Full opinion text
MEMORANDUM OPINION KAESS, District Judge. The above entitled actions arise out of separate civil rights complaints alleging discriminatory promotional practices on the part of the City of Detroit and other named individual defendants. The complaints and amendments in both actions charge defendants with violations of 42 U.S.C. §§ 1981, 1983, 1985(3), 2000d et seq., 2000e et seq., the Fourteenth Amendment of the United States Constitution, Article I, Section 2 of the Constitution of the State of Michigan and various state civil rights statutes. Specifically, plaintiffs allege that the promotional practices within the Detroit Police Department resulted in white male police officers being intentionally passed over for promotion to the rank of Sergeant solely because of their race. On November 18, 1976, the Court certified, pursuant to Rule 23 of the Federal Rules of Civil Procedure, the individual plaintiffs’ suit as a class action. Thereafter, on March 29, 1977, the Court entered an Order consolidating the above entitled cases for trial. A preliminary injunction was issued on May 27, 1977, enjoining defendants herein from making further promotions to the rank of Sergeant in accordance with the affirmative action program of the Detroit Police Department. The injunction required all further promotions to be made in strict numerical ranking as established by the current sergeants promotional register. On June 23, 1977, the United States Court of Appeals for the Sixth Circuit entered an Order dissolving the preliminary injunction and remanded the cause for a prompt hearing and determination on the merits. Upon remand the Court, pursuant to Rule 42(b) of the Federal Rules of Civil Procedure, entered an Order bifurcating trial on the issues of liability and damages. Trial of the consolidated actions on the issue of liability began on August 8,1977, and concluded on December 22, 1977. All parties have rested and final arguments have been made and received. The following constitutes the Court’s Findings of Fact and Conclusions of Law as required by Rule 52(a), Federal Rules of Civil Procedure. FINDINGS OF FACT The Disputed Promotions On November 1, 1973, notice was given by the Detroit Police Department that a promotional examination for the rank of Sergeant would be given. The notice provided eligibility requirements and stated, inter alia, that eligible candidates would be permitted to write the examination and receive their “merited” position on the promotional register. The notice also provided that officers would be selected to attend Officer Candidate School in descending order according to their position on the eligible register. On December 16, 1973, the written examination for promotion to the rank of Sergeant was administered to eligible police officers of the City of Detroit by the Detroit Police Department. On April 9, 1974, a list of applicants eligible for the position of Sergeant, arranged in descending order of their total composite score, after application of the promotional model, was caused to be prepared and resulted in Personnel Order 74-108. The order provided that applicants for promotion will be promoted in the order that they appear on the eligibility register provided they are in compliance with specified college requirements or seniority requirements. Thus, if an applicant had not met the college or seniority requirements prior to graduation from Officer Candidate School he would be passed over for promotion. Likewise, if an officer selected from the eligibility register did not successfully complete Officer Candidate School, he too would be passed over as successful completion was a prerequisite to confirmation to the rank of Sergeant. The names of 298 officers appeared on the eligibility register. On May 9, 1974, Police Commissioner Philip Tannian authorized the first set of promotions to be made from eligibility register 74-108. These promotions, totalling thirty (30), were made in strict descending numerical order and were racially composed of twenty-nine (29) Caucasians and one (1) non-caucasian. Subsequently, on June 7, 1974, Personnel Order 74-108 was amended and the eligibility register for Sergeant was extended by the addition of 77 police officers, numbers 299-375, inclusive. The names of these eligible officers were again arranged in descending order according to their weighted composite scores after application of the promotional model. The amendment provided that promotions from the eligibility register will be made in accordance with the provisions of the new City Charter. It was also on this date that Commissioner Tannian rescinded a prior order which stated that promotional candidates will be selected to attend Officer Candidate School in the order of their position on the eligibility register, starting at the top of the list. Thereafter, on August 1, 1974, a second set of promotions to the rank of Sergeant was made from eligibility register 74-108. These promotions, again totalling thirty (30), were not made in strict numerical order as the names appeared on the April, 1974 eligibility register but instead involved passing over approximately 200 white officers with higher composite scores and standing on the eligibility register. Of the thirty (30) promotions, twenty-five (25) went to male officers and five (5) were bestowed upon females. All twenty-five (25) officers promoted were black and ranged in numerical rank on the eligibility register from # 36 to # 264. The third set of promotions to the rank of Sergeant from the eligibility register, and its extension, were made on October 11, 1974. Of the thirty-three (33) promotions, four (4) were received by females, fifteen (15) were awarded to white males and fourteen (14) were awarded to black males. Excluding the female promotions from consideration, the white male promotions were made in strict numerical order according to their respective positions on the eligibility register. While the black male promotions were apparently made in the same manner this process required selection of every remaining black male on the eligibility register and its extension. There was, in actuality, two lists, one for white males and one for black males. The positions of the black male officers promoted ranged from #276 to # 375, the last number on the list, and required the passing over of every remaining white male. The 1974 eligibility register was amended for á second time on January 6, 1975, extending the eligibility register for the rank of Sergeant to include an additional 125 police officers. These officers ranked # 376 to # 500, inclusive. The personnel order provides the alleged purpose for the extension stating, in part, as follows: "In order to provide the department with additional Sergeants and to comply with the affirmative action resolution as adopted by the Board of Police Commissioners on July 31,1974, it is necessary to extend the eligibility register for the rank of Sergeant. The register has been extended to the position 500 to insure that a sufficient number of officers are available for promotion prior to the publishing of a new eligibility register.” (Exhibit 6) The true reason why the eligibility register was extended was to have more black male officers available for promotion since the prior promotions had exhausted all eligible black