                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-25-1998

Wolfe v. City of Pittsburgh
Precedential or Non-Precedential:

Docket 97-3360




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Recommended Citation
"Wolfe v. City of Pittsburgh" (1998). 1998 Decisions. Paper 58.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/58


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Filed March 25, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-3360

JUNE M. WOLFE; JOSEPH J. CAMPISI; PAUL R. RENK;
STEVEN R. GARDNER; GEORGE T. TROSKY;
MICHAEL F. BROWN; GEORGETTE A. SCAFEDE;
ANTHONY R. DUMRAUF

v.

CITY OF PITTSBURGH

George Trosky, Michael Brown and Paul Renk,
       Appellants

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 95-cv-00664)

Submitted Pursuant to Third Circuit LAR 34.1(a)
March 16, 1998

Before: SLOVITER, RENDELL and SEITZ, Circuit Judges

(Filed: March 25, 1998)

       Thomas H. Ayoob, III
       Pittsburgh, PA 15222

       Michael L. Rosenfield
       Pittsburgh, PA 15219

        Counsel for Appellants
       Diego Correa
       Jacqueline R. Morrow
       City of Pittsburgh
       Department of Law
       Pittsburgh, PA 15219

        Counsel for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Appellants George Trosky, Michael Brown, and Paul
Renk, white male police officers, filed this action under 42
U.S.C. S 1983, 42 U.S.C. S 1981, Title VII, and Pennsylvania
state law alleging that the City of Pittsburgh discriminated
against them on the basis of their race when it failed to
promote them to the rank of lieutenant. Appellant officers
argue that the 1979 federal court order setting a quota for
minority hiring had expired before the promotions were
made, therefore exposing the City to liability. The officers
filed a motion for summary judgment but instead the
district court granted summary judgment on behalf of the
City. We have jurisdiction under 28 U.S.C. S 1291. Our
review is plenary.

I.

This case arises from a history of discriminatory practices
in the hiring and promotion of minority officers in the City
of Pittsburgh police department which spawned extensive
litigation dating back to 1975, and which generated at least
six published decisions regarding the appropriate remedies
and other related issues. In 1975, Chief Judge Weber,1 the
district judge originally presiding over the case, found that
the City's hiring procedures involved a pattern and practice
of racial and sexual discrimination; as a remedy, the court
_________________________________________________________________

1. Although we do not ordinarily trace the history of a case in terms of
the district judge by name, in this case three district judges have
presided over different phases of the litigation and the identity of the
judge who signed each order is relevant.

                               2
imposed a "temporary interim preferential hiring quota"
whereby appointments would be made from qualified lists
in groups of four as follows: one white male, one white
female, one black male, and one black female.
Commonwealth v. Flaherty, 404 F. Supp. 1022, 1030-31
(W.D. Pa. 1975). Although that order, by its terms, appears
to have applied only to hiring, the City thereafter filed a
request with the court to authorize it to promote 18
lieutenants and 24 sergeants "straight down" the eligibility
list without regard to race or gender. The Commonwealth of
Pennsylvania, the NAACP and the Guardians of Greater
Pittsburgh (on behalf of black policemen) opposed the City's
proposal because it would perpetuate the racial imbalance.

Judge Weber denied the City's request to promote
"straight down" but, citing the pressing need of the City to
fill vacancies, ruled on October 12, 1979, that:

       We will allow the defendants, however, to promote up
       to 18 individuals to the rank of lieutenant and up to 28
       to the rank of sergeant with the mandate that one of
       each six promoted to either rank must be minority
       members otherwise qualified.

       We do not command how this shall be done. The
       officers of the City of Pittsburgh have as great a duty
       to follow the mandates of the Constitution as does this
       court. During all the progress of this lawsuit we have
       found very little evidence of an active effort by the City
       to solve the problems of race and sex discrimination by
       action on its own rather than relying entirely on the
       mandate of this court at every step. There is a pool of
       eligible candidates for both grades containing minority
       members who have at least demonstrated some
       capacity by scoring a passing grade on the
       examinations, and by prior satisfactory service as
       patrolman and in some cases as sergeants. Because
       the pool of eligible candidates for lieutenant contain
       minority members, some of whom have experience as
       sergeants, and because the eligibility list for sergeants
       contain qualified minority members, such selection can
       be made within the statutory scheme.

Commonwealth v. Flaherty, 477 F. Supp. 1263, 1266-67
(W.D. Pa. 1979) (emphasis added). With respect to the

                               3
duration of his "mandate that one of each six promoted to
either rank must be minority members otherwise qualified,"
Judge Weber stated only:

       Because the present promotional list is of limited
       duration, and will expire within the coming year, the
       problem may be ameliorated in future years because of
       the eligibility of minority members and women newly
       hired as police officers under our prior order. The
       effects of the prior discriminatory practices will be
       lessened in the future.

