Krupa v. New Castle County

• Decision Date: 15 March 1990
• Docket Number: Civ. A. No. 87-88 LON.
• Citation: 732 F. Supp. 497
• Parties: David KRUPA, Philip J. Kempista, James Leonard, Edward Maxwell and Andrew Miller, on behalf of all other similarly situated persons, Plaintiffs, v. NEW CASTLE COUNTY, Defendant.
• Court: U.S. District Court — District of Delaware

732 F. Supp. 497

David KRUPA, Philip J. Kempista, James Leonard, Edward Maxwell and Andrew Miller, on behalf of all other similarly situated persons, Plaintiffs, v. NEW CASTLE COUNTY, Defendant.

Civ. A. No. 87-88 LON.

United States District Court, D. Delaware.

March 15, 1990.

Gary W. Aber, of Heiman, Aber & Goldlust, Wilmington, Del., for plaintiffs.

James J. Sullivan (argued), Alfred J. D'Angelo, Jr., Raymond A. Kresge and Robert H. Barron of Pepper, Hamilton & Scheetz, Wilmington, Del., for defendant.

OPINION

LONGOBARDI, Chief Judge.

The Plaintiffs, David Krupa, Philip Kempista, James Leonard, Edward Maxwell and Andrew Miller (collectively the "Plaintiffs"), filed a complaint alleging that New Castle County ("County"), through its police department by whom they were employed as patrolmen, had discriminated against them on the basis of their race. Docket Item ("D.I.") 1, 6. The amended complaint asserts that the County violated the equal protection and due process clauses of the Fourteenth Amendment to the Constitution; the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981;¹ the Civil Rights Act of 1871, as amended, 42 U.S.C. § 1983² and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2000e-17 (1982) ("Title VII"),³ when it promoted a black male to the position of sergeant instead of one of the Plaintiffs. The complaint also alleges that the Plaintiffs were denied a protected property interest in a merit based promotional procedure in violation of the Due Process Clause of the Fourteenth Amendment to the Constitution and section 1983.

The County moved for summary judgment. At oral argument, the Court, with the permission of the Defendant, permitted the Plaintiffs to file a cross-motion for summary judgment. The parties have submitted 58 separate stipulations of fact. D.I. 43. The County and the Plaintiffs have also submitted facts as to which agreement could not be reached. See D.I. 43, Exhibits ("Ex.") A and B respectively.⁴ The issues before the Court on these cross-motions for summary judgment are whether the County has violated the Plaintiffs' constitutional and statutory rights by its utilization of an affirmative action plan which considered race in the promotional process.

I. FACTUAL BACKGROUND⁵

The County, a municipality organized under the laws of Delaware, maintains a police department ("Police Department"). Unless otherwise indicated, the Plaintiffs were at all relevant times employed as patrolmen by the Police Department. The position of patrolman (also referred to as "sworn officer" or "police officer") is the entry level position for newly sworn officers. In order to be qualified to become a police officer, an applicant must have completed high school or have a G.E.D. equivalency; be 21 years of age; be of good moral character and physical condition; have height and weight in proper proportion; possess a valid Delaware Class A drivers license or its equivalent; and prior to September, 1988, be a resident of the County at the time of the application. After serving for 12 years, a patrolman is automatically promoted to the next highest rank, corporal.⁶

Patrolmen have the opportunity to seek promotion to "command positions." The command positions in hierarchical order are: sergeant, lieutenant, captain, major and chief. The promotional policies of the Police Department are governed by the provisions of 9 Del.C. § 1451 which provides, inter alia, that promotions be based "... according to competency and fitness, to be ascertained when possible by competitive examination...." On September 21, 1983, the County and the Fraternal Order of Police, New Castle County Lodge No. 5 (the Plaintiffs' collective bargaining agent) entered into an agreement that set forth, inter alia, that a merit system be utilized by the County in compliance with 9 Del.C. § 1451.⁷ D.I. 43, ¶ 10.

The Police Department's Affirmative Action Plan provides:

Goal # 2—New Castle County Police will promote minorities and/or females to supervisory positions provided that they qualify in the same manner as other candidates for the promotion to supervisory positions and provided there is a validated promotional instrument to be used.

Timetable — July, 1981, and ongoing as the opportunity or vacancy becomes available.

Responsibility — Chief of Police and Director of Personnel.

