                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-14-1999

Hopp v City of Pittsburgh
Precedential or Non-Precedential:

Docket 98-3411




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Recommended Citation
"Hopp v City of Pittsburgh" (1999). 1999 Decisions. Paper 282.
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Filed October 14, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 98-3411, 98-3427

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

(D.C. Civil No. 93-00351)

ROBERT T. GROSS; DONALD J. HAMLIN;
MICHAEL HOPP; JOSEPH M. DINNIEN

v.

THE CITY OF PITTBURGH

(D.C. Civil No. 93-01009)

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

       Appellants

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(District Court Civil Nos. 93-00351, 93-01009)
District Judge: The Honorable Maurice B. Cohill, Jr.
Argued: May 27, 1999

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

(Opinion Filed: October 14, 1999)

       Jaqueline R. Morrow
       Randall C. Marshall (argued)
       City of Pittsburgh
       Department of Law
       313 City County Building
       Pittsburgh PA 15219
        Attorneys for Appellants

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

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.

A. 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
_________________________________________________________________

*The Honorable David D. Dowd, Jr., United States District Court for the
Northern District of Ohio, sitting by designation.

                               2
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

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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.

B. 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
_________________________________________________________________

1. The panel members evaluated each applicant on the basis of five
personal attributes: "speaking," "interpersonal relations," "problem
sensing and solving," "motivation," "listening," and "overall
suitability."
See App. at 198-207.

                               4
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, non-
discriminatory 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,

                               5
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., 1999 WL 709991, at
*4 (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
_________________________________________________________________

2. But see Iadimarco v. Runyon, 1999 WL 692709, at *12-17 (3d Cir.,
Sept. 8, 1999) (rejecting similar argument).

3. The City also argues that the District Court erred in denying its
motion for summary judgment. Since the case proceeded to trial,
however, our review is limited to the District Court's denial of the
City's
Rule 50 motion. See Baughman v. Cooper-Jarrett, Inc., 530 F.2d 529, 533
n.3 (3d Cir. 1976).

                                6
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 F.2d 918, 921 (3d Cir. 1986).

Under the familiar McDonnell Douglas framework, once
the plaintiffs were found to have made out a prima facie
case, the burden shifted to the City to present evidence of
a non-discriminatory reason for the employment decision.
See McDonnell Douglas, 411 U.S. at 802; Fuentes v. Perskie,
32 F.3d 759, 764 (3d Cir. 1994). To meet this burden, the
City called witnesses who testified that the City did not hire
the plaintiffs because, although they were otherwise
qualified, they did not pass the oral examination. The City
also presented evidence that the oral examination
procedure was designed to "minimize, if not eliminate" any
"adverse impact" that written examinations might have on
African-American applicants. See Br. for Pittsburgh at 31.

Once the City introduced this evidence, the burden of
production shifted back to the plaintiffs to "point to some
evidence, direct or circumstantial, from which a factfinder
could reasonably either (1) disbelieve the employer's
articulated legitimate reasons; or (2) believe that an
invidious discriminatory reason was more likely than not a
motivating or determinative cause of the employer's action."
Fuentes, 32 F.3d at 764. Here, the plaintiffs presented the
following evidence to show that the City's explanation of its
hiring decisions was pretextual. They offered evidence
showing that the written examination that the City
administered prior to 1992 was not culturally biased and
was a powerful predictor of job performance. See App. at
730-31, 867, 913. They also presented evidence showing
that (1) the City refused to explain why any of the plaintiffs
failed the oral examination; (2) the City kept records of each
applicant's race throughout the hiring process, see App. at
385, 387, 389, 395, 1116, 1120; (3) the City initially
planned to fail 15% of the applicants who made it to the
oral examination phase, then raised that number to 35% in
an attempt to hire fewer white applicants, see App. at 733-
37; (4) the City undercut 29 white applicants who passed
all of their examinations, but did not undercut any
similarly situated African-American applicants, see App. at

                                7
1229; and (5) while the City failed many white applicants
who performed well on the written examination, it failed
very few African-Americans who performed poorly on the
written examination, see App. at 1225-28, 1214-17, 147.

