Commonwealth of Pennsylvania v. O'NEILL

• Decision Date: 30 September 1972
• Docket Number: Civ. A. No. 70-3500.
• Citation: 348 F. Supp. 1084
• Parties: COMMONWEALTH OF PENNSYLVANIA et al., Plaintiffs, v. Joseph F. O'NEILL et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

348 F. Supp. 1084

COMMONWEALTH OF PENNSYLVANIA et al., Plaintiffs, v. Joseph F. O'NEILL et al., Defendants.

Civ. A. No. 70-3500.

United States District Court, E. D. Pennsylvania.

July 7, 1972.

On Motion for Modification September 22, 1972.

On Motion for Stay September 25, 1972.

Memorandum September 29, 1972.

Memorandum on Answers to Inquiries September 30, 1972.

COPYRIGHT MATERIAL OMITTED

F. John Hagele, Robert P. Vogel, Robert Reinstein, Henry W. Sawyer, III, Amy F. Davis, Philadelphia, Pa., for plaintiffs.

John M. McNally, Jr., Murray C. Goldman, James M. Penny, Jr., Philadelphia, Pa., for defendants.

A. Charles Peruto, Philadelphia, Pa., for Fraternal Order of Police, intervenor.

FINDINGS OF FACT

FULLAM, District Judge.

I. Background

The Commonwealth of Pennsylvania and several black citizens of Philadelphia, representing a class of black police officers and unsuccessful applicants for positions in the Philadelphia Police Department, brought this action against the City and certain of its officials, alleging that the Police Department's hiring and promotion practices discriminate unconstitutionally against blacks. The action was commenced in December 1970. After extensive discovery, requiring several applications to the Court, the plaintiffs moved in April 1972 for preliminary relief.

Five and one-half days of hearing were held, at the conclusion of which, on May 26, 1972, I entered an interim order temporarily restraining the defendants from hiring any policemen except as required to fill vacancies which existed on March 1, 1972. In hiring to fill such vacancies, the defendants were required to hire at least one black applicant for every two white applicants. 345 F.Supp. 305. Defendants have appealed from this order, and in the interim have decided not to conduct any hiring. On June 8, the Court of Appeals denied defendants' application for a stay of the order; the appeal is still pending. The May 26 order did not affect promotions, partially in reliance upon the representation of counsel for defendants that only 14 promotions were contemplated. During the week of June 12, defendants promoted 56 policemen. Plaintiffs moved for an injunction against further promotions pending a decision on the motion for preliminary injunction, and for an order requiring defendants to rescind all 56 promotions except those which complied with the one black to two white standard previously set forth for hiring. On June 15, I denied plaintiffs' motion, except to the extent of enjoining further promotions beyond the additional 16 which were then represented by counsel for defendants to be contemplated and deemed necessary. The principal reason for this result was that, by happenstance, all promotions and proposed promotions after the initial group of 30 (i. e., the additional 26 already promoted and the 16 proposed) included nearly one-third blacks.

Applicants for positions in the Police Department must undergo a four-step elimination procedure, consisting of a written examination, a physical and psychiatric examination, and a background investigation and evaluation. Plaintiffs challenge the first and last steps, contending that (a) the written examination eliminates a disproportionate number of blacks and has not been shown to be a valid predictor of performance as a policeman, and (b) the background investigation has a similar discriminatory effect, as a result of the selection of negative factors which are deemed disqualifying, and of the discriminatory application of these factors. With respect to promotions, a three-factor rating (written examination, seniority, supervisor's performance rating) is employed in selecting among applicants for promotion up to lieutenant; for higher ranks, those three factors are combined with an oral examination. Plaintiffs allege that the written examination operates discriminatorily, and does not predict subsequent job performance.

II. Hiring—Overall Statistics

The percentage of persons hired as police officers who are black has declined from 1966 to 1970 as follows:

                                          PERCENTAGE
                   YEAR                     BLACK   
                   1966                     27.5%
                   1967                     25.3
                   1968                     15.3
                   1969                     11.2
                   1970                      7.7
                

The result has been a decline in the proportion of police officers who are black.

