Freeman v. City of Philadelphia

• Decision Date: 16 October 1990
• Docket Number: Civ. A. No. 90-2356.
• Citation: 751 F. Supp. 509
• Parties: Thomas FREEMAN, Jr., Michael E. Jordan, Rodney Ladson, individually and on behalf of all others similarly situated, and the Guardian Civic League, Inc. v. CITY OF PHILADELPHIA, Orville W. Jones, in his official capacity as the duly appointed Personnel Director for the City of Philadelphia, Fraternal Order of Police, Lodge No. 5, and Joseph Campana.
• Court: U.S. District Court — Eastern District of Pennsylvania

751 F. Supp. 509

Thomas FREEMAN, Jr., Michael E. Jordan, Rodney Ladson, individually and on behalf of all others similarly situated, and the Guardian Civic League, Inc. v. CITY OF PHILADELPHIA, Orville W. Jones, in his official capacity as the duly appointed Personnel Director for the City of Philadelphia, Fraternal Order of Police, Lodge No. 5, and Joseph Campana.

Civ. A. No. 90-2356.

United States District Court, E.D. Pennsylvania.

October 16, 1990.

Michael Churchill, Public Interest Law Center of Philadelphia, Philadelphia, Pa., for plaintiffs.

Frank Finch, III, Ralph J. Teti, Susan Shinkman, Chief Deputys, Sp. Litigation, Law Dept., City of Philadelphia, Philadelphia, Pa., for defendants.

MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

The individual plaintiffs, along with defendants City of Philadelphia and its Personnel Director (City defendants), seek judicial approval of a proposed Consent Order designed to settle this action, which assails as racially discriminatory the City's written examination for police officer recruits. The Court convened a hearing on September 12, 1990 to consider whether the settlement is fair, adequate, and reasonable. For the reasons that follow, the Court will approve the proffered Consent Order.

I.

To obtain the Philadelphia civil service position of police officer recruit, a person must satisfy various requisites. An applicant must be between eighteen and thirty-six years old, be a high school graduate or equivalent, and have been a Philadelphia resident for at least one year. A written pre-employment examination, periodically administered, serves as the initial screening device. The City establishes an eligibility list, which, based on raw exam scores, arranges candidates in numerical order from the highest passing score to the lowest passing score. Only those who are certified on this rank-order list and who obtained a sufficiently high ranking in light of the number of positions open receive further consideration. Medical and psychiatric evaluations, drug tests, polygraph examinations, and background investigations follow. Applicants who navigate all these requirements then enter a graded nineteen-week training program at the Police Academy. After graduation from the Academy and upon the expiration of an on-the-job probationary period, police recruits become officers. At this time, approximately twenty-two percent of all police officers are black.

For a full understanding of the context of this litigation, one must look to two prior suits in which minority groups challenged the hiring, screening, and promotion procedures utilized by the Philadelphia Police Department. In 1970, classes of black plaintiffs instituted a broad-based attack on the Police Department's employment practices. Some two years after the suit was initiated and after extensive hearings, the district court held that the then-used entrance examination had a disparate impact upon blacks and was not validated as job-related. Commonwealth of Pennsylvania v. O'Neill, 348 F.Supp. 1084 (E.D.Pa.1972), aff'd in part, 473 F.2d 1029 (3d Cir.1973). In consequence, the City sought the assistance of Educational Testing Service (ETS) to create and validate a new written exam. Several more rounds of litigation, focusing on other dimensions of the hiring and promotion process, ensued. Fourteen years after the action was brought, the parties finally submitted, and the court approved, a consent decree. The consent decree committed the defendants to continue retention of ETS (or a similar organization) for purposes of developing a non-discriminatory examination. 100 F.R.D. 354, 362 (E.D.Pa. 1983), aff'd mem., 746 F.2d 1465 & 1466 (3d Cir.1984). It also provided that the City, in order to correct the disparate effects of the entrance test, would hire a specified number of black applicants, in addition to those selected in rank order. Id. at 357.

Beginning in 1977, classes of Hispanic applicants charged that the City's written exam, prepared with the help of ETS and administered in 1975 and 1978, contravened federal and state law because it discriminated against them. Alvarez v. City of Philadelphia 98 F.R.D. 286, 288 (E.D.Pa. 1983). The Alvarez court heard considerable expert testimony about the ability of the tests to predict future performance, but, before the court rendered a decision, the parties entered into a consent decree, which was approved on May 21, 1984. The order bound the City to hire a certain number of Hispanic officers and to expend its best efforts to utilize a non-discriminatory examination.

