Petition — City of Philadelphia v. United States

Supreme Court brief1978

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IN THE

SUPREME COURT OF THE UNITED STANBY 2's 5° |

27-1718 MAY 30 1978

October Term, 1977 Nos. ae ae RODAK, JR., CLERK

77-1710, 77-2140, 77-2141

CITY OF PHILADELPHIA, JOSEPH F. O’ NEILL,

FosTER B. Roser, GEORGE BUCHER,

LEONARD L. ETTINGER, AND HARRISON J. TRAPPE,

CITY OF PHILADELPHIA CIVIL SERVICE COMMISSION,

FRATERNAL ORDER OF POLICE,

Petitioners

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS

FOR THE THIRD CIRCUIT

JAMES M. PENNY, JR.

Deputy City Solicitor

RALPH J. TETI

Assistant City Solicitor

BARBARA R. AXELROD

Assistant City Solicitor

SHELDON L. ALBERT

City Solicitor

15th Floor Municipal Services Bldg.

Philadelphia, Pennsylvania 19107

(215) MU 6-5225

PERUTO, RYAN & VITULLO

A. CHARLES PERUTO

BURTON A. ROSE

Washington West Building

8th & Locust Streets

Philadelphia, Pennsy!vania 19106

THE LEGAL INTELLIGENCER, 66 NORTH JUNIPER STREET, PHILA., PA. 19107 (215) 561-4050 -~z2=p~

TABLE OF CONTENTS

Page

a 1

I ecus 2

EE IR REN CD Pe RR OR 2

Statutory Provisions Involved ................... 2

ED ET 9

Reason for Granting the Writ .................... 15

HR eA gn Re an ee 21

IR SEES OE ere 22

FES ESE EEE nO ye Ee A-1

TABLE OF CITATIONS

Cases:

Diversified Mortgage Investors v. U.S. Life Ins.

Co., 544 F.2d 571, 576 (2nd Cir., 1976) ... 15, 16

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) .. i5

Franks v. Bowman, 424 U.S. 747, 769(1976) ... 17

International Brotherhood of Teamsters v. United

States, 431 U.S. 324, 52 L.Ed. 2d 396

Pt c.iiddccldeciheusanacnweced 15, 17, 19, 20

McDonnell Douglas Corp. v. Green, 411 U.S. 792

I ele ee ee 15

Milliken v. Bradley, 418 U.S. 717 (1974) ...... 15, 18

Pasadena City Board of Education v. Spangler,

ee kies 15

Rizzo v. Goode, 423 U.S. 362 (1976) .......... 15, 18

Sampson v. Murray, 415 U.S. 61 (1974) ......... 15

Swann v. Charlotte-Mecklenburg Board of Educa-

ls eeant 18

Yakus v. United States, 321 U.S. 414(1943) .... 15

Federal, Constitutional and Statutory Provisions:

U.S. Constitution, Amendment XIV, Section] .. 2

a i oe a mae 2

Os I eS oe edwu kus i)

Title 42, United States Code, §2000e-2 ........ 2,15

Title 42, United States Code, §2000e-11 ....... 5, 18

TABLE OF CITATIONS—(Continued)

Pennsylvania Statutory Provisions:

Title 51, Pennsylvania Consolidated Statutes An-

notated, §7102 se eeeeeeeeeseeeeeeeneener tenes

Title 51, Pennsylvania Consolidated Statutes An-

notated, §7103 Leen e eee n esses een eeeeeee tees:

Title 51, Pennsylvania Consolidated Statutes An-

notated, $7104 ...........eeeeeees neat teens

Philadelphia Home Rule Charter, Section 7-300 .

Page

IN THE

Supreme Court of the United States

October Term, 1977 Nos. 77-1709,

77-1710, 77-2140, 77-2141

CITY OF PHILADELPHIA, JOSEPH F. O’NEILL, Foster B.

ROsER, GEORGE BUCHER, LEONARD L. ETTINGER, AND

HARRISON J. TRAPPE, CITY OF PHILADELPHIA CIVIL

SERVICE COMMISSION, FRATERNAL ORDER OF POLICE,

Petitioners

Vv.

UNITED STATES OF AMERICA, Respondent

Petition for Writ of Certiorari to the United

States Court of Appeals for the Third

Circuit

™\

TO: THE HONORABLE, THE CHIEF JUSTICE OF

THE UNITED STATES, AND THE ASSOCIATE

JUSTICES OF THE UNITED STATES SU-

PREME COURT:

Petitioners, City of Philadelphia, et al. respectfully

pray that a Writ of Certiorari issue to review an order of

the United States Court of Appeals for the Third Circuit

entered in this proceeding on February 27, 1978.

OPINION BELOW

The Opinion of the Court of Appeals for the Third

Circuit appears in the Appendix at A. / . The Opin-

ion and Order of the United States District Court for the

Eastern District of Pennsylvania dated April 15, 1977

and the Supplemental Opinion and Order dated April

25, 1977 in Nos. 77-1709 and 77-1710 appear in the

Appendix at A.18 and A.21 respectively. The July 13,

1977 Order of the District Court in Nos. 77-2140 and

77-2141 appears in the Appendix at A.24. Also included

in the Appendix are the District Court Opinions and

Orders of March 5, 1976 (A.25), January 29, 1975

{A.30], November 3, 1977 [A.34] and January 24, 1978

[A.36].

JURISDICTIONAL STATEMENT

This Court’s jurisdiction is invoked under 28

U.S.C. §1254(1).

QUESTION PRESENTED

Whether, on a motion for a mandatory preliminary

injunction in the form of a gender-based quota system

specific to a discreet pool of qualified applicants, the

Court may properly refuse to consider evidence relat-

ing to the non-discriminatory selection of that pool of

applicants and issue the requested injunction without

identifying the victims of the alleged discrimination

and without determining the nature and extent of each

such victim’s injury?

STATUTORY PROVISIONS INVOLVED

United States Constitution, Amendment XIV, Sec-

tion |.

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

State wherein they reside. No state shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty or property without due

process of law; nor deny any person within its

jurisdiction the equal protection of the law... .

Title 42, United States Code, §2000e-2. Unlawful

Employment Practices — Employer Practices.

(a) It shall be an unlawful employment prac-

tice for an employer —

(1) To fail or refuse to hire or to discharge

any individual, or otherwise to discriminate

against any individual with respect to compen-

sation, terms, conditions, or privileges of em-

ployment, because of such individual’s race,

color, religion, sex, or national origin; or

(2) To limit, segregate or classify his em-

ployees or applicants for employment in any

way which would deprive or tend to deprive

any individual of employment opportunities or

otherwise adversely affect his status as an em-

ployee, because of such individual's race,

color, religion, sex, or national origin.

(e) Notwithstanding any other provision of

this subchapter, (1) it shall not be an unlawful

employment practice for an employer to hire

and employ employees, or an employment

agency to classify, or refer for employment any

individual, for a labor organization, to classify

its membership or to classify or refer for em-

ployment ary individual or for an employer,

labor organization, or joint labor-management

committee controlling apprenticeship or other

training or retraining programs to admit or

employ any individual in any such program on

the basis of his religion, sex or national origin

in those certain instances where religion, sex,

or national origin is a bona fide occupational

qualification reasonably necessary to the nor-

mal operation of that particular business or en-

terprise, and (2) it shall not be an unlawful

employment practice for a school, college, uni-

versity, or other educational institution or in-

stitution of learning to hire and employ em-

ployees of a particular religion if such school,

college, university, or other educational in-

stitution or institution of learning, is, in whole

or in substantial part, owned, supported, con-

trolled or managed by a particular religion or

by a particular religious corporation, associa-

tion or society, or if the curriculum of such

school, college, university or other educational

institution or institution of learning is directed

toward the propagation of a particular religion.

(h) Notwithstanding any other provision of

this subchapter, it shall not be an unlawful

employment practice for an employer to apply

different standards of compensation, or differ-

ent terms, conditions, or privileges of employ-

ment pursuant to a bona fide seniority or merit

system, or a system which measures earnings

by quantity or quality of production or to em-

ployees who work in different locations, pro-

vided that such differences are not the result of

an intention to discriminate because of race,

color, religion, sex, or national origin, nor shall

it be an unlawful employment practice for an

employer to give and tc act upon the results of

any professionally developed ability test pro-

vided that such test, its administration or ac-

tion upon the results is not designed, intended

or used to discriminate because of race, color,

religion, sex or national origin. It shall not be

an unlawful employment practice under this

subchapter for any employer to differentiate

upon the basis of sex in determining the

amount of the wages or compensation paid or

to be paid to employees of such employer if

such differentiation is authorized by the provi-

sions of section 206(d) of Title 29.

(j) Nothing contained in this subchapter

shall be interpreted to require any employer,

employment agency, labor organization, or

joint labor-management committee subject to

the subchapter to grant preferential treatment

to any individual or any group because of the

race, color, religion, sex, or rational origin of

such individual or group on account of an im-

balance which may exist with respect to the

total number or percentage of persons of any

race, color, religion, sex or national origin em-

ployed by an employer, referred or classified for

employment by any employment agency or

labor organization, or admitted to, or employed

in, any apprenticeship or other training pro-

gram, in comparison with the total number or

percentage or persons of such race, color, reli-

gion, sex, or national origin in any community,

State, section or other area, or in the available

work force in any community, State, section or

other area.

Title 42, United States Code, §2000e-11. Veterans’

Special Rights or Preferences.

Nothing contained in this subchapter shall be

construed to repeal or modify any Federal,

State, territorial or local law creating special

rights or preference for veterans.

6 7

(b). Municipal Examinations. — When any

such person shall take any examination for ap-

pointment or promotion in the Civil Service of

STATE STATUTORY PROVISIONS:

Title 51, Pennsylvania Consolidated Statutes An-

notated, §7102. Credits in Civil Service Examination.

(a). General Rule. When any soldier shall take

any Civil Service appointment or promotional

examination for a public position under the

Commonwealth, or under any political sub-

division thereof, he shall be given credit in the

manner hereafter provided; for the discipline

and experience represented by his military

training and for the loyalty and public spirit

demonstrated by his service the prese’ vation of

his courtry, as provided in this chapter.

any of the various municipal agencies within

this Commonwealth, as required by any exist-

ing law or any law which may hereafter be

enacted, such person’s examination shall be

marked or graded fifteen percent perfect before

quality or contents of the examination shall be

considered. When the examination of any such

person is completed and graded, such grading

or percentage as the examination merits shall

be added to the aforesaid fifteen percent, and

such total mark or grade shall represent the

final grade or classification of such person and

shall determine his or her order of standing in

the eligible list.

