Latimore v. County of Contra Costa Plaintiffs' Reply Brief in Opposition to Defendants' Motion for a Preliminary Injunction
Public Court Documents
March 24, 1994
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Brief Collection, LDF Court Filings. Latimore v. County of Contra Costa Plaintiffs' Reply Brief in Opposition to Defendants' Motion for a Preliminary Injunction, 1994. 12a456aa-ba9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/4bbc736f-d019-445c-8a5f-238d9772e12f/latimore-v-county-of-contra-costa-plaintiffs-reply-brief-in-opposition-to-defendants-motion-for-a-preliminary-injunction. Accessed May 16, 2025.
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Ua.ttVX
BILL LANN LEE
CONSTANCE L. RICE
KEVIN S. REED
ROBERT GARCIA
NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC.
315 West Ninth Street, Suite 208
Los Angeles, CA 90015
(213) 624-2405
LESA RENEE MCINTOSH
LAW OFFICE OF LESA MCINTOSH
3718 MacDonald Avenue
Richmond, CA 94805
(510) 237-2690
O R I G I N A L
f i l e d
WAY * 8 1S24
RICHARD COURT
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
CATHERINE LATIMORE, PERCY AND
BETTY JAMES, DOROTHY KOUNTZ,
RALPH MCCLAIN, NEW ST. JAMES
MISSIONARY BAPTIST CHURCH,
EASTER HILL UNITED METHODIST
CHURCH, ELISABETH BAPTIST
CHURCH, SOJOURNER TRUTH
PRESBYTERIAN CHURCH, and UNITY
CHURCH,
Plaintiffs,
vs.
COUNTY OF CONTRA COSTA,
CONTRA COSTA COUNTY
DEPARTMENT OF HEALTH SERVICES,
and STATE OF CALIFORNIA
DEPARTMENT OF HEALTH SERVICES,
Defendants.
CASE NO. C 94-1257 SBA
PLAINTIFFS’ REPLY TO COUNTY
DEFENDANTS’ OPPOSITION TO
MOTION FOR A PRELIMINARY
INJUNCTION
DATE: May 24, 1994
TIME: 10:00 AM
COURTROOM: 2
III
III
III
III
Reply to Opp. to Prelim. Inj. Mot.
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c.
"V
TABLE OF CONTENTS
II. t h e c o u n t y ig n o r e d c o n t r o l l in g l e g a l STANDARDS........... 2
A. The County and Regional Office Failed to Follow the Ninth Circuit’s
Standard For Proof of Title VI Administrative Claims............................... 2
1. The County Compares the Wrong Populations in its Impact
Analysis................................................................................................. 4
2. Only Proof of Necessity Can Rebut a Piirna Facie Case of
Disparate Impact................................................................................. 5
3. Proof of a Nondiscriminatory Alternative Overcomes Even a
Necessity Defense................................................................... 6
4. Intentional Discrimination is Proved By Direct or Circumstantial
Evidence.................................................................................................. 6
B. The Regional Investigative Report Is Entitled to No Deference............... 7
1. The Court Makes Its Own Independent Determinations.......................... 7
2. Weight to be Accorded the Report............................................................ 7
a. The Regional Office Misapplied the Substantive Law. . . . 8
b. The Regional Office Review Lacked Procedural
Fairness....................................................................................... 9
c. The Administrative Record was Inadequate......................... 9
d. The Many Mistakes by the Regional Office Demonstrate
the Lack of "Special Competence."......................................... 9
II. THE UNDISPUTED FACTUAL RECORD EVALUATED IN THE LIGHT
OF THE APPROPRIATE LEGAL STANDARDS ESTABLISHES
PLAINTIFFS’ LIKELIHOOD OF SUCCESS ................................................... 10
A. The Record on Disparate Impact.................................................................. 10
B. The County Fails to Prove Necessity............................................................. 16
C. The County Has Ignored the Nondiscriminatory Alternative...................... 19
D. Plaintiffs Have A Substantial Probability of Proving Intentional
Discrimination.............................. 22
III. THE BALANCE OF HARDSHIPS TIPS SHARPLY IN PLAINTIFFS’
FAVOR ........................................................................................................................ 23
25
THE STATE IS LIABLE FOR FAILURE TO FOLLOW AND ENFORCE
TITLE V I ...............................................................................................................
CONCLUSION......................................................................................................
1 TABLE OF AUTHORITIES
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NAACP L e o * D eform Sc
Education*! Fund, Inc.
515 Weat Ninth Street. Suite 208
Cases:
Ad Hoc Com. v. City of St. Louis,
143 F.R.D. 216 (E.D. Mo 1992)
Albemarle Paper Co. v. Moody,
422 U.S. 405, 95 S. Ct. 2362, 45 L. Ed. 2d 280
(1975) ..................................................................
Alexander v. Choate,
469 U.S. 287, 105 S. Ct. 712, 83 L. Ed. 2d 661
(1985) ................................................................
Alexander v. Gardner-Denver Co.,
415 U.S. 36, 94 S. Ct. 1011, 39 L. Ed. 2d 147
(1974) ................................................................
Arlington Heights v. Metro Housing Corp,
429 U.S. 252, 97 S. Ct. 555, 50 L. Ed. 2d 450
(1977) ................................................................
Assn, of Mexican-American Educators (AMAE) v. State
of California,
836 F. Supp. 1534 (N.D. Cal. 1993) .....................
Astoria Federal Savings & Loan v. Solimino,
501 U.S._, 111 S. Ct. 2166, 115 L. Ed. 2d 96
(1991) ................................................................
Brice v. Landis,
314 F. Supp. 974 (N.D. Cal. 1969)
Bryan v. Koch,
627 F.2d 612 (2d Cir. 1980) -----
Cannon v. University of Chicago,
441 U.S. 677, 99 S. Ct. 1946, 60 L. Ed. 2d 560
(1979) ..................................................................
Chandler v. Roudebush,
425 U.S. 840, 96 S. Ct. 1949, 48 L. Ed. 2d 416
(1976) ..................................................................
City of Davis v. Coleman,
521 F.2d 66*1 (9th Cir. 1975)
Clady v. County of Los Angeles,
770 F.2d 1421 (9th Cir. 1985), cert denied, 475
U.S., 1109, 106 S. Ct. 1516, 89 L. Ed. 2d 915
(1986) ..................................................................
Coalition for Canyon Preservation v. Bowers,
632 F.2d 774 (9th Cir. 1980) ..............
Pages:
. . . 10
. 6, 17
___ 3
. . 7 , 8
7, 8, 22
2, 3, 5
. . . 10
___ 15
3, 18, 19
7
22
11, 12, 13
.......... 22
Pa,
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Connecticut v. Teal,
457 U.S. 440, 446-47, 102 S. Ct. 2525,
73 L. Ed. 2d 130 (1982)....................
Environmental Defense Fund v. I ennessee Valley
Auth., 468 F.2d 1164 (6th Cir. 1972) ------
Flynt Distributing Co., Inc. v. Harvey,
734 F.2d 1389 (9th Cir. 1984)
Gay Men’s Health Crisis Center v. Sullivan,
733 F. Supp. 619 (S.D.N.Y.) .........
Gilder v. PGA Tour, Inc.,
936 F.2d 417 (9th Cir. 1991)
Griggs v. Duke Power Co.,
401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158
(1971)
Guardians Assn. v. Civil Service Common,
463 U.S. 582, 103 S. Ct. 3221, 77 L. Ed. 2d 866
(1983) ..................................................................
Int’I Broth, of Teamsters v. United States,
431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396
(1977) .................................................................
28
Jackson v. Conway,
476 F. Supp. 896 (E.D. Mo. 1979), affd, 620
F.2d 680 (8th Cir. 1980)..................................
Jefferson v. Hackney,
406 U.S. 535, 92 S. Ct. 1724, 32 L. Ed. 2d 285
(1972) .................................................................
Keith v. Volpe,
858 F.2d 467 (9th Cir. 1988), cert, denied, 493
U.S. 813, 110 S. Ct. 61, 107 L. Ed. 2d 28
(1989) .................................................................
Larry P. by Lucille P. v. Riles,
793 F.2d 969 ..............
Linton v. Carney,
779 F. Supp. 925 (M.D. Tenn. 1990)
Mclnnes v. State of California,
943 F.2d 1088 (9th Cir. 1991) -----
22
22
2, 16, 17
3, 5
3, 4, 10
19
16
passim
. 4,17
. . . 10
Moore v. Hughes Helicopter,
708 F.2d 475 (9th Cir. 1983) ............................................................................. 2, 4, 8
NAACP Defence A
Bducsdocud Fund. lac.
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zS c
ac.
. Suite 2
Mussington v. St. Luke’s-Roosevelt Hospital Center,
824 F. Supp. 427 (S.D.N.Y. 1993), affd 18 F.
3d 1033 (2d. Cir. 1994) .......................................
