Hopp v. The City of Pittsburgh

• Decision Date: 27 May 1999
• Docket Number: Nos. 98-3411,98-3427,s. 98-3411
• Citation: 194 F.3d 434
• Parties: (3rd Cir. 1999) MICHAEL HOPP; LAWRENCE T. SKINGER; CHARLES S. KNOX; BRIAN E. DAYTON; MARK JOYCE; HARRY R. LUTTON; JOHN E. SHAMLIN, v. THE CITY OF PITTSBURGH; THE CIVIL SERVICE COMMISSION OF THE CITY OF PITTSBURGH ROBERT T. GROSS; DONALD J. HAMLIN; MICHAEL HOPP; JOSEPH M. DINNIEN, v. THE CITY OF PITTBURGH The City of Pittsburgh; The Civil Service Commission of the City of Pittsburgh, Appellants Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 434

194 F.3d 434 (3rd Cir. 1999)

MICHAEL HOPP; LAWRENCE T. SKINGER; CHARLES S. KNOX; BRIAN E. DAYTON; MARK JOYCE; HARRY R. LUTTON; JOHN E. SHAMLIN, v. THE CITY OF PITTSBURGH; THE CIVIL SERVICE COMMISSION OF THE CITY OF PITTSBURGH

ROBERT T. GROSS; DONALD J. HAMLIN; MICHAEL HOPP; JOSEPH M. DINNIEN, v. THE CITY OF PITTBURGH

The City of Pittsburgh; The Civil Service Commission of the City of Pittsburgh, Appellants

Nos. 98-3411, 98-3427

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued: May 27, 1999

Decided October 14, 1999

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 93-00351) (D.C. Civil No. 93-01009) District Judge: The Honorable Maurice B. Cohill, Jr. [Copyrighted Material Omitted] Jaqueline R. Morrow Randall C. Marshall (argued) City of Pittsburgh Department of Law 313 City County Building Pittsburgh PA 15219, for Appellants.

Samuel J. Cordes (argued) Ogg, Jones, Cordes & Ignelzi 245 Fort Pitt Blvd. Pittsburgh PA 15222, Attorney for Appellees.

Before: GREENBERG and ALITO, Circuit Judges, and DOWD, District Judge^*

OPINION OF THE COURT

ALITO, Circuit Judge:

Nine police officers brought this employment discrimination action against the City of Pittsburgh. The jury returned a verdict in favor of the plaintiffs, and judgment was entered accordingly. For the reasons explained below, we affirm.

I.

In 1992, the City of Pittsburgh (the "City") offered an early retirement incentive to its police officers. This incentive permitted any officer who was 50 years old and had completed 25 years of service to retire with a monthly pension benefit equal to 75% of his or her average monthly pay if the employee retired by December 31, 1995. Nearly 50% of the City's police force qualified for the benefit.

Recognizing that the usual process of selecting police officers took well over a year, the City began to develop plans to replace the large number of experienced police officers that it was about to lose to early retirement. To that end, the City enacted an ordinance--which later became known as "Ordinance 26"--that authorized the City to hire certified, experienced police officers without following the procedures outlined in Pennsylvania's General Civil Service Statute, 53 Pa.C.S.A. S 23431 et seq., or the Policemen's Civil Service Statute, 53 Pa.C.S.A. S 23531 et seq. Perhaps most significantly, Ordinance 26 authorized the City to hire experienced police officers without ranking applicants on eligibility lists through civil service testing.

The Fraternal Order of Police challenged the validity of Ordinance 26 in the Court of Common Pleas of Allegheny County, arguing that it violated Pennsylvania law. Fraternal Order of Police v. City of Pittsburgh, 644 A.2d 246 (Pa. Commw. Ct. 1994). The court agreed and issued an order enjoining the City from hiring certified police officers under Ordinance 26 unless those officers were ranked after competitive testing.

Although the City appealed this order and ultimately prevailed on appeal, it had an urgent need to hire experienced police officers to replace the retiring officers. Rather than waiting for the appeal to be resolved, the City complied with the order and administered a written examination to all of the officers who had applied for positions under the provisions of Ordinance 26.

The City, however, was concerned that ranking applicants according to their performance on a written examination, as required by the court order, might unfairly prejudice African-American applicants. In response to this concern, the mayor and the city council adopted a new hiring procedure designed to give the City "greater flexibility in creating a police force that reflect's (sic) our overall population." App. at 1113.

The new hiring procedure, like the one it replaced, required applicants to take a written examination. As before, the City ranked applicants according to their performance on the written examination and anticipated extending offers of employment according to each applicant's rank. The new procedure, however, added a new component to the application process; it required applicants to take an oral examination.