Having reviewed the record on appeal, we conclude that
a reasonable factfinder could find that the City's
explanation of its hiring decisions was pretextual.

C. Third, the City argues that the District Court erred in
sending this case to the jury since 42 U.S.C. S 1981 does
not provide for a private right of action against
municipalities. However, we need not resolve this issue
because the City failed to raise it before the jury returned
its verdict. To be sure, the City submitted a Rule 50 motion
at the close of the plaintiffs' case and later renewed that
motion at the close of all of the evidence. See App. at 665-
66. But in moving for judgment as a matter of law, the City
did not challenge the plaintiffs' right to sue Pittsburgh
under 42 U.S.C. S 1981. See id. Accordingly, we conclude
that the City waived its right to raise this argument. See
Bonjorno v. Kaiser Aluminum & Chemical Corp., 752 F.2d
802, 814 (3d Cir. 1984) ("If the issue was not raised in the
motion for the directed verdict at the close of all the
evidence, it is improper to grant the JNOV on that issue.").

D. Fourth, the City argues that the District Court erred
in finding that the plaintiffs' decision to exclude juror
number 153, an African-American, was not discriminatory.
We may not disturb that finding unless we are persuaded
that the District Court committed clear error. See
Hernandez v. New York, 500 U.S. 352, 353 (1991).

When the City objected to the plaintiffs' decision to
exclude juror number 153, the plaintiffs offered a non-
discriminatory explanation for their decision, viz., that they
had decided to exercise their peremptory strikes against
government employees and against individuals who had
been involved in discrimination lawsuits. Because juror
number 153 was a government employee who had been
involved in a discrimination lawsuit, she was a likely
candidate for exclusion. The District Court accepted this
explanation as non-discriminatory. After this point, the City
voiced no further objection.

                               8
The City now argues that "the race-neutral and facially
valid reason" put forward by the plaintiffs "was, as a matter
of fact, a mere pretext for actual discriminatory intent."
United States v. Umaezhoke, 995 F.2d 388, 392 (3d Cir.
1994); see Br. for Appellants at 53. In support of that
argument, the City points out that the plaintiffs did not
strike juror number 200, a government employee, but
instead struck juror number 22, who was not a government
employee and had not been involved in a discrimination
lawsuit, simply because plaintiffs' counsel "just didn't like
[her]." App. at 306; see also Br. for Appellants at 53. This
apparent inconsistency, the City argues, shows that the
plaintiffs' explanation for their decision to strike juror
number 153 was pretextual.

We are not persuaded that the plaintiffs' failure to strike
juror number 200 (the government employee) instead of
juror number 153 is sufficient to show that the District
Court's finding was clearly erroneous. An attorney with a
general plan to strike jurors who have a certain
characteristic (such as jurors who are government
employees or jurors with prior involvement in a
discrimination suit) may decide, as the attorney's
peremptory challenges dwindle, that it is more important to
strike a juror who lacks this characteristic but who seems
unappealing for some other, more compelling reason. On
the record before us, we cannot find clear error.

E. Finally, the City argues that the District Cour t erred
in instructing the jury on the issue of municipal liability.
The issue of whether a jury instruction misstates the
proper legal standard is subject to plenary review. See
Koppers Co. v. Aetna Cas. & Sur. Co., 98 F.3d 1440, 1445
(3d Cir. 1996). We need not reverse, however, if we
conclude that "the jury would have reached the same result
had it been instructed according to the correct legal
standard." Murray v. United of Omaha Life Ins. Co., 145
F.3d 143, 156 (3d Cir. 1998).

The City argues that the District Court's municipal
liability instruction disregarded the principles set out in
Monell v. New York City Department of Social Services, 436
U.S. 658 (1978). In Monell, the Supreme Court held that in
actions brought pursuant to 42 U.S.C. S 1983,

                               9
municipalities cannot be held liable under the doctrine of
respondeat superior but may be held liable "when execution
of a government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be
said to represent official policy, inflicts the injury." Id. at
694.