male candidates. It was not to insure the department that there would be “sufficient” officers available. The only purpose of the extension was to insure the department that there would be sufficient black male officers available. This fact is evidenced by the exhibit itself as only black males were promoted from the extension. Promotions were again made from the 1974 eligibility register and its extensions on February 12, 1975. Of the twenty (20) promotees, four (4) were females, eight (8) were black males and eight (8) were white males. The male promotions were made by selecting the eight (8) highest ranking black and white officers on the original register and its extensions. Naturally, all the black males were positioned on the second extension. The white males promoted ranged from # 49 to # 57 on the eligibility register while their black counterparts ranged from # 376 to # 414 on the second extension. The fifth, and final, set of promotions from the eligibility register and its two extensions was made on March 27, 1975. Thirty-six (36) promotions were awarded. Three (3) promotions were awarded to females, eighteen (18) to white males and fifteen (15) to black males. The white male promotions were again made in strict numerical order according to their position on the eligibility register. The black male promotions were made in the same manner and again required the selection of every black male on the second extension. The lowest ranking white male promoted was # 79 while the lowest ranking black male was positioned at # 494. On September 10,1974, notice of a second promotional examination for promotion to the rank of Sergeant was given to police officers. The notice provided that the attained position on the eligibility register was a “merited position”. However, the language stating that officers would be selected for promotion by starting at the top of the list was deleted. The written examination was administered on November 17, 1974. After the examination was scored and the promotional model applied, a new eligibility register for promotion to the rank of Sergeant was released, Personnel Order 75-352. The candidates were arranged in descending order according to their accumulated promotional score. The register represented that the candidates would be promoted in accordance with the “needs of the department” as determined by the Chief of Police and the Affirmative Action principles supported by the City Charter, Board of Police Commissioners and department policy. The expiration date of the register was June 30, 1976. Three sets of promotions in 1976 were made from this eligibility register and resulted in 127 total promotions. A breakdown of the three sets of promotions reveals that each time an equal number of black males and white males were promoted. Specifically, the total shows the composition to be as follows: 59 black males, 59 white males, 9 females. As with the 1974-1975 promotions, the process of selecting officers to be promoted was not by true or strict numerical rank but was in fact done by coding the eligibility register by race and sex and then, in a descending order, selecting an equal number of black males and white males from each group. The last white male promoted pursuant to this practice was #70 while the last black male promoted was # 342. On May 23, 1976, the third promotional examination for promotion to the rank of Sergeant was administered. Again, prior notice was given stating that the attained position on the eligibility register was a merited one but that promotions would be made “pursuant to the needs of the department”. The eligibility register, which was released on December 28, 1976, was arranged in descending order according to the total accumulated score of each candidate after application of the promotional model. The list included 460 officers. Its expiration date was stated as December 30, 1977. On June 30, 1977, after reversal of this Court’s preliminary injunction, sixty-nine (69) promotions to the rank of Sergeant were made from the 1976 eligibility register. Excluding the nine (9) females promoted, the racial composition of the males promoted was equal, thirty (30) white males and thirty (30) black males. The last white male promoted was # 42 on the eligibility register while the last black male promoted was # 116. The process of selection was again made by use of a register coded with race and sex designations and, in effect, required the use of two eligibility registers for males. Prior to the August 1, 1974, promotions, promotions to the rank of Sergeant had always been made in strict numerical rank according to the current eligibility register. No candidate was passed over or promoted on account of race as skin pigmentation was accorded no weight in the promotional process. Further, the evidence shows that all the white male officers who were passed over would have been promoted but for the color of their skin. The Promotional Process The notice of promotional examination dated November 1, 1973, stated that in order to be promoted to the rank of Sergeant it was a requirement that a candidate either have completed 12V2 years of current service, commonly known as the grandfather clause, or have earned fifteen (15) quarter hours or ten (10) semester hours of college credit. However, in order to sit for the written examination all officers had to satisfy one of the following three eligibility requirements: (1) completion of three years service; (2) completion of 2V2 years service and 2 years of college; or (3) completion of 2 years service and possess a four year college degree. The promotional model for the 1973 process was comprised of five weighted component parts. These parts and their respective weights were as follows: (1) Written Examination, 60%; (2) Performance Evaluation Ratings or Service Ratings, 30%; (3) Seniority, 8% maximum; (4) College Credit and (5) Veteran’s Preference. The combined maximum for (4) and (5) was 2%. The Performance Evaluation rating score was determined by averaging the ratings attained by the candidate on his last two the first through 20th year of service and Vsth of one through 24th year of service, the first through 20th year of service and Vs th of one through 24th year of service. College credit was computed on the basis of V2 of one percent per full year of college. Veteran’s Preference was controlled by city ordinancé. In 1974 the promotional model, as applied to the November, 1974 examination, was changed. The written examination weight was increased from 60% to 65%. Performance evaluation ratings were decreased from 30% to 15%. An oral board, or promotional evaluation board, was installed as a sixth factor and assigned a weight of 10%. Seniority was reduced to a maximum of 6% and computed on the basis of one percent per year for the first through fifth year of service and V2 of one percent for the sixth and seventh year. The college credit and veteran’s preference components were increased to a maximum of 2% each, no longer 2% combined. Further, in order for a candidate, who did not qualify under the grandfather clause, to be promoted off the eligibility register he must have successfully completed 30 quarter or 20 semester hours of college, double the amount previously required. In 1976 the promotional model, including all component factors and