Wilmore v. City of Wilmington

• Decision Date: 08 March 1983
• Docket Number: No. 82-1203,82-1203
• Citation: 699 F.2d 667
• Parties: 31 Fair Empl.Prac.Cas. 2, 31 Empl. Prac. Dec. P 33,322 James T. WILMORE, William D. Pearson, and Alonzo Hooten, Appellants, v. The CITY OF WILMINGTON, Appellee, v. WILMINGTON FIREFIGHTERS LOCAL 1590, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, Third Party Defendants.
• Court: U.S. Court of Appeals — Third Circuit

Page 667

699 F.2d 667

31 Fair Empl.Prac.Cas. 2, 31 Empl. Prac. Dec.

P 33,322

James T. WILMORE, William D. Pearson, and Alonzo Hooten, Appellants, v. The CITY OF WILMINGTON, Appellee, v. WILMINGTON FIREFIGHTERS LOCAL 1590, INTERNATIONAL

ASSOCIATION OF FIREFIGHTERS, Third Party Defendants.

No. 82-1203.

United States Court of Appeals Third Circuit.

Argued Sept. 30, 1982.

Decided Feb. 9, 1983.

Rehearing and Rehearing In Banc Denied March 8, 1983.

Gary W. Aber (argued), Biggs & Battaglia, Wilmington, Del., for appellants.

Robert D. Goldberg, City Sol., Frederick H. Schranck (argued), Asst. City Sol., City of Wilmington Law Dept., Wilmington, Del., for appellee.

Before ALDISERT and HIGGINBOTHAM, Circuit Judges and SAROKIN, District Judge. ^*

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

This case presents accusations of racial discrimination against the Wilmington Delaware Fire Department ("Fire Department"). ¹ Plaintiffs brought this class action in the United States District Court for the District of Delaware claiming that the Fire Department's promotion policies discriminate against racial minorities in violation of 42 U.S.C. Secs. 1981, 1983 and Title VII of the 1964 Civil Rights Act, 42 U.S.C. Sec. 2000e et seq. The district court rendered judgment in favor of defendants. We however, find that the district court erred and will reverse as follows.

We hold that the district court erred in finding that the "administrative jobs" that were assigned on the basis of race did not create the kind of "barriers to professional development" that violated petitioners' right to equal employment opportunities under Title VII. Connecticut v. Teal, --- U.S. ----, ----, 102 S.Ct. 2525, 2532, 73 L.Ed.2d 130 (1982) (emphasis in original).

We hold that the racially discriminatory assignment of "administrative jobs" affected the results of the 1978 and 1980 promotional tests in favor of white firefighters and to the detriment of minority firefighters. Therefore, we find that these tests significantly contributed to the disparate impact of the 1978 and 1980 promotion procedures in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. Secs. 1981 and 1983.

I.

Wilmington's history is tainted with the stain of racial discrimination and court actions brought by racial minorities to eradicate discrimination. See, Wilmore v. City of Wilmington, 533 F.Supp. 844, 846, n. 4 (D.Del.1982). This past litigation notwithstanding, racial discrimination has persisted. Even Wilmington's adoption of a policy of racial equality and the creation of an Affirmative Action Committee have failed to break the tenacious grasp of discrimination within city agencies such as the Fire Department. It is within this history of racial discrimination in Wilmington and the city government's attempts to bring about a more just society that the facts of this case must be understood.

Although the City of Wilmington established its Fire Department in 1921, minorities were not included in its ranks until 1961. Id. at 846. Despite recent efforts to recruit more blacks and hispanics, minorities continue to be under-represented in the Fire Department. Minorities make up 48% of Wilmington's labor force but only 15% of its firefighters force. 533 F.Supp. at 846; Joint Appendix ("J.A.") at 778. Minorities are even more seriously under-represented in the Fire Department's command structure. Of the fifty-one officers, only two are minorities. The elevation of these two into the officer ranks did not occur until 1980; and one of the two minority officers was promoted only after this complaint was filed.

The officer corps of the Fire Department includes in ascending order: Lieutenant, Captain, Battalion Chief, Deputy Chief and Chief of Fire. A firefighter must serve a minimum of three years in each rank before becoming eligible for promotion to the next rank. In addition, Wilmington requires firefighters seeking promotion to take promotion tests.