NAACP v. Lansing Board of Education,
559 F.2d 1042 (6th Cir.), cert, denied, 934
U.S. 997, 98 S. Ct. 635, 54 L. Ed. 2d 491
(1977) ....................................................................
NAACP v. Wilmington Med. Ctr., Inc.,
491 F. Supp. 290 (D. Del. 1980), affd, 657
F.2d 1322 (3d Cir. 1981) ....................................
Neighborhood Action Coalition v. City of Canton,
882 F.2d 1012 (6th Cir. 1989) .........................
Republic of the Philippines v. Marcos,
862 F.2d 1355 (9th Cir. 1988) .........................
Robinson v. Adams,
847 F.2d 1315 (9th Cir. 1987), cert, denied,
490 U.S. 1105, 109 S. Ct. 3155, 104 L. Ed. 2d
1018 (1989) ......................................................
Rose v. Wells Fargo & Co.,
902 F.2d 1417 (9th Cir. 1990) .........................
Soules v. Kaualians for Nukolii Campaign Committee,
849 F.2d 1176 (9th Cir. 1988) .........................
Southside Fair Housing Comm’n v. City of New York,
928 F.2d 1336 (2d Cir. 1991) ............................
St. Mary’s Honor Center v. Hicks,
509 U.S._, 113 S. Ct. 2742, 125 L. Ed. 2d 407
(1993) .................................................................
Transworld Airlines v. American Coupon Exchange,
913 F.2d 676 (9th Cir. 1990) ...........................
Wards Cove Parking Co., Inc. v. Atonio,
490 U.S. 642, 109 S. Ct. 2115, 104 L. Ed. 2d
733 (1989)..........................................................
Washington v. Davis,
426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597
(1976) ...............................................................
Statutes and Regulations:
45 C.F.R. §80.3 (b ) ......................................................
45 C.F.R. §80.7 ...........................................................
45 C.F.R. §80.9 ...........................................................
Page:
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3, 16, 18
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Pages:
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NAACP Lcc«l Defence Sc
Educational Pund, Inc.
515 W e* Ninth Street. Strife 206
42 U.S.C. §1981 ................................................................................................................
Title VI, Civil Rights Act of 1964, 42 U.S.C. §2000d, et seq....................................... passim
Title VII, Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq.................. : ................. passim
Miscellaneous: Pages.
2 Wilcox, California Employment Law §41.03 [2] [ d ] ........................................................ 6
Dorn, Dowell & Perkins, Anti-Discrimination
Provisions and Health Care Access: New Slants
on Old Approaches,
1986 Clearinghouse Review 439, 444 ........................................................................ 9
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NAACP Le*«i Defence Sc
Bducadorul Fund, Inc.
XI < MmA •^rrW “HI*
INTRODUCTION
The County devotes most of its Opposition to likelihood of success, relying extensively
on the intervening administrative Title VI investigation report by the regional office of the
Department of Health & Human Services Office of Civil Rights (regional report), County
Exh. 1, and the voluminous files the County submitted. Notwithstanding their great bulk,
these materials, many of which are inculpatory, can be dealt with briefly because the legal
standards proffered by defendants and used by the regional office contravene controlling and
long-settled legal standards that the Court of Appeals has declared govern disparate impact
Title VI administrative claims. As a consequence, the regional report, which is being
appealed, is entitled to no deference or weight by this Court because its failure to apply the
Circuit’s legal standards completely impaired the report’s evaluation of the factual record. For
example, the Ninth Circuit has clearly stated that disparate impact analysis can only be
performed using proof that an action affects members of a protected class disproportionate
to their representation in the pool of actual applicants or the pool of eligible program
beneficiaries rather than the general population pool. The County and the regional office,
however, based their entire analysis of the racial impact of the location of a hospital for the
poor solely on general population statistics even though the general population does not use
the hospital. When the same analysis is conducted using the County’s own data on actual
pools of patients, compelling disparate impact is demonstrated. The factual record, including
numerous undisputed facts the County itself has presented, when properly evaluated,
unequivocally demonstrates likelihood of success for plaintiffs when properly evaluated under
this Circuit’s legal standard.1
lIn their opening submission, Plaintiffs fully briefed the issue of the appropriate standards
for the issuance of a preliminary injunction in this Circuit. See Plaintiffs’ Mem., pp 13-14.
The cases cited there establish that the State is incorrect when it argues that "a plaintiff must
show that he or she is likely to prevail on the merits-----" State Opp. p 4 (emph. in original).
So long as plaintiffs establish that the balance of hardships tips sharply in their favor, they
need only show they raise serious questions on the merits. Gilder v. PGA Tour, Inc., 936 F.2d
417, 422 (9th Cir. 1991); Republic of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir.
1988) (en banc). This issue, however, holds little importance, since plaintiffs establish both
a strong likelihood of success on the merits and a sharp tipping of the hardship balance in
their favor.
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Because the balance of hardships tips sharply in plaintiffs favor in light of the
undisputed factual record, the Court should issue the preliminary injunction.
II. THE COUNTY IGNORED CONTROLLING LEGAL STANDARDS
The County and Regional Office Failed to Follow the Ninth Circuit’s Standard For
Proof of Title VI Administrative Claims.
The Ninth Circuit has held that a case brought to enforce Title VI regulations is
governed by the disparate impact standards developed in Griggs v. Duke Power Co., 401 U.S.
424, 432, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971) and other employment discrimination cases
under Title Vi’s sister provision, Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e.
Larry P. by Lucille P. v. Riles, 793 F.2d 969, 982 n. 9 and accompanying text (9th Cir. 1984)
(Title VI regulatory standard "derives from that applied in Title VII disparate impact claims");
Assn, o f Mexican-American Educators (AMAE) v. Slate of California, 836 F.Supp. 1534, 1545
(N.D. Cal. 1993) (Title VI education cases). The Title VII standard, which was recently
codified by Congress as part of the Civil Rights Act of 1991, 42 U.S.C. §2000e-2(k)(l)(A),
requires a three part analysis: (1) plaintiffs have the initial prima facie burden of establishing
a discriminatory impact on the class they represent, (2) if impact is shown, defendant must
demonstrate that the disproportionate impact was required by necessity, and (3) plaintiff still
prevails if plaintiff demonstrates a nondiscriminatory alternative. See Moore v. Hughes
Helicopter, 708 F.2d 475, 481 (9th Cir. 1983) (cited by Larry P., 793 F.2d 982 n.9, for Title VII
disparate impact standard).
The County in a fatal error declines to follow the clear law of the Circuit articulated
by Judge Poole in Larry P.. County Prelim. Inj. Mem. 5-6. Without addressing Larry P. or
Title VII disparate impact standards, the County simply asserts that disproportionate effect
alone does not establish a violation because only intentional discrimination is actionable, id., 2
2We discuss the County’s laches argument infra at n. 15 and refer the Court to plaintiffs’
separate opposition to the motion to dismiss for plaintiffs’ arguments regarding standing and
statute of limitations defenses. The County’s evidentiary objections border on the frivolous.
Moreover, a "trial court may give even inadmissible evidence some weight, when to do so
serves the purpose of preventing irreparable harm before trial." Flynt Distributing Co., Inc.
v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984).
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relying on several cases brought under the Constitution, 42 U.S.C. §§1981 and 1983, or Title
VI directly. E.g., Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d. 597 (1976).
These cases, however, do not address the proof requirements of a disparate impact case. See
Int’l Broth, o f Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S. Ct. 1843, 52 L. Ed. 2d.
396 (1977) ("Proof of discriminatory motive, we have held, is not required under a disparate
impact theory"). Indeed, Washington v. Davis itself noted that:
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 bases for the challenged
practices. It is necessary, in addition, that they be "validated" in terms of job
performance . . . 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 . . .
We are not disposed to adopt this more rigorous standard for the purposes of
applying the . . . Fourteenth Amendment ]. . . .
426 U.S. at 246-48.
The rule of Larry P., that Title VI administrative claims are subject to a disparate
impact analysis, has been unanimously affirmed by the Supreme Court. Alexander v. Choate,
469 U.S. 287, 293, 105 S. Ct. 712, 83 L. Ed. 2d 661 (1985) ("the Court held that actions having
an unjustifiable disparate impact on minorities could be redressed through agency regulations
designed to implement the purposes of Title VI," citing Guardians, infra); see Guardians Assn,
v. Civil Service Common, 463 U.S. 582, 591-93, 103 S. Ct. 3221, 77 L. Ed. 2d 866 (1983,,
Mexican-American Educators, 836 F.Supp. at 1545-46.3
3 With respect to the Title VI cases cited by the County defendants, County Prelim. Inj.
Mem. 6-7, 13, all were cases to enforce Title VI directly, not the administrative regulations -
- to which the disparate impact standard applies - and all were decided prior to the Circuit’s
authoritative Larry P. decision and the 1991 Civil Rights Act. See Jackson v. Conway, 476
F.Supp. 896, 899 (E.D. Mo. 1979), affd, 620 F.2d 680 (8th Cir. 1980); NAACP v. Wilmington
Med. Ctr., Inc., 491 F.Supp. 290 (D. Del. 1980), affd, 657 F.2d 1322 (3d Cir. 1981); Bryan v.