Title 51, Pennsylvania Consolidated Statutes An-

notated, §7103. Additional Points in Grading Civil Ser- 51 Pennsylvania Consolidated Statutes Annotated,

vice Examinations. §7104. Preference in Appointment or Promotions.

(a). Commonwealth Examinations. —

Whenever any soldier shall successfully pass a

Civil Service Appointment or promotional

examination for a public position under this

Commonwealth, or any political subdivision

thereof, and shall thus establish that he pos-

sess the qualifications required for law by ap-

pointment to or promotion in such public posi-

tion, such soldiers examination shall be

marked or graded an additional ten poirts

above the mark or grade credited for the

examination, and the total mark or grade thus

obtained shall represent the final mark or

grade of such soldier, and shall determine his

standing on any eligible or promotional list,

certified or furnished to the appointee or pro-

moting power.

(a) Non-Civil Service —

Whenever any soldier possesses the requisite

qualifications and is eligible to appointment to

or promotion in a public position, where no

such civil service examination is required, the

appointing power in making an appointment or

promotion to a public position shall give pref-

erence by such soldier.

(b) Name on Civil Service List —

Whenever any soldier possesses the requisite

qualifications, and his name appears on any

eligible or promotional list, certified or fur-

nished as a result of any such civil service

examination, the appointing or promoting

power in making an appointment or promotion

te a public position shall give preference to

such soldier, notwithstanding that his name

does not stand highest on the eligible or promo-

tional list.

Philadelphia Home Rule Charter, Section 7-300.

Purpose.

The purpose of the civil service provisions of

this Charter is to establish to the City a system

of personnel administration based on merit,

principles and scientific methods governing

the appointment, promotion, demotion, trans-

fer, layoff, removal and discipline of its em-

ployees, and other incidents of City employ-

ment. All appointments and promotions to po-

sitions in the Civil Service shall be made in

accordance with the Civil Service Regulations.

STATEMENT OF THE CASE

This Petition seeks this Court’s review of the Feb-

ruary 28, 1978 Order of the United States Court of Ap-

peals for the Third Circuit, affirming the decisions of

the United States District Court for the Eastern District

of Pennsylvania, per the Honorable Charles R. Weiner,

requiring that at least 20% of newly appointed police

officers in the City of Philadelphia be female. These

orders were entered without any showing whatsoever

of gender-based discrimination in the selection process

which produced the candidates for appointment.

Two actions' were filed in the United States Dis-

trict Court for the Eastern District of Pennsylvania in

1974, alleging, inter alia, that the Philadelphia Police

Department had engaged in gender-based discrimina-

tion in its hiring procedures violative of Title VII of the

1964 Civil Rights Act, 42 U.S.C. §2000e et seq.

The selection procedure for the position of police

officer in the City of Philadelphia is a merit system of

selection mandated by state and local law,? consisting

of (1) a competitive written entrance examination; (2)

a medical examination; (3) a psychiatric evaluation;

and (4) a background investigation. The entrance

examination was developed and validated for the posi-

tion of Philadelphia Police Officer by the Educational

Testing Servicc of Princeton, New Jersey® and is used

1. United States of America v. City of Philadelphia, et al.,

C.A. #74-400; Penelope Brace v. Joseph F. O'Neill, et al., C.A.

#74-339.

2. Act of June 25, 1919, P. L. 581, Art. XIX, 53 P. S. §12633;

Philadelphia Home Rule Charter, Title 7, Section 400 et seq.

3. This examination was developed and validated in partial

settlement of Commonwealth of Pennsylvania, et al. v. O'Neill, et

al., C.A. #70-3500 (E.D. Pa.), a racial discrimination case claim-

ing, inter alia, that the Police Departmeni’s prior entrance exami-

nation unlawfully excluded blacks from employment with the De-

partment. The new examination was approved for use by the Hon-

orable John P. Fullam on October 17, 1974.

by the City as a ranking device above the pass point.

Passing applicants are ranked on an eligibility list in

descending order of test score, as modified by a veter-

an’s preference bonus where applicable. Pursuant to

the Home Rule Charter, Section 7-401(f), an eligible

list may remain in force no longer than two years from

the date of its establishment. According to rank on the

eligibility list, applicants are referred to the medical

examination; upon passing the medical examination,

the applicants are then referred for psychiatric evalua-

tion. Lastly, applicants who have passed both the med-

ical and psychiatric examinations undergo a detailed

background investigation. On passing the background

investigation, an applicant is eligible for appointment.

It is an applicant’s position on the eligibility list

which determines his or her relative standing to enter

the remaining portions of the selection process and to

ultimately be appointed to the police training academy.

With one major exception, the eligible list position is, in

turn, generally determined by an applicant’s test score

relative to all other applicants taking the competitive

examination. The major exception alluded to is a veter-

an’s preference bonus of ten points which is added to

the test score of passing applicants honorably dis-

charged from the United States Armed Forces.‘

The Petitioners’ prior practices excluded women

from applying for the position of police officer in the

Philadelphia Police Department. On January 29, 1975,

upon the agreement of all counsel, the Court entered

an order requiring, inter alia, that the May 31, 1975

examination be given to both male and female appli-

cants, that the examination be given and the eligibility

list be established in accordance with Petitioners’ cur-

rent practices and that recruiting and advertising be

conducted in normal fashion with the understanding

4. Act of Aug. 1, 1975 P. L. 233, No. 92, 51 Pa. C.S.A. §701 et

seq.

that all such efforts be directed to men and women

equally.

All recruiting and advertising for the examination

were directed at both men and women with special ef-

forts being made to advise females of the new employ-

ment opportunities open to them.

On May 31, 1975, 10,551 persons took the exami-

nation for police officer, of whom 2,252 were women.

Of those test takers, 79% of the male applicants passed

the examination, as compared to a 75% pass rate for

the female applicants. There is no significant differ-

ence between the two pass rates. That men and women

competed on equal terms on the May 31, 1975 exami-

nation was not and is not now open to dispute. [A. 22].

In accordance with standard operating procedure, the

City’s Personnel Department ranked the applicants in

descending order of test score as modified by veteran’s

preference where applicable.

After the May 31, 1975 examination had been

scored, an eligible list established and some hiring had

taken place off that list, the instant litigation went to

trial. During the course of trial, on March 5, 1976, the

District Court entered an Order embodying an agree-

ment reached by the parties. In pertinent part, that

Order provided:

2. There are presently approximately four

hundred seventy one (471) funded vacancies in

sworn positions in the Philadelphia Police De-

partment. In filling such vacancies the City

shall graduate from the Police Academy one

hundred qualified women from the next five

classes, or earlier. In any event there shall be

no less than twenty women in any such class,

until those one hundred (100) women are

graduated. Such persons shall be selected from

the present eligibility list generated from the

May 31, 1975 examination. Upon graduation

from the training academy, such persons shall

be assigned to police officer positions in the

same manner as other graduates are assigned.

[A. 26].

Consistent with that Order, the City selected 100

women for the next five police acuiemy classes. In

order to hire the 100 women, the City went down to

rank number 3979 on the eligibility list. At the same

time, in order to hire the 371 male officers, the City did

not go beyond rank number 820 on that same list.

Necessarily, the March 5, 1976 Order insuring the

graduation of 100 women from the police training

academy required that women be selected out of order

on the eligibility list, the last women of that group hav-

ing been jumped over more than 3000 males ranked

ahead of her on that list.

On April 1, 1977, the City advised the Court and

the respondents that the City intended to hire 100

police officers in rank order from the eligibility list be-

yond the 471 persons previously hired. After hearing on

respondents’ application for a preliminary injunction,

the Court entered its Order of April 25, 1977 establish-

ing, inter alia, a 20% female quota for those appoint-

ments. Despite the utter absence of any supporting

language in its March 6, 1976 Order, the Court stated:

“We were and remain under the impression that the

letter and spirit of counsel’s agreement as evidenced by

the Court’s order contemplated that the proportion of

females previously employed would be the standard to

be adopted for all future hirings pending final decision

of the court.” [A. 22]. Further, the Court found that the

City had admitted the fact of gender-based discrimina-

tion, completely ignoring the City’s and the Court’s

own previous efforts to insure that the May 31, 1975

recruitment and examination were free from such

bias. In subsequent hirings by the City for police of-

ficer, the Court again imposed a 20% quota through its

Orders of July 13, 1977 [A. 24] and November 3, 1977.

[A. 34]. Finally, the Court’s successive quotas having

resulted in all females on the applicant eligibility list

being processed for appointment, the Court, by its

Order of January 24, 1978, allowed the hiring of an all

maie class but only with the explicit reservation of po-

sitions for females when a new list would be estab-

lished. [A. 36].°

In initially adopting its quota, on April 25, 1977,

the Court noted that the gender of an applicant played

no part at all in the selection process for employment at

issue, namely the eligible list produced by the May 31,

1975 examination. |A. 22]. Further, it should be re-

membered that there is no significant difference in the

male/female pass rates for the May 31 examination.

There is no claim that the entrance examination ad-

versely impacts upon female applicants. There is no

claim that any other portion of the selection process

adversely impacts upon female applicants. There is no

claim that females were excluded from taking the May

31, 1975 examination. There has been no showing that

any of the intended beneficiaries of the Court’s quota

orders were ever victimized by any gender-based dis-

crimination on the part of defendants.

Lastly, it should be pointed out that, in part, the

eligible list is, in fact, skewed in favor of males; that is,

males disproportionately appear in the upper reaches

of the list. The sole cause for this phenomenon is the

veteran’s preference bonus which results in an award

of 10 points to passing veterans.®

5. The District Court’s orders of April 25, 1977 and July 13,

1977 were affirmed by the Court of Appeals as Appeal Nos. 77-

1709, 77-1710, 77-2140 and 77-2141. The District Court’s order of

November 3, 1977 is pending in the Court of Appeals under Appeal

Nos. 77-2597 and 77-2598. The January 24, 1978 Order was ap-

pealed as of No. 78-1327. Petitioners have moved to consolidate

Nos. 77-2597, 77-2598 and 78-1327 with the Nos. 77-1709,

77-1710, 77-2140 and 77-2141. That motion is pending in the Third

Circuit Court as of this writing.

6. Those persons with a total score between 100 and 110 (i.e.,

veterans with a test score between 90 and 100) were overwhelm-

ingly male.

