Appeal from a judgment of the United States District Court for the District of Connecticut, Robert C. Zampano, Judge, 485 F. Supp. 958 (1980), denying back pay and awarding attorneys' fees in this sex discrimination action brought under the State and Local Fiscal Assistance Act. Vacated and remanded.
Before Kaufman and Kearse, Circuit Judges, Nickerson, District Judge.*fn*
This is an appeal from certain portions of a final judgment entered in a class action brought by Barbra Cohen against the Board of Police Commissioners of West Haven, Connecticut, and others responsible for the hiring of police officers in West Haven (hereinafter collectively referred to as the "City"). Cohen commenced the action in the United States District Court for the District of Connecticut, alleging that a physical agility test used by the City to screen applicants for employment as supernumerary police officers discriminated against women in violation of § 122(a)(1) of the State and Local Fiscal Assistance Act, 31 U.S.C. § 1242(a)(1) (1976) (the "Revenue Sharing Act" or the "Act").*fn1 After a bench trial, the district court ruled that the disputed agility test was unlawful under the Act and ordered appropriate class-wide relief; no appeal was taken from that order and it is not at issue here. Plaintiff Cohen and class member Jocelyn Horwitt challenge a subsequent order of the district court, embodied in the final judgment after trial of their claims for individual relief, which denied their motion for backpay and granted in part their motion for attorneys' fees, awardable under § 124(e) of the Act, 31 U.S.C. § 1244(e).
I. FACTS AND PRIOR PROCEEDINGS
The significant facts of this case are easily summarized. The City hires supernumerary police officers from an appointment list, on which candidates are ranked according to their performance on written and oral examinations. To receive a ranking, however, candidates must also pass a test that measures physical agility.*fn2 Prior to 1978 the physical agility test used by the City was the so-called "Blesh" test.*fn3 Although graded, the Blesh test was merely a pass-fail examination that did not alter the rankings of candidates who passed it.
Late in 1976, Cohen and Horwitt applied for positions as supernumerary police officers. Horwitt scored well enough on the written and oral examinations to rank fourth on the appointment list, and Cohen scored well enough to rank twentieth. In January 1977, the two women took the Blesh test, on which a passing score was 500. Horwitt scored 495; Cohen broke her ankle on the third of ten tests and scored 294. Having thus failed the Blesh test, both women were denied placement on the appointment list. On August 16, 1977, the City hired the man whose ranking on the list would have been immediately below that which Horwitt would have held had she passed an agility test; on September 30, 1977, the City hired a man who ranked below the position Cohen would have held.
Cohen initiated this class action in January 1978 and immediately moved for a preliminary injunction against further use of the Blesh test. After a five-day hearing on the motion, which apparently was treated as having been consolidated with a trial on the merits of certain issues, see Fed.R.Civ.P. 65(a)(2), the district court enjoined further use of the test. The court noted the testimony of Dr. Blesh that the test had been devised many years before, when the only applicants were men, and that very few women had ever passed; and it cited the views of both Dr. Blesh and plaintiffs' experts that many features of the test had "almost a total adverse impact upon women" applicants. 485 F. Supp. 958, 961 (D.Conn.1980). Applying standards developed under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1976) ("Title VII"), the court concluded that the Blesh test discriminated against women and was not job related, and therefore violated § 122(a)(1) of the Revenue Sharing Act.*fn4 The City does not contest this ruling.
In light of these conclusions, the district court ordered the City to develop an agility test that was nondiscriminatory and job related. The City did so, and the court approved the new test. On August 11, 1978, Cohen and Horwitt took the new test and failed it.
Subsequently, the court entertained Cohen's and Horwitt's applications for individual relief.*fn5 Each plaintiff conceded that her failure of the new test rendered her currently ineligible for employment by the City, and neither sought a monetary award for any period after August 11, 1978. Cohen sought a backpay award for the period between September 30, 1977, when she claims she would have been hired but for her failure of the discriminatory Blesh test, and August 11, 1978, when she failed the new test. Horwitt sought such an award for the period between August 16, 1977, when she claims she should have been hired, and May 1978, when she took a job that she considered preferable to that of supernumerary police officer. Each plaintiff sought recovery of the difference between the compensation she would have received in the West Haven position and the compensation she received in the job she actually held during the relevant period.
In ruling on the backpay issue, the trial court noted that under Title VII, a plaintiff who has proved discrimination is presumptively entitled to backpay, and that an employer can escape liability only by showing that the plaintiff would not have been hired absent discrimination or that other special circumstances exist. 485 F. Supp. at 963, citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975). In the court's view, plaintiffs' inability to pass the new test "constituted conclusive proof" that they lacked the degree of physical agility the City could lawfully require, and the court concluded that the City had therefore shown that it would not have hired plaintiffs regardless of the discriminatory Blesh test. 485 F. Supp. at 964. In addition, the trial court noted that "special circumstances," described more fully below, would render an award of backpay "harsh and inequitable." Id. Thus plaintiffs' requests for backpay were denied.
On the motion for attorneys' fees, the trial court found that the plaintiffs were "prevailing part(ies)" within the meaning of the fee-shifting provision of § 124(e) of the Revenue Sharing Act, and had "clearly established" their entitlement to an award of fees. 485 F. Supp. at 961-62. Praising counsel's work as "exceptional," id. at 962, it ordered an award of $7,875.50, roughly half the amount plaintiffs had sought.
On appeal, plaintiffs contend that the trial court applied erroneous legal standards in denying backpay and abused its discretion in ordering a fee award smaller than that requested. For the reasons set forth below, we vacate the challenged portions of the judgment and remand for further proceedings.
A. Availability of Backpay under the ...