weights, remained the same. However, in order to be promoted off the eligibility register the candidate must have completed 45 quarter or 30 semester hours of college credit if the candidate did not qualify under the requirements of the grandfather clause. Thus, greater emphasis was again placed on college education. The Written Examination A history of the promotional process shows that prior to 1969 intelligence quotient was accorded heavy emphasis in the written promotional examination. In 1969, after serious evaluation of the written promotional examination, changes began being instituted under the direction of Commander Richard Caretti to assure the elimination of any factor having a “disparate impact” upon minorities taking the examination. While these changes were definite improvements, it was in the 1973-1976 period where the most extensive changes occurred. The objective and charge of Caretti in preparing the 1973, 1974 and 1976 written examinations was to eliminate any existing cultural or racial bias of former examinations by making the examinations as “content valid” as possible. Caretti was intent upon complying with existing federal testing guidelines and totally committed to eliminating old barriers, if any, which curbed the upward mobility of any racial or ethnic group. The first step toward this goal was made by attempting to define the current essential knowledge, skills or behaviors required for satisfactory performance in the position of Sergeant through job analyses prepared by Caretti and two outside experts. Once the job analysis was completed for each promotional examination the actual examination questions were prepared. As with the job analyses, experts, inside and outside the department familiar with police personnel, were utilized in preparing specific sections of examination questions. The questions selected for use consisted of representative samples of the performance domain as defined by the job analysis and included aspects of performance which differentiated among levels of successful job performance. These questions pertained to major or critical work behaviors as this concept was a key focal point throughout the project. The knowledge sought to be tested was not of a type which could be acquired in a brief orientation to the job. Terminology used in test questions was specifically chosen to reflect a job related vocabulary. Additionally, the conditions under the 1973-1976 examinations were administered and scored were both controlled and standardized with safeguards instituted to protect the security of the testing and scoring process. Finally, Caretti attempted to achieve a staff racially composed of both whites and blacks in an effort to achieve input from both racial groups. Caretti’s efforts on the 1973-1976 examinations resulted in tests which measured relative differences of probable job success between candidates for promotion. All the evidence in the record demonstrates, and this Court finds as fact, that these examinations were in conformity with American Psychological Association Testing Standards and Equal Employment Opportunity Commission Guidelines on Employee Selection Procedures. Dr. Wollack, a psychometrician, stated that after evaluating the process used by Caretti in preparing these promotional examinations he was of the opinion that they were fully job related and content valid. Dr. Wollack also had the benefit of personally reviewing the actual 1973 and 1974 examinations to support his opinion. Additionally, he had prepared and studied an item analysis on the 1974 examination. Dr. Wollack also concluded that there was no suitable alternative to the written examination which would have less adverse racial impact. Dr. Ebel, also a psychometrician, corroborated Dr. Wollack’s findings and conclusions that the examinations were content valid. None of the plaintiffs’ evidence regarding validity of the 1973-1976 written examinations has been challenged by the defendants. The Court accepts the testimony of Caretti, Wollack and Ebel and finds, as fact, that the 1973-1976 written examinations were professionally developed, tested areas which closely approximated the tasks to be performed on the job by the promotional candidates and were content valid in all respects. Finally, the Court notes that the pass rate for the 1973, 1974 and 1976 written examinations for white males was 43%, 53% and 51%, respectively. Conversely, the pass rate for black males on the same examinations was 28%, 39% and 42%, respectively. Thus, mathematically, the selection rate of black males vis a vis white males regarding the 1973-1976 written examinations was 65.1%, 73.2%, 82.4%, respectively. Performance Evaluation Ratings Performance evaluation ratings, or service ratings, encompassed 20 factors of equal weight. Each factor was scored on a range of one to five points with the maximum total of 100. All police officers were rated twice a year by at least two, and preferably three, officers of superior rank. Additionally, in order to qualify as a rating officer the ranking officer should have supervised the candidate for a minimum of three months during the rating period. Separate evaluations were not made by each rater. Instead, the completion of the form represented the combined thinking of both raters. In order to guide and assist raters and to make the program meaningful, a set of guidelines on service ratings was published and made available to all raters. The guidelines counseled the rater to be objective and cautioned against bias and prejudice. After each officer was rated he would be personally apprised of the evaluation by one of the raters and informed of any noted shortcomings so that a plan of corrective measures could be outlined and implemented. The rated officer was required to sign his service rating form after completion. If he wished to appeal his rating the officer had to make a written request within thirty (30) days of receipt of the rating citing the basis for his appeal. A two member service rating appeal board convened to hear the appeal. The hearing would be attended by the two rating superiors, the officer submitting the appeal, and his commanding officer. At the conclusion of the hearing a complete report including recommendations would be prepared and forwarded to the Chief of Police for review. The report would then be reviewed and sent back for final disposition. There was no minimum required score on service ratings in order to be eligible to sit for the written examination. As previously stated, service ratings were reduced from 30% in 1973 to its present 15% weight in 1974. Caretti evaluated the service rating factor for the 1973 examination by dividing the eligibility register, and amendments, into two racial groups, black and white, and then dividing each group into four classes of seniority. The analysis revealed that service ratings for both racial groups increased with the seniority of the candidates. Further, the study revealed that within the four classes of seniority blacks fared as well as their white counterparts. The analysis showed that blacks with similar seniority tended to have slightly higher service ratings. In the 1975 Equal Employment Opportunity Plan (EEOP) of the Detroit Police Department performance evaluation ratings are said to be an integral and necessary part of