On appeal to the United States Court of Appeals for

the Third Circuit, the lower court’s orders were af-

firmed. The Circuit Court held that the District Court

“acted well within its discretion in entering a prelimi-

nary injunction requiring the defendants to meet a hir-

ing goal similar to that of the interim consent order of

March 5th... .” [A. 9]. The Court held that the likeli-

hood of plaintiff ’s success on the merits on final hear-

ing was strong given defendants’ admission of sex-

based discrimination. The Circuit Court ignored the

fact that the admission was only with respect to en-

trance examinations given prior to 1975. There was no

such admission with respect to the May 31, 1975

examination which was open to male and female ap-

plicants alike and in which no adverse impact can be

found in the test data and no discriminatory treatment

can be found in the evidence.

The Circuit Court also held that the District Court

did not err in presuming irreparable injury would re-

sult if it failed to enter a preliminary injunction not-

withstanding the absolute lack of any evidence what-

soever suggesting that any female on the eligibility list

produced by the May 31, 1975 examination had ever, at

any time, been victimized by either pre-act or post-act

gender-based discrimination. Finally the Third Circuit

Court held that the District Court’s order recognized

the interests of third parties and the public, not-

withstanding the fact that it effectively repudiated

merit selection, circumvented the State and City’s sys-

tem of veteran’s preference and deprived higher rank-

ing males on the eligibility list of an opportunity for

employment solely on the basis of their sex.

Petitioners respectfully request this Honorable

Court to issue a Writ of Certiorari to the United States

Court of Appeals for the Third Circuit to review its Feb-

ruary 27, 1978 Opinion and Order.

REASON FOR GRANTING THE WRIT

ON MOTION FOR A MANDATORY PRELIMI-

NARY INJUNCTION IN THE FORM OF A

GENDER-BASED QUOTA SPECIFIC TO A DIS-

CREET POOL OF QUALIFIED APPLICANTS,

THE COURT BELOW IMPROPERLY REFUSED

TO CONSIDER EVIDENCE RELATING TO THE

NON-DISCRIMINATORY SELECTION OF THAT

POOL OF APPLICANTS AND IMPROPERLY IS-

SUED THE REQUESTED INJUNCTION WITH-

OUT IDENTIFYING THE VICTIMS OF THE AL-

LEGED DISCRIMINATION AND WITHOUT DE-

TERMINING THE NATURE AND EXTENT OF

EACH SUCH VICTIM’S INJURY.

It is well settled that liability can not be found nor

relief be granted under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. 2000e et seq., without a prima facie

showing of a violation of that statute. International

Brotherhood of Teamsters v. United States, 431 U.S.

324, 52 L.Ed. 2d 396 (1977); McDonnell Douglas Corp.

vu. Green, 411 U.S. 792 (1973). It is equally well settled

that the scope of an injunctive remedy is defined by the

breadth of the constitutional or statutory violation

found to exist. International Brotherhood of

Teamsters v. United States, supra; Rizzo v. Goode,

423 U.S. 362 (1976); Milliken v. Bradley, 418 U.S. 717

(1974); Pasadena City Board of Education v. Spang-

ler, 427 U.S. 424 (1976). The judicial power and discre-

tion with respect to preliminary injunctive relief j

more narrowly limited. The purpose of the nent

or interlocutory injunction is to preserve the status quo

and to prevent irreparable injury pendente lite, and

such an injunction can only issue on a showing of ir-

reparable injury to the movant if the injunction is not

granted. Sampson v. Murray, 415 U.S. 61 (1974);

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975); Yakus

v. United States, 321 U.S. 414 (1943); Diversified

Mortgage Investors v. U.S. Life Ins. Co., 544 F.2d 571,

576 (2nd Cir., 1976).

Here, the United States sought and the Court

granted a mandatory preliminary injunction, not with

respect to the case as a whole, but rather in regard only

to hiring from the May 31, 1975 eligible list. The orders

of the District Court have substantially altered the last

uncontested status quo by requiring that 20% of each

Police Academy class of new appointees be female,

though selections to these classes were made from a

bias free eligibility list.

In reaching its decisions, the District Court totally

ignored the test data and other evidence of non-

discrimination with respect to all hiring which took

place after the May 31, 1975 examination. Further-

more, the District Court ignored its Order of January

29, 1975, in which the Court itself authorized the ad-

ministration of the qualifying examination which was

given on May 31, 1975, directed that recruitment in

advertising be done in their normal fashion with such

recruitment and advertising being directed at males

and females equally, and directed that the eligible list

be established in accordance with the regular operat-

ing procedures of the Police and Personnel Depart-

ments. Despite its recitation of the stipulated facts

that hiring was being conducted in rank order from the

eligibility list, that the selected males who were to be

employed had simply recorded higher marks in the

examination as compared with females, and that the

gender of the applicant played no part in the em-

ployment process, the Court held that it need not de-

cide the issue of the presence or absence of gender-

based discrimination in the hiring process which was

the subject of the application for an interlocutory in-

junction. [A. 22]. Thus in considering the application

for preliminary injunctive relief as to hiring from the

eligibility list produced by the May 31, 1975 examina-

tion, the Court expressly refused to consider the only

relevant evidence before it, i.e. evidence relating to the

absence of gender-based discrimination in that list.

Rather, the Court considered only defendants’ admis-

sion of such discrimination as to examinations given

and lists established long before the May 31, 1975

examination, which had been long since discarded and

which were not the subject of the application for inter-

locutory relief.

In International Brotherhood of Teamsters v.

United States, supra, this Court propounded

guidelines for the exercise of judicial discretion in em-

ploying remedial powers in Title VII cases. Stressing

that the purposes of the remedial provisions of Title VII

are to place victims of discrimination in their rightful

place, i.e., the position the discriminatee would have

had but for the discrimination complained of, this

Court pointed out that factual inquiry on the part of the

trial court was required. International Brotherhood of

Teamsters v. United States, supra, 52 L.Ed. 2d at

437-38. In determining who the discriminatees are and

how they are to be made whole, this Court clearly con-

templated that the trial judge was to hold a hearing or

otherwise factually determine the identity of the al-

leged victims and the nature and extent of their injury.

Referring to the trial court's duty in International

Brotherhood of Teamsters v. United States, this Court

held that, on remand, “After the victims have been

identified the [trial] court must, as nearly as possible,

‘recreate in conditions and relationships that would

have been had there been no’ unlawful discrir ination.

Citing Franks v. Bowman, 424 U.S. 747, 769 (1976).

Here the District Court made no such inquiry.

Rather it necessarily assumed that all females on the

eligibility list were victims of sex discrimination, al-

though the nature of that discrimination was not

explicitly or implicitly defined. Thus, it also must

necessarily be assumed that the nature of the dis-

crimination was inherent in the test which determined

eligibility list position, and finally, it must be assumed

that the extent of the injury was that each and every

woman on the list would have been processed for ap-

pointment beyond the testing stage but for the dis-

crimination inherent in the test. No evidence exists

anywhere in this record which would support these

implicit prerequisites to the District Court’s quota or-

der. There is neither evidence nor claim of any dispar-

ate impact resulting from the test other than the

male/female distribution on the eligibility list which is

skewed as a result of veterans’ preference. Veterans’

preference is, of course, expressly insulated against at-

tack in Title VII itself. Section 712 of the Act, 42 U.S.C.

§2000e-11 provides that:

Nothing contained in this subchapter shall be

construed to repeal or modify only Federal,

State, teritorial or local law creating special

rights or preference for Veterans.

This Court on many occasions has ruled that the

scope of equitable relief must be consistent with the

scope of the violation found to exist. Rizzo v. Goode,

423 U.S. 362 (1976); Milliken v. Bradley, 418 U.S. 717

(1974); Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. 1(1971). Even assuming ar-

guendo, the existence of any finding of any gender-

based discrimination in selection from the May 31,

1975 examination for the position of police officer, the

courts below made no effort to identify the victims of

same or to determine the nature and extent of the in-

jury to them.

Lastly, this Court pointed out in Teamsters that

special caution had to be observed in fashioning an

equitable remedy.

Although not directly controlled by the Act, the

extent to which the legitimate expectations of

non-victim employees should determine when

victims are restored to their rightful place is

limited by basic principles of equity. In devis-

ing and implementing remedies under Title

VII, no less then in formulating any equitable

decree, a court must draw on the “qualities of

mercy and practicality [that] have made equity

the instrument for nice adjustment and recon-

cilliation between the public interest and pri-

vate needs as well as between competing pri-

vate claims.” Especially when immediate im-

plementation of an equitable remedy threatens

to impinge upon the expectations of innocent

parties, the courts must “look to the practical

realities and necessities inescapably involved

in reconcilling competing interest,” in order to

determine the “special blend of what is neces-

sary, what is fair, and what is workable,” [cita-

tions omitted]. International Brotherhood of

Teamsters v. United States, 52 L.Ed. 2d at

439-40.

Again, this Court’s admonition was disregarded.

The rights and the interests of non-victim males on the

eligibility list who were denied employment simply be-

cause of their sex were ignored. The protection in Title

VII itself of the interest of the veterans on the eligibility

list was circumvented. With no evidence of any dis-

crimination, with no evidence that any female on the

eligibility list was a victim of any unlawful employ-

ment practice, the courts below, solely on the basis of

gender, denied employment opportunity to male appli-

cants having a higher position on a valid and untainted

eligible list than their female counterparts.

As the Circuit Court of Appeals pointed out, a party

seeking a preliminary injunction must establish that

he or she or the class he or she represents will suffer

irreparable injury pendente lite if the requested in-

junction is not granted. Here, there was no evidence of

any injury to any female taking the May 31, 1975

examination. Nevertheless the Circuit Court held that

the District Court acted within its discretion to pre-

sume injury, despite the total dearth of evidence. The

Court of Appeals pointed out that the interests of third

parties and the public must be considered in ruling on

an application for preliminary injunction. Here, the

public interest and the rights of third parties were ig-

nored. The public interest lies in non-discriminatory

selection procedures, yet the courts below opted for an

unwarranted gender-based quota system. The public

interest and the public policy of both the Common-

wealth of Pennsylvania and the United States of

America is to confer certain preferential rights on Vet-

erans of our military services in taking civil service

examinations. This public interest and public policy

were frustrated, and the veterans’ preference insula-

tion contained in Title VII itself was circumvented.

