The opinion of the court was delivered by: BECHTLE
Presently before the Court are the motions of the plaintiffs for an injunction Pendente lite and a permanent injunction. After careful review and consideration of the testimony and exhibits presented at trial, the pretrial and post-trial briefs and arguments of counsel, and the proposed findings of fact and conclusions of law submitted by the parties, the Court makes the following narrative findings of fact and conclusions of law. The bracketed references to the record set forth the primary sources from which statements contained herein were drawn.
These motions are the most recent development in an extensive course of litigation involving alleged discrimination against blacks by the Philadelphia Fire Department. In January, 1974, plaintiffs filed a class action complaint against the City of Philadelphia and various officials in the City government alleging discrimination against minorities in the initial hiring of fire fighters and in the promotion of minorities at the higher ranks, in violation of Title VII of the Civil Rights Act of 1964, As amended, 42 U.S.C. § 2000e Et seq. ("Title VII"). This Court ordered extensive relief in 1975 after finding discrimination at the entry level and in the promotion procedures at the ranks of Lieutenant and Captain and ordered that certain promotions be made and that new examinations be developed at those ranks. The Court noted at that time that it retained jurisdiction over all aspects of the controversy. Subsequent to the relief ordered in 1975, but not pursuant to any Order of the Court, ranking officials of the Fire Department and City Personnel Department concluded that it would be prudent, in light of the litigation stance of the City, to develop new promotional examinations for the ranks of Fire Battalion Chief ("Battalion Chief"), Fire Deputy Chief ("Deputy Chief") and Fire Assistant Chief ("Assistant Chief"), the top uniformed ranks in the Philadelphia Fire Department (collectively, "the Chief ranks"). These examinations (the "1977 Fire Command series") were developed over the course of a year and were administered on July 16, 1977. It is these examinations that the plaintiffs now allege are violative of Title VII (N.T. 3) and it is these examinations alone, viewed in the context in which they were given, which the Court will now examine (N.T. 4). A hearing was held on the plaintiffs' motions and the matter was taken under advisement. The motions were consolidated pursuant to Fed.R.Civ.P. 65(b) and the controversy is now ripe for this Court's final adjudication.
The plaintiffs are the Commonwealth of Pennsylvania; Club Valiants, Inc., a nonprofit Pennsylvania corporation which is alleged to include in its membership 80% Of the minority members of the Philadelphia Fire Department, though it is not limited to minority members; and, 20 individual minority members of the Fire Department, 3 of whom are candidates who unsuccessfully sat for the 1977 Fire Command series written knowledge examination. On January 5, 1975, the plaintiffs' motion for certification as a class action pursuant to Fed.R.Civ.P. 23 was granted and the plaintiff class was defined to include, Inter alia, all persons "who are presently or who will be, in the future, uniform members of the Philadelphia Fire Department." (January 5, 1975, Order.) (The above-referenced parties will hereinafter be referred to collectively as "plaintiffs.")
The defendants are the City of Philadelphia; Fire Commissioner Joseph R. Rizzo; Mayor Frank L. Rizzo; Hillel Levinson, Managing Director; Foster R. Roser, Personnel Director; Lewis Taylor, Personnel Director; Clarence M. Farmer, Chairman, Philadelphia Commission on Human Relations; and the Commissioners of the Philadelphia Civil Service Commission. (The above-enumerated defendants will hereinafter be referred to collectively as "the City.")
Plaintiffs' complaint, filed on January 31, 1974, alleged discrimination by the City in the initial hiring of candidates for the position of fire fighter and in the promotional procedures in the supervisory ranks. Preliminary relief was granted, Commonwealth v. Rizzo, EPD P 9681 (E.D.Pa.1974), and a final Order was entered on January 5, 1975. In that Order, the Court found that the City had not engaged in intentional discrimination but had, in fact, made reasonable efforts to eradicate the vestiges of discrimination and that the current administration fully intended to live up to its obligations under Title VII. (Findings of Fact and Conclusions of Law, 1975 Order, pp. 2, 4.) Nonetheless, due to the disparate impact of the hiring and promotional selection devices on minorities, the Court found that the plaintiffs had proven a Prima facie case with regard to the initial hiring and promotion of minorities to the ranks of Lieutenant and Captain. The Court found that it was not possible to examine the statistical impact of the promotional procedures at the higher Chief ranks, however, because there were only six minority members at those ranks. (Findings of Fact and Conclusions of Law, Supra, p. 9.) By way of relief, the City was ordered to hire and promote a certain percentage of minority candidates at each level at which discriminatory impact was found, and the City was also directed to promulgate new examinations at those same ranks. Even though no finding of discrimination was made as to the Chief ranks, pursuant to a stipulation of the parties, the City was directed to promote several minority candidates to the Deputy Chief and Battalion Chief ranks when the next promotions were made. However, the City was not directed to promulgate new examinations for promotions at the Chief ranks. Nonetheless, in view of the City's litigation stance and the continuing jurisdiction of this Court, Commissioner Rizzo, in conjunction with other officials in the Fire Department, as well as the City Personnel Department (N.T. 481), determined that it would be prudent to promulgate new promotion examinations at the Chief ranks.