D.I. 43, ¶ 11 (emphasis added). Section 1183(a)(1) of Title 9 of the Delaware Code provides, inter alia, that "no person shall be ... in any way favored or discriminated against with respect to, any county position ... because of race, or color, or national origin, or political, or religious opinions or affiliations."

Applicants for the sergeant's position are required to have a minimum of 3 years of experience as a sworn officer. Additionally, applicants must undergo a competitive promotional process which includes a validated examination.⁸ It is content neutral and designed to test expected job performance in patrolmen seeking promotion. The purpose of the validated testing process is to identify the most qualified applicant for the command position sought. The applicant's total score consists of two parts: 95% of the score was based on 3 equally weighted parts — a written examination, an oral interview conducted by a superior officer and a performance rating based upon the prior year; and 5% of the score is based upon seniority. The test results are tallied and an overall score is obtained. The applicants are then ranked and "banded" at natural scoring breaks based on the overall score. Each scoring band contains applicants who are considered equally capable candidates.⁹

When a sergeant's position becomes available, only those applicants who are in the top or first band are certified by the County for promotional consideration. Individuals in the next lower bands will be certified if a promotion becomes available and there are less than 3 individuals on the certification list. It is stipulated by the parties that even those individuals who are not in the top band, and therefore not certified, are also deemed "qualified" for the sergeant's position. If no member of a protected class (defined to include minorities, the handicapped and women) is on the certified list (put another way, if no member of these groups scored in the top band), then the 3 highest ranking members of the protected class from a lower band are added to the certification list. Once gathered, the list of certified candidates is submitted to the County Director of Public Safety and the Police Department Chief for a final determination regarding promotion. In this particular situation, the Chief had the discretion to choose any one of those individuals on the certified list.

The Plaintiffs took part in the 1984 testing procedure for the position of sergeant. At that time there were 6 minorities who were eligible to take the examination. Eighty-five individuals passed the examination. When the scores were broken into rank order and banded, there were 10 individuals in band 1 (including each of the 5 Plaintiffs), 34 individuals in band 2, 24 individuals in band 3 (including Officer Bryant, the minority person who received the sergeant's position at issue), 14 individuals in band 4, and 3 individuals in band 5. Since there were no members of the protected class in band 1, protected class members from lower bands were added to the certification list.¹⁰ Three sergeants' positions were filled from this certification list. Two positions went to white males who had originally scored in band 1. The third position went to Officer Bryant, a black male, who had scored in band 3 and was actually somewhere between 45th and 69th on the list.¹¹ Chief McCarnan, the County Police Chief, testified that he selected Officer Bryant primarily because of his experience in the areas of independent undercover investigations, his educational background and training and his overall superior qualifications. D.I. 18, Ex. B, ¶ 12. At his deposition, Chief McCarnan testified that in making his selection he treated those members of the protected class who were moved up into the certified list as if they were from band 1. He also ignored the fact that the validated testing process demonstrated that those who scored in band 1 were more qualified than those placed in lower bands. See supra, n. 9.

A. Alleged Evidence of Historical Underrepresentation of Minorities in the County Police Force

The County Police Department hired its first minority into a sworn officer position in 1969. D.I. 18, Ex. B, ¶ 15. Prior to 1976, only one minority was eligible for and took the sergeant's examination. As of September, 1984, the County Police Department consisted of 198 sworn officers. Of that number, 16 (approximately 8%) were minorities. Sworn officers in command positions of sergeant or above accounted for 47 officers, 30 of these positions were of the rank of sergeant. None of the positions above sergeant were held by minorities, while 2 (6.6%) of the 30 sergeants positions were held by minorities.

General population statistics from the United States Department of Commerce, Bureau of the Census, reported in the 1980 census that 16.94% of the residents of the County were non-white minorities. U.S. Bureau of the Census, County and City Data Book (1983) at 74.¹² D.I. 18 at 8 n. 8. The Delaware Department of Labor, Office of Occupational and Labor Market Information, reported in its 1985 census update that 15.2% of the civilian labor force consisted of minorities. Office of Occupational and Labor Market Information, Del. Dep't of Labor, Report C: Labor Market Information For Affirmative Action Compliance Planning, Delaware 1985 Update at 11 (1986).¹³ D.I. 18 at 8 n. 9.

B. Discrimination Complaints and Suits Against the County by Minority Police Officers

Several charges of racially motivated employment discrimination had been brought against the County and its Police Department in the late 197...