The rights of males on the eligibility list who had com-

peted equally with females in taking the examination

were ignored. The respondents failed to satisfy any of

the prerequisites to preliminary injunctive relief.

It is respectfully submitted that the pronounce-

ments of this Court in International Brotherhood of

Teamsters v. United States, supra, have been honored

by the courts below only in their breach. In an applica-

tion for preliminary injunction where no relief was

warranted, the most draconian, contraversial, abra-

sive remedy imaginable, i.e., a quota system, was im-

posed by the court. It is without basis in fact and in

law, and your petitioners respectfully submit that the

Circuit Court of Appeals erred in affirming the orders

of the District Court.

CONCLUSION

For the foregoing reasons, your petitioners respect-

fully submit that a writ of certiorari should issue to

review the judgment and opinion of the United States

Court of Appeals for the Third Circuit.

Respectfully submitted:

JAMES M. PENNY, JR.

Deputy City Solicitor

BARBARA R. AXELROD

Assistant City Solicitor

RALPH J. TETI

Assistant City Solicitor

SHELDON L. ALBERT

City Solicitor

1580 Municipal Services Building

Philadelphia, Pennsylvania 19107

(215) MU 6-5225

A. CHARLES PERUTO

BURTON A. ROSE

CERTIFICATE OF SERVICE

I hereby certify that on this 30th day of May, 1978,

three (3) copies of the Petition for Writ of Certiorari

were hand delivered to the offices of:

Robert DeLuca, Esquire

United States Attorney

3310 United States Courthouse

601 Market Street

' Philadelphia, Pa. 19106

John M. Gadzichowski, Esquire

Department of Justice

Washington, D.C. 20503

I further certify that all parties required to be

served have been served.

JAMES M. PENNY, JR.

Deputy City Solicitor

Counsel for Petitioners

Room 1580 Municipal Services

Building

Philadelphia, Pa. 19107

IN THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 77-1707/77-1711 and 77-2140/77-2141

UNITED STATES OF AMERICA

Vv.

CITY OF PHILADELPHIA, a Municipal Corp.,

JOSEPH F. O'NEILL, Comm., Philadelphia Police Department;

FOSTER B. ROSE, Director of Personnel, City of Philadelphia;

GEORGE BUCHER, LEONARD L. ETTINGER, & HARRISON J. TRAPP,

Comm., City of Philadelphia Civil Service Comm.,

Appellants in No. 77-2141

FRATERNAL ORDER OF POLICE, Intervening Deft.

CITY OF PHILADELPHIA,

Appellant in Nos. 77-1707/77-1709

FRATERNAL ORDER OF POLICE,

Appellant in No. 77-1710 and No. 77-2140

UNITED STATES OF AMERICA,

Appellant in No. 77-1711

(D. C. Civil No. 74-400)

On Appeal from the United States District Court for the

Eastern District of Pennsylvania

Argued October 20, 1977

Before: ROSENN and GARTH, Circuit Judges, and LACEY,*

District Judge.

OPINION OF THE COURT

(Filed February 27, 1978)

DREW S. DAYS III

Assistant Attorney General

Attorney for Appellant

DAVID W. MARSTON

United States Attorney

Attorney for Appellee

DAVID L. ROSE

WALTER W. BARNETT

RICHARD S. UGELOW

VINCENT F. O'ROURKE, JR.

Department of Justice, Washington, D.C.

SHELDON L. ALBERT

City Solicitor

JAMES M. PENNY, JR.

Deputy City Solicitor

STEPHEN SALTZ

Deputy City Solicitor

RALPH J. TETI

Assistant City Solicitor

*Frederick B. Lacey, United Attorney for Defendants-Appellees

States District Court, BURTON A. ROSE, ESQ.

District of New Jersey, Fraternal Order of Police

sitting by designation. Attorney for Intervenor-Defendant

Lacey District Judge

PRELIMINARY STATEMENT

Appeal Nos. 77-1707, 77-1708 and 77-1709 were

taken by the defendants from orders of the United

States District Court for the Eastern District of Penn-

sylvania granting the United States’ motions for in-

junctive relief. Appeal No. 77-1710 was taken by the

defendant-intervenor Fraternal Order of Police from an

order of the district court granting a motion of the

United States for injunctive relief. Appeal No. 1711

wes taken by the United States from an order of the

P strict Court denying a motion for injunctive relief.

Our jurisdiction over these appeals was properly in-

voked under 28 U.S.C. §1292(a)(1); and they are now

before us by virtue of our order of consolidation of June

28, 1977.

PROCEDURAL HISTORY

On February 19, 1974 the United States filed suit

against the City of Philadelphia, the Commissioner of

Police, the Director of Personnel, and the City of Phila-

delphia Civil Service Commissioners [hereinafter the

City or defendants]. ' The complaint alleged, inter alia,

that the Philadelphia Police Department was engaged

in a pattern or practice of employment discrimination

against females in violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. §2000e et

seq., the fourteenth amendment, and the guidelines of

the Department of Justice and the Law Enforcement

Assistance Administration [LEAA] which provide for

equal employment opportunity in federally assisted

programs and activities, 28 C.F.R. §42.201 et seq. Spe-

cifically, the complaint alleged that the defendants had

discriminated against female employees and appli-

1. The Fraternal Order of Police was permitted to intervene as

a defendant by the district court’s order of August 5, 1975.

cants for employment in their recruiting, hiring, pro-

motion, transfer and assignment practices.’

The United States’ action was consolidated with a

related lawsuit filed on February 12, 1974 by

Policewoman Penelope Brace. *

On February 10, 1976 trial in the consolidated

cases commenced. After the plaintiffs had completed

their case-in-chief and the defendants had begun to

present their evidence, the United States and the de-

fendants agreed to the entry of an interim order, which

was entered on March 5, 1976 (the March 5 order).

On March 15, 1976 the district court entered an

order dismissing this case without prejudice to the

rights of the parties to seek enforcement of the March 5

order.

The five appeals before us are from decisions of the

district court on four separate motions filed by the

United States subsequent to the entry of the March 5

order. They relate to three separate matters:

Nos. 77-1707 and 77-1708 are appeals by the City

and concern the applications of incumbent policewo-

men to transfer from the all female line of progression

(policewoman) to the all male line of progression

(policeman).

2. On the same date that the United States filed its complaint,

it also filed an application for a temporary restraining order and a

motion for a preliminary injunction. In its moving papers it sought

to have the defendants restrained from dismissing Policewoman

Penelope Brace. It alleged that her impending dismissal was in

retaliation for having filed charges of discrimination with the

Equal Employment Opportunity Commission [EEOC] and LEAA.

Brace was subsequently reinstated by the City of Philadelphia.

3. On February 12, 1974 Brace filed an action on behalf of

herself and all other females similarly situated. Her complaint also

alleged that the Philadelphia Police Department was engaged in a

pattern or practice of discrimination against females (Brace v.

O’Neill, et al., C.A. 74-339). The Brace action was subsequently

stayed, and she filed a separate appeal. On November 10, 1977 we

dismissed the appeal for lack of jurisdiction. [Brace v. O’Neill, No.

76-2207, slip op. at 14-15 (3d Cir. November 10, 1977)].

Nos. 77-1709 and 77-1710 are appeals by the City

and the Fraternal Order of Police, respectively, from an

order requiring the defendants to hire twenty female

police officers in conjunction with the hiring of 100

new male police officers.

No. 77-1711 is an appeal by the United States from

the failure of the district court to find that the defend-

ants discriminated against Shirley Terry, a female

police officer, when they fired her based on the ex-

pressed reason that her pregnancy rendered her physi-

cally incapable of continuing to perform the duties of a

police officer.

DISCUSSION

A. The March 5 Order

This order suspended the trial for a period of up to

two years, during which time the defendants would be

permitted to develop additional evidence.‘ Also, the

order provided substantive interim relief for females,

summarized as follows:

1. The defendants were enjoined from engaging in

acts or practices which had the purpose or effect of

discriminating on the basis of sex;

2. The job titles of policeman and policewoman

were abolished and the entry level position became

police officer;

3. The defendants were instructed to fill approxi-

mately 470 police officer vacancies with both qualified

males and qualified females. The City was directed to

graduate one hundred qualified women from the next

five classes at the police academy, or earlier. Of these,

no less than twenty were to be in any such class. Selec-

4. Among other things the defendants, relying upon the “bona

fide occupational qualification’ defense (BFOQ), 42 U.S.C.

§2000e-2(e)(1), wanted to study the performance of women as

police officers.

tion was to be based on the eligibility list generated by

the May 31, 1975 entrance examination. Upon gradua-

tion from the training academy the women were to be

assigned to police officer positions.

4. Incumbent policewomen (juvenile aid officers)

were to be afforded an opportunity to transfer to and

compete for promotion within the police officer

(policeman) line of progression.

5. Finally, the order provided for the district court’s

retention of jurisdiction and for a deferral of the issues

not addressed by the order.

In addition to the terms of the March 5 order, Shel-

don L. Albert, the Philadelphia City Solicitor, and the

defendants’ representative, provided the United States

with a letter of understanding dated February 27,

1976. In this letter the defendants agreed: (1) to pro-

vide the United States with not less than sixty days’

notice prior to the filling of any vacancies above the

approximate figure of 470 contemplated by the order;

(2) to give the United States an opportunity to review, if

necessary, records bearing upon the question of com-

parable experience for females who transfer to police

officer; and (3) to consult with the United States on the

content of any remedial training to be offered female

transferees.

B. Hiring of Police Officers in Addition to the Approxi-

mate 470 Contempiated by the March 5 Order —

App. Nos. 77-1709 and 77-1710

On April 1, 1977 the defendants advised the dis-

trict court that on or about April 18, 1977 they intended

to appoint a police recruit class consisting only of 100

men. The United States moved at once to enjoin the

noticed hiring uniess at least twenty percent (20%) of

the new hirees were female, alleging that the addi-

tional hiring was violative of Title VII and of the March

5S order, that it perpetuated the effects of past dis-

criminatory employment practices, and that the de-

fendants had failed to give the United States the

agreed sixty days’ notice prior to the additional hiring.

On April 15, 1977 the district court entered an

order enjoining the defendants from hiring the all male

police class, stating:

That the Police Department discriminates

against employing women as police officers is un-

contested. The threshold question that will not be

resolved until all evidence . . . [is] presented to the

Court, is whether the Police Department is jus-

tified in refusing to employ females as police of-

ficers because of the “‘bona fide occupational qual-

ification’’ exception provided for in Section

703(e)(1), 42 U.S.C. §2000e-2(e)(1). The burden of

proof is upon the defendants to demonstrate that

their contention falls within the “‘bona fide occupa-

tional qualification” exception. Weeks v. Southern

Bell Telephone Co., 408 F.2d 228 (5th Cir. 1969).