the promotional selection model. Further, the plan reiterates the fact that service ratings have been carefully examined and its impact has been assessed. The plan states that the service rating factor does not have any systematically disparate impact on the promotional opportunities of minorities. The Court finds, in accepting and relying upon these above facts, that service ratings, throughout the period of 1973 to the present date, have not been shown to have any disparate impact upon blacks or to discriminate against blacks in any manner in the promotional process. Further, there is no evidence in the record showing discrimination against any group in the service rating factor prior to 1973. Promotional Evaluation Board or Oral Board In 1974 the Detroit Police Department inserted an oral board procedure into the promotional process and assigned it a weight of 10%. One of the key reasons for installation of the oral board was to reduce any potential adverse impact service ratings might have and to test candidates in areas not dealt with in other segments of the promotional model. Each board was composed of three officers above the rank of Sergeant from major police agencies around the country. These officers were selected on the basis of reputation in an effort to maintain objectivity in the process. All boards were required to consist of at least one black. The evidence shows, and this Court finds as fact, that the oral boards were professionally developed and applied. Safeguards existed in the form of an extensive appeal procedure. Moreover, the evidence shows that as a group blacks scored somewhat higher on the oral boards than did their white counterparts. The department was very satisfied with the results of the oral board procedures. Regarding the oral board component of the promotional process there has been little dispute as to whether the oral board discriminated against any racial group. The evidence shows, and this Court finds, as fact, that it did not. Seniority Prior to August, 1970 seniority was accorded a maximum of 10% in the promotional process. In August of that year it was reduced to a maximum of 8%. In 1974 seniority was again reduced to a maximum of 6%. The reason for the diminished emphasis on seniority as a factor in the promotional model was two-fold. First, it was felt that a reduction in the weighting of seniority would benefit minorities since, as a group, a majority had been on the force a short period of time and therefore had less seniority. Second, and more importantly, it was felt that seniority over seven years had diminished importance in terms of potential job success at the rank of Sergeant. Since 1968 all collective bargaining agreements negotiated between plaintiff, D.P. O.A., and the defendant, City of Detroit, have contained seniority provisions which grant seniority benefits to all employees regardless of race. The evidence clearly shows, and this Court finds as fact, that these provisions were the result of good faith arms length negotiations between the parties free from any intention to discriminate against any racial group. No studies have been placed into evidence showing what impact seniority had upon black candidates for promotion vis a vis white candidates for promotion. However, the evidence does show that seniority equally affected blacks as well as whites and that if this factor discriminated it did so against the younger, less senior officers without regard to their race. The Court finds not one scintilla of evidence to show intentional discrimination against either race regarding the insertion of seniority into the promotional process as a factor or regarding its insertion into the collective bargaining agreements between the parties. Further supporting the Court’s finding of non-discrimination in the seniority component is the EEOP of the Detroit Police Department. The department represented to the Law Enforcement Assistance Administration (LEAA) in submitting its plan that “the present formula that computes seniority to a maximum of six percentage points has no adverse effect on the promotional opportunities of minorities.” Veteran's Preference Veteran’s preference was inserted as a component in the promotional model via Detroit City Ordinance. There has been no evidence presented to the Court showing that this facially neutral factor was racially discriminatory vis a vis black males or white males. No studies were presented to the Court showing what impact, disparate or otherwise, the veteran’s preference factor has on either race. However, after examination of the 1973-1976 eligibility registers and their amendments the Court concludes that the veteran’s preference factor discriminates against neither race. College Credit Since 1970 college education has been assigned a maximum of 2% in the promotional model computed on the basis of Vi of one percent per year. College credit was viewed by Caretti and the department as being job related because it heightened the officer’s receptiveness to different points of view. Viewing education as such, officers, both black and white, had available both city and federal funds via the department if they sought a college education. No evidence has been presented to the Court, either statistical or testimonial, showing racial discrimination in the inclusion or application of this component. Thus, the Court finds the facially neutral educational factor to be non-discriminatory. The Entire Promotional Model It is important to note that the Detroit Police Department has no written validation report regarding the 1973-1976 examinations or the promotional models. However, equally important to note is the fact that Caretti, Wollack, Guenther and Ebel consistently testified that the promotional models for 1973-1976, including each component part, were job related and content valid. The testimony consistently was, and this Court finds to be fact, that the higher a candidate stood on the eligibility register the better qualified and equipped he was to assume the position of Sergeant. The above mentioned witnesses testified, and the Court accepts as fact, that application of the model was intended to, and in fact did, demonstrate relative differences in potential job performance. Further, these witnesses testified; and this Court accepts as fact, that the candidates positioned on the register were not, as defendants claimed, equally qualified or a “pool” of qualified candidates. The Affirmative Action Plan of the Detroit Police Department Between late 1973 and mid-1974, Police Chief Philip Tannian, as a result of conversations with City of Detroit Mayor-Elect Coleman Young and their joint belief that the Detroit Police Department should be racially reflective of the population of the City of Detroit, committed themselves to the adoption of an affirmative action plan designed to meet this racial balance objective. On July 1, 1974, the City of Detroit adopted a new City Charter requiring, inter alia, the Mayor to appoint a Board of Police Commissioners, hereinafter referred to as BPC. The appointment of the BPC constituted a major change in the structure of the police department as promotions within the department now had to be approved by the BPC after recommendations by the Chief of Police. The first BPC meeting convened on July 22, 1974. The principal purpose