Id. at 1267.

Almost immediately the question arose whether a
Hispanic officer was a "minority" under the October 12,
1979 order, and on December 19, 1979, Judge Weber
issued a temporary restraining order preventing the City
from promoting a Hispanic officer under the aegis of the
October 12, 1979 order, clarifying that the term"minority"
as used in the October order referred to black officers, not
Hispanic officers. App. at 10-11. On January 9, 1980,
Judge Weber made the temporary restraining order issued
December 19, 1979 permanent, stating that "[t]he City of
Pittsburgh is ordered and directed to proceed under the
order of this court of October 12, 1979, and in making
such promotions as were allowed therein it shall promote
one black police officer of the plaintiff class of each six
officers so promoted." App. at 12. See also Commonwealth
v. Flaherty, 482 F. Supp. 305, 307 (W.D. Pa. 1980).

Sometime thereafter, the City filed a motion for
"Modification of Court Opinion and Order." It sought to
make three promotions to lieutenant and six promotions to
sergeant and asked, in essence, if promoting one minority
to each position was "in accordance with the program of
racial balance pursuant to this Court's order." App. at 13-
14. On October 6, 1980, Judge Weber permitted the
proposed promotions "in accordance with the mandates of
the Court Order of October 12, 1979." App. at 15.

In addition to the racial discrimination that was the
subject of the orders in question, the City was the subject
of allegations of gender discrimination in hiring. Judge
Weber conducted a nonjury trial on this claim and awarded

                                4
judgment and back pay to plaintiffs. See Commonwealth v.
Flaherty, 532 F. Supp. 106 (W.D. Pa. 1982); Commonwealth
v. Flaherty, 547 F. Supp. 172 (W.D. Pa. 1982).

In 1984, the Fraternal Order of Police, on behalf of white
male officers who claimed they were passed over for
promotion in favor of minority officers, moved to "terminate"
the October 12, 1979 order which, according to the motion
itself, "imposed, in part, a program of preferential
affirmative promotions to the ranks of sergeant and
lieutenant. . . ." App. at 17-18. Judge Weber denied the
motion on January 25, 1984, stating merely: "The grounds
of the present motion were considered at the time the
original order was entered and rejected." App. at 18. On
appeal, this Court affirmed the order "without prejudice to
presentation of a proper petition alleging changed
circumstances and/or law." See App. at 24.

The F.O.P. filed another challenge later that year to the
one-in-four minority hiring quota scheme imposed in 1975.
On August 30, 1984 Judge Weber denied the F.O.P.'s
petition, but in the course of his memorandum order
referred to his October 12, 1979 order as having "imposed
a program of preferential affirmative promotions applicable
to the ranks of sergeant and lieutenant in the Pittsburgh
Department of Police." App. at 23.

Seven years later, in 1991, white candidates for police
officer challenged the 1975 one-in-four hiring quota system.
The matter came before then Chief Judge Cohill, who now
presided. Judge Cohill dissolved the hiring quota, but in
doing so noted the distinct orders covering hiring and
promotion within the police department and stated, inter
alia:

       We note that in the earlier years of the preliminary
       injunction's operation, Judge Weber addressed the
       issue of promotion of women and minorities and
       entered appropriate remedial orders. As Judge Weber
       did, we view the preliminary injunction [re hiring] as
       separate from the issue of promotions. Thus, our
       Opinion today has no effect on these earlier orders.
       Likewise, we view these findings of discrimination in
       promotion as unrelated to our consideration of the
       preliminary injunction.

                               5
Commonwealth v. Flaherty, 760 F. Supp. 472, 480 (W.D.
Pa. 1991) (citations omitted). The Commonwealth
subsequently appealed from the dissolution of the
preliminary injunction, but this court upheld the
dissolution of the 1975 hiring quota. Commonwealth v.
Flaherty, 983 F.2d 1267 (3d Cir. 1993).

It was not until 1993 that the NAACP and the Guardians
of Greater Pittsburgh, co-plaintiffs in the original actions,
sought action with respect to the court order regarding
promotions. Noting the progress made by the City and an
agreement the parties had reached, the plaintiffsfiled a
formal motion to "dissolve the order of October 12, 1979."
In a one-sentence order dated December 15, 1993 Judge
Cohill dissolved the order of October 12, 1979. App. at 43.
The following year, we reversed the district court's award of
attorneys' fees to intervening white police officers against
the Commonwealth in the hiring case. Commonwealth v.
Flaherty, 40 F.3d 57 (3d Cir. 1994).