As previously noted, the resolution of this issue is

not ripe for decision. Concluding that the defend-

ants are prima facie in violation of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C.

§2000e, et seq. and presuming that irreparable in-

jury will result from said violation, United States

v. Hayes International, 415 F.2d 1038 (Sth Cir.

1969), the Court will enjoin the appointment of

only males to the Police Academy (App. 760a-

761a).

After the entry of this order, a further evidentiary

hearing was held at defendants’ request, following

which, on April 25, 1977, the district court amended its

order of April 15 and issued a supplemental opinion,

Stating:

During the course of several evidentiary hearings,

occurring prior to March 5, 1976, the record clearly

established that it was the policy of the police de-

partment to reject applications of females for em-

ployment as police officers. In fact, the defendants

did not contest this allegation but to the contrary

relied completely upon the “bona fide occupational

qualification” exception provided for in Section

703(e)(1) 42 U.S.C. §2000e-2(e)(1). Believing that

the answer to the qualification issue might be re-

solved by providing an opportunity for females to

perform the duties of a police officer, counsel pre-

sented to the Court certain proposals which were

acceptable and embodied in the Court’s order of

March 5th. In substance, the order provided that

one-hundred [sic] (100) women were to be em-

ployed to fill vacancies in the police department

out of approximately 471 existing vacancies. The

male and female candidates were not chosen in the

order in which their names appeared on the police

eligibility list. In order to reach female candidates,

it was necessary to pass over males whose position

on the list was much higher than the selected

females. ... With respect to future appointments,

we were and remain under the impression that the

letter and spirit of counsels’ agreement as evi-

denced by the Court’s Order contemplated that the

proportion of females previously employed would

be the standard to be adopted for all future hirings

pending final decision of the Court. Without any

change in circumstances the police intend to ap-

point one-hundred [sic] (100) males to the Police

Academy excluding all females. To justify this em-

ployment practice the defendants now contend

that the choice of an all male class is no longer

tainted with the color of discrimination in em-

ployment because of one’s sex. The stipulated facts

indicated that the members of the proposed class

were taken in rank order from the eligibility list.

That 10,551 persons took the examination, 2,252 of

whom were women. That the selected males who

were to be employed had simply recorded higher

marks in the examination as compared with

females and thus the gender of the applicant

played no part in the employment process. We need

not decide that issue, however, for in our view this

Court’s Order of March 5th closed the question of

discriminatory employment and left open only the

issue of “bona fide occupational qualification” ex-

ception. But that is not the end of our inquiry. As

noted in our Opinion of April 15, 1977, the parties

had agreed upon sixty (60) days’ notice to be given

before any new vacancies were to be filled. Unfor-

tunately, the City, in total disregard of its agree-

ment, advised the male members of the con-

templated class of their appointment to the Police

Academy. The Court has been advised that more

than fifty percent of those who received this notice

resigned from their previous employment and now

are unemployed, their families now suffering from

financial insecurity. Had the covenant been fol-

lowed, it appears apparent that this incident could

have been avoided as the appointees would have

had sixty days’ notice instead of the fourteen days’

notice which was given to the plaintiff. We are of

the opinion that the circumstances recited above

mandate the exercise of the Court’s discretion to

frame a decree that would provide equitable relief.

Erie Human Relations Commission v. Tullio, 403

F.2d 371 (3d Cir. 1974). (App. 783a-786a).

The district court’s amended order provided in per-

tinent part:

In order to eliminate the hardship sustained by the

proposed male appointees and to eliminate alleged

discrimination because of sex pending the final

resolution of this action, the defendants are di-

rected to hire 120 persons as police officers who are

appointed to the police academy. This class of 120

appointees shall be composed of:

——

(a) the 100 males who had previously been

notified of their appointment, and

(b) 20 females whose names shall be selected

in rank order from the current eligibility list, as

suggested by the United States. (App. 787a.)

The City and the Fraternal Order of Police each

filed notices of appeal from this amended order on April

26, 1977.5

We find that the district court acted well within its

discretion in entering a preliminary injunction requir-

ing the defendants to meet a hiring goal similar to that

of the interim consent order of March 5, when the de-

fendants, sought to hire officers in addition to those

provided for in that order. Oburn v. Shapp, 521 F.2d

142 (3d Cir. 1975). Given the obvious justification for

its finding of discriminatory employment practices, the

district court acted properly to frame a decree which

wouid not only further the purposes of Title VII and

achieve equality of employment opportunity, Al-

bemarle Paper Co. v. Moody, 422 U.S. 405, 417 (1975),

but would also prevent action by the defendants incon-

sistent with the March 5 order.

The granting of preliminary relief was clearly

proper under Oburn v. Shapp, supra. The likelihood of

plaintiffs’ success on the merits at final hearing is

strong, given defendants’ admission of sex discrimina-

5. Later, on June 7, 1977, the defendants advised the district

court and the parties that they intended to hire an additional 350

police officers. Under the defendants’ proposal all of the 350 would

have been men. The United States formally opposed the additional

hiring because it did not include a hiring goal for females. On July

14, 1977 the district court signed an order which permitted the de-

fendants to hire the 350 officers, so long as 20% were female. The

City and the Fraternal Order of Police have also filed notices of

appeal from that order. App. Nos. 77-2140 and 77-2141. These

appeals were subsequently consolidated with the presen: appeals

by order of our court. Hence, our determination with respect to the

order of the district court of April 15 and April 25, 1977 is dis-

positive of these appeals taken from the district court's order of

July 14, 1977.

Al0

tion in its employment practices and the dubious

strength of its “BFOQ” defense. Cf. Dothard v. Raw-

linson, 45 U.S.L.W. 4888 (U.S. June 27, 1977).

Nor can we say that the district court erred in pre-

suming irreparable injury would result if it failed to

enter a preliminary injunction. United States v. Hayes

International Corp., 415 F.2d 1038, 1045 (5th Cir.

1969).

Additionally, the district court’s order recognized

the interests of third parties and the public, and was

fashioned to prevent hardship to males who had al-

ready left their jobs while preserving for females the

same proportionate number of positions in the police

department agreed to by the parties in the March 5

order.

‘ Accordingly, we affirm the district court order of

April 25, 1976, amending order of April 15, 1976, and

the order of July 14, 1977 (App. Nos. 77-2140 and 77-

2141).

C. Transfer of Juvenile Aid Officers (Policewomen) to

the Position of Police Officer, Their Qualifications to

Perform Non-Sector Assignments, and the District

Court’s Order They Be So Assigned. App. Nos. 77-

1707 and 77-1708.

The March 5 order provided the opportunity to in-

cumbent juvenile aid officers (formerly policewomen)

to transfer to the redesignated job of police officer and

required they be given “in special classes, any training

received by policemen.” The order further provided

(App. 794-795):

Each such transferee shall be expected to perform

the equivalent of at least one year’s police officer

work unless she has had comparable experience.

The question of the comparability of experience

shall be submitted initially to the Police Commis-

sioner, who shall act promptly thereon. If the par-

All

ties canfiot agree as to whether any such trans-

feree’s experience is comparable to that of one

year’s experience as a police officer, or any part

thereof, the question shall be submitted to the

Court for resolution. All such current Juvenile Aid

Officers shall be given ninety (90) days from the

date of this order (or the date plaintiffs receive

their names and addresses, whichever is later) to

apply to transfer.

Each woman desiring a transfer was advised by

the City that (1) her application to transfer to the posi

tion of police officer was granted; (2) she did not have

experience comparable to a sector patrol officer; (3)

she would be required to perform at least one year of

sector patrol prior to consideration for transfer to any

other assignment; (4) her request for transfer to a non-

sector patrol assignment was denied; (5) she was as-

signed to a sector patrol district; and (6) she was to

report to the police academy on December 13, 1976 for

training.

In addition, Sergeant Cecile Williams was in-

formed that she was to be deprived of the privileges of

her rank as sergeant for one year.

The United States moved once again for injunctive

relief and, after hearing, the district court enjoined the

defendants from requiring a year of sector patrol train-

ing from the incumbent female officers prior to permit-

ting them to transfer to units within the police depart-

ment. *®

With regard to Sergeant Williams, the district court

ruled that the Police Commissioner was unjustified in

6. Reviewing the Police Commissioner's initial determination

of comparability of experience as it had a right to do under the

March 5 order, the district court found the applicants for transfer

had “sufficient comparable experience that would, with the excep-

tion of transferring to police sector patrol, entitle them to be trans-

ferred to any unit in the police department without being required

to undergo one year of sector patrol.” (App. 657a).

Al2

directing the removal of her supervisory authority. The

court concluded “that she [Sergeant Williams] has an

abundance of experience as a supervisor that should

enable her to occupy the identical rank that she now

holds without stripping her of her present authority.”

(App. 657a-658a).

The defendants filed their notice of appeal from

this order on March 9, 1977. App. No. 77-1707.

The City did not transfer the applicants in accord-

ance with their requests and the order of the district

court. Accordingly, the United States moved for further

injunctive relief and, on March 24, 1977, the district

court entered an order requiring the immediate trans-

fer of the females involved to non-sector patrol assign-

ments, unless they requested patrol assignment. The

district court observed that “the Police Department’s

obdurate failure to grant the requested assignments,

has, as its genesis, the initial action instituted by

female applicants for treatment and rights equal to

those of their male counterparts.” (App. 681a).

A notice of appeal from this order was filed by the

defendants on April 22, 1977. App. No. 77-1708.

The district court did not abuse its discretion when

it concluded that the females seeking transfers were

qualified to perform non-sector patrol duties. They had

been on the police force from two to twenty-two years,

and the record adequately supports the district court’s

determination that their experience was comparable to

one year of police officer experience, thus qualifying

them to perform non-sector patrol assignments.

The defendants’ argument that comparability of

experience must be ascertained by comparing the ap-

plicants for transfer with a hypothetical sector patrol

officer must be rejected. Because they were women,

the applicants could not have been sector patrol of-

ficers and therefore could not have had experience

identical to that of a sector patrol officer. To apply a

sector patrol standard to a female officer would effec-

Al3

tively nullify the transfer provisions of the March 5

order and continue the effects of defendants’ discrimi-

nation.