The planned format for the examinations consisted of a written knowledge examination for each rank, which candidates were able to sit for on the basis of certain seniority and time-in-rank criteria. On the basis of the score on the written examination, the Fire Department, in conjunction with the Personnel Department, would select a cut-off score (based on factors now in dispute here) and those candidates who scored at or above the cut-off point would be permitted to take an oral examination before three ranking fire fighters from the Philadelphia Fire Department, joined by ranking members of fire departments in other cities. The traditional method used by the Fire Department in setting the cut-off score of promotional examinations had been to examine the predicted needs of the Fire Department, based upon estimations of attrition and retirement and draw the line at that point. Once again, in view of the litigation stance of the City, it was determined by Commissioner Rizzo and other officials that an effort should be made to increase minority representation in the oral examination process. Consequently, the cut-off scores for the written examinations were lowered and the numbers permitted to go on to the oral examination stage were increased, in the hope that the larger number of candidates would make it more likely that minority candidates would be represented. The written examination score, the oral examination score and a seniority rating were each given a specific weight in advance with regard to each rank, and a final eligibility list was developed based upon these factors. For each rank, promotions were to be offered to the highest ranking candidate first, and the eligibility list was to be in effect for two years. The developmental process for the written knowledge examination began in July of 1976 and involved roughly ten separate and distinct stages. (N.T. 341.) First, a comprehensive job analysis was done for each of the three ranks which was then reviewed by incumbents for verification, and the incumbents were invited to offer suggestions. These suggestions were considered by the Personnel Department, after which the finalized task list was reviewed once more by a large number of incumbents. The final task list was given to incumbents who rated each task in frequency of performance, importance and criticality. The Personnel Department then analyzed the data and assigned each task a relative importance weight. Each incumbent was then asked to generate the "Skills, Knowledges, Abilities, and Personal Characteristics" ("SKAPs") which were required to perform these tasks. Then each SKAP was assigned a relative weight. This process formed the basis for the development of each written examination. On the basis of these relative weights, test items ("questions") were then developed by the City Personnel Department under the direction of David Wagner of Management Scientists, Inc. (N.T. 353.) For the 1977 Fire Command series, written knowledge examinations were administered on July 16, 1977, and the examinations were taken by the following number of candidates:
Upon completion of the grading process, but before any identities were known, the cumulative rank order scores were tabulated. (See Appendix A.) On August 30, 1977, a special meeting was convened at the office of Commissioner Rizzo for the purpose of establishing the cut-off score. Rather than following the historical practice of establishing the cut-off score only on the basis of predicted needs over the life of the eligibility list, it was decided that additional factors should be considered. Specifically, it was decided that it would be important to try to increase minority representation at the oral examination. (N.T. 498. Et seq.) Consequently, at this meeting, it was established that the anticipated needs over the two-year life of each eligibility list would be as follows:
Several days after the establishment of the lower cut-off scores yielding a greater number of examinees, the racial identities of those appearing at or above the cut-off level were disclosed. None of the minority candidates had scored at or above the cut-off scores on any of the three examinations. Moreover, on both the Assistant Chief and Battalion Chief examinations, a black candidate scored one point below the cut-off scores. (See Appendix A.) The results of the three examinations tabulated on the lower passing score are as follows:
The Court believes and, accordingly, finds that there was no knowledge of the racial or personal identities of any candidate at the time the cut-off scores were established. Indeed, there is no allegation made of such knowledge in the plaintiffs' motions. Nonetheless, these results form the basis of the plaintiffs' motions for an injunction Pendente lite, permanent injunctive relief and the following relief asked for by the plaintiffs in the following terms:
1. That the City be directed to develop new examinations for the Chief ranks.
2. That the cut-off points be lowered.
3. That oral examinations be given to all ...