II.

With this history in mind, we turn to this appeal by the
plaintiff officers of the district court's grant of summary
judgment for the City. The basis for the officers' S 1983 suit
against the City is their contention that the October 12,
1979 order entered by Judge Weber had automatically
dissolved in 1980 and thus was not in effect in April 1993
when they were bypassed for promotion in favor of minority
officers. Therefore, although they do not expressly so argue,
we infer they are arguing that more recent decisions
restricting race-based promotions apply here.

Judge Smith, the district judge to whom this latest case
was assigned, rejected that argument, holding that the
October 12, 1979 order was in effect until its dissolution by
Judge Cohill on December 15, 1993, and that the City is
shielded from liability when acting pursuant to a court
order. Judge Smith also held that the City did not have a
duty to challenge the order following changes in the law, a
contention plaintiffs apparently made in the district court
that they do not repeat here. Finally, Judge Smith held that
the promotions made in April 1993, before the dissolution,
were consistent with the then-effective 1979 mandate.

                               6
The history of this case set forth above shows that the
parties operated in the apparent belief that there were
parallel orders: one entered in 1975 covering hiring and one
entered in 1979 covering promotions. Although the status
of the October 12, 1979 order was not without ambiguity in
the years thereafter, there is ample support for Judge
Smith's holding that the order was in effect until dissolved
in 1993. Foremost is the subsequent ruling by Judge Weber
himself in 1984 denying the F.O.P.'s request to dissolve the
1979 quota system mandated by the October 12, 1979
order. Indeed, if Judge Weber regarded the order as having
expired in 1980, it is unlikely he would have entertained a
motion for its dissolution on the merits.

Moreover, there is the inescapable fact that there was no
judicial action on the docket regarding the October 12,
1979 order until Judge Cohill dissolved it on December 15,
1993, after the promotions in question. Although plaintiff
officers dismiss the 1993 dissolution as mere
"housekeeping," that is not persuasive in light of the fact
that Judge Cohill had earlier dissolved the parallel 1975
order dealing with hiring in 1991 and expressly stated that
the dissolution of the 1975 injunction had "no effect" on the
promotions quota system. Commonwealth v. Flaherty, 760
F. Supp. at 480 (citations omitted).

In reviewing the history of the injunction governing hiring
in 1993, we commented that "[t]his case is unusual
because the preliminary injunction remained in effect for
more than fifteen years, during which time no party sought
to pursue the action on the merits or to dispose of the issue
of permanent injunctive relief." Commonwealth v. Flaherty,
983 F.2d at 1269. A similar comment could be made
regarding the injunction governing promotions. Although it
may have initially served as a preliminary injunction, in
time and with judicial rejection of efforts to dissolve it the
October 12, 1979 order became effectively a permanent
injunction and the parties and the courts so treated it.

While the 1979 order did not affirmatively direct the City
to promote officers, it did conditionally mandate that if the
City effectuated such promotions, they were to be made in
conformity with that order. The Policemen's Civil Service
statute, however, obligated the City to address promotions.

                               7
53 Pa. Stat. Ann. S 23535 ("Vacancies in positions in the
competitive class shall be filled by promotions from among
persons holding positions in a lower grade in the bureau of
police.") (emphasis added). Thus, it is clear that the City
faced but one real course -- a Hobson's choice-- to follow
the court's order. As such, the City has not deliberately
adopted an "official policy," other than to follow the law,
that would give rise to section 1983 liability. See Pembaur
v. City of Cincinnati, 475 U.S. 469, 483 (1986); cf. Lockhart
v. Hoenstine, 411 F.2d 455, 460 (3d Cir. 1969) ("[A]ny
public official acting pursuant to court directive is [ ]
immune from suit"); Turney v. O'Toole, 898 F.2d 1470,
1472-73 (10th Cir. 1990) (citations omitted) ("officials
charged with the duty of executing a facially valid court
order enjoy absolute immunity from liability for damages in
a suit challenging conduct prescribed in that order.. . .
`Facially valid' does not mean `lawful.' An erroneous order
can be valid.").

In light of our agreement with Judge Smith that the 1979
order was effective in 1993, we see no more basis to impose
liability upon the City for the 1993 promotions than there
would have been to impose liability upon it for the 1979
promotions. There is nothing in the record to suggest that
in making the 1993 promotions the City acted other than in
the belief that the 1979 court order continued to apply. Not
until Judge Cohill's order of December 15, 1993 was this
litigious episode in the history of the City of Pittsburgh
finally put to rest.

We see no error by the district court in its application of
the relevant legal principles, and we will affirm the grant of
summary judgment.

A True Copy:
Teste:

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

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