The opinion of the court was delivered by: RICHEY
CHARLES R. RICHEY, UNITED STATES DISTRICT JUDGE
This case, which is before the Court on cross-motions for summary judgment, calls into question the legality and constitutionality of a proposed affirmative action plan voluntarily adopted by a public employer, the District of Columbia and its Fire Department. This a situation, involving a voluntary plan by a public employer, has never before been addressed by the Supreme Court, which expressly reserved decision on this question in United Steelworkers of America v. Weber, 443 U.S. 193, 200, 61 L. Ed. 2d 480, 99 S. Ct. 2721 (1979), and again last term in Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 104 S. Ct. 2576, 2590, 81 L. Ed. 2d 483 (1984).
The proposed plan at issue contains procedures based largely on race and gender at both the hiring and promotion levels, designed to increase minority participation in the D.C. Fire Department. For the reasons stated in this Opinion, the Court finds that the hiring aspects of the plan satisfy the minimal requirements of Title VII and the Constitution, but that the promotion aspects cannot survive Title VII scrutiny. Accordingly, the Court cannot approve the plan as submitted.
On October 29, 1980, Theodore O. Holmes, President of the Progressive Fire Fighters Association of Washington, D.C., filed a complaint in the District of Columbia Office of Human Rights ("OHR") charging race discrimination in recruitment, hiring, promotion and administrative practices of the District of Columbia Fire Department. The next day, Jon F. Sheffield, in his capacity as Vice-President of the Black Fire Officers Association, filed a similar complaint. The respondents to both complaints were the City Administrator, the Director of Personnel, and the Chief of the D.C. Fire Department. The complainants alleged that the respondents were engaging in patterns and practices of race discrimination against blacks in the operation of the Department.
After several procedural steps, the case was assigned to Hearing Examiner Patrick Kelly. On October 23, 1981, Hearing Examiner Kelly permitted Local 36, International Association of Fire Fighters ("Local 36") to intervene in the action. Local 36 is a representative of employees in the uniformed force of the District of Columbia Fire Department in the ranks of Firefighter through Captain.
During the period from December 3, 1981 through April 6, 1982, Hearing Examiner Kelly conducted a 50 day public evidentiary hearing in the Holmes and Sheffield cases. In addition to the complainants and respondents, Local 36 fully participated in the hearing. On July 19, 1982, Hearing Examiner Kelly issued proposed findings of fact, conclusions of law, and recommendations. On October 7, 1983, after more complications, the Hearing Examiner finally submitted his corrected version of his findings of fact, legal conclusions, and recommendations to Appellate Officer E. Veronica Pace. All of the Hearing Examiner's findings and conclusions were accepted by the District of Columbia and the Fire Department. Appellate Officer Pace also reviewed the Hearing Examiner's report, and, with minor modifications, she accepted his recommendations. No review was sought by any party of Appellate Officer Pace's November 16, 1983 Order, and that Order constitutes OHR's final decision in the Holmes and Sheffield cases.
Hearing Examiner Kelly had found that the 1980 entry level written examination had an adverse impact on blacks and was not a valid predictor of job performance as required by the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607.4(D) ("Uniform Guidelines"). This adverse impact only becomes clear when candidates are selected in numerical order based on their test scores, because, as shown below, such rank order use resulted in a disproportionately low selection rate for blacks.
The pass rate of the 1980 entry level test did not result in such an adverse impact. There were 974 test takers, of whom 724 (74.35%) were black and 207 (21.5%) were white. Of that number, 958 passed the examination, 713 (74.35%) of whom were black and 205 (21.5%) were white. Hearing Examiner Kelly found that if selections were made in rank order, however, the following would have resulted:
For the first 100 names on the eligible list, the selection rate for blacks would be 3.6% and for whites 34%;
for the first 200 names on the eligible list, the selection rate for blacks would be 11.2% and for whites 54%;
for the first 300 names on the eligible list, the selection rate for blacks would be 20.8% and for whites 69.4%.
The Hearing Examiner recommended, in pertinent part, that the entry level examinations be validated in accordance with the Uniform Guidelines; that the City exhaust the 1980 eligibility list; that all persons appointed from the 1980 list receive the same date of hire, irrespective of their actual date of employment; and that the Fire Department adopt and implement an Affirmative Action Plan. As previously noted, these recommendations were adopted by Ms. Pace in the final decision in OHR Docket Nos. 81-DC-029 and 81-DC-041.
