Sanford v. O'Neill
| Decision Date | 06 March 1980 |
| Docket Number | No. 79-1945,79-1945 |
| Parties | 35 Fair Empl.Prac.Cas. 1523, 22 Empl. Prac. Dec. P 30,722 Lucy SANFORD, Shirley Black, Mari Pritchard, Patricia Sullivan, Carolyn Carter, Brenda Williams and Ernestine McCullough, Appellants, v. Joseph F. O'NEILL, the Philadelphia Police Department, and the City of Philadelphia, Appellees. |
| Court | U.S. Court of Appeals — Third Circuit |
Helen T. M. McCaffrey (argued), Philadelphia, Pa., for appellants Sullivan, Carter, Williams and McCullough.
Frank Finch, III (argued), Public Interest Law Center of Philadelphia, Philadelphia, Pa., for appellants Sanford, Pritchard, Black and Waters.
Agostino Cammisa (argued), Asst. City Sol., Sheldon L. Albert, City Sol., Stephen T. Saltz, Deputy City Sol., Philadelphia, Pa., for appellees.
Before GIBBONS, ROSENN and GARTH, Circuit Judges.
The parties to this appeal will undoubtedly be disheartened by our disposition, for we do not reach the merits of their dispute. Unfortunately, the procedural quagmire out of which this appeal arises precludes any substantive resolution of the claims asserted. These procedural defects require us to vacate the district court's order granting summary judgment to the defendants and remand to the district court.
To understand the context in which the present appeal reaches us, we must recount some of the prior proceedings, for this case represents still another in a long line of appeals arising out of sex discrimination litigation against the City of Philadelphia and its Police Department in the Eastern District of Pennsylvania. 1
The litigation began on February 12, 1974 with the filing of a class action against the Police Department by Penelope Brace, then a policewoman. Within a week after Brace's action was commenced, the United States filed suit against the City of Philadelphia charging a pattern or practice of discrimination in its Police Department in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1976). This latter proceeding, captioned United States v. City of Philadelphia, was assigned district court docket No. 74-400 and was consolidated with Brace's action. 2 The City did not dispute its practice of discrimination against women and its policy of hiring them only as Juvenile Aid Officers, but rather asserted a bona fide occupational qualification (BFOQ) defense; it claimed that only men could function effectively as police officers. After entry of a consent decree on March 5, 1976, the action was stayed for two years to allow the Police Department to enlist women and study their effectiveness as police officers. The study has since been completed and the district court, after trial on this issue, rejected the City's BFOQ defense. 3
The eight named plaintiffs 4 in the instant class action are women who passed the Civil Service examination for police officers and who sought employment when the Department began accepting women pursuant to the March 5, 1976 consent decree. Four of them, Sanford, Pritchard, Black, and Waters, began training at the police academy on March 6, 1978, and were dismissed on March 31, 1978 for failing the firearms qualification test. A fifth plaintiff, Sullivan, began training at the police academy in July, 1977, and was dismissed shortly thereafter for being overweight. The remaining three plaintiffs were all rejected by the Department from the outset and never entered the academy McCullough in 1977 and Carter in 1978 for being overweight, 5 and Williams in 1976 for a medical condition.
In its pattern or practice suit, district court docket No. 74-400, the United States filed a motion for a preliminary injunction on April 3, 1978 to require reinstatement in the Police Department of Sanford, Pritchard, Black, and Waters. 6
On April 10, 1978, the complaint in the instant suit, district court docket No. 78-1154, was filed. This complaint named as plaintiffs the four who were the subject of the injunctive proceeding brought by the United States. In addition, it named the four other applicants, Sullivan, Carter, McCullough and Williams. This complaint alleged not only violations of Title VII, for which a jury trial was unavailable, but also deprivations of constitutional rights. A jury trial was requested for these latter claims. Counsel in No. 78-1154 moved to intervene in the United States's suit, No. 74-400; the motion was orally granted at a hearing held February 27, 1979.