Koch, 627 F.2d 612 (2d Cir. 1980). To the extent the inconsistent Wilmington and Bryan proof
schemes are at odds with the Larry P. standard, they have been superseded.
Moreover, Wilmington and Bryan concerned inner city public hospitals that had to
decide between remaining in a minority area with a declining income base and perceived
survival by relocation to a white suburban area. This case raises no such Hobson’s choice.
The issue here is the choice between the location of County hospital services in a new facility
inaccessible to minority communities, who are the largest potential pool of patients, or the
location of County hospital services in existing, accessible community district hospital facilities
1 The Counfv Compares the Wrong Populations in its Impact Analysis.
The most glaring error in the County’s defense is the reliance by both the County and
3 the regional office on general population demographics for disparate impact analysis, rather
4 than the demographics of the only relevant population pool, the population actually eligible
7 ethnic or sexual] makeup is usually the starting point for impact analysis.’" Moore, 708 F.2d
8 at 482 (citation omitted). "The best evidence of discriminatory impact is proof that a . . .
9 practice selects members of a protected class in a proportion smaller than their percentage
10 in the pool of actual applicants, or . . . in the actual pool of eligible[s] Id. See, e.g., Larry P.,
11 793 F. 2d at 983 (disproportionately large number of black school children placed in EMR
12 classes); Linton v. Carney, 779 F.Supp. 925, 932 (M.D. Tenn. 1990) ("while blacks comprise
13 39.4 percent of the Medicaid population, they account for only 15.4 percent of those Medicaid
14 patients who have been able to gain access to Medicaid-covered nursing home services.").
16 statistics as a proxy for the pool of potential applicants where the [defendant] sought
19 F.2d at 482 n. 5 (employment discrimination cases). In Robinson, Chief Judge Wallace
20 declined to use broad, general population statistics to represent a pool of prospective
21 applicants absent a demonstration that the general population was qualified for the benefit
22 at issue. Both the County and the regional office, however, ignore MediCal statistics and rest
23
24 near such communities. The community district hospitals option is not only
nondiscriminatory, it is actually less costly because no new facilities need to be built. Unlike
25 Jackson v. Conway, the distances involved are substantial. See 476 F.Supp. at 904 (Jackson v.
Conway case is "vastly different from several Title VI cases where location or proximity of an
26 activity or program was crucial. In these types of cases a municipality would provide a certain
service to a predominately white section of town and a disparate or inferior service in a
27 predominately black section of town. Typically the service involved . . . was useful only in a
particular location or area and was of no use to those outside the immediate area because of
to use the Merrithew hospital.
In this Circuit, "‘[identification of the appropriate candidate pool and its racial [or
The Ninth Circuit has "consistently rejected the usefulness of general population
applicants for positions requiring special skills." Robinson v. Adams, 847 F. 2d 1315,1318 (9th
Cir. 1987), cert denied, 490 U.S. 1105,109 S. Ct. 3155,104 L. Ed. 2d 1018 (1989); Moore, 708
the limited geographical nature of the services it provides"). The instant case is precisely a
case in which location is crucial.
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their disparate impact analyses solely on general population statistics notwithstanding that
Merrithew’s service population is MediCal eligibles and other poor people.
2 Only Proof of Necessity Can Rebut a Prime Facie Case of Disparate Impact.
"Once a plaintiff has established a prima facie case, the burden then shifts to the
defendant to demonstrate that the requirement which caused the disproportionate impact was
required by . . . necessity." Larry P., 793 F. 2d at 982 (in employment cases the employer must
then demonstrate that "any given requirement [has] a manifest relationship to the employment
in question" to establish business necessity (,quoting Connecticut v. Teal, 457 U.S. 440, 446-47,
102 S. Ct. 2525, 73 L. Ed. 2d 130 (1982) and Griggs, at 401 U.S. at 432)); Mexican-American
Educators, 836 F.Supp. at 1545. The 1991 Civil Rights Act, 42 U.S.C. §2000e-2(k)(l)(A),
states that an unlawful employment practice under the Title VII disparate impact test is
established if a complaining party demonstrates disparate impact and the respondent fails to
demonstrate that the challenged practice is job-related for the position in question and
consistent with business necessity." According to the 1991 Act, "the term ‘demonstrates’
means meets the burden of production and persuasion." 42 U.S.C. §2000e(m) (emphasis
added).4
The legitimate interest justifications used by both the County and the regional office
cannot be reconciled with the necessity standard of Larry P. and the 1991 Act. Indeed, two
of the important purposes of the 1991 Act were to overrule Wards Cove Parking Co., Inc. v.
Atonio, 490 U.S. 642, 109 S. Ct. 2115, 104 L. Ed 2d 733 (1989) on precisely the claims of
burden shifting and the legitimacy standard for rebutting disparate impact cases now asserted.
4 The County contends, County Prelim. Inj. Opp. 13, that defendants’ burden is merely
one of production and not of persuasion, relying on St. Mary’s Honor Center v. Hicks, 509
U.S._, 113 S. Ct. 2742, 2747, 125 L. Ed. 2d 407 (1993). Hicks, 113 S. Ct. at 2742, n. 1 and
accompanying text, however, is a disparate treatment case concerning claims of intentional
discrimination. The proof and allocation of burdens in disparate treatment cases are
completely different from those applicable disparate impact cases. Teamsters v. United States,
431 U.S. 324, 335 n. 15, 97 S. Ct.1843, 52 L. Ed. 2d. 396 (1977) ("Claims of disparate
treatment may be distinguished from claims that stress ‘disparate impact.’ The latter involves
employment practices that are 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").
2 Wilcox, California Employment Law §41.03 [2] [d] ("[Ujnder the Civil Act of 1991, the Wards
Cove standard is no longer applicable, and the standard for justifying an employment practice
will instead be governed by Griggs and other pre-Wards Cove decisions'').'
3 Proof of a Nondiscriminatorv Alternative Overcomes Even a Necessity Defense.
The third stage of the disparate impact analysis is plaintiffs demonstration of a less
discriminatory alternative that the defendant refuses to adopt. See 42 U.S.C. §2000 e-2
(k)(l)(A)(ii). Both the County and regional office fail to address this requirement.
In employment discrimination disparate impact cases:
If an employer does then meet the burden of proving that its tests are "job related,"
it remains open to the complaining party to show that other tests or selection devices,
without a similarly undesirable racial effect, would also serve the employer’s legitimate
interest in "efficient and trustworthy workmanship." . . . Such a showing would be
evidence that the employer was using its test merely as a "pretext" for discrimination.
Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975);
Connecticut v. Teal 457 U.S. at 447 (even if defendant justifies adverse impact, "plaintiff may
prevail, if he shows that the employer was using the practice as a mere pretext for
discrimination," citing Albemarle)-, Rose v. Wells Fargo & Co., 902 F.2d 1417, 1424 (9th Cir.
1990)(same). Both the County and the regional office completely failed to discuss the
nondiscriminatory alternative, the community district hospital proposal, that the County has
refused to adopt.
4. Intentional Discrimination is Proved By Direct or Circumstantial Evidence.
Plaintiffs show that they will probably succeed in proving that the County intentionally
discriminated against them in violation of Title VI, 42 U.S.C. §1981 and §1983 and the
Fourteenth Amendment. See Plaintiffs’ Mem. 22-25. In order to prove an institutional
intentional discrimination claim, the Supreme Court has declared that the following
"circumstantial and direct evidence of intent as may be available" must be analyzed: (1) the
impact of the official action, whether it bears more heavily on one race than another, (2) the
historical background of the decision, (3) departures from the normal procedural sequence,
and (4) substantive departures, particularly if the factors usually considered important by the
decision maker strongly favor a decision contrary to the one reached. Arlington Heights v.
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Housing Corp, 429 U.S. 252, 266-67, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977). Neither the
bounty nor the regional office, however, acknowledged or applied the Arlington Heights
[}. The Regional Investigative Report Is Entitled to No Deference.
The County wraps itself in the regional report, urging the Court to adopt its
inclusions. County Prelim. Inj. Mem. 2 n. 1. The report, however, is entitled to little or no
1, The Court Makes Its Own Independent Determinations.
Plaintiffs are not required to exhaust their administrative remedies prior to initiating
litigation in Title VI enforcement cases. Cannon v. University of Chicago, 441 U.S. 677, 707
n. 41, 99 S. Ct. 1946, 60 L Ed. 2d. 560 (1979); Neighborhood Action Coalition v. City of Canton,
882 F.2d 1012, 1015 (6th Cir. 1989) (courts "squarely hold that litigants need not exhaust their
administrative remedies prior to bringing a Title VI claim in federal court" because "Title VI
does not provide a mechanism by which the class protected by the statute can actively
participate in the administrative process").