We also reject defendants’ argument that the City’s

general policy for male police officers has been to re-

quire they serve on sector patrol assignment. The rec-

ord reflects that this avowed policy has not been pur-

sued without exception. Moreover, even if such a policy

existed, defendants waived its application here by en-

tering into the agreement reflected in the March 5 or-

der.

Finally, defendants’ contention that the district

court lacked the power to overrule the Police Commis-

sioner’s comparability determination is without merit.

Such power was specifically conferred by the parties in

the March 5 consent order.

When the defendants refused to assign the appli-

cants for transfer, notwithstanding the district court’s

comparability determination, the court did not abuse

its discretion in directing such assignment. Franks v.

Bowman Transportation Co., 424 U.S. 747, 764

(1976); Albemarle Paper Co. v. Moody, 422 U.S. 405,

421 (1975). This is not, as defendants suggest, a case of

a district court attempting to run the day-to-day ac-

tivities of a police department. It is instead a case of a

district court fulfilling its obligations under a consent

order to see that the persons accorded relief under that

order are given the relief to which the order entitles

them.

The orders of the district court in App. Nos. 77-

1707 and 77-1708 are affirmed.

D. The City’s Discharge of Shirley Terry Solely Because

She Was Pregnant. App. No. 77-1711.

Terry was one of the first females hired as a police

officer pursuant to the March 5 order. She commenced

her training on May 17, 1976 and was terminated on

August 13, 1976 because she was pregnant. The notice

Al4

of termination indicated her pregnancy had com-

menced in May 1976 and that a City physician who had

interviewed (but had not examined) her in August

1976 reported she was unable to perform the duties of a

police officer. The notice then stated (App. 819-820):

5. Since you will be unable to participate in the

Field Training which is part of the Police

Academy’s curriculum and the subsequent sector

patrol duty which is to be performed by you from

Monday, September 27, 1976 through Tuesday,

November 16, 1976 (the end of the six (6) month

probationary period), the Department will be un-

able to properly evaluate your ability to perform

sector patrol duties.’

The United States then moved for an order direct-

ing the City to reinstate Terry as a police officer, argu-

ing that her dismissal on pregnancy grounds violated

the anti-discrimination provisions of the March 5 or-

der, as well as Title VII and the due process clause of

the fourteenth amendment. The defendants resisted,

primarily on the ground that Terry’s firing was jus-

tified because her pregnancy prevented her from par-

ticipating in the study the City was conducting con-

cerning the performance of the female police officers

hired pursuant to the March 5 order.

After hearing, the district court denied the relief

requested by the United States, accepted the defend-

ants’ argument, and found that Terry’s discharge re-

sulted from an “inability to comply with the demands

7. This notice of termination makes it clear that Terry was not

terminated for the reason later asserted in the district court, and

here, by the defendants, that her pregnancy disabled her from par-

ticipating in the two-year study the City was conducting of the per-

formance of the newly appointed female police officers. It would

appear that the argument asserted by the defendants before the

court below and in this court was an afterthought, grounded upon

the understanding tiiat a discharge for the reason stated in the

notice was patently unlawful.

et lila

AlS

of police training for the required time . . . [resulting] in

the determination to remove her from the test project.”

(App. 948-949).

The United States filed its notice of appeal on May

11, 1977.

It is clear that defendants fired Terry solely be-

cause she was pregnant. Based upon a physician’s

interview (and his opinion grounded upon this inter-

view), it was presumed that she could not perform the

job of police officer because she was pregnant. There

was no evidence she was unable to work. Cleveland

Board of Education v. LaFleur, 414 U.S. 632 (1974),

and Turner v. Department of Employment Security of

Utah, 423 U.S. 44 (1975), establish that to apply a

stereotyped presumption that a pregnant person is un-

able to work, and to deny a person the opportunity to

prove otherwise, violates the due process clause of the

fourteenth amendment. See Gurmankin v. Costanzo,

556 F.2d 184, 185 (3d Cir. 1977). Thus the district

court erred in finding that the defendants were jus-

tified in discharging Terry.

Indeed, the only reliable evidence of Terry’s fitness

established that she was successfully performing the

duties assigned to her at the time she was terminated,

that she was in good health, and that she was able to

perform all of her duties as a police officer as late as

September 14, 1976. (App. 817-818). On the other

hand, the defendants’ determination was made with-

out any medical examination, reflected the application

of a presumption that a pregnant woman cannot per-

form police officer duties, and failed to give individual

consideration to Terry herself, her abilities, and her

physical condition.

As we have noted, 9 n.7, supra, Terry was notified

that she was being discharged for a reason other than

that urged before the district court and here. Whether

the discharge was for the reason expressed in the ter-

mination notice, or, as later urged by the defendants,

—

Al6

because Terry’s pregnancy prevented her from par-

ticipating in the two-year study, the discharge was un-

lawful.

As we have indicated, if the discharge was truly for

the reason expressed in the termination notice, then it

could not be sustained under LaFleur. If, however,

Terry was terminated because, as the defendants urge,

she eventually would have become incapacitated due

to her pregnancy, and thus could no longer participate

in the study, her discharge could not be sustained as a

proper exercise of the district court’s discretion.

There was no requirement contained in the March

5 order that women hired pursuant to that order would

have to participate continuously in a two-year study

program without taking a leave of absence for preg-

nancy. Moreover, given the fact of the study as it was

ordered, see n.4 supra (and we express no view on the

validity of the study), at the least the subject of preg-

nancy as it might affect a police officer’s performance

(both during and after pregnancy) was a highly rele-

vant concern to be considered together with all other

circumstances pertaining to women in police service.

As such, on this record, it was an abuse of discretion to

permit Terry’s termination and thus preclude consid-

eration of this issue in the context of the two-year

study. Thus the district court abused its discretion in

failing to order Terry’s reinstatement. * The order of the

8. Because of our disposition of Terry’s claim, we need not de-

cide whether her termination constitutes sex discrimination in vio-

lation of Title VII (and of the March 5 order). We note in passing

that the Supreme Court has remanded this precise issue to the

Court of Appeals for the Ninth Circuit “for further consideration in

light of General Electric Co. v. Gilbert, 429 U.S. 125 (1976), and

Nashville Gas Co. v. Satty, _.. U.S. __ (1977), and for considera-

tion of possible mootness.”’ Richmond Unified School Dist. v. Berg,

46 U.S.L.W. 4032 (U.S. December 6, 1977). As the Second Circuit

indicated in Women in City Government United, et al. v. City of

New York, et al., No. 74-2352, slip op. at 6148 (2d Cir. September

28, 1977), equal protection violations, due process violations, and

Title VII violations, are not necessarily “variations on the [same]

theme.”

ee ee ee

Al7

district court is reversed in App. No. 77-1711, and the

matter is remanded to the district court with the direc-

tion that the City be ordered to reinstate Terry as a

police officer.

CONCLUSION

In all except the appeal at 77-1711 which is the

government’s appeal from the district court’s order of

March 11, 1977 which denied Terry’s reinstatement,

we will affirm the orders of the district court. These

orders to be affirmed include the March 4, 1977 order

of the district court, amending the February 10, 1977

order, concerned with the transfer of women police of-

ficers to formerly all-male departments (Appeal No.

77-1707); the March 24, 1977 order, also concerned

with the transfer of women officers (Appeal No. 77-

1708); the April 25, 1977 order amending the April 15,

1977 order, which required the hiring of 20 women

police officers (Appeal Nos. 77-1709, 77-1710); and the

July 14, 1977 order concerning the hiring of women

police officers as a part of a new hiring of 350 police

officers (Appeal Nos. 77-2140, 77-2141).

We will reverse the March 11, 1977 order of the

district court which is the subject of the government’s

appeal at 77-1711 and will remand to the district court

with the direction that the City be ordered to reinstate

Shirley Terry as a police officer.

To the Clerk:

Please file the foregoing opinion.

/s/

Frederick B. Lacey, U.S.D.J.

Al8

MEMORANDUM OPINION

WEINER, J. Aprit 15, 1977

Presented to the Court is the motion of the United

States for a preliminary injunction to enjoin the de-

fendants from hiring any additional police officers

from the current policeman eligibility list unless for

every four (4) males hired as police officers one (1)

female police officer is also hired.

Since the facts are undisputed the motion may be

disposed of as a matter of law. From the record the

following facts emerge:

(1) the police department had adopted a policy of

refusing to hire females as police officers on the ground

that they were not qualified to fulfill that role.

(2) on March 5, 1976, predicated upon the agree-

ment of counsels, the Court entered an Order which,

inter alia provided:

par.1. “ ... during the pendency of this Order the

City agrees and it shall not engage in any act or

practice with respect to hiring . . . of police officers

within the Philadelphia Police Department which

has the purpose or effect of discriminating because

of such individual’s sex.”

(3) the order also directed that one hundred (100)

women were to be employed to fill vacancies in the

police department out of approximately 471 existing

vacancies. After their graduation from the training

academy, they would be assigned to police officer posi-

tions and an independent study of their qualifications

to perform the duties of a police officer would be under-

taken. !

1. Presently there are approximately seventy-nine (79) females

who are acting police officers and their performance is being

evaluated by Bartell Associates.

ee OE A la al te la a

i Ea A CAO AD Oe ee ee me

Mee mae.

Alg

(4) by letter dated March 4, 1976, addressed to the

Department of Justice, defendant stated that:

“The City will provide the United States with not

less than sixty (60) days notice prior to the com-

mencement of any class at the Police Academy to

fill vacancies by and the four-hundred seventy-one

(471) vacancies referred to in paragraphs 4 and 5

of the subject Order if the situation should so

arise.”

(S) on April 1, 1977, the defendants advised the

Court of their intention to appoint one hundred (100)

police officers to the Police Academy for training. The

class to consist of one-hundred (100) males and no (0)

females.

Based upon the present state of the record, we are

of the opinion that the United States is entitled to in-

junctive relief. That the Police department discrimi-

nates against employing women as police officers is

uncontested. The threshold question that will not be

resolved until all evidence, including the result of the

“Bartell Study” will be presented to the Court, is

whether the Police Department is justified in refusing

to employ females as police officers because of the

“bona fide occupational qualification” exception pro-

vided for in Section 703(e)(1) 42 U.S.C. §2000e-2(e)(1).

The burden of proof is upon the defendants to demon-

strate that their contention falls within the “bona fide

occupational qualification” exception. Weeks uv.

