temporary appointee ultimately was hired to fill the job on a permanent basis.
CONCLUSIONS OF LAW
The plaintiffs assert that they have proved discrimination based on race through both the disparate treatment theory and the disparate impact theory. The court is persuaded that the plaintiffs have proved unlawful discrimination via the disparate treatment theory.
In order to prevail on a claim of disparate treatment based on race, the plaintiffs must prove that the acts of the defendant were intentionally discriminatory. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); McDonnell Douglas v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Disparate treatment can be established through direct proof of intentional discrimination, or by circumstantial evidence adequate to create an inference that an employment decision was based on illegal criteria. Jauregui v. City of Glendale, 852 F.2d 1128, 1134 (9th Cir. 1988) (citing cases).
The record requires the conclusion that the plaintiffs were not promoted to the position as an Analyst IV as a result of intentional discrimination. Even if the plaintiffs did not have the benefit of Mr. Nieto's opinion that provisional and temporary appointments were used unlawfully, the circumstantial evidence is sufficient to raise an inference of illegal discrimination. In each position at issue, the provisional or temporary appointments were used, the appointees were white, and the appointees eventually were given the job on a permanent basis. When making those appointments, the department heads were acting outside the normal civil service merit system and knew that their decisions could not be challenged by the equal opportunity management office.
Since the court was satisfied that the plaintiffs had proved a prima facie case of discrimination, the defendant was then required to state a legitimate reason for its course of action. The defendant has not met its burden of producing a legitimate reason for excluding the plaintiffs from the pool of potential provisional or temporary appointees. The county did furnish a valid reason for the use of the provisional or temporary appointment system, i.e., to prevent work interruption during the creation of an eligibility list; however, that showing does not satisfy the defendant's burden of supplying a legitimate reason for excluding hispanics from temporary or permanent appointments.
The plaintiffs seek a declaration that the defendant's practice of excluding minorities from provisional or temporary appointments is unlawful and also an order enjoining that practice. The plaintiffs are entitled to a declaration that the exclusion of minorities from provisional or temporary appointments prior to 1986 was illegal. Since the uncontradicted evidence established that this practice ceased in 1986, no injunctive relief will be granted.
The plaintiffs are entitled to retroactive promotions and awards of back pay. 42 U.S.C. § 2000e-5(g). Back pay may only be awarded for up to two years prior to the filing of the charge with the Equal Opportunity Employment Commission. In the instant case, both plaintiffs filed their charges on May 4, 1986. Accordingly, each plaintiff will be awarded back pay in an amount equal to the difference in pay between that of an Analyst III and an Analyst IV from May 4, 1984, until such time as they receive actual promotions to Analyst IV.
The plaintiffs, as prevailing parties within the meaning of 42 U.S.C. § 2000e-5(k), are entitled to a reasonable attorney's fee as part of their costs. The court will grant an award of attorney's fees but will require additional submissions on the issue of the reasonableness of the fees. In the last two paragraphs of plaintiffs' reply brief, plaintiffs' counsel states that he has fifteen years experience, has lodged over 500 hours on this case, and charges $ 150.00 per hour. Thus, he requests $ 75,000.00 as his fee.
The court will defer determining the amount of the attorney's fee for two reasons. First, the application in its present state does not satisfy the contours of Hensley v. Eckerhart, 461 U.S. 424, 430, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). Second, the amount requested has first appeared in plaintiffs' reply brief. Since the defendant has not had an opportunity to respond as to the reasonableness of the fee requested, it shall be afforded an opportunity to do so. Accordingly, plaintiffs' counsel will have until March 20, 1990, to serve and file his application for attorney's fees; the defendant will have until April 6, 1990, to serve and file an opposition, if any. The plaintiffs shall have until April 16, 1990, to serve and file a reply brief.
Therefore, IT IS ORDERED that the clerk be and hereby is directed to enter judgment in favor of the plaintiffs, with costs and attorney's fees against the defendant.
IT IS ALSO ORDERED that each plaintiff be and hereby is awarded back pay in an amount equal to the difference in pay between that of an Analyst III and an Analyst IV from May 4, 1984, until such time as they receive promotions to Analyst IV.
IT IS FURTHER ORDERED that the defendant's practice of using permanent and temporary appointments to the exclusion of minorities be and hereby is declared unlawful.
IT IS FURTHER ORDERED that the plaintiffs' application for injunctive relief be and hereby is denied.
IT IS FURTHER ORDERED that the plaintiffs' counsel will have until March 20, 1990, to serve and file his application for attorney's fees; the defendant will have until April 6, 1990, to serve and file an opposition, if any. The plaintiffs shall have until April 16, 1990, file a reply brief.
Dated at Milwaukee, Wisconsin, this 2nd day of March, 1990.
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