Appeal from the United States District Court for the District of Delaware, D.C. Civil No. 84-0400.
Before: GIBBONS, Chief Judge, MANSMANN, Circuit Judges, and McCUNE, District Judge.*fn*
In this action for reverse discrimination in employment, the plaintiff firefighters claimed that the City of Wilmington had adopted a race-based discriminatory scoring system for the fire department's promotional examination process leading to the 1984 promotional list. We find that the district court's injunction against promotions from the 1984 list is no longer of legal consequence, because of the expiration of the 1984 list with no promotions having been made therefrom. Therefore we will remand and direct dismissal of the complaint as moot.
In March, 1984, the City of Wilmington issued General Notices ("GNs") 84-2 through 84-8, providing the details of the 1984 Wilmington Fire Department promotional examination system. The GNs provided inter alia that the Board of Examiners would be responsible to comply with the terms of the consent decree in an earlier case in which a class of minority firefighters had challenged the fire department's promotional examinations for 1978 and 1980. Wilmore v. City of Wilmington, 533 F. Supp. 844 (D. Del. 1982), rev'd, 699 F.2d 667 (3d Cir. 1983). By the Wilmore consent decree, the city had agreed that future promotional exams would not have a disparate impact on minorities.
GNs 84-3 provided a summary of the promotion process which began with the administration of two written components, the Administrative/Management Task Analysis ("AMTA") and the Problem Analysis and Presentation ("PAP"). After administration of the written tests, the Board of Examiners was to make a threshold ranking of candidates according to their qualification for further consideration. Certification as "well qualified for further consideration" would entitle candidates to an interview and record appraisal with the Chief of Fire. The GNs were non-specific as to how a candidate's threshold qualification category was to be determined, except that it was to be based on the performance of the candidates on the written component. After the interview phase, candidates' final scores were to be calculated with the various factors given the following weights: PAP 60 %, AMTA 25 %, Interview/Record Appraisal 15 %. Ties were to be broken by reference to an experience factor calculated by a method outlined in the GNs. The process was designed to yield a certified list to be used for promotions until the list is exhausted or until two years from the date of filing the certified list.
After the AMTA and PAP components were administered in May and June, 1984, the Board of Examiners adopted a threshold ranking system which excluded from eligibility for the "well qualified" group candidates whose scores fell below a specified minimum on either the PAP or the AMTA. One reason given for the adoption of this ranking system was that, according to statistical computations performed by the city's testing expert, a top down numerical ranking based on the combined PAP and AMTA scores would produce a significant disparate impact on minority firefighters as defined in Paragraph 16 of the Wilmore consent decree.*fn1
After the candidates who were ranked "well qualified" had been interviewed, the testing expert informed the Board that a final ranking framework using the percentages outlined in GN 84-3 would produce a significant disparate impact on minority candidates within the meaning of paragraph 16 of the consent degree. Consequently, the city adopted a revised ranking system which resulted in members of the plaintiff class ranking lower on the final promotion list than they would have under the ranking system originally set forth in the GNs. Dennis Kirlin, the lead plaintiff in this class action dropped in promotional rank from seventh to forty-first under the revised system.
The plaintiffs then brought this action for reverse discrimination in employment pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e, et seq., and pursuant to 42 U.S.C. § § 1981 and 1983. The district court certified a class of all present and future uniformed employees of the Fire Department whose position on the 1984 promotion list or future lists was or may in the future be adversely affected by the city's interpretation of its obligation under the Wilmore consent decree. The plaintiffs claimed that the City of Wilmington adopted a race-based discriminatory scoring system for the Wilmington Fire Department's promotional examination process leading to the 1984 promotional list. The plaintiffs requested that the district court enjoin the city from using the 1984 promotion testing procedures to award promotions, and to direct the city to promote candidates based on the procedures originally outlined in the GNs. The city contended that its actions were required by its obligations under Paragraph 16 of the Wilmore consent decree.
The material facts were undisputed, and the parties filed cross-motions for summary judgment. The district court found that revision of the test scoring procedures as set forth in the GNs was not required by the terms of the Wilmore consent decree. Therefore the court found the revised procedure to be a voluntary, race-conscious, affirmative action which, although clearly aimed at eliminating past practices of discrimination, "unnecessarily trammeled" the interests of the individual non-minority plaintiffs, thereby failing to meet the general criteria for permissible race-conscious affirmative action identified in United Steelworkers of America v. Weber, 443 U.S. 193, 61 L. Ed. 2d 480, 99 S. Ct. 2721 (1979).
Accordingly, on March 31, 1986, the district court denied the defendants' motions for summary judgment and entered summary judgment in favor of the plaintiffs. A preliminary hearing order enjoined the promotion of any firefighters based on the 1984 list and required the parties to submit a proposed order outlining a final ranking list compiled in accordance with the court's opinion. On May 9, 1986, the court approved a final order incorporating a promotion list based on the scoring procedure originally announced in the GNs.
On May 13, 1986 the defendant city filed a motion for reargument. On June 16, 1986, the 1984 promotion list expired and was replaced by a new promotion list based on new tests. The expiration and replacement of the list occurred by virtue of prior contractual agreement unrelated to the pending litigation. By letter to the district court dated July 17, 1986, the city raised the contention that the lawsuit was mooted by the expiration of the 1984 promotion list. By opinion and order of September 29, 1986, the district court denied the defendants' motion for reargument and rejected the contention that the action was moot. The court found that "even though the action may be moot as to firefighters adversely affected by the expired list, including the named plaintiff, a controversy still remains with respect to unnamed and as yet unidentified members of the ...