Southern Bell Telephone Co., 408 F.2d 228 (5th Cir.

1969). As previously noted, the resolution of this issue

is not ripe for decision. Concluding that the defendants

are prima facie in violation of Title VIi of the Civil

Rights Act of 1964, as amended, 42 U.S.C. 2000e, et

seq. and presuming that irreparable injury will result

from said violation, United States v. Hayes Interna-

tional, 415 F.2d 1038 (5th Cir. 1969) the Court will

A20

enjoin the appointment of only males to the Police

Academy.

A final comment. At this juncture it would appear

appropriate to point out that the litigants, in formulat-

ing the terms of the March 5th Order of this Court ap-

peared to have adopted a practical approach to the so-

lution of this issue. We regret that a similar resolution

was not arrived at in the instant matter.

ORDER

The defendants, their agents, servants, employees,

attorneys and all persons in active concert and partici-

pation with them be and they hereby are restrained and

enjoined, preliminarily and pending final determina-

tion of this action, from hiring and appointing to the

Police Academy one-hundred (100) male police of-

ficers, said officers to be appointed on or about April 18,

1977.

IT IS SO ORDERED.

/s/

CHARLES R. WEINER, J

Ont eee eet A ee ae ok

A21

SUPPLEMENTAL OPINION

WEINER, J. APRIL 25, 1977

By Order dated April 15, 1977, we entered an order

enjoining defendants from hiring and appointing one-

hundred (100) males to the Police Academy. We will

elaborate somewhat on our previous opinion in order to

put to rest any misgiving that defendants may have as

to our recognition of their contentions.

In this case court proceedings were launched

against the defendants on the charges that the defend-

ants engaged in employment practices which have re-

sulted in discrimination on the basis of sex against

female applicants for the position of policeman, in vio-

lation of Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. §2000e, et seq. During the course of

several evidentiary hearings, occurring prior to March

5S. 1976, the record clearly established that it was the

policy of the police department to reject applications of

females for employment as police officers. In fact, the

defendants did not contest this allegation but to the

contrary relied completely upon the “bona fide occupa-

tional qualification” exception provided for in Section

703(e)(1), 42 U.S.C. §2000e-2(e)(1). Believing that the

answer to the qualification issue might be resolved by

providing an opportunity for females to perform the

duties of a police officer, counsel presented to the Court

certain proposals which were acceptable and embodied

in the Court’s order of March Sth. In substance, the

order provided that one-hundred (100) women were to

be employed to fill vacancies in the police department

out of approximately 471 existing vacancies. The male

and female candidates were not chosen in the order in

which their names appeared on the police eligibility

list. In order to reach female candidates, it was neces-

Sary to pass over males whose position on the list was

much higher than the selected females. The Order also

provided for an independent study of their qualifica-

A22

tions to cover a period of twenty-four (24) months. The

plan was put into operation, females were hired, Bar-

tell Associates is supervising the test and the Court is

to be advised of the results of the experiment. With

respect to future appointments, we were and remain

under the impression that the letter and spirit of coun-

sels’ agreement as evidenced by the Court’s Order con-

templated that the proportion of females previously

employed would be the standard to be adopted for all

future hirings pending final decisior of the Court.

Without any change in circumstances the police intend

to appoint one-hundred (100) males to the Police

Academy excluding all females. To justify this em-

ployment practice the defendants now contend that the

choice of an all maie class is no longer tainted with the

color of discrimination in employment because of one’s

sex. The stipulated facts indicated that the members of

the proposed class were taken in rank order from the

eligibility list. That 10,551 persons took the examina-

tion, 2,252 of whom were women. That the selected

males who were to be employed had simply recorded

higher marks in the examination as compared with

females and thus the gender of the applicant played no

part in the employment process. We need not decide

that issue, however, for in our view this Court’s Order

of March 5th closed the question of discriminatory em-

ployment and left open only the issue of the “bona fide

occupational qualification” exception. But that is not

the end of our inquiry. As noted in our Opinion of April

15, 1977, the parties had agreed upon sixty (60) days’

notice to be given before any new vacancies were to be

filled. Unfortunately, the City, in total disregard of its

agreement, advised the male members of the con-

templated class of their appointment to the Police

Academy. The Court has been advised that more than

fifty percent of those who received this notice resigned

from their previous employment and now are unem-

ployed, their families now suffering from financial in-

A23

security. Had the covenant been followed, it appears

apparent that this incident could have been avoided as

the appointees would have had sixty days’ notice in-

stead of the fourteen days’ notice which was given to

the plaintiff. We are of the opinion that the circum-

stances recited above mandate the exercise of the

Court’s discretion to frame a decree that would provide

equitable relief. Erie Human Relations Commission v.

Tullio, 403 F.2d 371 (3d Cir. 1974). Accordingly, the

Court enters the following Amended Order.

AMENDED ORDER

AND NOW, this 25th day of April 1977, the Order

of this Court dated April 15, 1977, is amended to read

as follows:

In order to eliminate the hardship sustained by

the proposed male appointees and to eliminate al-

leged discrimination because of sex pending the

final resolution of this action, the defendants are

directed to hire 120 persons as police officers who

are to be appointed to the police academy. This

class of 120 appointees shall be composed of:

(a) the 100 males who had previously been

notified of their appointment, and

(b) 20 females whose names shal! be

selected in rank order from the current eligibility

list, as suggested by the United States.

IT IS SO ORDERED.

/s/

CHARLES R. WEINER, J.

A24

IN THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES Civil Action

Uv.

City OF PHILADELPHIA No. 74-400

ORDER

And now, on this 13th day of July, 1977, it is OR-

DERED and DECREED that the City of Philadelphia

may hire an additional 350 Police Officers which shall

include 20% females whose names have been selected

in rank order from the eligibility list.

/s/

CHARLES R. WEINER, J.

Filed July 14, 1977

i ly a Ne

A25

IN THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA,

Plaintiff Civil Action

CITY OF PHILADELPHIA, et al., No. 74-400

Defendants,

PENELOPE BRACE, Plaintiff, Civil Action

JosePH F. O’NEILL, et al., No. 74-339

Defendants,

FRATERNAL ORDER OF POLICE,

Intervenors,

ORDER

These cases having come on before the Court for

trial beginning on February 10, 1976, and the plaintiffs

having rested on February 11, 1976, and the defend-

ants’ motion to dismiss having been denied on Febru-

ary 12, 1976, and the defendants having started to pre-

sent their evidence in chief, it appears to the defend-

ants, the City of Philadelphia and city officials

(hereinafter referred to as “the City”), that a study will

be of assistance to the Court in resolving this matter,

and that while plaintiffs do not believe such a study is

necessary or desirable, all parties are desirous of reduc-

ing to the extent feasible the burdens on the Court and

the parties of contested litigation. The parties hereby

consent to the entry of this Order. It is hereby

A26

ORDERED, ADJUDGED, AND DECREED:

1. Defendants shall abolish the job titles of

policeman and policewoman. The entry level position

on the police force shall henceforth be police officer.

Persons presently assigned to the policewoman posi-

tion shall continue to be employed if they so choose as

Juvenile Aid Officers. Until further order of this Court,

and during the pendency of this Order the City agrees

and it shall not engage in any act or practice with re-

spect to hiring, assignment, discipline, retention or

promotion of police officers within the Philadelphia

Police Department which has the purpose or effect of

discriminating because of such individual’s sex. Noth-

ing authorized by this Order shall be considered to be a

violation of this provision. For the twenty-four (24)

month period of the study hereinafter referred to in

Paragraph three (3) hereof, the Juvenile Aid Division

will continue as it is currently constituted, and vacan-

cies as they occur, up to the number of fifteen (15) will

be filled from the existing ‘“‘policewoman’s” list. If said

limitation has a depleting effect im this unit, the City

has the right to make application to the Court.

2. There are presently approximately four

hundred seventy-one (471) funded vacancies in sworn

positions in the Philadelphia Police Department. In fil-

ling such vacancies the City shall graduate from the

police academy one hundred qualified women from the

next five classes, or earlier. In any event, there shall be

no less than twenty women in any such class, until

those one hundred (100) women are graduated. Such

persons shall be selected from the present eligibility list

generated from the May 31, 1975 examination. Upon

graduation from the training academy, such persons

shall be assigned to police officer positions, in the same

manner as other graduates are assigned.

3. The City has advised the Court that it intends to

study the performance of the one hundred women

AE I LT i tg

A27

police officers hired pursuant to paragraph 2 of this

Order, who in no event shall be hired later than nine (9)

months from the date of this Order. The City may pre-

sent the results of any such study to the Court, within

twenty-four (24) months of the date upon which this

Order is entered. Upon submission of the results of the

study, the parties may submit any additional evidence

they have and the Court shall order any further relief

that may be appropriate.

4. All current Juvenile Aid Officers (formerly

“policewomen”) shall have the right to transfer to the

category of police officer. Such transferees shall

promptly be provided, in special classes, any training

received by policemen which was not heretofore re-

ceived by such transferees. Each such transferee shall

be expected to perform the equivalent of at least one

year’s police officer work unless she has had compara-

ble experience. The question of the comparability of

experience shall be submitted initially to the Police

Commissioner, who shall act promptly thereon. If the

parties cannot agree as to whether any such trans-

feree’s experience is comparable to that of one year’s

experience as a police officer, or any part thereof, the

question shall be submitted to the Court for resolution.

All such current Juvenile Aid Officers shall be given

ninety (90) days from the date of this Order (or the date

plaintiffs receive their names and addresses whichever

is later) to apply to transfer.

5. All Juvenile Aid Officers who apply for transfer

pursuant to paragraph 4, supra, shall be immediately

eligible for all promotions, upon successful completion

of examinations comparable to the promotional

examinations taken by those policemen currently on

the promotion lists. Said make-up examinations shall

be given promptly. To the extent that experience is a

qualification for promotion, the procedure for deter-

mining equivalency shall be that provided in para-

A28

graph 4 above. The parties agree that all current pro-

motional vacancies shall be filled from the current

lists, and that all transfer applicants shall be promoted

at the same time, provided they score at least as high

as the lowest man promoted in each category. The re-

maining female applicants shall be integrated into the

balance of the promotional lists, in accordance with

their scores.

6. Any female who would have been eligible for

promotion under paragraph 5, supra, but for her lack

of “policeman” experience shall receive her promotion

and all other emoluments of office, including seniority

and pay, plus interest, from the day she would have

been promoted but for her lack of “policeman” experi-

ence to the day she actually receives her promotion.