In November, 1978, some months after the United States's preliminary injunction motion and the complaint in this case were filed, the City filed a motion for summary judgment in both cases. The motion, however, was not addressed to all the named plaintiffs in No. 78-1154, but was restricted to the four women who had failed to meet the firearms qualification test, Sanford, Pritchard, Black and Waters, and who were the subject of the United States's preliminary injunction motion. The City's motion made no reference to the other four plaintiffs, Sullivan, Carter, McCullough or Williams. No supporting affidavits were filed with the motion. 7
With the proceedings in this posture, a hearing was held in the district court on February 27, 1979. The hearing transcript is entitled "Evidentiary Hearing," and, indeed, two of the plaintiffs, Pritchard and Waters, testified. They described the firearms qualification procedures and the instruction that they received. The district court concluded the hearing with the following remarks:
THE COURT: We have one other problem with the people that have a weight problem. I don't know that we have to have any testimony on that. I am pretty sure we can all agree to that.
Can I see you at sidebar for a moment?
(Sidebar discussion off the record.)
THE COURT: The affidavits are to be submitted and the Depositions.
Mr. Saltz (counsel for the City), you may file whatever objections you have, and anybody who wants to file documents may do so.
The argument before us on appeal focused in large part on the nature of this February 27, 1979 hearing. There was uncertainty among the plaintiffs, an uncertainty now shared by this court, as to the purpose of the hearing. A variety of possible purposes were suggested by the parties. It was suggested that, inasmuch as the district court had determined in its opinion two weeks earlier that the Police Department had engaged in a pattern or practice of discrimination, the hearing could have been the "second stage" proceeding contemplated by the Supreme Court in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), for determining the relief appropriate to individual class members in a pattern or practice suit. See 431 U.S. at 361, 97 S.Ct. at 1867. It was also suggested that the hearing could have been to determine whether the preliminary injunction sought by the United States to reinstate Sanford, Pritchard, Black, and Waters should issue. A third possibility suggested was that the hearing was in fact a trial of the merits of the claims raised by the eight named plaintiffs in the instant suit, No. 78-1154. Finally, in light of the disposition actually made by the district court, the thought was expressed that the hearing was scheduled to assist the district court in resolving the City's motion for summary judgment. Neither the parties nor the district court made any effort to specify the particular purpose for which the hearing was held; it appears that each party had its own view of the hearing, and no two views agreed.
After the hearing had concluded, the record, as best as we painstakingly have been able to reconstruct it, consisted of affidavits of Pritchard, Sanford, and Black, which had accompanied the United States's motion for preliminary injunction; the February 27th "evidentiary hearing," which included testimony of Pritchard and Waters; and affidavits of Williams, Carter and Sullivan, filed after the February 27, 1979 hearing and cryptically entitled "Affidavits in Support of Evidentiary Hearing of Plaintiff-Intervenors." These latter affidavits dealt wholly with disqualification on weight and medical grounds. The record does not disclose any affidavits filed by the defendant City, but it does reveal that depositions had been taken of a number of police officers who were instructors at the police academy.
The substance of these materials before the district court may be briefly summarized. The materials submitted on behalf of Pritchard, Sanford, Black, and Waters told the story of their entry into the police academy and their dismissal shortly thereafter when they failed the firearms qualification test. They claimed that they were told after their failure to qualify that they had no need to be concerned, since no man had ever failed to qualify after a sufficient number of tries. They claimed that they were led to believe that they had until May 17, 1978 to qualify. (They were dismissed March 31, 1978.) They also claimed that male trainees had received more individual instruction. They stated their belief that sex discrimination was a factor in their dismissal.
The affidavits of Sullivan and Carter, respectively dismissed from and denied admission to the academy on the grounds of weight, told of arbitrary application of weight standards, of having been approved and disapproved on different occasions at the same weight, and of further rejections despite losing prescribed amounts of weight. No evidentiary materials were submitted on behalf of McCullough, but she, too, alleges in the complaint arbitrary application of weight standards. They all state their conviction that sex was a factor in their rejection.
An affidavit from Williams complained of being rejected on the grounds of cancer of the cervix and a hysterectomy, when these conditions had been successfully treated, had been asymptomatic for years, and had never hampered her work...
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