On March 22, 1984, four black applicants for hire with the Fire Department, and the Progressive Firefighters Association, filed suit in this Court against the Mayor of the District of Columbia, the Director of the D.C. Office of Personnel, and the Fire Chief. Hammon v. Barry, C.A. 84-0903. The complaint sought, inter alia, enforcement of the November 16, 1983 Final Order issued by Appellate Officer Pace in the OHR proceedings. The plaintiffs included a request for a temporary restraining order seeking to prohibit the defendants from administering the entry-level test in March, 1984. On March 23, 1984, after hearing arguments on the motion, the Court denied the restraining order.
On May 23, 1984, this Court entered a Consent Decree in the Hammon case. In the Consent Decree the defendants agreed to validate an entry level firefighter examination in accordance with the Uniform Guidelines, to submit a proposed affirmative action plan to the Court and to OHR, and to validate other components of the firefighter selection process. The Consent Decree also authorized the defendants to hire from the 1984 entry level examination list only after exhausting the 1980 eligible list. Paragraph 11 of the Decree made clear that it was "neither an admission nor a finding that the defendants have violated any law or regulation regarding prohibited discrimination."
On February 7, 1985, pursuant to paragraph 5 of the Consent Decree, the Fire Department submitted to the Court the Affirmative Action Plan ("AAP", or "plan") at issue. The defendants at that time reported to the Court that the plan was already in effect.
On March 8, 1985, the Fire Chief promoted five black firefighters to the rank of Sergeant. These promotions were made pursuant to page 54 of the plan, which states that the Fire Department shall promote "the five highest-ranking Blacks who had not been promoted from the 1982 Register", and that these promotions shall be made retroactive to October 15, 1984. Because there were several higher-ranking whites, these black firefighters would not have been promoted to Sergeant from the 1982 promotion list but for their race. (Joint Stipulation para. 70.)
That same day, March 8, 1985, eight white incumbent firefighters and Local 36 filed a complaint against the Fire Chief, the District of Columbia, and certain named officials challenging the promotion provisions of the AAP. Byrne v. Coleman, C.A. No. 85-0782. The complaint, based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., 42 U.S.C. §§ 1981 and 1983, and the Fifth Amendment to the Constitution of the United States, alleges that the promotion provisions of the plan are illegal and unconstitutional because they contain racial preferences.
On March 11, 1985, the United States, through the Attorney General, filed a complaint against the District of Columbia and certain named officials alleging a pattern or practice of employment discrimination in violation of Title VII and the Fifth Amendment to the Constitution. United States v. The District of Columbia, C.A. No. 85-0797. The United States action contends that the short-term hiring and promotion provisions of the plan violate Title VII or the Fifth Amendment by requiring preferences based on race, color, or sex.
At a status conference held on March 12, 1985, the Court made clear that under paragraph 5 of the Consent Decree, the plan promulgated by the city was not in effect, regardless of the city's contention, as that paragraph required prior approval of the Court. Therefore, under the clear terms of the Consent Decree, which was signed by the Corporation Counsel, there is no plan now in effect. By Order of March 14, 1985, the Court consolidated the three cases. Due to the urgent nature of this case, and the Court's concern for the health and safety of the city's residents, of all races, which have been placed at risk by the lack of a full complement of firefighters, the Court placed the parties' counsel on an expedited schedule, culminating in a lengthy hearing on March 23, 1985. All counsel are to be congratulated for their cooperation and professionalism in helping to bring this complicated series of cases to a conclusion in less than one month.
THE RACIAL COMPOSITION OF THE FIRE DEPARTMENT
each Government Official shall base all personnel actions taken or ordered by him solely on merit and fitness of the individual without regard to race, religion, color, ancestry, or national origin.
The Order, however, further stated that it:
shall not at this time govern the assignment of a colored employee or official to a white company of the firefighting division of the Fire Department or the assignment of a white employee or official to a colored company of the firefighting division.
The current statistics demonstrate that there still exist some vestiges of the aforementioned past discrimination. As of April 1, 1984, there were 1,277 uniformed members of the District of Columbia Fire Department, of whom:
786 (61.8%) were white males
472 (37.0%) were black males
2 (0.1%) were Hispanic males
2 (0.1%) were American Indian males
12 (1.0%) were Black females
1 (0.08%) was an American Indian female
2 (0.1%) were white females.
As of that same date, the officer ranks of the Fire Department had the following racial composition:
1 (100%) black ...