United States v. City of Philadelphia

573 F.2d 802, 1978 U.S. App. LEXIS 12417, 16 Empl. Prac. Dec. (CCH) 8177, 17 Fair Empl. Prac. Cas. (BNA) 168
CourtCourt of Appeals for the Third Circuit
DecidedFebruary 27, 1978
DocketNos. 77-1707 through 77-1711, 77-2140 and 77-2141
StatusPublished
Cited by7 cases

This text of 573 F.2d 802 (United States v. City of Philadelphia) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. City of Philadelphia, 573 F.2d 802, 1978 U.S. App. LEXIS 12417, 16 Empl. Prac. Dec. (CCH) 8177, 17 Fair Empl. Prac. Cas. (BNA) 168 (3d Cir. 1978).

Opinion

OPINION OF THE COURT

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 Pennsylvania granting the United States’ motions for injunctive 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. 77-1711 was taken by the United States from an order of the District Court denying a motion for injunctive relief. Our jurisdiction over these appeals was properly invoked 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 Philadelphia Civil Service Commissioners [hereinafter the City or defendants].1 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. Specifically, the complaint alleged that the defendants had discriminated against female employees and applicants for employment in their recruiting, hiring, promotion, transfer and assignment practices.2

The United States’ action was consolidated with a related lawsuit filed on February 12, 1974 by Policewoman Penelope Brace.3

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 defendants 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 policewomen to transfer from the all female line of progression (policewoman) to the all male line of progression (policeman).

[805]*805Nos. 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 defendants discriminated against Shirley Terry, a female police officer, when they fired her based on the expressed reason that her pregnancy rendered her physically 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.4 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 approximately 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. Selection was to be based on the eligibility list generated by the May 31, 1975 entrance examination. Upon graduation 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, Sheldon 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 provide 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 comparable 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 Approximate 470 Contemplated by the March 5 Order — App. Nos. 77-1709 and 77-1710.

On April 1, 1977 the defendants advised the district 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 unless at least twenty percent (20%) of the new hirees were female, alleging that the additional hiring was violative of Title VII and of the March 5 order, that it perpetuated the effects of past discriminatory employment practices, and that the defendants 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 [806]*806officers is uncontested. The threshold question that will not be resolved until all evidence . . . [is] 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 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 occupational qualification” exception. Weeks v.

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573 F.2d 802, 1978 U.S. App. LEXIS 12417, 16 Empl. Prac. Dec. (CCH) 8177, 17 Fair Empl. Prac. Cas. (BNA) 168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-city-of-philadelphia-ca3-1978.