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COM. OF PA. v. FLAHERTY

March 20, 1991

COMMONWEALTH OF PENNSYLVANIA; GUARDIAN OF GREATER PITTSBURGH INC.; N.A.A.C.P.; N.O.W.; ET AL., PLAINTIFFS,
v.
PETER F. FLAHERTY, MAYOR, ET AL., DEFENDANTS, AND F.O.P. FOR FORT PITT LODGE NO. 1, INTERVENING DEFENDANT. MICHAEL C. SLATER, PLAINTIFF, V. CITY OF PITTSBURGH, A MUNICIPAL CORPORATION, DEFENDANT. CHARLES H. BOEHM; PAUL G. CLARK AND RICHARD USNER, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS, V. SOPHIE MASLOFF, MAYOR OF THE CITY OF PITTSBURGH; MELANIE J. SMITH, DIRECTOR OF PERSONNEL OF THE CITY OF PITTSBURGH; THE PITTSBURGH CIVIL SERVICE COMMISSION AND THE CITY OF PITTSBURGH, DEFENDANTS.



The opinion of the court was delivered by: Cohill, Chief Judge.

OPINION

I. INTRODUCTION

One of the constitutional dilemmas facing the federal judicial system today is the philosophical and legal conflict between the forces seeking the elimination of discrimination against females and racial minorities in the work place, and the impact that laws and legal decisions upholding minority rights have had against others seeking employment in that same work place.

For over fifteen years the City of Pittsburgh has been hiring its police officers in accordance with a strict racial/gender-based formula decreed by the late Honorable Gerald J. Weber in a preliminary injunction issued December 5, 1975.

The United States Supreme Court has recently instructed us, however, that a once-valid decree must be changed when it is found that the original purpose of the litigation has been achieved and it appears unlikely that the party enjoined will return to its former ways. Board of Education v. Dowell, ___ U.S. ___, 111 S.Ct. 630, 636, 112 L.Ed.2d 715 (1991).

Here we must decide whether or not the preliminary injunction issued by Judge Weber must be dissolved.

II. BACKGROUND

Presently before the Court is the "Intervenors' Motion to Dissolve Preliminary Injunction." The Intervenors are four white males who are candidates for employment as officers of the Pittsburgh Police Department. Their motion challenges Judge Weber's long-standing order that significantly changed the way the City of Pittsburgh ("City") hires police officers.

Before this action was instituted in 1975, the City hired officers by using a procedure that relied almost exclusively upon a competitive written examination. Candidates were placed on a hiring list and ranked according to score. The City then selected those with the highest scores for further processing, which included such things as a medical examination and a background check. Those who passed the additional processing were placed on a list from which final selections were made.

After this action was initiated in 1975, Judge Weber issued a preliminary injunction under which the City would continue this same competitive hiring procedure, but which required it to hire police trainees in groups of four, one from each of four lists: white males, white females, black males, and black females. Judge Weber's ruling was never appealed, nor did any party seek to have a trial of the action on the merits. The preliminary injunction therefore remains in effect to this day. After Judge Weber's death, the case was transferred to the undersigned judge.

The Intervenors applied for positions on the City's police force and achieved high scores on the written examination, but were not hired as police officers. They assert that they were placed at an unfair competitive disadvantage by the preliminary injunction's remedial hiring quota because it allowed less qualified candidates to be hired ahead of them. They petition this Court to dissolve the preliminary injunction on the grounds that it denies them equal protection of the law under the Fourteenth Amendment, that the law supporting the preliminary injunction has changed since 1975, that the remedial injunction has more than served its purpose, and that the quota system constitutes reverse discrimination in violation of the United States Constitution and federal law.

On August 23, 1990, in ruling on a Motion to Dismiss filed by the Commonwealth, this Court held that the Intervenors have standing to petition this Court for the dissolution of the preliminary injunction. A hearing was conducted January 28 and 29, 1991 on the merits of the Intervenors' petition. Testimony focused primarily on the adequacy of the City's hiring procedures.