Title VI cases therefore require trials de novo in which this Court makes its own
determinations regarding the facts and the law. In civil rights cases, a trial de novo is required
even when prior administrative proceedings must be exhausted. Chandler v. Roudebush, 425
U.S. 840, 96 S. Ct. 1949, 48 L. Ed. 2d 416 (1976) (Title VII administrative proceedings);
Alexander v. Gardner-Denver Co. 415 U.S. 36, 47-48, 94 S. Ct. 1011, 39 L. Ed. 2d 147 (1974)
(Title VII arbitral proceedings) ("legislative enactments in this area have long evinced a
general intent to accord parallel or overlapping remedies against discrimination").
2. Weight to be Accorded the Report.
While the regional OCR report may be considered by the court, the Supreme Court
stated in Alexander that the weight to be accorded the conclusions of an administrative body
depends upon the following factors: (1) whether the substantive law applied conforms
substantially with the civil rights statute in question, (2) the degree of procedural fairness in
the forum, (3) adequacy of the record with respect to the issue of discrimination and (4) the
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special competence of the forum. 415 U.S. at 60 n. 21. Applying those factors, the
investigative report is entitled to no weight.
a. The Regional Office Misapplied the Substantive Law.
As to the first Alexander factor, the substantive law applied, the regional OCR office
patently ignored controlling legal standards. The regional office ignored rules enunciated for
this Circuit a decade ago requiring identification of the relevant candidate pool and its racial
makeup as the starting point for impact analysis. See Larry P., 793 F.2d at 982 n. 9 (citing
Moore)-, Moore, 708 F.2d at 482. See County Exh. 1 at 14-16. The regional office violated its
regulations by using irrelevant general population statistics.5 The regional office expressly
declined to apply the stringent business necessity standard required by Larry P., 793 F.2d. at
982, see 1991 Civil Rights Act, 42 U.S.C. §2000e-2(b)(l)(A), using instead the erroneous
"legitimate" interest standard. County Exh. 1 at 23. The regional office misapplied the
substantive law regarding nondiscriminatory alternatives by declining to consider the
alternative of the community district hospitals, even though it admitted that plaintiffs could
prevail by showing that nondiscriminatory alternatives exist. Id.
With respect to the Arlington Heights legal standard for intentional discrimination, the
regional report did not acknowledge or apply the standard, although the record clearly
contains evidence germane to the Arlington Heights inquiry, e.g., the regional office finding
that the County had discriminated against West and East County minorities by imposing
shorter clinic hours than in Central County clinics. County Exh. 1 at 41-43.
5 45 CFR §80.3 (b) defines prohibited discrimination by reference to relevant comparisons
between the protected group and others who benefit from a particular program rather than
the general public that does not participate in the program. E.g., §80.3 (b)(ii) (discriminator)'
to "[pjrovide any service . . . to an individual which is different, or is provided in a different
manner, from that provided to others under the program")-, (b)(iv) (discriminatory to "[rjestrict
an individual in any way in the enjoyment of any advantage or privilege enjoyed by others
receiving any service . . . under the program")-, (b)(vi) (discriminatory to "[d]eny an opportunity
to participate in the program through the provision of services otherwise or afford [an
individual] an opportunity to do so which is different from that afforded others under the
program" (emphases added).
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b. The Regional Office Review Lacked Procedural Fairness.
The regional office’s review lacked procedural fairness because it was devoid of an
opportunity for any input or rebuttal by the class protected by the. statute. After a
complainant initiates an administrative charge, the complainant has no role in the investigative
process. See 45 C.F.R. Part 80. In particular, plaintiffs did not receive notice of or copies of
the County’s voluminous submissions and were accorded no opportunity to object, rebut or
respond to evidence the County proffered. Reply Declaration of Lee 112. During the
proceedings, plaintiffs’ counsel specifically requested and were denied copies of the documents
both by the County and the regional office. Id. at 112-3. The administrative proceedings, in
short, do not permit adversarial development of a record. See Dorn, Dowell & Perkins, Anti-
Discrimination Provisions and Health Care Access: New Slants on Old Approaches, 1986
Clearinghouse Review 439, 444 ("Many advocates feel that within the last several years it has
become impossible to obtain timely and favorable results from OCR").
c. The Administrative Record was Inadequate.
The development of the administrative record was impaired by the refusal of the
regional office to apply controlling legal standards, by the lack of adversarial protections in
the investigatory process, and the one-sided nature of the review. Under the administrative
scheme, a hearing is held to develop a record only after an investigative report determines
there was noncompliance with Title VI. 45 CFR § 80.9.
d. The Many Mistakes by the Regional Office Demonstrate the Lack of
"Special Competence."
The failure of the regional office to follow controlling legal standards in its conduct
of the investigation hardly comports with any notion of special competence. Moreover, issues
of institutional discrimination, such as the Merrithew hospital location issue, potentially put
regional offices in a difficult bind: Investigations are supposed to be initiated not only by
complainants, but also by self-initiated periodic compliance reviews in which regional officials
"shall from time to time review the practices of recipients to determine whether they are
complying with [Title VI]." 45 CFR §80.7. Thus, any complainant-initiated investigation in
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which the regional office finds noncompliance calls into question whether regional officials
have properly performed their own compliance duties. A compliance finding does not.6
II THE UNDISPUTED FACTUAL RECORD EVALUATED IN THE LIGHT OF THE
APPROPRIATE LEGAL STANDARDS ESTABLISHES PLAINTIfFS’ LIKELIHOOD
OF SUCCESS
A. The Record on Disparate Impact.
The County relies upon the regional office’s assessment of disparate impact. The
regional report found, on the basis of general population statistics produced by the County,
that "the location of the hospital has a specific disproportionate adverse impact on Hispanics
in East County and Blacks and Asians in West County." County Exh. 1 at 27, but declined to
find the disparity was sufficient to establish a prima facie case. Id. The regional office
conclusion, however, must be rejected because its analysis based entirely on a comparison of
Merrithew patient demographics to general population statistics rather than to statistics
regarding actual patients or the actual pool of potential patients of the hospital. The regional
office compared the race of Merrithew’s patients to the demographics of the County as a
whole, even though plaintiffs’ Title VI challenge relates to access by MediCal-eligible and
other poor persons, a distinct (and more heavily minority) subset of the West and East County
population.
Preliminary data for a proper disparate impact analysis is already in the record. The
parties agree that Merrithew does not serve the general population, but principally serves
6 The County erroneously asserts without authority that federal courts uniformly rely
heavily on findings of administrative agencies. They rely on Ad Hoc Com. v. City of St Louis,
143 F.R.D. 216, 221 (E.D. Mo 1992), in which a district court merely noted the consistency
of a determination by the Secretary of the Department of Health and Human Services with
its own de novo finding of no discrimination in the relocation of health services three miles
away to a more accessible location, a decision plaintiffs have no quarrel with. See Jackson v.
Conway, 476 F.Supp. at 904 (related case). The Court in Ad Hoc Com came to its own
decision and attached no weight to the administrative determination, even though the
determination was a final decision by the Secretary of the Department of Health and Human
Services. Here, the decision is by a regional office and is being appealed. The County also
cites two Title VII cases in which federal courts declined to give preclusive effect to state
administrative proceedings that had not been judicially reviewed. Mclnnes v. State of
California, 943 F.2d. 1088, 1096 (9th Cir. 1991); Astoria Federal Savings & Loan v. Solimino,
501 U.S._, 111 S. Ct. 2166, 2173, 115 L. Ed. 2d. 96 (1991). To the extent Mclnnes and
Soimino are material, they support plaintiffs position that little or no weight be accorded the
regional report.
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[ediCal-eligible and other poor persons. Local clinics feed patients who need outpatient and
patient hospital services to Merrithew. The County recognizes that there is a transportation
jrden on some actual and potential patients of Merrithew because it hasarranged for some
ansportation services from local clinics to Merrithew. These services are provided only for
Zest and East County patients and not for Central County patients. See County Exh. 1 at
7-18.
Proof that minorities are adversely affected by the transportation burden imposed by
4errithew’s Central County location is found in the racial composition of the group of
iatients who take the County’s shuttle service from clinics to Merrithew. According to the
egional office, 3226 patients with known ethnicity utilized the indigent shuttle service between
he Richmond (West County) and Pittsburgh (East County) clinics and Merrithew in fiscal
,ear 1992-93. Fully 63 percent (2045) of these patients were African American, 17 percent
556) were Latino and only 15 percent (488) were white. Thus 80 percent of those who
ivailed themselves of the shuttle service were black or Hispanic.