                                          PERCENTAGE
                   YEAR                     BLACK   
                   1967                     20.8%
                   1968                     20.7
                   1969                     20.1
                   1970                     18.6
                   1971                     18.0
                

Defendants submitted evidence demonstrating that the proportion of blacks in the Philadelphia Police Department compares favorably with those in many other cities. Plaintiffs submitted evidence demonstrating that this proportion compares unfavorably with those in other city agencies in Philadelphia, and that, notwithstanding a substantial increase in the size of the police force, the actual number of black policemen has been declining in recent years.

III. Hiring—Written Examination

A. Discriminatory Effect

Comparison of the passing rates of blacks and whites is the most effective means of determining whether the written examination disqualifies a disproportionate number of black applicants. However, there is no official record from which to derive the statistics necessary to construct such a comparison, and the parties are unable to agree on the figures. Accordingly, plaintiffs submitted evidence from which initial statistical findings could be made.

1. Approximately 35% of all persons who take the written examination for positions in the Police Department are black.

The City of Philadelphia is forbidden by state law to maintain records of the race of applicants who take the written examination. Plaintiffs therefore made several studies on which to base an estimate of the actual racial percentages among applicants; all of these studies indicate that approximately 35% to 40% of the applicants are black.

One, a study made by William Powe, a graduate student at the University of Pennsylvania, ascertained that 38% of applicants were black. Because Mr. Powe did not himself make the determinations of race, and because the individual who did, presumably, relying on his purported expertise, did not testify, I cannot give any independent weight to this figure; however, since it is close to the other approximations presented by plaintiffs, it tends to corroborate their accuracy.

In the course of his study, Mr. Powe interviewed Richard Garlatti, Director of Recruiting for the City of Philadelphia, who advised him that the City "does not have a problem in recruiting blacks to take the police test." (N.T. 36.) Mr. Garlatti also testified to his "guesstimate" that 40% of all applicants are black. (N.T. 202.)

Finally, Dr. Bernard R. Siskin, Assistant Professor of Statistics at Temple University and one of plaintiffs' experts, conducted a study in which he matched the addresses of a random sample of one-fourth of all applicants in 1969 and 1970 with the appropriate census block. Assuming that the likelihood that a particular applicant was black corresponded to the proportion of blacks in the census block (utilizing 1970 figures), Dr. Siskin concluded that 34.7% of all applicants were black. Defendants challenge the accuracy of the assumption underlying the use of the technique, arguing that blacks do not necessarily apply to become policemen in the same proportions as their number in the population, and Dr. Siskin admitted that the "non-statistical bias" could detract from the accuracy of his result. (N.T. 245.) But the defendants have made no effort to demonstrate that the census-block approach cannot validly be applied. If this contention were true, a survey of a sample of Dr. Siskin's sample for which race is known or ascertainable might demonstrate the invalidity of his method. One of defendants' experts, Dr. Erwin Taylor, testified:

"I would say that in the so-called black ghetto where you would find very few whites, the likelihood of black applicants would be much lower than their representation in the population. I would say in some middle-class mixed neighborhoods it might be higher." (N.T. 539.)

This contention (unsupported by evidence) tends to support the use of a census-block technique. In the ghettos, where black populations may approach 100%, use of this method almost surely provides accurate results: if a block is 100% black, any applicant from the block will be black. In the integrated blocks, where there is more room for error, Dr. Taylor's statement, if true, allows the plaintiffs to place somewhat greater confidence than otherwise possible in the assumption that blacks apply in proportion to their proportions in the population of a block. Moreover, other statistics in evidence tend to support the accuracy of 34.7% as a rough figure, perhaps even conservative in its estimate of black percentage. In 1969 and 1970, 2,027 whites and 586 blacks underwent background investigations; 22.4% of the total was black.¹ (P-4, p. A-2.) Assuming that equal percentages of blacks and whites failed the intervening physical and psychiatric examinations, or dropped out before the background stage,² 22.4% of those who passed the written exam were black. Assuming for the moment the accuracy of the estimate that 34.7% of the written test applicants were black, the passing rate among blacks is seen to be approximately 20.5%, rather than the 16.5% that Dr. Siskin estimated.³ Therefore, it is likely that Dr. Siskin's technique tended to undercount the blacks in the population studied; at minimum, allowing for statistical error, the foregoing supports Dr. Siskin's figure as reasonable.⁴

Finally, and very significantly, defendants have disclosed no attempt to develop their own estimate, despite adequate opportunity to do so. Dr. Taylor testified to his "best...