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Oburn v. Shapp

August 4, 1975

ROBERT PAUL OBURN, PHILLIP D. FAZENBAKER, HALL E. SOLOMON, JR., CLIFFORD P. ARTMAN, STANLEY KOMOSINSKY, MATTHEW CHABAL, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED AND THE CONFERENCE OF STATE POLICE LODGES OF THE FRATERNAL ORDER OF POLICE, PLAINTIFF-APPELLANTS,
v.
MILTON SHAPP, JAMES D. BARGER, ISRAEL PACKEL, RICHARD MADISON, EARNEST KLINE, RICHARD ROSENBERG, INDIVIDUALLY AND IN THE OFFICIAL CAPACITY, DEFENDANT-APPELLEES, WILLIAM BOLDEN, III, AND ALL MINORITY APPLICANTS TO AND EMPLOYEES OF PENNSYLVANIA STATE POLICE, INTERVENING DEFENDANT-APPELLEES, DONALD LUTZ AND MICHAEL WARFEL, PLAINTIFF-APPELLANTS, V. MILTON SHAPP, JAMES D. BARGER, ROBERT KANE, RICHARD MADISON, EARNEST KLINE, AND RICHARD ROSENBERRY, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY, DEFENDANT-APPELLEES, WILLIAM BOLDEN, III, AND ALL MINORITY APPLICANTS TO AND EMPLOYEES OF PENNSYLVANIA STATE POLICE, INTERVENING DEFENDANT-APPELLEES



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.

Forman, Van Dusen and Garth, Circuit Judges.

Author: Garth

Opinion OF THE COURT

GARTH, Circuit Judge.

Despite the insistence of the parties that we reach the merits of "reverse discrimination", a most troublesome subject, we resist the invitation and instead address ourselves to the narrow issue that is before us: did the district court abuse its discretion in denying a preliminary injunction sought by the plaintiffs. The plaintiffs, white applicants, for the position of state trooper in Pennsylvania, assert that the defendants are discriminating against them by hiring members of minority groups*fn1 through the use of racial quotas which exclude plaintiffs. Their application for preliminary injunction was denied by the district court. We hold that the district court did not abuse its discretion and therefore, we affirm the district court's denial of the preliminary injunction.

I. BACKGROUND

Admission to the Pennsylvania State Police is achieved by competitive selection procedures. Enlisted members of the State Police Force (state troopers) are appointed by the Commissioner of the Pennsylvania State Police, see 71 P.S. § 65 (1975 Supp.), after having first satisfied certain criteria and qualification standards established by statute, see 71 P.S. § 1193 (1962), and by the rules and regulations promulgated by the Commissioner, see 71 P.S. § 251 (1975 Supp.). The eligibility criteria currently in effect, and which were in effect when the individual plaintiffs in these appeals made employment application to the State Police, were established as interim standards*fn2 under a Consent Decree. The Consent Decree was entered in Bolden, et al. v. Pennsylvania State Police, et al., C.A. No. 73-2604 (E.D. Pa. June 21, 1974), an action alleging discrimination brought by a black against the Pennsylvania State Police.

The Bolden litigation sought to remedy the prior discriminatory (against minorities) employment and promotion policies of the Pennsylvania State Police. The Consent Decree, entered as a final judgment in Bolden,*fn3 establishes a temporary hiring goal for the State Police and revises the hiring procedures of the State Police pending the development of employment tests validated as being job related. Cf. Griggs v. Duke Power Co., 401 U.S. 424, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971). The hiring goal provides that from all qualified applicants eligible as state troopers, at least one-third of those selected for the State Police Academy shall be minorities. This hiring ratio of one-minority applicant for every two non-minority applicants is to be followed until 9.2% of "the enlisted complement of the Pennsylvania State Police consists of minorities."*fn4

As validated employment criteria have yet to be developed, the interim standards and procedures established in Bolden govern the selection of qualified applicants. An applicant must meet preliminary requirements*fn5 and have an initial interview before taking a written examination. See Bolden Consent Decree para. I.3.(a), (b); App. at 42-44. The interim written examination is administered and graded by the Pennsylvania Civil Service Commission ("Commission"). The Commission determines the passing score of the written examination. See Bolden Consent Decree para. I.3.(c); App. 44.

From among those who attain a passing score on the written examination, the State Police select applicants for "further processing." The selection of applicants proceeds in the order of the applicants' written test scores subject to the requirement that

". . . the State Police shall select for further processing as many applicants who passed the examination as are necessary to fill the projected cadet class and meet the minority hiring ratio. . . ."

Bolden Consent Decree, para. I.3.(d) (1) (emphasis supplied); App. at 44.

Those applicants selected for further processing must pass a physical examination; an oral interview; and undergo a background investigation. Bolden Consent Decree para. I.3(d)(3), (4) and (5); App. at 45-47. Applicants successfully meeting these requirements are then assigned a "final earned rating" derived from a weighted average of the written examination and oral interview. Eligible applicants are ranked in sequential order of their final earned ratings and are selected for admission into the Academy in the order of their rank, subject to the minimum one-third ratio for the hiring of minorities.*fn6

II. FACTUAL & PROCEDURAL SETTING

The instant appeals, both class actions brought pursuant to 28 U.S.C. §§ 1331, 1343(3),*fn7 arise out of two separate actions challenging the selection of a cadet class by the interim standards established in the Bolden Consent Decree. Plaintiffs' challenge to the composition of the cadet class convening March 6, 1975, focuses on the September 4, 1974 written examination given to applicants for the Pennsylvania State Police. As mandated by the Bolden Consent Decree, the Commission administered and graded the written examination. The Commission established as the minimum passing score 60 correct answers out of 120 questions on the written examination.*fn8 In Oburn, et al. v. Shapp, et al., 393 F. Supp. 561 (E.D. Pa. 1975) (hereinafter the Oburn case), the individual plaintiffs were white*fn9 applicants who scored 60 or more on the written examination.*fn10 In their complaint they assert that they were eliminated from "further processing" even though minority applicants with lower scores on the written examination were selected for "further processing." The Oburn plaintiffs allege that in order for the defendants to comply with the interim hiring goal of one-third minority candidates, all non-minority applicants who scored below 92 on the written examination had to be eliminated from "further processing," while minority ...


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