Intervenors attempted to show that if the Weber injunction were vacated, the City's competitive hiring process would not violate the Constitution and would meet the standards of the federal Equal Employment Opportunity Commission ("EEOC"). They presented an expert who testified that the hiring procedures of the City had been validated in accordance with federal guidelines. Another expert, testifying for the Commonwealth, rebutted these conclusions. The testimony of other witnesses related to the attitude of the City and the police department toward the hiring of women and minorities.

Although several interested groups, including the NAACP, N.O.W. and the Fraternal Order of Police were parties to the original litigation, only counsel for the Intervenors, for the Commonwealth of Pennsylvania, and for the City actively participated in the hearing on the Intervenors' motion. The NAACP filed a post-hearing brief.

Most of the testimony at the hearing focused on test validation, suggesting a Title VII theory. In addition, a written brief filed in behalf of several of the Intervenors discussed Title VII cases at length. "Title VII" is lawyers' short hand for Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e to 2000e-17. We see no grounds for applying Title VII to the Commonwealth's allegations of discrimination in hiring, which is the sole issue we address today. The amended complaint pleads a violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981, the Ku Klux Klan Act of 1871, 42 U.S.C. § 1983, and the Constitution, but not Title VII. Amended Complaint at 8.

This case was consolidated with an apparent Title VII case alleging discrimination in training programs and promotions. See, Pennsylvania v. Flaherty, 532 F. Supp. 106 (W.D.Pa. 1982). However, we don't believe that the consolidation of this case with a later case converts the Commonwealth's original case to a Title VII action. "[C]onsolidation is permitted as a matter of convenience and economy in administration, but does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another." Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496-97, 53 S.Ct. 721, 727-28, 77 L.Ed. 1331 (1933). "Thus the courts hold that actions do not lose their separate identity because of consolidation." 9 Wright & Miller, Federal Practice and Procedure § 2382. Therefore we will not analyze the evidence presented according to Title VII statutes or case law. We will add parenthetically, however, that although we have not made a Title VII analysis in this Opinion, we believe that if we did, the result would be no different from that which we have enunciated here.

As we explain in the following opinion, we conclude that continuation of the injunction would be justified only if the original plaintiffs in this case could show intentional discrimination by the City. Since intentional discrimination has not been proven, we will grant the Intervenors' petition and dissolve the injunction.

III. PRELIMINARY INJUNCTION

The Commonwealth of Pennsylvania and others initiated this action in 1975, charging that the City of Pittsburgh had violated §§ 1981 and 1983 and the Constitution by discriminating on the basis of race and gender in the hiring, appointment, promotion, and working conditions of police officers. Amended Complaint at 8. Judge Weber conducted a hearing and made factual findings regarding the City's hiring procedures. He found the percentage of blacks*fn1 in the Pittsburgh labor force in the following years to be:

  1974              17%
  1970              17%
  1960              15%
  Pennsylvania v. Flaherty, 404 F. Supp. 1022, 1024 (W.D.Pa.
  1975).

He found the percentage of blacks on the Pittsburgh police force at about that time to be as follows:

  June 6, 1975          5.9%      (84 out of a total of 1431)
  November 7, 1973      6.4%      (99 out of a total of 1549)
  Id.

He found the number of blacks hired as and December 5, 1975 to be as follows: police officers between February 10, 1969

  February 10, 1969       2.3%          (1 out of 43)
  July 28, 1969           4.2%          (2 out of 48)
  September 22, 1969      8.7%          (4 out of 46)
  January 12, 1970        5.4%          (2 out of 37)
  October 26, 1970        0.0%          (0 out of 38)
  Id. at 1025.

Apparently, no blacks were hired between 1971 and 1975. "Thus," said Judge Weber, "of 212 new police officers added since February 10, 1969, 9, or 4.2% were black. None of these appointees were female."

