On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 95-cv-00664) Submitted Pursuant to Third Circuit LAR 34.1(a) March 16, 1998
Before: Sloviter, Rendell and Seitz, Circuit Judges
The opinion of the court was delivered by: Sloviter, Circuit Judge.
Appellants George Trosky, Michael Brown, and Paul Renk, white male police officers, filed this action under 42 U.S.C. § 1983, 42 U.S.C. § 1981, Title VII, and Pennsylvania state law alleging that the City of Pittsburgh discriminated against them on the basis of their race when it failed to promote them to the rank of lieutenant. Appellant officers argue that the 1979 federal court order setting a quota for minority hiring had expired before the promotions were made, therefore exposing the City to liability. The officers filed a motion for summary judgment but instead the district court granted summary judgment on behalf of the City. We have jurisdiction under 28 U.S.C. § 1291. Our review is plenary.
This case arises from a history of discriminatory practices in the hiring and promotion of minority officers in the City of Pittsburgh police department which spawned extensive litigation dating back to 1975, and which generated at least six published decisions regarding the appropriate remedies and other related issues. In 1975, Chief Judge Weber,*fn1 the district Judge originally presiding over the case, found that the City's hiring procedures involved a pattern and practice of racial and sexual discrimination; as a remedy, the court imposed a "temporary interim preferential hiring quota" whereby appointments would be made from qualified lists in groups of four as follows: one white male, one white female, one black male, and one black female. Commonwealth v. Flaherty, 404 F. Supp. 1022, 1030-31 (W.D. Pa. 1975). Although that order, by its terms, appears to have applied only to hiring, the City thereafter filed a request with the court to authorize it to promote 18 lieutenants and 24 sergeants "straight down" the eligibility list without regard to race or gender. The Commonwealth of Pennsylvania, the NAACP and the Guardians of Greater Pittsburgh (on behalf of black policemen) opposed the City's proposal because it would perpetuate the racial imbalance.
Judge Weber denied the City's request to promote "straight down" but, citing the pressing need of the City to fill vacancies, ruled on October 12, 1979, that:
We will allow the defendants, however, to promote up to 18 individuals to the rank of lieutenant and up to 28 to the rank of sergeant with the mandate that one of each six promoted to either rank must be minority members otherwise qualified.
We do not command how this shall be done. The officers of the City of Pittsburgh have as great a duty to follow the mandates of the Constitution as does this court. During all the progress of this lawsuit we have found very little evidence of an active effort by the City to solve the problems of race and sex discrimination by action on its own rather than relying entirely on the mandate of this court at every step. There is a pool of eligible candidates for both grades containing minority members who have at least demonstrated some capacity by scoring a passing grade on the examinations, and by prior satisfactory service as patrolman and in some cases as sergeants. Because the pool of eligible candidates for lieutenant contain minority members, some of whom have experience as sergeants, and because the eligibility list for sergeants contain qualified minority members, such selection can be made within the statutory scheme.
Commonwealth v. Flaherty, 477 F. Supp. 1263, 1266-67 (W.D. Pa. 1979) (emphasis added). With respect to the
duration of his "mandate that one of each six promoted to either rank must be minority members otherwise qualified," Judge Weber stated only:
Because the present promotional list is of limited duration, and will expire within the coming year, the problem may be ameliorated in future years because of the eligibility of minority members and women newly hired as police officers under our prior order. The effects of the prior discriminatory practices will be lessened in the future.
Almost immediately the question arose whether a Hispanic officer was a "minority" under the October 12, 1979 order, and on December 19, 1979, Judge Weber issued a temporary restraining order preventing the City from promoting a Hispanic officer under the aegis of the October 12, 1979 order, clarifying that the term"minority" as used in the October order referred to black officers, not Hispanic officers. App. at 10-11. On January 9, 1980, judge Weber made the temporary restraining order issued December 19, 1979 permanent, stating that "he City of Pittsburgh is ordered and directed to proceed under the order of this court of October 12, 1979, and in making such promotions as were allowed therein it ...