of the meeting was to discuss the adoption of an affirmative action program for the police department. Chief Tannian conducted a presentation before the BPC citing reasons for recommending an affirmative action plan. The foremost reason given by the Chief was alleged prior discrimination against blacks by the department. To support his emphatic claim of historical discrimination regarding the hiring of blacks Tannian cited the work force/general population disparity with regard to blacks on the police .force. These statistics, which the Court accepts as correct, showed that blacks comprised only 17% of the total work force of the department while the population of the City of Detroit was 44% black. Tannian also cited performance evaluation ratings and seniority as impediments to minorities in the promotional process. Finally, Tannian cited Schaefer v. Tannian, 394 F.Supp..ll28 (E.D.Mich.1974), a suit involving sex discrimination in the Detroit Police Department which, in part, established limited preferential hiring. As part of the presentation Tannian provided the BPC with a prepared affirmative action resolution declaring that “de facto discrimination” exists in the hiring and promotion of blacks and other minorities in the Detroit Police Department. The resolution further stated that because of past and present discrimination the Chief of Police is required to take immediate affirmative action to eliminate such discrimination by promoting “minorities” from existing promotional lists. The resolution was not acted upon by the BPC but was instead placed on the agenda of the next meeting. The BPC reconvened on July 31, 1974. The affirmative action resolution, as provided by Tannian, was read and after the BPC closed a floor discussion the members unanimously adopted the Tannian affirmative action resolution. At this time Tannian requested, and received, approval from the BPC authorizing the first set of out of order promotions from the current Sergeants eligibility register. Tannian cited the affirmative action resolution of the BPC as sufficient reason for the out of order promotions in an attempt to comply with the City Charter. No white males were promoted out of the thirty (30) selected for promotion because the prior thirty (30) promotions had been, with the exception of one, all white. Aware of Mayor Young’s campaign promises to racially balance all levels of City government this 50/50 black-white ratio was selected by Tannian because of its correspondence to the present 50/50 black-white ratio of the population of the City of Detroit. From this date to the present all male promotions to the rank of Sergeant were typified by this 50/50 quota. As stated previously, the BPC relied heavily upon Tannian’s work force/general population statistics to show “de facto discrimination against blacks as reason for adoption of the affirmative action plan. However, the facts in evidence show that no labor market statistics or analysis were presented to the BPC. The purpose of a labor market analysis, as this Court understands it, is to identify problem areas in terms of underutilization of specific groups or classes. In performing a labor market analysis the first step is to determine the geographical area from which an employer draws its work force, i. e. recruits. Next, the number or percentage of persons in a particular subgroup in the geographical area possessing the minimum requirements for employment is determined. The final step requires a comparison between this figure and the number or percentage of employees in the subgroup employed by the employer. The evidence in the record reveals, and this Court finds as fact, that since 1968 to the present date, recruiting efforts for applicants to the Detroit Police Department covered a geographical area inclusive of the entire State of Michigan. However, the bulk of all applicants, both black and white, were found in a tri-county area of which the City of Detroit is a part. Until August of 1974 there was no pre-application residency requirement by the City. Prior to that time an applicant need only have been a resident of the State of Michigan for one year. The experts have testified, and this Court accepts such testimony as fact, that the proper labor market for comparison in this case is the tri-county area, commonly known as the 1970 Standard Metropolitan Statistical Area (SMSA). The relevant labor market is not the general population of the City of Detroit. Using the 1970 census and the SMSA as the proper geographical area, application of the second step shows that 18.6% of the relevant labor market was black. This figure, when compared to the 17.23% of blacks on the department in 1974, reveals that blacks were slightly underutilized but not to the degree represented by Tannian and exclaimed by the BPC in the affirmative action resolution as decisive. Regarding the second factor relied upon by Tannian and accepted by the BPC in adopting the affirmative action resolution, to wit, performance evaluation ratings and seniority, the evidence in this record demonstrates, as this Court has previously found, that neither of these component parts of the promotional process curtailed the promotional opportunity of blacks or in any way discriminated against them. This conclusion could have, indeed should have, been reached by the BPC had Tannian revealed certain facts he conveniently failed to communicate to the BPC or if the BPC had investigated the truth of the assertions as was their duty. The BPC was not made aware that (1) Caretti’s study on service ratings revealed that blacks were not disadvantaged by this component part; (2) Service Ratings were to be reduced in weight in the 1974 model from 30% to 15%; (3) Seniority had been fairly negotiated for and inserted as a contractual provision in collective bargaining agreements since 1968; and (4) Seniority was to be reduced in weight in the 1974 model from 8% to 6%. The most significant failure to fully represent the effect of seniority or service ratings was made by Tannian’s failure to produce Caretti before the BPC or at a minimum consult with him regarding these elements pri- or to the presentation to the BPC. Caret-ti was, and is, the preparer of the model and each component part and his informed opinion was necessary for a complete and fair analysis of these factors. Accordingly, the Court finds that service ratings and seniority did not impinge the promotional opportunities as represented by Tannian to the BPC. Further, the Court finds that Tannian neglected to paint the full picture in his presentations to the board regarding these factors and that the BPC failed to fulfill their duty to investigate the factual matters as presented by Tannian. Schaefer v. Tannian, supra, was also given as a pivotal reason requiring an affirmative action plan. While the Schaefer case legally speaks for itself, the facts of Schaefer did not do so in the BPC meetings. In essence, Tannian represented that inasmuch as the department had been found guilty of discrimination against women the same would inevitably hold true for blacks and other minorities. Thus, if sued by blacks the Court would order preferential hiring and promotions. While such logic, from a legal standpoint, is badly flawed a reading of the Schaefer case shows that the seminal facts in that case simply