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February 26, 1979


The opinion of the court was delivered by: SNYDER

The Equal Employment Opportunity Commission (EEOC) brought action alleging that North Hills Passavant Hospital (the Hospital) engaged in racially discriminatory hiring and job classification practices. Later, similar discrimination claims in recruitment and job assignment policies were added. The Hospital's Motion for Summary Judgment was granted by the late Judge Gourley of this Court; *fn1" this determination was reversed by the Third Circuit Court of Appeals, *fn2" and the matter was remanded to us for trial. The case was bifurcated as to liability and damages in a trial to the court. Our findings of fact and conclusions of law on the issue of liability follow, pursuant to Rule 52 of the Federal Rules of Civil Procedure. Finding no discriminatory practices by the Hospital, judgment will be entered in its favor.

 The EEOC is a federal agency established by Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e Et seq., and came into existence on July 2, 1965. The Hospital, a Pennsylvania corporation, is a non-profit, non-sectarian general hospital located in Allegheny County, Pennsylvania, approximately 14 miles north of the City of Pittsburgh.

 This action resulted from charges filed by Arthur W. Pope on January 18, 1972, with the Pittsburgh Office of the EEOC. *fn3" These charges were referred to the Pennsylvania Human Relations Commission for a period of 60 days. A "right to sue" letter was eventually issued by the EEOC, and Pope brought an individual action, which was later settled. However, EEOC continued with its own action, the instant matter.

 Relocation of the Hospital was completed in 1964, from a predominately Black area to a predominately White area, and it is necessary that we briefly outline that change.


 The Hospital, then the Pittsburgh Infirmary, was officially opened in 1849 at a site north of the Allegheny River (then Allegheny City) by the Reverend Doctor William Passavant, a Minister of the Evangelical Lutheran Church. It was the first Protestant hospital established in America. During a cholera epidemic that year, the Infirmary was moved about a mile to a section of the City of Pittsburgh known as Laceyville, now known as the Hill District, to be staffed by German Protestant Deaconesses, and dedicated "In order that the sick and suffering might be cared for in a becoming and Christian manner without distinction of color, creed, or country." When money became scarce, the Infirmary closed in 1887, and reopened in 1893, on its fifteenth anniversary. A new building was dedicated in 1899 and the name was changed to Passavant Hospital, in honor of Dr. Passavant, who had died five years earlier. By 1924, the Hill District, once considered "in the country", was now in the heart of one of the most populated areas of the City. Passavant Hospital was reincorporated in 1926 as a non-sectarian institution and qualified for state aid.

 Trouble was not long in appearing, for, as early as 1947, Dr. Abraham Osserof, Executive Director of the Area Hospital Council, told Passavant Hospital that "as a general hospital in the Hill District IT IS NOT NEEDED." By the early 1950's, Passavant Hospital was in dire financial condition as it could not meet operating expenses. The physical condition had deteriorated over the many years of service, and in later years it was operated partly as a hospital and partly as a nursing home facility. Prior to 1956, unofficial groups attempted to raise funds for a new or renovated building at the Hill District site, but were not successful. During this period, the number of available beds at the Hospital was reduced from 180 to 110; even so, the percentage of bed occupancy dropped to 55-65%. A Long-Range Planning Committee was appointed in 1956 to consider these problems, and consulted Dr. Robert M. Moore, Vice Chancellor of the School of Health Professions, University of Pittsburgh. Dr. Moore advised them not to renovate or add to the present plant, and, from what he knew of the area, recommended a move to a suburban site after first surveying Allegheny County for areas of greatest need of hospital facilities. The Board of Directors voted to relocate the Hospital on December 20, 1956, and the Corporate Board then voted for relocation on January 17, 1957; the area of such relocation was undesignated at the time.


 Four possible sites for a new facility were considered and rejected for the reasons asserted: (1) An old Municipal Hospital in the Hill District proved to be unavailable; (2) A site in Whitehall was too small, was located near three other hospitals, and the authority of the woman offering to donate it was doubtful; (3) The United Lutheran Church's Home for the Care of the Aging in Zelienople did not prove useful because there was no need for a hospital in the area; and (4) A site in Monroeville was too near to the Columbia Hospital, and there was no strong community support indicated.

