Lanning v. Southeastern Pennsylvania Transp. Auth.

• Decision Date: 28 April 1999
• Docket Number: CV-00593,CV-01161,Nos. 98-1644 and 98-1755,s. 98-1644 and 98-1755
• Citation: 181 F.3d 478
• Parties: (3rd Cir. 1999) CATHERINE NATSU LANNING; ALTOVISE LOVE; BELINDA KELLY DODSON; DENISE DOUGHERTY; LYNNE ZIRILLI v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY (SEPTA); (D.C. CIVIL NO. 97-) UNITED STATES OF AMERICA v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY (D.C. CIVIL NO. 97-) CATHERINE NATSU LANNING, ALTOVISE LOVE, BELINDA KELLY DODSON, DENISE DOUGHTERY AND LYNNE ZIRILLI, APPELLANTS IN NO. 98-1644 UNITED STATES OF AMERICA, APPELLANT IN NO. 98-1755 Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 478

181 F.3d 478 (3rd Cir. 1999)

CATHERINE NATSU LANNING; ALTOVISE LOVE; BELINDA KELLY DODSON; DENISE DOUGHERTY; LYNNE ZIRILLI v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY (SEPTA); (D.C. CIVIL NO. 97-CV-00593)

UNITED STATES OF AMERICA v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY (D.C. CIVIL NO. 97-CV-01161) CATHERINE NATSU LANNING, ALTOVISE LOVE, BELINDA KELLY DODSON, DENISE DOUGHTERY AND LYNNE ZIRILLI, APPELLANTS IN NO. 98-1644

UNITED STATES OF AMERICA, APPELLANT IN NO. 98-1755

Nos. 98-1644 and 98-1755

U.S. Court of Appeals, Third Circuit

Argued: April 28, 1999

Filed June 29, 1999

Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. Nos. 97-cv-00593; 97-cv-01161) District Judge: Honorable Clarence C. Newcomer

[Copyrighted Material Omitted]

Lisa M. Rau, Esquire (argued) Jules Epstein, Esquire Kairys, Rudovsky, Epstein, Messing & Rau 924 Cherry Street, Suite 500 Philadelphia, PA 19107 Michael Churchill, Esquire Public Interest Law Center of Philadelphia 125 South 9th Street Suite 700 Philadelphia, PA 19107 Counsel for Appellants Catherine Natsu Lanning; Altovise Love; Belinda Kelly Dodson; Denise Dougherty; Lynne Zirilli in No. 98-1644

Bill Lann Lee, Esquire Acting Assistant Attorney General Dennis J. Dimsey, Esquire Leslie A. Simon, Esquire Robert S. Libman, Esquire (argued) United States Department of Justice Civil Rights Division P.O. Box 66078 Washington, DC 20035-6078 Counsel for Appellant in No. 98-1644

Saul H. Krenzel, Esquire (argued) Saul H. Krenzel & Associates The Robinson Building, Suite 800 42 South 15th Street Philadelphia, PA 19102 Counsel for Appellee -- Septa

Before: Mansmann, Weis and GIBSON,^* Circuit Judges.

OPINION OF THE COURT

Mansmann, Circuit Judge.

In this appeal, we must determine the appropriate legal standard to apply when evaluating an employer's business justification in an action challenging an employer's cutoff score on an employment screening exam as discriminatory under a disparate impact theory of liability. We hold today that under the Civil Rights Act of 1991, a discriminatory cutoff score on an entry level employment examination must be shown to measure the minimum qualifications necessary for successful performance of the job in question in order to survive a disparate impact challenge. Because we find that the District Court did not apply this standard in evaluating the employer's business justification for its discriminatory cutoff score in this case, we will reverse the District Court's judgment and remand for reconsideration under this standard. In light of our decision to remand on this basis, we need not reach the parties' other assertions of error.

I.

This appeal comes to us from a judgment entered by the District Court in favor of the Southeastern Pennsylvania Transportation Authority ("SEPTA") after a twelve day bench trial in January of 1998. Although the parties generally do not dispute the facts relevant to this appeal, to the extent there are favorable inferences to be drawn, we must draw them in favor of SEPTA as the prevailing party. In addition, because we must not disturb the factual findings of the District Court unless clearly erroneous, much of the following background is adopted from the facts as found by the District Court in its extensive memorandum opinion. See Lanning v. Southeastern Pennsylvania Transp. Auth., 1998 WL 341605, at *1-*52 (E.D. Pa. June 25, 1998).

A.

SEPTA is a regional mass transit authority that operates principally in Philadelphia, Pennsylvania. In 1989, in response to a perceived need to upgrade the quality of its transit police force, SEPTA initiated an extensive program designed to improve the department. As part of this program, SEPTA dedicated its transit officers primarily to patrolling the subways and limited their responsibilities to serve as guards at other SEPTA property. In addition, SEPTA increased the number of its officers from 96 to 200 and introduced a "zone concept" for the areas they patrol.¹ SEPTA also began to consider methods by which it might upgrade the physical fitness level of its police officers.