did not apply to the action under consideration by the BPC. This Court finds that Tannian, a lawyer and party to the Schaefer action, intentionally misrepresented the significance of the decision to the BPC. Three additional considerations have been relied upon by defendants in either adopting the affirmative action plan or in defense at trial. First, historical discrimination in the Detroit Police Department in hiring and promotion. Second, funding requirements of the Law Enforcement Assistance Administration. Third, the operational needs of the department required employment and promotion of greater number of blacks. Addressing the factual correctness of the first claim, the evidence in the record shows that since 1968, the point in time when Caretti arrived at personnel, the department has taken many steps to advance black recruitment efforts. The department formed a steering committee on minority recruitment with particular emphasis towards recruitment of black applicants. It designed an “outreach program” relying principally on various advertising techniques to attract qualified black applicants. As part of this program the department sent recruiting vans into areas highly populated by blacks. It initiated several new themes aimed at convincing black men and women that police service provides an excellent opportunity to make meaningful contributions to the community. The department advertised through minority based newspapers and radio stations in an effort to attract greater numbers of blacks. Recruiting posters depicting minority officers were circulated. An officer referral program, primarily directed toward minority officers, was installed in an effort to recruit qualified black applicants. Recruiting efforts were also made at colleges throughout the state with a primary focus on attracting blacks. In 1971 the department hired a black director of police recruiting. Further, in 1974, the department solicited the support of Mayor Young who responded proclaiming February of 1974 “Minority Recruitment Month” and issued a press release calling upon young minority men and women to give serious consideration to careers in the Detroit Police Department in an attempt to make the department a true reflection of the makeup of the community. A local television station aired two documentaries on the department’s minority recruitment efforts. Eventually 85-90% of all field recruiters were black. Additionally, more than 50% of the supervisors and background investigators were members of minority groups. The site of the recruiting section was changed from the headquarters building to several inner-city buildings in predominantly black neighborhoods. Processing procedures, formerly lengthy, were shortened in response to the loss of minorities caused by a loss of motivation. A law enforcement program was instituted in Detroit Public High Schools to attract and prepare blacks for entry into the police profession. Finally, minorities who had previously applied to the department and been rejected were contacted to reapply. These efforts demonstrate, and this Court finds as fact, that from 1968 to the present date, the department has made every possible effort to attract qualified black applicants for employment in the Detroit Police Department. Indeed, the efforts of the department demonstrate that the department is, to use its own words, the “nation’s forerunner in this area.” Defendants presented the BPC and this Court with statistics regarding the number of blacks hired by the police department from 1944 to 1975 which, it is argued, prove past racial discrimination against blacks. After careful review of these statistics the Court finds that these figures do not show such discrimination. In reaching this finding the Court has found that although the statistics show that from 1944 to 1968 the number of whites appointed far outdistanced the number of blacks appointed there is no evidence in the record regarding the number of applicants from each racial group during this period of time. Nor is there evidence showing what the relevant labor market was during this period of time and the number or percentage of qualified blacks in this market. Without this information the naked numbers of black and white hired is susceptible to a multitude of conclusions. Further, while the statistics do show a significant difference between the number of black and white applicants and the number of black and white appointees from 1968 to 1975, the data base upon which these figures were derived reveals a multitude of errors in the reporting process seriously impairing any responsible analysis. These applicant flow records are confusing and, in many areas, incomprehensible. Such deficiencies have totally obliterated any statistical verity to be accorded them regarding the percentages of black and white applicants ultimately appointed from 1968 to 1975 and are therefore entitled to, and receive, no weight by this Court. Much testimony has been adduced regarding the entry level written examination as bearing upon the question of prior discrimination against blacks in hiring. This testimony shows, and the Court so finds, that prior to the 1968 exams, the entrance tests were three to three and one half hours in length and were primarily intelligence quotient oriented. The examinations tended to fail large numbers of blacks in relation to their white counterparts. In 1968, on recommendation of the Vickery Committee, the examination was changed to a 12 minute Wonderlic Examination on the premise that this examination would be an improvement for minorities in terms of length of time required by the exam. In practice, the exam continued to pass a high percentage of whites while failing a high percentage of blacks. The Vickery Committee expressed its dissatisfaction and sought out a better examination. Their objective was to find an entry level examination which would be a reasonable predictor of potential job success, free from cultural bias suspected in the present exam. Additionally, the committee desired an exam which would produce equal racial representation on the police force. In early 1971 the Vickery Committee contacted and hired John Furcon of the University of Chicago to prepare an entry level examination meeting these objectives. Furcon began preparing an entry level examination and in March of 1971 provided the department with an interim test for use until his work was complete. The interim test, known as the “Chicago battery”, tested Detroit applicants on the basis of an alleged validated Chicago Police Department entry examination. The exam set different passing scores for black and white Detroit applicants based upon the average passing scores for their Chicago counterparts. These tests were basically I.Q. exams and, while improving the percent of black applicants passing the examination, continued to screen out greater numbers of blacks than whites. The Chicago battery was continued in use until 1973 when the Detroit Furcon exams were completed. The Detroit Furcon Exams were scored by use of differential regression equations. Use of differential regression equations rests upon the assumption that the use of either differing tests or the application of varying weights to the same questions can measure one standard of job performance. With the advent of the Detroit