 The Committee found that there was a need for a hospital in the North Hills, and there was active community support by the residents of the area, 16,000 of whom signed a petition and formed the North Hills Hospital Association for ongoing support. The Board of Directors decided on the North Hills location on January 30, 1958, and determined that there should be a review of the area. Dr. John R. McGibony, a Professor of Hospital and Medical Administration of the University of Pittsburgh's School of Public Health, was employed to review the present facility and the need for a hospital in the area north of the Allegheny River. He concluded that the Hospital's existing plant, which had some areas which were 100 years old and with major hazards, was inadequate, and that it would be illogical to rebuild in the Hill District because of the redevelopment planned for the area and because of the nearby available hospitals. He advised that a hospital was needed in the North Hills because of explosive population growth (some 78% Between 1930 and 1957), the low number of doctors practicing in the area, although 115 resided there, and the strong interest of the residents in acquiring a hospital. The only negative factor he found was an absence of "large givers" in this middle class suburban area. He then recommended the Hospital proceed with plans for a 200 bed hospital in the North Hills, for in applying an accepted formula of four general beds per 1,000 population there was a need of 368 additional beds. Dr. McGibony found it very important, as do we, that:

"Passavant has a strong on-going organization, with a long history of service and "know how', and this organization is being strengthened even more."

 A second study was done by the firm of Norby and Hatfield, commissioned by the Board on the recommendation of the Hospital Planning Association, an organization composed largely of corporate contributors to hospital expansion, which confirmed Dr. McGibony's conclusions.

 The present site of the Hospital, forty-two acres on Babcock Boulevard in the North Hills, was donated in 1959. Hill-Burton funds were obtained from the Federal Government, and $ 1,300,000 was raised by the Hospital, mainly from small contributors in the North Hills, and a million dollars was borrowed from a bank. We conclude that none of these funds would have been available to rebuild the Hospital at the old site in the Hill District. Construction of the new building was begun September 25, 1962, dedicated February 24, 1964, and renamed the North Hills Passavant Hospital on June 26, 1964.


 Alexander McAliley, Executive Director of the Hospital, and Virginia Lang, Director of Nursing, met with all the employees during 1963 and 1964, and offered them the option of moving to the new facility in the North Hills, or remaining at the Convalescent Residence. They were told they would have priority over new applicants for positions at the new location. All employees who wanted to work at North Hills were hired, except one White woman.

 When the Residence was preparing to close, a circular, dated August 26, 1969, was distributed to the employees announcing the closing and advising them of meetings scheduled for all who wanted to be considered for employment at the North Hills Hospital. The circular stated, "Every effort will be made to provide employment for those individuals who desire it at North Hills Passavant Hospital, provided suitable vacancies exist." Meetings were held by the Assistant Administrator, Virginia Thomas, and the Personnel Director, Ruth G. Hough, and the administration made a strong effort to find a new position for each of the employees, either at North Hills or at other hospitals and nursing homes. The difficulty in commuting and the lack of public transportation to the North Hills facility was a problem for many of the Residence employees, and there were available positions in other hospitals in the City. No Residence employee who applied for employment at North Hills was rejected.

 Three-fourths of the student nurses enrolled at the Hospital's School for Licensed Practical Nurses continued to live at the Nurse's Residence at the old site. They travelled by school bus to the new site each morning and returned to the Residence at night until 1968, when a residential building was completed in the North Hills within walking distance of the Hospital. In 1973, the School was absorbed by the Community College of Allegheny County. No transportation was offered employees as such.


 In the years 1947 to 1964, before the move to North Hills, the Hospital had 50 to 60 Black employees, constituting 30-40% Of its total work force. The racial composition of the Hospital's work force from 1966 to 1969, while it was operating in both the North Hills and the Hill District, was:


 The racial composition after closing the Convalescent Residence was:



 The EEOC contends that staffing the new facility was done by requiring certain personnel to live within walking distance of the Hospital, an area which was 99% White, and generally giving preference in employment to persons living within a 20 minute travel time, all racially significant.

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