In 1991, SEPTA hired Dr. Paul Davis to develop an appropriate physical fitness test for its police officers.² Dr. Davis initially met with SEPTA officials in order to ascertain SEPTA's objectives. Dr. Davis determined that SEPTA was interested in enhancing the level of fitness, physical vigor and general productivity of its police force. Once Dr. Davis had determined SEPTA's objectives, he went on a ride-along with SEPTA transit police and, over the course of two days and approximately twenty hours, rode the SEPTA trains in order to obtain a perspective on the expectations of SEPTA transit officers.

Dr. Davis next conducted a study with twenty experienced SEPTA officers, designated "subject matter experts" (SMEs), in an effort to determine what physical abilities are required to perform the job of SEPTA transit officer. From the responses Dr. Davis received in this study, he determined that running, jogging, and walking were important SEPTA transit officer tasks and that SEPTA officers were expected to jog almost on a daily basis.

Dr. Davis then asked the SMEs to determine what level of physical exertion was necessary to perform these tasks. The SMEs estimated that it was reasonable to expect them to run one mile in full gear in 11.78 minutes. Dr. Davis rejected this estimate as too low based upon his determination that any individual could meet this requirement. Ultimately, Dr. Davis recommended a 1.5 mile run within 12 minutes. Dr. Davis explained that completion of this run would require that an officer possess an aerobic capacity of 42.5 mL/kg/min, the aerobic capacity that Dr. Davis determined would be necessary to perform the job of SEPTA transit officer.³

Dr. Davis recommended that SEPTA use the 1.5 mile run as an applicant screening test. Dr. Davis understood that SEPTA officers would not be required to run 1.5 miles within 12 minutes in the course of their duties, but he nevertheless recommended this test as an accurate measure of the aerobic capacity necessary to perform the job of SEPTA transit police officer. Based upon Dr. Davis' recommendation, SEPTA adopted a physical fitness screening test for its applicants which included a 1.5 mile run within 12 minutes. Beginning in 1991, the 1.5 mile run was administered as the first component of the physical fitness test; if an applicant failed to run 1.5 miles in 12 minutes, the applicant would be disqualified from employment as a SEPTA transit officer.

It is undisputed that for the years 1991, 1993, and 1996, an average of only 12% of women applicants passed SEPTA's 1.5 mile run in comparison to the almost 60% of male applicants who passed.⁴ For the years 1993 and 1996, the time period in question in this litigation, the pass rate for women was 6.7% compared to a 55.6% pass rate for men. In addition, research studies confirm that a cutoff of 12 minutes on a 1.5 mile run will have a disparately adverse impact on women.⁵ SEPTA concedes that its 1.5 mile run has a disparate impact on women.

In conjunction with the implementation of its physical fitness screening test, SEPTA also began testing incumbent officers for aerobic capacity in 1991. SEPTA policy requires any officer who fails any portion of the incumbent fitness test to retest on the failed element within three months. For each portion of the physical fitness test that an incumbent officer fails, an interim goal is set for that officer.

SEPTA initially disciplined those incumbent officers who failed the fitness test. Due to protests by the incumbent officers' union, however, SEPTA discontinued its discipline policy and instead implemented an incentive program that rewarded incumbent officers for passing their interim fitness goals.

According to SEPTA's internal documents, significant percentages of incumbent officers of all ranks have failed SEPTA's physical fitness test.⁶ By 1996, however, 86% of incumbent officers reached SEPTA's physical fitness standards. SEPTA has never taken any steps to determine whether incumbent officers who have failed the physical fitness test have adversely affected SEPTA's ability to carry out its mission.

SEPTA has promoted incumbent officers who have failed some or all of the components of the physical fitness test. SEPTA has also given special recognition, commendations, and satisfactory performance evaluations to incumbent officers who have failed the physical fitness test. SEPTA has never disciplined, terminated, removed, reassigned, suspended or demoted any transit officer for failing to perform the physical requirements of the job.

In addition, due to a clerical error, SEPTA hired a female officer in 1991 who failed the 1.5 mile run. This officer has subsequently been "decorated" by SEPTA and has been nominated repeatedly for awards such as Officer of the Year and Officer of the Quarter. SEPTA has commended her for her outstanding performance as a police officer and has chosen her to serve as one of SEPTA's two defensive tactics instructors.

SEPTA employs an extremely low number of women in its transit police force. The District Court found that, as of July 1997, SEPTA employed only 16 women in its 234 member police force. Only two of these women hold ranks higher than that of patrol officer. See Lanning, 1998 WL 341605 at *27.

B.

On January 28, 1997, after satisfying all administrative prerequisites, five women who failed SEPTA's 1.5 mile run brought a Title VII class action against SEPTA on behalf of all 1993 female applicants, 1996 female applicants and future female applicants for employment as SEPTA police officers who have been or will be denied employment by reason of their inability to meet the physical entrance requirement of running 1.5 miles in 12 minutes or less. On February 18, 1997, the Department of Justice, after conducting the appropriate...