The data show that, among those who use the East and West County clinics, minorities
are in much greater need of transportation assistance to Merrithew and minorities are
otherwise over-represented among the East and West County clinic patient populations in
comparison to the rest of the County. Because approximately half of the population of
patients who use the clinics are white, if the transportation burden were spread evenly across
the population that uses the County clinics, one would expect the burden to spread evenly
among minorities (54 percent) and whites (46 percent), not 80 percent and 20 percent as the
County’s records show. See County Exh. 9 at 17. Under a commonly used measure of
statistical significance, the 48 percent ((80-54) -t- 54) divergence between the anticipated 54
percent minority representation and the actual 80 percent representation of those subject to
a transportation burden establishes adverse impact. See Clady v. County o f Los Angeles, 770
F.2d 1421, 1428 (9th Cir. 1985), cert denied, 475 U.S., 1109, 106 S. Ct. 1516, 89 L. Ed 2d 915
(1986). Simply put, minority clinic patients in East and West County are almost 50 percent
more likely to need unconventional and extraordinary modes of transportation to get to
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hospital than other clinic patients in the County.
By way of contrast, the Central County Clinic at Concord did not bother to maintain
a shuttle service for indigents, although the County did provide taxi service to Merrithew.
County Exh. 1 at 19. In the period June 1992-May 1993, no Central County patients
requested taxi transportation, indicating few problems of access to Merrithew for actual
Central County patients, the majority of whom are white. Id.
The race of the patients of the West and East County clinics that feed patients to
Merrithew provides further proof that those with the most difficulty getting to Merrithew are
overwhelmingly minority.7 According to the County, "people of color account for 84 percent
of outpatient visits to the Richmond Health Center in West County and 73 percent of the j
outpatient visits to the Pittsburg Health Center in East County." Id. at 16. Thus the County
admits that the relevant population of MediCal-eligible and other poor persons who must
travel by any available means to Merrithew from West and East County is overwhelmingly
minority. If the transportation burden were evenly spread among the half white/half minority
population seived by the County clinics, only 54 percent of those burdened would be minority.
Instead, there is a 56 percent ((84 - 54) -r 54) divergence between the expected 54 percent
minority clinic patient population and the actual 84 percent minority clinic patient population
in West County. In East County, the divergence is 35 percent ((73 - 54) v- 54). These
divergences establish statistically significant adverse impact. See Clady, 770 F.2d at 1428.®
’These data were provided and summarized by County defendants from May 1991-April
1993, County Exh. 9 at 16-17.
®The disparate impact case based on the County’s actual patient statistics is consistent with
the statistics proffered by plaintiffs, which statistics show that fully 78 percent of the County’s
predominantly minority MediCal eligible persons lived in West and East County and that food
stamp offices in West and East County served predominately minority populations while
Central County offices served predominantly a white population. See Plaintiffs’ Mem. at 3,
23-24. The high numbers of minority poor who reside in West and East County and are
eligible for County hospital services are confirmed by the very high proportions of the general
minority population who reside there: African-Americans (90 percent), Latinos (63 percent)
and Asian Americans (62 percent). Id.
MediCal statistics, supplied by defendant California Department of Health Services,
see Reply Declaration of Pauline Wills, MD, K 2, p.3 (Wills Exh. 1), establish that the
distribution of Contra Costa’s poor population is very different from the distribution of the
County’s general population. Only 36 percent of the general population lives in the West
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The disparate impact showing is consistent with admissions in County Exh. 3, a 1981
Planning and Facilities Study prepared by Amherst Associates (Amherst study). The Amherst
study suggests that the County’s general population analysis is a post hoc construction because
it specifically analyzed the extent to which Merrithew provided services for the eligible poor.
County Exh. 3 at 89 (County poor population is "considered to be the primary population
group for which [Merrithew] has drawn and will draw most of its patients.") The Amherst
study confirms the historic nature of the disparate impact of Merrithew’s Central County
location on West and East County residents.
In general, residents of . . . Central County remain in the area for care, while residents
of the other two areas must travel further for care. West County residents use
Alameda County facilities and the County Hospital in Martinez, while East County
residents rely heavily on Central County hospitals for care.
. Although West County residents comprise 38 percent ot the eligible population,
in 1981 they accounted for only 25 percent of County hospital admissions. Only in one
service, psychiatry, did the West County admissions pattern correspond with the
percent of eligible population.
Access to County services was also examined through clinic patient origin studies,
clinic draw rates and yield rates. The East and West County eligible residents use
County clinics to a greater extent than do Central County residents. However, clinic
use by East and West County residents is less likely to result in an admission to the
Hospital. These findings point to issues of access by East and West County residents
as well as to the use of the County Hospital as a "community" hospital by Central
residents, and Martinez residents in particular. The role of the Hospital is a
community facility is also illustrated through the emergency room origin data. Six out
of ten visits are made by [Central County] residents.
County Exh. 3 at 113-14. The 1981 findings are consistent with findings in more current
County documents.* 9
County cities of Richmond, San Pablo, Pinole, Hercules, El Sobrante and El Cerrito and the
East County cities of Pittsburg, Antioch, Brentwood and Oakley. See id. Yet, fully 75 percent
of the MediCal population lives in these cities. Id. By way of contrast, while 21 percent of
the general population lives in the Central County cities of Concord, Rodeo, Pleasant Hill and
Martinez, only nine percent of the MediCal population does. The remaining five percent
of the MediCal population lives in areas in which 43 percent of the general population resides.
Id.
9See, County’s Public and Environmental Health Advisory Board’s 1992 Report on Status
of Health in Contra Costa, Plaintiffs’ Exh. A, App. 2 ("limited access to health care places a
growing number of [poor] families, particularly those living in West and East County, at risk
for poor health status"); 1988-89 Contra Costa Grand Jury, County Hospital Replacement,
May 26, 1989, plaintiffs’ Exh. B, App. 19 ('The geography of the County is such that poor
people who reside in the western and eastern portions are far removed from any central site
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The regional office’s attempt to calculate the average distance from Merrithew and
rious racial groups in various parts of the County using general populations statistics was
50 incorrect. See County Exh. 1 at 14-16.10 The West and East County travel distances,
oreover, plainly fall outside the MediCal 15 mile standard while the Central County
stances fall within. See Plaintiffs’ Memo. 5, 22. The County argues that the standard applies
lly to initial license applications for new providers, County’s Prelim. Inj. Opp. 9-10 n. 4, but
nore that the issue on the preliminary injunction is a new hospital’s location, that the
jgional report applied these standards to existing facilities, County Exh. 1 at 33 (clinics), and
lat the MediCal distance standard is probative of disparate impact.
The County seeks to make the disparate burden of transportation vanish by citation
3 thc shuttle and van service the County has provided for West and East County actual and
otential patients of Merrithew. County Prelim. Inj. Opp. 10-11. The County ignores the fact
aat the transportation it provides only partially mitigates the burden Merrithew s location
nposes exclusively on the West and East County poor. According to County’s 1989 grand
ury, public transportation is inadequate, particularly during evening, night and weekend hours
tnd ambulance and van seivice is limited to patients with very special needs. Plaintiffs’ Exh.
The difficulties posed by the geographic spread are compounded by the inadequacies of
he public transportation system, particularly during evening night and weekend hours ).
ufirst, the analysis is defective because it used general population statistics when
vlerrithew does not serve the general population. Second, the County s Public and
environmental Health Advisory Board’s 1992 Report on Status of Health in Contra Costa
•orrectlv divided the County into four regions West, East, Central and South County of rough
comparable population. See Plaintiffs’ Exh. A, App. 13. The regional office however
following the lead of the County and using out-of-date regional lines, lumped South and
[Central County into one mega-region containing over half of the County’s total population.
$ee County Exh. 1 at 5. The effect of creating such a the mega-region was to increase
artificially the average travel distance of the predominately white residents of the mega
region Third, the study has facially gross errors. For instance, the regional office asserts that
Merrithew is 18.4 miles from the (West County) Richmond Health Center. It is actually 30
miles away Reply Declaration of Lee 18. Fourth, it is crystal clear that the distance between
Merrithew and the Richmond and (Central County) Pittsburgh clinics, 30 and 17 miles
respectively, is substantially longer than the distance between Merrithew and (East County)
Concord and Martinez clinics, 12 and 0 miles respectively. The divergence between the
Merrithew-Concord distance compared to the distance between Merrithew and Richmond and
Pittsburgh is 150 percent ((30-12) + 12) and 42 percent ((17-12) 12), respectively.
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B, App. 19. No amount of transportation eliminates the burdens imposed by a distant
hospital, which is why the MediCal distance standards were promulgated. Nor does the
provision of a shuttle or van seivice fully equalize the access burdens face'd by minority East
and West County patients as compared with predominately white Central County patients.
The burden of travel remains a burden, and courts have held in the school desegregation
context that a local government may not impose an unequal burden of travel on minorities.
