Oburn v. Shapp

• Decision Date: 04 August 1975
• Docket Number: 75-1190,Nos. 75-1189,s. 75-1189
• Citation: Oburn v. Shapp, 521 F.2d 142 (3rd Cir. 1975)
• Parties: 10 Empl. Prac. Dec. P 10,350 Robert Paul OBURN et al., Plaintiffs-Appellants, v. Milton SHAPP et al., Defendants-Appellees, William Bolden, III, and all minority applicants to and employees of Pennsylvania State Police, Intervening Defendants-Appellees. Donald LUTZ and Michael Warfel, Plaintiffs-Appellants, v. Milton SHAPP et al., Defendants-Appellees, William Bolden, III, and all minority applicants to and employees of Pennsylvania State Police, Intervening Defendants-Appellees.
• Court: U.S. Court of Appeals — Third Circuit

Page 142

521 F.2d 142

10 Empl. Prac. Dec. P 10,350

Robert Paul OBURN et al., Plaintiffs-Appellants, v.Milton SHAPP et al., Defendants-Appellees,William Bolden, III, and all minority applicants to andemployees of Pennsylvania State Police,

Intervening Defendants-Appellees.

Donald LUTZ and Michael Warfel, Plaintiffs-Appellants, v.Milton SHAPP et al., Defendants-Appellees,William Bolden, III, and all minority applicants to andemployees of Pennsylvania State Police,

Intervening Defendants-Appellees.

Nos. 75-1189, 75-1190.

United States Court of Appeals Third Circuit.

Argued May 2, 1975.

Decided Aug. 4, 1975.

Allan E. Ertel, William S. Kieser, Ertel and Kieser, Williamsport, Pa., Gordon W. Gerber, Gregory D. Keeney, Dechert, Price & Rhoads, Philadelphia, Pa., for plaintiffs-appellants.

Norman J. Watkins, Deputy Atty. Gen., Lawrence Clark, Asst. Atty. Gen., J. Andrew Smyser, Deputy Atty. Gen., Robert P. Kane, Atty. Gen., Dept. of Justice, Harrisburg, Pa., for defendants-appellees.

Harold I. Goodman, Cassandra M. Menoken, Mark B. Segal, Community Legal Services, Inc., Philadelphia, Pa., Robert J. Reinstein, Philadelphia, Pa., for intervening defendants-appellees.

Before FORMAN, VAN DUSEN and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge.

Despite the insistence of the parties that we reach the merits of "reverse discrimination", a most troublesome subject, we resist the invitation and instead address ourselves to the narrow issue that is before us: did the district court abuse its discretion in denying a preliminary injunction sought by the plaintiffs.The plaintiffs, white applicants, for the position of state trooper in Pennsylvania, assert that the defendants are discriminating against them by hiring members of minority groups ¹ through the use of racial quotas which exclude plaintiffs.Their application for preliminary injunction was denied by the district court.We hold that the district court did not abuse its discretion and therefore, we affirm the district court's denial of the preliminary injunction.

I.BACKGROUND

Admission to the Pennsylvania State Police is achieved by competitive selection procedures.Enlisted members of the State Police Force(state troopers) are appointed by the Commissioner of the Pennsylvania State Police, See71 P.S. § 65(1975 Supp.), after having first satisfied certain criteria and qualification standards established by statute, See71 P.S. § 1193(1962), and by the rules and regulations promulgated by the Commissioner, See71 P.S. § 251(1975 Supp.).The eligibility criteria currently in effect, and which were in effect when the individual plaintiffs in these appeals made employment application to the State Police, were established as interim standards ² under a Consent Decree.The Consent Decree was entered in Bolden, et al. v. Pennsylvania State Police, et al., C.A.No. 73-2604(E.D.Pa.June 21, 1974), an action alleging discrimination brought by a black against the Pennsylvania State Police.

The Bolden litigation sought to remedy the prior discriminatory (against minorities) employment and promotion policies of the Pennsylvania State Police.The Consent Decree, entered as a final judgment in Bolden, ³ establishes a temporary hiring goal for the State Police and revises the hiring procedures of the State Police pending the development of employment tests validated as being job related.Cf.Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158(1971).The hiring goal provides that from all qualified applicants eligible as state troopers, at least one-third of those selected for the State Police Academy shall be minorities.This hiring ratio of one-minority applicant for every two non-minority applicants is to be followed until 9.2% Of "the enlisted complement of the Pennsylvania State Police consists of minorities."⁴

As validated employment criteria have yet to be developed, the interim standards and procedures established in Bolden govern the selection of qualified applicants.An applicant must meet preliminary requirements ⁵ and have an initial interview before taking a written examination.See Bolden Consent Decree, P I.3.(a), (b);App.at 42-44.The interim written examination is administered and graded by the Pennsylvania Civil Service Commission("Commission").The Commission determines the passing score of the written examination.See Bolden Consent Decree, P I.3.(c);App. 44.

