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JOHNSTON v. CITY OF PHILADELPHIA

September 15, 1994

NATALIE JOHNSTON and KATHY STARKE
v.
CITY OF PHILADELPHIA



The opinion of the court was delivered by: J. CURTIS JOYNER

 JOYNER, J.

 SEPTEMBER 15, 1994

 This is an action filed by Plaintiffs, Natalie Johnston and Kathy Starke, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e (1981), by the City of Philadelphia (the City). Title VII makes it an unfair employment practice for an employer to discriminate against people on the basis of their gender. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 645, 104 L. Ed. 2d 733, 109 S. Ct. 2115 (1989). Plaintiffs allege that the City's Police Department excludes women from employment in violation of Title VII and seek equitable and legal relief. Presently before this Court is Defendant's Motion for Summary Judgment filed pursuant to Rule 56 of the Federal Rules of Civil Procedure.

 STANDARD

 In considering a motion for summary judgment, the court must consider whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The court must determine whether the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 In making this determination, all of the facts must be viewed in the light most favorable to the non-moving party and all reasonable inferences must be drawn in favor of the non-moving party. Id. at 256. Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990), cert. denied, 499 U.S. 921, 113 L. Ed. 2d 246, 111 S. Ct. 1313 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)).

 Pleadings have closed in this action. Defendant now moves for summary judgment alleging that there exist no genuine issues of material fact regarding Plaintiffs' claims.

 FACTS

 Taking the facts alleged by Plaintiffs as true, several times a year the City's Police Department offers a written examination for a position as a Police Officer Recruit. The test takers, or applicants, are ranked on an Eligibility List according to their score on the examination. *fn1" Eligibility Lists are valid for at least one, but not more than two years. Once a candidate has passed the written examination, the candidate must successfully pass through six stages of processing before being sent to the Acceptance Committee for consideration for hiring as a Police Officer Recruit.

 When a training class for Police Officer Recruits is formed, applicants who have completed processing are hired in rank order from the Eligibility Lists that are in service at the time. Because more than one Eligibility List may be valid at a time, applicants are permitted and encouraged to take all the tests offered until they are hired for a recruit class.

 For several years, including the year at issue here, the normal practice of choosing names from the Eligibility Lists in rank order has been affected by four Consent Orders entered into by the City and various plaintiffs. The first Consent Order required that 12 of each 100 hires over 2442 hires would be African American applicants. Commonwealth v. O'Neill, 100 F.R.D. 354 (E.D. Pa. 1983), aff'd, 746 F.2d 1465 (3d Cir. 1984). The second Consent Order required that African American applicants be hired in proportion to the number of African American test takers. Freeman v. City of Philadelphia, 751 F. Supp. 509 (E.D. Pa. 1990), aff'd, 947 F.2d 935 (3d Cir. 1991), cert. denied, 118 L. Ed. 2d 389, 112 S. Ct. 1668 (1992). The third Consent Order required that people who would have been hired from earlier, expired Eligibility Lists, but for failing an element of a vision test, would be hired. Kimble v. Hayes, 89-2644 (E.D. Pa. Dec. 15, 1992). The fourth Consent Order required that people who would have been hired from earlier, expired Eligibility Lists, but for failing a discriminatory psychiatric examination, would be hired. Himmons v. City of Philadelphia, 93-CV-2282 (E.D. Pa. May 11, 1994).

 The result of the four Consent Orders is that candidates are not always taken from the various Eligibility Lists in strict numerical order. On occasion, people with higher rank numbers (and therefore lower test scores) are chosen for processing in order to comply with the Consent Orders, and some people are chosen from expired Eligibility Lists to comply with a Consent Order. Nonetheless, when the Police Department goes out of order to comply with a Consent Order, it selects the next complying candidate on the list. Therefore, although some candidates with low rank numbers are not hired, those that are hired are still chosen in numerical order.

 Plaintiffs each took the June 23, 1990 written examination, which gave rise to the 90B Eligibility List. Johnston was ranked 411 and Starke was ranked 433 on the 90B Eligibility List. Johnston began and successfully completed processing from the 90B list. However, before she was actually approved for hiring, the 90B list expired, and she was not hired as a Police Officer Recruit. Starke also began processing from the 90B list. However, a polygraph test (fourth of the six stages of processing) revealed "deception indicated" to certain drug-related questions. Although Starke had the right to re-take the polygraph test, Police Department policy is not to reschedule the test unless it appears certain that the candidate's rank number will be reached, ...


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