1998 Decisions

Opinions of the United

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Precedential or Non-Precedential: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
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. 

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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 

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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 

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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. 

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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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