APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before Gibbons, Rosenn and Garth, Circuit Judges.
The parties to this appeal will undoubtedly be disheartened by our disposition, for we do not reach the merits of their dispute. Unfortunately, the procedural quagmire out of which this appeal arises precludes any substantive resolution of the claims asserted. These procedural defects require us to vacate the district court's order granting summary judgment to the defendants and remand to the district court.
To understand the context in which the present appeal reaches us, we must recount some of the prior proceedings, for this case represents still another in a long line of appeals arising out of sex discrimination litigation against the City of Philadelphia and its Police Department in the Eastern District of Pennsylvania.*fn1
The litigation began on February 12, 1974 with the filing of a class action against the Police Department by Penelope Brace, then a policewoman. Within a week after Brace's action was commenced, the United States filed suit against the City of Philadelphia charging a pattern or practice of discrimination in its Police Department in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1976). This latter proceeding, captioned United States v. City of Philadelphia, was assigned district court docket No. 74-400 and was consolidated with Brace's action.*fn2 The City did not dispute its practice of discrimination against women and its policy of hiring them only as Juvenile Aid Officers, but rather asserted a bona fide occupational qualification (BFOQ) defense; it claimed that only men could function effectively as police officers. After entry of a consent decree on March 5, 1976, the action was stayed for two years to allow the Police Department to enlist women and study their effectiveness as police officers. The study has since been completed and the district court, after trial on this issue, rejected the City's BFOQ defense.*fn3
The eight named plaintiffs*fn4 in the instant class action are women who passed the Civil Service examination for police officers and who sought employment when the Department began accepting women pursuant to the March 5, 1976 consent decree. Four of them, Sanford, Pritchard, Black, and Waters, began training at the police academy on March 6, 1978, and were dismissed on March 31, 1978 for failing the firearms qualification test. A fifth plaintiff, Sullivan, began training at the police academy in July, 1977, and was dismissed shortly thereafter for being overweight. The remaining three plaintiffs were all rejected by the Department from the outset and never entered the academy McCullough in 1977 and Carter in 1978 for being overweight,*fn5 and Williams in 1976 for a medical condition.
In its pattern or practice suit, district court docket No. 74-400, the United States filed a motion for a preliminary injunction on April 3, 1978 to require reinstatement in the Police Department of Sanford, Pritchard, Black, and Waters.*fn6
On April 10, 1978, the complaint in the instant suit, district court docket No. 78-1154, was filed. This complaint named as plaintiffs the four who were the subject of the injunctive proceeding brought by the United States. In addition, it named the four other applicants, Sullivan, Carter, McCullough and Williams. This complaint alleged not only violations of Title VII, for which a jury trial was unavailable, but also deprivations of constitutional rights. A jury trial was requested for these latter claims. Counsel in No. 78-1154 moved to intervene in the United States's suit, No. 74-400; the motion was orally granted at a hearing held February 27, 1979.
In November, 1978, some months after the United States's preliminary injunction motion and the complaint in this case were filed, the City filed a motion for summary judgment in both cases. The motion, however, was not addressed to all the named plaintiffs in No. 78-1154, but was restricted to the four women who had failed to meet the firearms qualification test, Sanford, Pritchard, Black and Waters, and who were the subject of the United States's preliminary injunction motion. The City's motion made no reference to the other four plaintiffs, Sullivan, Carter, McCullough or Williams. No supporting affidavits were filed with the motion.*fn7
With the proceedings in this posture, a hearing was held in the district court on February 27, 1979. The hearing transcript is entitled "Evidentiary Hearing," and, indeed, two of the plaintiffs, Pritchard and Waters, testified. They described the firearms qualification procedures and the instruction that they received. The district court concluded the hearing with the following remarks:
THE COURT: We have one other problem with the people that have a weight problem. I don't know that we have to have any testimony on that. I am ...