Furcon examinations black and white applicants passed at approximately the same rate. The defendants claimed at trial, as well as representing to the LEAA in their Equal Employment Opportunity Plan, that the Furcon exam for Detroit had been validated. However, at trial neither Furcon nor a validation report was produced. Contrary to this assertion of validity, the expert testimony in the record shows, and this Court finds as fact, that the Furcon examination was not a job related exam and resulted in random hiring as opposed to hiring the most qualified. No contrary evidence was presented regarding this finding. Accordingly, the Court finds from the foregoing facts that the department’s primary concern was not in attempting to determine who were the best suited for employment with the department. Rather, the concern was to racially have the police department reflect the composition of the population of the City of Detroit. The final form of hiring discrimination evidence was received from individual black police officers regarding their prior departmental experiences. A review of their entire testimony shows that all but one of those applicants were rejected, if at all, for proper non-racial reasons. The one exception is Rodney Brown. Brown originally applied in 1963 and was rejected on the basis of being too short. The minimum height requirement at that time was 5'8!/2'' and Brown stood 5'11". This fact shows an improper rejection but in and of itself does not show racial discrimination. There is no testimony showing that the rejection was anything but a wrongful one. It has not been shown that the person measuring Mr. Brown was white. Nor has it been shown that white males, shorter than 5'8y2" were accepted either before or after Mr. Brown’s rejection. One isolated incident occurring 15 years ago does not demonstrate that there was a practice of improperly rejecting blacks on the basis of the height requirement. The Court cannot find that Mr. Brown was rejected because of his race but can only find the rejection to have been improper. Defendants have also claimed that discrimination against blacks existed in the department’s past promotional practices. No evidence has been produced regarding promotional models antedating 1973. If evidence of racial discrimination, either overt or covert, existed in these models it should have been produced by the defendants. In view of the fact that it was not, the Court can only conclude, as fact, that prior promotional models and their application were not discriminatory against blacks, whites or any other class of individuals. In summation, the evidence reveals, and this Court finds as fact, that until 1973 entry level (hiring) written examinations of the Detroit Police Department may have constituted a source of discrimination against blacks seeking entry into the department because these examinations were heavily weighted on I.Q. type questions, were not job related and tended to fail large numbers of blacks vis a vis whites. However, the evidence also shows that after installation of the Detroit Furcon exams in 1973, no discrimination of any form existed in regard to black applicants for positions as police officers. Further, this Court finds that the application of promotional models existing prior to 1973 did not discriminate in any fashion against black police officers. In defense of its affirmative action plan the defendants have claimed that the Detroit Police Department was required to adopt such a plan or risk the threat of loss of federal funds from the Law Enforcement Assistance Administration (LEAA). The evidence in the record reveals, and this Court finds as fact, that in 1974 the LEAA conducted audits of the department’s employment practices. Upon conclusion of the audits the LEAA required the department to submit a written program merely documenting their current practices in order to continue receipt of grants. The department, however, had never received any complaints from the LEAA that its pre-affirmative action hiring or promotional policies or practices were discriminatory against any group. Nor had the department ever been threatened with a revocation of funds for lack of an affirmative action plan. Funds were threatened to be cut off, if at all, for the sole reason of failing to submit a written program documenting the department’s current employment practices. The deadline for filing was December 31, 1975. In July of 1975 Tannian directed Jacqueline DeYoung to prepare the required plan. Ms. DeYoung familiarized herself with a Equal Employment Opportunity Program Development Manual prior to preparation of the plan and attempted to comply with the manual’s directives. The plan as submitted on December 31, 1975 was approved by the LEAA in 1976. The EEOP submitted by the department makes many statistical comparisons between the work force of the department and the general population of the City of Detroit. Tannian directed DeYoung to use general population statistics despite her insistence that such comparisons were improper. While the department’s EEOP represented that the Detroit Police Department provides equal employment opportunity for all employees it concealed much of what was the actual present practice of the department regarding promotions to the rank of Sergeant. The plan represented that “adjustments” from the eligibility register were necessitated in order to facilitate the attainment of affirmative action objectives and that promotions to the rank of Sergeant have been made “in a manner that assures that appropriate proportions of minorities and female officers are selected.” The plan, however, does not inform the LEAA that the “adjustments” and “manner” referred to are actually made by intentionally passing over white males who have achieved a higher position under a content valid promotional model in order that equal numbers of black males may be promoted. The plan does not inform the LEAA that “appropriate proportions” means that of a 50% quota. The most incredible misrepresentation of the plan is its consistent use of the word “minorities”. The affirmative action plan of the department did not apply to the broad spectrum of minorities. It applied to blacks and blacks alone. The department did not reveal that it deemed American Indians, Chinese, Japanese, Mexican, Spanish, Latinos, Whites and all other racial and ethnic groups to constitute the majority. Also omitted from the EEOP is the fact that the department had instituted an appeal procedure, as of right, for those officers passed over for promotion under the guise of the affirmative action plan. The reason for the omission is obvious. The evidence shows that in order to appeal an officer had to state facts sufficient to prove the following. First, that the appealing officer was on the eligibility register and an officer in a lower position was promoted. Second, the action was not based on the affirmative action policy as adopted by the BPC. Thus, inasmuch as the evidence clearly shows that no officer was passed over for a reason other than the affirmative action plan, the so-called “right of appeal” was non-existent. The evidence shows that all appeals were perfunctorily denied because the appealing officers could not allege the jurisdictional facts required to perfect an appeal. Not only did the required jurisdictional