Any such pay award shall be paid to the promotional

candidate when she receives her promotion.

7. Females who either transfer to the position of

police officer or promote to jobs within the police of-

ficer line of progression shall retain for all purposes

their seniority accrued as “policewomen” and such

seniority shall be considered for all purposes to be

equal to the seniority accrued by ‘“‘policemen”’.

8. The City shall periodically, but not less fre-

quently than every six (6) months from the date of

entry of this Order, provide the Court and to the parties

a report setting forth the total number of officers on the

force and their job assignments, the total number of

females on the force and their job assignments, and

the total number of authorized sworn vacancies on

the force by job assignment. In addition, the City shall,

at least thirty days prior to the commencement of

each training class, provide a report to the Court and

each party setting forth the number, by sex, of the

persons selected for each class.

9. Notwithstanding the provisions of this Order,

defendants maintain that its hiring and promotion

policies and practices have been and continue to be

CT Ado et nee e é

A29

valid and lawful until the Court enters its final decree

pertaining to the validity or invalidity of the City’s hir-

ing and promotional policies and practices or any other

practice.

10. The claims of Penelope Brace, and in her b

. 7 >

half by the United States, with respect to allegations of

retaliation and resulting monetary losses, are hereby

severed from the other issues in this case.

11. The Court retains jurisdiction in this matter

for all purposes. The issues not addressed by this Or-

der, including the issues of back pay, interest and other

emoluments of office, if any, are deferred until iwenty-

four months from the date of this Order or until the

results of the aforementioned study are presented to

the Court, whichever is shorter.

12. The parties agree and none shall engage in

any act or practice of retaliation directly or indirectly

against any other party, organization, or person who

has furnished information or participated on behalf of

any party with regard to this lawsuit.

/s/

CHARLES R. WEINER, U.S.D.]J.

Dated:

Filed March 5, 19

A30

IN THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PENELOPE BRACE, on hehalf of Civil Action

herself and on behalf of

other similarly situated

Vv.

Joseru F. O'NEILL, et al. No. 74-339

UNITED STATES OF AMERICA Civil Action

Vv.

Ciry OF PHILADELPHIA, et al. No. 74-400

ORDER

AND NOW, this 29th day of January, 1975, upon

consideration of argument and extensive discussions in

Chambers, and upon consideration of the Stipulations

between counsel for the United States and counsel for

the City of Philadelphia (a copy of which is attached

hereto as Appendix A), it is hereby Ordered:

1. The City of Philadelphia will conduct a study of

the ability of women to perform “sector-patrol” and

other related jobs and assignments within the Phila-

delphia Police Department. The study may encompass

those jobs and assignments in sector-patrol work and

related jobs and assignments for which male police

personnel are currently eligible and for which female

police personnel are not currently eligible.

EEE

ee et ee aes

A31

2. To implement the study referred to in Para-

graph 1, the City of Philadelphia shall take the follow-

ing steps:

(a) The City shall give a qualifying entrance

examination for patrolmen to both men and women.

The examination will be given in the normal course of

business, after approval of the examination by Judge

John P. Fullam, in the case of Commonwealth of

Pennsylvania, et al. v. Joseph F. O’Neill, et al., Civil

Action No. 70-3500.

(b) For purposes of this examination and the

study, the qualifications necessary to take the qualify-

ing entrance examination referred to in Paragraph (a)

shall include, but not be limited to the following:

(1) Male applicants must be five feet, five

and one-half inches tall, or above, and must possess all

other eligibility qualifications specified for the job.

(2) Female applicants must be five feet,

three and one-half inches tall, or above, and must pos-

sess all of the other eligibility qualifications specified

for the job.

fee (c) After the examination is given an eligibil-

ity list will be developed in accordance with current

practices.

(d) For the purposes of the study, an equal

number of eligible men and women from the eligibility

list will be selected for the next class only in the Police

Academy.

(e) A report on the progress of the study will be

submitted to this Court six months from the date of the

initiation of the study.

3. The City shall conduct all advertising and re-

cruiting for the entrance examination referred to in

Paragraph 1, in the same manner as it normally con-

A32

ducts such advertising and recruiting, with the under-

standing that all such efforts are to be directed to men

and women equally.

4. Any party to the litigation may petition this

Court at any time for any appropriate relief with re-

spect to this Order, as the circumstances may warrant.

/s/

CHARLES R. WEINER

Judge, United States District

Court for the Eastern District

of Pennsylvania

A33

IN THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA Civil Action

Vv.

CITY OF PHILADELPHIA, et al. No. 74-400

STIPULATION

COMES NOW the undersigned counsel and stipu-

late as follows:

A study of policewomen performing sector-patrol

duty and related assignments may be of aid to the

Court in resolving the issues presently pending in the

litigation before the Court. To this end counsel agree

that a study may be performed by the City of Philadel-

phia evaluating the ability of women to perform

sectur-patrol and related work.

STEPHEN ARINSON

Chief Deputy City Solicitor

City of Philadelphia

MICHAEL A. MIDDLETON

SARAH T. CAMERON

Attorneys, Civil Rights Division

Employment Section

U.S. Department of Justice

A34

IN THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES

Uv. C.A. No. 74-400

CITY OF PHILADELPHIA, et al.

OPINION AND ORDER

WEINER, J. NOVEMBER 3, 1977

This Court is again confronted with the problem of

the propriety of the City of Philadelphia’s notification

of its intent to hire an additional fifty-two (52) police

officers, without stating how many of these vacancies

the City intends to fill with males and females, respec-

tively.

Pursuant to the Order of this Court an evidentiary

hearing was held on November 3, 1977. Testimony ad-

duced during the course of this hearing clearly demon-

strated that the hiring of females has been and will

remain short of the number of females directed by the

previous orders of the Court, to be hired.

Statistical evidence indicates that the City should

have hired thirty-eight (38) more females so that it

would be in compliance with the Court’s previous or-

ders. However, we are not convinced that the City has

contemptously disregarded our directive but we are in-

clined to believe that the imbalance is caused by the

City’s inability to secure qualified recruits. On the

eligibility list of applicants there remain only fifty-

three (53) females. The Court recognizes, that at this

stage it is impossible with any degree of accuracy, to

know how many of the fifty-three (53) will prove to be

qualified as acceptable candidates. To correct the pre-

CAN etl

A35

vailing disparity between male and female hiri

believe that the City should first etme be af

females and recruit all qualified females before any

attempt is made to employ male recruits. Subject to

this condition precedent the City will be granted leave

to hire fifty-two (52) additional police officers, with the

— rps that a report be submitted to the

urt, prior to notification t i

inate ee “ 0 those applicants accepted

ORDER

Subject to the conditions set forth in this Court’s

opinion, the Court hereby approves the hiri

two (52) police officers. , a

IT IS SO ORDERED.

/s/

CHARLES R. WEINER, J.

A36

IN THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

Uv. C.A. No. 74-400

CITY OF PHILADELPHIA, et al.

MEMORANDUM, OPINION AND ORDER

WEINER, J. JANUARY 24, 1978

The City has advised the Court and the parties that

it desires to hire one hundred (100) police officer re-

cruits during each of the months of January, March

and June, 1978. Asserting that the proposal of the City

would be violative of the Court’s prior order requiring

that the City employs ‘not less than one (1) female

police officer recruit for every four (4) male recruits it

hires until final resolution of this suit” the government

has moved for a preliminary injunction which, inter

alia, seeks to restrain the City from filling any police

officer recruit vacancies until there is full compliance

with this Court’s previous Orders. From the evidence

adduced during the hearing the following facts

emerged. In January, 1978, the City will hire 100

police officers and also intends to hire 52 additional

officers who were the subject of this Court’s previous

Order. From the police eligibility list there are 32

available women who have successfully completed the

phases to make them eligible for employment. (N.T. 4,

5). Fred Tiedemann, administrative analyst, employed

by the Philadelphia Police Department expressed the

opinion that he projected an attrition rate in fiscal 1978

of 39.60 officers per month, and that for the first seven

months of 1978 a shortgage of 492 police officers will

eee rem

A37

exist (N.T. 9). Chief Inspector Parker stated that in his

opinion, the failure to employ additional police officers

would effect the health and safety of the citizens of

Philadelphia. (N.T. 17) It further appears that all

females whose names are on the active list have been

sent to the Police Department for processing and the

department will only be able to appoint approximately

32 female applicants to positions as police officers. It

also appears that the earliest time that a new list for

hiring and testing new applicants could not be given

until April, 1978. A new list containing the names of

those who would be eligible as candidates would be on

July 28, and those eligible could not enter into their

positions until September, 1978 (N.T. 26, 27, 43).

We think. the combination of circumstances we

have noted support the conclusion that the City has not

hired one female police officer recruit for every four

male recruits nor will it be able to comply with this

percentage in its employment of the requested addi-

tional recruits. However, we are not persuaded that the

City has intentionally or wilfully disobeyed this Court's

Orders. Considering the public’s need for additional

police officers and balancing this need against the

right of women to become police officers, we believe

that the legitimate interests of all concerned parties

will be served by granting the government’s motion in

part. Therefore, since the City proposes filling 352 posi-

tions, and compliance with our orders would require

that 70 females be hired, we conclude that the City will

be permitted to employ 282 males during the months of

January, March and June, 1978. The remaining 70 po-

sitions are to be reserved for female applicants who

shall receive appointments before any male applicants

are appointed. In this manner the Court is of the opin-

ion that substantial protection will be afforded the

citizenry and in the same vein will serve the interests

' of the female populace.

A38

The Court strongly urges that the City drastically

advance the time within which a new test will be

given. In light of the fact that the City knew or should

have known of the paucity of females on their active

list we do not find it equitable that the extended time

noticed by the City for the giving of a new test to be

justified. We are unable to ascertain a reasonable

cause for this delay and, therefore, again strongly urge

that the new test be given promptly instead of waiting

until April as contemplated by the City.

The above constitutes the Court’s findings of fact

and conclusions of law.

ORDER

The application of the City of Philadelphia to em-

ploy 352 police officer recruits during the months of

January, March and June, 1978 is GRANTED with the

proviso that of the said 352, 282 males may be em-

ployed and the remaining 70 openings shall be filled by

females before any other males may be employed.

IT IS SO ORDERED.

/s/_

CHARLES R. WEINER, J.

SO A UN ay ts | veins ar tclncmlan ae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.