In subsequent cases, the Supreme Court explained that
"identification of those officials whose decisions represent
the official policy of the local government unit is itself a
legal question to be resolved by the trial judge before the
case is submitted to the jury." Jett v. Dallas Indep. School
District, 491 U.S. 701, 737 (1989). However,"[o]nce those
officials who have the power to make official policy on a
particular issue have been identified, it is for the jury to
determine whether their decisions have caused the
deprivation of rights at issue by policies which affirmatively
command that it occur, or by acquiescence in a
longstanding practice or custom . . . ." Id . (internal citations
omitted).

During the jury charge conference in this case, the City
asked the District Court to instruct the jury that the City
could not be held liable unless the discriminatory action
resulted from to an official policy, custom, or practice of the
City. See App. at 977-80. The District Court denied the
City's request and instructed the jury as follows:

       When a City government is involved, of course, it may
       act only through natural persons as its agents or
       employees. And, in general, any agent or employee of
       the City may bind the City by his acts and declarations
       made while acting within the scope of his authority
       delegated to him by the City, or within the scope of
       his duties as an employee of the City.

App. at 1068 (emphasis added).

In light of Monell and its progeny, this instruction was
erroneous because it suggested that the City could be held
liable under the doctrine of respondeat superior and
therefore failed to inform the jury that the City could be
held liable for the oral examination panels' decisions only if
the city "caused the deprivation of rights at issue by
policies which affirmatively command that it occur." Jett,

                                 10
491 U.S. at 737. Nevertheless, the plaintiffs argue that the
error was harmless since the City never contested the
plaintiffs' allegation that the oral examination panels made
hiring decisions according to policies adopted by the City.4
This approach by the City, the plaintiffs argue, rendered
the instruction harmless.

We agree. This was not a case in which the plaintiffs had
strong evidence that a lower level municipal employee had
committed a constitutional violation, and the municipality
contended that the employee's actions did not result from
any municipal policy or custom. Rather, this was a case in
which the plaintiffs focused directly on the City's policies,
argued that those policies were designed to produce
discrimination, and asked the jury to infer that the oral
examination panels whose decisions are at issue followed
the City's allegedly discriminatory policies. See, e.g., App. at
1017-64 (plaintiffs' closing argument). The City contested
only the plaintiffs' allegation that the City's hiring policies
were discriminatory; it never argued that the oral
examination panels departed from those policies. See, e.g.,
App. at 1015 (defendants' closing argument) ("[This case is
about the City designing and implementing a system that
tries to select the best qualified applicants . . . ."); see also
Memorandum in Support of Defendants' Motion for
Summary Judgment, App. at 70 (referring to the hiring
procedures at issue as "the City of Pittsburgh's custom,
practice, and/or policy").

For these reasons, it is apparent that the District Court's
municipal liability instruction, although erroneous, could
not have affected the outcome of this case. See Murray, 145
F.3d at 156 ("[W]e will not reverse a judgment where `it is
highly probable that the error did not contribute to the
_________________________________________________________________

4. The plaintiffs actually raised this argument during the jury charge
conference. They suggested that the instruction proposed by the City
was not necessary since the City had never argued that the oral
examination panels' decisions were contrary to the City's official
policies,
customs, or practices. See App. at 979 ("It would just be our position in
this kind of case, where it's clearly a person was either fired or not by
someone with the authority, final authority of the City to do it [sic]. It
makes no practical difference [whether the Court gives such an
instruction here].").

                               11
judgment.' ") (quoting McQueeney v. Wilmington Trust Co.,
779 F.2d 916, 924 (3d Cir. 1985)); see also 11 Charles Alan
Wright et al., Federal Practice and Procedure S 2886, at
467-70 (2d ed. 1995) ("Errors in instructions routinely are
ignored if . . . [it] is apparent that the error could not have
changed the result."). Accordingly, we conclude that the
District Court's error was harmless.

III.

For the foregoing reasons, we affirm.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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