Commonwealth of Pennsylvania v. O'NEILL

• Decision Date: 08 February 1973
• Docket Number: 72-1614.,No. 72-1613,72-1613
• Parties: COMMONWEALTH OF PENNSYLVANIA et al. (Intervenors Plaintiffs), Guardian Civic League (Intervenor Plaintiff), v. Joseph F. O'NEILL et al., Appellants in No. 72-1614. Appeal of FRATERNAL ORDER OF POLICE et al., Defendants-Intervenors, in No. 72-1613.
• Court: U.S. Court of Appeals — Third Circuit

473 F.2d 1029 (1973)

COMMONWEALTH OF PENNSYLVANIA et al. (Intervenors Plaintiffs), Guardian Civic League (Intervenor Plaintiff), v. Joseph F. O'NEILL et al., Appellants in No. 72-1614 Appeal of FRATERNAL ORDER OF POLICE et al., Defendants-Intervenors, in No. 72-1613.

Nos. 72-1613, 72-1614.

United States Court of Appeals, Third Circuit.

Argued August 28, 1972.

Submitted for Rehearing January 3, 1973.

Decided February 8, 1973.

A. Charles Peruto, James M. Penny, Jr., Sheldon L. Albert, Martin Weinberg, Philadelphia, Pa., for appellants in Nos. 72-1613 and 72-1614.

Henry W. Sawyer, III, Andrew S. Price, Harold I. Goodman, Robert J. Reinstein, F. John Hagele, Robert P. Vogel, Stephen C. Miller, Philadelphia, Pa., for appellees in Nos. 72-1613 and 72-1614.

George H. Weiler, III, Washington, D. C., for amicus curiae, Equal Employment Opportunity Commission in Nos. 72-1613 and 72-1614.

Before SEITZ, Chief Judge, and ALDISERT, ADAMS, GIBBONS, MAX ROSENN and HUNTER, Circuit Judges.

Submitted for Rehearing before the Court En Banc January 3, 1973.

OPINION OF THE COURT

PER CURIAM:

The defendants appeal from an order dated July 7, 1972 granting a preliminary injunction pending final hearing. 348 F.Supp. 1084 (E.D.Pa.1972). The complaint challenges the hiring and promotion procedures of the Police Department of the City of Philadelphia as violative of the Civil Rights Acts. 42 U.S. C. §§ 1981-1983. The alleged violations involve discrimination in hiring black applicants and in promoting black police officers. After a hearing the district court entered the order appealed from, which granted interim injunctive relief both with respect to hiring procedures and with respect to promotion procedures.

The court being equally divided with respect to the provisions of the order dealing with hiring procedures, the order will in those respects be affirmed.

With respect to the promotion procedures, the district court directed that no promotions be made pursuant to the existing procedure unless the Police Department promoted at least one black officer for every two white officers. It found that the "written examination for promotion . . . plays a significant role in determinations of eligibility and eliminates a disproportionate number of blacks." 348 F.Supp. at 1101 (emphasis omitted). In reviewing the evidence, however, the district court revealed that its finding of disproportionate disqualification was based upon the following unrebutted statistical evidence concerning passing rates on three promotion examinations:

                White Black
                   "Test Pass Rate Pass Rate
                Sergeant             18.4%         11.7%
                Detective            27.2%         17.7%
                Corporal             36.2%         23.8%"
                

Id. Immediately following the reproduction of this table upon which the district court apparently based its finding of disproportionate disqualifications, the trial judge stated: "There is no evidence as to the statistical significance of...