facts render the appeal a nullity, they constituted a violation of the City Charter which granted a right of appeal. Omission of the appeal process from the written EEOP is quite understandable in view of these facts since upon revelation it would have exposed the actual promotion system thereby self-indicting the appeal process. In conclusion, this Court finds that the department did not institute the affirmative action plan because of a threat of loss of federal funds flowing from the LEAA. On the contrary, once the LEAA required a written plan the department attempted to mask and conceal from the LEAA actual departmental practices with regard to promotions. As a final consideration in defense of the affirmative action plan the defendants stand upon the amorphous claim of “operational needs”. Stripped to its barest form this argument rests upon the premise that blacks can communicate and cooperate better with blacks than can whites. Thus, since the City of Detroit is largely black greater numbers of blacks in all ranks of the police force will tend to enhance communication and cooperation with the community, install greater respect for the department, reduce and solve crime, and in general, improve the overall effectiveness of the department. As proof of the foregoing belief defendants rely principally upon an alleged reduction of crime and a drop in citizen complaints. On the whole, the evidence in the record reveals, and this Court finds to be fact, that neither the quantity of crime nor the number of citizen complaints dropped with the advent of the department’s affirmative action plan. More importantly, however, is the fact that there is no evidence in the record indicating that if such a decrease in crime and citizen complaints did exist that the decreases were attributable to the affirmative action plan. Diametrically opposed to the void of competent evidence concerning the claim that the affirmative action plan improved the overall effectiveness of the department is evidence, which the Court accepts as fact, that the inclusion of race as a promotional criterion damages departmental morale and the quality of work of all officers. The record evidence demonstrates, which the Court accepts as fact, that a police officer’s effectiveness, as a professional law enforcement officer both within the department and the community in which he serves, is dependent upon his education, skill, training, attitude and sense of professionalism. The unalterable pigmentation of his skin has no bearing Upon these facts and neither enhances nor depreciates his professional enforcement effectiveness. Defendants’ claim that operational needs of the department required more blacks on the police force is rejected by the Court as being factually unsupported by any competent evidence. CONCLUSIONS OF LAW Title VII The complainant in any Title VII action, 42 U.S.C. § 2000e, et seq., must, at the outset, carry the initial burden under the statute of establishing a prima facie case of racial discrimination. As the United States Supreme Court stated in McDon nell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973): “This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.13 ” (footnote omitted) Subsequent to the McDonnell Douglas decision the Supreme Court unequivocally dispelled the notion that Title VII only applied to non-whites holding that Title VII prohibits racial discrimination against whites in the same fashion as it prohibits racial discrimination against any protected group. McDonald v. Sante Fe Trail Transportation Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976); Haber v. Klassen, 540 F.2d 220 (6th Cir. 1976); Herrman v. Coleman, 428 F.Supp. 447 (D.C.D.C.1977). Inasmuch as the McDonnell Douglas decision involved a refusal to hire and the instant case centers around a refusal to promote, the prima facie proof required, although similar, is somewhat differing. A prima facie case of failing to promote because of racial discrimination is made by showing (i) that plaintiffs belong to a protected class or group; (ii) that they were qualified for promotion and might have reasonably expected selection for promotions under the defendant’s on-going competitive promotion system; (iii) that they were not promoted; and (iv) the supervisory level employees having responsibility to exercise judgment under the promotion system betrayed in other matters a predisposition towards discrimination against the members of the protected group. Pettit v. United States, 488 F.2d 1026, 1033, 203 Ct.Cl. 207 (1973); Thompson v. McDonnell Douglas Corp., 416 F.Supp. 972, 980 (E.D.Mo.1976). Additionally, the class action plaintiffs ultimately had to prove more than the mere occurrence of isolated, accidental or sporadic discriminatory acts because they have alleged a pattern or practice of racial discrimination in the area of promotions contrary to Title VII. Plaintiffs had to establish by a preponderance of the evidence that racial discrimination was the defendants’ standard operating procedure— the regular rather than the unusual practice. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); Franks v. Bowman Transportation Co., 424 U.S. 747, 772, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). The Court’s Finding of Fact unequivocally establish that both plaintiffs have proven the four elements of a prima facie case of racial discrimination regarding the defendants’ usual practice of promotions to the rank of Sergeant. The plaintiffs are members of a protected class. McDonald v. Sante Fe Trail Transportation Co., supra; Haber v. Klassen, supra. They were better qualified than those officers promoted who stood lower on the eligibility register and but for the defendants’ affirmative action plan would have been promoted. They were not timely promoted. Finally, defendants’ operation of the affirmative action plan evinced a predisposition towards discrimination against whites. The burden may be deemed shifted to defendants to articulate, as to each passover of plaintiffs, where they might have been selected, that the non-selections were for legitimate non-discriminatory reasons. McDonnell Douglas Corp. v. Green, supra. In enacting Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Congress did not intend to guarantee a job or promotion to every person regardless of qualifications. The Act does not command that any person be hired or promoted simply because he was formerly the subject of discrimination. Discriminatory preference for any group is precisely and only what Congress has proscribed. Thus, Congress has required employers to remove artificial, arbitrary and unnecessary barriers to employment when such barriers operate to discriminate on the basis of race or other impermissible classification. Griggs v. Duke Power Co., 401 U.S. 424, 430-431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); McDonnell Douglas Corp. v. Green, supra; McDonald v. Sante Fe Trail Transportation Co., supra. Section 703(a) of Title VII, 42 U.S.C. 2000e-2(a) specifically provides: “Section 703(a); It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex or national origin.” It is clear from the evidence in the record, as found by the Court’s Findings of Fact, that defendants have, since August of 1974, continually and repeatedly violated Section 703(a) by granting preferent