The oral examinations were administered by various three-member panels appointed by the Police Bureau of the City's Department of Public Safety. The oral examination panels scored each applicant on a pass/fail basis. Any applicant could be eliminated from consideration, regardless of his or her performance on the written examination, if the panel determined that the applicant "failed" the oral examination. The oral examination panels did not ask a pre-determined series of questions, or even follow a routine set of procedures, in administering the exam.¹ In effect, therefore, each panel had complete and unreviewable discretion to decide who, among the otherwise-qualified applicants, would become eligible to receive offers of employment from the City.

Applicants who passed both examinations were considered "certified" for employment as police officers. Their names, along with information about their written examination ranking, race, and gender, were then presented to the City's Director of Public Safety. The Director of Public Safety hired applicants according to rank. However, the Director had complete discretion to "undercut" any applicant who had been certified for employment, regardless of that applicant's rank.

The plaintiffs are nine white police officers who performed well on the written examination but were denied employment after failing the oral examination. They brought this action pursuant to 42 U.S.C. SS 1981 and 1983, alleging that the City had discriminated against them on the basis of race. Specifically, they alleged that the City had used its new hiring procedure, and particularly the oral examination, to discriminate against white applicants.

Several weeks before trial, the City filed a motion for summary judgment, arguing that the plaintiffs had insufficient evidence to prove that they had been subjected to racial discrimination. The District Court denied that motion. The Court concluded that the plaintiffs had made out a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and the Court stated that the City had not "put forth evidence of a legitimate, nondiscriminatory reason for the failure to hire, or why the plaintiffs failed the oral portion of the test." 6/1/98 Tr. at 3. In addition, the Court stated that there was "sufficient evidence that the proffered reasons [were] a pretext." Id.

During the jury selection process, the City questioned why the plaintiffs used one of their peremptory challenges against an African-American on the jury panel. After considering the reasons offered by plaintiffs for striking the potential juror, the District Court concluded that the peremptory challenge was nondiscriminatory. The City made no further objection.

At the conclusion of plaintiffs' case at trial, the City moved for judgment as a matter of law pursuant to Fed. R. Civ. P. 50, arguing that the plaintiffs had not introduced sufficient evidence to support their claim of racial discrimination. The City renewed that motion at the close of all of the evidence. The District Court denied the motion in both instances.

During the jury charge conference, the plaintiffs offered-as a means to simplify the jury instructions--to permit the case to go to the jury using only the liability standard applicable under 42 U.S.C. S 1981. At that time, the City asked the Court to instruct the jury that Pittsburgh could be found liable only if the alleged discrimination was carried out pursuant to a policy, practice, or custom adopted by the City. The District Court denied that request.

Following trial, the jury found that the City had discriminated against each plaintiff on the basis of his race and awarded back pay. The District Court also awarded the plaintiffs prejudgment interest, costs, and attorney fees, and ordered the City to offer the plaintiffs employment as police officers, contingent upon their successful completion of a physical and psychological examination. In addition, the Court ordered the City to provide front pay until the plaintiffs were either offered employment or failed their physical or psychological examinations. The City appealed.

II.

The City raises five arguments on appeal. We will discuss each in turn.

A. First, the City argues that the judgment should be reversed because the District Court erred in applying the McDonnell Douglas burden-shifting framework. Specifically, the City maintains that because the plaintiffs are white males, the District Court should have required them "to meet a heightened standard in making out a prima facie case."² Br. for Appellant at 19.

At this juncture, however, the City's argument is foreclosed by United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-15 (1983). As the Eleventh Circuit has put it, under Aikens," `[w]hen the defendant fails to persuade the district court to dismiss the action for lack of a prima facie case, and responds to the plaintiff 's proof by offering evidence of the reason for the plaintiff 's rejection the factfinder must then decide whether the rejection was discriminatory' and the question whether the plaintiff made out a prima facie case is no longer relevant." Tidwell v. Carter Products, 135 F.3d 1422, 1426 n.1 (11th Cir. 1998) (quoting Aikens, 460 U.S. at 714-15); see also J.A. Beaver v. Rayonier, Inc., 188 F.3d 1278, 1284-85 (11th Cir. Sept. 13, 1999).

B. Second, the City argues that the District Court erred in denying the City's Rule 50 motion because the jury's finding of intentional racial discrimination was not supported by the evidence.³ We must affirm unless we find that the record is critically deficient of that minimum quantity of evidence from which a jury might reasonably afford relief. See Link v. Mercedes-Benz of North America, Inc., 788...