The Fire Department's promotion procedures have undergone various changes over the last decade, in part, because of earlier legal challenges. In 1973 and 1974, promotion procedures permitted an individual's superior officers and the Commissioner of Public Safety to determine who would be promoted. These procedures included subjective evaluations by superiors that carried sufficient weight to offset the results of written promotional examinations. 533 F.Supp. at 847. Litigation challenging the 1973 promotion procedures resulted in a judgment for petitioners. Malloy v. City of Wilmington, C.A. 78-374 (D.Del. filed Dec. 16, 1981). The firefighters' union subsequently challenged the disproportionate weight given to these subjective evaluations and the results of the 1974 Test. In a judicially-approved settlement, the City agreed to eliminate the subjective evaluations made by the Chief of Fire and Commissioner of Public Safety from the promotion process. 533 F.Supp. at 848.

The promotion procedures were modified again in 1978 in an attempt to restore credibility to a process that firefighters had come to regard as unfair and controlled by cronyism. ² Id. at 847. The promotion process adopted by the Fire Department excluded all subjective ratings by superiors. The components of this three-part process included a written examination (worth 50 points), an oral examination (worth 40 points) and experience (worth 8 to 10 points depending upon length of service). Id. at 848. Combining the points of this process yielded a list of individuals who qualified for promotion in a strict rank-ordering with each vacancy to be filled by the next available highest scorer.

Sixty-five white and eight minority candidates completed the 1978 exam. Only one minority candidate finished within the top twenty, and he ranked eighteenth. Because only eleven candidates were promoted from this promotion list, none was a minority. Id. at 848-49.

Wilmington's Affirmative Action Officer, Gale Templin, considered the absence of any minority promotions an undesirable result of the 1978 exam. Id. at 849. Moreover, the district court found that Chief of Fire, Jerome Donahue, is committed to racial equality and to fair and unbiased promotion procedures. Id. at 859. Templin consequently hired Dr. Barry Morstain and his consulting firm to develop fair procedures for the 1980 promotion exam. However, Dr. Morstain was retained in January 1980, too late to revise completely the 1978 Test or to conduct a complete validation study of the 1980 exam. Id. at 849.

Pursuant to Dr. Morstain's recommendations, the City adopted a two-step, four-part process that displaced the three-part 1978 process. First, a candidate was required to pass a written test of one hundred questions in order to be eligible for the rest of the exam. The second step included three parts. The point value for the oral portion of the exam was raised to 60% of the overall rating. The experience factor counted for 10%. A separate Administrative Task Analysis (ATA) portion of the exam accounted for the remaining 30% of the final score.

Dr. Morstain placed this weight on the ATA because of a pre-1980 Lieutenant's Job Analysis which concluded that lieutenants devoted 30% of their time handling administrative matters. Id. at 849-50. Dr. Morstain also assumed that all firefighters received administrative experience and were familiar with the forms included in the ATA. Id. This assumption proved to be erroneous and detrimental to the test performance of minority firefighters. Sixty-one white, one hispanic and ten black firefighters completed the 1980 exam. Although four of the top twenty finishers were minority, only one minority firefighter, a black, finished high enough to be promoted. He ranked seventh. Eight whites were promoted.

Petitioners claim that the 1978 and 1980 promotion procedures are racially discriminatory in that they had a disparate impact upon minorities in two primary ways. First, the percentage of minorities in the Fire Department's officers corps is significantly smaller than the proportion of minorities in the Wilmington labor force. Id. at 850. Second, no minorities and eleven whites were promoted in 1978 and one minority and eight whites were promoted in 1980. Id. at 851-52. Petitioners also claim that the assignment of firefighters to administrative positions within the Fire Department was made, in part, on the basis of race, and that experience acquired in these positions contributed significantly to the assignees' performance on the promotional tests. Id. at 851. They claim, therefore, that the racially discriminatory treatment of minorities gave white firefighters an unfair advantage over minority firefighters and accounts, in part, for the disparate impact of the promotional tests upon promotions in 1978 and 1980. Petitioners claim that the promotion processes used by the Fire Department in 1978 and in 1980 violated their civil rights under Title VII of the 1964 Civil Rights Act and under 42 U.S.C. Secs. 1981 and 1983.

II.

Liability under Title VII of the 1964 Civil Rights Act and 42 U.S.C. Secs. 1981 and 1983 can be shown under two separate legal theories. The first and older theory under Sections 1981 and 1983 and Title VII refers to the discriminatory treatment of minorities. This theory requires proof of a discriminatory motive. General Building Contractors Association, Inc. v. Pennsylvania, et al., --- U.S. ----, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982); Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 259, 101 S.Ct. 1089, 1096, 67 L.Ed.2d 207 (1981); Croker v. Boeing Co. (Vertol Div.), 662 F.2d 975, 988-89 (3d Cir.1981) (en banc). The second and more recent theory under Title VII alone is the "disparate impact" theory that originated in Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1970). Thus, the two theories differ in that the former is directed to the discriminatory motive underlying the "treat...