See, NAACP v. Lansing Board of Education, 559 F2d 1042, 1052 (6th Cir.), cert denied, 934
U.S. 997, 98 S. Ct. 635, 54 L. Ed. 2d 491 (1977) ("one-way busing of black children without
a corresponding effort to spread the burden of integration more equitably through the system
. . . is an act of dejure segregation”); Brice v. Landis, 314 F. Supp. 974, 978 (N.D. Cal. 1969)
(same).
The County cites the regional report’s finding that the minority utilization rates for
Merrithew exceeded white utilization rates. County Prelim. Inj. Opp. at 11, citing County Exh.
1 at 26. This finding is based on the County’s comparison of general population with
Merrithew discharge rates. County Exh. 9 at 13. (30 percent minority general population
compared to 48 percent Merrithew discharge rate). The higher utilization statistic is reversed
if the applicable actual clinic population is used. Id. at 16 (54 percent minority clinic
population compared to the 48 percent discharge rate). Indeed, the minority clinic population
proportion would be even higher were West and East County minorities not deterred from
going to clinics without a local hospital for back up. See O’Rourke Decl. H7; Amherst study,
County Exh. 3 at 113-14.11
B. The County Fails to Prove Necessity.
The County argues that it can justify the racially adverse impact of its location of
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“The County cites a patient satisfaction survey, County Prelim. Inj. Opp at 11; Andrulis
Decl., to show that Merrithew patients are happy with their lot notwithstanding that the
Opposition, at 30, concedes that: 'The parties agree that Merrithew is a dilapidated facility
that has been cited repeatedly for its failure to provide effective hospital services." The
survey, in any event, is inadmissible without a showing of requisite guarantees of
trustworthiness. See Keith v. Volpe, 858 F.2d 467, 480-81 (9th Cir. 1988), cert denied, 493 U.S.
813, 110 S. Ct. 61, 107 L Ed 2d 28 (1989).
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[errithew in Central County merely by articulating that the replacement will "advance
gnificant legitimate interests," citing Wilmington. County Prelim. Inj. Opp. 13-14. The
bunty neither acknowledges or seeks to carry burdens of both production and persuasion to
emonstrate business necessity as required by Larry P. and the 1991 Civil Rights Act.
The County ignores that a stringent business necessity test is an integral part of the
isparate impact standard. See Griggs, 401 U.S. at 431, 432 ("The Act proscribes not only
vert discrimination but also practices that are fair in form, but discriminatory in operation.
Tie touchstone is business necessity. If an employment practice which operates to exclude
Jegroes cannot be shown to be related to job performance, the practice is prohibited" . . .
}ood intent or absence of discriminatory intent does not redeem employment procedures .
. that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job
:apability."
The Griggs necessity test is intended to permit "a more probing judicial review of, and
ess deference to, the seemingly reasonable acts of administrators and executives," Washington
>. Davis, 426 U.S.at 246-47. In Griggs, the Supreme Court rejected the use of high school
Graduation requirements and general intelligence tests that screen out black employees for
desirable jobs. The defendant there sought to justify the job requirements, arguing that they
■would improve the overall quality of the work force." 401 U.S. at 431. According to Griggs,
the necessity demonstration required expert industrial psychological proof that the test "bear[s]
a demonstrable relationship to successful performance of jobs for which it [is] used." 401 U.S.
at 431, 433; See also Albemarle Paper Co. v. Moody, 422 U.S. 405, 430-36, as S. Ct. 2362, 45
L. Ed. 2d 280 (1975) (validation criteria).
In Larry P., the Court of Appeals squarely held that the Griggs standard applies to Title
VI challenges. It conducted a searching scrutiny of the record to find that education
authorities had failed to meet their "educational necessity" burden created by plaintiffs
showing of disproportionate placement of black schoolchildren to EMR classes. 793 F.2d at
980-83; affg, 495 F.Supp. 926,954-60, 968-73 (N.D. Cal. 1979). The Circuit rejected the claim
that EMR classes were beneficial to black children, noting that improper placement of a non-
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mentally retarded child in an EMR class has a definite adverse effect. Id. at 983. The Circuit
rejected defendant’s expert test validation proof because the validation studies, upon
examination, were conducted on white but not black school children. Id. at 980-81. The
Circuit rejected the defendant’s claim that blacks had a higher percentage of mental
retardation than whites on the basis of an analysis of mental retardation data and expert
testimony. Id. at 983. The district court in Linton, 779 F.Supp. at 935, upon showing of
disparate adverse impact on black MediCal recipients in Tennessee because of a nursing home
certification policy, rejected out of hand as insufficient defendant’s unsupported explanation
that the impact resulted from self-selection preferences.
In the instant case, the purportedly "legitimate’' interests the County identifies are: (1)
the need to replace an aging facility, (2) the need to preserve its residency program for faculty
i practitioners, (3) a growing need for hospital beds in the County, (4) the need tor a faculty
to accommodate expansion of the County Health Plan, and (5) the availability of federal
funds. County Prelim Inj. Opp. 14-17. These interests are essentially nothing more than the
health care equivalent of the rejected assertion of good intent in Griggs, 401 U.S. at 431.
Moreover, the "legitimate" interests the County asserts are not backed up by any
independent validation studies. See Albemarle, 422 U.S. at 430-36; Griggs, 401 U.S. at 431,
433; Larry P„ 793 F.2d at 980-82. Indeed, the County has presented nothing in its bulky
submission acknowledging that it ever considered the racial impact of the location of
Merrithew. Moreover, the Amherst study relied upon by the County indicates that location
of the Merrithew replacement in Central County was not desirable. 12
12After analyzing the eligible patient pool of the poor, the Amherst study concluded that,
as of 1981, before the further growth of West and East County, Plainitffs Exh. A, App. 2,13,
the population had two demographic centers, the Richmond Civic Center for West County
and the Concord BART station for Central and East County. County Exh. 3 at 185. The
Amherst study found that the most feasible site for West County would be to locate services
to the County eligible population in either the now-closed Richmond or Brookside hospital
facilities. Id. at 185-86. The study found that, with the exception of remote areas that could
be served by a Central County facility, "[bjoth facilities are accessible by public and private
transportation." Id. at 177,185-86. As to the then Central-East County demographic center,
the Amherst study recommended two strategies with "the greatest promise" "The first is to
co-locate or share facilities with Mt. Diablo which is quite close to the demographic center
of the Concord Bart Station” and the second were to use parcels in Martinez. Id. at 186. The
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All of the purported "legitimate" interests the County has identified can be better
achieved by the nondiscriminatory alternative of shifting County hospital services to the
community district hospitals. The only support that the County cites for its claim is that there
is "a growing need for hospital beds in the community" are 1981 and 1982 reports that the
County commissioned. County Prelim. Inj. Opp. at 14; Finucane Decl. H s 17, 19 & 20. That
interest fails in light of the undisputed current estimate of 288 vacant beds in the community
district hospitals in West, East and Central County, see Plaintiffs Mem. 10; O’Rourke Decl.
118, which is exactly twice the number of beds proposed for the Merrithew replacement.
Unlike the beds in the Merrithew replacement, most of the community district hospital beds
are available in West and East County.13
study noted however that one "significant disadvantage" of these Central County sites for the
then Central-East County demographic area was "the limited degree of public access to them
form areas in the northern portion of East County (Pittsburg, Antioch, Brentwood)" with their
substantial share of the County eligible poor population. Id.
The Amherst study is significant because it is the only consultant study the County
presents that discusses options in terms of accessibility to the eligible population. The NBBJ
Group report, County Exh. 4, contains a physical plant review and projections. The Health
Services Director’s Hospital Option Report, County Exh. 5, is a report of the head of County
Health Services Department and discusses options without discussing access for eligible
populations. The Arthur Young, County Exh. 6, and ICF Lewin, County Exh. 7, reports
discuss only the financial feasibility of building a Merrithew replacement and did not consider
options.
13 In addition to identifying its "legitimate" interests, the County argues that it rejected
several alternative plans and locations, citing Wilmington, and that it engaged in a "rational
decision-making process," citing Bryan. County Prelim. Inj. Opp. 17-24. Such claims are
unavailing under the necessity test of Larry P. and the 1991 Civil Rights Act. However, in a
glaring omission, the County declines to address the joint community district hospital proposal
that is proffered by plaintiffs as an nondiscriminatory alternative. The County’s consideration
of alternative hospital sites and plans is irrelevant to this analysis in any event, since eight out
of nine of the alternative locations discussed are Central County locations, as is the only joint
venture proposal. See County Prelim. Inj. Opp. 21-2. By definition, such alternatives are not
less discriminatory. The County also cites Jefferson v. Hackney, 406 U.S. 535, 550 n. 19, 92
S. Ct. 1724, 32 L Ed. 2d 285 (1972) that disparate impact alone does not establish a direct
statutory violation of Title VI, overlooking that the Larry P. disparate impact standard is based
on Title VI administrative regulations in which a prima facie case is statistical.