The plaintiffs in this case assert that Philadelphia's current written examination for the position of police officer recruit unlawfully discriminates against blacks in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-1 et seq., the Civil Rights Act of 1871, 42 U.S.C. § 1983, and the Civil Rights Act of 1866, 42 U.S.C. § 1981. In their complaint, they sought, among other forms of relief, a permanent injunction barring use of the ostensibly illegal test. The Court permitted the Fraternal Order of Police (FOP) and Joseph Campana to intervene as party-defendants.

The plaintiffs and the City subsequently filed a joint motion for class action certification. By Order dated July 17, 1990, the Court certified two plaintiff classes. The first class, represented by Thomas Freeman, Jr. and Rodney Ladson, encompasses all Afro-American applicants for the police officer recruit position who had failed the written examination given on December 16, 1989 or June 23, 1990. The second group of plaintiffs, represented by Michael E. Jordan, includes all Afro-American applicants for police officer recruit who received passing scores on the December or June test, but who, because of the City's utilization of a rank-order eligibility list were not selected for appointment to the first classes of police officer recruits.

At the same time, because the plaintiffs and the City defendants had submitted a proposed Consent Order, the Court approved a notice of hearing on the proposed settlement pursuant to Federal Rule of Civil Procedure 23. The notice summarized the terms of the proffered Consent Order, stated that the Court had scheduled a hearing to consider its appropriateness, and allowed any individual "affected" by its terms to file written comments in support of or in opposition to the Consent Order. The notice was mailed to all identified persons who took the December 16th or June 23d examination and was published in three newspapers with large circulations in the Philadelphia area.

II.

The proposed Consent Order forbids the City from certifying an eligibility list based on written exam scores if black applicants have a pass rate statistically significantly lower than the racial group having the highest pass rate or if the percentage of blacks in the top one thousand test-takers on the eligibility list is statistically significantly less than the percentage of blacks who pass the test. The City may utilize such a list only if the Court finds after a hearing that the test and its scoring method validly predict future job performance or if the City appoints black applicants to the police recruit position at least at the same rate as the percentage of blacks who take the test. This latter stricture applies, however, only if the examination is, as now, given on a periodic basis. In the event the City adopts a process of continuous testing, the appointment rate of blacks to the police officer recruit position will be based on the percentage that black test-takers are of all test-takers during the preceding six months.

The Consent Order obliges the City to solicit and evaluate proposals for a new police officer recruit exam which minimizes adverse impact on nonwhites and which can be validated. For each test given, the City must conduct at least one session to assist prospective applicants in preparing for it. The Consent Order also contains several reporting requirements.

At the hearing and by way of supplemental materials,¹ evidence was introduced in support of the settlement. The plaintiffs' theory of the case is that the written examination, though a facially neutral screening device, has a statistically significant and unjustifiable disparate impact on blacks. There is no doubt that Title VII reaches employment practices that are "fair in form, but discriminatory in operation," Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971), even without proof of racial animus behind their use. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, ___, 109 S.Ct. 2115, 2118-19, 104 L.Ed.2d 733 (1989); Washington v. Davis, 426 U.S. 229, 246-47, 96 S.Ct. 2040, 2051, 48 L.Ed.2d 597 (1976). Indeed, Congress, in promulgating the 1972 amendments to Title VII, specifically extended the Act to protect minorities against written examinations that create artificial barriers to job opportunities in state and municipal governments. Connecticut v. Teal, 457 U.S. 440, 448-49, 102 S.Ct. 2525, 2531-32, 73 L.Ed.2d 130 (1982). An employer may continue to utilize a job criterion which has a detrimental effect on members of a particular racial group, however, if it is justified by business necessity, that is, if the criterion is "`predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.'" Albemarle Paper Co. v. Moody, 422 U.S. 405, 431, 95 S.Ct. 2362, 2378, 45 L.Ed.2d 280 (1975) (quoting EEOC Uniform Guidelines, 29 C.F.R. § 1607.4(C)). Accord Croker v. Boeing Co., 662 F.2d 975, 991 (3d Cir.1981) (in banc). Even so, a plaintiff still may prevail if "he shows that the employer was using the exclusionary practice as a mere pretext for discrimination," Teal, 457 U.S. at 447, 102 S.Ct. at 2530, by demonstrating, for example, that other procedures, "without a similarly...