Judge Weber found that the number of women, both black and white, on the police force was 12 (0.8%) out of 1,431, and that no woman had been appointed since 1966. At that time, women comprised 40% of the labor force in Pittsburgh. "Of a total of applicants to take the police examination in 1975 of 3,299, 1,176 or 35.6% were women. Of a total of 1,949 persons passing the test, 751 or 39% were women." Id.

The Court further ordered:

  that defendants shall proceed forthwith to develop
  a broad-based system of competitive qualifications
  of future applicants which measures a number of
  job-related qualifications and is free from the
  racial or sexual bias that results from the
  administration of a single written examination as
  the sole competitive criterion for appointment.

Id.

We emphasize that Judge Weber made no finding of intentional discrimination on the part of the City. Rather, the preliminary injunction was based upon the disparate impact the City's hiring procedure had on minorities and women.

Judge Weber labelled the quota process for selecting new police officers an "interim method," which he said would remain in effect "until disposition of plaintiffs' prayer for permanent injunctive relief or until further order of this court." Id.

No appeal was ever taken, nor did any party seek a final adjudication on the merits; therefore, the preliminary injunction remains in effect.

IV. BURDEN OF PROOF

The parties present differing views on the overlapping issues of the burden of proof among the parties and the standard by which this Court should review the preliminary injunction issued by Judge Weber.

The City, relying on Fed.R.Civ.P. 60(b)(5) and United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932) argued that the burden rests on the intervenors as the party moving to dissolve the injunction. Fed.R.Civ.P. 60(b)(5) states:

  On motion and upon such terms as are just, the
  court may relieve a party or a party's legal
  representative from a final judgment, order, or
  proceeding for the following reasons: . . . (5)
  the judgement has been satisfied, released, or
  discharged, or a prior judgment upon which it is
  based has been reversed or otherwise vacated, or
  it is no longer equitable that the judgment should
  have prospective application.

In Swift, several large meat packing companies were accused of antitrust violations in the purchase of livestock and the sale of meats. In 1920, a consent decree was entered by which the meat packers agreed never to enter the grocery business. In 1930, after making various attempts in the lower courts to frustrate the operation of the decree, the packers filed a motion to modify it. The Supreme Court held that the decree could not be vacated or modified except upon a showing of "grievous wrong evoked by new and unforeseen circumstances." Id. at 119.

The City and Commonwealth argue that since Judge Weber has previously made a finding of discrimination after extensive fact finding, it is now up to the intervenors to show "grievous wrong evoked by new and unforeseen circumstances" to justify any modification of the injunction.

Intervenors, on the other hand, argue that Swift has been clarified by later Supreme Court cases. The Supreme Court addressed this issue earlier this year in the Dowell school desegregation opinion stating:

  Board of Education v. Dowell, ___ U.S. ___, 111
  S.Ct. 630, 636-37, 112 L.Ed.2d 715 (1991).

It appears to this Court that the standard of review enunciated in Swift is inapplicable to our review of the preliminary injunction. The portion of the Dowell opinion quoted above makes it clear that the Swift standard applies only when the underlying danger justifying the prior decree continues unabated. It would beg the ultimate question presented in this case if the Court were to rule as a preliminary matter that unconstitutional discrimination against women and blacks continues unabated.

Further distinguishing Swift is the fact that the challenged decree here is only a preliminary injunction, and one that by its own terms lasts "until disposition of plaintiffs' prayer for relief or until further order of this court." 404 F. Supp. at 1031. The purpose of a preliminary injunction is to prevent irreparable harm until a trial can be held on the merits. It would be inequitable in this case to hold that the granting of the preliminary injuunction shifts to the Intervenors the ultimate burden of proof on the merits. As for Rule 60(b), this is a rule that, by its own terms, applies only to final orders. This rule does not apply to an order granting or denying ...


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