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The County Has Ignored the Nondiscriminatory Alternative.
The County claims that the joint community hospital proposal of December 11, 1993
should not be considered because it is a "totally alternative plan" that does not provide for a
County facility. County prelim. Inj. Opp. 24-25. The record, however, establishes that the
alternative is not totally new, viz., a version of this alternative was proposed by its own
consultants in the 1981 Amherst study (arrangements with Brookside and Mount Diablo),
supra, and in a 1978 report to the County Board of Supervisors, recommending placement of
County hospital services in minority district hospitals, which report the County failed to
resent to the Court. (O’Rourke Deck 119, see Exh. R. App. 274-86 (arrangements with all
three district hospitals). The County, moreover, devotes several pages of its Opposition, 17-
21 to a discussion of various alternatives that it states it did consider regarding contracting
with other hospitals, conceding that "authorizing contracts with community and district
hospitals . . . is exactly the kind of community based expansion that plaintiffs advocate."
County Prelim. Inj. Opp. 14. Consideration of the joint community hospital proposal,
therefore, implicates none of the open-ended judicial intervention that the County
hypothesizes. Unlike Bryan, 627 F.2d at 619, the nondiscriminatory alternative at issue is only
the latest in a series of similar ameliorative alternatives that the County was expressly
presented with and rejected. The December 1993 proposal, in fact, was invited by County
officials. Reply Deck of Minot W. Tripp, Jr. H3.M
M The district hospitals sought discussions with the County about providing County
hospital services at their institutions instead of rebuilding Merrithew for several years. See
Reply Decls. of Tripp H2 and Rice 112. The County failed to respond. Id. In fall 1993, the
County Health Services Department requested Mt. Diablo, the Central County district
hospital, to prepare a formal proposal for consideration of the County Board as an alternative
to the Merrithew replacement. Tripp Reply Deck at 113, Mt. Diablo, along with Brookside
in West County and Los Medanos in East County, submitted its Joint Hospital District
proposal to the County Board on December 11, 1993 at a Board meeting. Tripp Reply Deck
at 113, p.3 (Tripp Exh. 1, Joint Hospital District); see Plaintiffs’ Mem. at 17. In response to
several Board questions, the Mt. Diablo administrator sent the County Administrator a written
response on January 12, 1994 on behalf of the three districts. Tripp Reply Deck at 114, p.16
(Tripp Exh 2, letter to Phil Batchelor, County Administrator, from Michael Wall, dated
January 12,1994). The County failed to respond to the proposal. See Plaintiffs’ Exh. K, App.
218 (letter to Supervisor Powers from chairs of district hospitals dated April 1, 1994).
On April 26th, 12 days after the filing of the action, the County Board voted to meet
with the districts. See Tripp Deck 115, p.19 (Tripp Exh. 3, letter to Mssrs. Osborn, Lawson and
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The regional office, at the County’s urging, questioned the commitment of the district
hospitals to care for the poor. County Exh. 1 at 31. The regional office, of course, declined
to discuss the December 1993 proposal. The regional office also failed to mention (or was
not informed by the County) that the district hospitals actually provide 42 percent of MediCal
inpatient hospital care in the County while Merrithew in fact provided only 32 percent in
1991-92. See Wills Reply Decl. at 115, p.6 (Wills Exh. 4). Combining both inpatient and
outpatient MediCal hospital reimbursements, the district hospitals provided 40 percent ot
MediCal hospital services in Contra Costa and Merrithew, which mischaracterizes itself as the
sole provider of hospital care to the poor, provided 37 percent. See id. 115, 6, pp. 6, 7 (Wills
Exh. 4 & 5).
The regional report, at the County’s urging, also questioned the tinancial stability ot
the district hospitals in comparison to Merrithew, County Exh. 1 at 31-32, although Merrithew
hospital has had operating deficits of between $17,829,579 and $33,219,017 every year since
1986, with a 1992-93 deficit of $20,126,789, far exceeding the deficits of any of the district
hospitals. Lee Reply Decl. 115, pp. 3, 9 ("For Richer, For Poorer," West County Times, May
2,1994). During 1992-93 the County Health Plan had operating losses of 14.6 million dollars.
Lee Reply Decl. 116, pp. 12, 15 ("County HMO Requires Big Subsidies," West County Times,
May 2, 1994).
The Joint Hospital Proposal would place County hospital staff at the three district
hospitals to provide accessible County hospital services to all County patients, including
patients with AIDS, the homeless, geriatric patients and the jail population. See Tripp Reply
Decl., pp. 4 (Tripp. Exh. 1) 31-32 (Tripp Exh. 5), 39 (Tripp Exh. 6) & 47 (Tripp Exh. 7). The
Wall district hospital administrators, from Claude L. Van Marter, Asst. County
Administrator, dated April 27, 1994); see also Plaintiffs’ Mem. 17 (DeSaulmer motion);
Plaintiffs Exh P. App. 269. The County Health Services Department prepared a document
of issues to be discussed. See Tripp Reply Decl. 116, p.20 (Tripp Exh. 4, "Issue Paper"). Each
of the district hospitals responded with written documents. See Tripp Decl.HH 7-9, p.3u, 33,
44 (Tripp Exh. 5, Brookside Hospital Comments Regarding Critical Issues Regarding County
Hospital, May 1994; Tripp Exh. 6, letter to Supervisor Mark De Saulnier from Michael Wall,
dated May 6, 1994; Tripp Exh. 7, Response by the Directors of the Los Medanos Hospital
District to the "Issue Paper," dated May 9,1994). Discussions between the County and district
hospitals are ongoing.
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district hospitals would commit to a joint program of approximately 30 years. See Id. at p.16
(Tripp Exh. 2). The County would pay the district hospitals what it presently incurs to
operate Merrithew’s acute inpatient extended care, comprehensive acute psychiatric services
and emergency services. See id. at p.4 (Tripp Exh. 1). With the addition of the County’s poor
patients, the district hospitals would qualify for the same higher level of MediCal
reimbursement the County presently receives as a disproportionate share provider, Tripp
Reply Decl. 1110; Rice Reply Decl. 113, and achieve financial stability. The County would
forego its operating subsidies to Merrithew. Tripp Reply Decl. at p.16-17 (1 ripp Exh. 2). The
County’s Health Plan and clinic system would remain intact. Id. The County’s Family
Practice Residency Program would be decentralized, but remain intact. See id at p.8. (Tripp
Exh. 1). The certificates of participation issued for construction of the Merrithew replacement
would be defeased, with the district hospitals sharing equitably in the cost of defeasance. See
id. at pp.32 (Tripp Exh. 5), 40 (Tripp Exh. 6).
The long-term joint hospital proposal, in short, achieves plaintiffs’ goal of access for
the minority poor in Westland East County while meeting the objections to contracting the
County has raised in its Opposition at 17-21.
D. Plaintiffs Have A Substantial Probability of Proving Intentional Discrimination.
Plaintiffs presented initial evidence that meets the Arlington Heights proof requirement
for institutional intentional discrimination cases. See Plaintiffs’ Mem. 22-25. The County
disputed none of the evidence.
• • •
Plaintiffs believe that this existing factual record, which includes numerous admissions
by the County, establishes the substantial probability that plaintiffs will prevail on the
merits.15
15As to the laches defense, the County correctly states that in order to prevail on their
laches defense, it must demonstrate that delay has caused it prejudice and that delay was
caused by lack of diligence on the part of plaintiffs. Transworld Airlines v. American Coupon
Exchange, 913 F.2d 676, 696 (9th Cir. 1990).
In Transworld, cited by the defendants, the court found no laches for reasons equally
applicable here. There, the plaintiff had refrained from filing a lawsuit for a period of three
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m . THE BALANCE OF HARDSHIPS TIPS SHARPLY IN PLAINTIFFS’ FAVOR
The County argues that a preliminary injunction will harm the County and the public.
County Prelim. Inj. Opp. 29-33. The County contends that there is injury to the public
because an injury will delay replacement of "a dilapidated facility that has been cited
repeatedly for its failure to provide effective hospital services." Id. at 30. If allowed to
proceed, the Merrithew replacement will not open until 1997 at the earliest, subjecting the
public to ineffective hospital services for three more years. If plaintiffs prove, after expedited
trial proceedings, that the location of the Merrithew replacement is racially discriminatory,
the Joint Hospital District proposal could be adopted and put into effect immediately.
