists incorporated, due to a
Co�nission order. (Personnel)
�f�yo
9. Resolution amending the Civil Service Rules to delete special reference to Substi-
�j tute Library Specialists with regard to accumulating sick leave credits. (Personnel)
! �c�p
CITY H��i.L SEVrNTH FLOOIt S.11\'f P:�L'l., \f(\\ESOTA 55102
CIT'Y HALL SEVENTH FLOOl�"�" SAINT PAUL, MINNESOTA SS102
��1