From among those who attain a passing score on the written examination, the State Police select applicants for "further processing."The selection of applicants proceeds in the order of the applicants' written test scores subject to the requirement that

". . . the State Police shall select for further processing as many applicants who passed the examination as are necessary to fill the projected cadet class And meet the minority hiring ratio. . . ."

Bolden Consent Decree, P I.3. (d)(1)(emphasis supplied);App.at 44.

Those applicants selected for further processing must pass a physical examination; an oral interview; and undergo a background investigation.Bolden Consent Decree, P I.3. (d)(3), (4) and (5);App.at 45-47.Applicants successfully meeting these requirements are then assigned a "final earned rating" derived from a weighted average of the written examination and oral interview.Eligible applicants are ranked in sequential order of their final earned ratings and are selected for admission into the Academy in the order of their rank, subject to the minimum one-third ratio for the hiring of minorities.⁶

II.FACTUAL & PROCEDURAL SETTING

The instant appeals, both class actions brought pursuant to 28 U.S.C. §§ 1331,1343(3), ⁷ arise out of two separate actions challenging the selection of a cadet class by the interim standards established in the Bolden Consent Decree.Plaintiffs' challenge to the composition of the cadet class convening March 6, 1975, focuses on the September 4, 1974 written examination given to applicants for the Pennsylvania State Police.As mandated by the Bolden Consent Decree, the Commission administered and graded the written examination.The Commission established as the minimum passing score 60 correct answers out of 120 questions on the written examination.⁸In Oburn v. Shapp, 393 F.Supp. 561(E.D.Pa.1975)(hereinafter the Oburn case), the individual plaintiffs were white ⁹ applicants who scored 60 or more on the written examination.¹⁰In their complaint they assert that they were eliminated from "further processing" even though minority applicants with lower scores on the written examination were selected for "further processing."The Oburn plaintiffs allege that in order for the defendants to comply with the interim hiring goal of one-third minority candidates, all non-minority applicants who scored below 92 on the written examination had to be eliminated from "further processing," while minority applicants who scored 65 or better on the written examination were "processed further."Thus, the Oburn plaintiffs allege that they were unconstitutionally denied equal protection of the laws because they were eliminated from "further processing" in favor of minority applicants solely on the basis of plaintiffs' race and national origin.

Although the plaintiffs in the companion case of Lutz v. Shapp, 393 F.Supp. 561(E.D.Pa.1975)(hereinafter the Lutz case) assert a legally identical theory of "reverse discrimination,"they do so under factually different circumstances.The individual plaintiffs in Lutz were white applicants who scored 92 or better on the written examination and accordingly were afforded an oral interview, a physical examination and a background investigation.Based upon their scores, the individual plaintiffs in Lutz were assigned a final earned rating and were ranked in order of their rating along with the other applicants who were "processed further."¹¹In this action, the Lutz plaintiffs assert that they were denied admission into the cadet class although they achieved a higher final earned rating than most minority applicants who were accepted.The Lutz plaintiffs assert that but for the one-third minority hiring goal, they would have been admitted to the cadet class.¹²

III.PRELIMINARY INJUNCTION

In both cases before us, plaintiffs have appealed only from the denial of their separate motions for a preliminary injunction.We emphasize the nature of these appeals as it necessarily affects the scope of our review and the burden that must be met by the appellant.SeeMayo v. Lakeland Highlands Canning Co., 309 U.S. 310, 316-17, 60 S.Ct. 517, 84 L.Ed. 774(1940);See generally9 J. Moore, Federal PracticeP 110.25(1)(2d ed. 1973).The burden on the appellant to secure a reversal is high, Scooper Dooper, Inc. v. Kraftco Corp., 460 F.2d 1204(3d Cir.1972), and our scope of review is limited to:

". . . determining whether there has been an abuse of discretion, an error of law or a clear mistake in the consideration of the proof.National Land & Investment Co. v. Specter, 428 F.2d 91, 95(3d Cir.1970)."

Commonwealth of Pennsylvania ex rel. Creamer v. United States Dept. of Agriculture, 469 F.2d 1387, 1388(3d Cir.1972).¹³AccordDelaware River Port Auth. v. Transamerican Trailer Transp., 501 F.2d 917(3d Cir.1974); Croskey Street Concerned Citizens v. Romney, 459 F.2d 109, 112(3d Cir.1972)(Aldisert, J., concurring).The instant appeals involve neither an error of law nor a clear mistake in the consideration of the proof.¹⁴Rather, we are presented with the sole question of whether the district court's denial of the injunction clearly constituted abuse of permissible discretion.SeeUnited States v. Corrick, 298 U.S. 435, 56 S.Ct. 829, 80 L.Ed. 1263(1936);Meccano, Ltd. v. John Wanamaker, 253 U.S. 136, 141, 40 S.Ct. 463, 64 L.Ed. 822(1920);7 J. Moore, Federal Practice, P 65.04(2)(2d ed. 1974).

In measuring the district court's consideration of appellants' motions for...