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September 17, 1992


The opinion of the court was delivered by: BY THE COURT; D. BROOKS SMITH


 SMITH, District J.

 Terrence B. Quirin filed a complaint on April 8, 1991, alleging that the defendants City of Pittsburgh and the Pittsburgh Civil Service Commission denied him equal protection of law under the Fourteenth Amendment, thereby violating 42 U.S.C. § 1983, and discriminated against him in the terms of employment, thereby violating Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Specifically, Quirin alleges that because the City has since 1987 maintained a one-third quota for female firefighter applicants regardless of qualification, he was denied employment as a firefighter in the April, 1990 round of new hires. Before the Court in this matter is Quirin's motion for partial summary judgment on the issue of liability and the defendants City of Pittsburgh and Pittsburgh Civil Service Commission's cross-motion for summary judgment. Because the relevant facts are not in dispute and plaintiff is entitled to judgment as a matter of law, plaintiff's motion is granted. If the parties cannot stipulate to a final order granting relief, they shall notify the Court within ten days.

 I. Facts

 Quirin applied on February 19, 1989, with the Pittsburgh Civil Service Commission to test for a position as firefighter for the city of Pittsburgh. In March, 1989, Quirin passed the written examination with a score of 100%. In June, 1989, Quirin passed the physical performance portion of the firefighter examination with a score of 95.8%, and also passed various required medical examinations. Quirin's written and physical performance examinations were averaged, giving plaintiff a final grade of 97.4%.

 Pursuant to the Firefighter's Civil Service Act, 53 P.S. §§ 23491, 23493.1, Pittsburgh firefighters are considered for appointment and hired in order from an eligibility list in which candidates are ranked from highest to lowest based solely on the average of their scores on the written and physical performance examinations. The Civil Service Commission, upon notification by Pittsburgh that it will hire firefighters, forwards the names of the number of top-ranked candidates equal to the number of positions to be filled to the Director of the Department of Public Safety. The Director of Public Safety has no discretion in hiring from the list, except for the rare objection for cause, a matter not relevant to this suit.

 On July 28, 1987, the Civil Service Commission adopted a policy requiring no less than one third of all new hires to be female. The Civil Service Commission's expressed reason for adopting the policy was its desire to "overcome the effects of past discriminatory hiring practices enforced by the Commission." Plaintiff's Brief, Appendix 2. According to Michele Cunko, Pittsburgh's assistant director of the department of personnel, she and John Bingler, Esq., then President of the Civil Service Commission, decided informally that after Johnson v. Transportation Agency, 480 U.S. 616, 94 L. Ed. 2d 615, 107 S. Ct. 1442 (1987), and Chmill v. City of Pittsburgh, 488 Pa. 470, 412 A.2d 860 (1980), voluntary affirmative action based on gender was possible. Cunko deposition, 35-36; Bingler Deposition 12-13. Also, some members of the Commission believed that the requirement of 53 P.S. § 23493.1(f), which mandates that any person who served in the armed forces of the United States would have 10 points added to his or her examination score, caused a "discriminatory effect" in favor of males. Bingler deposition, 13-14; Cunko deposition, 41-44. Without holding a hearing or conducting an investigation, the Civil Service Commission chose to adopt the one-third figure. *fn1"

 Prior to the application of Title VII to state and local governments in 1972, the City of Pittsburgh had discriminated against female applicants for the job of firefighter. Since the position of firefighter was open to female applicants, beginning in the mid-1970's, the City of Pittsburgh has conducted an advertisement and recruitment campaign designed to attract women applicants. Cunko deposition, 38.

 In 1975, 32 females applied for firefighter, 29 females took the examination, and one female passed the examination. As a result of an ad hoc decision described in the record only as selective certification, the one female was hired. In 1978, 303 females applied for firefighter, 103 females took the examination, and 6 females passed the examination. No female was hired from the 1978 eligibility list. In 1984, 618 females applied for firefighter, 263 females took the examination, and 82 females passed the examination. In September, 1987, 10 women from the 1984 eligibility list were hired together with 20 men, to fill 30 vacancies in the position of firefighter. If not for the Civil Service Commission's one-third set aside for female applicants, the names of the ten females hired from the 1984 eligibility list would not have been reached for pre-employment medical processing. In 1988, either 504 or 512 females *fn2" applied for firefighter, 144 females took the examination, and 101 females passed the examination. Pursuant to the Civil Service Commission's one-third set aside for female applicants, 12 of the 36 firefighter positions filled in April, 1989, were women and 9 of the 24 filled in April, 1990, were women.

 The City of Pittsburgh maintains a residency requirement for the post of firefighter. Cunko depo., 46. The relevant work force population, therefore, is that of the City of Pittsburgh. As of March, 1990, the work force population of the City of Pittsburgh was 52.5% male and 47.5% female. See Commonwealth of Pennsylvania v. Flaherty, 760 F. Supp. 472, 478 (W.D. Pa.1991).

 Statistics for firefighter applicants show that in 1988, a total of 3,518 people applied for the position of firefighter. Of these, 2,902, or 85.2%, were males, and 504, or 14.8%, were females. *fn3" In 1991, 2,007 people applied, 1,700 male, 291 female and 16 unknown. This yields applicant percentages of 85.4% male and 14.6% female.

 Since at least 1985, the City of Pittsburgh's written tests for the position of firefighter have been validated, are job-related, and are not challenged in this action. Additionally, since at least 1983, the firefighter tests administered by the Civil Service Commission have exhibited no adverse impact for gender as defined by the EEOC's Uniform Guidelines on Employee Selection's four-fifth (4/5) rule. See 29 C.F.R. § 1607.4.

 On March 16, 1990, the Civil Service Commission submitted to Glenn Cannon, Director of Public Safety, a list of 24 names to fill 24 open positions as first year firefighter. This list included the names of 15 males and 9 females. The lowest-ranked male on the list had a score of 97.5 and was ranked no. 68 on the eligibility list. *fn4" The highest-ranked female certified had a score of 92.6 and was ranked no. 376 on the list. ...

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