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United States v. City of Philadelphia

filed: February 27, 1978.

UNITED STATES OF AMERICA
v.
CITY OF PHILADELPHIA, A MUNICIPAL CORP., JOSEPH F. O'NEILL, COMM., PHILADELPHIA POLICE DEPARTMENT; FOSTER B. ROSE, DIRECTOR OF PERSONNEL, CITY OF PHILADELPHIA; GEORGE BUCHER, LEONARD L. ETTINGER, & HARRISON J. TRAPP, COMM., CITY OF PHILADELPHIA CIVIL SERVICE COMM., APPELLANTS IN NO. 77-2141; FRATERNAL ORDER OF POLICE, INTERVENING DEFENDANT; CITY OF PHILADELPHIA, APPELLANT IN NOS. 77-1707/77-1709; FRATERNAL ORDER OF POLICE, APPELLANT IN NO. 77-1710 AND NO. 77-2140; UNITED STATES OF AMERICA, APPELLANT IN NO. 77-1711 (D.C. CIVIL NO. 74-400)



On Appeal from the United States District Court for the Eastern District of Pennsylvania.

Rosenn and Garth, Circuit Judges, and Lacey,*fn* District Judge.

Author: Lacey

LACEY, District Judge

PRELIMINARY STATEMENT

Appeal Nos. 77-1707, 77-1708 and 77-1709 were taken by the defendants from orders of the United States District Court for the Eastern District of Pennsylvania granting the United States' motions for injunctive relief. Appeal No. 77-1710 was taken by the defendant-intervenor Fraternal Order of Police from an order of the district court granting a motion of the United States for injunctive relief. Appeal No. 77-1711 was taken by the United States from an order of the District Court denying a motion for injunctive relief. Our jurisdiction over these appeals was properly invoked under 28 U.S.C. § 1292(a) (1); and they are now before us by virtue of our order of consolidation of June 28, 1977.

PROCEDURAL HISTORY

On February 19, 1974, the United States filed suit against the City of Philadelphia, the Commissioner of Police, the Director of Personnel, and the City of Philadelphia Civil Service Commissioners [hereinafter the City or defendants].*fn1 The complaint alleged, inter alia, that the Philadelphia Police Department was engaged in a pattern or practice of employment discrimination against females in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the fourteenth amendment, and the guidelines of the Department of Justice and the Law Enforcement Assistance Administration [LEAA] which provide for equal employment opportunity in federally assisted programs and activities, 28 C.F.R. § 42.201 et seq. Specifically, the complaint alleged that the defendants had discriminated against female employees and applicants for employment in their recruiting, hiring, promotion, transfer and assignment practices.*fn2

The United States' action was consolidated with a related lawsuit filed on February 12, 1974 by Policewoman Penelope Brace.*fn3

On February 10, 1976 trial in the consolidated cases commenced. After the plaintiffs had completed their casein-chief and the defendants had begun to present their evidence, the United States and the defendants agreed to the entry of an interim order, which was entered on March 5, 1976(the March 5 order).

On March 15, 1976 the district court entered an order dismissing this case without prejudice to the rights of the parties to seek enforcement of the March 5 order.

The five appeals before us are from decisions of the district court on four separate motions filed by the United States subsequent to the entry of the March 5 order. They relate to three separate matters:

Nos. 77-1707 and 77-1708 are appeals by the City and concern the applications of incumbent policewomen to transfer from the all female line of progression (policewoman) to the all male line of progression (policeman).

Nos. 77-1709 and 77-1710 are appeals by the City and the Fraternal Order of Police, respectively, from an order requiring the defendants to hire twenty female police officers in conjunction with the hiring of 100 new male police officers.

No. 77-1711 is an appeal by the United States from the failure of the district court to find that the defendants discriminated against Shirley Terry, a female police officer, when they fired her based on the expressed reason that her pregnancy rendered her physically incapable of continuing to perform the duties of a police officer.

Discussion

a. The March 5 Order.

This order suspended the trial for a period of up to two years, during which time the defendants would be permitted to develop additional evidence.*fn4 Also, the order provided substantive interim relief for females, summarized as follows:

1. The defendants were enjoined from engaging in acts or practices which had the purpose or effect of discriminating on the basis of sex;

2. The job titles of policeman and policewoman were abolished and the entry level position became police officer;

3. The defendants were instructed to fill approximately 470 police officer vacancies with both qualified males and qualified females. The City was directed to graduate one hundred qualified women from the next five classes at the police academy, or earlier. Of these, no less than twenty were to be in any such class. Selection was to be based on the eligibility list generated by the May 31, 1975 entrance ...


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