The County states that the public will be deprived of the benefits of the County’s
or four years, undertaking to discourage the defendants’ conduct "informally." 913 F.2d ax
679. The court held that the defendant must prove prejudice "by reason of a plaintiff’s delay,"
913 F.2d at 696 (emphasis in original), and not "merely that the defendant will be worse off
if the relief is granted than he would be if it were not; that sort of prejudice could be claimed
by all defendants all of the time___ ‘Common forms of prejudice to the defendant are loss
of evidence to meet the claim of plaintiff, change in situation induced by the delay, and
change in the value of the subject-matter involved.’" Id., (citation omitted). The County has
not alleged that it has been prejudiced because of plaintiffs’ alleged delay, nor can it. The
County has not even begun construction of the proposed facility and claims that the necessary
state approvals are not due until May 1994. See City of Davis v. Coleman, 521 F.2d 661 (9th
Cir. 1975) (no laches despite the fact that defendants had already completed 50 percent of a
freeway interchange project). The amount of money expended on a project alone is
insufficient to show prejudice, Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 780
(9th Cir. 1980), and the 24 million dollars claimed to have been spent on the replacement
project is only 8 percent of the project’s $300 million price tag. Compare Mazotti Dec. with
Plaintiffs’ Exh. C. See Environmental Defense Fund v. Tennessee Valley Auth., 468 F.2d 1164
(6th Cir. 1972) ($29 million expended in reliance on plaintiffs’ inaction not unduly prejudicial).
The other cases cited by the County are equally helpful to plaintiffs. Gay Men’s Health
Crisis Center v. Sullivan, 733 F. Supp. 619 (S.D.N.Y.) (no laches found); Soules v. Kaualians
for Nukolii Campaign Committee, 849 F. 2d 1176, 1180-82 (9th Cir. 1988) (laches barred
"‘drastic is not staggering’ remedy " of election invalidation where suit could have been
brought before election); Southside Fair Housing Comm’n v. City o f New York, 928 F. 2d 1336,
1355 (2d Cir. 1991) (laches where plaintiffs waited more than fourteen months after
construction began and after more than 10 years of no opposition to plans); Mussington v. St.
Luke’s-Roosevelt Hospital Center, 824 F. Supp. 427, 434 (S.D.N.Y. 1993), affd 18 F. 3d 1033
(2d. Cir. 1994) (laches where delay of six years, $300 million spent and construction virtually
complete).
Whatever delay may have occurred in bringing this action, it has not been undue and
cannot support a laches defense. Plaintiffs have been anything but dilatory in making their
opposition to the-hospital known. The fact that the County kept spending money on their
replacement project while administrative proceedings were pending, and after they were on
notice of plaintiffs’ challenge to their conduct, is in no way attributable to the plaintiffs and
is no bar to the injunction. This is hardly a case where a plaintiff simply slept on his rights
and later sandbagged the defendant.
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ie. "X
rimary care-orientcd medical staff if the construction is delayed by a preliminary injunction,
'he County, however, overlooks the fact that any preliminary relief will not effect the staff,
nterim relief will also not affect present access of the public to Merrithew’s services. Nor will
permanent injunction adversely affect the staff or access: the Joint Hospital District proposal
ilaces County physicians in community district hospitals much closer to where the great
najority of the poor population who use Merrithew actually reside. It is also immaterial that
:onstruction funds will be unavailable for the Joint Hospital District because no new
:onstruction is contemplated. Only the more efficient use of underutilized community district
The County, without supplying specifics, asserts that a preliminary injunction will
;everely impact the County’s economy. County Prelim. Inj. Opp. 31-33. On its face, interim
relief for several months prior to the scheduled August 1994 groundbreaking will have minimal
adverse consequences. Moreover, the County’s wild claims of financial harm must have to be
balanced against the fact that the County has been subsidizing its Merrithew hospital
operations an average of 21.4 million dollars annually for the last seven years, Lee Reply Deck
H5, p. 3,9 (Lee Exh.l). If the Joint Hospital District proposal were adopted, the County would
no longer have to make these subsidy payments. The County would recoup with just over two
years of avoided subsidy payments the 44 million dollars that it claims totally abandoning the
Merrithew hospital would cost.16
16The County’s numbers, in any event, are artfully incomplete, but appear grossly bloated.
The County states that architect and preconstruction costs to date total 5.3 million dollars on
total contracts of 10.9 million with 1.3 million in estimated close out costs. Bell Deck 114.
Some of the site preparation work "wiil need to be completed regardless of whether the
County proceeds with the Project, since it involves the demolition and removal of a
condemned building and construction of a required fire road." Id. at 115. Overall cancellation
of these contracts is estimated to cost 4.1 million dollars including contract liquidation, costs
of defeasance and rebate liability. Mazotti Deck 1110.
Although asserting that it has spent a total of 25 million, Bell Decl 117, Mazotti Deck
UlO, the County provides no breakdown. Some spending to date is probably in bond interest
payments. The prospectus for the certificate of participation provides for semiannual interest
payments of 3.9 million dollars, see Plaintiffs Exh. C., App. 50, but such amounts totalling
almost 16 million dollars should be excluded because interest payments are usually paid from
the interest on the 125 million dollars of certificates issued in 1992. The statistic that
abandoning the project before groundbreaking would cost "no less than 44 million" is
ultimately unsupported. See County Prelim. Inj. Opp. 32; Bell Deck 11 7 & 8.
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The County also does not dispute plaintiffs’ assertion that the federal funding on which
the County counted on for the replacement project has been eliminated in current drafts of
health care reform legislation, Plaintiffs Mem. 14-16, thus endangering the project as well as
the County’s credit rating. The Gage Decl. states in condusory fashion in essence that "God
will provide," but does not take issue with plaintiffs’ specific proof of substantial risk that
federal funding has dried up. Moreover, the County’s Auditor - Controller in December, 1991
expressed "serious concerns about the stability of the SB-1732 funding over the course of a
normal debt replacement schedule of 15-30 years" because "the State’s payment obligations
under SB-1732 will require an annual budgetary appropriation." Lee Reply Decl 113, p. 15
(memorandum to Mark Finucane, Health Service Director, for Kenneth J. Corcoran, County
Auditor - Controller, re Hospital Replacement Project, dated December 3, 1991).
The County never refutes that plaintiffs and other minority West and East County poor
persons suffer substantial adverse health risks because of Merrithew’s Central County location,
see Plaintiffs’ Mem. 18-19, see Lacey Deck, and that federal funding is in jeopardy thus
imperiling the ability of the County to provide adequate health services altogether.
IV. THE STATE IS LIABLE FOR FAILURE TO FOLLOW AND ENFORCE TITLE VI
In its opposition, the State Department of Health Services (State DHS) claims
ignorance of the wrongs plaintiffs allege they committed and, therefore, the plaintiffs are not
likely to prevail. The State DHS argues that plaintiffs have charged them with the violation
of an "unspecified regulatory duty." The State DHS’s now-confessed ignorance of and prior
inattention to its "regulatory duty" under Title VI is precisely the basis of plaintiffs’ causes of
action against it. The State DHS is a "program or activity" under 42 U.S.C. § 2000d-4a since
The County also fails to point out that the district hospitals have agreed to pay an
equitable share of the cost of defeasance as demanded by the County. See supra. The County
does not dispute that the initial certificates can be defeased and that a second issuance would
not create additional expense. See Israel Decl. Most of the Israel Decl. 114-5 argues that a
second issuance could not recoup construction costs or amounts spent on the first issuance,
which the Gilbert Decl. 115 never contended. The Mazotti Decl. H13, but not the Israel Deck,
contends that no legitimate governmental purpose would be served by a second issuance,
overlooking that such a purpose is abandoning a discriminatory, cost-serving option to provide
better County hospital services.
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is "the entity of such State or local government that distributes [Federal Financial]
ssistance." The State DHS thereby has a duty to ensure that the County uses its federal
aoney to provide services to all regardless of race. Cf. Larry P. v. Riles, 793 F.2d 969 at 972
State DHS’s discussion of the flexibility in the State’s distance requirements (State
dem p. 4-6), demonstrates exactly how it violated Title VI. State DHS argues that the
lexibility in its distance requirements means that a single hospital site "cannot possibly achieve
he optimal 30 minute access of everyone." State Mem. p 5. State DHS falsely assumes that
bounty hospital services can only be provided at a single site and it never addresses the key
ssue in this action, namely, if everyone cannot be within 30 minutes of the hospital, who
hould suffer the most? Title VI requires that the persons burdened by this distance
flexibility" not be disproportionately minority, absent a business necessity, and State DHS
;ompletely ignores that fact. State DHS has breached its duty under Title VI to require the
bounty to eliminate such disparities with regard to the Merrithew replacement and the
bounty Health Plan and for that reason, they, as well as the County, should be enjoined.
V. CONCLUSION
For the foregoing, the motion for a preliminary injunction should be granted.
Dated: May 17, 1994 Resneetfuily)Submitted,
LESA RENEE MCINTOSH
LAW OFFICE OF LESA R. MCINTOSH
BILIi LANN.
NA4CP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC.
Attorneys for Plaintiffs
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